LAW OF CRIMES (INDIAN PENAL CODE, 1860)

LL.B.
Part-2 (Indian Penal Code) 1
Short Answers Questions

Q.1. Define Public Servant under I.P.C?
Ans. Section 21 of the Indian Penal Code defines the term ‘public servant’.
This Section has been incorporated separately to avoid confusion
regarding the definition of ‘public servants’ and the people who count
as one. There are numerous sections in the Indian Penal Code which
include the term ‘public servant’. To differentiate between public
servants and other persons hence is of utmost importance. Section 21
basically lists out the various categories of public servants. The
categories are primarily based on function carried out by the person
concerned.
The following persons are included in the definition of Public Servant:
• Every Commissioned Officer in the Military, (Naval or Air) Forces
of India.
• 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.
• 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 person
specially authorized by a Court of Justice to perform any of such
duties;
• Every juryman, assessor, or member of a panchayats assisting
a Court of Justice or public servant;
• 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;
2 Dr. Bhimrao Ambedkar Law University, Jaipur
• Every person who holds any office by virtue of which he is
empowered to place or keep any person in confinement;
• 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
convenience;
• Every officer whose duty it is, as such officer, to take, receive,
keep or expend any property on behalf of 29 [the Government],
or to make any survey, assessment or contract on behalf of 29
[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 for the
protection of the pecuniary interests of the Government.
• 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.
• Every person who holds any office in 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.
• 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 a local authority, a 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 (1 of 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
LL.B. Part-2 (Indian Penal Code) 3
other public authority, of whatever character, the method of
selection to which is by, or under, any law prescribed as by
election.
Q. 2. Write a short note on Public Nuisance?
Ans. A public nuisance created in a public setting or on public land, or
affecting the community’s morals, safety, or health, is considered to
be a state offence. Public nuisances include activities such as
obstructing a public road, polluting air and water, operating a
prostitution house and keeping explosives. Section 278 of Indian Penal
Code defines any person who does an act or an illegal omission that
causes any common injury, danger or annoyance to the public or who
live or occupy the property in the vicinity, or that necessarily causes
injury, obstruction, danger or annoyance to persons who may have
the potential to use any public right. Punishment for public nuisance
is defined in Section 290 of IPC in accordance to which person
committing public nuisance shall be liable of a fine of Two Hundred
Rupees, further if the person continues to create havoc and nuisance
even after the lawful public authority issues an injunction, in such a
case that person will be liable for imprisonment which may extend to 6
months or fine or both under Section 291 of IPC.
Procedure for removal of Public Nuisance under CrPC:
Section 133 of CrPC provides for a rough and ready procedure to be
used in urgent cases for removal of public nuisances. In accordance
to this section, whenever a District Magistrate or a SubDivisional
Magistrate or any other Executive Magistrate, specially empowered
in this behalf by the State Government, on receiving the report of a
police officer or other information and on taking such evidence as he
thinks fit:
1. any unlawful obstruction or a nuisance should be removed from
any public place or from any place used by the public; or
2. conduct of any trade or occupation, or the keeping of any goods,
is injurious to the health or physical comfort of the community,
such trade or occupation should be prohibited or regulated or
should be removed or the keeping be regulated;
3. construction of any building, disposal of any substance which
is likely to occasion conflict or explosion, should be prevented
or stopped;
4. that any building, tent or structure, in such a condition that it is
likely to fall and thereby cause injury to persons living or carrying
on business in the neighbourhood or passing by and therefore
repair or support of such building, tent or structure, or the removal
of support of such tree, is necessary;
5. that any tank, well adjacent to any such way or public place
should be fenced in such manner as to prevent danger arising to
the public;
6. any dangerous animal should be, confined or otherwise disposed
of.
such Magistrate may make an order requiring the person causing
such obstruction or nuisance/ carrying on such trade or occupation
or keeping any such goods owning, possessing or controlling such
building, tent, structure, well or excavation, or owning or possessing
such animal or tree, within a time to be fixed in the order as:
1. remove such obstruction or nuisance;
2. desist from carrying on, or to remove or regulate in such manner
as may be directed, such trade or occupation, or to remove such
goods, or to regulate the keeping thereof in such manner as may
be directed;
3. to prevent or stop the construction of such building, remove,
repair or support such building, tent or structure, or to remove
or support;
4. fence such tank, well or excavation;
5. destroy, confine or dispose of such dangerous animal in the
manner provided by law
Q. 3 Define Riot under IPC?
Ans. A riot is a type of civil disorder which is often characterized by
disorganized groups lashing out in a sudden and extreme outbreak of
violence against authority, property or individuals. Although
individuals may try to lead or control a riot, riots are usually disorderly,
exhibiting collective behaviour, and caused by civil unrest in general.
Sometimes, riots occur in response to a perceived injustice or out of
dissent.
Rioting is a violent civil disturbance of peace and order by a crowd or
assembly. A major difference between unlawful assembly and riot is
the presence of violence in a riot.
Violence, which is (a) force, defined in Section 349 of IPC or (b) criminal
force defined in Section 150 of IPC.
Section 146 of IPC defines Rioting as the use of force or violence by
an unlawful assembly in achieving a common object thereof. In such
a case, every member of the unlawful assembly is guilty of the offence
whether he was a part of such violence or not.
Bilal Ahmed Kaloo v. State of Andhra Pradesh (1997) 7 SCC 431 in
this case it was held that Mens rea is an essential ingredient for the
offence that is committed under Section 153A of IPC. Criminal intent
or evil intention. In general, the definition of a criminal offence involves
not only an act or omission and its consequences but also the
accompanying mental state of the doer. All criminal systems require
an element of criminal intent for most crimes.
Rioting is in itself a means to disrupt the public peace, and is immaterial
whether the rioters were violent or not, use of criminal force is not
essential, the same was held in the case of Lakshmi Ammal v.
Samiappa (AIR 1968 Mad 310) the court said that violence is not
necessary to be inflicted against a person it can be against property
or any object.
Is sudden quarrel a riot: In Ananta Kathod Pawar v. The State of
Maharashtra, (1997) 11 SCC 564, it was held by the Court that if for
any lawful reason a number of persons assembled unexpectedly
quarrelled without any prior intention or arrangement, they would not
be liable for riot. In such a case, the guilty would be liable for their
particular actions and would not be vicariously responsible.
Ingredients:
• The accused persons are five or more in number.
• The assembly shares a common object which is illegal in nature.
• In the case of Maiku v. State of Uttar Pradesh, AIR 1989 SC
67, a SubPolice Inspector and a few constables detained an
individual while the SubInspector investigated a case and the
arrested person voluntarily led them to the place where the dead
body was found, the detained person attempted to flee the police.
Finally, he was overpowered and beaten which resulted in his
death. It was held – the purpose of the police was holding an
investigation. Hence their common object being lawful. If the
common object of an assembly is legal, it is not rioting even if
force is used by any member of that assembly. The accused
must be armed by a common or harmful object.
• The force used by the assembly or any member thereof in the
prosecution of the common object.
Punishment: Further, the punishment in Section 147 which states
that whoever is guilty of rioting shall be punished for either (a) term
which may extend to two years or (b) fine or (c) both.
Also, any person who is guilty of rioting and was armed with a weapon
or anything which is used as an object to cause violence in the riot
and use of such is likely to cause death. In such a case, under Section
148, the punishment (a) extends to a term of three years or (b) fine (c)
both.
Q. 4. Write a short note on Affary?
Ans. Affray: If two or more people fight in public, thus disrupting people’s
peace or endangering the one around them then they are said to have
committed Affray. The act should create disturbance and disorder in
society. Action creating threat in society is affray. Common intention
is not important in an affray and a person who has actually committed
a crime is liable.
Accordingly, the affray offence is a group or joint act in which two or
more parties are engaged in combat against each other, conducted in
a public location, resulting in public peace disturbance. It requires a
real battle between the parties to create this offence and a simple
altercation does not lead to an affray. It is specified in Section 159 of
the IPC and Section 160 of the IPC imposes punishment.
Indian penal code defines affray as an assembly of two or more
people fighting in a public place which is interfering with the public
peace.
Sections 159 and 160 of Indian Penal Code deals with offences against
affray.
Section 159 defines affray as two or more persons, by fighting in a
public place, disturbing the public peace, they are said to “commit an
affray”.
Ingredients: An offence of affray can be postulated if it possessed
the following:
• Involvement in fighting by two or more persons.
• Such an act took place in a public place.
• Act resulted in the disturbance of the public peace and
atmosphere.
Punishment: Punishment for committing affray is defined under
Section 160, that is, imprisonment of (a) term extending to one month
or (b) fine which may extend up to Rs100 or (c) both. People involved
in affray may also be convicted for unlawful assembly or riot based on
the potential of the act done and threat created in the surrounding.
Q. 5 Distinguish between Theft, Extortion, Robbery and Dacoity.
Ans. The Difference between the Theft, Extortion, Robbery and Dacoity
are as follow:
Basis Theft Extortion Robbery Dacoity
Consent The moveable Consent is obtained The property is taken There is no
property is taken wrongfully by without consent. consent, or it is
away without the coercion. wrongly
consent of the obtained.
owner.
Subject It is of moveable It may be either of Robbery may be committed It maybe is
Matter property. movable or immovable on the immovable property committed on
property. only when it is in the form of immovable
extortion. property only
when it is in the
form of extortion.
Number Theft is committed Extortion also can be It can be committed by one To commit dacoity,
of by one or more committed by one or or more persons. there must be five
Offenders persons. more persons. or more offenders
involved.
Force/ There no element of This element does Force/compulsion may or Force/
Compu- force or compulsion. exist on the person may not be used. compulsion may
lsion being put in fear of or may not be
injury. used.
Element The element of fear The element of fear is The element of fear exists The element of fear
of Fear is absent in cases of present in cases of only when the robbery is in could exist in
theft. extortion. the form of extortion. cases of dacoity.
Delivery The property is not There is the delivery If robbery is committed in Similarly, if
of delivered by the of property. the form of theft, then there dacoity is
Property victim. is no delivery of property by committed in the
the victim. form of theft, then
there is no
delivery of
property by the
victim.
Punish- Given under Given under Given under Section 392 Given under
ment Section 379 of the Section 384 of the of the IPC. Section 395 of the
IPC. IPC. IPC.
Imprisonment up Imprisonment up Rigorous imprisonment up Rigorous
to 3 years or fine to 3 years or fine to ten years and fine. imprisonment up
or both. or both. If robbery is committed on to 10 years and
a highway between sunset fine.
and sunrise, then the period
of imprisonment can be
extended up to 14 years.
Q. 6. Explain cruelty by husband or relative of husband towards women?

Ans. Section 498A of IPC Husband or relative 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 purpose 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.
Rupali Devi vs. State of U.P (Criminal Appeal No. 71/2012): In this
case, the bench observed that mental cruelty is borne out of physical
cruelty or abusive and humiliating verbal exchanges would continue
in the parental home even though there may not be any overt act of
physical cruelty at such place. Thus, it held that the courts at the
place where the wife takes shelter after leaving or driven away from
the matrimonial home on account of acts of cruelty committed by the
husband or his relatives, would, dependent on the factual situation,
also have jurisdiction to entertain a complaint alleging commission of
offences under Section 498A of the Indian Penal Code.
Rashmi Chopra vs. the State of UP (Criminal appeal no.598 of
2019): In this case the bench comprising Justice Ashok Bhushan
and Justice KM Joseph was considering the submission that since
the complaint is not made by the woman, but filed by her father, it is
not maintainable. Rejecting this contention, it held that Section 498A
of the Indian Penal Code does not contemplate that complaint about
an offence under Section 498A should be filed only by women, who
are subjected to cruelty by husband or his relative. There is nothing
in Section 498A, which may indicate that when a woman is subjected
to cruelty, a complaint has to be filed necessarily by the women so
subjected, it said.
Q. 7. Write a short note on Dowry Death?
Ans. Dowry Death: Section 304B of the Indian Penal Code states that if a
woman dies within seven years of marriage by any burns or bodily
injury or it was revealed that before her marriage she was exposed to
cruelty or harassment by her husband or any other relative of the
husband in connection to demand dowry then the death of the woman
will be considered as a dowry death.
Punishment for dowry death is a minimum sentence of imprisonment
for seven years or a maximum sentence of imprisonment for life.
Essential Ingredients:
• Death should be caused by burns or bodily injury or by any
other circumstances.
• Death must occur within the seven years of marriage.
• It must be revealed that soon before her marriage she was exposed
to cruelty or harassment by her husband or any other relative.
• The cruelty or harassment on her should be in connection with
the demand for dowry.
Explanation: For the purposes of this subsection, “dowry” shall have
the same meaning as in section 2 of the Dowry Prohibition Act, 1961.
Q. 8 What is Sedition?
Ans. The term ‘Sedition’ means “conduct or speech which results in mutiny
against the authority of the state”. Law of Sedition deals with section
124A of IPC, 1860, is considered as a reasonable restriction on freedom
of speech. It was drafted by Thomas Macaulay and introduced in
1870.
Meaning of Sedition under Section 124A of IPC, 1860
“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 shall be punishable with Life
Imprisonment”.
Explanation I to the Section defines the scope of disaffection and in
Explanation II and III indicate what under the English Law is not
considered seditious intention.
The activities that are Seditious in nature: In India, what constitutes
as ‘Sedition’ is highly debated. As per the Indian Penal Code, for an
act to be called “seditious”, it should have the following components:
1. Any words, which can be either written or spoken, or signs
which include placards/posters (visible representation)
2. Must bring hatred/contempt/disaffection against the Indian
Government
3. Must result in ‘imminent violence’ or public disorder. (Indra Das
v. State of Assam (2011) 3 SCC 380)
As per the interpretation of the Court on Section 124A of the Indian
Penal Code, 1860 the following acts have been considered as
“seditious”
• Raising of slogans against the government – example –
“Khalistan Zindabad” by groups. Raising of slogans by
individuals casually once or twice was held not to be seditious.
(Balwant Singh v. State of Punjab (1995) 1 SCR 411)
• A speech made by a person must incite violence / public disorder
for it to be considered as seditious (Kedarnath Singh v. State of
Bihar 1962 AIR 955). Subsequent cases have gone to further
interpret it to include “incitement of imminent violence”.
• Any written work which incites violence and public disorder.
Q. 9. Explain Accident as a General Exception under IPC?
Ans. Section 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 standing nearby. Here, if proper precautions were not taken on
behalf of A, then his work shall be excusable and not an offence.
Section 80 of IPC is based on the principle that no act is an offence or
crime unless the one doing it has done it with criminal intent. Accident
does not only mean occurrence by chance, but such occurrence must
be unintended and unexpected.
This section states that if anything is done by accident or misfortune
and that too without any criminal intention in doing a lawful act in a
lawful manner and by all lawful means with proper care and caution, it
will not be defined as an offence.
In other words, it is no offence if a person commits an act that is an
offence under the eye of IPC by accident or misfortune but without
any criminal intent or having knowledge of it. The act must be lawful,
and it must be done in a lawful manner by lawful means.
It must be noted that both the words accident and misfortune indicates
injury to another person. Accident pertains to injury to another person,
but misfortune pertains to as much injury to the first person as to the
other person who is not connected with the act.
For example, in State vs Rangaswamy (1952), A and B both went to
the jungle to shoot wild rats, and both took their positions. After
some time, some sound was heard, and A, believing it to be a wild rat,
fired in that direction. Unfortunately, the shot caused B’s death. It
was held that A was not liable for the death as the death resulted from
an accident. But where two persons driving a car collide with each
other. And, this resulted in injuries to drivers of both vehicles. It will
be a case of misfortune.
Essential elements or ingredients of section 80, IPC: The essential
elements of section 80 can be outlined as follows:
1. The act committed must be an accident or misfortune. (State vs
Rangaswamy (1952))
2. Such act must not be committed with criminal intention or
knowledge. (Tunda vs State (1950))
3. The accident must be the outcome of a lawful act done in a
lawful manner and by a lawful means. (Jageshwar vs Emperor
(1924), Shakhir Khan vs Crown (1931))
4. The act committed must have been done with proper care and
caution. (Shankar Bhadolkar vs State of Maharashtra (2004)).
Burden of Proof: The burden of proof under section 80 of the Indian
Penal Code lies upon the accused. It is on the accused to prove that
his case falls within the exception provided under this section.
Q. 10. Explain the principle of Necessity under IPC?
Ans. Necessity: The term “necessity” is defined in Black law’s dictionary
as a controlling force; irresistible compulsion; a power or impulse so
great that it admits no choice of conduct. Section 81 provides for the
defence of necessity, which means that if an act which is done might
be a crime if it was done only in order to avoid consequences which
could have inflicted more harm to the person or property.
Doctrine of Necessity: The doctrine of necessity can be explained as
the choice between two evils where the accused chose the lesser one.
This doctrine based on ‘Salus populi suprema lex esto’ which means
that welfare of people must be supreme and if a person is causing
harm to any person or property in order to prevent a greater harm,
then it is excusable.
Illustration: A person pulls down houses in order to prevent the
conflagration from spreading. He does this with good intention to
save human life and property. Here, since the harm was of imminent
danger, he is not guilty of the offence.
The doctrine of necessity emanates from Latin maxim “Quod necessitas
non hebet leegam” meaning necessity knows no law. However, if the
evidence does not show the nature of emergency, then the defence of
necessity cannot be taken.
Mens Rea: The element of mens rea must include the guilty mind to
commit the offence and inflict harm to other person or property.
However, if a person causes the harm without any criminal intention,
and merely with the knowledge, he/she will not be held responsible
for the result of his act, but the act should be done in good faith to
avoid or prevent other harm to person or property.
Preventing or Avoiding Other Harm: The doctrine of necessity can
be attracted only when the harm i.e., loss or detriment is caused in
order to prevent or avoid harm.
In a landmark case of R V. Dudley and Stephens 14 Q.B.D. 273 (1884),
a ship was cast away in a storm on the high seas and was compelled
to use a lifeboat. Consequently, there was a shortage of food and
acute hunger due to which two of the four men decided to kill the third
person and satisfy their hunger. The court held that one does not
justify murder by killing an innocent person to save one’s own life.
Q. 11. In what circumstances intoxication can be pleaded as defence under
IPC?
Ans. Intoxication: Intoxication is a state of mind in which the person is
incapable of knowing the nature of act or he was doing an act which
was either wrong or contrary to law. Section 85 and 86 provides
immunity to an intoxicated person only if the intoxicating thing was
given to him without his knowledge or against his will. Voluntary
drunkenness is no excuse for the commission of the crime. This was
held in the case of Chet Ram v. State 1971 CriLJ 1246.
Moreover, in the year 1956, the principle was laid for immuning from
criminal act due to drunkenness in the case of Basdev v. State of Pepsu
1956 AIR 488 as:
• If the intoxication is selfinduced then the accused shall be treated
as if he had been aware of the risk taken by doing a criminal act.
• Intoxication can be induced by drink or drugs.
• The recklessness of an act is an alternative to intent or
knowledge.
Involuntary Intoxication: Involuntary intoxication is a state when a
person is administered with intoxicating substances involuntarily
i.e. when he was unknown of the fact. Involuntary intoxication is
immuned under Section 85 if the accused is able to prove with the
satisfaction of the Court that the crime committed was not intended
by him and he had no knowledge of the cause of the inebriated state
of mind.
Incapable of Knowing the Nature of the Act: State of intoxication
determines whether the accused is capable or not of knowing the
nature of the act. There are varying degrees of intoxication like in a
case if the accused had made itself so inebriated that he is incapable
of knowing the nature of his act, then that person will be liable in the
same manner as the person who was not intoxicated. Whereas in
other cases where the accused is inebriated but not to that level where
he cannot know about the nature of his act, then he shall be liable in
the same manner as the normal person shall be punished.
It is also presumed that every man has the requisite intent to know the
results of his consequences but in cases where there was the obscure
mind of the accused person and he was not able to form the basic
intent to commit a crime, then he cannot be liable for his acts.
‘Without His Knowledge’ or ‘Against His Will: The expression
‘without his knowledge’ or ‘against his will’ means ignorance of the
act or thing being administered to him. The administration of the
intoxicating thing is done either by force, fraud or ignorance in case
of involuntary intoxication. In such cases, the criminal act will be
judged on the mental condition at the time of the commission of an
act.
Q. 12. Unsound mind or Insanity can be taken as defence under IPC Explain?
Ans. Section 84 of the IPC provides for a defence to a crime committed who
are insane or who cannot constitute required mens rea to commit an
offence. Every normal and sane human being is expected to possess
some degree of reason to be responsible for his/her conduct and acts
unless any contrary is proved. But a person of unsound mind or a
person suffering from a mental disorder cannot be said to possess
this basic norm of human behaviour.
Essential Ingredients of Section 84: The essential elements of Section
84 are as follows:
1. The accused must, at the time of commission of the act be of
unsound mind.
2. The nature of unsoundness must be of such nature of which he
is incapable of knowing the consequences or what is in violation
of law.
3. The nature of act must show that there is absence of motive in
commission of an act.
Unsoundness of Mind: ‘Unsoundness of mind’ means a 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 wrong or contrary to
law. The burden of proof is on the accused to show that he/she was
labouring under the defect of not able to frame reasons of his/her act,
a disease of the mind or unknown about the act legality or
consequences of his act.
The liability of a person will not be reduced because he/she did the
act under the influence of some delusion, or in order to avenge any
grievances. Mere subjection to insane impulses is not sufficient for a
person to acquit himself/herself under this Section.
An insane person committing crime in a lucid interval i.e., when he/
she is able to judge his acts normally is responsible for any act or
offence.
M’ Naghten Rule: In a landmark case of Re M’Naghten where
M’Naghten who was an Englishman apparently paranoid by
Schizophrenia shot and killed the Secretary of Prime Minister of Britain.
To the surprise, M’Naghten was acquitted from the offence because
it was proved that he was insane at the time of commission of this act.
Since this case was the first case where insanity as an exception was
observed by House of Lords.
It was held that every man is presumed to be sane until the contrary is
proved and in order to establish a defense on the ground of insanity,
one has to prove that the accused was laboring under the diseased
state of mind and he did not know about the nature and quality of the
act what he was doing.
The applicability of M’Naghten Rule is very apparent in India because
Section 84 clearly brings out the essential ingredients as laid down in
the judgment. Assam High Court in the case of State v. Kartik Chandra,
1949 held that M’Naghten Rule is the basis of Section 84 and is
embodied in it.
Q. 13. Explain Assault as an offence under IPC?
Ans. Assault is an act of one person causing another person to reasonably
apprehend the infliction of criminal force against him. In Criminal Law,
assault is considered as an offence and in Common Law, it is considered
as a tort. But, in both the cases assault is considered as an act of
threat by one person to cause harm to another person.
Illustrations:
1. Showing clenched fist against one person which makes him
reasonably apprehend a blow at him by another, the assault is
said to be committed.
2. A person is about to sit on the chair and the chair is pulled, the
assault is committed.
Section 351 of IPC defines assault as an offence and Section 352 of
IPC prescribes punishment for the offence of assault.
Section 351: 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 apprehend that 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 gestures 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, “I 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.
Section 351 specifies certain essential elements in order to constitute
an offence of assault:
1. Any gesture or any preparation
2. Such gesture or preparation is intending or knowing it to be
likely to cause any person to apprehend use of criminal force
against him.
Section 352 talks about the punishment of the Assault: 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
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.
Q. 14. Write a short note on Sexual Harassment?
Ans. Sexual Harassment: A man committing any of the following acts:
• Physical contact and advances involving unwelcome and
specific sexual overtures.
• A demand or request for sexual favours.
• Showing porno against the desire of a woman.
• Making sexually coloured remarks shall be guilty of the offence
of sexual harassment.
Any man that commits the offence laid out in clause (i) or clause (ii) or
clause (iii) of subsection (1) shall be penalised with rigorous
imprisonment for a term which can extend to 3 years, or with fine, or
with both of these.
Any man that commits the offence laid out in clause (iv) of sub
section (1) shall be penalised with imprisonment of either description
for a term which can be one year or with fine, or with both. This comes
under Section 354A of the Indian Penal code.
In 1997 in Vishaka Vs. State of Rajasthan and others ((1997) 6 SCC
241), for the first time sexual harassment had been explicitly legally
defined as an unwelcome sexual gesture or behaviour whether directly
or indirectly as:
1. Sexually coloured remarks
2. Physical contact and advances
3. Showing pornography
4. A demand or request for sexual favours
5. Any other unwelcome physical, verbal/nonverbal conduct
being sexual in nature.
It was in this landmark case that the sexual harassment was identified
as a separate illegal behaviour. The critical factor in sexual harassment
is the unwelcomeness of the behaviour. Thereby making the impact of
such actions on the recipient more relevant rather than intent of the
perpetrator which is to be considered.
Q. 15. Write a short note on Outraging Modesty of a Woman?
Ans. Outraging Modesty: Whoever assaults or uses criminal force to any
woman, intending to outrage or knowing it to be likely that he will
thereby outrage her modesty shall be guilty for the offence of
outraging the modesty of a woman.
Modesty means sexual dignity of a woman which is acquired by her
since the time of her birth. The concept of modesty is subjective to
every woman i.e. the sexual limits are personal to every woman; there
cannot be a set formula to judge the boundaries of the sexual honour
of a woman. It is a virtue attached to a woman owing to her sex. For
example, a simple touch on the shoulder might be unacceptable to a
woman who lives in a rural area but for a woman in an urban area it
could be a casual gesture to greet people. However, there are certain
acts which are bound to violate the modesty of every woman and
these are the concerns of law.
The word ‘outrage’ implies a physical act. Herein, the modesty of a
woman is violated by touching her without her consent at such parts
of her body which are unacceptable to her. It is necessary that the
accused should have used criminal force or made such gestures to
outrage the modesty or the knowledge that it would outrage her
modesty. The reaction of the woman is very relevant in judging as to
whether an assault to her amount to outraging her modesty as this
offence differs from woman to woman but there are certain acts which
are bound to be outrageous to the modesty of every woman such as
touching on her posterior sexual organs etc
Section 354 of the IPC, 1860 deals with an assault or criminal force to
woman with intent to outrage her modesty. “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 be likely that he will there by outrage her modesty, shall be punished
with imprisonment of either description for a term which shall not be
less than one year but which may extend to five years, and shall also
be liable to fine.”
The punishment for an offence under this section is imprisonment of
either description (simple or rigorous) for one to five years with a fine.
The offence is classified as cognizable, nonbailable and triable by
any magistrate.
Until 2007, there was a lot of ambiguity as to what constituted a
woman’s modesty and various speculations regarding the definition
of modesty of a woman were present. Several cases were decided
without a precise definition of a woman’s modesty.
However, the supreme court in in the case of Ramkripal v. State of
Madhya Pradesh, AIR 2004 SC 1677, defined modesty by laying
down that the ‘essence of a woman’s modesty is her sex’. Therefore,
any crime against women which falls short of penetration would
constitute an offence under section 354 of the IPC, expanding the
ambit of crimes falling under this section.
It was further held in the Judgement that the word ‘modesty’ is not to
be interpreted with reference to a particular victim of an act, but as an
attribute associated with female human being which reflects a particular
class. Therefore, modesty can be pertaining to a female human being
of any age with differing degrees of what would constitute modesty
at a given age of a female.
These group of words can often be substituted with molestation which
means to force physical and usually sexual contact on someone and
to make unwanted or improper sexual advances towards someone
and a female of any age can be molested.
Q. 16. Define Wrongful Confinement?
Ans. Definition: According to Section 340 of the Indian Penal Code;
“Whoever wrongfully restrains any person in such a manner as to
prevent that person from proceeding beyond certain circumscribing
limits is said to have committed the offence of wrongful confinement.”
Illustrations:
1. Radhika causes Anamika to go within a walled space and locks
Anamika in. Anamika is thus prevented from proceeding in any
direction beyond the circumscribing line of the walls and so
Radhika has wrongfully confined Anamika.
2. Gabbar places men with firearms at the outlets of a building and
tells Veeru that they will fire at him if he attempts to leave the
building. Here, Gabbar has wrongfully confined Veeru.
Ingredients: The essential ingredients of the offence of wrongful
confinement are:
1. The accused should have wrongfully restrained the complainant
(i.e. all ingredients of wrongful restraint must be present)
2. Such wrongful restraint was to prevent the complainant from
proceeding beyond certain circumscribing limits beyond which
he or she has the right to proceed.
Punishment: Section 342 of the Indian Penal Code states that 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 The
classification of this offence is that it is cognizable, Bailable and Triable
by any Magistrate. Further, it is Compoundable by the person confined
with the permission of the court.
In the case of State of Gujarat vs. Keshav Lai Maganbhai Gujoyan
(1993 CrLJ 248 Guj), it was discussed by the court that “For a
charge of wrongful confinement, proof of actual physical restriction
is not essential. It is sufficient if the evidence shows that such an
impression was produced in the mind of the victim, a reasonable
apprehension in his mind that he was not free to depart. If the
impression creates that the complainant would be forthwith seized
or restrained if he attempts to escape, a reasonable apprehension of
the use of the force rather than its actual use is sufficient and
important.”
State vs. Balakrishnan (1992 CrLJ 1872 Mad), the complainant was
detained in the police station when this was brought to court, the
accused claimed that complainant was at liberty to go away from the
police station at any time. The Court remarked that when a citizen
enters into a police station, the police officers’ authority prevails in
that jurisdiction and they entertain it with a ruddy manner. Court held
that the accused committed the offence of wrongful confinement.
Q. 17. Define Wrongful Restrainment?
Ans. Definition: According to Section 339 of the Indian Penal Code;
“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.”
Further, the section also lays down an exception, which is that if a
person in good faith believes himself to have a lawful right to obstruct
and so obstruct a private way over land or water, then it does not
amount to wrongful restraint.
Illustration- Chitra is walking on a public road on which she has a
right to pass. Rajesh obstructs this path despite knowing that he had
no right to stop the path. As Chitra was prevented from passing,
Rajesh can be said to have wrongfully restrained Chitra.
Ingredients: To establish the offence of wrongful restraint the
complainant must prove all the following essential:
1. That there was an obstruction;
2. That the obstruction prevented the complainant from proceeding
in any direction;
3. That the person/complainant so proceeding must have a right
to proceed in the direction concerned.
Punishment: Section 341 of the Indian Penal Code imposes
punishment against the wrongdoer under Section 339 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.
The classification of the offence under this section is that the offence
is Cognizable, Bailable and Triable by any Magistrate, it is also
compoundable by the person restrained or confined.
In the case of Madala Perayya vs. Varugunti Chendrayya (1954
CrLJ 283 Mad), the facts were that, the accused and the complainant
jointly owner a well and so both of them were entitled to use the water
for agricultural purposes. The accused stopped the complainant from
using the water and also stopped the bullocks of the complainant
from moving. The Court held that the accused had committed eh
offence of wrongful restraint under Section 339.
In the case of Shoba Rani vs. The King (1950-51 CrLJ 668 Cal.), the
landlord was accused of preventing his tenant who was the tenant
from using the bathroom. By stopping the tenant from using something
that he had the right to use, the landlord was had committed wrongful
restraint under Section 339.
Further, in the case of Souri Prasad Patniak vs. State of Orissa (1989
CrLJ 169 Ori), the accused was a veterinary surgeon who did not
receive payments for several months. When his superior officer visited
the office and started back to go, the accused stood in front of the
jeep and raised protest for nonpayment of his salary. However, after
his protest, he had given the way to jeep. The Orissa High Court held
that the accused was not guilty of the offence of wrongful restraint.
Q. 18. Distingush between Wrongful Confinement and Wrongful Restrain?
Ans. The difference between the Wrongful Restrain and Wrongful
Confinement are as follow:
No Basis Wrongful Restraint Wrongful Confinement
1 Meaning Wrongful restraint means obstructing In wrongful confinement, a person is
a man from moving from one place to wrongfully restrained from proceeding
another where he has the right to be beyond certain circumscribing limits.
and wants to go.
2 Definition Section 339 of the Indian Penal Section 340 of Indian Penal code defines
Code defines wrongful restraint as, Wrongful confinement as “Whoever
“Whoever voluntarily obstructs any wrongfully restrains any person in such a
person so as to prevent that person manner as to prevent that person from
from proceeding in any direction in proceeding beyond certain circumscribing
which that person has a right to limits, is said “wrongfully to confine” that
proceed, is said wrongfully to restrain person.”
that person.”
3 Illustrations A obstructs a path along which Z has a A causes Z to go within a walled space, and
right to pass. A not believing in good locks Z. Z is thus prevented from proceeding
faith that he has a right to stop the in any direction beyond the circumscribing
path. Z is thereby prevented from line of wall. A wrongfully confines Z. A
passing. A wrongfully restrains Z. places men with firearms at the outlets of a
building, and tells Z that they will fire at Z
if Z attempts leave the building.
A wrongfully confines Z.
4 Seriousness Wrongful restraint is not serious as Wrongful confinement is serious offence and
wrongful confinement and hence lesser hence more punishment provided by the
punishment is provided by the code code.
5 Punishment Whoever wrongfully restrains any Whoever wrongfully confines any person
person shall be punished with simple shall be punished with simple
imprisonment for a term which may imprisonment of either description for a term
extend to one month, or with fine which may extend to one year, or with fine
which may extend to five hundred which may extend to one thousand rupees,
rupees, or with both. or with both.
Q. 19 Write a short note on Stalking.

Ans. Stalking: Before the amendment in criminal laws there was no direct
inclusion of the term stalking in penal law of India. The stalking was
covered under category of just harassment such as voyeurism, sexual
harassment against women and it was covered under Section 354 and
Section 509 for using words or gestures to insult a woman’s modesty.
Due to the shortcomings in the essentials of section 354 and section
509 of IPC, in most of the cases the wrongdoer moves freely from the
court because it is hard to proof the certain essential conditions to
constitute a crime
1. The attack must be against a woman,
2. The offender must have used excessive force,
3. The modesty of women should be offended.
Therefore, it was need for emergence of the separate law for stalking
in India.
The act of stalking as of today after the criminal amendment act
2013, is a cognizable, bailable and non compoundable offence with
punishment
1. up to three years and fine for the first conviction
2. up to five years and fine for the repetition.
According to Section 354 D of Indian Penal Code, Stalking means
and includes-
1. Any man who —
a. follows a woman and contacts, or attempts to contact
such woman to foster personal interaction repeatedly
despite a clear indication of disinterest by such woman;
or
b. monitors the use by a woman of the internet, email or any
other form of electronic communication, commits the
offence of stalking:
Provided that such conduct shall not amount to stalking if the
man who pursued it proves that—
a. it was pursued for the purpose of preventing or detecting
crime and the man accused of stalking had been entrusted
with the responsibility of prevention and detection of
crime by the State; or
b. it was pursued under any law or to comply with any
condition or requirement imposed by any person under
any law; or
c. in the particular circumstances such conduct was
reasonable and justified.
2. Whoever commits the offence of stalking shall be punished on
first conviction with imprisonment of either description for a
term
a. which may extend to three years, and shall also be liable
to fine;
b. and be punished on a second or subsequent conviction,
with imprisonment of either description for a term which
may extend to five years, and shall also be liable to fine
Q. 20 Define Criminal Trespass?
Ans. Criminal Trespass : According to Section 441 of the Indian Penal
Code, criminal trespass is defined as, whoever enters into or upon
property in the possession of another person with the 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,
but unlawfully remains there with an intent thereby to intimidate, insult
or annoy any such person, or with an intent to commit an offence, is
said to commit “Criminal Trespass”.
In simpler words, when a person unlawfully enters into private property
of another person or unlawfully remains into such property with
criminal intentions, is said to commit “Criminal Trespass”.
Criminal trespass has two limbs, firstly, unlawfully entering into the
property of another person with criminal intentions and secondly,
entering lawfully into that property but remaining unlawfully there
with criminal intentions
Punishment: The punishment for the offence of criminal trespass has
been defined under Section 447 of Indian Penal Code as, whoever
commits the offence of criminal trespass shall be punished with the
imprisonment of either description for a term which may extend to
three months, with fine which may extend to five hundred rupees, or
with both.
In Dhannonjoy v Provat Chandra Biswas AIR 1934 Cal 480 the
accused drove away from the boat of the possessor after attacking
him. The court held that this would amount to criminal trespass even
though it was a movable property. But the term property does not
include incorporeal property or something which cannot be touched,
such as patent rights.
In Punjab National Bank Ltd v All India Punjab National Bank
Employees’ Federation 1953 AIR 296, the court held that as the
employees who were on strike entered the bank with the intention to
only put pressure on the management to concede their demands, and
there was no intent to insult, harm or annoy any of the superior officers,
their entrance into the bank cannot amount to criminal trespass.
However, if in the given circumstances, the strikers would have
stormed into the private cubicles or offices of the superior staff with
the aim of causing annoyance to such members, then it would amount
to criminal trespass.
Q. 21. What is Bigamy under IPC?
Ans. Section 494 of the Indian Penal Code, 1860 states- 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 description
for a term which may extend to seven years, and shall also be liable
to fine.
The above-mentioned Section also provides that the Section does not
apply where:
1. any person whose marriage with such husband or wife has been
declared void by a Court of competent jurisdiction
2. where the spouse has been continually absent for a period of 7
years and not heard to be alive within such period.
Thus, a combined reading of Sections 17 of Hindu Marriage Act and
Section 494 of the Indian Penal Code require that to make out a case
for bigamy the following essential ingredients must be established as
laid down in Nagalingam v. Sivagami (2001) 7 SCC 487:
1. The accused must have contracted the first marriage
2. Whilst the first marriage was subsisting, the accused must have
contacted a second marriage
3. Both the marriages must be valid.
Q. 22. What do you mean by Kidnapping for Ransom?
Ans. Kidnapping for Ransom: Section 364A of IPC provides for punishment
to the whoever threatens to hurt or cause death to that person who he
has kidnapped or abducted or detained after kidnapping or abducting
in order to compel either the government or some foreign state or any
other person to do or abstain from doing an act or pay a certain sum of
money. The punishment is death or imprisonment for life, and fine, as
mentioned in Section 364A IPC. The essentials of the offence under
Section 364A are:
In Netra Pal v. State (National Capital Territory of Delhi), 2001 the
court held that mere recovery of the letter assumed to have been
written by the appellant demanding Rs. 50000 for the safety and return
of the child is not enough to cover “ to pay the ransom” by itself.
Demand by a kidnapper is an essential ingredient of the offence
because, for the purpose of getting paid ransom, demand must be
communicated.
In Malleshi v. State of Karnataka (2004) the court held that
Vijaybhasker has been abducted through deceitful means. They further
referred to the case of Netra Pal v. State and said that the difference of
fact that the abducted person, in that case, was a child and in the
present case is an adult who can look after himself must be mentioned.
It was held that in this case, the demand for ransom had been conveyed
to the victim and the offence was completed. The court further said
that it cannot be a straight jacket rule that the demand for abduction
must always be made to the person who is required to ultimately pay
it.
In Vikram Singh v. Union of India, (2015) the court held that section
364A is very wide. There is nothing which suggests that this section
is limited to offences against a foreign state or international
governmental organisation, and covers all the “any other person” as
well.
