Name: Syed Ali Rizvi

Student Id: 20185194

B.A LL.B (hons), Regular
4th Semester

Question 1. Discuss the various theories of punishment. According to you which

approach of punishment will help in preventing the increasing number of crimes in
our country? Elaborate your answer by giving appropriate examples.

Introduction

With change in the social structure the society has witnessed various punishment
theories and the radical changes that they have undergone from the traditional to
the modern level and the crucial problems relating to them. Kenny wrote: "it
cannot be said that the theories of criminal punishment current amongst our judges
and legislators have assumed...."either a coherent or even a stable form.
B.Malinsowski believes all the legally effective institutions....are....means of
cutting short an illegal or intolerable state of affairs, of restoring the equilibrium in
the social life and of giving the vent to the feelings of oppression and injustice felt
by the individuals.

The general view that the researcher finds is that the researcher gathers is that the
theories of punishment being so vague are difficult to discuss as such. In the words
of Sir John Salmond, “The ends of criminal justice are four in number, and in
respect to the purposes served by the them punishment can be divided as:
1. Deterrent
2. Retributive
3. Preventive
4. Reformative

Deterrent Theory

J. Bentham is considered as founder of this theory. “One of the primitive methods

of punishments believes in the fact that if severe punishments were inflicted on the
offender would deter him from repeating that crime” was the observation of SC
Mukesh & Anr v. State for Nct of Delhi (2018) Those who commit a crime, it is
assumed, derive a mental satisfaction or a feeling of enjoyment in the act. To
neutralize this inclination of the mind, punishment inflicts equal quantum of
suffering on the offender so that it is no longer attractive for him to carry out such
committal of crimes. Pleasure and pain are two physical feelings or sensation that
nature has provided to mankind, to enable him to do certain things or to desist from
certain things, or to undo wrong things previously done by him. It is like providing
both a powerful engine and an equally powerful brake in the automobile. Impelled
by taste and good appetite, which are feelings of pleasure a man over-eats.
Gluttony and surfeit make him obese and he starts suffering disease. This causes
pain. He consults a doctor and thereafter starts dieting. Thus the person before
eating in the same way would think twice and may not at all take that food. In
social life punishment introduces the element of 'pain' to correct the excess action
of a person carried out by the impulse (pleasure) of his mind. We all like very
much to seize opportunities, but abhor when we face threats. But in reality pain,
threat or challenges actually strengthens and purifies a man and so an organization.

Retributive Theory

Mahatma Gandhi said “An eye for an eye would turn the whole world blind”
SC in Swamy Shraddananda Murali v. State of KarnatakaPunishment said
“the offender provides some kind solace to the victim or to the family members of
the victim of the crime, who has suffered out of the action of the offender and
prevents reprisals from them to the offender or his family”. The only reason for
keeping the offender in prison under unpleasant circumstances would be the
vengeful pleasure of sufferer and his family.

This theory closely related to that of expiation as the pain inflicted compensates for
the pleasure derived by the offender. Though not in anymore contention in the
modern arena but its significance cannot be totally ruled out as fear still plays an
important role in the minds of various first time offenders. But the researcher feels
that the basis of this theory i.e. vengeance is not expected in a civilized society.
This theory has been severely criticized by modern day penologists and is
redundant in the present punishments

Preventive Theory

Looking at punishments from a more humane perspective it rests on the fact that
the need of a punishment for a crime arises out of mere social needs. 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 anti-social
elements. Even utilitarian such as Bentham have also supported this theory as it
has been able to discourage the criminals from doing a wrong and that also without
performing any severity on the criminals. The present day prisons are fallout of
this theory.

SC in Bishnu Deo Shaw Bishnu Dayal v. State of West Bengal explained the
context of imprisonment as separating the criminals from the society and thus
preventing any further crime by that offender and also by putting certain
restrictions on the criminal it would prevent the criminal from committing any
offence in the future.

Supporters of this theory may also take Capital Punishment to be a part of this
theory. A serious and diligent rehabilitation program would succeed in turning a
high percentage of criminals away from a life of crime. What they want is
retribution, revenge, punishment and suffering.

Thus one an easily say that preventive theory though aiming at preventing the
crime to happen in the future but it still has some aspects which are questioned by
the penologists as it contains in its techniques which are quite harsh in nature.

Reformative Theory

Justice Krishna Iyer said “Every saint has a past and every sinner a future..”
It emphasizes on the reform of the criminal and the beginning of a new life for
him. The most recent and the most humane of all theories is based on the principle
of reforming the legal offenders through individual treatment. Not looking to
criminals as inhuman this theory puts forward the changing nature of the modern
society where it presently looks into the fact that all other theories have failed to
put forward any such stable theory, which would prevent the occurrence of further
crimes. In Musa Khan v. State of Maharashtra, the court observed “Though it
may be true that there has been a greater onset of crimes today than it was earlier,
but it may also be argued that many of the criminals are also getting reformed and
leading a law-abiding life all-together”.

