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INDIAN PENAL CODE 1860

Chapter 2 Many people answer that there are 511 sections in IPC. but they are neglecting those sections which are later inserted to it, or repealed
from it. If we count them all, then we will get that total 62 sections has been added to IPC till date. So now, the total number of sections in IPC becomes
573.

SECTION 34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several
persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it
were done by him alone.

INGREDIENTS OF SECTION 34: For the applicability of Section 34 following elements are necessary:

(i) Criminal act; (ii) Done by several persons;

(iii) In furtherance of common intention of all.

iv) Participation In The Criminal Act

i) Criminal Act: – ‘Criminal act’ used in section 34 does not refer to individual acts where a crime is committed by a group of
persons. Where a crime is committed by several persons in furtherance of common intention of all of them, each of them
doing some act, similar or diverse, big or small shall be liable for that act. ‘That act’ refers to the ‘criminal act’ used in
section 34 which means the unity of criminal behaviour which results in something for which an individual would be
punishable if it were all done by himself alone in an offence.

ii) Criminal Act Done By Several Persons: – The criminal act in question must have been done by several persons i.e. by
more than one person. The number of wrong doers should be at least two.

(iii) In furtherance of common intention of all - The expression ‘common intention’ means unity of purpose or a pre-
arranged plan; it has been given various meanings which are as follows-

Common intention implies a pre-arranged plan, prior meeting of minds, prior consultation in between all the persons
constituting the group [Mahboob Shah v. Emperor, AIR 1945 PC 118].

iv) Participation In The Criminal Act:- The law requires that the accused must be present on the spot during the occurrence
of the crime and take part in its commission; it is enough if he is present somewhere nearby.

The Supreme Court has held that it is the essence of the section that the person must be physically present at the actual
commission of the crime. He need not be present in the actual room; he can for instance, stand guard by a gate outside
ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their
escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission
of the offence some way or other at the time crime is actually being committed.

Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1 The first leading case on the point is Barendra Kumar Ghosh v.
King Emperor, AIR 1925 PC 1 (also known asShankari Tola Post Office Murder Case ).

In this case several persons appeared before the sub-post master who was counting the money on the table and demanded
the money. In the mean time they opened fire killed the sub-post master and ran away without taking any money. Barendra
Kumar was, however, caught with a pistol in his hand and was handed over to the police.

The accused was tried under sections 302/34 as according to the prosecution he was one of the three men who fired at the
sub-post master. The accused denied his charge on the ground that he was simply standing outside and had not fired at the
deceased. Trial Court - High Court - Privy Council
The provisions of section 34 come into application when the accused person actively participate in the execution of
prearranged plan. Active participation does not necessarily imply that all must to do the criminal act at the exact spot of the
crime.

Common intention may develop on the spot. : Exception To The General Rule- Generally, it is said that, “a common object
may develop on the spot but a common intention cannot”. But, in certain circumstances common intention also may
develop suddenly on the spot and such common intention may be inferred from the facts and circumstances of the case
and conduct of the accused persons.

This opinion was expressed by the Supreme Court in the case of Krishna Gobind Patil v. State of Maharashtra. The similar
opinion was also approved by the Supreme Court in Hari Om v. State of U.P.

In Kripal Singh v. State of U.P., AIR 1954 SC 706; the Supreme Court held that a common intention may develop on the spot
after the offenders have gathered there. A previous plan is not necessary. Common intention may be inferred from the
conduct of the accused and the circumstances of the case.

The Supreme Court, in Pratap Singh v. State of M.P., held that the common intention in criminal jurisprudence is the
premeditated meeting of minds. No doubt the common intention can also be formed on the spot.

Difference Between Common Intention And Common Object:-

S.No Common Intention Common Object

1. Under Section 34 number of persons must Under Section 149 number of persons must be
be more than one. five or more.

2. Section 34 does not create any specific Section 149 creates a specific offence.
offence but only states a rule of evidence.

3. Common intention required under Section Common object under Section 149 must be
34 may be of any type. one of the objects mentioned in Section 141.