Court also emphasised upon various Indian and foreign judgements
to highlight the importance of proportionality of punishment. It held
that the job of giving punishment is the job of the legislature, and the
court can only intervene when it feels that the punishment is
outrageously disproportionate. In section 364A however, when death
is concerned the courts do reserve the right to give death penalty or
if not required, a lesser punishment of life imprisonment. Hence, it is
not ultra vires with the constitution.
Q. 23. Difference between Kidnapping and Abduction.
Ans. Comparison between the Kidnapping and Abduction are as follow:
Basis of Difference Kidnapping Abduction
Provision under IPC The offence of kidnapping is defined u/s The offence of abduction is defined u/s
359361 of IPC 362 of IPC
Age It is committed only in respect of a minor It is committed in respect of any person
(Minor or Major) i.e. in case of boy 16 years and in case of a of any age. There is no bar to any
girl 18 years, or a person of unsound mind. specific age of person.
Guardianship The person kidnapped is removed from Guardianship is immaterial to determine
the lawful guardianship. A child without the offence of abduction. It has reference
a guardianship can’t be kidnapped. exclusively to the person abducted.
Means Used/ In kidnapping, the minor is simply taken The means employed in abduction are
Employed away. The means used to kidnap a child force, compulsion or deceitful methods.
may be innocent.
Consent Consent of the person enticed is Consent of the person matters i.e. if a
immaterial person is removed with free consent in
that case offence of abduction is said be
not committed.
Intention In Kidnapping the intent of a person is Intention is very important to
(Strict Liability) immaterial i.e. he would be liable in all determine the offence. Hence, a person
the circumstances irrespective of the would be liable only if there is ill
valid motive and good intention. intention behind the act.
Completion of It is not a continuing offence. The It is a continuing offence. The offence is
offence offence is completed as soon as the minor in continuation as the place of the
is removed from the custody of his or abducted person changes from one to
her/his guardian another.
Kind of offence Kidnapping from guardianship is a Abduction is an auxiliary act, not
substantive offence, punishable u/s 363, punishable by itself, unless
IPC. accompanied with some intent specified
u/s 364366. Hence, a particular
purpose is necessary to punish an
accused.
Q. 24. Define the Following terms:

a. Judge
b. Wrongful Gain and Wrongful Loss
c. Dishonestly
d. Fraudulently
e. Document
f. Good Faith
g. Valuable Security
h. Movable Property
a. Judge Section 19 of IPC: 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
by law to give such a judgment.
Wrongful Gain and Wrongful Loss section 23 of IPC: “Wrongful
gain” is gain by unlawful means of property to which the person
gaining is not legally entitled.
b. Wrongful loss is the loss by unlawful means of property to
which the person losing it is legally entitled. Gaining wrongfully,
losing wrongfully. A person is said to gain 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.
c. Dishonestly – Dishonesty is defined under Section 24 of IPC,
which states, “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”.
Commonly, ‘deceit’ means an intentional misrepresentation
or concealment, but in the IPC, the word “dishonestly” does
not carry this implication. In the code, it is defined in a
monetary circumstances, i.e. when a person acts with the
intention of causing “wrongful gain”, i.e., gain by unlawful
means, of property to which the person gaining is not
entitled, or when a person acts with the intention of causing
“wrongful loss”, i.e., loss by unlawful means, of property to
whi ch the person lo sing is le gally entitled, he acts
dishonestly.
Elements of Dishonesty: In order an act to be a dishonest act
following elements are necessary—
i. Some act has been done;
ii. ‘Deceit’ is not an essential element of dishonesty.
iii. The act must be done to cause monetary/pecuniary wrongful
gain or wrongful loss.
iv. In some instances, dishonesty may be done by innocence as an
exception.
d. Fraudulently-Fraudulently is defined under Section 25 of the
Indian Penal Code. It states, “A person is said to do a thing
fraudulently if he does that thing with intent to defraud but not
otherwise”.
The fraudulent act of a person can cause loss to another
person or gain to another person. The word ‘defraud’
contains two elements, namely, deceit and injury to the
p e rs o n d ec eive d . ‘Dec ei t’ me a ns an i nt ent i o nal
misrepresentation or concealment of the fact and as per IPC,
the injury should be illegally caused to any person in body,
mind, reputation or property. In Section 25 of the Code the
word ‘defraud’ has been applied to deprive someone with
the intention either by obtaining something by deception,
or by taking something wrongly without the knowledge or
consent of the owner.
Elements of Fraudulently: In order that an act to be a fraudulent
act following elements are necessary:
i. A person has done something, and
ii. The act must be done intending to defraud.
iii. intent and injury are essential
iv. ‘Deceit’ is a necessary ingredient of fraud
v. It is a noneconomic or nonpecuniary loss.
vi. By construction, ‘fraudulently’ excludes the elements of
monetary or economic gain or loss.
vii. Innocence cannot be in fraud in any circumstance
e. Document Section 9 of IPC: 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 1: 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
cheque upon a banker is a document. A powerofattorney 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 this 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
endorsement, 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 holder” or words to that effect had been written over the
signature.
f. Good faith under IPC: Section 52 of the Indian Penal Code defines
good faith. Without due care and attention, nothing is said to be
done or believed to be done in good faith.
The expression ‘with due care and attention’ is only used in this
Section and not defined anywhere else.
The Courts on the basis of their judgments and interpretation
have tried to explain it.
Based on the logic and reason, a good intention, with due care
and expertise is an important factor while determining an act
done in good faith.
The prevailing circumstances, capacity and intellect of a person
should be kept in mind to analyse the act done by him.
Essentials:
• Logic and a reason;
• A good intention with;
• Due or reasonable care; and
• With expertise or a skill.
g. Valuable Security section 30 of IPC: 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 where by
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 transfer the right to the bill
to any person who may become the lawful holder of it, the
endorsement is a “valuable security”.
h. Movable property Section 22 of IPC: 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.
Q. 25. Difference between Giving False Information and Giving False
Evidence?
Ans. The distinction between giving false evidence and fabricating false
evidence as dealt with under respective Section 191 and 192 of IPC are
as follows:
No Giving False Information Giving false Evidence
1 False information may be given to Giving false Evidence can only be made
anybody in (court of Law) a suit or proceeding,
judicial or non judicial. It is a part of suit
and proceedings.
2 False information may or may not False Evidence Must be given on oath
be given on oath. before a Court of Law
3 Giving False information, the In the case of giving false Evidence, the
person to whom the statement is person to whom the information is given
made need not be a public servant, is a public servant and such information
and the statement need not be made is given with intend to cause such public
with any particular intent. servant to use lawful power to the injury
of another person.
4 In the case of false giving In the case of false Evidence, the accused
information the accused is not is legally bound to state the truth.
legally bound to give the
information
Q. 26. Difference between Section 299 and Section 300 of IPC?
Ans. The difference between Sec 299 and Sec 300 are as follow:
Section 299 Section 300
A person commits culpable homicide, Subject to certain exceptions, culpable
if the act by which thedeath is caused homicide is murder, if the act by which the
is done: death is caused is done:
Intention:
a. With the intention of causing death; 1. With the intention of causing death;
b. With the intention of causing such 2. With the intention of causing such
bodily injury as is likely to cause bodily injury, as the offender knows to
death; 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;
Knowledge:
c. With the knowledge that the act is 4. With the knowledge that the act is so
likely to cause death imminently dangerous that it must in
all probability cause death, or such
bodily injury as is likely to cause death
and committed without any excuse for
incurring the risk or causing death or
such injury as aforesaid.
Q. 27. Difference between Criminal Breach of Trust and Criminal
Misappropriation?
Ans. The difference between the Criminal Misappropriation and Criminal
Breach of trust are as following:
Basis of Criminal Misappropriation Criminal Breach of Trust
Difference
Provision under Offence of criminal Offence of Criminal Breach of
IPC,1860 misappropriation is defined Trust is defined under section 405
under section 403 of Indian of Indian Penal Code,1860
Penal Code, 1860
Relationship In misappropriation, there is But in Criminal Breach of Trust,
no contractual relationship there is a contractual relationship
of the offender regarding the
property.
Possession In misappropriation, the In criminal breach of trust, the
property is obtained by property is obtained due to the
some casualty or otherwise. truest vested by the owner on the
offender.
Misappropriation The property is In criminal breach of trust, the
misappropriated by the property is misappropriated for
offender for his own use. his own personal use. A breach of
trust includes criminal
misappropriation, but the
converse is not always true.
Nature of In, Criminal misappropriation Whereas, in criminal breach of
Property the property is always trust, the nature of property can
movable in nature. either be movable or immovable
Punishment Offence of Criminal Offence of Criminal Breach of
Misappropriation is Trust is punishable with
punishable with imprisonment imprisonment of either
of either description for a description for a term which may
term which may extent to extent to 2 years or with fine, or
2 years or with fine, or with with both (Sec.406,IPC)
both (Sec.403,IPC)

Long Answers Questions

Q.1 Explain The Maxim Actus Non Facit Reum Nisi Mens Sit Rea As
A Principle Of Criminal Liabilty With Relevant Case Laws?
Or
“For An Act To Be Categorised As An Offence, Guilty Mind With
Comission Is Necessary”.Elucidate.
Or
Discuss The Essential Elements Of Crime Considering The Maxim
Actus Non Facit Reum Nisi Mens Sit Rea.
Ans. The maxim means, for an act to be considered as illegal in nature ,it
must be done with a guilty mind or intention. mere commission of the act
without the criminal intent to do so does not constitute an offence. Therefore,
if the illegal act is committed without any intention to do it, the wrongdoer
cannot be convicted. since there are different punishments for various crimes,
the maxim plays a major role in determining the quantum of punishment for
the offence.
Illustrations:
A, a patient of mental disorder committed a road accident which led to
the death of b, another person driving on the same road. A will not be said to
have committed an offence because he was a mental patient and hence, there
is absence of guilty mind.
If a hurts b with the intention to cause hurt, it is crime. On the other
hand if a attacks b as private defense, he will not be held to have committed an
offence. In the first case, there was presence of guilty mind/ intention but in
the latter one no guilty intent.
In legal parlance, it is usually used with reference to a criminal or a
criminal act. Basically, mens rea is the mental element of a crime. Therefore,
there lies a duty upon the prosecutor, to prove beyond a reasonable doubt,
the guilt of the accused in commission of a specific crime. The concept of
mens rea seems to have evolved with time but the essence of mens rea is
everlasting.
Actus reus refers to the act or omission that comprises of the physical
elements of a crime as required by law. In cases where the person had a duty
to take reasonable care to act and failed to do so, actus reus could be understood
to mean omissions as well. “an act” must be either barred or commanded by
law for it to constitute a crime. Actus reus is affiliated with the human conduct.
Mens Rea:
Mens rea is an essential part of deciding whether an act is culpable or
not. Mens rea displays specific intent by the accused for the commission of
the crime for which he is charged. The accused must be proven to have
knowingly committed the crime, and had full knowledge of their actions and
must have malafide intent towards the victim. Mens rea is also used in some
civil suits, requiring the defendant to have been aware of the repercussions of
their actions for a civil liability to arise, but usually, the Actus Reus takes
precedence in cases of civil liability.
Further, an Act may be voluntary or involuntary, and the guilt is
determined by the facts of the case. If a person drives while he’s drunk and
involuntarily causes harm to others, he is still guilty as it was a voluntary
choice on his part to consume alcohol before driving, even though the crime
itself was unintentional. However, if an otherwise healthy person suffers a
heart attack while driving and involuntarily causes harm to others, he are not
liable and is not guilty of the crime.
ACTUS REUS:
Actus Reus is the physical aspect of a crime. The accused needs to
have done something or omitted to do something, resulting in injury to the
plaintiff, or the victim in civil cases. Without a guilty act, there can be no crime
and no suit for damages can arise. An act alone does not make a crime, however,
and both the intention of the person and the act itself, if such act is prohibited,
combine to form the crime. In certain cases, circumstances of the case are also
taken into consideration, and are often used to either conclusively prove
guilt, or can be used to prove reasonable doubt of intention. (Example: –
carrying a knife into someone’s house with the express intention of committing
the act of murder, or driving a car on a foggy night and accidentally striking
someone attempting to unsafely cross the road.)
Actus Reus can also be the omission of an act, by omitting to do
something that the accused knows he is bound by duty or law to do (example:
– a mother intentionally omits to feed her female child, leading to the child’s
death.) The mother can legally be charged with causing death by negligence,
and may also be charged with murder, if her intentions of murdering her infant
can be proven in court.
CASE LAWS:
There Are Certain Cases That Highlighted The Need For Removing
The Prerequisite Of ‘Intention To Commit The Crime’.
1. Kartar Singh V. State Of Punjab {(1926) 32 AWR 16, [1962] 2SCR395}:
It was held That In A Criminal Action, The General Conditions Of Penal
Liabilities Are Reflected In The Maxim “Actus Non Facit Reum, Nisi
Mens Sit Rea”. The Court Further Focused On The Fact That There
Are Certain Exceptions To This Maxim. The Court Then Stated The
Reasons For This By Implicating That The Legislature, Under Some
Situations And Circumstances, May Deem It To Be Important So That
An Act Can Be Prevented From Being Committed And In Order To Do
So It Might Become Essential To Eliminate The Element Of Mens Rea
As A Part Of A Crime Or Of Adequate Proof Of Intention Or Actual
Knowledge. Nonetheless, Unless It Is Explicitly Or Implicitly Made
Clear By A Statute To Rule Out ‘Mens Rea’, It Is Necessary To Read
The Element Of ‘Mens Rea’ Along With The Provisions Of The Statute.
2. R.Balakrishna Pillai Vs State Of Kerala {1996 SCC (1) 478}: It Was
Observed That :”Criminal Guilt Would Attach To A Man For Violations
Of Criminal Law. However, The Rule Is Not Absolute And Is Subject To
Limitations Indicated In The Latin Maxim, Actus Non Facit Reum, Nisi
Mens Sit Rea. It Signifies That There Can Be No Crime Without A
Guilty Mind. To Make A Person Criminally Accountable, It Must Be
Proved That An Act, Which Is Forbidden By Law, Has Been Caused By
His Conduct, And That The Conduct Was Accompanied By A Legally
Blameworthy Attitude Of Mind. Thus, There Are Two Components Of
Every Crime, A Physical Element And A Mental Element, Usually
Called Actus Reus And Mens Rea Respectively
3. Capt. Abdul Sattar Ahmed Pagarkar Vs. R.H. Mendsonsa,
Commissioner Of Police: The Maxim Actus Non Facit Reum Nisi Mens
Sit Rea Was Explored. It Stated That The Intention Behind The Acts Is
To Be Understood. In The Present Case All The Offences Which Were
In Question Needed Existence Of An Intention To Commit An Offence
With Dishonesty. These Have To Be Dishonest Intention Of Causing
Wrongful Loss To The Person Aggrieved And Wrongful Gain To Person
Who Is To Be The Target Of The Investigation.
Q. 2. Discuss the offence of abetment with relevant provisions and
case laws?
Or
Define abetment of a thing and punishments and liabilities of abettor?
Ans. Abetment of a thing: Section 107 provides for abetment of a
thing and the ingredients required to constitute the abetment of such thing
by a person are: Instigation of another to commit such thing Engaging with
one or more persons to do that thing by conspiring Aiding by act or by illegal
omission with an intention to do that thing. An offence of abetment, therefore,
may constitute instigation, intentional aid or conspiracy. This section makes
the abetment of a ‘thing’ an offence and not necessarily an abetment of an
‘offence’. This means abettor can be made solely liable in some cases, although
the person who has been abetted may be completely innocent. It is important
to note that the offence of abetment can only be established if the existence of
mens rea is proved. The provisions related to the offence of abetment require
the presence of knowledge about the act and its effect thereof before a
conviction can be made. If a person lending his support, does not know or has
no reason to gauge that the act which he is assisting for is a criminal act, the
implications thereof cannot bind him and he cannot be called an
abettor. However, the presence of mens rea is not an absolute precondition
to establishing the offence of abetment as there could be instances where a
statute explicitly mentions regarding it.
For example, selling of obscene books under section 292, ipc or where
strict liability exists in social legislations or public welfare, mens rea is not
required.
1. Instigation: The meaning of ‘instigate’ is to incite, urge, provoke or
bring about by persuasion to do anything which the law prohibits. The
act of instigating a person could take any form. It may be by
conduct. There must be a proximate causal connection between
instigation and the act committed as a result. Also, a person may be
instigated by suggesting, stimulating, supporting, hinting or insinuating
the commission of the act.
The instigation must be related to the thing that was committed and
not with the thing that was likely to have been done by the person in
pursuance of instigation. The mere utterance of words, without the
necessary intent to incite a person, words said in the middle of a quarrel
or in a spur of the moment because of anger does not constitute
‘instigation.
Giving approval for an act could also amount to instigation. Although
passive and unresponsive approval may not necessarily amount to
instigation, there are specific instances wherein providing approval
has been considered as instigating the act. For example, committing
sati where the woman is applauded by the family members for entering
the funeral pyre of her husband as an act of encouraging the woman to
commit suicide.
Act of wilfully misrepresenting or concealing material facts which a
person is bound to disclose thereby causing or procuring a thing to be
done has been held to amount to instigation.
2. Conspiracy: Commission of abetment by engaging with one or more
persons in a conspiracy to commit an offence constitutes the offence
of abetment by conspiracy.
It is important to note that conspiracy and abetment by conspiracy are
distinct offences. Abetment by conspiracy requires that the act or illegal
omission abetted must take place as a result of such conspiracy and
thus mere agreement is not sufficient for conviction. However, in case
of criminal conspiracy, the very agreement or plot is the act to establish
the conviction of the participants of the conspiracy.
3. Intentional Aiding: A person who abets by intentionally aiding commits
certain acts enumerated hereunder.
• Doing an act directly assisting the commission of the crime
Illegally omitting to do a thing which one is bound to do.
• Doing an act which may facilitate the commission of a crime by
another
Mere presence of the abettor is not sufficient to constitute the offence
of abetment by intentional aid unless his presence is intended to have the
effect of aiding. Also, if the person does not know about the offence being
committed then his facilitation in doing the ‘thing’ does not amount to aiding.
Abettor: S.108
Section 108 specifically deals with abetment of an ‘offence’ unlike section
107 which dealt with abetment of a ‘thing’. The section lays down the definition
of an abettor as being a person who abets:
The commission of an offence: Commission of an act which if committed
by such a person would be an offence under the law.It is important to note
that this section will not find its application for cases where the thing abetted
is not an offence. Another important point with reference to section 108 is that
it does not contemplate that the person abetted shall be capable under the law
to commit an offence or that such person must possess the same guilty
intention as that of the abettor.
Punishment for Abetment: S. 110-114
Section 109 lays down the provision of such acts of abetments wherein
a person having being abetted has committed such offence pursuant to the
abetment and there is no specific provision related to the abetment of such an
offence in IPC. In such cases, the punishment will be equivalent to the
punishment as is provided for such offence which has been abetted.
The extent of liability of an abettor is dependent upon four factors:
• What act he had abetted
• With what intention
• Act which was committed
• With what intention it was committed
Section 110 comes into play when the act which has been committed
with an intention different from the intention of the abettor abetting the
commission of such act. However, when an entirely different act is committed
Section 111 is to be applied.
Section 113 will come into play when the effect produced by the
commission of the act which was abetted by the abettor is different from what
he had intended to produce. A charge under Section 114 will lie when abettor
is actually present during the commission of the offence which he has abetted
to take place.
It is worthwhile to note here the distinction among sections 34, 109 and
120B. In the case of Noor Mohammad Yusuf Momin v State of Maharashtra
{1971 SCR (1) 119}, the Apex court has elaborated the difference which has
been provided hereunder:
“So far as Section 34, Indian Penal Code, is concerned, it embodies the
principle of joint liability in the doing of a criminal act, the essence of that
liability being the existence of a common intention. Participation in the
commission of the offence in furtherance of the common intention invites its
application.
Section 109, on the other hand, may be attached even if the abettor is
not present when the offence abetted is committed, provided that he has
instigated the commission of the offence or engaged with one or more persons
in a conspiracy to commit an offence and pursuant to that conspiracy some
act or illegal omission takes place.
Quantum of Punishment when offence abetted is punishable with death
or imprisonment: S.115 -116: Abetment of offences which are punishable
with either death or life imprisonment are covered under the purview of Section
115 subject to such acts having abetted must not have taken place. As a
consequence of the instigation if no offence is committed, then the instigator
is convicted and charged with imprisonment for seven years, however, in case
hurt is caused as a result of the abetment then the abettor is punished with
fourteen years of imprisonment.
Section 116 covers such cases wherein the abetment of offence is with
respect to the offence which is punishable with imprisonment and the offence
is not committed. In such cases, the abettor is guilty of imprisonment for one
fourth of the maximum term of imprisonment provided for that offence or fine,
or both.
Q.3. Discuss the theories of punishments followed under different
legislations for a smoother administration of criminal justice?
Or
“Law without sanction is bad law”. Elucidate the statement considering
the several theories of punishment followed in India as well as in other
legislations?
Or
Enumerate the list of offences under Indian penal code punishable
with deterrent/capital punishment in conjunction with other kinds of
punishment as stated under IPC?
Ans. Punishments/Sanctions are imposed on the wrong doers with the
object to deter them to repeat the same wrong doing and reform them into law
abiding citizens. A Punishment is a consequence of an offense. Punishment
generally is provided in Criminal Law. It is a social control.
According to Salmond: Crime is an act deemed by law to be harmful for
the society as a whole though its immediate victim may be an individual.
Sutherland and Cressey have mentioned two essential ideas while
defining the concept of punishment:
a. It is inflicted by the group in its corporate capacity upon one who is
regarded as a member of the same group. War is not punishment for in
war the action is directed against foreigners.
b. It involves pain or suffering produced by design and justified by some
value that the suffering is assumed to have.
Types of Punishment
a. Deterrent Theory
b. Retributive Theory
c. Preventive Theory
d. Reformative Theory
e. Expiatory Theory
(A) Deterrent Theory: The term “Deter” means to abstain from doing an
act. The main objective of this theory is to deter (prevent) the criminals
from doing the crime or being a habituated offender. Under this theory,
severe punishments are inflicted upon the offender so that he does
abstains from committing any sort of crime in future and to set an
example for those offenders who aren’t ready to give up their criminal
intent and criminal nature. This theory has proved very much effective
since time immerorial, even though it has certain lacuna’s. The basic
idea of deterrence is to deter both offenders and others from committing
a similar offence.
Criticism: There is a lot of criticism of the deterrent theory of
punishment in modern times. It has been criticized on the grounds that
it has proved ineffective in checking crimes and also that excessive
harshness of punishment tends to defeat its own purpose by arousing
the sympathy of the public towards those who are given cruel and
inhuman punishment. Hardened criminals are not afraid of punishment.
Punishment losses its horror once the criminal is punished.
(B) Retributive Theory: This theory of punishment is based on the
principle “An eye for an eye, a tooth for a tooth”. Retribute means to
give in turn. The object of this theory is to make the criminal realize the
suffering of the pain by subjecting him to the same kind of pain as he
had inflicted on the victim. This theory aims at taking a revenge rather
than social welfare and transformation. This theory has not been
supported by the Criminologists, Penologists and Sociologists as they
feel that this theory is brutal and barbaric. “Kant argues that retribution
is not just a necessary condition for punishment but also a sufficient
one. Punishment is an end in itself. Retribution could also be said to be
the ‘natural’ justification”, According to Justice Holmes ‘It is commonly
known that the early forms of legal procedure were grounded in
vengeance.’ According to Salmond the retributive purpose of
punishment consist in avenging the wrong done by the criminal to
society.
Criticism: The main criticism of this theory is that punishment per se
is not a remedy for the mischief committed by the offender. It merely
aggravates the mischief. Punishment in itself evil and can be justified
only on the ground that it yields better result. Revenge is wild justice.
Retribution is only a subsidiary purpose served by punishment.
(C) Preventive Theory: – This theory too aims to prevent the crime rather
than avenging it. As per this theory, the idea is to keep the offender
away from the society. The criminal under this theory is punished with
death, life imprisonment etc. while sending the criminals to the prisons
the society is in turn trying to prevent the offender from doing any
other crime and thus protecting the society from any antisocial
elements.
Criticism- The main criticism of this theory is that Preventative
Punishment has the undesirable effect of hardening first offenders, or
juvenile offenders, when imprisonment is the punishment, by putting
them in the association of Harden Criminals.
(D) Reformative Theory: – This theory is the most humane of all the theories
which aims to reform the legal offenders by individual treatment. Gandhi
ji said that “Hate the sin not sinner “. The idea behind this theory is
that no one is a born Criminal and criminals are also humans. The main
purpose of this theory, to treated a criminal like a diseased person. it is
believed that if the criminals are trained and educated, they can be
transformed into law abiding citizens. This theory has been proved to
be successful and accepted by many jurists.
Criticism- This theory states that if Criminals are sent to prison to be
transformed into good citizens, a prison will no longer be a ‘prison’ but
a dwelling house. This theory has been proved to be successful in case
of young offenders.
(E) Expiatory Theory – Under this theory, it is believed that if the offender
expiates or repents and realizes his mistake, he must be forgiven. This
theory was prevalent in the ancient era in India. Manu smriti declared
that ‘when an offender is found guilty of a crime and is sentenced to
imprisonment by king, he becomes pure and goes to heaven like a good
virtuous man.’ It implies that his crime is expiated. This theory is no
longer prevalent in the modern era.
Kinds of Punishments Under IPC 1860:
The five different kinds of punishments awarded by the Indian Penal
Code, 1860 have been enumerated under Section 53, and those are:
1. Death.
2. Life imprisonment.
3. Simple or rigorous imprisonment.
4. Fine
5. Forfeiture of property
The aforementioned punishment can also be awarded in conjunction
in order to achieve the intended goal and deter the wrong committed. General
provisions related to punishment for different offences are enumerated in
Sections 53 to 75 of IPC. Section 63 to 70 incorporate the provisions related
to the imposition of fines and any alternative sentence, in case fines are not
paid.
Q. 4. What are the stages of crime?
Or
“Only preparation for certain crimes can make a person liable under
IPC”. Discuss and name the offences?
Or
Can unsuccessful attempts of offences make a person liable? Discuss
in the light of IPC 1860.
Ans. Fundamental Elements of Crime:
1. Person- The first element requires that the wrongful act must be
committed by a human being. Who must be under the legal obligation
to act in a particular manner and should be a fit subject for awarding
punishment.
Section 11 of the Indian Penal Code provides that word ‘person’ includes
a company or association or body of persons whether incorporated or
not. The word ‘person’ includes artificial or juridical persons.
2. Mens Rea- The second important essential element of a crime is mens
rea or evil intent or guilty mind. There can be no crime of any nature
without mens rea or an evil mind. Every crime requires a mental element
and that is considered as the fundamental principle of criminal liability.
The basic requirement of the principle mens rea is that the accused
must have been aware of those elements in his act which make the
crime with which he is charged.
There is a well known maxim in this regard, i.e. “actus non facit reum
nisi mens sit rea” which means that, the guilty intention and guilty act
together constitute a crime. It comes from the maxim that no person can
be punished in a proceeding of criminal nature unless it can be showed
that he had a guilty mind.
3. Actus Reus [Guilty Act or Omission] - The third essential element
of a crime is actus reus. In other words, some overt act or illegal
omission must take place in pursuance of the guilty intention. Actus
reus is the manifestation of mens rea in the external world. Prof.
Kenny was the first writer to use the term ‘actus reus’. He has
defined the term thus “such result of human conduct as the law
seeks to prevent”.
4. Inflicting of Injury during the same transaction: The another
requirement of a crime is injury to another person or to the society at
large. The injury should be illegally caused to any person in body,
mind, reputation or property as according to Section 44 of IPC, 1860 the
injury denotes any harm whatever illegally caused to any person in
body, mind, reputation or property.
5. Preparation: Preparation is the second stage in the commission of a
crime. It means to arrange the necessary measures for the commission
of the intended criminal act. Intention alone or the intention followed
by a preparation is not enough to constitute the crime. Preparation has
not been made punishable because in most of the cases the prosecution
has failed to prove that the preparations in the question were made for
the commission of the particular crime.
If A purchases a pistol and keeps the same in his pocket duly loaded in
order to kill his bitter enemy B, but does nothing more. A has not
committed any offence as still he is at the stage of preparation and it
will be impossible for the prosecution to prove that A was carrying the
loaded pistol only for the purpose of killing B.
Preparation When Punishable Generally, preparation to commit any
offence is not punishable but in some exceptional cases preparation is
punishable, following are some examples of such exceptional
circumstances
• Preparation to wage war against the Government Section 122,
IPC 1860
• Preparation to commit depredation on territories of a power at
peace with Government of India Section 126, IPC 1860;
• Preparation to commit dacoity Section 399, IPC 1860;
• Preparation for counterfeiting of coins or Government stamps
Sections 233235, S. 255 and S. 257;
• Possessing counterfeit coins, false weight or measurement and
forged documents. Mere possession of these is a crime and no
possessor can plead that he is still at the stage of preparation
Sections 242, 243, 259, 266 and 474.
6. Attempt- Attempt is the direct movement towards the commission of a
crime after the preparation is made. According to English law, a person
may be guilty of an attempt to commit an offence if he does an act
which is more than merely preparatory to the commission of the offence;
and a person will be guilty of attempting to commit an offence even
though the facts are such that the commission of the offence is
impossible. There are three essentials of an attempt:
• Guilty intention to commit an offence;
• Some act done towards the commission of the offence;
• The act must fall short of the completed offence.
• Attempt under the Indian Penal Code, 1860
The Indian Penal Code has dealt with attempt in the following four
different ways-
• Successful completion of offences and attempts have been dealt
with in the same section and same punishment is prescribed for
both. Such provisions are contained in Sections 121, 124, 124A,
125, 130, 131, 152, 153A, 161, 162, 163, 165, 196, 198, 200, 213,
240, 241, 251, 385, 387, 389, 391, 394, 395, 397, 459 and 460.
• Secondly, attempts to commit offences and commission of
specific offences have been dealt with separately and separate
punishments have been provided for attempt to commit such
offences from those of the offences committed.
Illustrations: Murder is punished under section 302 and attempt to
murder to murder under section 307; culpable homicide is punished
under section 304 and attempt to commit culpable homicide under
section 308; Robbery is punished under section 392 and attempt to
commit robbery under section 393.
• Thirdly, attempt to commit suicide is punishable under section
309;
• Fourthly, all other cases where no specific provisions regarding
attempt are made are covered under section 511 which provides
that the accused shall be punished with onehalf of the longest
term of imprisonment provided for the offence or with prescribed
fine or with both.
7. Accomplishment Or Completion- The last stage in the commission of
an offence is its accomplishment or completion. If the accused succeeds
in his attempt to commit the crime, he will be guilty of the complete
offence and if his attempt is unsuccessful he will be guilty of an attempt
only. For example, A fires at B with the intention to kill him, if B dies, A
will be guilty for committing the offence of murder and if B is only
injured, it will be a case of attempt to murder.
Q. 5. Explain the concept of common object and common intension under
IPC?
Or
Distinguish between the common object and common intension under
IPC?
Ans. Definition of Common Intention: Common Intention refers to the
predetermined plan and taking action in unison to proceed with the plan.
Common Intention springs before the crime is committed, but the time gap
between the two should not be long. It could take place suddenly.
When two or more than two persons give their consent to perform an
act, under common intention, the coaccuseds are entitled to equal criminal
liability, as mentioned in Section 34 of the Indian Penal Code. In such a case
each and every member is liable for that act, in a way that they had done the
act solely.
Section 34 of the IPC incorporates the principle of joint liability when a
criminal act is performed, and the crux of that liability is the presence of
common intention. Its applicability is due to the involvement in the offence. It
is among the provisions of the Indian Penal Code, which is exercised to extend
the liability of other people.
The essence of this section is that the accused must be physically
present at the actual commission of the crime.
The concept of common intention under Section 34 lays down the
principle of joint liability. Acts done by several persons in furtherance of a
common intention is considered as a substantive offence under Section 34.
The common intention as provided under Section 34 is defined as the pre-
oriented plan and acting in pursuance to the plan by the Apex Court in the
case of Shyamal Ghosh v. State of West Bengal AIR 2012 SC 3539.
Essentials: The offence under the said provision prescribes the
following as the essential ingredients
1. Common intention between the several persons committing the act.
Common intention means prior meeting of minds of the persons acting.
2. Persons should have participated in any act constituting an offence.
In the case of Jai Bhagwan v. State of Haryana AIR 1999 SC 1083
the Supreme Court observed that to apply Section 34, apart from the fact that
there should be two or more accused, two factors must be established:
1. Common intention, and
2. Participation of accused in the act which is an offence under IPC.
If common intention is proved but no overt act is attributed to the
individual accused, Section 34 will be attracted as it involves vicarious liability.
But if the participation of the accused in the crime is proved while there exists
no common intention, Section 34 cannot be invoked.
Further, in the case of Suresh Sankharam Nangare v. State of
Maharashtra 2012 (9) SCALE 245, the court reiterated that to attract Section
34, it requires a prearranged plan and presupposes prior consent, therefore
there must be a prior meeting of minds.
Burden of proof: The burden of proof shall lie on the prosecution to
prove the following
1. Actual participation of more than one person for commission of criminal
act
2. Such act was done in furtherance of common intention at a prior concert
(Mrinal Das v. State of Tripura, AIR 2011 SC 375)
Definition of Common Object: The term object refers to the purpose
and to make it common, it has to be mutual.
When five or more than five persons in continuation of a common
object, conduct an illegal act, then each and every person is equally liable, no
matter if there is a prior meeting of minds among the coaccused or not.
However, the consent of all is important as every member of the unlawful
assembly has given their consent to achieve the common object.
Further, when any one of the members of the unlawful assembly has
committed an offence to proceed with the common object of that assembly
then every member of that assembly is guilty of that offence.
As per Section 149 of IPC, the liability of other members for the crime
committed during the prosecution lies on the fact that if the other members
knew in advance that the offence actually committed was expected to be
committed in the continuance of the common object.
This can be identified by the nature of the assembly, arms of behaviour,
at or before the scene of action. Further, if it is found out that the other
members are not known about this fact, then their liability for the offence does
not arise.
Simply put, the object has to be common to the members, who constitute
the assembly, i.e. they are not just aware of the purpose, but they also have
concurrence in that regard.
According to section 141 of the Indian Penal Code, an assembly of five
or more than five persons is regarded as an unlawful assembly, if it is formed
with an unlawful object.
Specifically, while considering the concept of common object, section
149 of IPC which provides that if any incriminating act is done to accomplish
the common object of unlawful assembly, then it is punishable must be revered.
The reason for considering Section 149 is, this provision punishes the common
object if the offence has been committed in order to act in accordance with the
common object.
In the case of Roy Fernandes v. State of Goa AIR 2012 SC 1030 the
Supreme Court held that to determine the existence of common object, the
court is required to see both the circumstances in which the incident had
taken place and conduct of members of unlawful assembly which includes the
weapon of offence that the accused persons used to commit the offence.
Further, in the case of Ramachandran v. State of Kerala AIR 2011 SC
3581, the Apex Court clarified that common object may form on spur of the
moment and prior concert in the sense of meeting of unlawful assembly members
is no necessary.
Elements Of Section 149:- The essence of offence under Section 149
is assembly of several (five or more) persons having one or more of the
common objects mentioned in Section 141 and it could be gathered from the
nature of the assembly, arms used by them and the behaviour of the assembly
at or before scene of occurrence. Section 149 creates joint liability of all members
of an unlawful assembly for criminal act done by any member in prosecution
of the common object of the said assembly. So the essential ingredients of
Section 149 are:
1. There must be an unlawful assembly, as defined in Section 141;
2. Criminal act must be done by any member of such assembly;
3. Act done is for prosecution of the common object of the assembly or
such which was likely to be committed in prosecution of the common
object;
4. Members have voluntarily joined the unlawful assembly and knew the
common object of the assembly.
5. Mere presence and sharing of common object of the assembly makes a
person liable for the offence committed even if he had no intention to
commit that offence.
Applicability of Section 149:
1. In the case of Waman v. State of Maharashtra AIR 2011 SC 3327, the
Supreme Court held that section 149 of IPC is attracted where a member
of an unlawful assembly has committed an act in prosecution of the
common object. It must be within the knowledge of the other members
of the assembly. If the members of the assembly knew or were aware of
the likelihood of a particular offence being committed in prosecution of
a common object, they would be liable for the same under section 149.
2. In the case of Yunis alias Kariya v. State of Madhya Pradesh AIR
2003 SC 539, the Apex Court affirmed that when the charge is under
section 149, the presence of the accused as a part of unlawful assembly
is sufficient for conviction and imputation of the overt act on him is not
essential to be proved.
3. Joint and vicarious liability under section 149: Section 149 specifies
that it holds every member of the unlawful assembly liable for the
offence committed in consonance with the common object of the
unlawful assembly. Therefore, it establishes a joint liability. In the case
of State of Maharashtra v. Joseph MingelKoli (1997) 2 Crimes 228
(Bom) the High Court held that it is well settled that once a membership
of an unlawful assembly is established, the prosecution need not prove
that the accused has been assigned with any overt act to be committed
by him in order to accomplish the common object. Mere membership of
the unlawful assembly is enough to be held liable for the offence
committed in prosecution of the common object.
4. Further, in the case of Amerika Rai v. State of Bihar AIR 2011 SC
1379 the Supreme Court clarified that even the presence in the unlawful
assembly, but with an active mind, to achieve the common object makes
such a person vicariously liable for the acts committed by the unlawful
assembly.
Therefore, the concept of common intention as provided under IPC
differs from that of common object on the ground that common intention
requires preoriented minds and concerted plans whereas, common object
has no such requirement of meeting of minds of the members of unlawful
assembly before commission of offence.
Difference between the Common Intention and Common Object:
Basis for Comparison Common Intention Common Object
Meaning Common Intention implies Common Object refers to a
a meeting of mind of the purpose which is shared by all
persons charged of the the members of an unlawful
crime, requiring a assembly.
preliminary unity.
Prior agreement and Required before the crime Not required before the crime
consensus takes place. takes place.
Prearranged plan The criminal act is the The criminal act is not the
result of a prearranged result of a prearranged plan.
plan.
Number of persons Two or more Five or more
Substantive offence It sets out the principles It creates a specific substantive
of constructive liability offence.
without the creation of
any substantive offence.
Liability All the persons involved All the persons involved in
in committing the crime committing the crime may or
are equally liable. may not be equally liable.
The difference between common intention and common object can be
drawn clearly on the following grounds:
1. Common intention is when two or more than two persons intentionally
commit an offence jointly, it is same as if each of them had done it
solely. On the contrary, each and every member of the unlawful assembly
is guilty of the crime taken place in the continuance of the common
object, i.e. an object which is shared by all.
2. For common intention, it is very important that there is a prior concert
between the members. On the other hand, for the common object it is
not essential that there is a preliminary concert between the members,
i.e. on the meeting of the members of the unlawful assembly the common
object may develop at the spot, and it is sufficient that it is adopted and
shared by all.
3. The common intention must have a prearranged plan and premeditated
concert, no matter if the plan is hastily made and comes up with cruelty.
Conversely, for a common object prearranged plan is not required
before the commission of the crime.
4. Two or more persons have to be involved in invoking common intention.
As against, there have to be five or more persons for imposing common
intention.