A few think that all offenders are 'ill' and need to be 'cured' but the majority of
criminologists see punishment as a means of educating the offender. This has been
the ideal and therefore the most popular theory in recent years. However, there is
reason to believe this theory is in decline and Lord Windlesham has noted that if
public opinion affects penal policy, as he thinks it does, then there will be more
interest shown in retribution in the future. In Narotam Singh v. State of Punjab,
SC said that the theory aims at rehabilitating the offender to the norms of the
society and this theory of punishment should be guiding principles for the
judiciary.

There is no particular approach of punishment that will help in preventing

the increasing number of crimes in our country, instead a mix of all has to be
followed.

In Bachan Singh v. State of Punjab (1980) SC held “It looks at the seclusion of
the criminals from the society as an attempt to reform them and to prevent the
person from social ostracism. Though this theory works stupendously for the
correction of juveniles and first time criminals, but in the case of hardened
criminals this theory may not work with the effectiveness. In these cases come the
importance of the deterrence theories and the retributive theories.
Thus each of these four theories have their own pros and cons and each being
important in it, none can be ignored as such.

In Md.Ajmal Md.Amir Kasab v. State Of Maharashtra (2012), the Supreme

Court gave capital punishment so as to create deterrence in the minds of people
before embarking any terrorist mission. In Ankush Maruti Shinde v. State of
Maharashtra, the Supreme Court adopted a reformative approach of punishment
and not only acquitted six persons whose death penalty were upheld by the
Supreme Court in 2009, but also ordered further investigation.

Conclusion

Some of the elements of these theories of punishment can be combined. We might

recommend rehabilitation when possible and deterrence when not possible. And
forward-looking and backward-looking elements might be balanced against one
another, to decrease crime while giving no more punishment than deserved.
Ques 3.“The legal conception of insanity differs considerably from the medical
conception”. Comment with supporting case law.

Introduction

The law regarding insanity/unsoundness of mind has been discussed elaborately

in the recent judgment of the Apex Court in Surendera Mishra v. State of
Jharkhand (2011). The law laid down therein, as stated earlier, as would be
applicable to the present case, may be underlined hereunder:-
(i) The accused has to prove legal insanity and not the medical insanity.
(ii) Every person who is suffering from mental disease, is not ipso facto
exempted from criminal liability.
(iii) The onus of proving insanity or unsoundness of mind which is one of the
exceptions mentioned in Chapter IV of the CrPC, lies on the accused on
preponderance of probabilities. To discharge the onus, the accused must prove
his conduct prior to offence, at the time or immediately after the offence, with
reference to his medical condition. Whether the accused knew that what he was
doing was wrong or it was contrary to law is of great importance and may
attract culpability despite mental unsoundness having been established.
(iv)The accused has to prove legal insanity beyond all reasonable doubt.

Distinction between legal insanity and medical insanity as made by the

Courts

In Hari Singh Gond v. State of Madhya Pradesh (2009), SC said that every
person, who is mentally diseased, is not ipso facto exempted from criminal
responsibility. A distinction is to be made between legal insanity and medical
insanity. A Court is concerned with legal insanity, and not with medical
insanity. The burden of proof rests on an accused to prove his insanity, which
arises by virtue of Section 105 of the Indian Evidence Act, 1872 (in short the
‘Evidence Act’) and is not so onerous as that upon the prosecution to prove that
the accused committed the act with which he is charged. The burden on the
accused is no higher than that resting upon a plaintiff or a defendant in a civil
proceeding as decided in Dahyabhai v. State of Gujarat. In dealing with cases
involving a defence of insanity, distinction must be made between cases, in
which insanity is more or less proved and the question is only as to the degree
of irresponsibility, and cases, in which insanity is sought to be proved in respect
of a person, who for all intents and purposes, appears sane.
According to Ajaya Mahakud v. State, where previous insanity is proved or
admitted, it has to be taken into account that “Whether there was deliberation
and preparation for the act; whether it was done in a manner which showed a
desire to concealment; whether after the crime, the offender showed
consciousness of guilt and made efforts to avoid detections whether, after his
arrest, he offered false excuses and made false statements. All facts of this sort
are material as bearing on the test, which Bramwall, submitted to a jury in such
a case: ‘Would the prisoner have committed the act if there had been a
policeman at his elbow? It is to be remembered that these tests are good for
cases in which previous insanity is more or less established. These tests are not
always reliable where there is, what Mayne calls, “inferential insanity”.