4. Common intention under Section 34 Under Section 149, prior meeting of minds is
requires prior meeting of minds or pre- not necessary.
arranged plan

5. Under Section 34 some active participation Section 149 does not require active
is necessary, especially in a crime involving participation and the liability arises by reason
physical violence. of mere membership of the unlawful assembly
with a common object.

SECTION 35 When such an act is criminal by reason of its being done with a criminal
knowledge or intention:
Whenever an act, which is criminal only by reason of its being done with a criminal
knowledge or intention, is done by several persons, each of such persons who joins in
the act with such knowledge or intention is liable for the act in the same manner as if
the act were done by him alone with that knowledge or intention.
This section can also be called as Joint Liability, it means if an act (criminal) is done
with the intention or knowledge which is criminal, all the person will be charged as such
as if one person would have done the act.
There are many offences in the Indian Penal Code where an accused shall be liable only
when he possesses a certain criminal knowledge or intention. If such an act is done by
more than one persons each of such persons who joins in the act with such knowledge
or intention shall be liable for the act in the same manner as if he alone had done that
act with that knowledge or intention.
Under this section there is no common intention amongst the assailants as is required
under section 34 but all those who join in a criminal act, made punishable only when
done with a distinct criminal knowledge or intention, with the same knowledge or
intention, are liable.
The distinction between Sections 34 and 35 is that sec 34 deals with only common
intention while sec 35 deals with common intention which is criminal in nature.

SECTION 36 : Effect caused partly by act and partly by omission.

Wherever the causing of a certain effect, or an attempt to cause that effect,
by an act or by an omission, is an offence, it is to be understood that the
causing of that effect partly by an act and partly by an omission is the same
offence.
Illustration A intentionally causes Z’s death, partly by illegally omitting to give
Z food, and partly by beating Z. A has committed murder.
This section means if any person causes certain act or attempts to cause or
omits by which the act takes place which injures other person the act said to
be the same as if he had done it intentionally
SECTION 37 : Co-operation by doing one of several acts constituting an offence.—When an offence is committed by means
of several acts, whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either
singly or jointly with any other person, commits that offence.

Illustrations

(a) A and B agree to murder Z by severally and at different times giving him small doses of poison. A and B administer the
poison according to the agreement with intent to murder Z. Z dies from the effects of the several doses of poison so
administered to him. Here A and B intentionally co-operate in the commission of murder and as each of them does an act
by which the death is caused, they are both guilty of the offence though their acts are separate.

(b) A and B are joint jailors, and as such have the charge of Z, a prisoner, alternatively for six hours at a time. A and B,
intend ing to cause Z’s death, knowingly co-operate in causing that effect by illegally omitting, each during the time of his
attend ance, to furnish Z with food supplied to them for that purpose, Z dies of hunger. Both A and B are guilty of the
murder of Z.

(c) A, a jailor, has the charge of Z, a prisoner. A, intending to cause Z’s death, illegally omits to supply Z with food; in
conse quence of which Z is much reduced in strength, but the starvation is not sufficient to cause his death. A is
dismissed from his office, and B succeeds him. B, without collusion or co-operation with A, illegally omits to supply Z with
food, knowing that he is likely thereby to cause Z’s death. Z dies of hunger. B is guilty of murder, but, as A did not co-
operate with B. A is guilty only of an attempt to commit murder.

The distinction between Sections 34 and 37 is that while the former requires a common intention for a criminal act done by
several persons (i.e., unity of criminal behaviour which results in a criminal offence), in which case each actor becomes
liable as if that act were done by him alone.

Section 37 deals with intentional co-operation (which may not be the same as a common intention) in an offence
committed by means of several acts, and punishes such co-operation (provided it consists in doing any one of those of
acts either singly or jointly with any other person) as if it constituted the offence itself.

SECTION 38 : Persons concerned in criminal act may be guilty of different offences.—Where several persons are engaged
or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act.

Illustration A attacks Z under such circumstances of grave provocation that his killing of Z would be only culpable homicide
not amounting to murder. B, having ill-will towards Z and intending to kill him, and not having been subject to the
provocation, assists A in killing Z. Here, though A and B are both engaged in causing Z’s death, B is guilty of murder, and A
is guilty only of culpable homicide.