5. Common intention sets out the principles of constructive liability
without the creation of any substantive offence.
On the contrary, the common object creates a specific substantive
offence.
6. If there is a common intention, all the persons accused of the commission
of the crime are equally liable. In contrast, if there is common object, all
the persons accused of the commission of the offence may or may not
be equally liable.
Q. 6. “Mistake of Fact is a defence but Mistake of Law is not a defence”
Explain?
Ans. Mistake: There are two types of mistake which a normal person
can do according to tort:
1. Mistake of Law
2. Mistake of Facts
In general, the mistake of law is no defence to the violation of the law.
It is presumed that all people know and understand the law of the land, except
minors, lunatics or insane. There are few other rare exceptions to this rule.
A mistake of fact can be an exception in reducing or eliminating the
liability of the person. A person cannot escape his liability for intentional
mistakes. A criminal defendant can argue that he/she never intended to commit
the crime. The criminal act that occurred as a result of the mistake of fact as per
the situation demands or misunderstanding. Such exception is only allowed
when there’s a mistake of fact, but the mistake of law is not considered as a
defence.
Meaning of Mistake of Facts: A mistake of fact arises when a person
does any act but misunderstood some fact that negates an element of the
crime.
A mistake of fact as a defence applies to various crimes. If the criminal
defendant can prove that he does the act due to a mistake of fact or
misunderstood some fact that negates an element of the crime.
Illustration 1:
A takes his Labrador to the park every day so that he can play off leash
with other dogs. One day, A lost sight of his dog for a few minutes. Well, he
relocated the dog and walked towards the home. At home, he noticed a mark
on the dog and came to the conclusion that it is not his dog, he mistakenly
took another person’s dog with him. Here, A will not be liable because he gets
the defence of mistake of facts.
In general, Mistake, whether of fact or of law, is no defence to the
action of tort. When any person wilfully interferes with the rights of others, he
has no defence that he believed that his actions were justified. Likewise, no
one under a mistake of fact defames someone or enters anyone’s property.
If it is repeatedly told to an individual that it is not his property, he
could not take it. It would no longer be a reasonable defence for him.
Illustration 2:
A and B are playing games on a laptop in B’s house. At the time A
leaves, he took the laptop from the table, believing that it was his laptop. B
repeatedly told A that it was not his property and belonged to him. If then also
A leaves with B’s laptop, in that situation A cannot take the defence of mistake
of fact.
The mistake of fact can be used as a defence due to mensrea as one of
the important essentials. The mistake of fact must be honest and reasonable
i.e., bona fide in nature. A defendant cannot claim later that he or she was
under the mistake of fact when she/he actually knew about the situation.
Illustration 3:
A, jokingly, hit normally on B’s head from behind assuming him as C,
his friend. Here A can take the defence of mistake of fact, as his act can be
taken as a reasonable act because he was standing behind B and honestly
assumed B as C.
The State of Maharashtra v. Mayer Hans George 1965 AIR 722: In
this case, A is an officer of the court. Court ordered him to arrest Y. A arrest Z,
as he believes Z to be Y. Here, A can take the ground of good faith or a bona
fide intention as a defence in the mistake of fact.
There are some exceptions when the defendant may be able to avoid
his liability.
A Mistake of Fact and not A Mistake of Law: This phrase means a
defence of mistake of fact can be excusable but the defence of mistake of law
is not excusable. It is assumed that every person knows the law of the country
he resides in. if a person says, I do not know the law and does the act, it is not
excusable.
However, if a person did a wrongful act by mistake of fact with a good
intention and honest belief that he was bound to do, he may be excused.
Illustration:
Situation 1: A is 17 years old went to buy wine from the wine shop. B,
the owner of the shop honestly believed that A was above 18 years of age and
as per law 18+ person can legally have wine. C, a policeman caught B for
illegally selling wine to a child. Here B can take advantage of the mistake of
fact because he honestly believes A to be 18+.
Situation 2: A has possession of a rifle without a licence. B, a policeman
caught him. He asked for the defence of mistake of law i.e. he was unaware of
the law. Here, A does not get any defence because it is assumed that every
person knows the law of the land he resides in.
Good Intention or Good Faith: The word good faith here means the act
is done with due care and proper attention. It also includes the genuine beliefs
of a person. The burden of proof lies upon the accused, who wants to take the
shelter of good faith.
One of the essential ingredients that an offender requires to get SS 76
and 79 defense is that his conduct must be taken in ‘good faith’. The term
‘good faith’ has been defined in section 52 IPC as “Nothing is said to be done
or believed in ‘good faith’ which is done or believed without due care and
attention”.
Section 3 (22) of the General Clauses Act 1897 defines the term ‘good
faith’ as “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”.
In Harbhajan Singh v State of Punjab AIR 1966 SC 97 it was held
that “The element of honesty which is prescribed in the General Clauses Act
1897 is not incorporated in section 52 of the IPC. Under the General Clauses
Act, the stress is on the moral element of honesty and right motive. If the
intention is honest, then even if the act was negligent, it is deemed to be done
in good faith” .
As articulated by the Madras HC in Re Ganpathia Pillai AIR 1953
Mad 936 “under the IPC, the emphasis is on whether the person has done an
act with due care and attention. So, if a person, howsoever honest in his
intention, blunders, he cannot get the protection under the IPC because apart
from an honest intention, he is also expected to act with due care and caution.”
Illustration:
A enters on one way from the wrong side. A police officer caught him.
He pleaded the mistake of fact because he was unaware that it was a one way.
Here A does not get the defence because he should take proper care and
attention, as there was a signboard present on the road which a reasonable
man can easily see.
In good faith and believed to be justified by the law
A person can take the defence only when he acts in good faith and with
good intention and believes that his act is justified by law.
In Keso Sahu v. Saligram Shah (1977) Cri LJ 1725) case, the court
held that the accused showed that he in good faith and believing that the
offence of smuggling rice was going on in the plaintiff’s house and thus he
brings the cart and Cartman to the police station. The said suspicion was
proved to be wrong. The accused can take the defence of mistake of fact as he
is doing the act in good faith and believing it to be justified by law.
The word justified, according to Black’s law dictionary means the act
“Done on adequate reason sufficiently supported by credible evidence, when
weighed by the unprejudiced mind, guided by common sense and by correct
rule of law”.
In Dhaki Singh v. State AIR 1955 All 379 case the accused shot an
innocent person mistaking him to be a thief, although he believes that he is
bound to nab the thief. According to the officer’s finding, he was not in the
position to apprehend him, fired at him. Here, he cannot take the defence of
mistake of fact as the act done by him was not justified.
Mistake of Law: When a person commits any tort and asks for the
defence that he does not know the law, that does is considered as a defence.
Court thinks that every person knows the law of the country that’s why the
mistake of law is not considered as a defence in IPC as well as in tort. The
mistake of law is not considered as a defence.
Illustration :
A murdered B, in this case, A cannot apply for the defence of mistake of
law i.e. he was not aware of crime/law related to the murder.
A Mistake of Fact and Mistake of Law in I.P.C:
Mistake of Fact: Under section 76 of Indian Penal Code, the maxim
‘ignorantia facti doth excusat ignorantia juris non-excusat’ it means, a
person has done an act which by law is an offence, under a misconception of
facts, leading him to believe in good faith that he was commanded by the law.
Illustration:
A, a police officer gets information that G is a gangster and running
business of drugs. A went to arrest G but arrests B believing that he is G. Here
A is acting under the command of the law and can take the defence of mistake
of fact.
Section 79 Indian Penal Code, deals with the act of the person, by
mistake of fact believing himself justified by law. If the criminal defendant can
prove that he does the act due to a mistake of fact or misunderstood some fact
that will negate an element of the crime.
In Chirangi v. the State of M.P (1952)53 CrLJ 1212 (M.P.) case, a
widower holding axe accompanied by his son, went to woods to gather ‘siadi’
leaves. After some time, his nephew discovered that the accused was sleeping
under the tree and the child was missing. Later the child was found dead. It
was transpired in evidence that the accused at the time being was seized of
the state of mind in which he visualized that a tiger was going to attack him as
by mistake he killed his son considering his son as the tiger. The court stated
that it was a mistake of fact that immunized him from liability. He had no
intention to kill his son.
In State of Orrisa v. Khora Ghasi 1978 CriLJ 1305 case the accused
while guarding his field shot an arrow on the moving object in a good faith
that it was a bear, but the shot results in the death of a person. Here, he gets
the immunity under the mistake of fact.
Mistake of Law: The mistake of law is not considered as a defence.
When a person commits any tort and asks for the defence that he does not
know the law, the court does not considers it as a defence.
The sections defence extends only to factual error and not to law error.
This is evidently based on the excuse of the English common law maxim –
ignorantia facti doth excusat, ignorantia juris non excusat, which means
ignorance of fact can be excused but not the ignorance of law. However, the
logical distinction between a factual error and a legal error is not easy to draw.
In Mohammad Ali v. Sri Ram Swarup & ors AIR 1965 All 161 and in
Narantakath v. Parakkal Mammu AIR 1923 Mad 171 it was held that
“mistake of law, even in good faith, is not a defence”.
“Mistake of law, nevertheless, may operate as a mitigating factor.” This
was held in the case of State of Maharashtra v MH George AIR 1965 SC
722.
In Emperor v. Nanak Chand AIR 1943 Lah 208 it was held that “If a
statute provides that certain knowledgeinvolving elements of law on the part
of the accused is an essential ingredient of the offence, mistake of law, in good
faith, may be a good defence to a charge of a criminal offence”.
In Grant v. Borg (1982) 1 WLR 638 HL case, the person was charged
under the Immigration Act 1971, for staying beyond the time limit by the leave.
Here, he cannot apply for the defence i.e. mistake of law
Q. 7. Write a short note on Right to Private Defence to person under
I.P.C?
Or
Discuss the right of private defence of a person. When does it extend
to the causing of death? When does it cease to exist?
Ans. In India, Section 96 to 106 of Indian Penal Code, 1860 provides for
provisions relating to the right of Private Defence of person and property.
This right can only be exercised when recourse to public authorities is not
available to a person. One of the main principles on which the right of private
defense is based is the ‘reasonableness’ of the defense used. The extent to
exercise the right of private defense depends on the reasonableness of the
apprehension of the danger and not on the extent of actual danger.
Statutory Provision for Private Defence in India:
 Section 96 of Indian Penal Code: This section talks about the things
done in private defense and explains that nothing is an offense which
is done in the exercise of the right of private defense.
Right of private defense is not an offense, and in fact, it is an act done
in defense. The right of selfdefense under Section 96 is not absolute
but is clearly qualified by Section 99 which says that the right in no
case extends to the inflicting of more harm than it is necessary for the
purpose of defense. The burden of proof is upon the person who
pleads for the right of private defense.
Consequently, this right cannot be allowed to be used as a shield to
justify an act. A very careful weighing of the facts and circumstances
of each case is required to decide as to whether the accused had, in
fact, acted under this right. There is no place for assumptions on the
part of the accused while exercising this right. There must be a
reasonable apprehension about the possibility of an attack to exercise
the right of private defense.
 Section 97 of Indian Penal Code: Section 97 talks about the Right of
private defense of the body and of Property. Each individual has a right
to defend himself, i.e., his body or the body of any other person.
Similarly, he has the right to protect his property or else’s property,
whether movable or immovable against an act which amounts to an
offense of theft, robbery, mischief, or criminal trespass.
There must be an offense committed or attempted to be committed
against a person who wants to invoke the plea of right of private
defense. An injury caused to a man in question is not considered
necessary for deciding the question of the accrual of the right of the
private defense. Reasonable apprehension of causing grievous injury
is absolutely enough to exercise the right of private defense.
 Section 98 of Indian Penal Code: This section talks about the Right of
private defense against the act of a person of unsound mind, etc. The
right of private defense also exists in cases that would not result in an
offense due to 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 behalf of the person. Every person has the same
right to private defense against the act which he would have if the act
was an offense.
 Section 99 of Indian Penal Code: Section 99 limits the exercise of the
right of private defense. It lays down the various conditions under
which the right of private defense has to be exercised or invoked.
The first three clauses of section 99 provide that this right cannot be
invoked when:
a. A public servant acting in good faith exercises his legal duty not
giving rise to a reasonable apprehension of death or grievous
hurt,
b. Any person acting the direction of a public servant in good faith
exercises his legal duty not giving rise to a reasonable
apprehension of death or grievous hurt,
c. Reasonable time exists to resort help of public authorities.
d. There must be reasonable grounds to b believe that the act done
was done by a person under public authority.
 Section 100 of Indian Penal Code: Sec 100 specifies seven situations
in the exercise of the right to private defense of the body extend to
causing death. The right of private defense of the body extends to the
voluntary causing of death or of any other harm to the assailant if the
offense is of nature herein described:
• Such an assault may reasonably cause the apprehension of death
• Such an assault may reasonably cause the apprehension of
grievous hurt
• An assault with the intention of committing rape
• An assault with the intention of gratifying unnatural lust
• Assault having the intention of abducting or kidnapping
• An assault with the intention of wrongfully confining a person
which may reasonably cause him to apprehend that he will not
be able to take protection from public authorities for his release.
• An act or attempt to throw acid\
Navia Bai V/S States Of M.P. AIR 1992 S.C: The accused was a lady.
The deceased assaulted her with a knife; the lady also attacked the
accused with a knife which resulted in death. Decided lady is protected
under section 100.
Smt. Vidyasarm Sharma V/S Sudarshan Lal 1993 CR. L.J – Accused
and deceased were in the club. The deceased was intoxication and had
beaten the accused as well which resulted in the hurt of the accused.
The accused in selfdefence attacked on the neck of the deceased
which caused the death of the deceased.
But here it is pertinent to mention that under the right one can be
caused death only if:-
1. The attacker is not accused.
2. The apprehension of death or grievous hurt:
• Such apprehension is immediate and reasonable.
• The accused has no recourse of another defence.
It is further to mention that the accused will not have the right of
private defence whose death of deceased has been caused at his
business piece. In this context, the following case is decided
Devi Lal V/S State of Rajasthan 2002 S.C. – The accused on the basis
of normal hurt cannot take the plea of private defence.
Rape and Unnatural Lust 100 (3) & (4) – If any woman is attacked for
the purpose of rape or with the intention of unnatural lust by a person,
such lay or man can cause the death of the attacker. State of Orissa v/
s. Nirupama Pandey 1989 – A lady was attacked with the intention of
rape. In defence, she commits murder with a knife. Decided she is
protected under section 100(3).
But, if the death is caused after realizing such apprehension the section
will not protect.
Guria Buchha V/S State of Gujarat AIR 1962: The attacker assaulted
the accused of unnatural lust. The accused in defence started hurting
the attacker. The attacker falls down, but accused continued beating
till the death of the attacker. The decided victim is not benefitted by
100(4) as apprehension of unnatural lust came to an end at the moment
the attacker fell down.
Kidnapping And Abduction: Section 100(5) – with the intention of
kidnapping or abduction if the assault is done, the victim can cause the
death of the attacker.
Public Prosecutor H.C V/S Bal Krishna 1978 Cr. L.J. Ap: The accused
taken the meal in a hotel and went away without making payment of the
bill. Hotel servants followed him and seized to recover the hotel servant
and taken the plea of section 100(5).
Wrongful Confinement: Section 100(6) – When the assault is done
intentionally of wrongful confinement, the victim can the death of the
attacker.
1. A person is assaulted
2. Done intending to wrongful confinement.
3. Wrongful confinement is of such nature that the accused has no
time to take help of authorities.
4. Such apprehension is immediate and reasonable; the death can
be caused by the victim.
Abdul Habib V/S State 1974 CR. L.J: ‘A’ arrested ‘B’ and was
carrying him to the police station, he was neither having any arm
nor intend to cause hurt to ‘B’ held accused has no excuse of private
defence as if assistance of authorities can be taken, section 100(6)
will not apply.
 Section 101 of Indian Penal Code: This section prescribes for when
the right of selfdefense extends to causing any harm other than death.
If the offense is not of the nature mentioned in the above section, the
right of private defense of the body does not extend to the voluntary
causing of death to the assailant but does extend, to the voluntary
causing to the assailant of any harm other than death.
 Section 102 of Indian Penal Code: Section 102 deals with
Commencement and continuance of the right of private defense of
the body. As soon as a reasonable apprehension of danger arises to
the body from an attempt or threat to commit the offense even though
the offense may not have been committed, the right of private defense
commences. And it continues as long as the apprehension of danger
to the body continues. This apprehension should be real and
reasonable.
In Kala Singh case, the deceased was a strong man of a dangerous
character. Previously in a fight with the accused, he threw the accused
on the ground, pressed him hard and bit him. The accused took up a
light hatchet and gave three blows of the same on the brute’s head.
The deceased died after three days of this fight. It was held that the
circumstances raised a strong apprehension of danger in the mind of
the accused that he would be killed otherwise. This apprehension was
real and reasonable and not timid and fancy, and so his exercise of the
right of private defense is justified.
 Section 103 of Indian Penal Code: This section provides for when the
right of private defense of property extends to causing death. Whereas
sec 100 provides for the exercise of the right of private defense of the
body extends to causing death. The right of private defence of the
property also extends to death when voluntarily caused or if any harm
is caused in the form of an offense. Provided such an offense is in the
form of the following descriptions, namely:
• Robbery
• Housebreaking by night
• 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
• Theft, mischief, or housetrespass
 Section 104 of Indian Penal Code: It says that if the committing or
attempting to commit any offense leads to the exercise of the right of
selfdefense, then such a right does not extend to the voluntary causing
of death but extends to the voluntary causing to the wrongdoer of any
harm other than death. Provided that the offense is not of any other
nature as described in the previous section.
 Section 105 of Indian Penal Code: Section 105 prescribes the
commencement and continuance of the right of private defense of
property. The commencement of the right of private defense of property
takes place when a reasonable apprehension of danger to the property
takes place. Continuation of this right against theft takes place until
the offender affects his retreat with the property or the property has
been recovered. Continuation of the right of private defense against
robbery continues as long as the offender causes or attempts to cause
to any person death or hurt.
 Section 106 of Indian Penal Code: This section mentions that private
defense against deadly assault when there is a risk of harm to an innocent
person. If in the exercise of the right of private defense by a person
against an assault causes reasonable apprehension of death, the
defender so situated, cannot effectually exercise the right of private
defense without risk of harm to an innocent person his right or private
defense extends to the running of that risk.
The obstacle is the doubt which exists in the mind of the defender if he
is entitled to exercise his right even when there is a possibility of some
innocent persons being harmed by his actions. According to this
Section, in case of an assault which causes a reasonable apprehension
of death, if the defender is facing a situation where there exists a risk of
harm to an innocent person, there is no restriction on him to exercise
his right of defense, and thus he is entitled to run that risk.
Ingredient – thus, a person in exercising the right to privacy can cause
the death of an innocent if
• Against an assault
• Which reasonably causes the apprehension of death?
• The danger is immediate and reasonable
• The defender is in the situation that he cannot defend himself
without risk of harm to an innocent person.
Illustration – A is attacked by a mob who attempts 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.
In Yogendra Mararji V/S Gujarat State- AIR 1980 S.C.-The principle
laid down in the case are
1. The right can be used in the situation when there is actual and
immediate danger of body.
2. The right can be used under the restrictions given in section 99.
Meaning thereby that there no right of private defence in cases
in which there is time to have recourse to the protection of the
public authorities.
3. This is a right of defence, not the right to take revenge.
4. In using right, causing death can be justified if happened under
section 100 &103.
5. The right can be used against the offence described in IPC.
An assaulter cannot claim for the right: The person who himself
attacks someone cannot take the plea of right of private defence.
Held by the court- accused has not rightly exercised the right as it
could be available only when accused may prove that he in defence of
himself or father’s caused the death of the deceased.
Akonti Bora V/S StatE 1980 CR. L.J. GOHATI H.C. Has made clear
that while using the right of private defence against offence against
property one has right to evict the trespasser and to throw all that
things which had been used by the trespasser while trespassing
Q. 8. Write a short note right of private defence to a property?
Or
The right of private Discuss defence of a property. When does it extend
to the causing of death? When does it cease to exist?
Ans. Section 97(2): this section provides the right of private defence
against the crime of theft, robbery, and mischief or criminal trespasses for self
as well as for another person.
Thus, in following offences or attempt to commit the right of private
defence is available:
1. Theft
2. Robbery
3. Mischief
4. Criminal trespasses
Thus, if the possession of the land of any person is being taken by
someone he has the right to private defence. The right of private defence of
property can only exist in favour of the person who possesses a clear title to
that property.
Shivlal 1933 ALL – In this case, Wallis went to attach the property of
accused after the expiry of warrant. The accused opposed and caused hurt to
the wall. Court did not accept the peal of private defence.
Section 103: When the right of private defence of property extends to
causing death – The right of private defence of property extends, under the
restriction mentioned in section 99, to the voluntary causing of death or of
any other harm to the wrongdoer, 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 descriptions hereinafter, namely
 Firstly, Robbery
 Secondly, Housebreaking 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 housetrespass, under such
circumstances as may reasonably cause apprehension that death or
grievous hurt will be the consequence of such right of private defence
is not exercised. Meaning thereby that the section consists of following
ingredients which in right to private defence of property, death can be
caused:
1. Loot, Robbery
2. Housebreaking by night
3. Mischief by fine
Such theft, mischief or housetrespass which cause apprehension of
death or grievous hurt.
Jassa Singh V/S State of Haryana AIR 2002 – Right to private defence
under section 103 exceeds to cause death if a crime has been committed.
Trespass in open and does not give right of private defence.
ROBBERY 103(i) the element of valence is essential in robbery for
taking the benefit of the section. As by this element, these may be a danger to
body or property. The section authorizes victim for causing death if
apprehension of body and property of himself or others are there. Though
dacoits have not been mentioned, for the protection of property causing of
death of dacoit is also permissible for the victim as dacoits are the vast style
of the loot.
Ram Prasad V/S Emperor 1919 Patna: Housebreaking by night:
section 103(2) – In this offence death can be caused by the person causing
the offence provided:
• Housebreaking has been done in the night
• There may be the apprehension of violence
For exercising the right it is not necessary that the act of housebreaking
is completed the only attempt to housebreaking by night is sufficient.
In Queen V/S Guruwachan Singh 13 Wr, a person was committing
theft in the night by housebreaking and he was caught and killed by the family
members.
The decided killing of the thief was beyond the power vested in a
person under the provision of IPC of right to private defence. The definition
of housebreaking by night is given under section 446 of IPC.
Theft, Mischief by Firehouse Trespass (Section 103 (3)): If in any tent
which is used for residence or keeping goods in it is damaged by any person
by kindling fire, the victim or the person noticing the incident can cause the
death of criminals. Mischief is defined under section 425 of IPC.
Thief, Mischief, House Trespass (Section 103 (4)): When any mischief
or housetrespass has been done in the situation that victim may compel to
think that if he does not exercise his right of private defence, he will either be
in danger of life or will have grievous hurt then such victim will cause the
death of doer.
Gurudathamal V/S State Air 1965 S.C.: Some armless persons were
cutting their crops under police protection. Suddenly accuse reached there
with guns and dangerous weapons. The removed the police first and thereafter
committed the crime like loot or theft, hence accused were not benefitted by
right of private defence.
Section 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 extends, subject to the restriction mentioned in section 99, to
the voluntary causing to the wrongdoer of any harm other than death.
Meaning thereby that under the right to private defence in relation to
property, the exercise of power is permissible to the extent it is required and
not in excess otherwise it would be considered as crossing the limit and
defence would not be permissible.
Section 105: Commencement and continuance of the right of private
defence of property continues as long as the apprehension of danger of crime
is there.
Exceptions of Right of Private Defence (Section 99): The Exceptions
are given in section 99 as the right is exercised under the restriction givens in
section 99. Acts against which there is no right of private defence:
Section 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.
The 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 1 – 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.
Section 99 describes the following exceptions:
1. An act was done by the public servant in good faith: section 99(i) – if
the act is done by the public servant –
a. In good faith
b. In his official capacity
2. An act is done under the direction of a public servant in good faith.
3. Where there is no time to seek the help of public authorities.
4. Inflicting of more harm than it was necessary for the purpose of defence.
Without the apprehension of death or of grievous, against such act
right of private defence is not available.
Uttar Pradesh V/S. Niyamath And Others AIR 1987 S.C.: In the matter
of private defence this is an important case. In this case, a person was cutting
the neck of his wife, when his son saw this he killed his father. Held that the
boy in good faith believed that for protection of his mother it was necessary
to murder father hence his act was to be protected under the provision of
section 97(i).
Thus, if public servant knowing do any act beyond his jurisdiction
then section 99 will not invoke.
Rajni Lal V/S Raj 1990 CR. L.J. – In the night some policemen went
to a village with the intention to seize a lady. The village was not under the
jurisdiction of that police station where these police personnel were posted.
On opposing by villagers, the police fired with the gun. The court did not give
the protection of section 99.
Explanation 1 – Of section 99 makes clear that a person is not deprived
of the right of private defence unless
• He knows or
• Or has reason to believe
• That the person doing the act is such public servant.
Explanation 2 – the right of private defence is not available where
any action is done in the direction of the public servant. It is not necessary
that a person doing activities in the direction of a public servant also a
public servant.
Recourse To The Public Protection Of The Public Authorities:- The
right of private defence is not given where there is sufficient time to have
reason to the protection of public authorities because law presumes that if
any danger has arisen to anybody and he has time to have the help of public
authority, he should instead of getting rid of that danger, seek the help of
available public authority.
Q. 9. Write a short note on Unlawful Assembly?
Ans. An assembly may turn unruly and which may cause injury to
person, property or public order. Such an unruly assembly is termed as
‘Unlawful Assembly.’ In Moti Das v. State of Bihar AIR 1961 SC 884., it was
held that ‘an assembly, which was lawful to start with, became unlawful the
moment one of the members called on the others to assault the victim and his
associates, and in response to his invitation all the members of the assembly
started to chase the victim while he was running.’
The term ‘Unlawful Assembly’ has been defined under section 141 of
the Indian Penal Code, 1860 as an assembly of five or more persons having a
common object to perform an omission or offence.
Essentials to constitute an Unlawful Assembly: To constitute an
unlawful assembly the following 3 conditions must coexist:
1. There must be an assembly of five persons.
2. The assembly must have a common object and
3. The common object must be to commit one of the five illegal objects
specified in the section.
1. There must be an assembly of five persons: The Supreme Court of
India has upheld invariably in a number of cases such as Dharam Pal
Singh v. State of Uttar Pradesh AIR 1975 SC 1917 that “Where only
five named persons have been charged with constituting an unlawful
assembly and one or more of them have been acquitted, the remaining
accused (less than five) may not be convicted as members of an unlawful
assembly unless it is established that, in addition to convicted persons,
the unlawful assembly consisted of other persons who were not
identified and who were unable to be named.”
2. There must be a common object: The law does not declare a mere
assembly of men, however large it may be, as illegal if it is not inspired
by an unlawful common object. “The court stated that “the word ‘object’
means the purpose or design of doing a thing that is intended to be
done in the case of Sheik Yusuf v. Emperor AIR 1946 Pat 127,and that
the object must be ‘common’ to the individuals who make up the
assembly.”A common object is where all or at least five members of the
assembly possess one object and share it.
3. The common object must be to commit one of the five illegal objects
specified in the section:- The object was specified as follows in section
141:
a. To overawe government by criminal force:- ‘Overawe’ means
creating fear in someone else’s mind. That is when, through the
use of force, a public procession tends to overpower government,
like what the Stone Pelters do in parts of Kashmir to protest
against the government, such an assembly is called an illegal
assembly.
b. To resist the execution of law or legal process:- Resistance by
an assembly to a legal process or execution of law, for example,
executing a judgment or order of a court is subject to law
enforcement, so restricting the arrest in the case of Baba Ram
Rahim in Harayana was an unlawful act by individuals and the
government decided to disperse the unlawful assembly pursuant
to section 144 of the 1973 Code of Criminal Procedure.
c. To commit an offence:- Where an assembly of five or more
persons having a common purpose of performing an act that is
prohibited by law or that constitutes an offence under the Indian
Penal Code or other special or local laws, such an assembly
would be an unlawful one.
d. Possession and dispossession of property by force:- Where an
assembly uses a criminal force to deprive a person of the right to
use water or any other incorporeal right that the person enjoys
and possesses or obtains possession of any property or to
impose such rights, those acts referred to above are prohibited
under clause 4 of section 141 of the Indian Penal Code, 1860.
e. Unlawful compulsion:- If the assembly compels them to carry
an illegal act by using criminal force on others, it would be an
unlawful assembly
Member of an Unlawful Assembly: The key component of section 142
is that as soon as the individual is aware of the fact that the assembly is
unlawful, despite knowing that it is unlawful, it must be proved that he
remained part of such an assembly. The word ‘continues’ under section 142
means physical presence as a member of an unlawful assembly, that is,
physically being present in the crowd. A person who understands that the
assembly is unlawful and is present as a just bystander cannot be attributed
to this chapter.
Punishments for Unlawful Assembly:
IPC section 143 embodies the punishment for having been a member
of an unlawful assembly. Any person who is a member of an unlawful assembly
shall be punishable by a term of imprisonment of up to 6 months, or by a fine,
or both.
Section 144 aims to punish persons in an unlawful assembly armed
with an offence weapon. It prescribes the punishment of imprisonment for a
term that can extend to 2 years, or fine, or both. This section is intended to
reduce the risk of hampering the tranquility of the general public.
IPC section 145 provides for punishment for knowingly joining an
unlawful assembly that has been ordered to disperse. This section is in
consistent with IPC section151 and section 148. Section 151 deals with cases
of a special nature in which disobedience leads to an infringement of public
peace, and section 188 deals with cases in which there is an infringement of
any legal order by any public servant. Section 129 of the Code of Criminal
Procedure provides that a police officer has special powers to order the
dispersal of an unlawful assembly.
IPC Section 150 makes individuals who have been hired to join the
unlawful assembly liable. It provides that if a person is hired to be a member of
an unlawful assembly, he is liable in the same way as if he had been a member
of that assembly and had committed the offence himself. Section 157 of IPC is
a broader section that provides for the harbouring of hired individuals to be
punished. Anyone who knowingly harbours the persons being hired as part
of an unlawful assembly shall be liable for imprisonment that may extend to six
months, or for fines, or both.
Dispersal of Unlawful Assembly: Under sections 129 to 131 of the
Code of Criminal Procedure, the power to disperse the unlawful assembly can
be exercised in three different ways:
1. By use of civil force: Section 129 of the Code authorizes police officers
and magistrates to order members of an unlawful assembly or
prospective unlawful assembly (assembly of persons likely to commit
any of the acts under section 141, IPC) to disperse and cease to violate
public peace. Powers shall be conferred primarily on any executive
magistrate (including subdivisional magistrate and district magistrate)
or officer in charge of a police station or any officer in his absence, but
not below the rank of subinspector, for the purposes of dispersing
unlawful meetings.
Three prerequisites as mentioned in Karam Singh v. Hardayal Singh
1979 CriLJ 1211 should be met before any force can be used for
dispersal of an unlawful assembly. First, an unlawful assembly for the
purpose of violence, or an assembly of five or more people likely to
disturb public peace and tranquility, should be held. Secondly, it is
ordered that such an assembly be dispersed by the component authority
immediately. Third, despite such dispersion order, such an assembly
does not disperse or, ex facie, does not appear to be dispersing. The
provisions of section 129 allow the use of only civil force, i.e., command,
order or warning, and therefore, in a situation that did not justify the
firing, the firing took place and that the State also ordered the victim’s
dependants to be compensated without the authority’s order.
2. By use of armed forces: In relation to the use of the nation’s armed
forces to disperse the unlawful assembly, section 130 of the Cr.P.C.
provides that if the Executive Magistrate believes that the unlawful
assembly cannot be dispersed by the use of civil force and that its
dispersion is necessary for public security, it may cause the armed
forces to disperse the assembly. The Magistrate may, with the
assistance of any group of persons belonging to any of the three
Armed Forces (the Army, the Navy and the Air Force) and with such
officers under his command, order the arrest and detention of persons
belonging to the three Armed Forces. Clause 3, however, provides
that the armed forces and the commanding Magistrate should use as
little force as necessary and cause minimal injury to any person or
property as possible.
3. By certain armed forces officers in the absence of competent authority:-
The provisions of section 131 shall apply only when public security is
manifestly threatened by the presence of an unlawful assembly and no
magistrate may, in the circumstances specified, be contacted. If these
two conditions are satisfied, the forces under his command may use
any commissioned or gazette officer of the armed forces to disperse
such an unlawful assembly.
Case Laws:
1. In case of Bhanwar Singh v. State of M.P. (2008) 16 SCC 657, the
court held that, on the one hand, the common purpose of an unlawful
assembly depends on whether that object can be classified as one of
the objects described in section 141; on the other hand, that common
object does not have to be the product of a previous concert, but can
form at the moment. Finally, the nature of such a common object is a
matter of fact to be determined by taking into account the nature of the
arms, the nature of the assembly, the conduct of the members, etc. in
essence, the common object to be examined takes into account the acts
of the members and the circumstances surrounding a particular case. In
addition, there is always the possibility that an assembly could be
turned into an unlawful one.
2. In the case of Karnataka state v. Padmanabha Beliya (1992) Cr LJ
634, when without lawful orders from the authorities, the district armed
reserve police fired members of an unlawful assembly and caused the
death of one person, it was held that the State Government was
vicariously liable and had to pay compensation to the dependants of
the deceased.
3. In the case of State of U.P v. Sughar Singh AIR 1978 SC 191, five
accused, with armed guns, were lying in a bush on either side of a lane.
When the deceased approached, he was exhorted by the accused 4
and 5, and the accused 2,3 and 4, shot the deceased with their guns
respectively. 1,2 and 3 of the accused threatened the witnesses. The
trial court held that all these were sufficient to conclude that these five
accused constituted an unlawful assembly and that members had a
common object to kill the deceased. They had a prearranged plan. The
trial convicted the accused. The conviction was quashed by the high
court upon appeal. The conviction against the accused was upheld by
the Supreme Court.
4. In case of Moti Das v. State of Bihar AIR 1954 SC 657 the assembly,
which was lawful to begin with, became unlawful when one of the
members called on the others to assault the victim and his associates,
and all the members of the assembly began to chase the victim while he
was running in response to his invitation.
5. In case of Allauddin Mian Sharif Mian v. State of Bihar AIR 1989
SC 1456, there is a relationship created between a common object and
an offence when the offence is committed with a common object, then
each person is liable for it.
6. In case of Rajnath v. State of Uttar Pradesh AIR 2009 SC 1422 the
court held that all or a few members of the assembly could form a
common object at any stage, and that other members could just join
and adopt it. It need not continue to be the same once it is formed, it
can be modified, altered or abandoned at any stage.
7. In case of Lallan Rai and Ors v. the State of Bihar, 1962 Supp.(3)
SCR 848 the court held that the law’s requirement is that the person
having the common object must be present at the site of the occurrence.
8. In case of Yunis Alias Kariya, etc. v. State of Madhya Pradesh AIR
2003 SC 539, Eight accused were charged under sections 302,147,148
and 149 of the Indian Penal Code for criminal offences. During the trial
2 of the 8 accused had been released on temporary bail on various
occasions. They did not surrender, and were unable to be arrested.
Therefore, it had to be separated from their trial. The remaining six
accused have been tried and convicted of offences under IPC section
302/149. The court found that for conviction, the presence of the
accused as part of the unlawful assembly is sufficient. The fact that the
accused was a member of an unlawful assembly and his presence was
not disputed at the place of occurrence is sufficient to hold him guilty
even if he is not charged with any overt act.
9. In case of Amar Singh v. State of Punjab, AIR 1987 SC 826 initially
seven persons were charged for crimes pursuant to sections 148 and
302/149, two of them were acquitted by the Sessions court and one by
the High Court, and no other person other than those seven was charged
with the crime. The Court held that, pursuant to section 148 or section
149, the convictions of the remaining four cannot be upheld as a minimum
of 5 persons are required for the application of these sections. The
acquittal of three accused persons and the remaining four accused
cannot therefore be convicted.
Conclusion: Every government’s main objective is to maintain public
order and ensure tranquility in public discourse. Our nation’s lawmakers have
taken commendable steps to safeguard public order and tranquility among
the people of society. Peace is essential to the existence of a civilized society,
and more importantly, the belief that peace predominates. Preserving public
peace and order is the main reason why unlawful assembly is criminalized.
The Penal Code provides for vicarious responsibility in order to deter
individuals from committing crimes in groups. Being ‘knowingly’ part of the
object of an unlawful assembly would render a person equally responsible for
punishment regardless of his role in the assembly.
Q. 10. Write a short note on the General Exception under IPC?
Ans. When a person proved with the commission of an offence, and
ought to have been punished by law, if he is exempted from such legal punishment
under special conditions stipulated in the law, it is known as General Exception.
General exceptions have been explained under Sections 76 to 106 of IPC.
Section 6 IPC Every definition of an offence, every penal provision
and illustration should be understood subject to the exceptions contained in
the Chapter titled “General Exceptions”.
These provisions specify the absence of the element mens rea in the
acts of commissions and omissions on the part of the offender of the offence.
The law offers certain defences that exculpate criminal liability. These
defences are based on the premise that though the person committed the
offence, he cannot be held liable.
Burden of Proof:
According to Section 105 of Indian Evidence Act: When a person is
accused of any offence, the burden of proving the existence of circumstances
bringing the case within any of the General Exceptions in the Indian Penal
Code, (45 of 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.
Illustrations:
a. A, accused of murder, alleges that, by reason of unsoundness of mind,
he did not know the nature of the act. The burden of proof is on A.
b. A, accused of murder, alleges, that by a grave and sudden provocation,
he was deprived of the power of selfcontrol. The burden of proof is on
A.
The General exceptions are divided into two categories:
• Excusable Acts
• Judicially Justifiable Acts
Excusable Acts Justifiable Act
A mistake of Fact under section An act of Judge and Act performed in
76 and 79. pursuance of an order under Section 77
and 78.
Accident under Section 80. The necessity under 81.
Infancy – Section 82 and 83. Consent under Section 87 – 89 and Section
90 and 92.
Insanity – Section 84. Communication under Section 93.
Intoxication – Section 85 and 86. Duress under Section 94.
Trifles under Section 95.
Private Defence under Section 96 – 106.
Excusable Acts: An Excusable Act is the one in which though the
person had caused harm, yet that person should be excused because he
cannot be blamed for the act. For example, if a person of unsound mind commits
a crime, he cannot be held responsible for that because he was not having
mens rea. Same goes for involuntary intoxication, insanity, infancy or honest
mistake of fact.
1. A mistake of Fact under Section 76 and 79:
Under Section 76: Act done by a person bound or by mistake of fact
believing, himself to be bound by law in included. Nothing is an offence
which is done by a person who is or by reason of a mistake of fact, not
by mistake of law in good faith believes himself, to be, bound by law to
do such act. It is derived from the legal maxim “ignorantia facti doth
excusat, ignorantia juris non excusat”.
Example: If a soldier firing on a mob by the order of his officer in
conformity through the command of the law, then he will not be liable.