Under Section 84, IPC, a person is exonerated from liability for doing an act on
the ground of unsoundness of mind if he, at the time of doing the act, is either
incapable of knowing the nature of the act, or that he is doing what is either
wrong or contrary to law. The accused is protected not only when, on account
of insanity, he was incapable of knowing the nature of the act, but also when he
did not know either that the act was wrong or that it was contrary to law,
although he might know the nature of the act itself. He is, however, not
protected if he knew that what he was doing was wrong, even if he did not
know that it was contrary to law, and also if he knew that what he was doing
was contrary to law even though he did not know that it was wrong. Every
person is presumed to know the natural consequences of his act. Similarly every
person is also presumed to know the law.

All four kinds of persons who may be said to be non-compos mentis (not of
sound mind) as decided in Siddhapal Kamala Yadav v. State of
Maharashtra:

(1) An idiot: an idiot is one who is of non-sane memory from his birth, by a
perpetual infirmity, without lucid intervals; and those are said to be idiots who
cannot count twenty, or tell the days of the week, or who do not know their
fathers or mothers, or the like

(2) One made non compos by illness: A person made non compos mentis by
illness is excused in criminal cases from such acts as are committed while under
the influence of his disorder
(3) A lunatic or a mad man: A lunatic is one who is afflicted by mental disorder
only at certain periods and vicissitudes, having intervals of reason. Madness is
permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy
as natural insanity.

(4) One who is drunk.

Section 84 embodies the fundamental maxim of criminal law, i.e., actus non
reum facit nisi mens sit rea” (an act does not constitute guilt unless done with a
guilty intention). In Devidas Loka Rathod v. State of Maharashtra, it was
held that in order to constitute an offence, the intent and act must concur; but in
the case of insane persons, no culpability is fastened on them as they have no
free will (furios is nulla voluntas est).

The crucial point of time for deciding whether the benefit of this section should
be given or not, is the material time when the offence takes place. In Surendera
Mishra v. State of Jharkhand (2011), the court has observed that if a person
cuts off the head of a sleeping man because it would be great fun to see him
looking for it when he woke up, would obviously be a case where the
perpetrator of the act would be incapable of knowing the physical effects of his
act. The law recognizes nothing but incapacity to realise the nature of the act
and presumes that where a man’s mind or his faculties of ratiocination are
sufficiently dim to apprehend what he is doing, he must always be presumed to
intend the consequence of the action he takes. Mere absence of motive for a
crime, howsoever atrocious it may be, cannot in the absence of plea and proof
of legal insanity, bring the case within this section.

The court in Sherall Walli Mohammed v. State of Maharashtra, (1972) and

M Naughtoh’s case, held that the mere fact that no motive has been proved
why the accused murdered his wife and child or the fact that he made no
attempt to run away when the door was broken open would not indicate that he
was insane or that he did not have necessary mens rea for the offence. Mere
abnormality of mind or partial delusion, irresistible impulse or compulsive
behaviour of a psychopath affords no protection under Section 84 as the law
contained in that section is still squarely based on the outdated Naughton rules
of 19th Century England.

Conclusion
The standard to be applied is whether according to the ordinary standard,
adopted by reasonable men, the act was right or wrong. The mere fact that an
accused is conceited, odd irascible and his brain is not quite all right, or that the
physical and mental ailments from which he suffered had rendered his intellect
weak and had affected his emotions and will, or that he had committed certain
unusual acts, in the past or that he was liable to recurring fits of insanity at short
intervals, or that he was subject to getting epileptic fits but there was nothing
abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient
to attract the applica tion of this section.

In the case of Kalpana Patgiri v. State of Assam (2013), the Guahati Court
followed the same principle and held that every person who is mentally
diseased, is not ipso facto exempted from criminal liability. There is a
distinction between legal insanity and medical insanity and the burden of proof
lies on the accused to prove his insanity. The burden is not so onerous as that
cast upon the prosecution to prove that the accused committed an act with
which he is charged with. As per law, medical insanity can be proved by
producing medical prescription, etc. To prove legal insanity, defence has to
examine witnesses who know about past history of the accused that he or she, in
the past, was suffering from mental disorder or insanity and it continues to be so
till the date of occurrence and thereafter also.
Ques 5. Discuss the essential ingredients to charge a person under the offence
of ‘Forgery’ as mentioned under the Indian Penal Code. Can a man commit
forgery by signing his own name? Elaborate with the help of decided case law.

Introduction

To understand the concept of an offence relating to documents, we need to

know what is a document as well as a forgery.

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.”