SECTION 39 : Voluntarily. A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended
to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause
it.

Illustration A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus
causes the death of a person. Here, A may not have intended to cause death; and may even be sorry that death has been
caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily.

This section means when a person voluntarily does such an act which is likely to cause harm or loss of life, even though he
is not intented to kill anybody or feel sorry for loss of life, he knew something likely would happen, he'll be liable under this
section. For example A is Driving at a speed of 80 KMps in a narrow lane, risks are that someone might get hurt, and
someone died it will be as A has voluntarily done the said act.

SECTION 40 : Offence Except in the [Chapters] and sections mentioned in clauses 2 and 3 of this section, the word
"offence" denotes a thing made punishable by this Code. In Chapter IV, [Chapter VA] and in the following sections, namely,
sections [64, 65, 66, 5*[67], 71], 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224,225,
327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word "offence" denotes a thing punishable under this Code, or
under any special or local law as hereinafter defined. And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word
"offence" has the same meaning when the thing punishable under the special or local law is punishable under such law with
imprisonment for a term of six months or upwards, whether with or without fine.]

This section means the word offence denotes a thing which is punishable under this code. Except clause 2 and 3, clause 2
says it's punishable under this code or any other code hereinafter mentioned, clause 3 states the term offence is punishable
under local law or any other special law for which imprisonment is for term of 6 months or more and can be with or without
fine.

SECTION 41. SPECIAL LAW : A “special law” is a law applicable to a particular subject.

SECTION 42. LOCAL LAW : A “local law” is a law applicable only to a particular part of India.

SECTION 43. ILLEGAL, LEGALLY BOUND TO DO : The word “illegal” is applicable to everything which is an offence or which
is prohibited by law, or which furnishes ground for a civil action; and a person is said to be “legally bound to do” whatever it
is illegal in him to omit.
The word ‘illegal’ has been given a very wide meaning under this section. Firstly, everything which is an offence is illegal.
Offence here has the same meaning as given in section 40 of the Code. Secondly, everything which is prohibited by law is
illegal. The prohibition should be under some law.

Any other kind of prohibition does not make an act illegal within the meaning of this section. Breach of a departmental
order, for insance, is not illegal as the same is not covered under the expression ‘prohibited by law’. Similarly, refusing to
perform such acts as charity or mercy is not illegal if the same is not prohibited by law. Thirdly, everything which furnishes
ground for a civil action is illegal. Consequently, whenever someone does something for which an action can be brought in
the Civil Court, his act is illegal under this section. Therefore, a breach of contract or a breach of trust is ‘illegal’ under this
section since the same furnishes a ground for a civil action.

The expression ‘legally bound to do’ means whatever it is illegal in one to omit.

InMailsami v. State, the Madras High Court held that sexual intercourse between two unmarried persons with consent does
not amount to illegal act under section 43 of the Code.

SECTION 44. INJURY : The word “injury” denotes any harm whatever illegally caused to any person, in body, mind,
reputation or property.

SECTION 45. LIFE : The word “life” denotes the life of a human being, unless the contrary appears from the context.

This section talks about life, i.e. life of a human being.

SECTION 46. DEATH : The word “death” denotes the death of a human being unless the contrary appears from the context.

This section talks about Death, i.e. Death of a human being.

SECTION 47. ANIMAL : The word “animal” denotes any living creature, other than a human being.

SECTION 48. VESSEL : The word “vessel” denotes anything made for the conveyance by water of human beings or of
property.

SECTION 49. YEAR, MONTH : Wherever the word “year” or the word “month” is used, it is to be understood that the year or
the month is to be reckoned according to the British calendar.

SECTION 50. SECTION : The word “section” denotes one of those portions of a chapter of this Code which are distinguished
by prefixed numeral figures.

SECTION 51. OATH : The word “oath” includes a solemn affirmation substituted by law for an oath, and any declaration
required or authorized by law to be made before a public servant or to be used for the purpose of proof, whether in a Court
of Justice or not.

This section explains about what an Oath is, It's a solemn affirmation that one shall speak only truth in the court of law.

SECTION 52. GOOD FAITH : Nothing is said to be done or believed in “good faith” which is done or believed without due care
and attention.