Under Section 79: Act done by a person justified or by mistake of fact
believing, himself justified, by law is included. Nothing is an offence
which is done by any person who is justified by law, or who by reason
of mistake of fact and not mistake of law in good faith, believes himself
to be justified by law, in doing that particular act
Example: A thought Z to be a murderer and in good faith and justified
by law, seizes Z to present him before authority. A has not committed
any offence.
In Kiran Bedi v. Committee of Inquiry [1988] INSC 231, petitioner
refused to deposed to the beginning of the inquiry as she believed
that she could depose only at the end of the inquiry.
2. Accident under Section 80: Includes an Accident committed while
doing a lawful act. Nothing is an offence which is done by accident or
misfortune, 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.
Example: Suppose M is trying to shoot a bird with a gun but
unfortunately the bullet reflected from the oak tree causing harm to N,
then, M will not be liable.
In King Emperor v. Timmappa (1901) 3 Bom LR 678, a division
bench held that shooting with an unlicensed gun does not debar an
accused from claiming defence under Section 81 of IPC. The appeal of
acquittal was dismissed and the order of trial magistrate was upheld.
The court was of the opinion that there is no reason why sentence
awarded under Section 19(e) of the Indian Arms Act should be enhanced.
The respondent was liable under the provision but no more. He just
borrowed a gun for few minutes to kill as he thought a wild animal
might attack him and his partners. The application was dismissed
regarding enhancement of sentence.
3. Infancy – Section 82 and 83:
Section 82: It includes an act of a child below seven years of age.
Nothing is an offence which is done by a child under seven years of
age.
Suppose a child below seven years of age, pressed the trigger of the
gun and caused the death of his father, then, the child will not be liable.
Section 83: It includes an act of a child above seven and below 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 yet
attained sufficient maturity of understanding to judge the nature and
repercussions of his conduct during that occasion.
Example: Suppose a child of 10 years killed his father with a gun in the
shadow of immaturity, he will not be liable if he has not attained maturity.
In Krishna Bhagwan v. State of Bihar C.A. 478 Of 1984, Patna High
Court upheld that if a child who is accused of an offence during the
trial, has attained the age of seven years or at the time of decision the
child has attained the age of seven years can be convicted if he has the
understanding an knowledge of the offence committed by him.
4. Insanity under Section 84: Act of a person of unsound mind. Nothing
is an offence which is done by a person who at that time of performing
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.
Example: A, who is insane or unsound, killed B with a knife, thinking it
to be a fun game, will not be liable for B’s death as he was not aware of
the nature of act and law. he was incapable of thinking judiciously.
In Ashiruddin Ahmed vs. State 1949 CriLJ 255, the accused Ashiruddin
was commanded by someone in paradise to sacrifice his own son, aged
4 years. Next morning he took his son to a Mosque and killed him and
then went straight to us uncle, but finding a chowkidar, took the uncle
nearby a tank and told him the story.
The Supreme Court opined that the accused can claim the defence as
even though he knew the nature of the act, he did not know what was
wrong.
5. Intoxication – Section 85 and 86
Section 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 involuntarily without his will
or knowledge.
Example: A drank alcohol given by a friend thinking it to be a cold
drink. He became intoxicated and hit a person on driving his car back
home. He will not be liable as alcohol was administered to him without
his will and knowledge.
Section 86: Offence requiring a particular intent or knowledge committed
by one who is intoxicated. This applies to cases where an act done is
not an offence unless done with a particular knowledge or intent, a
person who does the act in 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.
Example: A person intoxicated, stabs another person under influence
of alcohol which was administered to him in the party against his
knowledge or will, will not be liable. But if that person had stabbed that
person under voluntary intoxication, then he will be liable.
In Babu Sadashiv Jadhav case, 1984 the accused was drunk and
fought with the wife. He poured kerosene and set her on fire and started
extinguishing the fire. The court held that he intended to cause bodily
injury which was likely to cause death under section 299(20 and
sentenced h under section 304, Part I of code).
Justifiable Acts: A justified act is one which would have been wrongful
under normal conditions but the circumstances under which the act was
committed makes it tolerable and acceptable.
1. Act of Judge and Act performed in pursuance of an order under Section
77 and 78
Section 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
by law.
Example: Giving Capital Punishment to Ajmal Kasab was done under
the judicial powers of judges.
Section 78: Act done pursuant to the Judgement or order of the court.
Nothing which is done in 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 no jurisdiction to pass such judgment or order, provided the
person doing the act in good faith believes that the court had such
jurisdiction.
Example: A judge passing an order of giving lifetime jail punishment,
believing in good faith that the court has jurisdiction, will not be liable.
2. Necessity under 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 is done without any criminal intention to cause harm, and in
good faith for the purpose of preventing or avoiding other harm to
person or property.
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.
In Bishambher v. Roomal, AIR 1951 All 500 the complainant
Bishambhara had molested a girl Nathia. Khacheru, Mansukh, and Nathu
were accused related to father of the girl. The Chamars were agitated
and determined to punish Bhishambher. Rumal Singh, Fateh Singh, and
Balwant Singh intervened and tried to bring a settlement. They collected
a panchayat and the complainant’s black was blackened and given
shoe beating. It was found by the court that accused had intervened in
good faith but the panchayat was having no authority to take such a
step.
3. Consent under Section 87 – 89 and Section 92
Section 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
which is likely to cause death or grievous hurt, is an offence by reason
of any harm which it may cause, or to be intended by the doer to cause,
to any person, above 18 years of age, who has given consent, whether
express or implied, to suffer that harm; or by reason of any harm which
it may be known by the doer to be likely to cause to any such person
who has consented to that risk of harm.
Example: A and E agreed to fence each other for enjoyment. This
agreement implies the consent of each other to suffer harm which, in
the course of such fencing, may be caused without foul play and if A
while playing fairly hurts E, then A, has committed no offence.
In Poonai Fattemah v. Emp (1869) 12 WR (Cri) 7, the accused who
professed to be a snake charmer, induced the deceased to believe him
that he the power to protect him from any harm caused by the snake
bite. The deceased believed him and got bitten by the snake and died.
The defence of consent was rejected.
Section 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 doer to be likely to
cause, to any person for whose benefit it is done in good faith, and
who has given a consent, whether express or implied to suffer that
harm, or to take the risk of that harm.
In R.P Dhanda V. Bhurelal 1987 Cr LJ 1316 MP, the appellant, a
medical doctor, performed an eye operation for cataract with patient’s
consent. The operation resulted in the loss of eyesight. The doctor
was protected under this defence as he acted in good faith.
Section 89: Act done in good faith for the benefit of a child or insane
person, by or by consent of the 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
Section 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
causes 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.
Section 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,
a. 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
b. 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
c. Consent of children, the contrary appears from the context, if
the consent is given by a person who is under twelve years of
age.
In Jakir Ali v. State of Assam 2007 CriLJ 1615,it was proved beyond
doubt that the accused had sexual intercourse with the victim on a
false promise of marriage. The Gauhati High Court held that submission
of the body by a woman under fear or misconception of fact cannot be
construed as consent and so conviction of the accused under sections
376 and 417 of the Indian Penal Code was proper.
Section 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.
4. Communication under Section 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.
Example: A doctor in good faith tells the wife that her husband has
cancer and his life is in danger. The wife died of shock
after hearing this. The doctor will not be liable because he communicated
this news in good faith.
5. Duress under Section 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 done by a person compelled to do it
under 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 reasonable apprehension of harm to himself short of
instant death, place himself in the situation by which he became subject
to such constraint.
Example: A was caught by a gang of dacoits and was under fear of
instant death. He was compelled to take gun and forced to open the
door of house for entrance of dacoits and harm the family. A will not be
guilty of offence under duress.
6. Trifles under Section 95: Act causing slight harm is included under
this section. 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.
In Mrs. Veeda Menezes v. Khan 1966 AIR 1773, during the course of
exchange of high tempers and abusive words between appellant’s
husband and the respondent, the latter threw a file of papers at the
former which hit the appellant causing a scratch on the elbow. SC said
that the harm caused was slight and hence, not guilty.
7. Private Defence under Section 96 – 106:
Section 96 Things done in private defence: Nothing is an offence in
which a person harms another person in the exercise of private
defence.
Section 97: Right of private defence of body and property: Every person
has a right to private defence, provided under reasonable restriction
under Section 99.
a. Protecting his body or another person’s body, against any offence
in which there is a danger to life.
b. Protecting his or another person’s movable or immovable
property, against any offence like theft, robbery, mischief or
criminal trespass or an attempt to commit theft, robbery, mischief
or criminal trespass.
Example: A father, in order to protect the life of daughter from the
attack of a thief, shoots him in his leg. But the father will not be liable as
he was protecting the life of his daughter.
Section 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.
Example: A attempts to kill Z under influence of insanity but A is not
guilty. Z can exercise private defence to protect himself from A.
Section 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 color 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.
• The harm caused should be proportional to that of imminent
danger or attack.
Section 100: When the right of private defence of the body extends to
causing death:
• Assault causing reasonable apprehension of death.
• Reasonable apprehension of grievous hurt.
• Committing rape
• Unnatural lust
• Kidnapping or abducting
• Wrongfully confining a person in which that person reasonably
apprehends the assault and not able to contact public authority.
• Act of throwing or attempting to throw acid, causing
apprehension in the mind that assault will cause grievous hurt.
Section 101: When such rights extend 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.
Section 102: Commencement and continuance the right of private
defence of the body- The right of private defence of the body commences
as soon as a 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; it continues as long as such apprehension
of danger to the body continues.
Example: A, B, and C were chasing D to kill him in order to take revenge,
but suddenly they saw a policeman coming from another side. They
got afraid and turned back to run. But D shoots B in his leg, even when
there was no imminent danger of harm. D will be liable as there was no
apprehension of death or risk of danger.
Section 103: When the right of private defence of property extends to
causing death:
a. Robbery;
b. Housebreaking by night;
c. Mischief by fire committed on any building, tent or vessel,
building, tent or vessel used as a human dwelling, or a place for
the custody of property;
d. Theft, mischief, or housetrespass, 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.
Example: C Attempts to stab D maliciously while committing burglary
in D’s house. There is a reasonable apprehension in the mind of D that
C will hurt him grievously, so in order to save himself and property, C
throttled D with a knife in his chest, causing Death. C will not be liable.
Section 104 When such right extends to causing 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
wrongdoer of any harm other than death.
Example: If A has committed criminal trespass in order to annoy B or
hurt him, then B will have the right to harm A in proportional manner,
not causing death of the person.
Section 105 Commencement and continuance of the right of private

defence of property: The right of private defence of the property
commences when:
• A reasonable apprehension of danger to the property
commences. The right of private defence of property against
theft continues until the offender has 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
• As long as the fear of instant death or
• Instant hurt or
• 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 housebreaking by
night continues as long as the housetrespass which has been begun
by such housebreaking continues.
Example: Suppose a thief into the house of an individual, and attempts
to hurt him instantly with a knife, then that individual has the right to
act in private defence and harm that thief to save life and property.
Section 106: Right of private defence against deadly assault when
there is a risk of harm to innocent person: If in the exercise of private
defence against an assault, a person causes apprehension of death, in
which defender has no choice but harming an innocent person, his
right will extend to that running of risk.
Example: C is attacked by a mob who attempts to murder him. He
cannot exercise his right to private defence without firing on the mob.
In order to save himself, he is compelled to hurt innocent children while
firing so C committed no offence as he exercised his right.
Conclusion: So these were the general exceptions which are available
to the accused to escape liability or save himself from the offence
committed. It may extend to even causing the death of a person or harm
an innocent person too depending upon the circumstances. The
accused should also have the right to be heard, keeping in view the
democratic character of our nation. That’s why these exceptions are
provided so as to represent oneself in the court of law.
Q. 11. What do you mean by Criminal Conspiracy under IPC?
Or
Define Criminal Conspiracy and the provision related to Criminal
Conspiracy under IPC?
Ans. A Criminal Conspiracy is the agreement of two or more persons to
do an illegal act, to do a legal act by illegal means. In other words, A joint evil
intent is necessary to constitute crimes. Criminal Conspiracy is a partnership
in crime, and each conspiracy consists of a joint and mutual agency for a
prosecution of a common plan. A conspiracy being an agreement, it necessarily
follows that there must be at least two persons. One person alone cannot
conspire. A conspiracy being an agreement, it necessarily follows that there
must be at least two persons. One person alone cannot conspire. Section
120(A) of the Indian Penal Code, 1860 defines Criminal Conspiracy and Section
120(B) prescribes punishment for Criminal Conspiracy.
Definition of criminal conspiracy: Section 120A of Indian Penal Code
Defines Criminal Conspiracy “When two or more persons agree to do, or
cause to be done
a. an illegal act, or
b. 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.
When two or more person consent to do or have done any illegal act or
an act that is legal by illegal means, they are said to have committed an offence
of a criminal conspiracy.
A criminal conspiracy not only consists of the agreement or meeting of
intention or minds between two or more than two persons but an actual
commission of an unlawful act by unlawful means. It means that only agreement
or intention is not enough to make a person liable for criminal conspiracy
unless they have done something unlawful or illegal by unlawful or illegal
means.
To establish criminal conspiracy charges under section 120A, there
must be an agreement, either expressed or implied. And for that, no proof of
direct meeting or communication is needed. Passive cognizance of conspiracy
is not enough. There must be active cooperation. In other words, joint evil
intent is mandatory.
In Bimbdhar Pradhan vs State of Orissa, 1956, the Supreme Court
held that one person could also be convicted for the offence of conspiracy. It
is sufficient that the court proves that two or more than two persons were
actually involved in the criminal conspiracy. Where the prosecution proves
that two or more persons were connected in a conspiracy and they could not
be caught, one alone can still be convicted.
Earlier, one person alone could be held liable for the offence of criminal
conspiracy. However, this rule has been changed in subsequent cases.
In State of Tamil Nadu vs Nalini, 1999, commonly known as the Rajiv
Gandhi assassination case, it was held that the corporation of accused with
the main accused or even his knowledge regarding conspiracy would not
make the accused liable for conspiracy as the agreement is the sine qua non
(essential) for the offence of conspiracy.
Example: A and B made a plan to murder C; letters passed between
them as to the movement of C. Here both A and B are liable for indictment to a
charge of criminal conspiracy under this section since there was an agreement
between A and B to do an illegal act, i.e., to commit the murder of C.
Essential Ingredients: The ingredients of Section 120A (Criminal
Conspiracy), of Indian Penal Code are as follows
1. There should be two or more persons
2. There should be Agreement between them
3. Agreement must be to to or cause to be done, an illegal act; or
4. The act may not be illegal but is done by illegal means.
Agreement between two or more persons: There must be an agreement
between two or more persons. If the conspirators commit several offences in
accordance with the criminal conspiracy, all of them shall be liable for the
offences, even if some of them did not actively participate in the commission
of the crimes.
Illegal act: To make a person liable for the criminal conspiracy, the
agreement must be to do any act which is either forbidden by law or is opposed
to the law.
Legal act by illegal means: When any act is done even though it is
lawful but done by illegal means, it constitutes criminal conspiracy.
The Supreme Court has outlined the essential ingredients of criminal
conspiracy in R Venkatkrishnan vs CBI (2009) 11 SCC 737 as:
1. An agreement between two or more persons
2. The agreement must be related to doing or causing to be done either:
a. an illegal act
b. an act that is not illegal in itself but is done by illegal means.
3. The agreement may be expressed or implied or partly expressed and
partly implied.
4. As soon as the agreement is made, the conspiracy arises, and the
offence is committed.
5. And, the same offence is continued to be committed so long as the
combination persists.
In Pratapbhai Hamirbhai Solanki vs State Of Gujarat & Anr (2013)
1 SCC 613, the Supreme Court held that the most important ingredient is the
intent to cause an illegal act.
Punishment for Conspiracy:
Section 120B prescribes the punishment for the commission of the
crime of criminal conspiracy. According to Section 120B, if the parties involved
in the conspiracy, conspired to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two years or more,
shall be punishable in the same manner as if he/she had abetted the commission
of such an offence, if no explicit punishment for the commission of such a
conspiracy has been provided for, by the Code.
However, if the parties involved in the conspiracy, conspired to commit
an offence punishable with terms not prescribed previously, such persons
shall be sentenced to imprisonment for a term not exceeding six months, or a
fine, or both.
Landmark Judgements:
The scope and nature of criminal conspiracy is always changing and
growing. The offence of conspiracy itself is often complex and difficult to
ascertain because the act of ‘scheming’ is always done in secrecy. Since its
addition to the Indian Penal Code, there have been various landmark
judgements that attempt to interpret the offence in its truest form.
In Topan Das v. State of Bombay AIR 1956 SC 33 stated that it was
established in the rule of law that the offence of conspiracy cannot apply to a
singular person and that there should be at least two persons for the same,
and can be never be held guilty of criminal conspiracy since one cannot
conspire with oneself.
In B.H. Narasimha Rao vs Government of Andhra Pradesh 1995
CriLJ 4181 the appellant was convicted of an offence of criminal conspiracy
along with seven others. However, he alone was charged with offences under
Ss. 120B, 409 and 471, IPC under section 5(1)(c) and 5(l)(d) read with section
5(2) of the Prevention Of Corruption Act 1947. Simultaneously, all the other
coconspirators were acquitted by the Trial Court and the High Court. In the
end, the Supreme Court acquitted the accused on the facts that there had to
be another person to communicate with and carry out the agreement and that
a single person can never be accounted for conspiracy.
In Leo Roy Frey V. Suppdt. Distt. Jail AIR 1958 SC 119 the court held
that “The offence of conspiracy to commit a crime is a different offence from
the crime that is the object of the conspiracy because the conspiracy precedes
the commission of the crime and is complete before the crime is attempted or
completed, equally the crime attempted or completed does not require the
element of conspiracy as one of its ingredients they are, therefore quite separate
offences”
In The State of Andhra Pradesh v. Subbaiah 1961 (2) SCJ 68, the
Supreme Court contended that “where the matter has gone beyond the stage
of mere conspiracy and offences are alleged to have been committed in
pursuance thereof the accused can be charged with the specific offences
alleged to have flown out of the conspiracy along with the charge of
conspiracy.” The court stated the offence of conspiracy is a separate offence
and an individual can be separately charged with respect to a conspiracy
along with any other offences resulting of that conspiracy.
In State v. Nalini 1999 5 SCC 253 held that once the object of the
conspiracy has been achieved, any subsequent actions which may be unlawful
in nature, would not make the accused party to the conspiracy.
In Firozuddin Basheeruddin and others vs. State of Kerala 2001 SCC
(Crl) 1341 it was held that it is not necessary that each one of the co
conspirators must have actively participated in the commission of the offence
or was involved in it from start to finish. If there is a combination by agreement,
which may be an express or implied or in part implied, then they are considered
to be a party to the conspiracy.
Q. 12. Write a short note on the following:
a. Theft
b. Extortion
Ans. Theft: It is defined under Section 378 of the Indian Penal Code. It
states that any person with a dishonest intention to take any movable property
out of the possession of a person without the person’s consent to whom it
belongs move that property is said to commit theft.
There are five main ingredients of theft:
• Dishonest intention to take property;
• Property should be moveable;
• The property must be taken out of possession of another person;
• Property should be taken without the person’s consent;
• Property should be moved, in order to such taking.
1. Dishonest intention to take property: It is the main ingredient of the
theft. Any property which is taken will not amount to theft until the
intention was dishonest. And the intention of the person who is taking
the property was to cause wrongful gain to one person and wrongful
loss to another person.
Illustration: A owns a necklace, and B finds it in A’s house. The necklace
is in A’s possession and if B dishonestly takes it. B commits theft
2. Property should be movable: To commit theft property should be
movable. Property which is capable of being carried around is said to
be a movable property. Any property or a thing which is permanently
attached to the earth said to be an immovable property and will not be
a subject of theft. But it will become a subject of theft when it is severed
from the earth and capable of being moved without the consent of a
person in whose possession it is.
Illustration: A standing tree which is attached to the earth is said to be
immovable property. But it will become movable when it is cut down.
Pyarelal Bhargava v. the State of Rajasthan 1963 AIR 1094 In this
case, an office file from the chief engineer office was removed
temporarily and was given to the private party for a day, it amounts to
theft. The Hon’ble court held that to commit theft the loss needed to be
permanent. Even property dispossession is temporary, a person taking
the property intended to restore it is said to commit theft.
3. The property must be taken out of possession of another person: Any
property which is stolen should be in possession of another person.
Until the property is removed no offence has been committed.
Illustration: Y finds a mobile phone which belongs to X on a sofa in
X’s house. A mobile phone was in the possession X if Y removes it
dishonestly, Y commits theft. Here mobile phone was in possession of
X.
Rakesh v. State of NCT of Delhi (2013) 11 SCC 58 In this case, the
Hon’ble court held that mere intention of the offender to take property
dishonestly out of the possession of a person without his consent is
no offence. Until the property is removed, no offence has been
committed. The actual removal of property from another person’s
possession is necessary, as mentioned in Section 378 of IPC.
4. Property should be taken without the person’s consent: If a property
of a person in possession is taken without his prior consent (express or
implied) will amount to commit theft. The offence will take place when
the offender takes the property dishonestly and without the consent of
that person.
Illustration: S, being an R’s friend, enters the house of R and runs away
with the ring which was on R’s table, without R’s consent. S has
committed theft. As here R’s consent is not present.
K.N. Mehra v. the State of Rajasthan 1957 AIR 369: In this case, the
Supreme Court held that proof of intention to cause permanent
deprivation of property or to obtain wrongful gain is not necessary for
the purpose of proving dishonest intention. Absence of a person’s
consent to whom the property belongs at the time of moving it and the
presence of dishonest intention at the time of taking that property are
the essentials to commit theft.
In Pyare Lai v. State (AIR 1963 SC 1094) held that it would satisfy the
definition of theft if he took away any movable property out of
possession of another person though he intends to return it later on.
However, under the English law, the property must be taken to deprive
another permanently. In the above case, the appellant was a
Superintendent in a Government office.
He removed a file to his house and made it available to an outsider who
tampered with the documents. The appellant returned the file to the
office. Held, that a temporary period of deprivation or dispossession of
the property of another causes loss to the other. In K.N. Mehra v. State
of Rajasthan (AIR 1957 SC 369), the accused took out an LAF plane
for an unauthorised flight, even temporarily, was held guilty.
5. Property should be moved, in order of such taking: Moving a property
with a dishonest intention is an initial stage of committing a theft. So,
the property should be moved, to commit an offence.
Illustration: A goes to B’s house, and sees a diamond necklace lying
on the table. A hides that necklace at B’s place and thinks whenever he
will visit next time. He’ll take it. Here, A commits no theft as the property
has not been moved.
Explanations:
• 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 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 3 - A person, who by any means causes an 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 4 - The consent mentioned in the definition may be
expressed 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.
Illustrations:
a. A cuts down a tree on Zs ground, with the intention of dishonestly
taking the tree out of Zs possession without Zs consent.
b. A puts a bait for dogs in his pocket, and thus induces Zs dog to follow
it. If As intention be dishonestly to take the dog out of Zs possession
without Zs consent, A has committed theft.
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 Zs servant, and entrusted by Z with the care of Zs plate,
dishonestly runs away with the plate, without Zs 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 goldsmith and sells it. Here, the
plate was not in Zs possession. It could not therefore be taken out of
Zs possession, and A has not committed theft, though he may have
committed criminal breach of trust.
f. 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 Zs hand, and carries it away. Here A, though
he may have committed criminal trespass and assault, has not committed
theft, in as much as what he did was not done dishonestly.
g. 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 Zs
possession, with the intention of depriving Z of the property as a
security for his debt, he commits theft, in as much as he takes it
dishonestly.
h. Again, if A having pawned his watch to Z, takes it out of Zs possession
without Zs consent, not having paid what he borrowed on the watch,
he commits theft, though the watch is his own property in as much as
he takes it dishonestly.
i. A takes an article belonging to Z out of Zs possession, without Zs
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.
j. A, being on friendly terms with Z, goes into Zs library in Zs absence,
and takes away a book without Zs express consent for the purpose
merely of regarding it, and with the intention of returning it. Here, it is
probable that A may have conceived that he has Zs implied consent to
use Zs book. If this was As impression, A has not committed theft.
k. A asks charity from Zs 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 Zs wife is authorised to give away. If this was As
impression, A has not committed theft.
l. A is the paramour of Zs wife. She gives a valuable property, which A
knows to belong to her husband Z, and to be such property as she has
not authority from Z to give. If A takes the property dishonestly, he
commits theft.
m. A, in good faith believing belonging to Z to be As own property, takes
that property out of Bs possession. Here, as A does not take dishonestly,
he does not commit theft.
Sec. 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.
Aggravated Forms of Theft:
a. Theft in any building, tent or vessel used as human dwelling or for the
custody of property: Sec. 380.
b. Theft by clerk or servant of property in possession of his master: Sec.
381.
c. Theft after preparation made for causing death, or hurt or restraint or
fear of death, etc. to any person in order to the committing of such
theft, or the effecting of escape afterwards or the retaining of property
taken by such theft: Sec. 382.
B. 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.
Extortion is defined under Section 383 of the Indian Penal Code. It
states that whoever intentionally puts any other person in fear of injury
to him, or to any other person, and dishonestly induces him by putting
him in fear to deliver any property or any valuable thing or anything
sealed and signed said to commit extortion.
Main ingredients of extortion are:
• Intentionally putting a person in fear of injury;
• Dishonestly inducing the person so put him in fear to deliver his
property, valuable security to another person.
Dhananjay v. State of Bihar [(2008) 4 SCC 171]: In this case, the
court held that to constitute extortion, one must fulfil these ingredients:
1. Accused must put a person or any other person in fear of injury;
2. Intentionally person was put in fear by the accused;
3. The inducement was on the part of the accused to deliver the property;
4. Inducement should be made dishonestly.
1. Intentionally putting a person in fear of injury: It is just that a person
should be put in fear and cause wrongful gain to one and wrongful loss
to another person, and the fear of injury must be real in nature. An act
done by him under fear is voluntary.
Illustration: Y threatens Z to publish a defamatory article in the
newspaper against Z. Y induces Z to give money. Here, Y commits
extortion.
In A.R. Antulay v. R.S. Nayak (AIR 1986 SC 2045), the accused was
Chief Minister at the relevant time and the Sugar Cooperatives had
some of the grievances pending consideration before the Government.
The pressure was brought about on the Sugar Cooperatives to make
the donations with a promise that their grievances shall be considered.
Held that the ingredients of the offence of extortion not made out.
There was no evidence at all that the management of the Sugar Co
operatives had been put in any fear and the contributions had been
paid in response to threats.
2. Dishonest inducement to a person to deliver his property or valuables:
To constitute the offence one must dishonestly induce the person by
putting him in fear to deliver his property or valuable security. Delivery
of property by any such person in fear is an essence of it. Movable and
immovable property both are covered under extortion.
Illustration: Y induces Z and threatens him to sign the promissory
note and deliver it to Y. Otherwise, Y will kill Z’s son. Z under fear signs
and delivers the note. Here, Y commits extortion.
In Gursharan Singh v. the State of Punjab AIR 1956 SC 460 case, the
court held that the most ingredient element to commit extortion is that
the offender induces the person and puts in fear to deliver the property
or any valuable security. And even if the amount which was demanded
is paid after a few days, then also it is said to be extortion.
3. Delivery of property or valuable security by the person put in fear to
any person - Where a person through fear offers no resistance to the
carrying off his property, but does 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 actual delivery
of property by the person put under fear. Further, the threat maybe
used by one person and the property may be received by another
person.
In Jadunandan Singh v. Emperor (AIR 1941 Pat 129), the accused,
along with others, assaulted two persons and forcibly took their thumb
impressions on three blank papers. The court observed that cases
frequently occur which turn on the difference between the giving and
taking of thumb impression. The forcible taking of the victims thumb
impression does not necessarily involve inducing the victim to deliver
papers with thumb impressions. Therefore, the offence of extortion is
not established. It is not a case of theft because papers were not taken
from the victims possession. It is a case of criminal force or assault
(Sec. 325).
Punishment for committing extortion is under Section 384 of IPC:
Whosoever commits extortion shall be punished with imprisonment of either
description or which may extend up to three years or with fine or with both.
More aggravated forms of Extortion: Section 386 to 389 deals with
aggravated forms of Extortion.
1. Section 386 of IPC deals with any person who commits extortion by
putting in fear of death or of grievous hurt to him or any other person,
shall be punished with imprisonment of either description which may
extend ten years and shall be liable with fine also.
2. Section 387 of IPC deals with any person who attempts to extort a
person by putting him in fear of death or of grievous hurt is enough. It
is not necessary that the actual commission of extortion takes place.
Punishment under this is imprisonment of either description which may
extend to seven years and shall also be liable to fine.
3. Section 388 of IPC deals with any person who commits extortion by
way of threat of accusation to a person, shall be punished with death,
or with imprisonment for life or with imprisonment which may extend to
ten years, or have attempted to induce any other person to commit
extortion, shall be punished with imprisonment of either description
which may extend to ten years, or shall also be liable to fine.
4. Section 389 of IPC deals with any person who attempts to extort to a
person by putting him in fear of accusation of offence. No actual
commission of extortion takes place. Punishment under this is death, or
imprisonment for life or, imprisonment which may extend to ten years
and shall also be liable to fine.
Q. 13. Robbery is either theft or Extortion, Explain.
Or
Write a short note on Robbery and when theft or extortion becomes
robbery?
Or
Write a short note when robbery becomes dacoity?
Ans. Robbery is defined by the Black’s Law Dictionary as the felonious
act of taking the personal property in the possession of another from his
person or immediate presence against his will accomplished using force and
fear, with an intention of permanently depriving the true owner of the thing in
question.
Robbery is an aggravated form of either theft or extortion or of both.
According to Sec. 390, theft is robbery if –
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, 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 hurt, or wrongful restraint.
Section 390 of IPC states that in all robbery there is either theft or
extortion. According to Black’s Law dictionary robbery is a felonious act of
taking the personal property of another from a person or immediate presence
against his will accomplished by using force and fear, with the intention of
permanently depriving the owner of the thing.
We need to understand robbery in both cases:
1. Theft;
2. Extortion.
When theft is robbery: A robbery takes place when, while committing
theft or moving property, the offender does any of these acts:
1. When any person voluntarily causes or makes an attempt to cause
death, hurt or wrongful restraint to any person;
2. When any person voluntarily causes or makes an attempt to cause fear
of instant death, hurt or wrongful restraint to any person.
An act done by the offender should be done in order to commit theft or
committing theft or carrying away property which is obtained by theft.
Illustration 1: A finds jewels in B’s house. A holds B and takes that
jewels fraudulently without B’s consent. Here A commits theft and in order to
commit robbery, A wrongfully restraints B. Here A commits robbery.
Illustration 2: A holds Z down and fraudulently takes Z’s money and
jewels from Z’s clothes without Z’s consent. Here A has committed theft, and
by committing of that theft, has voluntarily caused wrongful restraint to Z. A
has therefore committed robbery.
When extortion is robbery: Extortion becomes robbery when the
offender does any of these acts:
1. Whoever commits extortion and puts a person in a fear of instant death,
hurt or wrongful restraint;
2. The offender induces a person and puts him in fear to deliver the
property;
3. The offender puts a person in fear at the time of extortion.
Illustration:
1. B meets C on the highway, and shows a pistol towards B, and demands
B’s purse.B surrenders her purse. Here, C committed extortion in
addition to it putting B in fear of instant death C committed robbery
also.
2. 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 present. A
has therefore robbed Z.
3. However, if 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
would not be robbery unless Z is put in fear of the instant death of his
child.
Punishment for Robbery: The punishment for robbery is given under
Section 392 of the Indian Penal Code, 1860. By this section, any person who
commits robbery shall be punished with rigorous imprisonment which may be
extended up to ten years and shall also be liable to pay a fine.
If the robbery is committed on the highway between sunset and sunrise,
then the period of imprisonment may be extended up to 14 years.
Further, under Section 393 the punishment for an attempt to commit
robbery is enshrined. According to this section, anyone who attempts to
commit robbery shall be punished with rigorous imprisonment for up to seven
years and also be liable for a fine.
When Robbery becomes Dacoity: When five or more people commit or
attempt to commit a robbery, it is known as dacoity. It is an aggravated form of
robbery. The main difference between robbery and dacoity is the number of
participants in the crime. Dacoity is defined under Section 391 of the Indian
Penal Code, 1860.
Every member of the gang is punished in dacoity whether or not he
takes the active part in it. And the punishment for dacoity is given under
Section 395 according to which the offenders will be punished with rigorous
imprisonment of up to 10 years and a fine.
Section 391 of IPC define Dacoity states that when five or more persons
conjointly commits or attempts to commit robbery, it is said to be dacoity.
There is no difference between the robbery and dacoity, except for the number
of offenders. Group of people which is five or more than five in number makes
an attempt to commit robbery or aids in committing or attempting a robbery, is
said to commit dacoity.
Amrish Devnarayan v. the State of Gujarat 2006 CriLJ 876: In this
case, the Hon’ble court held that to prove dacoity, one must be supposed to
establish certain facts:
1. In the commission of an offence involvement of a person should be
five or more than it, as an accused;
2. An attempt to commit offence or commission of an offence should be
conjoint.
These are the essential facts which need to be proved in the court to
prove dacoity.
Punishment for Dacoity is under Section 395 of IPC: Whoever commits
dacoity will be liable for punishment includes life imprisonment or rigorous
imprisonment which may extend to ten years and fine also.
Q. 14. Write a short note on Criminal Breach of Trust and Criminal
Misappropriation?
Or
Distinguish Between Criminal Breach of Trust and Criminal
Misappropriation?
Ans. The Indian Penal Code deals with the offence of Criminal
Misappropriation of property under the category of “Criminal Breach of Trust”.
This offence is similar to the offence of ‘embezzlement’ under the English Law,
the only difference is that the possession of the property is entrusted by the
owner to the offender. Section 405 of IPC defines Criminal Breach of Trust as,
“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 willfully suffers any other person so to do, commits
‘criminal breach of trust.”
In simpler words it can be said that, the beneficial interest in the property
in respect to which the offence is alleged to have been committed was vested
in some person other than the accused, and the accused held that property on
behalf of that person. A relationship of transferor and transferee is created,
where under the transferor remains the legal owner of the property and transferee
only has the custody of the property for the benefit of the transferor himself
or someone else. The transferee obtains only a special interest limited to a
claim of his charges in respect of that property, and under no circumstances
does he acquire a right to dispose of that property in contravention of the
entrustment. The offence is committed when the transferee dishonestly
misappropriates it, or converts it into something for his own use, or disposes
it in violation of any direction of law, lawful contract, or willfully suffers any
other person to do it.
The following ingredients are essential for attracting the offence
under Section 405:
1. The accused must be “entrusted with property or dominion over that
property.”
2. He must with dishonesty
(a) “Misappropriate that property”, or
(b) “Convert it for own use”, or
(c) “Use or Dispose off the property”.
3. Such “dishonest use or misappropriation or conversion or disposition
of the property must be in violation of the trust which he must legally
discharge. The two main things should be proved for the offence to
attract under Section 405,
• to show that the accused had the obligation to discharge trust
which was acquired by entrustment over the property or
dominion over that property.
That the dishonest use/ misappropriation/ disposition of that property
is contrary or violative of that obligation. One can be held liable for ‘criminal
breach of trust’ only when above two things are proved.
a. Entrustment of Property: The first and foremost essential to be fulfilled
for this section is “entrustment”. Until and unless the accused is
entrusted with the property the section cannot come into play rather, it
would mean criminal misappropriation. The phrase used in section is
“in any manner entrusted with property” which means it includes all
types of entrustment into its ambit, whether it be clerks, servants,
business partners or any other person, provided they are holding a
position of trust. It is wide enough to deal with all the cases, in which
the property of the complainant or owner is voluntarily entrusted to
the accused in any manner and is dishonestly misappropriated. the
term “entrusted” found in the section governs not only the words
“with the property” immediately following it but also the words “or
with any dominion over the property”. The entrustment may be expressed
or implied.
In the case of State of Gujarat vs Jaswantlal Nathalal AIR 1968 SC
700, the government sold cement to the accused only on the condition
that it would be used for construction purpose. However, a portion of
the purchased cement was transferred to a godown. The accused was
sought to be prosecuted for criminal breach of trust. The Supreme
Court in this case held that the expression ‘entrustment’ carries with its
implication that the person handing over the property or on whose
behalf the property is handed over, continues to remain the owner and
he must have the confidence in person taking over the property. A mere
transaction of sale does not amount to entrustment. If the accused had
violated the conditions of purchase, he can be prosecuted under law
relating to cement control only. No offence of criminal breach of trust
was made out.
In the case of Jaswant Rai Manilal vs State of Bombay AIR 1956 SC
576 it was held that when securities are pledged with a bank for specific
purpose on specified conditions, it would amount to entrustment, same
would go for the directors of the company, as to some extent they are in
the position of trustee. However, if the money was paid as illegal
gratification, there would be no question of entrustment.
In the case of State of UP vs Babu Ram AIR 1961 SC 751, the accused
was a SubInspector of police, and had gone to investigate a theft case
in a village. In the evening he saw Tika Ram, who was coming from the
side of the canal and was going hurriedly towards a field. He appeared
to be carrying something in hos dhoti folds. The accused searched him
and found a bundle containing currency notes. The accused took the
bundle and later returned it. The amount when returned was short of
Rs. 250. the Supreme Court held that the currency notes were handed
to the Police officer for a particular purpose and Tika Ram had trusted
the accused to return the money once he was satisfied. If the accused
had taken the notes, it would amount to Criminal Breach of Trust.
In the case of Rashmi Kumari vs Mahesh Kumar Bhada 1997 [2]
SCC 397, the Supreme Court held that when the wife entrusts her
stridhana property with the dominion over that property to her husband
or any other member of the family, and any of them dishonestly
misappropriates or converts it to his own use, or willfully suffers other
person to do it, he/they commit criminal breach of trust.
In the case of Common Cause, A registered Society vs Union of India
AIR 1999 SC 2979 the court held that the entrustment of property is
meant to be a movable or immovable property. The power of a minister
to allot the outlet due to discretionary power over dealing with a
particular good is not covered by Section 405. It does not include
entrustment of powers. And such dealing of entrustment cannot be a
criminal breach of trust.
b. Property or Dominion over the Property: In the definition of Criminal
Breach of Trust, the term property does not explicitly restrict itself to
movable property.
In the case of RK Dalmia vs Delhi Administration AIR 1962 SC
1821, court held that the property in IPC mostly refers to movable
property. But when the section itself does not restrict itself to the
movable property then there is no limit to the kind of property being
the subject of the offence. Hence, the interpretation of property as per
the definition given in this section must be interpreted as per the facts
of the each case. The words “dominion over the property” connote
control over the property arising through that entrustment. If a director
of a company is in the position of a trustee and is handed over some
assets of the company, then he can be said to have dominion over the
property, i.e. control of assets. In a partnership firm although, the
scenario is a bit different. Even though each partner is entrusted with
the assets of the firm, it is not an entrustment which is meant under
Section 405. Hence, the partners cannot be liable under this section
unless and until there is a written agreement formed, making such
entrustment over the partners. The trust entrusted over the employer
who deducts a part from the salary or wages of the employee for
contribution in the PF and the pension fund is also covered under this
Section. Such entrustment if misappropriated by the employer is liable
for criminal breach of trust under the section.