Madhya Pradesh High Court in Chothmal Narayanji v. Ramchandra

Govindram defined Forgery under Section 463 of Indian Penal Code, as
“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”.

The court in S. L. Goswami v. High Court of Madhya Pradesh 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.

What Constitutes Forgery?

The very basis of the offence is the making of the false documents with the
criminal intent to cause damage to any person. The making of a false document
with the criminal intent to cause damage to any person. The Supreme Court in
Md. Ibrahim and Ors v. State of Bihar and Anr (2009) observed that making
of a false document by itself is not punishable in The Indian Penal Court (IPC)
under the provision of Chapter XVIII dealing with the offences related to
document.

Forgery implies false document, signature or other imitation of the object of

utility used with the intent to deceive another. Those who commit forgery are
usually charged with the crime of fraud. Objects of the forgery include
contracts, identification cards, and legal certificates. The most common form of
forgery includes signing someone else’s name to cheque. Objects, data, and
documents can also be forged. Legal contracts, historical paper, art objects,
certificates, licenses, identification cards can also be forged. Consumer goods
and Currency can also be forged but this crime is usually referred to as
counterfeiting.

Elements of forgery

Following are the basic elements of forgery as decided in Shushil Suri v.

Central Bureau of Investigation (2011) and Mir Nagvi Askari vs. Central
Bureau of Investigation, (2009):-

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.
The court in State of Orissa v. Rabindra Nath Sahu (2002) said that it will be
on the prosecution to proof the following ingredients in order to secure
punishment under Section 463:-

● Accused committed forgery.

● That he did so with an intention that the document forged shall be used
for the purpose of cheating.

Yes, A man can commit forgery by signing his own name as decided in
Queen Empress v. Sheo Dayal and Sheila Sebastian v. R.Jawaharaj (2018)
case.

This is an important clarification to Section 464, ‘A man’s signature of his own

name may amount to forgery’ which can be explained through the given
illustration.

Explanation

X signs his own name to a bill of exchange aiming that it may be believed the
bill was drawn by another person of the same name. X has committed forgery.

Z picks up a bill of exchange payable to the order of another person of the same
name. Z endorses the bill in his own name, intending to make it believe that it
was endorsed by the person to whose order it was payable. Z has committed the
offence of forgery.

From both the preceding illustrations, it is quite clear that a man’s signature of
his own name may also amount to forgery.

This is not only followed in India but also in foreign countries as clear from the
following cases:-

People v. Mau
Facts: The defendant, a city comptroller, had the duty to prepare a
disbursement sheet when a special assessment bond was presented for payment,
if sufficient funds were on hand to pay the bond, in whole or in part. He
fraudulently prepared and signed a disbursement sheet which stated that certain
bonds were owned by a fictitious person, who presented them for payment. On
authority of this sheet, a warrant and an authorization of payment of the bonds
to the order of the fictitious person were issued.
 Held: One is guilty of forgery although he signed and executed the instrument
in his own name, if it is false in any material part, and calculated to induce
another to give credit to it as genuine and authentic and the defendant was
punished.

People v. Filk in, 83 App. Div. 589, 82 N.Y.S. 15 (1903)

Facts: Defendant, a former town clerk, was convicted of forgery for issuing a
certain certificate, with his signature on it, stating that another was entitled to a
bounty from the town, when in reality he was not, and the clerk was to share in
the amount received.

Held: forgery within the meaning of the insurance policy protecting the
plaintiff bank from loss because of forged instruments where the depositor had
accounts under different names, in different banks, and drew worthless checks,
payable to himself for deposit, using such names by signing an instrument
under one name and endorsing it under another. The court stated that the test of
forgery was whether a person has falsely and with intent to defraud made a
writing purporting to be the act of another, regardless of the fact that one's own
name was used.

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 non-cognizable
offence. If the forgery is of a promissory note of the Central Government then it
is Cognizable.

In the case of Ram Narain Poply v. Central Bureau of Investigation, 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.

Conclusion
It should be noted that under Section 463 intention is essential along with other
ingredients as provided in the section. The intention is the essence of the offence of
forgery. To constitute it, some damage or injury must be intended to be caused by
the false document to an individual or to the public.

Under section 464, it is stated that the act should be done dishonestly or
fraudulently. Also, the definition given in Section 463 is in itself subjected to
section 464 that is defining the essential ingredient of section 463. So, it can be
said that whichever of the elements provided in section 463 is applicable, it should
have been done fraudulently or dishonestly to support the allegation of forgery.

A charge of forgery often boils down to intention, the burden of proof is on the
prosecution to prove the intention of accused beyond a reasonable doubt. The
prosecution also needs to prove various elements that are discussed above in brief.