In Hayat v. Emp., the accused saw a stooping child at a place which was believed by him and other villagers to be haunted.
He killed the child before disco vering his mistake. It was held that his act could not be held to have been done in good
faith.

Absence of good faith, according to the Code, only means carelessness or negligence.

PLEA OF GOOD FAITH AS DEFENCE: The Code recognizes plea of “good faith” as good defence in the following cases:

1. Act done by a person who, by reason of mistake of fact, in good faith, believes himself to be bound by law to do it (S. 76);

2. Act of a judge when acting judicially in the exercise of any power which, in good faith, he believes to be given to him by
law (S. 77);

3. Act done pursuant to the judgment or order of a court, if done whilst such judgment or order remains in force,
notwithstanding the court may have had no jurisdiction to pass such judgment or order, provided the person doing the act
in good faith believes that the court had such jurisdiction (S. 78);
4. Act done by a person who, by reason of a mistake of fact, in good faith, believes himself to be justified by law in doing it
(S. 79);

5. Act done in good faith for the benefit of a person even without that person’s consent (S. 92);

6. Communication made in good faith even though harm may ensue to the person to whom it is made for the benefit of that
person (S. 93);

7. Culpable homicide is not murder if the offender being a public servant or aiding a public servant or acting for the
advancement of public justice exceeds the power given to him by law and causes death by doing an act which he, in good
faith, believes to be lawful and necessary for the due dis charge of his duty (S. 300, Exception 3);

8. Obstruction of a private way over land or water which a person, in good faith, believes himself to have a lawful right to
obstruct is not an offence of wrongful re straint (Exception to S. 339) and

9. Expression in good faith of any opinion respecting the conduct or character of a public servant, in the discharge of his
public duties, respecting the conduct or character of any person touching any public question, respecting the merits of any
case decided by a court or of conduct of witnesses and respecting the merits of any performance of an author, censure
passed in good faith by person having lawful authority over another, accusation preferred in good faith to an authorized
person, imputation made in good faith by a person for protection of his or other’s interests and caution con veyed in good
faith for the good of the person to whom conveyed or for public good. (S. 499).

SECTION 52A. HARBOUR : *52A “Harbour”.- Except in Section 157, and in Section 130 in the case in which the harbour is
given by the wife or husband of the person harboured, the word “harbour” includes the supplying a person with shelter, food,
drink, money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means, whether of the
same kind as those enumerated in this section or not, to evade apprehension.

* Ins. by Act 8 of 1942, sec. 2 (w.e.f. 14-2-1942).

This section was added in the Indian Penal Code by the Indian Penal Code (Amendment) Act, 1942. Simultaneously, section
216-B was repealed by this Amendment Act. That section, before its repeal, defined the word ‘harbour’ as used in sections
212, 216 and 216-A of the Code.

Under section 52-A the definition of the word has been widened. This section, at the same time, has kept section
157, and section 130 where a husband harbours his wife or vice versa, out of its purview.

In State of Tamil Nadu v. Nalini and others, the Supreme Court held that a wife could not be charged for harbouring her
husband merely because she was living in the house with her husband.

Chapter 3
SECTION 53. PUNISHMENT : The punishments to which offenders are liable under the provisions of this Code are—

First.— Death;

*[Secondly.—Imprisonment for life;]

*[“Thirdly”]

Fourthly. —Imprisonment, which is of two descriptions, namely:—

(1) Rigorous, that is, with hard labour;

(2) Simple;
Fifthly. —Forfeiture of property;

Sixthly. —Fine.

* Subs. by Act 26 of 1955, sec. 117 and Sch., for “Secondly—Transportation” (w.e.f. 1-1-1956).

**Clause “Thirdly” omitted by Act 17 of 1949, sec. 2 (w.e.f. 6-4-1949).

Punishment: The section enumerates the kinds of punishment which can be meted out to offenders under the provisions of
the Code. These are death, imprisonment for life, rigorous or simple imprisonment, forfeiture of property and fine.

● Death: Death sentence may be awarded for offences under sections 121, 132, 194, 195-A, 302, 305, 307, 364-A, and 396
of the Code.