In the case of Employee State Insurance Corporation vs SK Aggarwal
AIR 1998 SC 2676 the Court held that the term employer within the
definition of ‘principal employer’ does not include director. Therefore,
a managing director cannot be held liable for the misappropriation of
such entrustment and cannot be held vicariously liable for criminal
breach of trust under Sections 405 and 406.
c. Misappropriation of Entrusted Property: Dishonest Misappropriation
is the essence of this section. The term ‘dishonesty’ is defined under
Section 24 of the IPC. “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.” In order to convict a person under
Section 405, one must prove the dishonest intentions of the accused.
Also, the liability of criminal breach of trust would arise only when the
property is said to have been “dishonestly misappropriated or
converted to own use or disposed of”. if a person has merely
mismanaged the property or acted negligently then criminal liability
won’t arise. The fact of dishonest intention and dishonest utilisation
by the accused has to be proved. As it is hard to prove the mental
element by providing direct evidence, the Court
In the case of Jaikrishnadas Manohardas Desai vs State of Bombay
AIR 1960 SC 889 held that the dishonest misappropriation need not
be proved with direct evidence. The establishment of the fact that the
accused was entrusted with the property or had dominion over the
property and the accused is falsely claiming the failure to account for
the same is enough. The court would thereafter infer the
misappropriation and an act of criminal breach of trust by the accused.
Further, the prosecution need not prove the manner in which property
is dishonestly misappropriated.
In the case of Surendra Verma vs State of Bihar AIR 1973 SC 488 the
accused was in possession of the keys to a safe. It was held that the
accused was liable because he alone had the keys and nobody could
have had access to the safe, unless he could establish that he parted
with the keys to the safe.
d. Temporary Misappropriation: The offence under Section 405 can be
said to have committed only when all of its essentials are satisfied. As
in case of criminal misappropriation, even temporary misappropriation
could be sufficient to warrant conviction under this section. Even if the
accused intended to restore the property in future, at the time
misappropriation, it is a criminal breach of trust.
In the case of R Venkatkrishnan vs CBI 2009 11 SCC 737 the accused
was a Bank Official and had made public money available to a private
party. The Court held that the act of the Bank Official was against the
statutory provisions and directives enforceable upon him. Thus, even
though the money was recovered shortly and action was initiated by
the department, the accused was made liable for criminal breach of
trust. When a person goes against the law or violates the law he should
abide by , it is an act of criminal breach of trust, if such law is a statutory
norm/ provision/ directive/ regulation issued by any authority
enforceable against any accused. (Sidhir Shantilal Mehta vs CBI
(2009) 8 SCC 1)
Punishment For Criminal Breach Of Trust: Section 406 provides
punishment for the offence of Criminal Breach of Trust. It follows as,
“Whoever commits criminal breach of trust shall be punished with
imprisonment of either description for a term which may extend to three
years, or with fine, or with both”
e. Forms of Criminal Breach of Trust: “407 Criminal breach of trust by
carrier, etc—Whoever, being entrusted with property as a carrier,
wharfinger or warehousekeeper, 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”
408 Criminal breach of trust by clerk or servant—Whoever, being a
clerk or servant or employed as a clerk or servant, and being in any
manner entrusted in such capacity with property, or with any dominion
over property, commits criminal breach of trust in respect of that 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.” The
criminal breach of trust is more severe offence than criminal
misappropriation as the offender in the breach has a beneficial position
of a trustee. Thus, if a breach of trust is committed by the person who
is entrusted with the property and not by a stranger, it is an aggravated
form of Criminal Breach of Trust.
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.
The offence under Section 409 is the most severe one as the accused
is a public servant and is entrusted in the same capacity. In order to
convict someone under Section 409, it must be proved that the accused
is a public servant and was entrusted with property or dominion over
the property and has thus committed criminal breach of trust under this
Section (Jiwan Das vs State of Haryana, AIR 1999 SC 1301) The
property entrusted to accused should be given in the capacity of a
public servant and not in any personal capacity. The public servant, as
explained in the Section, need not be a government employee
necessarily.
Difference between Criminal Breach of Trust and Criminal
Misappropriation: The Offences of Criminal Misappropriation and Criminal
Breach of Trust are given under the head of crime against property in IPC.
Section 403, IPC defines Dishonest misappropriation of property as, “Whoever
dishonestly misappropriates or converts to his own use any movable
property.”
Whereas, Section 405,IPC defines Criminal breach of trust as,
“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.”
Basis of Difference Criminal Misappropriation Criminal Breach of Trust
Provision under Offence of criminal Offence of Criminal Breach of
IPC,1860 misappropriation is defined Trust is defined under section
under section 403 of Indian 405 of Indian Penal Code,1860
Penal Code, 1860
Rela tio nship In misappropriation, there is But in Criminal Breach of
no contractual relationship Trust, there is a contractual
relationship of the offender
regarding the property.
Po sse ssi o n In misappropriation, the In criminal breach of trust, the
property is obtained by some property is obtained due to the
casualty or otherwise. truest vested by the owner on
the offender.
Misappropriation The property is misappropriated In criminal breach of trust, the
by the offender for his own use. property is misappropriated for
his own personal use. A breach
of trust includes criminal
misappropriation, but the
converse is not always true.
Nature of Property In, Criminal misappropriation Whereas, in criminal breach of
the property is always movable trust, the nature of property
in nature. can either be movable or
immovable
P u n i s hme n t Offence of Criminal Offence of Criminal Breach of
Misappropriation is punishable Trust is punishable with
with imprisonment of either imprisonment of either
description for a term which description for a term which
may extent to 2 years or with may extent to 2 years or with
fine, or with both (Sec.403,IPC) fine, or with both
(Sec.406,IPC)
In the case of Badsudeb Patra v. K.L. Haldar (32 C.W.N. 641), Where
the accused got a loan of certain ornaments from the complainant for use on
an occasion on the understanding that they should be returned after the
purpose was served and the accused failed to return them, it was held that the
accused was guilty under Sec. 406 and not Sec. 403 of Indian Penal Code,
1860.
Q. 15. What is Culpable Homocide and when it would not amount to
Murder?
Or
What is Culpable Homocide and when it would amount to Murder?
Or
Write a Short note on Culpable Homocide under section 299 of IPC
and Murder under section 300 of IPC?
Ans. Homicide is a term which originates from the Latin term ‘Homo’
means human and ‘caedere’ means killing. The act of homicide is an act that
has been a part of human life since day 1. Early men used to kill each other for
food or creating dominance, the kings used to perform homiciide to win
territories and now people kill each other in the sway of jealousy, greed, etc.
Homicide is one of the most grievous act a person can commit as it is
the highest order of bodily injury inflicted on a human being hence that’s why
regulations regarding Homicide are really grave, for instance, culprits are
usually sentenced to life imprisonment or the death penalty as these are the
most extreme punishments given by the judiciary.
In India homicide is divided into two forms Culpable Homicide (Section
299 of the Indian Penal Code) and Culpable Homicide amounting to murder
(Section 300 of the Indian Penal Code). Both of these have a very minimal
difference but these differences prove to be very crucial for the legal system
as the delivery of a fair judgment is dependent on these differences.
Culpable Homicide not amounting to Murder (Section 299 IPC): It can
be simply referred to as culpable homicide, this comes under the purview of
Section 299 of The Indian Penal Code 1862 which states that:
An act done with the intention of causing death or causing such bodily
injury which is likely to cause death or having the knowledge that he can
likely by his act cause death, he’ll be committing the offense of culpable
homicide.
Conditions: After bifurcating the definition, we get 3 conditions which
have to be fulfilled to attract Section 299 of the Indian Penal Code these are:
1. The intention of causing death.
2. The intention of causing such bodily injury as is likely to cause death.
3. With the knowledge that he is likely by such an act to cause death.
Illustration:
• A not knowing that D has a tumour in his brain, hits him hard on the
head with a cricket bat, with the intention of causing death or with the
knowledge that death is likely to be caused. D dies because of the
bursting of the tumour. A is liable for culpable homicide not amounting
to murder.
• A, dig a deep pit and cover it with grass and clay, with the intention of
causing death or with the knowledge that death is likely to be caused.
B thinking it as a hard ground tries to stand on it and dies. A is liable of
Culpable Homicide not amounting to Murder.
• A paid a truck driver to slam his truck on the car of C, he did it with the
intention of causing death or with the knowledge that death is likely to
be caused. C went to the market to buy groceries. The truck crashes
with his car, C dies. A is liable of Culpable Homicide not amounting to
Murder.
• A not knowing that D has a tumour in his brain, hits him hard on the
head with a cricket bat, with the intention of causing death or with the
knowledge that death is likely to be caused. D dies because of the
bursting of the tumour. A is liable of Culpable Homicide not amounting
to Murder.
It was held in the case of Nara Singh Challan v. State of Orissa 1997
CriLJ 2204 that Section 299 of the Indian Penal Code is the genus and Section
300 of the Indian Penal Code is the species. Hence, there are no independent
sections regarding culpable homicide not amounting to murder it is the part of
Section 300 of IPC which defines Murder.
Herein, the court observed that: “For deciding the proper punishment
which is proportionate to the current offense, IPC has divided culpable homicide
into three degrees. First is the gravest form which is Murder it is defined under
section 300 of IPC, the second is the culpable homicide of the second degree
which is punishable under Section 304 part 1 of IPC and Third is the lowest
degree of culpable homicide which is punishable under Section 304 part 2 of
IPC.”
Culpable Homicide amounting to Murder: It can be simply referred to
as Murder, this comes under the purview of Section 300 of the Indian Penal
Code 1862 which states that:
Culpable homicide is murder, if the act is done with the intention of
causing death or if it is done with the intention of causing such bodily injury
as is likely to cause the death of the person or if the inflicted bodily injury is
sufficient enough in the ordinary course of nature to cause death or if there is
knowledge involved that the act done is so fatal that in all probability it can
cause death or such bodily injury as is likely to cause death and commits such
act without any excuse.
Conditions: After bifurcating the definition, we get 4 conditions which
have to be fulfilled to attract Section 300 of the Indian Penal Code this are
1. The intention of causing death.
2. 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.
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.
4. The person committing the act knows that it is so imminently dangerous
that it must, in all probability, cause death or such bodily injury as is
likely to cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid.
Illustration:
• X knows that Z has a tumour in his brain and he hits him again and
again with a bat on his head with the intention of causing death, and Z
dies subsequently. X is liable for Murder.
• X shoots Z with a shotgun on the pointblank range with intention to
cause death, and Z dies subsequently. X is liable of Murder.
• X knows that Z has a tumour in his brain and he hits him again and
again with a bat on his head with the intention of causing death, and Z
dies subsequently. X is liable for Murder.
• X starts firing a machine gun in a crowded mall with an intention of
causing death, and subsequently killing 10 people. X is liable for Murder.
Punishment: As we know there are two types of culpable homicide
according to the Indian Penal Code 1862. Culpable homicide not amounting to
murder (Section 299 IPC) and culpable homicide amounting to murder (Section
300 IPC). Hence there are two different provisions regarding the punishment
for both the offences mentioned in the Indian Penal Code
Section 304 of IPC: Section 304 of the Indian Penal Code provides
punishment for culpable homicide not amounting to murder (Section 299 IPC),
it states that whoever causes death with intention or causes such bodily
injury as is likely to cause death or with the knowledge that death is likely to
be caused because of the act, shall be liable for life imprisonment or
imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine (Section 304(1) IPC).
Secondly, whoever causes death without the intention of causing death
or such bodily injury as is likely to cause death or doesn’t have the knowledge
that his act could cause death shall be sentenced to imprisonment of either
description for a term which may extend to ten years, and shall also be liable to
fine(Section 304(2)IPC).
If the act which causes death is done without the intention of causing
death but with the knowledge that death is likely to be caused by such act, the
person shall be sentenced to imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
In the case of Shanmugam v. State of T.N. (2013) 16 SCC 31 it was
held that offences under Section 304 can be considered as cognizable, non
bailable and triable by the Court of Sessions. In this, there arose a quarrel
between the accused and the deceased In course of the quarrel the accused
stabbed the deceased with a spear in the abdomen and the chest resulting in
the death of the victim because of septicemia. The accused was sentenced to
life imprisonment under part I of Section 304 of IPC.
If we see in this case that Exception 4 under Section 300 applies here.
Hence, it would come under Section 299 of the IPC. Part 1 of Section 304 was
attracted because it was clear from the facts that there was a clear intention to
cause death or cause such bodily injury which is likely to cause death.
However, death penalty can only be given in rarest of the rare case this
was held in the case of Bachan Singh v. State of Punjab AIR 1980 SC 898
wherein it was observed that when the court can avail the recourse of life
imprisonment then why the court has to go for such an inhumane punishment
like death penalty. The Indian Judiciary has defined certain conditions in
which death penalty could be used as a recourse these were laid down in the
Machhi Singh And Others v. State Of Punjab 1983 AIR 957, which are as
follows:
1. When the murder committed is extremely brutal, ridiculous, diabolical,
revolting, or reprehensible manner which awakens intense and extreme
indignation of the community. For instance, setting someone’s house
on fire with the intention to burn them alive;
2. The magnitude of the crime is at a large scale which means causing
multiple deaths;
3. When death is caused because of the caste and creed of the person;
4. When the motives of the accused were cruelty or total depravity; and
5. When the murder victim is an innocent child, a helpless woman or
person (due to old age or infirmity), a public figure, etc.
But it is still subjective to determine what is rarest of the rare and what
is not. Hence it leaves an ambiguity that in what cases can the death penalty
be applied and with recent developments in the Mukesh & Anr vs State For
Nct Of Delhi & Ors (2017) 6 SCC 1 (Nirbhaya case) where all the accused
were sentenced to death penalty, made this topic the epicenter of several
heated debates across the country, the major question raised is that like other
countries why can’t India sort to abolish the death penalty when there is a
recourse like life imprisonment present with the judiciary.
Q. 16. Write a short note on the Exception under Sec 300 of IPC.
Or
Distinguish between the Culpable Homocide and Murder.
Or
All Murder is Culpable Homocide but all Culpable Homocide is not
Murder, Explain?
Ans. Exceptions to Section 300 of IPC Where Culpable Homicide is
not Considered as Murder: Clauses 14 of Section 300 provide the essential
ingredients, wherein culpable homicide amounts to murder. Section 300 after
laying down the cases in which culpable homicide becomes murder, states
certain exceptional situations under which, if murder is committed, it is reduced
to culpable homicide not amounting to murder punishable under section 304,
IPC and not under section 302, IPC.
The exceptions are:
1. Grave and sudden provocation
2. Private Defence
3. Exercise of legal power
4. Without premeditation in sudden fight and
5. Consent in case of passive euthanasia
1. SUDDEN AND GRAVE PROVOCATION: Culpable homicide is not
murder if the offender, whilst deprived of the power of selfcontrol by
grave and sudden provocation, causes the death of the person who
gave the provocation or cause the death of any other person by mistake
or accident.
The above exception is subject to the following provisos:-
I. Firstly -That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing harm
to any person.
II. 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.
III. Thirdly -That the provocation is not given by anything done in
the lawful exercise of the right of private defense.
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 exercise of the right of private
defense, 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 defense.
f. 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.
K.M. Nanavati v. State of Maharashtra, 1961 (AIR 1962 SC 605): In
this case, the Supreme Court had extensively explained the law relating
to provocation in India. It was observed by the court:
• The test of “sudden and grave provocation” is whether a
reasonable man, who belongs to the same society as the accused,
is placed in the situation in which the accused was placed would
have been so provoked as to lose his selfcontrol.
• Under certain circumstances, words and gestures may also lead
to sudden and grave provocation to an accused, so as to bring
his act under an exception.
• The mental background of the victim can be taken into
consideration, taking account of his previous act to ascertain
whether the subsequent act leads to sudden and grave
provocation for committing the offence.
• The fatal blow clearly should trace the influence of passion that
arises from the sudden and grave provocation. It should not be
after the provocation has cooled down due to lapse of time,
otherwise, it will give room and scope to the accused for altering
the evidence.
MUTHU V. STATE OF TAMIL NADU,((2007) ILLJ 9 MAD): In this
case, it was held by the Supreme Court that constant harassment might
deprive the power of selfcontrol, amounting to sudden and grave
provocation.
2. When the Person Exceeds his Right To Private Defense: Culpable
homicide is not murder if the offender, in the exercise in good faith of
the right of private defense of person or property, exceeds the powers
given to him by law and causes the death of the person against whom
he is exercising such right of defense without premeditation, and without
any intention of doing more harm than is necessary for the purpose of
such defense.
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 can by no other means prevent
himself from being horsewhipped, shoots Z dead. A has not
committed murder, but only culpable homicide.
NATHAN V. STATE OF MADRAS, AIR 1973 SC 665: In this case the
landlord was trying forcefully to evict the accused. The accused killed
the landlord while exercising his right to private defense. There was no
fear of death to the accused as the deceased was not holding any
deadly weapon that could have caused grievous hurt or death of the
accused. The deceased had no intention to kill the accused, thus, the
accused exceeded his right of private defence. The accused was liable
to culpable homicide not amounting to murder.
3. Culpable Homicide In Case Of Public Servant: The act is done by a
public servant who is acting to promote public justice. If the public
servant commits an act which is necessary to discharge his duty as is
done in good faith and he believes it to be lawful.
ILLUSTRATION:
• If the police officer goes to arrest a person, the person tries to
run away and during that incident, if the police officer shoots
the person, the police officer will not be guilty of murder.
DAKHI SINGH V. STATE, 1955: In this case the appellant was the
constable of Railway Protection Force, while he was on duty, he killed
a fireman unintentionally, while he was firing bullet shots to catch the
thief. The constable was entitled to benefit under this section.
4. Sudden Fight/Rage: The sudden fight is when the fight is unexpected
or premeditated. Both the parties don’t have any intention to kill or
cause the death of another. The fact that which party had assaulted or
offered a provocation first is not important.
Radhey Shyam And Anr. V. State Of Uttar Pradesh, 2018: In this case
the appellant was extremely angry when he got to know that his calf
had come to the deceased place. The appellant started abusing the
deceased, when the latter tried to stop him, the appellant fired at the
deceased. The deceased was unarmed at that time, thus, the appellant
had an intention to kill the deceased, hence, he was held liable to
murder.
Explanation. It is immaterial in such cases which party offers the
provocation or commits the first assault.
Major differences between Culpable Homicide and Murder:
“All murders are culpable homicide but not all culpable homicides are
murders” this is a very common phrase used to establish a difference between
culpable homicide and murder. It talks about the point which I’ve already
proved before that culpable homicide is the genus and murder is the species.
The major difference between them is that murder is a more aggravated form
of culpable homicide. In murder there is no presence of ambiguity that the act
may or may not kill as it is present in culpable homicide, looking at Section 299
of the Indian Penal Code where there is clearly mentioned that:
“Act done with the intention of causing death or causing such bodily
injury which is LIKELY to cause death or having the knowledge that he can
Likely by his Act can cause death, he’ll be committing the offense of culpable
homicide”.
If you notice the multiple occurrences of the term “LIKELY” showcases
that there is an element of ambiguity that the act of the accused may or may
not kill the person, is present. Whereas, in the case of murder which is defined
under Section 300 of the Indian Penal Code there is no such mention of words
as “likely” which shows that there is no chance of ambiguity left on behalf of
the accused, the accused is for sure that his act will defiantly cause death.
As mentioned by Sir James Stephen, it is extremely difficult to distinguish
between Culpable Homicide and Murder as the end result of both is death.
But there is a presence of difference though little it all boils up to a very subtle
distinction of intention and knowledge involved in both the crimes. The actual
difference lies in the degree of the act there is a very wide difference of degree
of intention and knowledge among both the crimes.
The true difference between culpable homicide and murder is only the
difference in degrees of intention and knowledge. A greater the degree of
intention and knowledge, the case would fall under murder and a lesser degree
would result culpable homicide. It is therefore difficult to arrive at any strait
jacket differences between culpable homicide and murder. Supreme Court from
time to time through different cases give their views on this topic. As in the
case of Thangaiah v. state of Tamil Nadu, 2005 CriLJ 684 Supreme court
held that following factors should be taken into consideration for determining
death is culpable homicide or murder weapon used, place of injury, ferocity of
attack, state of mind of the accused .
Perhaps the distinction between culpable homicide and murder could
be well appreciated by the illustration given by Justice Melville in the landmark
case of Reg v. Govinda (1877) ILR 1 Bom 342 and repeatedly quoted with
approval by the Supreme Court (State of Andhra Pradesh v Rayavarappu
Punnayya AIR 1977 SC 45) may be outlined thus.
Section 299 Section 300
A person commits culpable homicide, Subject to certain exceptions, culpable
if the act by which the death is caused homicide is murder, if the act by which the
is done: death is caused is done:
Intention:
a. With the intention of causing death; 1. With the intention of causing death;
b. With the intention of causing such 2. With the intention of causing such
bodily injury as is likely to cause bodily injury, as the offender knows to
death; 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;
Knowledge:
c. With the knowledge that the act is 4. With the knowledge that the act is so
likely to cause death imminently dangerous that it must in all
probability cause death, or such bodily
injury as is likely to cause death and
committed without any excuse for
incurring the risk or causing death or
such injury as aforesaid.
Q. 17. What is Hurt under IPC?
Or
What do you mean by Grievous Hurt under IPC and discuss all the
provision related to Hurt and Grievous Hurt?
Ans. Hurt may be described as the bodily pain that is resulting from
real contact with the frame by an aggravated assault. There’s no radical
difference between assault and harm. Section 319 of the Indian Penal Code,
1860 (hereinafter “IPC”) defines hurt as: “whoever reasons bodily pain, disorder
or disease to any man or woman is said to have caused harm.” The section
does not outline the offence of inflicting harm. It defines best the time period
hurt and does not describe the situations underneath which it can be brought
on.
To constitute hurt (battery under English Law) any of the following
essentials needs to be caused:-
1. Bodily pain, or
2. Disease, or
3. Infirmity to another.
1. Bodily Pain: According to Section 319 of the Indian Penal Code,
whoever causes bodily ache, disorder or disease to any individual
is said to cause hurt. The expression ‘physical pain’ means that the
pain must be physical instead of any mental pain. So mentally or
emotionally hurting anyone will no longer be ‘harm’ inside the
meaning of Section 319. However, to be covered under this section,
it isn’t always important that any visible injury should be precipitated
at the sufferer. All that the section contemplates is the inflicting of
bodily pain. The diploma or severity of the ache or pain isn’t a
fabric element to decide whether Section 319 will apply or not. The
duration of ache or pain is immaterial. Pulling a girl with her hair
would amount to hurt.
In the State vs Ramesh Dass on 22 May 2015 in a hospital, passing
through the corridor, in the new surgical block location, an unknown
public individual came from the front and attacked the woman. That
individual pulled her hair and threw her to the ground. He hit her on her
head together with his hand. Accused was convicted for the offences
under Section 341 and 323 of the IPC and acquitted for the offence
under Section 354 of the IPC.
In the absence of an intention to cause death, or grievous bodily hurt,
where a person died as a result of two kicks on the abdomen, the
accused was held guilty of causing hurt only. (In re Marana Goundan
AIR 1941 Mad 560) Dragging a person by hair or fisting him falls
under this section.
2. Infirmity to another: Infirmity denotes the bad state of frame of mind
and a state of transient intellectual impairment or hysteria or terror
would constitute disease inside the meaning of this expression inside
the section. It is an incapability of an organ to carry out its everyday
function, whether temporarily or completely. It may be delivered through
the administration of a toxic or poisonous substance or by means of
taking alcohol administered by way of any other person.
Jashanmal Jhamatmal vs Brahmanand Swarupanand [AIR 1944
Sind 19]: In this situation, the respondent has been evicted with the
aid of the owner. He attempts to get revenge via vacating others from
that constructing too. Respondent later confronted with A’s spouse
with a pistol in his hand.
3. Disease: A communication of ailment or disease from one individual to
another through the way of touch would constitute hurt. But, the idea
is unclear with respect to the transmission of sexual sicknesses from
one individual to every other. For instance, a prostitute who had
intercourse with a person and thereby communicated syphilis changed
into held in charge under Section 269 of the IPC for spreading infection
and not for inflicting hurt due to the fact that the interval between the
act and sickness turned into too far away to attract Section 319 of the
IPC.
In Raka vs. Emperor (1887 ILR 11 Bom 59) the accused was a
prostitute and she inflicted syphilis to her customers. It was held that
accused, the prostitute was liable under Section 269 of IPC negligent
act likely to spread infection of any disease dangerous to the life of
another person.
4. Intention or Knowledge: Intention or knowledge is an important aspect
of causing hurt to an individual. A person who intentionally sets out to
purpose shock to somebody with a weak coronary heart and succeeds
in doing so, he is said to have caused hurt. Any bodily ache due to
management of capsules can be protected under ‘harm’. Whilst the
harm isn’t always severe and there is no purpose to cause death, or
grievous hurt, the accused could be guilty of inflicting harm most
effective, despite the fact that death is caused.
In Marana Goundan v. R [AIR 1941 Mad. 560] the accused
demanded money from the deceased which the latter owed him. The
deceased promised to pay later. Thereafter the accused kicked him at
the abdomen and the deceased collapsed and died. The accused
changed into held guilty of causing hurt as it couldn’t be stated that
he meant or knew that kicking at the abdomen become in all likelihood
to hazard existence.
Section 321 of the IPC defines voluntarily causing harm as whoever
does any act with the intention of thereby causing harm to any person, or with
the expertise that he’s likely thereby to reason hurt to any individual, and
does thereby motive harm to any person, is stated: “voluntarily to motive
hurt”. What constitutes a selected offence relies upon the character of the act
achieved (actus reus) but additionally upon the character of aim or know
how (mens rea) with which it’s far carried out. Section 319 defined the nature
of the actus reus, which might constitute the offence of voluntarily causing
harm, punishable under Section 323, and Section 321 describes the mens rea
necessary to represent that offence. Goal and information need to be proved.
The person in reality hurt wants now not always be the person who becomes
intended to be hurt. Section 321 describes the situations that dress the act
with factors of criminal activity, making it an offence.
The instances are:
1. Doing of an act,
2. To any person,
3. With the goal or knowhow of causing harm.
Grievous Hurt: The draftsman of IPC found it tough to draw a line
among those physical hurts, which can be severe, and people who are moderate.
However, they special certain types of hurts as grievous hurt.
The following kinds of hurt only are termed as “grievous”:
1. Emasculation,
2. Permanent injury to eyesight or either of the eye,
3. Permanent deafness or injury to either of the eye,
4. Privation of any member or joint (loss of limb),
5. Impairing of Limb,
6. Permanent disfiguration of the head or face,
7. Fracture or dislocation of a bone or tooth,
8. Any hurt which risks life or which causes the victim to be during the
time of twenty days in severe bodily pain, or unable to follow his
ordinary pursuits.
(a) Emasculation: The first type of grievous hurt is depriving a
person of his virility. This clause is confined to men and was
inserted to counteract the practice commonplace in India for
women to squeeze men’s testicles at the slightest provocation.
Emasculation can be resulting from causing such harm to the
scrotum of a person as has the effect of rendering him impotent.
The impotency prompted ought to be permanent, and no longer
simply temporary and curable.
(b) Injuring eyesight: Some other injury of identical gravity is the
permanent deprivation of the sight of either eye or of both the
eyesight. Such harm has to have the effect of permanently
depriving the injured of the usage of one or both of his eyes.
The test of gravity is the permanency of the harm because it
deprives a person of the usage of his sight and additionally
disfigures him.
(c) Inflicting deafness: The everlasting deprivation of hearing of
both ears is less serious than the abovementioned harm as it
does no longer disfigure a person, however handiest deprives
him of using his ear. But, it’s serious damage depriving someone
of his sense of listening to. The deafness has to be permanent to
attract this provision. Such harm may be resulting from blow
given on head, ear or the one’s elements of the head which
speak with and injure the auditory nerves or with the aid of
thrusting a stick into the ear or placing into ear a substance
which reasons deafness.
(d) Loss of limb: Everlasting deprivation of any member or joint is
some other grievous hurt, whereby a person is rendered much
less able to guard himself or to harass his adversary. ‘member’
method not anything extra than an organ or a limb. ‘Joint’ refers
to an area where two or more bones or muscle mass be a part of.
Their permanent deprivation needs to involve such damage to
them as makes them permanently stiff, so that they are not able
to perform the everyday function assigned to the human body
structure.
(e) Impairing of a limb: The deprivation of a person to the use of
member or joint includes lifelong crippling and makes a person
defenceless and depressing. The provision speaks of destruction
or permanent impairing of their powers, which might encompass
no longer only overall however additionally a particular use of
the limb or joint. Any permanent decrease of their utility would
constitute grievous hurt.
(f) Everlasting disfiguration of the pinnacle or face: ‘Disfigure’
means to do a person a few outside hurts which detract from his
private look, but does not weaken him. Branding a ladies cheek
with red warm iron, it leaves permanent scars, amounts to
disfiguration. a cut at the bridge of the nostrils of a woman due
to a sharp weapon has been held to be everlasting disfigurement
despite the fact that the inner wall become intact
In Gangaram v. State of Rajasthan 1984 Cr LJ (NOC) 180
(Raj)], case where the bridge of the nose was cut, as the injury
was inflicted by a sharpedged weapon, it was held that the act
amounted to permanent disfiguration within the meaning of this
clause and hence the injury was grievous.
(g) Fracture or dislocation of a bone or teeth: It’s far every other
species of grievous harm, which may additionally or may not be
attended with everlasting disability. A fractured or dislocated
bone may be set or rejoin, but on account of the extreme suffering
to which it gives upward thrust, the harm is named as grievous.
The number one means of the word fracture is ‘breaking’, though
it isn’t always essential in case of fracture of the cranium bone
that it should be divided into separate parts due to the fact it
may consist simply of a crack; but if it is a crack, it must be a
crack which extends from the outer floor of the skull to the inner
surface. If there may be spoil with the aid of cutting or splintering
of the bone or there is a break or gap in it, would add up to a
crack inside the importance of clause 7 of Section 320. What
must be seen is whether the cuts during the bones saw in the
damage report are just shallow or do they impact a break in them.
‘Dislocation’ implies dislodging, being applied to a bone expelled
from its typical associations with a neighbouring bone. A bone
moved out of its attachment or put out of its joint is a disjoint
bone.
A fracture, in order to attract this clause, must extend to the inner
surface. If the act results only in abrasion and does not break
the bone, it will not be a fracture. (Horilal v. State of Uttar
Pradesh, AIR 1970 SC 1969)
(h) Any hurt which risks life or which causes the victim to be
during the time of days in severe bodily pain, or unable to follow
his ordinary pursuits.
• Dangerous hurt: Three distinct classes of hurt are
assigned as risky or dangerous hurt. These classes are
autonomous of one another and hurt of any of the three
classes would be grievous hurt. Injury is said to endanger
life in the event that it might put the life of the harmed in
danger. Basic injury can’t be called offensive or grievous
since it happens to be caused on an indispensable piece
of the body except if the nature and measurements of the
damage, or its belongings, are with the end goal that in
the assessment of the specialist, it really endangers the
life of the victim. There is an exceptionally meager line of
distinction between ‘hurt which endangers life’ and ‘injury
as is probably going to cause death’.
• In Mohammad Rafi v. Emperor AIR 1943 All 369 the
accused caused damage on the neck of the perished from
behind, the Lahore High Court held the accused at risk
for under Section 322 (intentionally causing grievous hurt)
for causing demise by grievous hurt as against guilty of
culpable homicide not adding up to the murder. The
articulation ‘endangers life’ is a lot more grounded than
the articulation ‘risky or dangerous to life’. With a
perspective on the reality of the damage bringing about
the weakening of the person in question for a base time
of twenty days, the Indian Penal Code has assigned certain
hurts as grievous however they probably won’t be
fundamentally risky or dangerous to life. A hurt may cause
extreme substantial and severe bodily pain, but not be
dangerous to life. Such a hurt is grievous hurt. In any
case, it must be indicated that such hurt was adequate to
cause serious bodily pain for twenty days. Else, it might
happen that such agony or pain was caused yet there
might be nothing to show that it was caused in outcomes
of that damage. In conclusion, the trial of terribleness is
the sufferer’s failure to take care of his standard interests
for a time of twenty days. On the off chance that, where
the impact of damage doesn’t last for twenty days, such
a hurt can’t be assigned as grievous.
Provisions related to Hurt and Grievous Hurt under IPC:
 Voluntarily Causing Grievous Hurt:
Section 322 of the IPC characterizes ‘deliberately causing grievous
hurt’ as pursues: Whoever deliberately causes hurt, if the hurt which
he expects to cause or realizes that himself will generally be prone to
cause is grievous hurt, and if the hurt which he causes is grievous hurt,
is said “willfully to cause grievous hurt.” ExplanationAn individual
isn’t said willfully to cause grievous hurt with the exception of when
he, the two causes grievous hurt and means or realizes that he generally
will probably cause grievous hurt. Be that as it may, he is said
intentionally to cause offensive hurt, if proposing or realizing that
himself generally will probably cause grievous hurt of one kind, he
actually causes grievous hurt of another sort. The clarification is
undeniable and selfevident.
In any case, there must be proof that what the accused had planned or
known to be likely wasn’t only hurt, yet grievous hurt. So as to attract
this provision, Court needs to see that the accused expected to cause
hurt, or that he realized that grievous hurt is probably going to be
caused and that such grievous hurt is really caused. Regardless of
whether the individual knows himself prone to cause grievous hurt, he
is said to be intentionally causing terrible hurt. All together that an
individual might be held liable for an offence of causing grievous hurt,
it must be demonstrated that he either expected to cause or realized
that himself will generally be liable to cause grievous hurt and not
otherwise. The prerequisite in the clarification will be fulfilled if the
guilty party had the information that by his demonstration he was
probably going to cause grievous hurt. Clarification clarifies that either
the element of aim or on the other hand that of information must be
available so as to establish the offence of grievous hurt. So as to
decide if the hurt is intolerable one, the degree of the hurt and the
expectation of the guilty party must be considered.
Section 325 of the IPC recommends the discipline for intentionally
causing hurt as pursues: Whoever, aside from for the situation
accommodated by Section 335, willfully causes grievous hurt, will be
rebuffed with the detainment of either portrayal for a term which may
stretch out to seven years, and will likewise be obligated to fine. An
individual is said to willfully cause grievous hurt when the hurt brought
about by him, is of the idea of any sort of hurts listed in Section 320 of
the IPC, and he expects or realizes that himself will generally be likely to
cause grievous hurt. In Kalika Singh v. Province of Uttar Pradesh
1981 CriLJ 639 a few wounds caused to complainant by blamed by
clench hands and lathi incorporated a break caused to one side thumb
by his fall on the ground during his beating by the accused. The
Allahabad High Court held that the accused was liable under Section
325, even though the fracture was caused by the fall and not by the
lathi. Sections 326, 329 331, 333, 335 and 338 prescribe punishment for
causing grievous hurt under various other circumstances.
 Causing Hurt or Grievous Hurt by “Dangerous Weapons”:
As indicated by Section 320, grievous hurt means hurt which brings
about a particular sort of explicit wounds. These wounds incorporate
deprivation of eyes or ears, harm to joints, undermining, and so on.
Section 326 fundamentally depicts an irritating type of unfortunate
hurt. Under this offence, the deplorable hurt must outcome from
instruments of firing (weapons), wounding or cutting (blades). It can
likewise emerge from different weapons which are probably going to
cause demise or death. Indeed, even explosives, harms, destructive
substances or flames bringing about grievous hurt attract this provision.
Since the odds of offensive wounds are progressively under these
conditions, the discipline is likewise increasingly serious. An accused
under Section 326 can be punished with life detainment or detainment
as long as 10 years.
 Causing Hurt or Grievous Hurt on Provocation
1. Willfully causing hurt on provocation (Sec. 334) : “Whoever
deliberately causes hurt on grave and sudden provocation, on
the off chance that he neither means nor realizes that himself will
generally probably make hurt any individual other than the
individual who provoked, will be rebuffed with detainment of
either description for a term which may reach out to one month,
or with fine which may stretch out to 500 rupees, or with both.”
2. Intentionally causing offensive hurt on incitement (Sec. 335) :
“Whoever intentionally causes grievous hurt on grave and
unexpected incitement or provocation, on the off chance that he
neither expects nor realizes that himself will generally probably
make intolerable hurt any individual other than the individual
who gave the incitement or provoked him, will be rebuffed with
detainment of either depiction for a term which may reach out to
four years, or with fine which may stretch out to 2,000 rupees, or
with both.
Explanation:- The last two sections are dependent upon the same
provision as Exception 1, Section 300.”
The fundamental elements of Sections 334 and 335 are as per the
following:
a. The guilty party ought to intentionally cause hurt or shocking
hurt;
b. It ought to be caused by provocation;
c. The incitement caused ought to be both grave and abrupt;
d. He ought not wished or intended to cause hurt to any individual
other than the individual who incited;
e. He ought not to have information that his demonstration is
probably going to make harmed or offensive hurt any individual
other than the individual who incited.
 Dangerous Weapons or Dangerous Means:
In criminal law, the expression, “dangerous weapon” alludes to a gun,
or whatever another article that is utilized or proposed to be utilized so
that it could make demise or genuine damage another individual.
Legitimately, the term is a lot more extensive than what many people
think. For example, respondents who have been seen as liable of ambush
with a savage weapon have acted in an accompanying way:
• Assaulting somebody with a bat or other sports equipment.
• Employing a blade at somebody, expecting to harm her.
• Pointing a firearm at somebody’s head and taking steps to pull
the trigger.
• Deliberately utilizing a vehicle to hit another driver or person on
foot.
• Pursuing an individual with a hatchet.
Notwithstanding firearms and blades, different things can be utilized
as lethal or dangerous weapons. A couple of models include broken
jugs, hounds, control instruments, cultivating devices, gruff items,
pontoons, and any mechanized vehicles. There is a motivation behind
why the law is expansive, and that is to keep away from any escape
clauses in figuring out what comprises a dangerous weapon.
Fundamentally, anything that can prompt incredible substantial damage
and additionally passing is culpable in an official courtroom. In certain
states, an individual’s hands, feet, and teeth may all be utilized as
destructive weapons. In spite of the fact that the human body itself is
anything but a lethal weapon, it can positively be utilized to cause
someone else extraordinary real hurt or demise/death. Different states,
for example, California characterize a lethal weapon as an article that is
outer to the human body. Be that as it may, California additionally has
a provision that expresses “any methods for power liable to create
extraordinary substantial damage,” which would warrant an attack with
a dangerous weapon charge. On the off chance that somebody assaults
an individual by stifling, kicking, or punching, he could confront attack
with a fatal weapon. A vehicle is viewed as a lethal and dangerous
weapon in situations where the driver planned to hit another driver or
walker. Some driving impaired cases are additionally accused as an
attack of a lethal or dangerous weapon.
 Causing Grievous Hurt by use of Acid:
As per Section 326A of Indian Penal Code,” Whoever makes changeless
or halfway harm or distortion, or consumes or mutilates or distorts or
cripples, any part or parts of the body of an individual or causes
offensive hurt by tossing corrosive on or by regulating corrosive to
that individual, or by utilizing some other methods with the expectation
of causing or with the information that he is probably going to cause
such hurt, will be rebuffed with detainment/imprisonment of either
portrayal for a term which will not be under ten years however which
may stretch out to detainment forever(life imprisonment), and with fine.
“According to Section 326B of Indian Penal Code,” Whoever tosses or
endeavors to toss corrosive on any individual or endeavors to control
corrosive to any individual, or endeavors to utilize some other methods,
with the aim of causing lasting or fractional harm or deformation or
distortion or inability or grievous hurt to that individual, will be rebuffed
with detainment of either depiction for a term which will not be under
five years yet which may reach out to seven years, and will likewise be
subject to fine.” Section 357B of Code of Criminal Procedure 1973 sets
down, “ The remuneration payable by the State Government under
Section 357A will be notwithstanding the payment of fine to the
unfortunate casualty under Section 326A or Section 376D of IPC. Section
357C of Code of Criminal Procedure 1973 sets out, “All emergency
clinics, public or private, regardless of whether run by the Central
Government, nearby bodies or some other individual, will quickly give
the emergency treatment or therapeutic treatment, free of cost, to the
casualties of any offense secured under Section 326A, 376, 376A, 376C,
376D or 376E of IPC and will promptly educate the police about such an
incident.
Recently included seventh provision of Section 100 of the IPC sets out
that the privilege of private barrier of body stretches out to deliberately
causing death or of some other damage to the attacker in the event of a
demonstration of tossing or managing corrosive or an endeavour to
toss or regulate corrosive which may sensibly cause the dread that
terrible hurt will generally be the result of such act. For the first time
remuneration was given to corrosive unfortunate casualty on account
of Laxmi v UOI 2014 SCC 4 427
In Morepally Venkatasree Nagesh v State of AP 2002 (1) ALD
Cri 905 the accused was suspicious about the character for his
significant other and emptied mercuric chloride into her vagina,
she later kicked the bucket because of renal disappointment. The
accused was charged under Section 302 and 307 of the IPC. In the
State of Karnataka by Jalahalli Police Station v Joseph Rodrigues
22 August 2006, one of the most popular cases including corrosive
assault. The accused tossed corrosive on a young lady named
Hasina for declining his employment bid. Because of the corrosive
assault, the shading and presence of her face changed which left
her visually impaired. The accused was convicted under Section
30 7 fo r I P C an d co nd emn e d to d e tai nment fo r eve r( li fe
imprisonment). Remuneration of Rs 2,00,000 notwithstanding Trial
Court fine of Rs 3,00,000 was to be paid by the accused to the
guardians for the victim.
The previously mentioned cases are obvious of the brutal repercussions
looked by the unfortunate casualties because of the corrosive assaults.
The administration is still in the quest for stringent measures.
 Causing Hurt or Grievous Hurt to Extort Property:
Under Section 330, the guilty party causes hurt for coercing an
admission or data identifying with an offence or unfortunate behaviour.
This, for the most part, applies to cops or police officers who mischief
accused people to compel them to admit. The coercion on the
unfortunate casualty can likewise happen to blackmail such admission
or data from someone else. This hurt can likewise occur to oblige the
unfortunate casualty to reestablish some property or significant
security. For instance, an income official may torment an individual to
propel him to settle up back payments of land income. Discipline for
Section 330 incorporates detainment/imprisonment as long as 7 years
alongside a fine. Section 331 is like Section 330 however it identifies
grievous hurt rather than simply basic hurt. Since grievous hurt is
progressively extreme, the discipline can reach out to detainment for a
long time rather than 7 years.
Other Section Related to Hurt and Grievous Hurt:
 Section 326B – Voluntarily throwing or attempting to throw acid.
 Section 327 – Voluntarily causing hurt to extort property, or to constrain
to an illegal act.
 Section 328 of The Indian Penal Code – Causing hurt by means of
poison, etc., with intent to commit an offence.
 Section 329 – Voluntarily causing grievous hurt to extort property, or to
constrain to an illegal act.
 Section 330 – Voluntarily causing hurt to extort confession, or to compel
restoration of the property.
 Section 331 – Voluntarily causing grievous hurt to extort confession, or
to compel restoration of the property.
 Section 332 – Voluntarily causing hurt to deter public servant from his
duty.
 Section 333 – Voluntarily causing grievous hurt to deter public servant
from his duty.
 Section 334 – Voluntarily causing hurt on provocation.
 Section 335 – Voluntarily causing grievous hurt on provocation.
 Section 336 – Act endangering life or personal safety of others.
 Section 337 – Causing hurt by act endangering life or personal safety
of others.
 Section 338 – Causing grievous hurt by act endangering life or personal
safety of others.
Q. 18. Write a short note on Kidnapping and Abduction under IPC.
Or
Differentiate between Kidnapping and Abduction under IPC.
Ans. Kidnapping: Kidnapping means taking away a person against
his/her will by force, threat or deceit. Usually, the purpose of kidnapping is to
get a ransom, or for some political or other purposes etc. Kidnapping is
classified into two categories in Section 359 of the Indian Penal Code and
defined in Section 360 and 361 of the Indian Penal Code.
As per Section 359 of the Indian Penal Code, Kidnapping is of two
types:
1. Kidnapping from India,
2. Kidnapping from lawful guardianship.
These two types are explained in Section 360 and 361.
1. Kidnapping from India: Section 360 explains kidnapping from India.
According to section 360, if any person takes a person beyond the
limits of India against the consent of that person or against the consent
of someone who is legally entitled to give consent on that person’s
behalf, then the offence of kidnapping from India is committed.
Illustration: ‘A’ is a woman living in New Delhi. ‘B takes ‘A’ to
Bangladesh without her consent. ‘B’ committed the offence of
kidnapping ‘A’ from India
2. Kidnapping from lawful guardian: Section 361 explains kidnapping
from lawful guardianship. According to this section, if a person takes
away or entices a minor (i.e, a boy under the age of 16 years and a girl
under the age of 18 years) or a person of unsound mind, away from his/
her lawful guardian without the guardian’s consent, then that person
commits the offence of kidnapping from lawful guardianship.
Illustration: ‘A’ is a boy of 13 years of age, living under the lawful
guardianship of his mother, ‘Z’. ‘B’ ‘convinces him to accompany him
to his house against the consent of his mother. According to Section
361, ‘B’ has committed the offence of Kidnapping from lawful
guardianship.
Here, the minor is ‘A’; the lawful guardian is his mother, ‘Z’ and the
person who is committing the offence is ‘B’ as he is taking A away from
‘Z’ against Z’s consent.
This section also mentions an exception. It says that it does not result
in the crime of kidnapping from lawful guardianship, if the person in good
faith, i.e, honestly with reason, believes that:
a. He is entitled to the lawful custody of the child; or
b. He is the father of an illegitimate child.
Hence, If in the above illustration, ‘B’ believes that ‘A’ is his illegitimate
son, then his act of convincing him to come to his house without his mother’s
consent would not result in kidnapping from lawful guardianship.
Essentials: -
1. Taking or Enticing: the word ‘takes’ means to cause to go, to escort or
to get into the possession; it does not imply force, actual or construction.
The word ‘entice’ involves an idea of inducement by exciting hope or
desire in the order. One does not entice another unless the latter
attempted to do a thing which he or she would not otherwise do. This
is the key difference between taking and enticing. For example,
Persuasion by the accused person which creates willingness on the art
of the minor to be taken out of the keeping of the lawful guardian would
be sufficient to attract to the provision of this section. Moreover,
duration is immaterial in this section.
In Biswanath Mallick v. State of Orissa (1995) Cr LJ 1416: Court
clarified the difference between take and entice as given in section 361
of the Indian Penal Code. The court said that the word ‘take’ means
cause to go or to escort or to get into possession. This means that in
taking, the desire of the person being taken to be taken is missing.
Illustration: If ‘A’ is taken away against her own consent, it is taking)
• Enticing, on the other hand, is the act of the accused which
induces the person kidnapped to go to the kidnapper, by his/
her own wish. It is exciting hope or desire in a person to be
taken away. Enticement is completely dependant upon the
mental state of the person when the inducement happens. It is
not confined to a single form of allurement and any act which
is enough to allure a minor girl is enough to constitute
allurement.
• The court further clarified that mental attitude is immaterial
( minor’s willingness or unwillingness) is not relevant for taking.
However, in enticement, the kidnapper convinces the minor,
through allurement, to do something he/she would otherwise
not do.
• It was also held that force or fraud is not necessary to constitute
enticement or taking away.
2. A minor or any person of unsound mind: -The person kidnapped must
be a minor i.e. a boy under the age of 16 and a girl under the age of 18
or must be a person of unsound mind. The unsoundness of mind should
be permanent and not temporary insanity produced due to alcoholic
excess or other reason. For example, where a girl aged 20 years had
been made unconscious from dhatura poisoning when she was taken
away, it was held that accused was not guilty of kidnapping because
the girl could not said to be of unsound mind .
The Allahabad High Court in Smt Suman and another. V. State of Uttar
Pradesh (2007) 6 Supreme Court Cases 785 gave a peculiar judgement.
It was held that if a minor girl, who is 17 years old and is mature enough
to understand the consequences and rationale behind her action, leaves
the guardianship of her parents to live with a boy who has in no way
subjected her to any kind of pressure, inducement etc, it cannot result
in an offence under section 361 of IPC and is not punishable.
3. Out of the keeping of lawful guardian: the word ‘Keeping’ simply
denotes that a minor is within the due care and protection of the
guardian. It is not necessary that a minor should be in the physical
possession of the guardian. It would be enough if a minor is under a
continuance control which is for the first time terminated by the act of
offender. Moreover, there is difference between legal guardian and
lawful guardian. When a father sends his son to school with, here
father is a legal guardian and servant or friend is lawful guardian for
that matter.
4. Without the consent of such guardian: -The act of taking or inciting a
minor to keep him/her out of the custody from guardian should be done
with free consent as per the section 90 of IPC. The consent of the minor
is irrelevant. The consent can be implied and need not to be express. In
addition to that, if consent is obtained after the commission of an
offence so can’t be used as a good defence. Hence, it is immaterial
In State of Haryana v. Raja Ram, AIR 1973 SC 819: On appeal to the
Supreme Court, it was held that:
• Section 361 is to protect minor children from being seduced for
improper purposes and to protect the rights and privileges of
guardians having their custody.
• The consent of a child is completely immaterial and only the
guardian’s consent is relevant to decide whether the offence
was committed or not.
• ‘Taking’ as mentioned in the Section is not only through fraud
or force but also through persuasion by the accused which
creates willingness on the part of minor to be taken away from
his/her lawful guardian.
• In this case, the respondent was held guilty under section 361
as it was the respondent’s action which persuaded the
prosecutrix from going out of her father’s keeping, against her
father’s wishes.
Punishment for Kidnapping: The provision for punishment of
kidnapping is given under section 363 which says whoever kidnaps any person
from India or from lawful guardianship, shall be punished with imprisonment
of either description for a term which may extent to seven years, or with fine or
with both..
In the case of Chadrakala Menon and another v. Vipin Menon (1993)
2 SCC 6, the exception has been laid down. In this case, the appellant
Chandrakala was married to Vipin Menon. They both were settled in the United
States and were well employed. They had a child who was sent to India to live
with her maternal grandparents. Unfortunately, differences arose between
them and they decided to get separated. While Vipin Menon filed an application
for his daughter’s custody, the child continued to live with her maternal
grandparents. One day, while the custody application was still to be decided
upon, Vipin Menon took his daughter away with him to a different state. The
grandparents lodged a complaint of kidnapping against him. However, the
court held that Vipin Menon was the natural guardian of the child.
Abduction (Meaning) - Abduction means carrying away of a person by
fraud or force. According to Section 362 of the Indian Penal Code 1860,
abduction takes place when a person by force compels or by any deceitful
means induces another person, to go from any place.
Abduction pure and simple is not an offense. It is an auxiliary act not
punishable in itself, but when it is accompanied by a certain intention to
commit another offense, it per se becomes punishable as an offense.
Examples:
1. If the intention is to cause secretly or wrongfully a person, section 364
IPC applies;
2. If the intention is that the person abducted maybe murdered or so
disposed of as to be put in danger of being murder section 364 of IPC
applies;
3. If the intention is to cause grievous hurt or to dispose of the person
abducted as to put him/her in danger of being subjected to grievous
hurt or slavery, or the unnatural lust of any person section 367 IPC
applies;
4. Section 363 of the Indian Penal Code 1860 provides punishment
for the offense of kid napping from India and from lawful
guardianship as defined in section 360 and 361 of Indian Penal
Code respectively.
Provision under IPC: Section 362 Abduction Whoever by force
compels, or by any deceitful means induces, any person to go from any place,
is said to abduct that person.
Essentials of Section 362
• Abducting by use of force or any deceitful means: The abduction
should be done by compelling or inducing a person by use of force or
deceitful means. The expression force means consent obtain by force
or use of force to commit abduction. Whereas, the expression deceitful
means includes any misleading statement. The intention of the offender
is the deciding element of the offence.
In State of West Bengal v. Mir Mohammad Omar 29 August, 2000 the
court held that there is enough evidence to show that Mahesh was
abducted. It was said that abduction takes place when a person is
compelled by force to go from a place. In this case, Mahesh was taken
away from two places, first from his friends’ place, which he escaped
and second from the neighbour’s place. In both instances, force was
used. Hence, the accused were held liable.
Illustration: ‘A’ is a man who wears the uniform of a police officer to
convince a girl, ‘B’ to come to his house with him, and because of his
misrepresentation she goes with him. In this case, ‘A’ uses deceitful
means to commit the offence of abduction.
• Taking of a person from one place to another: In order to commit the
offence of abduction the movement of the abducted person is must
and that to be with the use of force or any deceitful means. For example,
if A enters the house of a girl B and lifted her in order to take her away,
but when B raises alarm A dropped her and ran away, A will not be liable
for abduction but he will be guilty for attempt to abduct.
In the case of Vishwanath v. State of Uttar Pradesh AIR 1960 SC
67 it was held that mere abduction is no offence at all. The guilty
and wrongful intention must be present for the offence to be
punishable.
Comparison between the Kidnapping and Abduction:
Basis of Difference Kidnapping Abduction
Provision under The offence of kidnapping is The offence of abduction is
IPC defined u/s 359361 of IPC defined u/s 362 of IPC
Ag e It is committed only in It is committed in respect of any
(Minor or Major) respect of a minor i.e. in case person of any age. There is no
of boy 16 years and in case bar to any specific age of person.
of a girl 18 years, or a person
of unsound mind.
Gua rdianship The person kidnapped is Guardianship is immaterial to
removed from the lawful determine the offence of
guardianship. A child without abduction. It has reference
a guardianship can’t be exclusively to the person
kidnapped. abducted.
Means Used/ In kidnapping, the minor is The means employed in
Employed simply taken away. The abduction are force, compulsion
means used to kidnap a or deceitful methods.
child may be innocent.
C o ns e n t Consent of the person enticed Consent of the person matters i.e.
is immaterial if a person is removed with free
consent in that case offence of
abduction is said be not
committed.
Inten tio n In Kidnapping the intent of Intention is very important to
(Strict Liability) a person is immaterial i.e. determine the offence. Hence, a
he would be liable in all the person would be liable only if there
circumstances irrespective of is ill intention behind the act.
the valid motive and good
intention.
Completion of It is not a continuing offence. It is a continuing offence. The
o ff e nce The offence is completed as offence is in continuation as the
soon as the minor is removed place of the abducted person
from the custody of his or changes from one to another.
her/his guardian
Kind of offence Kidnapping from guardianship Abduction is an auxiliary act, not
is a substantive offence, punishable by itself, unless
punishable u/s 363, IPC. accompanied with some intent
specified u/s 364366. Hence, a
particular purpose is necessary to
punish an accused.
Q. 19. Write a short note on Defamation under IPC
Or
Define Defamation and briefly discuss about the provision related to
Defamation.
Ans. Defamation as the meaning of the word suggests is an injury to
the reputation of a person resulting from a statement which is false. A man’s
reputation is treated as his property and if any person poses damage to
property he is liable under the law, similarly, a person injuring the reputation of
a person is also liable under the law. Defamation is defined in section 499 of
Indian Penal Code 1860 and section 500 provides that a person committing an
offense under this section is liable with simple imprisonment for a term of 2
years or fine or with both.
Section 499 of IPC define Defamation as 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 fellings of his family or other near
relatives.
Explanation 2 It 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 lothsome
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 fall 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 it fall
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 fall 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 fall within one of the exceptions.
Essentials of Defamation:
1. The statement must be defamatory: The very first essential of the
offense of defamation is that the statement must be defamatory i.e.
which tends to lower the reputation of the plaintiff. The test to check if
a particular statement is defamatory or not will depend upon how the
right thinking members of society are likely to take it. Further, a person
cannot take a defense that the statement was not intended to be
defamatory, although it caused a feeling of hatred, contempt or dislike.
In the Case of Ram Jethmalani v. Subramanian Swamy AIR 2006
Delhi 300 court held Dr. Swamy to be liable for defaming Mr. Jethmalani
by saying that he received money from a banned organization to protect
the then CM of Tamil Nadu in the case of the assassination of Rajiv
Gandhi. In another recent case of Arun Jaitley v Arvind Kejriwal, (227
(2016) DLT 573), the court held the statement said by Arvind Kejriwal
and his 5 other leaders to be defamatory. However, the matter was
finally disclosed after all the defendants apologized for their actions.
Illustration: A publishes an advertisement in a local newspaper stating
false information that the company of B has committed fraud of Rs
20,00,000. Now, this statement will amount to defamation as this
newspaper will be read by many readers and will surely injure the
reputation of B’s company.
However, it is to be noted that mere hasty expression spoken in anger,
or vulgar abuse to which no hearer would attribute any set purpose to
injure the character would not amount to defaming a person
Illustration : If A an employer scolds his employee B for not coming on
time in front of the whole staff, then B cannot take the plea that A has
injured the reputation of B.
2. The statement must refer to the plaintiff: In an action for defamation,
the plaintiff has to prove that the statement of which he complains
referred to him, it will be immaterial that the defendant did not intend to
defame the plaintiff. If the person to whom the statement was published
could reasonably infer that the statement referred to him, the defendant
will then be liable
Illustration- If A, a bank publishes a notice to all its branches to not
give the loan to any person from xyz as the people of xyz are more often
repeated defaulters. Now due to this B, a resident of xyz has suffered a
huge loss. Now B can hold A liable for defaming him although the bank
did not directly focus on him.
In the case of T.V., Ramasubha Iyer v. A.M.A Mohindeen AIR 1972
Mad 398 Court held the defendants liable for publishing a statement
without any intention to defame the defendants. The statement
mentioned that a particular person carrying business of Agarbathis to
Ceylon has been arrested for the offense of smuggling. The plaintiff
was also one of the person carrying on a similar business, and as a
result of this statement his reputation also severely damaged.
3. The statement must be published: Publication of defamatory statement
to some person other than the person defamed is a most important
aspect for making any person liable, and unless that is done, no action
for defamation will lie.
However, if a third person wrongfully reads a letter meant for the plaintiff,
then the defendant likely to be liable. But if the defamatory letter sent
to the plaintiff is likely to be read by somebody else, there will be a valid
publication.
In the case of Mahendra Ram v. Harnandan prasad AIR 1958 Pat
445 the defendant was held liable for sending a defamatory letter to
plaintiff written in Urdu knowing that the plaintiff did not knew Urdu
and the letter will very likely be read over by another person.
The Exceptions of the Defamation under IPC are:
1. 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.
2. Public conduct of public servants: It is not defamation to express in
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 as his character appears in that conduct, and no further.
3. 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 resepting 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.
4. Publication of reports of proceedings of courts: It is not defamation to
publish 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.
5. 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, or 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 farther.
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 express of
Z’s character, is an opinion not founded on Z’s conduct as a
witness.
6. Merits of public performance: It is not defamation to express in good
faith any 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.
Explanation.—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—”Zs 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 this 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.
e. 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
this exception, inasmuch as the opinion which he expresses of
Z’s character is an opinion not founded on Z’s book.
7. 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.
Illustrations: A Judge censuring in good faith the conduct of a witness,
or of an officer of the Court; a head of a department censuring in good
faith those who are under his orders, a parent censuring in good faith a
child in the presence of other children; a schoolmaster, 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.
8. 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 subjectmatter 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 fatherA is
within this exception.
9. 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 interests of the person making it, or of any other
person, or for the public good.
Illustrations:
a. 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.
b. 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.
10. 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.
Defamation of the Dead: In case, a person defames another person
who has passed away or is already dead, by any means that is written,
spoken, by gestures or pictures. Then, it will be an act of defamation, this
act would have harmed the reputation of the person if he would have been
still alive, or in case it harms the reputation of the family or close relatives of
the deceased.
Defamation of a Company or a Collection of Persons: If an act is intended
to cause harm to a company or association or a group of people, then it will
amount to defamation. This means under it companies or associations can
slap a defamation suit against an individual.
Defamation by Innuendo: Innuendo is a clever way to speak negative
sentences in a very sarcastic way, which may appear to be positive at the
surface of it. Under Section 499, defaming of any person by innuendo is a form
of criminal defamation.
Illustration:
• A says to B, pointing out to C, ‘C is a very evenhanded person, I have
not seen him making any discrimination against G. This is discrimination
as A intended to point at C has a discriminatory person and that he has
discriminated in the case of G.
• B asks A,’ do you think someone discriminated? A in return pointed at
C and said, ‘well you know, who can’. This is discrimination has it was
said in a sarcastic way while pointing at C.
Punishment for defamation under Section 500 of IPC: Whoever
defames another shall be punished with simple imprisonment for a term which
may extend to two years, or with fine, or with both.
Q. 20. What is Mischief and discuss the provision related to Mischief
under IPC?
Ans. Mischief is mentioned under Section 425 of IPC & the punishment
is prescribed under Section 426 of IPC. Further Section 427 to 440 lays down
the specific punishment prescribed for aggravated forms of mischief depending
upon the nature & the value of the property damage.
As per the Section 425 of the Indian Penal Code,1860 (hereinafter
referred to as IPC) that whenever anyone performs an act either having an
intention to cause or is aware that his act is likely to bring, some destruction
or damage to any property, destroying or diminishing its value and utility,
hence, resulting in an undue loss or damage to the public or any person is said
to commit mischief.
In simpler terms, it can be understood as when an individual intends to
perform an act or has the knowledge that his/her act will create hindrance in
allowing another person to enjoy the benefit of their property by one means
or other, it is called a mischief. However, this act can be even against the
public or against a specific person as well.
Illustrations:
1. “A” intentionally sets X’s home on fire causing him wrongful loss or
injury.
2. “A” a doctor deliberately prescribed wrong medicine to “B’s” cattle
with an intent to cause wrongful loss or injury.
3. “C” diverts the flow of canal in such a way to prevent “B” from irrigating
his field causing him loss by damage of crops.
4. “B” tears off some important businessrelated documents of A to cause
him financial loss.
5. “A” deliberately burns off the standing crop that was jointly cultivated
by “A” and “B”.
6. “B” intentionally damages a “signboard” installed by the order of
municipality causing wrongful losses & injury.
Ingredients of Mischief: Essentially there are three key elements to
establish Mischief as per the definition laid down in section 425 of IPC which
are as follows:
• Intention or the knowledge of the act (mens rea);
• The act resulting in destruction, damage or change in the property or
situation thereof; and (actus rea)
• The change must lead to diminishing the value or utility.
1. Intention or the knowledge of the act may result in wrongful loss or
damage (mens rea): One of the most essential elements of all offences
under IPC is that any crime is composed of two parts Mens Rea &
Actus rea. Similarly, “Mens rea” is required to be present in order to
establish the offence of Mischief.
The definition of the law of mischief makes it very clear that the only
way to prove the act of mischief does not essentially mean that it has to
be proved that the accused essentially had any deliberate intention to
cause unjustified damage to the property. But rather what can also
serve as sufficient proof is the fact that the individual had the knowledge
that such action of his/her can result in damage or degradation of the
property, causing wrongful loss or damage.
This can also be understood with a reallife example that if some children
while playing street cricket breakup a glass window, it will not amount
to mischief but will rather constitute negligence. But if those children
deliberately throw the ball to aim at the window resulting in breaking
up the glass and causing loss to the owner, then it will amount to
mischief.
Similar was the judgement pronounced in the case of Nagendranath
Roy v. Dr. Bijoy Kumar Dasburma 1992 CriLJ 1871 where the court
observed that mere negligence does not constitute mischief. However
in certain situations when facts indicate that intention to cause wrongful
loss was present along with the negligence causing damage will amount
to mischief.
In the case of Krishna Gopal Singh And Ors. v. the State Of U.PAIR
2000 SC 3616, it was stipulated that if the accused has committed an
act without any intent or knowledge that the act in question is likely to
cause wrongful loss or damage to any person or the public at large, it
will not fall under the ambit of mischief as the element of “Mens rea” is
absent. Similarly, if an act is committed without free consent i.e.under
some pressure or duress it will also not amount to mischief.
In Arjun Singh v. The State (AIR 1958 Raj 347) it has been observed
by this Court:”In order to establish the offence of mischief, it is essential
for the prosecution to establish that the accused must have an intention
or knowledge of likelihood to cause wrongful loss or damage to the
public or any person.”
2. Wrongful loss or damage (actus rea) by diminishing the value and
utility: The second important requirement is that the act must have
resulted in some wrongful loss or damage to the owner of the property
depriving him of enjoying the same. The act must have caused some
damage, injury or destruction to the property to the effect of diminishing
its value or utility. This will constitute the “actus reus” of the offence.
Similarly, even a change in the property can also amount to property.
For example, altering someone’s research notes. It is also very important that
the damage must be the direct consequence of the alleged act and must not be
based on some hypothetical or imaginary relation.
In Arjuna vs. State (AIR 1969 Ori 200) case, the court found the
accused guilty for damaging the standing crops grown by the complainant on
the land belonging to the Government as it caused wrongful loss to the
government by diminishing its value.
In the case of Gopi Naik vs. Somnath (1977 CrLJ 1665 Goa), the
respondent alleged that the accused had cut their water pipe connection
causing them wrongful loss & damage. Upon investigation, the Court found
the accused guilty of the offence of Mischief as this act has resulted in
diminishing the value of the property, i.e., water supply.
One very important case in this regard is the case of Sippattar
Singh vs. Krishna (AIR 1957 All 405) case, where the court separated the
offence of theft from mischief. In this specific case, the respondent was
guilty of cutting the sugar cane from the field of the petitioner and taking
it away.
The Court found the respondent not to be guilty of the offence of
mischief, but he was held guilty of theft, because of two important reasons:
First that the respondent had not caused any damage to the remaining field of
the sugar cane, & second because the respondent had physically moved
certain quantity of sugarcane coupled with dishonest intention to
misappropriate it.
In another case of Shriram vs. Thakurdas 1978 CriLJ 715 case, the
complainant alleged that the accused, an officer of Municipal Corporation,
demolished his house thus was guilty of the offence of mischief causing him
wrongful loss and damage. But upon investigation, it was found that it was an
unauthorised construction and the accused took the action only after serving
due notices.
The Bombay High Court held that the officer acted in the due course of
his duties by demolishing the unauthorized construction as per law, thus this
act of his attracts no offence under section 425 of IPC.
In the case of Punjaji Chandrabhan v. Maroti, (2014) 1 SCC 602
the Court ruled that no mischief was committed under Section 425 of IPC
when in a particular case ‘easement right’ to carry water to the field of the
complainant through the drain running through the land of the accused.
The court observed that the field being a tangible property was not capable
of being destroyed thus no wrongful loss or harm was incurred. Hence the
accused, the landowner.
Punishment for Mischief: The punishment for Mischief is prescribed
under Section 426 which states that it attracts imprisonment of a term which
may extend up to three months, or with fine, or with both, as the court may
deem fit.
Nature of offence: The offence under this Section is noncognizable,
bailable, compoundable, and triable by any Magistrate.
Q. 21. What do you mean by giving False Evidence and Fabricating
False Evidence. Differenciate between the False Evidence and Fabricating
False Evidence?
Ans. Evidence is information which is used in the court to prove
something which exists or true. Giving false evidence and fabricating false
evidence is an offence under Indian penal Code, 1860. The provisions of
False Evidence and Fabricating False Evidence are specifically mentioned in
Section 191 and section 192 respectively of the IPC under Chapter XI.
To fabricate means to make up for the purpose of deception whereas
giving false evidence is something the person has given false statement to
divert the verdict of the case.
Definitions:
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 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.
Fabricating false evidence: Whoever cause any circumstances 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 circumstance, false entry or false statement, may appear in evidence
in a judicial proceeding, or in 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.”
Object of Chapter XI of IPC:
• To punish those who have given and fabricated false evidence
• To prevent fraud and falsehood
• To ensure the criminals get punishment
• To give justice to the innocent
Important Provisions of False Evidence and Fabricating of Evidence:
False Evidence:
Section 191 of the Indian Penal Code explains that giving false
evidence means a person bound by oath or express provision of law, to tell
the truth, makes a false statement or a statement that he doesn’t believe to
be true or believes to be false. False statement or evidence given by a
person can be in written form or otherwise (oral or indicative). Section 191 is
also known as Perjury under English Perjury Act 1911. For example, a matter
concerning the handwriting of Z for which Z’s son is called to test the
handwriting that whether it is of his father or not. Even after knowing it is
not the handwriting of Z he states the opposite in court stating that it is the
handwriting of Z. It is a typical offence called perjury. Taking up the same
scenario of Z’s handwriting, where his son is called to testify his handwriting
but this time his son is not confident and states that although I am not
confident that it was not the handwriting of Z; in this situation, his son
cannot be held liable under Section 193 of Indian Penal Code because his
intention is not to lie. A copy of the sales deed shown in the court which is
edited or fabricated is known as false evidence. Perjury is all about giving
false evidence. Lets us take a classic example in which X is bound under
oath that he will speak only the truth in respect to a case in which Y is
suspect for the charge of murder that took place in Delhi. Now X says that Y
was with me in Shimla on 20th May 2019 (the date when the murder was
committed). But X lies and gives false evidence. It is a clear example of
perjury.
Essential Ingredients of False Evidence False evidence made by a
person who is:
1. Bound by oath, or
2. By an express provision of law, or
3. A declaration which a person is bound by law to make on any subject,
and
4. Which statement or declaration is false and which he either knows or
believes to be false or does not believe to be true.
Three essential prerequisite conditions for the application of Section 191:
1. A legal obligation to state the truth,
2. Making of a false statement or declaration, and
3. Belief in its falsity.
Fabricating False Evidence
Section 192 of the Indian Penal Code defines fabricating false evidence.
Whoever causes any circumstances 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 to form is to form an
opinion upon an evidence, to entertain an erroneous proceeding touching
any point material to the result of such proceeding is said to fabricate false
evidence.
Essentials of fabricating false evidence:
1. Cause any circumstances to exist; or
2. Makes any false entry in any book or record etc containing a false
statement ;
3. Intending that such circumstances, false entry or false statement may
appear in evidence in a:
a. Judicial proceeding, or
b. In a proceeding taken by law before a public servant,
c. Before an arbitrator; and
d. Helps form an opinion upon the evidence, to entertain an
erroneous opinion;
e. Touching any point material to the result of such proceeding.
These essentials can be easily understood by a given example. There is
a shopkeeper ‘X’ whose shop is in Lucknow and he pretends that his shop
was open on 20th May 2019 although his shop was closed. He shows in his
book entry that his shop was open. However, on that day ‘X’ went to Delhi
and committed the crime of extortion. When Police investigates about it he
shows his book entry as evidence. This would qualify as fabricating false
evidence.
Punishment:
Section 193: Punishment for false evidence or fabricates false
evidence:
Any person intentionally gives false evidence or fabricates false
evidence for being sued in the judicial proceeding then the punishment will be
imprisonment which may extend to 7 years and Fine
Any person either gives false evidence or fabricates false evidence in
all other cases, then the punishment will be Imprisonment which may extend
to 3 years and Fine
This offence in non cognizable, bailable, noncompoundable and triable
by the Magistrate of first class.
Section 194: Giving or fabricating false evidence with intention to
procure conviction: Any person gives or fabricates false evidence with an
intention and reason to believe that it may cause person to be convicted for
capital punishment, the he shall be punishedRigorous imprisonment which
may extend to ten years and Fine
This section provides for more severe punishment if an innocent person
is convicted and executed in consequences of such false evidence.
Section 195: giving or fabricating false evidence with an intention/
knowledge for an offence punishable with imprisonment for seven years or
more or life imprisonment. He will be punished as a person convicted of that
offence would be liable to be punished. For example, Person X who is
accused of dacoity and a person A gives false evidence due to which X is
convicted of dacoity. The punishment of dacoity is life imprisonment or
rigorous imprisonment of ten years and now if it has been proved that A has
given false evidence or fabricated false evidence so he (accused of Section
195) would also get the same punishment that a person who is convicted of
dacoity.
Section 195A of Indian Penal Code is added by Amendment Act, 2006.
The act must amount to threatening another with an injury to his person,
reputation or property or to the person or reputation of anyone in whom that
person is interested (eg. family, friends). The intention of the accused person
should be to give false evidence. Punishment is imprisonment of either
description for a term which may extend to seven years, or with fine, or with
both.
In the case of Santokh Singh vs Izhar Hussain (1973 (2) SCC 406) it
was held that test identification of parade is mainly used in rape cases to
identify the accused by the victim and if the victim had lied and given a false
statement that he was the accused then it is an offence under Section 192 and
Section 195.
In Abdul Majid v. Krishna Lal Nag (1893) ILR 20 Cal 724 case, it
was held by the court that the false evidence must be given in a proceeding in
which the accused was bound by law to speak the truth. If the court has no
authority to administer an oath the proceeding will be coram nonjudice and
prosecution for false evidence cannot stand. Similar will be the case where a
court is acting beyond the jurisdiction.
In Gobind Chandra Seal AIR 1966 Ori 18, It was held by the court
that 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. The offence may be committed although the person
giving evidence has neither been sworn nor affirmed.
In Baban Singh v. Jagdish Singh 1967 AIR 68, 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.
The distinction between giving false evidence and fabricating false
evidence as dealt with under respective Section 191 and 192 of IPC are as
follows:
No Giving False Information Giving false Evidence
1 False information may be given to Giving false Evidence can only be made
anybody. in (court of Law) a suit or proceeding,
judicial or non judicial. It is a part of
suit and proceedings.
2 False information may or may not False Evidence Must be given on oath
be given on oath. before a Court of Law
3 Giving False information, the person In the case of giving false Evidence, the
to whom the statement is made need person to whom the information is given
not be a public servant, and the is a public servant and such information
statement need not be made with any is given with intend to cause such public
particular intent. servant to use lawful power to the injury
of another person.
4 In the case of false giving information In the case of false Evidence, the accused
the accused is not legally bound to is legally bound to state the truth.
give the information.
In the both the cases intentional giving of false evidence or intentional
fabrication that is made punishable (section 193, IPC). Mens rea is the essence
of both offenses. But in the case of giving false evidence, the only general
intention is sufficient, whereas, in fabrication, the particular intention is
essential.
Section 192 differs from section 191 in that the fabrication must
be on a point material to the proceeding, whereas in giving false
statements, it need not be made on a material point. The offense is
complete when a false statement is made, though it may not have been in
relation to a material point. In such cases, the law demands that whatever
a person states shall be true. In case of fabrication, which is usually
done in secret, behind the court, the law will not interfere unless the
doing causes injury to another being on a matter material. In fact, but for
the safeguards provided for in section 192, IPC, a person charged under
that section may incur the penalty, though his actions may have caused
no injury to any person.
The effect of false evidence under section 192 must be such as to lead
the court or officer concerned to form an erroneous opinion touching any
material object, but the effect on the officer is immaterial to fix liability under s
191, IPC.
Under Section 191, false evidence is given by a person who is bound
by an oath, whereas no such condition is found in section 192.
Under section 191, there must be a proceeding, judicial or nonjudicial,
pending or in existence at the time when the offense is committed. Under Sec
192, it is enough that there is a reasonable prospect of such a proceeding,
having regard to the circumstances of the case and that the evidence fabricated
is intended to be used in such a proceeding.
Q. 22. Write a short note on Cheating under IPC?
Ans. Cheating is defined under Section 415 of the Indian Penal Code
as whoever fraudulently or dishonestly deceives a person in order to induce
that person to deliver a property to any person or to consent to retain any
property. If a person intentionally induces a person to do or omit to do any act
which he would not have done if he was not deceived to do so and the act has
caused harm to that person in body, mind, reputation or property, then the
person who fraudulently, dishonestly or intentionally induced the other person
is said to cheat. Any dishonest concealment of facts which can deceive a
person to do an act which he would not have done otherwise is also cheating
within the meaning of this section
Explanation: A dishonest concealment of facts is a deception within
the meaning of this section.
Illustrations:
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.
c. A, by exhibiting to Z a false sample of an article, intentionally deceives
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 in 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
dishonored, 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 article 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 deceives 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 sale and
conveyance to B, and receives the purchase or mortgage money from
Z. A cheats.
Essential Ingredients of Cheating: The Section requires:
• Deception of any person.
• fraudulently or dishonestly inducing that person to deliver any property
to any person or to consent that any person shall retain any property;
or
• intentionally inducing a person to do or omit to do anything which he
would not do or omit if he were not so deceived, and the act or omission
causes or is likely to cause damage or harm to that person in body,
mind, reputation or property.
Important Ingredients of Deception and Inducement:
 Deception: One of the important ingredients which constitute the offence
of cheating is deception. Deception can be done to induce the other
person to either deliver or retain the property or to commit an act or
omission. Deceiving means to make a person believe what is false to be
true or to make a person disbelieve what is true to be false by using
words or by conduct. In the case of K R Kumaran vs State of Kerala,
1961 CriLJ 98 a person who was admitted in the hospital was checked
by the doctor and the doctor knew that the person was in a condition
that he won’t be able to survive. The doctor conspired with other
accused to issue a life insurance policy for the person was going to die
and in order to do so, he certified to be fit and healthy. This was done
by accused in order to get the amount from the insurance company
after the patient dies. The court held the accused liable for the offence
of cheating and deceiving the insurance company in order to earn
benefits. The accused was held guilty of cheating under IPC.
 Wilful Representation and Cheating: In deception, a fraudulent
representation or willful misrepresentation of a fact is made directly or
indirectly with an intent to commit the offence of cheating. In order to
prove the offence, it is not only important to prove that a false
representation was made by the accused but also that the accused had
the knowledge that the representation was false and wilfully made it in
order to deceive the prosecutor. If the accused knowingly makes a
representation which is false then the accused can be held liable for the
offence of cheating under IPC.
 Cheating and Misappropriation: Cheating and misappropriation are
closely related. In cheating, the act of misrepresentation starts from the
beginning of the act, whereas, in case of misappropriation it is not
important that the offence of cheating will start from the beginning.
The accused may obtain a property in good faith and then further
misappropriate it in order to sell it for an advantage. It may be done
against the will or without the consent of the owner. It is seen that
misappropriation is generally done by a person who is a relative, friend
or a known person. The offence of misappropriation is defined under
Section 403 of the IPC. It deals only with immovable properties and
not with body, mind, reputation, or immovable property.