● Imprisonment for life: The words ‘imprisonment for life’ were substituted for ‘transportation for life’ by Act XXVI of 1955.
Imprisonment for life is always rigorous, never simple. Imprisonment for life may be awarded under sections 121, 121-A,
122, 124-A, 125, 128, 130, 131, 132, 194, 195, 195-A, 222, 225, 232, 238, 255, 302, 304, 305, 307, 311, 313, 314, 326, 329, 364,
364-A, 371, 376, 377, 388, 389, 394, 396, 400. 409, 412, 433, 436, 437, 449, 460, 467, 472, 474, 475, 477 and 511 of the Code.

Meaning of imprisonment for life : A question that has often been asked is as to what is the exact term of imprisonment for
life. The matter came up before the Supreme Court in Gopal Vinayak Godse v. State wherein it was observed that life
imprisonment means an imprisonment that continues till the life of the convict and is nothing less.

● Rigorous imprisonment only : Offences under sections 194 and 449 of the Code are punishable with rigorous
imprisonment only without any alternative of simple imprisonment being imposed.

● Simple imprisonment only : An offender is punishable with simple imprisonment only, and not rigorous imprisonment, for
committing an offence under any of the sections 168, 169, 172, 173, 174, 175, 176, 178, 179, 180, 187, 188, 223, 225- A, 228,
291, 341, 500, 501, 502, 509 and 510 of the Code.

● Imprisonment : There are two kinds of imprisonment under this section rigorous, that is, with hard labour, and simple. The
former means that during the tenure of his imprisonment one has to do hard labour. The latter, on the other hand, is a case
of imprisonment only without any hard labour.

● Minimum mandatory imprisonment : There are a few sections in the Indian Panel Code, like sections 304-B, 397 and 398,
wherein a minimum mandatory imprisonment of seven years have been provided. In section 376 also a minimum
mandatory of imprisonment of seven years for ordinary rape and ten years for custodial rape as well as gang rape has been
provided.

● Minimum imprisonment : The minimum duration of imprisonment provided for an offence under the Code is
imprisonment for twenty four hours under section 510 of the Code.

● Counting of the first day of imprisonment : The day of passing of imprisonment is the first day of the sentence of
imprisonment. The duration of the imprisonment, therefore, is to be counted from that day.

● Forfeiture of property : The Indian Penal Code provides the punishment of forfeiture of specific property for offences
under sections 126, 127, 169 and 263-A of the Code. However, absolute forfeiture of property dealt with under sections 61
and 62, previously in operation for offences of high political nature and offences punishable with death, has been abolished
by the Indian Penal Code (Amendment) Act, 1921. The Rajasthan High Court has held in Brijlal v. State, that confiscation of
a weapon of offence is not forfeiture of property within the meaning of section 53 of the Code.

● Fine : Punishments in the form of imprisonment or fine or both have been provided under many sections of the Code and
the Courts have been empowered to award whatever sentence they deem fit out of the above. Consequently, it is at the
discretion of the Court to decide as to whether either imprisonment or fine or both are to be awarded in a particular case.
Fine is the only punishment provided under the Indian Penal Code in the following sections:

● Unlimited Fine : Provision has been made under sections 155, 156 and 171-G for imposition of unlimited amount as fine.

● Fine limited to Rs. 1000/- : In sections 154 and 294-A the maximum limit of fine has been fixed at Rs. 1000/- only.

● Fine limited to Rs. 500/- : Sections 137, 171-H, 171-1 and 278 provide for a maximum fine of Rs. 500/- only.
● Fine limited to Rs. 200/- : Under sections 263-A, 283 and 290 the maximum limit of fine has been fixed at Rs. 200/- only.

While imposing fine the Courts have kept in mind many important factors including the nature of the offence committed,
capacity of the offender to pay and usefulness of the imposition of fine.

SECTION 53A. CONSTRUCTION OF REFERENCE TO TRANSPORTATION

*53A. Construction of reference to transportation.- (1) Subject to the provisions of sub-section (2) and sub-section (3), any
reference to “transportation for life” in any other law for the time being in force or in any instrument or order having effect
by virtue of any such law or of any enactment repealed shall be construed as a reference to “imprisonment for life”.