 Deception and Cheating in Connection with False Promise of
Marriage: In the case of Deception and cheating with a false promise
of marriage, there can be no action for a breach of a promise under IPC
unless there is a contract made by parties to marry each other. There
are no specific requirements regarding the formation of the contract. It
need not necessarily be in writing and there isn’t a particular set of
words which needs to be used for the contract of marriage. A promise
by one person to marry another will not be a binding promise unless
and until that other person also reciprocates and promises to marry the
first person. Mutual promises to marry between two parties may be
implied from the conduct of the parties. A declaration of intention to
marry another person made to a third person will not constitute a proper
promise and an offer to marry unless his proposal is communicated to
that person whom he intends to marry. It is not necessary that the
mutual promises between the parties to be concurrent, it should be
made within a reasonable time after the offer is made by a party to
another. An action for breach of promise to marry may be taken under
deception and cheating.
 Inducement: When one person uses deceitful practices to convince
the other person to agree on anything which is harmful to that person,
it is known as Inducement. It generally occurs when two parties enter
into a contract and a party uses fraudulent inducement to gain advantage
on the other party. The fraudulent inducement can be done when a
person persuades another by giving false information about a thing to
be beneficial for that person but in reality, it is not. Fraudulent
inducement differs from fraud as inducement needs a person to
convince the other person for the object which he wants to achieve
and the latter needs the person to commit a deceitful conduct by himself
for the object which he wants to achieve.
 Effect of Absence of Dishonest Inducement: The offence of cheating
does not necessarily need the person who is being deceived is induced
to do any act which could cause harm to him. In case there is an absence
of dishonest inducement, it is enough to constitute the offence of
cheating that the person deceived is induced to an act which is likely to
cause harm to him.
Punishment for Cheating:
Cheating and Dishonestly Inducing Delivery of Property : According
Sec 420 of IPC when a person cheats and thereby dishonestly induces the
other person who is deceived to deliver any property to any other person or
makes, alters or destroys 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 term which may extend to seven years, and shall also be
liable to fine. Sec 420 of IPC is an aggravated form of cheating.
Simple cheating is punishable under Section 417 of IPC. Section 417
of IPC states that whoever is held liable for the offence of cheating shall be
punished with imprisonment for a term which may extend to one year or with
fine, or with both fine and imprisonment.
In case where there is delivery or destruction of any property or
alteration or destruction of any valuable security from the act of the person
who is deceiving, the offence is punishable under Section 420 of the IPC.
Under Section 420 of IPC, it is necessary to prove that the complainant
was acting on a representation which was a false representation and the
accused had a dishonest intention for it.
In the case of Ishwarlal Girdharilal vs the State of Maharashtra 1969
Cri LJ 271 it was observed by the Court that the word ‘property’ mentioned
under Section 420 of IPC does not necessarily include only those properties
which have money or market value. It also includes those properties which do
not have a monetary value. In case a property does not have a monetary value
for the person who is in possession of it but after being cheated by another
person it becomes a property of some monetary value for the person who gets
possession of it by cheating then it can be considered as an offence of cheating
under Section 420 of the IPC and the property will be considered as a property
under Section 420 of the IPC.
In the case of Abhayanand Mishra v. State of Bihar 1961 AIR 1698
the appellant was a candidate who applied for M.A. examination to Patna
University for permission to appear in the M.A. examination in English as a
private candidate. He represented himself to be a graduate who has already
obtained his B.A. degree and wants to pursue his M.A. degree from the
University. Later, just before the commencement of his entrance examination,
it was discovered that the certificates presented by the candidate for his M.A.
entrance was forged and he did not actually obtain his B.A. degree. The court
held the candidate guilty of making a false statement about him being a graduate
as he did not obtain his B.A degree. He made an application and deceived the
University and hence, was guilty of attempting to cheat under Section 420 of
IPC as read with Section 511 of the IPC.
Cheating by Personation: Under Section 416 of IPC, cheating by
personation is explained as if a person cheats on someone by pretending to
be a particular person, or if a person knowingly substitutes a particular
person for another, or represents a person to be some other person then he
is said to cheat by personation. The person substituting a person for another
should have knowledge that such other person is a different person from
the person he is representing. The offence of cheating by personation is
committed when the person who is personated is a real person and not an
imaginary person.
In the case of Sushil Kumar Datta vs State 1985 CriLJ 1948 the
accused personated himself as a scheduled caste candidate and appeared for
the examination of Indian Administrative Service. He was appointed in that
cadre because of his false representation of being a scheduled caste. It was
held by the court that he was guilty of the offence of cheating by personation
under Section 416 of IPC as he did not belong to scheduled caste and falsely
represented himself as scheduled caste and hence, his conviction for cheating
was held to be justified under the said section.
Cheating Out of Fiduciary Relation: A fiduciary relationship is any
relationship which exists between two parties where they share utmost good
faith and confidence for a transaction. Section 418 of IPC applies to the cases
of cheating wherein there was a fiduciary relationship between the parties.
Cheating out of the fiduciary relationship can be done by guardians, trustees,
agents, solicitors, manager of a Hindu Family, managers or directors of a
company or a bank in fraud to the shareholders etc. Section 418 of IPC deals
with the cases in which trust exists between the parties and there is an abuse
of the trust by cheating. Section 418 punishes those parties in the case of
cheating who owed a special responsibility towards the other party. The
parties are punished for misusing and breaching the trust which existed between
them.
It is the liability of parties who are in a fiduciary relationship to protect
the interest of the parties and not to misuse the trust which exists between
them. It is the responsibility of the party to protect the interest of the other
party and if he fails to protect it and breaches the trust by cheating, he can be
held liable for the offence of cheating under Section 418 of the IPC. The
person who makes a statement in a fiduciary relationship knowing that it is a
false statement with dishonest intention then the person will be liable for the
offence of cheating.
Intention plays an important part in the offence if there isn’t an
intention to cheat then it cannot be established as an offence under cheating.
The offence is a noncognizable offence and is bailable and triable by a
Magistrate.
In the case of S. Shankarmani v. Nibar Ranjan Parida 1991 CriLJ
65 a lawsuit was filed for cheating by a landlord against the bank. The bank
wanted to take the landlord’s house on hire and for that, the landlord
furnished his house. He incurred a huge expense in furnishing the house
but the bank because of some reasons which were under its control could
not take the house on rent. The bank did not intend to cheat or deceive the
landlord. It was held by the court that the bank was not liable for cheating
under Section 418 as the intention which plays an important part in the
offence was not present.
Q. 23. Write a short note on Forgery defined under 463 of IPC.
Ans. According to Section 3 of the Indian Evidence Act,1872 defines
document as, “Document” means 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, for the purpose of
recording that matter.”
Forgery is defined under Section 463 of Indian Penal Code, Whosoever
makes any fake document or incorrect electronic record or part of a document
with an intention 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 share with property, or
to enter into any express or implied contract, or with purpose to commit fraud
or that fraud may be accomplished, commits forgery.
Forgery hence can be described as a means to achieve an end the end
is an instance of action or scheme fabricated to mislead someone into believing
a lie or inaccuracy.
Concept of false Document: According to Section 463 of IPC, A person
is declared to make a false document when;
Firstly- who dishonestly or fraudulently makes sign, seal or performs
a document or part of a document makes any mark indicating the execution of
a document, with the intention of causing it to be believed that such document
or part of a document was made signed sealed or executed by the authority of
a person by whom authority was not made, signed at a time at which he knows
that it was not made sealed or executed; or
Secondly- who without legal authority dishonestly or fraudulently by
withdrawing or contrarily reconstructs a document in any material part thereof
after it has been made himself or by any person whether such person be alive
or dead at the time of such alteration; or
Thirdly- whoever dishonestly or fraudulently causes any person to
seal, sign, execute or reconstruct a document knowing that such person by
reason of unsoundness of mind or intoxication cannot by reason of deceit
practised upon him, he does not know the content of the document 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, affixes 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 purchasemoney. 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 payment. 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 contains the 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 order by writing on the bill the words “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 his estate, executes a conveyance of the same estate to B, dated six
months earlier than the date of the 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 in as much 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.
Explanations:
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 word “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 had
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 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 of Z at a nominal rent and 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 in 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 lifetime, 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
2 [electronic signature]” shall have the meaning assigned to it in clause (d) of
subsection (1) of section 2 of the Information Technology Act, 2000.
The basic elements of forgery include:
 Forgery requires Deception: In most of the jurisdiction, the crime of
forgery is not imposed unless it is done with the intent to commit fraud
larceny. For example, the work of art can be replicated or copied without
any crime being committed unless someone attempted to sell or
represent the original copies. In such cases, the act would be considered
an illegal forgery.
 Creation of fake document: Forgery also includes the creation of
fraudulent or fake documents. For instance, it can involve photocopying
of the person’s signature and then artificially placing it on a document
without their knowledge or consent. Moreover, on the grand scale
forgery occurs in the field of art and literature.
 Forgery as Identity Theft: Identity theft is a crime wherein the defendant
unjustly acquires and uses another’s person personal data in some
way that involves fraud or deception typically for budgetary gain.
Initially, states have treated identity theft as deceptive imitation forgery
or as theft by deception.
 The intention of the forger: Section 468 pertains only to the cases
where forgery is for the purpose of cheating. Forgery has been explained
before as concerning the presence of one or other of the two elements
of dishonesty or fraud.
Burden of Proof: the prosecution has to prove that the:
• Accused committed forgery.
• That he did so with an intention that the document forged shall
be used for the purpose of cheating.
Section 464 states how the forgery of the documents occurs. Under
section 464 IPC. It makes it explicit that only the one who makes a false
document can be held liable under the aforesaid provision. It must be made
clear in mind that, where there exists no doubtfulness, there lies no scope for
understanding. As referred in the case Sheila Sebastian vs R.Jawaharaj
(2018) 7 SCC 581 where Making an invalid documentA person is said to
make a fake or invalid document or false electronic record First. Who
fraudulently or dishonestly constitutes;
• makes, signs, ties or administers a document or part of a document;
• makes or communicates any electronic record or part of any electronic
record;
• affixes any (electronic stamp) on any electronic report;
• makes any image indicating the execution of a document or the
authenticity of the electronic signature;
with the intention of making it to be believed that such document or
portion of document, electronic record or electronic signature was made, signed,
sealed, accomplished, transmitted or affixed by or by the authorization of a
person by whom or by whose authority he knows that it was not made, signed,
sealed, executed or affixed.
Punishment for Forgery:
Section 465 of the Indian Penal Code describes Punishment for forgery.
According to this section, Whoever commits forgery shall be punished with
imprisonment of jail term either description for a span which may extend to
two years or with the penalty, or with both. Under IPC it is a noncognizable
offence. If the forgery is of a promissory note of the Central Government then
it is Cognizable.
In the cas e of Ra m Na rain Po ply v. Cent ral Bu reau of
Investigation, AIR 2003 SC 2748 the court stated that the term forgery as
used in the statute is used in its ordinary and popular acceptance. In order
to constitute forgery, the first essential is that the accused should have
made a false document. The false document must be made with an intention
to cause harm or injury to the public or to any class of society or to any
community.
In State of Orissa v Rabindra Nath Sahu (2002) CrLJ 2327 (Ori), 93
(2002) CLT 571 it was held that the section does not require that the accused
should commit the offence of cheating, what is material for the section is
committing forgery with the intent to use the forged document for the purpose
of cheating. However, if the accused has used the forged document for the
purpose of cheating, he becomes liable to Section 468 as well as for committing
the offence of cheating.
In Nand Kumar Singh v State of Bihar AIR 1992SC 1939 case the
accused was acquitted because there was no evidence that it was with his
knowledge and content that the coaccused had forged the documents which
reacted to obtaining of LIC policies. The only evidence was that premium
amounts were credited to his account, which by itself was not sufficient to
prove his guilt.
In Anisette Lobo v. State AIR 1994 SC 1613, case A1 was a bank
employee, who took a blank draft on which A5 had forged the signature of
their agent A3, opened a new account in the name of a factious person and
enchased the cheques. In such a context, the accused were held to be rightly
convicted for offences Under section 467,468 and 120B, IPC.
Q. 24. Define Rape under Section 375 of IPC and does it include
Marital Rape?
Ans. Rape has been defined under Section 375 of the IPC (Indian Penal
Code, 1860), which states that rape is said to have been committed when a
man has sexual intercourse with a woman:
1. Against her will;
2. Without her express consent;
3. By obtaining her consent by force, or threatening to kill or hurt her or
someone she cares about;
4. By making her believe that the man has been lawfully married to her;
5. By obtaining her consent during unsoundness of her mind, when she
was intoxicated, or by providing any other substances that might affect
her decisionmaking ability;
6. With or without her consent if she is under 16 years old, and 14 years
old in case of Manipur.
This clause also states that mere penetration is sufficient to constitute
sexual intercourse, which can be treated as rape.
Against her will- Sexual intercourse is rape if it is done against will of
woman. Against will means copulation despite oppose of woman. Illustration
Accused did sexual intercourse with woman four times and the front part of
breast became red but he did not resist. It was not held rape. (Jagannath V/s.
State of Rajasthan Criminal Laws Re 1979, Rajasthan 228) But sometime
woman does not oppose sexual intercourse but she does not have desire for
it. Then it is considered rape. IllustrationA doctor does sexual intercourse
with a girl child of 14 years taking her in the belief it is done under treatement.
The girl child does not oppose. The’ doctor was held guilty of rape. [William
(1850) 4 Locts 220].
In Mohan Lal V/s. State of Rajasthan A.I.R. 2003 S.C. 696 is a good
case. In this case, prosecutrix was a married woman. Accused was blamed for
rape. Medical examination was done to the prosecutrix and no signs of hurt
were found. The prosecutrix did not state that she was taken into the room
forcefully and sexual intercourse was done with her, but she did not shout
despite it she hided the accused in the It was held that sexual intercourse was
not done against her will.
Without ConsentConsent is very important in the cases of rape. In
Pootan V/s. State of U.P. (1972 Cr. Laws J. 270), it was said that sexual
intercourse becomes rape without consent.
But consent must be free. Consent is considered free in section 375
part 3 to 6 of I.P.C. These consents are-
a. Which is acquired by the fear of death.
b. Which was given as understanding husband but he was not husband
actually.
c. Which was given as not understanding nature and result of work due
to unsoundness of mind.
d. Which was given by woman below 16 years. In Rao Harnarayan (A.LR.
1958 Punjab 123), it was said that consent must be free for the defence
from rape and such consent must be acquired before sexual intercourse.
In Lalta Prasad V/s. State of M.P. it was decided that if sexual
intercourse is done with the free consent of woman, then it is not rape.
In Ravi Narain Das V/s. State of Orissa (1992, Criminal Laws 269
Orissa), accused raped a blind helpless girl. No signs of hurt were found on
her body but the accused was held guilty of rape because the blind girl was
not in the condition to oppose.
In Palaram V. State of Rajasthan, accused raped a married woman and
signs of injury were found on her body and the consent of the woman was not
found.
In Camplin [(1845)1 Cocks 220], a woman was made unconscious by
drinking her wine. It was held rape because there was absence of consent.
Explanation: Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape.
Penetration is held compulsory for constitution of the offence of
rape. In section 375, it is clearly said that penetration is compulsory for rape.
Such penetration may be little. It is not necessary that penetration must be
so much that caused emission of semen. (Buddhan Lal V/s. State] In Aman
Kumar V/s. State of Haryana (A.LR. 2004 S.C. 1497), Supreme Court
decided 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
rapture of hymen.”
Thus rubbing of penis in the emission of semen can be held rape.
[Madan Lal V/s. State of J&K (A.IR. 1998, S.C. 386 and State of
Maharashtra V/s. Rajendra Jawanmal Gandhi, A.I.R. 1997, S.C. 3986].
Absence of injury on male organ of accused Where a prosecutrix is a
minor girl suffering from pain due to ruptured hymen and bleeding vagina
depicts same, minor contradictions in her statements they are not of much
value, also absence of any injury on male organ of accused is no valid ground
for innocence of accused, conviction under section 375 I.P.C. proper held in
Mohd. Zuber Noor Mohammed Changwadia v. State of Gujarat, 1999 Cr
LJ 3419 (Guj).
Penetration Mere absence of spermatozoa cannot cast a doubt on the
correctness of the prosecution case held in [Prithi Chand v. State of Himachal
Pradesh, (1989) Cr LJ 841].
Marital Rape: Marital rape refers to sexual intercourse with one’s spouse
without their consent. However, it is an exception in Section 375, IPC. The
provision clearly states that “sexual intercourse by a man on his own wife
even without her consent will not amount to rape”.
The said provision was made to keep a check on husbands who may be
inclined to take advantage of their martial status prematurely. Sexual intercourse
by a husband with his wife may be rape if
a. The age of wife is below 15 years (exception of section 15).
b. If they are living separately by the decree of judicial decision and
husband does sexual intercourse without consent of wife (Section 376A)
Q. 25. Discuss about the provisions related to Territorial and Extra
Territorial Jurisdiction under IPC?
Ans. Territorial Jurisdiction: Section 2 of the Indian Penal Code states
that every person who commits an act or omits to do an act which is contrary
to the provisions of the code shall be liable for punishment. Here, every
wrongdoer is made liable for punishment without any discrimination on the
basis of his nationality, rank, caste or creed. The only requirement under this
Section to incriminate a person is that he should commit the act or omission
within the territory of India. Thus a foreigner who committed a wrong within
the territory of the country cannot plead ignorance of Indian law. However,
there are exceptions to the universal application of the code and so specific
class of people are immune from criminal liability, the class of people include:
• Foreign sovereign;
• Diplomats;
• Enemy aliens;
• foreign army and warships;
• President and governors.
Exemption from Coverage of the Indian Penal Code, 1860: According
to the provisions of Section 2 of the Indian Penal Code, every person who
commits an act or omits to do an act which is contrary to the provisions of the
code shall be liable to punishment. Every wrongdoer shall be subjected to
punishment without any discrimination on the basis of his nationality, rank,
caste or creed. However, there are certain exceptions to this universal
application of the code in India and certain people are immune from criminal
liability under the Code, the people who are exempted from the liability are as
follows include:
1. Foreign sovereign: A foreign sovereign of any country possesses the
ultimate or supreme authority of the country and is exempted from
incrimination under the Code.
2. Ambassadors and Diplomats: Ambassador is an accredited
permanent representative which one country sends to another
country while a diplomat is a person who represents the country in
another country. The ambassadors and Diplomats are exempted from
liability under the Code, the reason for such exemption is that a
foreign sovereign sends ambassadors and diplomats to as a
representative of his country in good faith and so they are the
representatives of the independent sovereign of that country,
therefore, they should enjoy the same immunity which is provided
to the sovereign of the country which he represents. The exemption
given to them is on lines with the international laws like the United
Nations Privileges and Immunities Act of 1947 which is a part of
national laws.
3. Alien Enemy: When an alien enemy invades the country irrespective
of the fact whether the country to which they belong to is at war or
peace with our country, he will not be subjected to the criminal laws of
the country but will be dealt with by the martial laws of the country. If
any alien enemy commits any crime which is in no way connected with
war then, he shall be subjected to the criminal laws.
4. Foreign army: When the foreign armies are on the soil of another
country with the permission of their own country. They are exempted
from criminal liabilities of the state on the soil of which they stand.
5. Warships: Warships which enter the water which comes under the
territorial jurisdiction of another country, they are not subjected to the
penal laws of that country.
6. President and governors: The provisions of Article 361 under Part 19
of the Constitution constitutes an exception to Article 14 and Section 2
of Indian Penal Code. It states that:
a. That the governor and the president cannot be made answerable
to any court of law in the exercise of their duties during the term
of office,
b. During the term of office of governor and president, the criminal
proceeding cannot be inducted against them,
c. During the term of office, the president and the governor cannot
be arrested or imprisoned,
d. If the president or the governor does any act in his personal
liability, during the term of their office no civil proceedings can
be instituted against them.
Section 5: An Exception to Section 2- Section 5 is a saving clause and
provides for limiting the jurisdiction of the Indian Penal Code, 1860 by excluding
the application of the Code over the matter for which specific laws are already
present. It limits the applicability of the law on the specific class of people for
whom different laws are already present in the country. Section 5 states that
nothing contained in the Act shall be made applicable which interferes with
any of the special and local laws and also any existing laws on the matters of
 Punishment, mutiny or desertion of any officer, sailor, soldier or airmen
who work for the Government of India.
 Section 5 is an exception to Section 2, Section 2 makes the Code
universal in the application within the territory of India on every person
irrespective of his nationality, rank, caste or creed while Section 5 limits
the operation of the Code.
Scope of Section 5:
1. Section 5 is applicable to the officers, soldiers, sailors, airmen who
render their services to the Government of India and have been made
liable for desertion or mutiny against the Government of India.
2. Such abovementioned people are to be punished in accordance with
the Acts, provisions of any special or local laws and such wrongs
demand to be tackled separately.
3. The Section limits the application of the Code on the Acts, provisions
with respect to the prescription of punishment for desertion or mutiny
against the Government of India by officers, soldiers, sailors, airmen
who render their services to the Government of India. The main Acts in
this connection are the Army Act, 1950, Air Force Act, 1950, Navy Act
1957, Air Force and Army Law (Amendment) Act, 1975.
Extra-territorial Jurisdiction: Section 3 and Section 4 of Indian
Penal Code confers extraterritorial jurisdiction to the Code. Crime is said to
be extraterritorial when it is tried in a country other than the one in which
he committed it. According to Section 3 of the Act, any person who commits
an act beyond the territorial limits of the country but the repercussions of
such an act is such that it has been committed within the territory of India.
Then such a person could be dealt with in accordance with the provisions
of the Code for the act committed by him even though in the country in
which he committed the act is not an offence under the ordinary laws of
that country.
Section 4 of the Indian Penal Code expands the ambit of application of
Section 3 of the Act. According to Section 4 of Indian Penal Code, when an
offender has committed an offence outside the territory of India but is found
within the territory of India. Then there are two courses of actions which may
be resorted to:
 Extradition: He can be sent to the country where the effect of his
wrongdoing took place,
 Extraterritorial jurisdiction: he may be tried in accordance with the
criminal laws of India.
Scope of Sections 3 and 4, Indian Penal Code 1860: According to
Section 4, the jurisdiction of the Code is applicable to any person beyond the
territory of India who commits a crime. The Section also covers the following
category of people:
1. Any Indian citizen who is present beyond the territory of India and has
committed a wrong,
2. Any person travelling through any ship or aircraft which is registered
in India,
3. Any person present in any place which is not under the territorial limit
of India and targets the computer resources present in India.
About Liability of a Foreigner for Offences Committed in India : A
foreigner committing an offence in India will be subjected to the provisions of
Indian laws and shall be punished in accordance with the provisions of the
Act even though he may not be physically present in India at the time of the
commission of the offence. The court in the case of Nazar Mohammad v.
State AIR 1953 P H 227 held that foreign citizen committing an offence in
India will be held guilty under the Indian laws and ignorance of Indian laws is
not an excuse although ignorance may be pleaded at the time of mitigation of
the sentence. The prerequisite for the application of Section 3 and Section 4 is
not the physical presence of the offender and the only requirement is that the
wrong should take place in. The Section only means that the offence must
take place in India although the offender is outside.
In the case of State of Maharashtra v. M.H. George1965 AIR
722 when the defendant pleaded ignorance in front of the court on the
ground that he did not know about the recent changes which took place
in the Indian legislation regulating the foreign exchange, the court
rejected the plea and held him liable under the Act and held that the
publication of changes made in the existing Indian laws cannot be
expected to be made in every country and therefore ignorance of Indian
law cannot be pleaded.
In the case of Sabu Mathew George v. Union Of India2017 (7) SCJ
78 the plaintiff was an activist and he filed a writ petition challenging the
display of an advertisement in the Indian search Engines contending that it
was violative of Section 22 of the PreNatala Diagnostic Techniques
(Regulation and Prevention of Misuse Act), 1994 as the advertisement was
related to prenatal sex discrimination. The court took the issue in
consideration and ordered the respondents Google, Microsoft and Yahoo
to autoblock the advertisement.
The application of provisions under Section 3 and Section 4 is limited
to offences committed within the circumscribed boundary of the territory of
India. What constitutes the territory of India has been defined under Article
1(3) of the Indian Constitution. Which says that the territory of India comprises
of:
• Territories of the states,
• Union territories which are specified in the first schedule, and
• Other acquired territories.

Leading Case 1.
Reg V Govinda (1877) ILR 1 Bom 342
Leading Case 2.
VIRSA SINGH v. THE STATE OF PUNJAB AIR 1958 SC
Leading Case 3.
K. M. Nanavati v. State Maharashtra AIR 1962 SC 605
Leading Case 4.
Bachan Singh v. State of Punjab AIR 1980 SC 898
Leading Case 5.
State (N.C.T. of Delhi) v. Navjot Sandhu 2005 Cr.L.J. 3950
Leading Case 6.
Independent Thought v. Union of India AIR 2017 SC 4904
Leading Case 7.
Joseph Shine v. Union of India AIR 2018 SC 4898
Leading Case 8.
Navtej Singh Johar v. Union of India AIR 2018 SC 4321
Leading Case 1
Reg V Govinda (1877) ILR 1 Bom 342
Back Ground:
The Lordship had brought forward the differences between Section
299 and 300 of the IPC. The court had stated that there was absence of intention.
In both, Section 299 and 300, the key element is that there should be an
intention of causing death.
Facts:
• The accused Govinda was a young man of eighter years. He kicked his
young wife of twelve or thirteen years of age and struck her several
times by his fists on the back.
• The injuries on the back were not that serious. However, after she fell
on the ground, the accused put one knee on her breast and struck her
two or three times on the face.
• One or two of these blows, the medical evidence showed to be violent
and had effect on the left eye of the wife, producing confusion and
dislocation.
• Although the skull was not fractured, the blow caused by
extravagance of blood on the brain and the girl died in a short span
of time afterwards.
Issue:
What is the difference between culpable homicide and murder?
Petitioner’s Contentions:
• The learned Counsel for the petitioner did not dispute the position
that the Magistrate’s action on 6101958 amounted to an implied
discharge in respect of the alleged offence Under Section 322. Indian
Penal Code. Some of their criticisms against the proceedings of the
learned Sessions Judge were based on a misconception of the facts.
It was urged that the entries in the docket of C.R.P. 13 of 1958 did
not mention, that the records were called for from the Magistrate
and that the question arises whether a Sessions Judge has
jurisdiction to make an order Under Section 436. Cr.PC. without
calling for the records
· The main contention of Sri M. LakshmanRao on behalf of the petitioner
was that under the new procedure specified in Section 251A, Criminal
Procedure Code for warrant cases instituted on police reports, there is
no inquiry but only a trial by the Magistrate that any order purporting
to remand such a case Under Section 436 for further inquiry can only
amount to an order for a retrial of the case and that such an order is
without jurisdiction as the Sessions Judge has no power Under Section
436 to direct a retrial.
• The petitioner had also stated that in no way the respondent was
unaware of the damages that will happen.
Respondent’s Contentions:
• The contention of the respondent was that there was no intension to
cause death nor the bodily injury intended to be inflicted was sufficient
in the ordinary course of nature to cause death. The counsel that had
represented the respondent referred to Clause (1) and Clause (3) of
Section 300.
• The respondent also stated that he had n knowledge that such an
injury could amount to the death of the victim.
Judgement:
The Lordship had brought forward the differences between Section
299 and 300 of the IPC. The court had stated that there was absence of intention.
In both, Section 299 and 300, the key element is that there should be an
intention of causing the death. The Lordship had put forward another opinion
that the offence committed by the accused was not murder but culpable
homicide not amounting to murder.
Leading Case 2
VIRSA SINGH v. THE STATE OF PUNJAB AIR 1958 SC 465
BACKGROUND:
The trial Court convicted one Virsa Singh (hereinafter referred to as the
‘accused’) for the offence of murder u/s 302 of IPC and his conviction as well
as sentence was upheld by the High Court of Punjab and Haryana. Hence the
matter arose before the present court via grant of Special appeal
FACTS: A spear was thrusted into the stomach of one Khem Singh
(hereinafter referred to as the ‘victim’) by the accused which resulted in three
coils of intestine bursting out. The medical report described the wound as
deep enough resulting in flowing out of digested food from the cuts and the
doctor reported that the injury was sufficient to cause death in the ordinary
course of nature.
However the victim died on the subsequent day at 5 p.m whereas the
incident occurred at 8 p.m on the previous night of 13.07.1955.
ISSUE INVOLVED:
The matter before this court is limited over the question of what offence
is made out as having been committed by the petitioner
ARGUMENTS:
Counsel for the appellant (hereinafter referred to as the defendant) first
contended that the intention associated with the first part of the clause 3rdly,
“If it is done with the intention of causing bodily injury to any person”
would not be enough to fall within this clause. Additional requirement of
intention for the second part, i.e, “and the bodily injury intended to be in
flicted is sufficient in the ordinary course of nature to cause death “ is also
necessary.
Secondly, the defendant quoted from the case of R v. Steane [1947] 1
KB 997 where the Chief justice said “where a particular intent must be laid
and charged, that particular intent must be proved” and tried to extend the
role of intent in the act in question. The defendant quoted another para from
the same case where it was mentioned that in case of doubt as to the question
of intent, the accused should be acquitted and placed burden on the
prosecution to establish the intent up to the hilt.
Third, Defendant referred to Emperor v. Sardarkhan Jaridkhan
1916(18)BomLR793,, which said that where death is caused by one single
blow it is difficult to find out what really was intended by the accused.
Section 300. Murder- Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or-3rdly —If it is done with the intention
of causing bodily injury to any person and the bodily injury intended to be
in flicted is sufficient in the ordinary course of nature to cause death, or
JUDGEMENT: The court laid down the ingredients for this clause
which became “locus classicus” over time and have helped the courts to
solve similar cases in future. They can be classified into four broad
categories.
First, bodily injury should be present and this is a purely objective
inquiry. This can be clearly inferred from the facts of the case.
Second, the nature of injury has to be proved, i.e, which part of the
body the injury was inflicted, whether it is a vital organ or it was on leg or arms
for that matter; how deep the injury was inflicted and other fact based inquiry
and post mortem reports.
Third, it is not accidental or unintentional, i.e, the injury inflicted on
the person of an individual has to be intended to be on that part of the body
and not otherwise. So let’s say an individual wanted to grievously hurt
another individual on his thigh or hand for that matter. But unfortunately
that individual reacted in a manner that the blow occured on a vital organ
like head or heart for that matter. Then in that case the accused cannot be
held guilty under this section because he did not intend to cause such
bodily injury to that individual. Therefore this is a subjective inquiry and
circumstances justify the action of a person as to the part of the body it was
intended to be attacked. Whether intention is there or not in this situation is
a question of fact and not the law.
Further, intention has to be understood by considering whether the
individual wanted to hit at a vital organ with sufficient force as to result in
such bodily injury causing death in ordinary circumstances. Note that
Contention 2 of the defendant also does not stand the test of the court because
if the argument of intention is stretched further to attribute even the falling
out of intestines or preempting the number of cuts in the walls of stomach, it
would be impossible to convict any normal human unless the accused is an
expert in human anatomy.
Also the court in this case referred to another para of the same judgement
cited by the defendant in which the court held that the burden was on the
defendant to explain why the act in question was done resulting in death of
the victim with proper evidence if the prosecution proves that such act had
been done. The same thing has happened in this case too.
Contention 3, the court said that that it does not satisfy the demands of
this section as seriousness of the injury cannot be linked with the intent. Let’s
say for instance an individual is given one deep stab at a vital organ causing
death against 10 non lethal blows on non vital organs not amounting to death.
In such a scenario the argument advanced by the defendant falls short. The
most important thing before the court is whether the accused intended to
inflict that injury or not and it will be presumed by the court that the intention
existed if other objective factors are established unless proved otherwise by
the defendant.
Fourth, death is caused in ordinary course of nature is an objective
inquiry as it is to be inferred from the facts established and has to do
nothing with the element of intention. Note here that the Contention 1
forwarded by the defendant is unsatisfactory. There an attempt was made
to extend the ambit of intention to the second clause of 300 3rdly also
which is an objective inquiry. The hon’ble judge made it clear that if
supposedly intention was assumed even for this objective inquiry, it would
render S. 300 3rdlymeaningless because both 1stly and 3rdly would mean
the same. Therefore S. 300 1stly and 3rdly respectively are standalone
parts under the section. S.300 1stly makes it clear that nothing else was
intended but death of the person and this should not be mixed with 3rdly.
Judge even jokingly said that this was one of the favorite defenses used in
such cases.
HELD:
The Appeal of the accused is therefore dismissed
EVALUATION:
There was no dissenting opinion and the judgement was written by
Vivian Bose, J. for the Coram of judges. In a nutshell, it would be conclusive to
say that, the intention has to be inferred from the nature of the injury, for
murder the injury must be serious enough to cause death of an individual and
the seriousness of the injury is important.
Leading Case 3
K. M. Nanavati v. State Maharashtra AIR 1962 SC 605
Introduction:
The judgment in the K. M. Nanavati case was passed on 24th November
1961 but it has managed to stay fresh in the minds of people even today. The
facts and circumstances of this case received unprecedented media coverage
and inspired a lot of books, serials, and movies over the years.
The accused/appellant Nanavati was a naval officer who was put
on trial under section 302 of IPC for the alleged murder of his wife’s
paramour. This case is considered to be one of the important landmark
judgments not just because of the popularity it gained amongst the masses
but because of the important legal points, it raised such as plea of general
exception, the burden of proof, grave and sudden provocation test, and
power of the high court in deciding the competence of reference made by
Sessions Judge.
The K. M. Nanavati case is also widely recognized as being responsible
for the end of jury trials.
Facts of the Case:
• Accused/appellant K. M. Nanavati was second in command of the
Indian naval ship “Mysore”. He was married to a woman named Sylvia
and had three children with her. Due to the nature of his service,
Nanavati and his family had lived in many different places before
shifting to Bombay. It was in Bombay that they were first introduced to
the deceased Prem Ahuja through common friends.
• Nanavati had to go away from Bombay regularly as part of his service,
leaving his wife and children behind. In his absence, a friendship
developed between Sylvia and Ahuja which later took the form of an
illicit relationship.
• When Nanavati returned from his ship after April 18, 1959, he, on multiple
occasions, tried to be affectionate to his wife to which she was not
being responsive. On April 27, 1959, once more his advance was met by
her unresponsiveness. But this time Nanavati asked his wife if she had
been faithful to him. She merely shook her head to indicate that she
was not. He guessed that her paramour was Ahuja and decided to
settle this matter with him.
• First, Nanavati drove his children and wife to the cinema and promised
to pick them up later. He then drove to his ship from where he obtained
a revolver and six rounds on a false pretext. He put these inside a
brown envelope and from there drove to Ahuja’s office. On not finding
him there, Nanavati drove to his flat.
• On reaching Ahuja’s flat, he confirmed his presence from a servant.
After receiving the confirmation, he went to Ahuja’s bedroom while
also carrying the brown envelope which had the revolver.
• Nanavati closed the bedroom door behind him and asked Ahuja about
his intentions concerning his wife and children. When he didn’t receive
the honourable and desired answer, he is alleged to have shot Ahuja
which resulted in his death. From there Nanavati rushed to the nearest
police station to confess about his crime.
• Nanavati was declared not guilty by a jury verdict of 8:1. However, the
Sessions Judge disagreed with this decision of the jury and believed
that no reasonable body of men could reach that verdict based on the
evidence produced. The matter was referred to a Division Bench who
held the accused/appellant guilty.
Hence, this appeal was made to the Hon’ble Supreme Court of India
by special leave.
Issues Raised:
The learned counsel for the accused/appellant raised the following
issues in this appeal:
• Under section 307 of CrPC, the High Court has no jurisdiction to go
through the evidence to decide the competency of the reference made
by the Sessions Judge;
• Under section 307(3) of CrPC, the High Court has no power to set aside
the verdict of the jury on grounds of misdirection in charge;
• There are no misdirection in the charge;
• The verdict given by the jury was such that it could be reached by a
body of reasonable men based on evidence produced before them;
• The accused/appellant had shot the deceased under grave and sudden
provocation, and therefore, he did not commit murder but culpable
homicide not amounting to murder.
Judgment:
1. Scope of the High Court’s Power under section 307 of CrPC
The Hon’ble Supreme Court explained that in case the judge does not
agree with the verdict of the jurors, he can under subsection (1) of
section 307 of CrPC refer the case to the High Court. The two conditions
necessary for the same are:
a. the judge shall disagree with the verdict of the jurors, and
b. he shall believe that the verdict of the jury was such that no
reasonable men could have reached. The order of referral would
be competent if and only if these two conditions are met otherwise
it would be termed as incompetent and thus rejected by the High
Court.
When the order of reference is found to be competent, the High Court
is bound to discharge its duties as specified under subsection (3) of
section 307 of CrPC. Under this subsection, the High Court shall
consider the entire evidence, give due weight to the opinions of the
judge as well as the jury and thereafter acquit or convict the accused.
The opposite construction as argued by the learned counsel of the
defendant would defeat the purpose of this section.
Reconciling Provisions of sections 307, 418, and 423 of CrPC:
The Apex Court was of the view that subsection (2) of section 423
merely restates the scope of the limited jurisdiction conferred on the
High Court under section 418. The powers conferred to the High Court
under section 307 of CrPC are such as may be exercised by it in an
appeal. The High Court cannot call in aid any of the powers other than
that of an appellate court under section 423 of CrPC. This is a reasonable
construction of the aforementioned sections.
It was also established that there is a difference between the two
jurisdictions of the High Court, namely, the disposal of an appeal, and
the case submitted by a Sessions Judge when he differs from the jury.
The Hon’ble Court even went on to state that larger powers are conferred
on the High Court under section 307 of CrPC than that conferred under
section 418.
2. Burden of Proof
In Indian law, the burden of proving the guilt of the accused lies on the
prosecution. But, when an accused relies upon any exceptions as
provided in the IPC or any other special exception, section 105 of the
Indian Evidence Act comes into action. The Court shall presume against
the accused and now the burden is thrown upon him to rebut this
presumption. Until then, the Court shall disregard the existence of
circumstances that bring the case within the exceptions.
The Court further stated that this presumption and shift in the burden
of proof does not free the prosecution from its burden of proving the
ingredients of the offence with which the accused is charged. This
burden never shifts. There is no conflict between the general burden of
the prosecution and the special burden of the accused. The failure on
the part of the accused to rebut the presumption against him would not
absolve the prosecution from proving the ingredients of the offence.
3. Misdirection Of Charge
The Court agreed with the findings of the High Court on misdirection
of a charge made by the Judge. It stated that the question of whether a
misdirection vitiated the verdict of the jury has to be seen from the
standpoint of the possible effect that the said misdirection had on the
jury who are laymen. The Apex Court further stated that the object of
charge to the jury by the Judge is to explain and place before them the
facts and circumstances of the case. It is the duty of the Judge to
clearly explain the points of law, their implications and put forth all the
evidence before the jury so as to enable them in arriving at the right
decision.
4. Considering Evidence of The Case
The evidence was divided into three parts by the Apex Court, namely:
a. Evidence relating to the conduct of the accused before the
shooting,
b. Evidence relating to the conduct of the accused after the shooting,
and
c. Evidence relating to the actual shooting in the bedroom of Ahuja.