(2) In every case in which a sentence of transportation for a term has been passed before the commencement of the Code
of Criminal Procedure (Amendment) Act, **[1955] (26 of 1955), the offender shall be dealt with in the same manner as if
sentenced to rigorous imprisonment for the same term.

(3) Any reference to transportation for a term or to transportation for any shorter term (by whatever name called) in any
other law for the time being in force shall be deemed to have been omitted.

(4) Any reference to “transportation” in any other law for the time being in force shall,-

(a) If the expression means transportation for life, be construed as a reference to imprisonment for life;

(b) If the expression means transportation for any shorter term, be deemed to have been omitted.

* Ins. by Act 26 of 1955, sec. 117 and Sch. (w.e.f. 1-1-1956).

**. Subs. by Act 36 of 1957, sec. 3 and Sch. II, for “1954” (w.e.f. 17-9-1957).

SECTION 54. COMMUTATION OF SENTENCE OF DEATH : In every case in which sentence of death shall have been passed,
*[the appropriate Government] may, without the consent of the offender, commute the punishment for any other
punishment provided by this code.

*Subs. by the A.O. 1950, for “the Central Government or the Provincial Government of the Province within which the
offender shall have been sentenced”. The words in italics were subs. by the A.O. 1937, for “the Government of India or the
Government of the place”.

SECTION 55. COMMUTATION OF SENTENCE OF IMPRISONMENT FOR LIFE

In every case in which sentence of *[imprisonment] for life shall have been passed, **[the appropriate Government] may,
without the consent of the offender, commute the punishment for imprisonment of either description for a term not
exceeding fourteen years.

*Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation” (w.e.f. 1-1-1956).

**Subs. by the A.O. 1950, for “the Provincial Government of the Province within which the offender shall have been
sentenced”. The words in italics were subs. by the A.O. 1937, for “the Gov ernment of India or the Government of the
place”.

SECTION 55A. DEFINITION OF APPROPRIATE GOVERNMENT

*55A. Definition of “appropriate Government”.- In sections fifty-four and fifty-five the expression“appropriate Government”
means, —

(a) In case where the sentence is a sentence of death or is for an offence against any law relating to a matter to which the
executive power of the Union extends, the Central Government; and

(b) In case where the sentence (whether of death or not) is for an offence against any law relating to a matter to which the
executive power of the State extends, the Government of the State within which the offender is sentenced.

*Subs. by the A.O. 1950, for section 55A which had been ins. by the A.O. 1937.

SECTION 56. SENTENCE OF EUROPEANS AND AMERICANS TO PENAL SERVITUDE. : Proviso as to sentence for term
exceeding ten years but not for life

[Rep. by the Criminal Law (Removal of Racial Discriminations) Act, 1949 (17 of 1949) (w.e.f. 6-4-1949).]

SECTION 57. FRACTIONS OF TERMS OF PUNISHMENT : In calculating fractions of terms of punishment, *[imprisonment]
for life shall be reckoned as equivalent to *[imprisonment] for twenty years.

*Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation” (w.e.f. 1-1-1956).

SECTION 58. OFFENDERS SENTENCED TO TRANSPORTATION HOW DEALT WITH UNTIL TRANSPORTED : [Rep. by the Code
of Criminal Procedure (Amendment) Act, 1955 (26 of 1955), see. 117and Sch. (w.e.f. 1-1-1956).

SECTION 59. TRANSPORTATION INSTEAD OF IMPRISONMENT. : [Rep. by the Code of Criminal procedure(Amendment) Act,
1955(26 0f 1955), s.117 and Sch.. (w.e.f. 1.1.1956).]

SECTION 60. SENTENCE MAY BE (IN CERTAIN CASES OF IMPRISONMENT) WHOLLY OR PARTLY RIGOROUS OR SIMPLE :
In every case in which an offender is punishable with imprisonment which may be of either description, it shall be
competent to the Court which sentences such offender to direct in the sentence that such imprisonment shall be wholly
rigorous, or that such imprisonment shall be wholly simple, or that any part of such imprisonment shall be rigorous and the
rest simple

SECTION 61. SENTENCE OF FORFEITURE OF PROPERTY : [Rep. by the Indian Penal Code (Amendment) Act, 1921 (16 of
1921), sec. 4.]

SECTION 62. FORFEITURE OF PROPERTY, IN RESPECT OF OFFENDERS PUNISHABLE WITH DEATH, TRANSPORTATION OR
IMPRISONMENT : Rep. by the Indian Penal Code (Amendment) Act, 1921 (16of 1921), sec. 4.

SECTION 63. AMOUNT OF FINE : Where no sum is expressed to which a fine may extend, the amount of fine to which the
offender is liable is unlimited, but shall not be excessive.

The use of the word ‘shall’ indicates that the fine must never be excessive. Section 25, General Clauses Act, 1897 relating to
recovery of fines states that sections 63 to 70 of the Indian Penal Code and the provisions of the Code of Criminal
Procedure for the time being in force in relation to the issue and the execution of warrants for the levy of fines shall apply to
all fines imposed under any Act, Regulation, rule or bye-law unless the Act, Regulation, rule or bye-law contains an express
provision to the contrary.

SECTION 64. SENTENCE OF IMPRISONMENT FOR NON-PAYMENT OF FINE : *[In every case, of an offence punishable with
imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment,

and in every case of an offence punishable **[with imprisonment or fine, or] with fine only, in which the offender is
sentenced to a fine,]

it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of
the fine, the offender shall suffer imprisonment for a certain term, in which imprisonment shall be in excess of any other
imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.

* Subs. by Act 8 of 1882, sec. 2, for “In every case in which an offender is sentenced to a fine”.

**Ins. by Act 10 of 1886, sec. 21(2).

The section makes provisions for imprisonment in default of payment of the fine. If the first para is read carefully, it is clear
that use of the words ‘as well as’ indicates that the section applies where an offence is punishable with imprisonment and
also to such cases where it is punishable with fine. The second para makes it clear that the section also applies to cases
where an offence is punishable with imprisonment or fine, or with fine only.

The third para states that in all the above mentioned cases the Court is empowered, while sentencing an offender to a fine,
to direct that in default of payment of the fine the offender has to undergo an additional term of imprisonment.

SECTION 65. LIMIT TO IMPRISONMENT FOR NON-PAYMENT OF FINE, WHEN IMPRISONMENT AND FINE AWARDABLE :
The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-
fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with
imprisonment as well as fine.
SECTION 66. DESCRIPTION OF IMPRISONMENT FOR NON-PAYMENT OF FINE : The imprisonment which the Court
imposes in default of payment of a fine may be of any description to which the offender might have been sentenced for the
offence.

SECTION 67. IMPRISONMENT FOR NON-PAYMENT OF FINE WHEN OFFENCE PUNISHABLE WITH FINE ONLY : If the
offence be punishable with fine only, *[the imprisonment which the Court imposes in default of payment of the fine shall be
simple, and] the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not
exceed the following scale, that is to say, for any terms not exceeding two months when the amount of the fine shall not
exceed fifty rupees, and for any terms not exceeding four months when the amount shall not exceed one hundred rupees,
and for any term not exceeding six months in any other case.

*Ins. by Act 8 of 1882, sec. 3. This section applies to such cases alone where the offence committed is punishable with fine
only.

SECTION 68. IMPRISONMENT TO TERMINATE ON PAYMENT OF FINE : The imprisonment which is imposed in default of
payment of a fine shall terminate when ever that fine is either paid or levied by process of law.

SECTION 69. TERMINATION OF IMPRISONMENT ON PAYMENT OF PROPORTIONAL PART OF FINE : If, before the
expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the
term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the
imprisonment shall terminate.

Illustration A is sentenced to a fine of one hundred rupees and to four month’ imprisonment in default of payment. Here, if
seventy-five rupees of the fine be paid or levied before the expiation of one month of the imprisonment. A will be
discharged as soon as the first month has expired. If seventy-five rupees be paid or levied at the time of the expiration of
the first month, or at any later time while A continues in imprisonment. A will be immediately discharged. If fifty rupees of
the fine be paid or levied before the expiration of two months of the imprisonment, A will be discharged as soon as the two
months are completed. If fifty rupees be paid or levied at the time of the expiration of those two months, or at any later time
while A continues in imprisonment, A will be immediately discharged.