After the perusal of all the evidence, the Hon’ble Court was of the view
that the conduct of the accused/appellant was inconsistent with his
defence that the deceased was shot by accident. In fact, he exhibited
the attitude of a person who wrecked vengeance on the lover of his
wife in a planned and calculated manner. He secured the revolver on a
false pretext and marched into Ahuja’s bedroom with a loaded weapon.
He did not tell anybody that he shot the deceased by accident until his
trial even though he had many opportunities to do the same. The injuries
found on the body of the deceased were consistent with the intentional
shooting.
The Court, therefore, came to the conclusion that on the basis of the
evidence, no reasonable body of men could have arrived at the
decision that the jury had reached. Thus, the verdict of the jury could
not stand.
5. Grave and Sudden Provocation Test
Under exception 1 to section 300 of IPC, culpable homicide does not
amount to murder if the following conditions are fulfilled:
• Deceased must give provocation to accused;
• Provocation must be grave and sudden;
• Provocation must have deprived the accused of his power of
selfcontrol;
• He must have killed the deceased during the continuance of
such deprivation;
• Provocation must result in either the death of the person who
gave the provocation or of any other person by mistake/accident
The Apex Court stated that it is not possible to lay down a standard
test with precision. Whether the provocation was grave and sudden has to be
decided by the Court in each case based on the respective facts and
circumstances. The Court further stated that the test of “grave and sudden”
provocation is whether a reasonable man, belonging to the same class of
society as the accused, placed in the same situation as the accused, would be
so provoked so as to lose his selfcontrol. The fatal blow must be traced to the
influence of passion and the loss of selfcontrol. It must not be after the
accused has had time to cool down or otherwise it gives room for premeditation
and calculation.
After looking at the facts of the case, the Court arrived at the decision
that not only had the accused/appellant gained selfcontrol but he was also
thinking about the future of his family. He had sufficient time to cool down
after his wife confessed her infidelity to him. His conduct was clearly deliberate
and calculated. The Court thus held that the facts of this case did not attract
the provisions of exception 1 to section 300 of IPC.
Decree:
The Hon’ble Supreme Court agreed with the decision of conviction of
the accused/appellant under section 302 of IPC given by the High Court and
dismissed the appeal.
Aftermath:
It was the unprecedented media coverage that made Nanavati a
household name. He was lauded as a hero, an honourable man who loved his
wife and fought for her honour whereas Ahuja became the villain, a womanizer
who deserved what he got. He had the support of the people which is why
when the Jury found him to be nonguilty by a verdict of 8:1 it sent a wave of
happiness amongst his supporters.
The Parsi Community held rallies in support of Nanavati. Blitz editorials
too played a major role and came out as an active partner of the defence.
However, on the other hand, there were many newspapers that reported the
blatant disregard of justice in favour of a man with influential connections.
After the Hon’ble Supreme Court’s verdict, Nanavati appealed for a
pardon which he was eventually granted due to the following factors:
1. Nanavati was a naval officer and not a hardened criminal,
2. He knew the NehruGandhi family and Vijaylakshmi Pandit was the
Governor of Maharashtra,
3. By the time his pardon came through, he had already served 3 years in
jail,
4. The sister of the deceased had also dropped her objection to the pardon.
The Impact on Jury Trials:
The Nanavati case is often cited as the one leading to the end of Jury
trials. In truth, it was not the last case to be tried by a jury but merely a famous
one. The fate of jury trials was hanging in balance even before Nanavati came
into the picture.
After independence, the abolition of jury trials was being actively
discussed. A decade later, many states including Bihar, Uttar Pradesh, and
Madras moved to do away with the system. In November 1958, before the
Nanavati trial, even the Law Commission had termed jury trials as a failure and
had recommended its abolition.
The 1969 Report of the Law Commission observed that the juries were
being used only in a few cases and then called for its complete removal. It was
finally in 1974 when the entire Code of Criminal Procedure underwent a change
that the jury trial was done away with.
Conclusion:
This is a landmark judgment that becomes even more relevant in the
present times where media trials have become a common practice. This
judgment goes on to show that the law of the land is always going to be
above popular public opinion and influential connections. It is the duty and
responsibility of the Courts to uphold the principles of the rule of law and
natural justice. The Supreme Court has thus once again shown that no one
is above the law.
Leading Case 4
Bachan Singh v. State of Punjab AIR 1980 SC 898
Introduction:-
This Case is a landmark judgment given by 5 judges Bench of the
Hon’ble Supreme Court. In this case Supreme Court announced important
limitations on the death penalty by setting the “rarest of the rare” doctrine.
The Supreme Court said,” A real and abiding concern for the dignity of human
life postulates resistance to taking a life through law’s instrumentality. That
ought not to be done except in rarest or the rare cases where the alternative
opinion is unquestionably foreclosed”.
Facts:
The Appellant Bachan Singh was convicted for his wife’s murder and
was sentenced for life imprisonment. After undergoing the term of imprisonment
(i.e after his release) he was living with his cousin Hukam Singh and his family
by this Hukam singh’s wife and his son objected the appellant’s living in their
house. A few days prior to this occurrence in the midnight Vidya Bai was
awakened by alarm and saw the appellant inflicting axe blow on her sister’s
( Beeran Bai) face. On the attempt to stop the appellant Vidya Bai got blown on
her face and ear with axe leading injuries her face and ear making her
unconscious. Diwan singh who was sleeping at a distance woke up by the
shriek and raised an alarm to wake Gulab singh sleeping at a distance from
there. On seeing an appellant with axe on Desa bai’s face they both hurried to
stop him. Noticing them moving towards him the appellant left the axe and ran
away. Diwan Singh and Gulab Singh gave a chase to him but couldn’t
apprehend him. Later Bachan Singh was tried and convicted and sentenced to
death under Section 302, Indian Penal Code for the murders of Desa Singh,
Durga Bai and Veeran Bai by the sessions judge. The High Court confirmed
his death sentence given by the sessions judge and dismissed his appeal.
Bachan Singh then appealed to the Supreme Court by Special Leave, the
Question raised in the appeal was, whether the facts of his case were “special
reasons” for awarding him the death sentence as required in section 354(3) of
CrPC, 1973.
Issues:
• Whether death penalty provided for the offence of murder in Section
302, Indian Penal Code, 1860 is unconstitutional?
• Whether the Facts found by the lower Courts would be considered
“special reason” for awarding the death penalty as is required under
Section 354(3) CRPC?
Main Arguments Advanced by the Petitioner:
The first argument advanced by the counsel for the appellant was that
imposition of the death penalty under Section 302 of IPC was violative of
Article 19(1) of the Constitution. It was contended that right to live is basic to
the enjoyment of all the six freedoms guaranteed in Clauses (a) to (e) and (g)
of Article 19(1) of the Constitution and death penalty puts an end to all these
freedoms.
It was argued that since death penalty did not have any social purpose
and its value as a deterrent was unclear and as it was against the dignity of an
individual guaranteed under the constitution, the imposition of the death
penalty would amount to unreasonable restriction under Article 19. It was
also argued by the appellants that the death penalty was violative of Article
21 of the Constitution as it amounted to unreasonable, cruel and unusual
punishment which violated the dignity of the individual.
Judgement:
The Supreme Court lucidly dismissed the challenges pertaining to the
constitutionality of Sec 302 of IPC and 354(3) of CRPC. Court further said that
the six fundamental rights guaranteed Under 19(1) are not absolute rights.
These rights are subjected to inherent restrained stemming from the reciprocal
obligation of one member of a civil society to so use his rights as not to
infringe or injure similar rights of another (sic uteri tuo ut alienum non laedas).
Also it was made very clear by the court that article 19 clause (2) to (6) has
expressly made subject to the power of the state to impose reasonable
restriction on the exercise of rights of citizen. There are several other indications,
also, in the constitution which show that the constitution make fully cognizant
of the existence of death penalty for murder and certain other offences in the
IPC 1860.
The expression “Special reason” in section 354(3) of CRPC means
exceptional reasons “ founded n the exceptionally grave circumstances the
death penalty or an alternative imprisonment for life is awarded. The apex
court laid down the principle of “rarest of the rare cases” in awarding the
death penalty. Those convicted for murder, life imprisonment is the rule and
death sentence is an exception.
Held:
The Supreme Court by a majority of 4:1 reaffirmed its earlier decision
and held that the provision of death penalty as an alternative punishment
for murder under section 302 insofar it is neither unreasonable nor it is
against the public interest. It violates neither the letter nor the ethos of
Article 19 of the constitution of India. It is constitutionally valid. Exercise of
discretion under sec 354(3) of CRPC, 1973 should be exceptional and grave
circumstances and imposition of death sentence should only be in rarest of
rare cases.
National discussion about the death penalty has resurfaced from
time to time. The Supreme Court addressed the question of constitutionality
of the death penalty for the first time in Jagmohan Singh v State of Uttar
Pradesh(AIR 1973 SC 947) “The death sentenced does not extinguish
all the freedoms guaranteed under Article 19(1) and it was also held
that it was not violative of Art 14 of the constitutional on the ground that
unguarded and uncontrolled discretion is given to judges to impose either
capital punishment or imprisonment for life. Thus the death penalty became
the exception rather than the rule” However, the Bachan Singh’s case
decision did not elaborate the criteria for identifying ”rarest of rare” cases.
The Bachan singh case also does not explain as to what falls under the
purview of “rarest of rare case”.
Conclusion:
This decision of the SC is hailed as one of the most landmark
judgements on the issue of the death penalty. This decision laid
emphasis o n the rel evance o f b oth mitigating and aggravating
circumstances and held that the mitigating circumstances must be
liberally construed. The court discussed various precedents such as
Jagmohan Singh v State of UP, and Rajendra Prasad v State of UP. The
court laid down the doctrine of “rarest of rare” cases which is followed
till date. However, the court failed to elaborate on the criteria for
identifying “rarest of rare” cases
Leading Case 5
State (N.C.T. of Delhi) v. Navjot Sandhu 2005 Cr.L.J. 3950 SC
INTRODUCTION:
The case of Afsan Guru is remarkable in the history of India being of
few attacks which were held with the intent to damage the sovereignty of the
state. Although the case had many nuances relating to admissibility of electronic
records and the impact it may have on the judgement, the apex court at the end
partially ruled in favour of the appellants vindicating one of accused of some
charges and dismissing the appeal for the conviction of S.A.R Gilani and
Afsan Guru. But after several deliberations the legislators sought to pass a
law which makes electronic records admissible, in order to deal with the
challenges of the 21st century.
Facts Of The Case:
• On 13th December, 2001, five heavily armed persons entered the
premises of Parliament House complex and killed the security personnel
on the duty.
• The gun battle between the terrorists and the security guards went on
for 30 minutes which led to the death of all the five terrorists and 13
guards and In the gun battle that lasted for 30 minutes or so, these five
terrorists who tried to gain entry received fatal injuries (9 persons
including 8 security personnel and 1 gardener succumbed to the bullets
of the terrorists and 16 persons including 13 security men received
injuries.)
• JaishEMohammed, one of the banned terrorist organisation under
section 35 of Unlawful Activities (prevention) Act , 1967 claimed the
responsibility of the dastard act and following the investigations for
seven days the accused which were suspected to have a possible
involvement were also affiliated to the same organisation. The four
accused were Mohd. Afzal, Shaukat Hussain, S.A.R. Gelani and Afsan
Guru (Navjot Sandhu).
• After the investigations which went on for a short period of 17 days
the investigating agency filed the report under section 173 of Cr.P.C
and named four accused. The four accused were Mohd. Afzal, Shaukat
Hussain, S.A.R. Gelani and Afsan Guru (Navjot Sandhu).
• Accused were charged under various sections of Indian Penal Code
(for short ‘IPC’), the Prevention of Terrorism Act, 2002 and the Explosive
Substances Act by the designated Special The designated Special Court
presided over by Shri S.N. Dhingra and tried the accused on the charges.
The trial went on for six months and as much as 80 witnesses were
examined from the prosecution side and 10 witnesses were examined
from the side of defence. It is recorded that around 330 documents
were exhibited by the court in the case.
• The three accused, namely, Mohd. Afzal, Shaukat Hussain Guru and
S.A.R. Gilani were convicted for various offences under Sections 121,
121A, 122 read with Sections 302 & 307 of Indian Penal Code (IPC).
Also Section 120B IPC and subsections (2), (3) and (5) of Section, sub
Sections (2), (3) & (5) of Section 3 of POTA and Section 4(b) of the same
act and Section 3 & 4 of Explosive Substances Act.
ISSUES INVOLVED-
• The voluntariness and reliability of confession made by accused to the
police.
• Whether the electronic records which were produced by prosecution
were credible
• A lot of controversy took place during the time of hanging of Afsal
Guru.
DECISION OF THE SPECIAL COURT:
The three accused, namely, Mohd. Afzal, Shaukat Hussain Guru and
S.A.R. Gilani were convicted for the charges that were imposed under various
acts including IPC, POTA and Explosive Substance Act. Accused 1 & 2 namely
Mohd. Afzal and Shaukat Hussain were also convicted under Section 3 and 4
of POTA. Accused No.4 namely Navjot Sandhu (Afsan Guru) was acquitted
of all the other charges except Section 123 IPC which is “Concealing with
intent to facilitate design to wage war” for which she was suppose to undergo
Rigorous Imprisonment for five years and fine.
The other three accused were given death sentences for the offences
committed by them under Section 302 (murder) read with Section 120B IPC
(party to criminal conspiracy) and Section 3(2) of POTA. The amount of
Rs.10 lakhs recovered from the possession of two of the accused, Mohd.
Afzal and Shaukat Hussain, was forfeited to the State under Section 6 of the
POTA.
CONFIRMATION OFTHE HIGH COURT:
Appeals by the parties
• The four accused filed a appeal against the verdict of the designated
special court, in the High Court and the state also filed an appeal for the
enhancement of Life sentence awarded to sentence of death in relation
to their convictions under Sections 121, 121A and 302 IPC.
• The state also filed an appeal to convict one of the four accused which
was earlier vindicated of all the charges except section 123 of IPC.
Decision of the Division Bench of High Court:
• The High Court dismissed the appeals of Mihd. Afzal and Shaukat
Hussain and confirmed the death sentence awarded to them. The court
also confirmed their death sentence with respect to Section 121 and
confirmed the death sentence. However the court allowed the appeals
of other two accused which are S.A.R. Gilani and Navjot Sandhu (Afsan
Guru) and thereby acquitted them of all charges.
• The judgment of High Court has given rise to seven which were filed in
the Hon’ble Supreme Court of India in the following manner; (i) Two
appeals filed by Shaukat Hussain Guru, (ii) One appeal filed by Mohd.
Afzal, (iii) Four appeals filed by the State/Government of National Capital
Territory of Delhi against the acquittal of S.A.R. Gilani and Navjot
Sandhu.
Decision of Supreme Court:
• Supreme Court bench of R.M. Lodha, Kurian Joseph & R.F. Nariman
JJ., dismissed appeal filed by Mohd. Afzal & death sentence was
confirmed for him. Appeal of Shaukat was allowed partly & SC made
him convicted U/S. 123 IPC & sentenced him for 10 Years with fine of
25,ooo.
• The appeals filed by state against against the acquittal of S.A.R Gelani
& Afsan Guru were dismissed & court decided upon the admissibility
of secondary evidence pertaining to electronic evidence.
Upon rejection of mercy petition of Mohd. Afsal Guru by President, on
9th February 2013 he was hanged to death. The execution of Mohd. Afsal
Guru was named as Operation Three Star.
Leading Case 6
Independent Thought v. Union of India AIR 2017 SC 4904
Introduction:
In this judgment, the Supreme Court considered the question of whether
sexual intercourse between a man and his wife being a girl between 15 and 18
years of age would be rape. Although Exception 2 to Section 375 of the Indian
Penal Code, 1860 (IPC) provided otherwise, the Supreme Court narrowed the
scope of the exception and resolved the incongruity between the Indian Penal
Code, 1860 (IPC) and Protection of Children from Sexual Offences Act, 2012
(POSCO Act) by raising the age of consent to 18 years for ‘marital’ sexual
intercourse, in order to preserve and protect the human rights of a married girl
child. The Court adopted a purposive approach and read Exception 2 to Section
375, IPC down.
The Court noted that the Exception created an unnecessary and artificial
distinction between married and unmarried girls, without any rational nexus to
the objective of the Section and held it to be arbitrary and discriminatory
under Articles 14 and 15 and violative of basic human dignity guaranteed
under Article 21 of the Constitution. The Court also noted that the Exception
was contradictory to the scheme developed by other prochild legislations
including POCSO, which, being special legislations, would prevail.
While the Court noted a range of cases developing the relationship
between the right to privacy and aspects of Article 21, it did not discuss in
detail the applicability of the right to the present case. In his concurring
judgment, Justice D. Gupta suggested that this was because the right to
privacy was available to all women, and did not bear specific relation to
married girl children between the ages of 1518, who were the subject of the
petition.
Facts:
In 2013, a child rights organization, Independent Thought, filed a writ
petition in public interest before the Supreme Court. This petition challenged
the constitutionality of Exception 2 to Section 375 of the IPC which
decriminalised sexual intercouse by a husband with his wife between the ages
of 15 and 18 years. The Petitioners alleged this provision violated the rights of
a married girl child between the ages of 1518 years, since in all other instances
under the IPC the age of consent for sexual intercourse was 18 years. The
petition sought clarification and harmonization of Exception 2 with existing
laws on child marriage and children’s rights.
Issue:
1. Whether Exception 2 to Section 375 of the Indian Penal Code, 1860
insofar it related to girls aged 15 to 18 years, would be void for violating
Article 14, Article 15 and Article 21 of the Constitution of India.
Arguments:
The Petitioner argued that Exception 2 was arbitrary and
discriminatory, as it created an artificial distinction between the rights of a
married and unmarried girl child between the ages of 1518 years. It was
argued that this classification neither had a clear objective, nor any
reasonable nexus with the (unclear) objective of the Section 375, IPC.
Therefore, Exception 2 was against the basic tenets of Article 14 and Article
21, as well as contrary to the beneficial intent of Article 15(3), which enabled
Parliament to make special provisions for women and children. Further,
considering that almost all statutes in India including Section 375 of the IPC
recognised a girl below 18 years as a child and penalised sexual intercourse
with a girl child below 18 years, the Petitioner contended that the same
position of law should be reflected in Exception 2 to Section 375 of the IPC,
in order to preserve the right to bodily integrity and sexual autonomy of the
girl child. The Intervenor (Child Rights Trust) raised additional issues relating
to privacy and physical and mental health.
The RespondentState argued that child marriage, though illegal, was
still a social reality and largely prevalent in the country, and thus, Exception 2
sought to protect consensual child marriages. Criminalizing these marriages
would target certain sections of society and their traditions. The Respondent
also argued that by virtue of getting married, the girl child had consented to
sexual intercourse with her husband either expressly or by necessary
implication.
Decision:
The Court delivered a detailed judgment in the form of two concurring
opinions, considering the constitutionality of Exception 2 to Section 375,
IPC.
The Court agreed with the Petitioner’s argument that Exception 2 did
not create a reasonable classification, and was violative of Article 14. It was
also observed that Exception 2 was a clear infringement on the right to live
a dignified right with basic autonomy and safety, as enshrined in Article 21.
The Court further noted that while most statutes (including POSCO, the
Prohibition of Child Marriage Act, 2006 (PCMA) and the Juvenile Justice
(Care and Protection of Children) Act, 2000 (JJ Act)) recognize a person
below 18 years as a child and prescribe the age of consent for sexual
intercourse as 18 years, Exception 2 legalised nonconsensual sexual
intercourse by husbands with their wives above the age of 15 years.
Moreover, the Criminal Law Amendment Act, 2013, amended Section 375 of
the IPC and raised the age of consent for sexual intercourse to 18 years. As
a result, Exception 2 became an anomaly, which permitted nonconsensual
sexual intercourse by a husband with his wife between the ages of 1518
years. The Court therefore held Exception 2 to Section 375 to be against the
provisions and objectives of POCSO and the social welfare aims of Article
15(3). To harmonize it with POCSO and fundamental rights, it was deemed
necessary to read Exception 2 as saying that only sexual intercourse with a
wife above 18 years of age was not rape. The Court also opined that the
right to life included the right to develop physically, mentally and
economically as an independent selfsufficient female adult and considered
a range of material discussing the deleterious effect of child marriage and
young childbirth. The effect of Exception 2 was to debilitate the girl child
and negatively impact her physical and mental health, which violated her
rights under Articles 14, 15 and 21. The Court thus read down Exception 2 to
Section 375 insofar as it permitted a husband to have sexual intercourse
with his wife below the age of 18 years of age.
The Court was briefly seized with the question of how the right to
privacy of a girl child, as recognized by K.S. Puttaswamy and Anr. vs.
Union of India ((2017) 10 SCC 1), was violated by Exception 2 to Section
375, IPC. However, the Court did not engage directly with the question.
Justice M. B. Lokur discussed the right to bodily integrity and sexual
autonomy in the context of privacy. He cited various cases in this regard –
Suchita Srivastava vs. Chandigarh Administration ((2009) 9 SCC 1),
where the right to reproductive choice was equated with personal liberty
and privacy; State of Maharashtra vs. Madhukar Narayan Mardikar
((1991) 1 SCC 57), where the Court held that a woman was entitled to
privacy and protection from intrusion and sexual assault irrespective of
her sexual history and/or character; and State of Karnataka vs. Krishnappa
((2000) 4 SCC 75) and State of Punjab vs. Gurmit Singh ((1996) 2 SCC
384), where sexual violence and rape was deemed to be an unlawful
intrusion into a woman’s privacy.
Justice D. Gupta observed that any detailed analysis of the right to
privacy vis-à-vis the impugned provision would have wider ramifications on
the legality of marital rape as a whole. Since the intention behind the Court’s
ratio was only to raise the age from 15 to 18 years in Exception 2 in order to
read it in line with the general legal age of consent and age of marriage in
Indian law, and other women empowermentrelated goals, it refrained from
discussing privacy and sexual violence in detail as it would invariably involve
an adjudication upon the legality of marital rape.
Conclusion:
Independent Thought case has taken a major step to protect the
girl child by criminalising the sexual intercourse with a wife below 18
years. But, the Supreme Court had not laid down any special provision
for dealing with such cases where the interest of other child is also at
stake. It did not consider those cases where the husband is also a minor
and would be as innocent as the girl if have consensual sex with her. In
India, cases of eloping and marriage are very prevalent, the Apex Court’s
ignorance towards such cases just because they can be generalised under
the child marriage cases is against the interest of the boy child. The
Court also tried to not comment on “marital rape” issue where the girl is
above 18 years by emphasising that “marital rape” is not the issue before
the court and judgement should not be observed in any way for the
issue of “marital rape”. The reasoning court applied for concluding that
Exception 2 is violative of Fundamental Rights was equally applicable to
a girl above 18 years old whose right to dignity is injured by the forceful
sexual relation.
Leading Case 7
Joseph Shine v. Union of India AIR 2018 SC 4898
Introduction:
Adultery in India was based on the notion of patriarchy and male
chauvinism. This offence makes a man criminally liable who has sexual
relations with a woman, who is the wife of another man. And if the husband
consents or connives to such an act it will no longer be adultery. There is
no right to a woman in case her husband commits adultery. In ancient
history, adultery was considered to be a sinful act either done by a married
man or woman. Adultery in India does not treat a woman as a culprit but as
a victim who has been seduced by a man to do such an act. This law is
violative of our constitutional principles i.e. equality, nondiscrimination,
right to live with dignity and so on. Adultery has been struck down as an
offence in as many as 60 countries including South Korea, South Africa,
Uganda, Japan etc., on being gender discriminative and violating the right
to privacy. Even Lord Macaulay, the creator of the penal code objected its
presence in the penal code as an offence rather suggested that it should
be better left as a civil wrong. The law evolves with the time and many
recent judgements have increased the ambit of fundamental rights in
conformity with changing societal values and increasing individual liberty.
This judgement joins them in creating history by striking down 158year
old law which has lost its relevance with changing social and moral
conditions.
Facts:
A writ petition was filed under Article 32 by Joseph Shine challenging
the constitutionality of Section 497 of IPC read with Section 198 of Cr. P.C.,
being violative of Article 14, 15 and 21. This was at first a PIL filed against
adultery. The petitioner claimed the provision for adultery to be arbitrary and
discriminatory on the basis of gender. The petitioner claimed that such a law
demolishes the dignity of a woman. The constitutional bench of 5 judges was
set up to hear the petition.
Contentions
Petitioner:
• The counsel for the petitioner contended that the provision criminalizes
adultery on classification based on sex alone which has no rational
nexus to object to being achieved. The consent of the wife is immaterial.
Hence violative of Article 14 of the constitution.
• The petitioner contended that provision is based on the notion that a
woman is property of the husband. The provision says if the husband
gives consent or connive then adultery is not committed.
• The provision for adultery is discriminative on the basis of gender as it
provides only men with the right to prosecute against adultery which
is violative of Article 15.
• The petitioner contended that the provision is unconstitutional as it
undermines the dignity of a woman by not respecting her sexual
autonomy and selfdetermination. It is violative of Article 21.
Section 497 of IPC read with Section 198 of CrPC must be struck
down.
Respondents:
• The respondents contended that adultery is an offence which breaks
the family relations and deterrence should be there to protect the
institution of marriage.
• The respondents claim that adultery affects the spouse, children and
society as a whole. It is an offence committed by an outsider with full
knowledge to destroy the sanctity of marriage.
• The discrimination by the provision is saved by Article 15(3), which
provides state right to make special laws for women and children.
They request the court to delete the portion found unconstitutional
but retain the provision.
Issues Raised:
1. Whether the provision for adultery is arbitrary and discriminatory under
Article 14?
2. Whether the provision for adultery encourages the stereotype of
women being the property of men and discriminates on gender basis
under Article15?
3. Whether the dignity of a woman is compromised by denial of her sexual
autonomy and right to selfdetermination?
4. Whether criminalizing adultery is intrusion by law in the private realm
of an individual?
Previous Judgments
• Yusuf Abdul Aziz vs. State of Bombay(1954) SCR 930
In this case, the constitutionality of Section 497 was challenged on the
grounds that it violates Article 14 and Article 15, by saying a wife
cannot be a culprit even as an abettor. The 3 judge bench upheld the
validity of the said provision as it is a special provision created for
women and is saved by Article 15(3). And Article 14 is a general
provision and has to be read with other Articles and sex is just
classification, so by combining both it is valid.
• Sowmithri Vishnu v. Union of India & Anr. (1985) Supp SCC 137
In this case, a petition was filed under Article 32 challenging the validity
of Section 497 of IPC. The challenge was based on the fact that the said
provision does not provide the right to a woman to prosecute the
woman with whom her husband has committed adultery and hence is
discriminatory. The 3 judge bench in this case also upheld the validity
by stating that extending the ambit of offence should be done by the
legislature and not by courts. The offence of breaking a family is no
smaller than breaking a house, so the punishment is justified. The
court accepted that only men can commit such an offence.
• V. Revathi vs. Union of India(1988) 2 SCC 72
In this case, the court upheld the constitutional validity of Section 497
read with Section 198 by stating that this provision disables both wife
and husband from punishing each other for adultery hence not
discriminatory. It only punishes an outsider who tries to destroy the
sanctity of marriage. And thus it is reverse discrimination in ‘favour’ of
her rather than ‘against’ her.
• W. Kalyani vs. State through Inspector of Police and another (2012) 1
SC 358
The constitutionality of Section 497 did not arise in this case but it
says that mere fact that appellant is a woman makes her completely
immune to the charge of adultery and she cannot be proceeded against
for that offence.
Recommendations
• In the 42nd Law Commission report, it was recommended to include
adulterous women liable for prosecution and reduce punishment from
5 years to 2 years. It was not given effect.
• In the 152nd Law Commission report, it was recommended introducing
equality between sexes in the provision for adultery and reflecting the
societal change with regards to the status of a woman. But it was not
accepted.
• In 2003, the Malimath Committee on Reforms of Criminal Justice System
was formed which recommended amending the provision as ‘whosoever
has sexual intercourse with a spouse of any other is guilty of adultery’.
The same is pending for consideration.
Court observations
Issue 1
• The test of manifest arbitrariness should be applied to invalidate the
legislation or any sublegislation. Any law found arbitrary will be struck
down.
• The classification is found to be arbitrary in the sense that it treats only
the husband as an aggrieved person given the right to prosecute for
the offence and no such right is provided to the wife. The provision is
not based on equality.
• The offence is based on the notion of women being a property of
husband and adultery is considered to be a theft of his property because
it says consent or connivance by the husband would not make it an
offence.
• The provision does not treat the wife as an offender and punishes only
the third party.
Such classification is arbitrary and discriminatory and has no relevance
in present times where women have their own identity and stand equal
to men in every aspect of life. This provision clearly violates Article 14.
Issue 2
• This provision discriminates between a married man and a married woman
to her detriment on the ground of sex.
• This provision is based on the stereotype that a man has control over
his wife’s sexuality and she is his property. It perpetuates the notion
that women are passive and incapable of exercising their sexual
freedom.
• Section 497 protects women from being punished as abettors. It is
enunciated that this provision is beneficial for women, which is saved
by Article 15(3). Article 15(3) was inserted to protect the women from
patriarchy and pull them out of suppression. This article was aimed to
bring them equal to men. But Section 497 is not protective discrimination
but grounded in patriarchy and paternalism.
Thus the said provision violates Article 15(1) of the constitution
because it is discriminatory on the basis of gender and perpetuating
the stereotype of controlling a wife’s sexual autonomy.
Issue 3
• The dignity of an individual and sexual privacy is protected by the
constitution under Article 21. A woman has an equal right to privacy as
a man. The autonomy of an individual is the ability to make decisions
on vital matters of life.
• The provision allows adultery on the husband’s consent or connivance,
which gives a man control over her sexual autonomy. This makes her a
puppet of the husband and takes away all her individuality.
• When the penal code was drafted the societal thinking regarding women
was backward and she was treated as a chattel but after 158 years the
status of women is equal to that of men. Her dignity is of utmost
importance which cannot be undermined by a provision which
perpetuates such gender stereotypes.
• Treating women as victims also demeans her individuality and questions
her identity without her husband.
The enforcement of forced fidelity by curtailing sexual autonomy is an
affront to the fundamental right to dignity and equality provided under
Article 21.
Issue 4
• A crime is defined as an offence which affects society as a whole.
Adultery, on the other hand, is an offence which tantamount to entering
into the private realm.
• Adultery may be committed by two consenting adults making it a
victimless crime.
• This provision aims to protect the sanctity of marriage but we have to
admit that because of a preexisting disruption of marital tie adultery is
committed.
• The other offences related to matrimonial realms such as Section 306,
498A, 304B, 494 or any violation of Protection of women from Domestic
Violence Act, 2005 or violation of Section 125 CrPC are related to the
extinction of the life of a married woman and punishes her husband and
relatives.
• In adultery, a third party is punished for a criminal offence with a
maximum 5 years imprisonment. This is not required in the opinion of
the court.
• This provision makes a husband an aggrieved person and a woman a
victim. Even if the law changes and provides equal rights to women
against adultery, it is totally a private matter.
• Adultery is better left as a ground for divorce and not a crime.
Section 497 of IPC is struck down and adultery can be grounds for any
civil wrong including dissolution of marriage.
Critical analysis:
Infidelity is more common in larger cities where people are moving
towards westernization. This decision has been widely criticized on the
ground that it paved a way for people to commit adultery without any fear.
There has been an increase in adultery since its decriminalization. Males
have claimed that now there is no way to ensure the purity of bloodline.
Many claims that recommendations from Law Commissions should have
been accepted by the parliament in order to punish men and women both
equally for adultery. The Supreme Court has also been criticized that they
should have let parliament take decisions on adultery according to the
changing social environment.
Conclusion:
This is the 21st century where equality and liberalism have taken over
the world. There is a need for legislative reforms to eliminate laws that are
discriminatory against women. In India, many laws have become redundant
with the passage of time. Adultery being one of them, it was necessary to get
rid of it. Adultery not only discriminated between men and women but also
demeans the dignity of a woman. This was inserted as an offence when society
was filled with patriarchy and paternalism. In that society, a stereotype was
created that women belong at home and they didn’t have equal rights and
opportunity as men did. And married women didn’t have an individual identity
but were treated as the property of their husband which is reflected in the
provision for adultery.
But the times have changed; women are no longer behind the
shadow of men. Adultery as a criminal offence has no significance
because it is a private matter in which courts should not interfere. There
is sexual autonomy to every individual and hindering the same would
violate the constitutional principles. This judgement decriminalizes the
offence of adultery and makes it a ground for civil wrongs only.
Criminalizing both men and women as suggested by Law Commission
reports would not have served the purpose as adultery is an act which is
an extremely private affair related to the matrimonial realm. The Legislature
should have taken this step long ago but nevertheless our judiciary has
been very efficient in filling the gaps and removing redundant laws with
changing societal notions.
Leading Case 8
Navtej Singh Johar v. Union of India AIR 2018 SC 4321
Introduction:
The Supreme Court of India unanimously held that Section 377 of the
Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the
order of nature’, was unconstitutional in so far as it criminalized consensual
sexual conduct between adults of the same sex. The petition, filed by dancer
Navtej Singh Johar, challenged Section 377 of the Penal Code on the ground
that it violated the constitutional rights to privacy, freedom of expression,
equality, human dignity and protection from discrimination. The Court
reasoned that discrimination on the basis of sexual orientation was violative
of the right to equality, that criminalizing consensual sex between adults in
private was violative of the right to privacy, that sexual orientation forms an
inherent part of selfidentity and denying the same would be violative of the
right to life, and that fundamental rights cannot be denied on the ground that
they only affect a minuscule section of the population.
Facts:
The primary issue in this case related to the constitutional validity of
Section 377 of the IPC, which dealt with “unnatural offences” and criminalised
“carnal intercourse against the order of nature”, insofar as it impacted
consensual samesex relationships. In 2009, Section 377 was held to be
unconstitutional by the High Court of Delhi in the Naz Foundation case,
which was overruled by the Supreme Court in Suresh Kumar Koushal. The
Petitioner, Navtej Singh Johar filed a writ petition before a three Judge Bench
of the Supreme Court in 2016 challenging its decision in Suresh Kumar Koushal
and the constitutionality of Section 377. The matter was referred to the five
Judge Bench considering the importance of the issue.
Issue:
1. Whether Section 377 of the Indian Penal Code, 1860 insofar as it applied
to consensual sexual conduct between adults was unconstitutional
and whether the judgment in Suresh Kumar Koushal should be upheld
or set aside.
Arguments:
The Petitioners contended that homosexuality, bisexuality and other
sexual orientations were natural and based on lawful consent and were neither
a physical nor a mental illness. The Petitioners further contended that
criminalising sexual orientations violated the concept of individual dignity
and decisional autonomy inherent in the personality of a person, and the right
to privacy under Article 21.
The Petitioners submitted that the rights of the LGBT community, who
form 78 percent of the Indian population need to be recognised and protected.
They relied on the Puttaswamy case to argue that Section 377 was
unconstitutional because it discriminated against the LGBT community on
the basis of sexual orientation, which was an essential attribute of privacy,
and that the sexual orientation and privacy lay at the core of fundamental
rights guaranteed under Articles 14, 19 and 21. The Petitioners sought
recognition of the right to sexuality, the right to sexual autonomy and the right
to choice of a sexual partner as part of the right to life guaranteed under Article
21.
The Respondents submitted that insofar the constitutional validity of
Section 377 was concerned with the ‘consensual acts of same sex adults in
private’, they would leave it to the wisdom of the Court. Some Intervenors
argued in favour of retention of Section 377 as it furthered “a compelling state
interest to reinforce morals in public life”. Arguing that fundamental rights
were not absolute, the Intervenors submitted that Section 377 was not
discriminatory as it “criminalises acts and not people” and applied equally to
all unnatural sexual conduct, irrespective of sexual orientation and criminalised
some forms of carnal intercourse by both heterosexual and homosexual couples.
Decision:
The Supreme Court, while observing the judgment in Suresh Kumar
Koushal, noted that it relied on the miniscule minority rationale to deprive the
LGBT community of their fundamental rights and did not differentiate between
consensual and nonconsensual sexual acts between adults. The Court noted
in this regard that a “distinction has to be made between consensual
relationships of adults in private, whether they are heterosexual or homosexual
in nature.” Moreover, consensual relationships between adults could not be
classified along with offences of sodomy, bestiality and nonconsensual
relationships.
Further, the Court analysed the constitutionality of Section 377 on the
bedrock of the principles enunciated in Articles 14, 15, 19 and 21. The Court
relied on the NALSA judgment, which granted equal protection of laws to
transgender persons, to reiterate that sexual orientation and gender identity
was an integral part of a person’s personality, and the Puttaswamy judgment,
which recognised the interrelationship between privacy and autonomy and
that the right to sexual orientation was an intrinsic part of the right to privacy,
to conclude that “it is imperative to widen the scope of the right to privacy to
incorporate a right to ‘sexual privacy’ to protect the rights of sexual minorities”.
The Court further discussed the Yogyakarta Principles on Gender Identity
and Sexual Orientation and the U.K Wolfenden Committee Report, 1957, which
abolished penal offences involving samesex consenting adults amongst many
other international comparative references.
The Court also relied on its judgment in Shakti Vahini vs. Union of
India & Ors. ((2018) 7 SCC 192), and Shafin Jahan vs. Asokan K.M (AIR
2018 SC 1933) to reaffirm that the right to choose a life partner was a feature
of individual liberty and dignity protected under Article 19 and 21 and referred
to principles stated in Shayara Bano vs. Union of India and Ors. ((2017) 9
SCC 1) to hold that Section 377 was irrational, arbitrary and violative of Article
14 as it made consensual relationships in private spaces a crime and subjected
the LGBT community to discrimination and unequal treatment. Moreover, the
Court used the maxim “et domus sua cuique est tutissimum refugium” which
translates to “a man’s house is his castle” to hold that Section 377 was
disproportionate and unreasonable for restricting LGBT persons’ right to
freedom of expression and choice as the restrictions did not protect public
order, decency or morality.
On the interplay of morality and constitutionality, the Court noted that
a “subjective notion of public or societal morality which discriminates against
LGBT persons, and subjects them to criminal sanction, simply on the basis of
an innate characteristic runs counter to the concept of Constitutional morality,
and cannot form the basis of a legitimate State interest”. The Court reiterated
that “any restriction on the right to privacy must adhere to the requirements
of legality, existence of a legitimate state interest, and proportionality”. Further,
one of the principles that emerged out of comparative jurisprudence analysis
was that “intimacy between consenting adults of the samesex is beyond the
legitimate interests of the state”.
The Court concluded that sexual orientation was natural, innate and
immutable. It held that the “choice of LGBT person to enter into intimate
sexual relations with persons of the same sex is an exercise of their personal
choice, and an expression of their autonomy and self determination”. Further,
although the LGBT community constituted a sexual minority, they were equally
protected under Part III of the Constitution.
The five Judge Bench unanimously held Section 377 to be
unconstitutional and read down Section 377 to the extent it criminalised
consensual sexual conduct between adults, whether of the same sex or
otherwise, in private. However, the Court clarified that consent must be free,
voluntary and devoid of any duress or coercion.


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Part-2 (Indian Penal Code) 1

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