SECTION 70. FINE LEVIED WITHIN SIX YEARS, OR DURING IMPRISONMENT- DEATH NOT TO DISCHARGE PROPERTY
FROM LIABILITY : The fine, or any part thereof which remains unpaid, may e levied at any time within six years after the
passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years,
then at any time previous to the expiration of that period; and the death of the offender does not discharge from the liability
any property which would, after his death, be legally liable for his debts.

SECTION 71. LIMIT OF PUNISHMENT OF OFFENCE MADE UP OF SEVERAL OFFENCES : Where anything which is an offence
is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more
than one of such his of fences, unless it be so expressly provided.

*[Where anything is an offence falling within two or more sepa rate definitions of any law in force for the time being by
which offences are defined or punished, or

where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when
combined, a different offence,

the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one
of such offences.]

Illustrations (a) A gives Z fifty strokes with a stick. Here A may have commit ted the offence of voluntarily causing hurt to
Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for
every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole
beating.

(b) But if, while A is beating Z, Y interferes, and A intention ally strikes Y, here, as the blow given to Y is no part of the act
whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the
blow given to Y.

*. Added by Act 8 of 1882, sec. 4.

SECTION 72. PUNISHMENT OF PERSON GUILTY OF ONE OF SEVERAL OFFENCES, THE JUDGMENT STATING THAT IT IS
DOUBTFUL OF WHICH : In all cases in which judgment is given that a person is guilty of one of several offences specified in
the judgment, but that it is doubtful of which of these offences he is guilty, the offender shall be punished for the offence
for which the lowest punishment is provided if the same punishment is not provided for all.

SECTION 73. SOLITARY CONFINEMENT : Whenever any person is convicted of an offence for which under this Code the
Court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be
kept in solitary confinement for any portion or portions of the imprisonment to which he is sen tenced, not exceeding
three months in the whole, according to the following scale, that is to say—

a time not exceeding one month if the term of imprisonment shall not exceed six months;

a time not exceeding two months if the term of imprisonment shall exceed six months and *[shall not exceed one] year;

a time not exceeding three months if the term of imprisonment shall exceed one year.

*. Subs. by Act 8 of 1882, sec. 5, for “be less than a”.

SECTION 74. LIMIT OF SOLITARY CONFINEMENT : In executing a sentence of solitary confinement, such confinement shall
in no case exceed fourteen days at a time, with intervals between the periods of solitary confinement of not less duration
than such periods: and when the imprisonment awarded shall exceed three months, the solitary confinement shall not
exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary
confinement of not less duration than such periods.

SECTION 75. ENHANCED PUNISHMENT FOR CERTAIN OFFENCES UNDER CHAPTER XII OR CHAPTER XVII AFTER
PREVIOUS CONVICTION : *Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous
conviction.- Whoever, having been convicted,—

(a) by a Court in **[India], of an offence punishable under Chap ter XII or Chapter XVII of this Code with imprisonment of
either description for a term of three years or upwards, [***] shall be guilty of any offence punishable under either of those
Chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to ****[imprisonment
for life], or to imprisonment of either description for a term which may extend to ten years.]
* Subs. by Act 3 of 1910, sec. 2, for the original section.

** The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, sec. 3 and Sch., to read as above.

*** The word “or” at the end of clause (a) and clause (b) omitted by Act 3 of 1951, sec. 3 and Sch.

****Subs. by Act 26 of 1955, sec. 117 and Sch., for “transporta tion for life” (w.e.f. 1-1-1956).

Chapter 4 General Exceptions

(Section 76 - 106 )
The criminal law outlines different punishments for various crimes. But a person may not always be punished
for a crime that he/she has committed. The Indian Penal Code, 1860 recognizes defenses in chapter four under
the heading ‘General Exceptions.’ Sections 76 to 106 of the IPC cover these defenses. The defenses are
generally classified under two heads- justifiable and excusable.

1)Excusable General Exceptions 2) Justified Act

Mistake of fact (Section 76 & 79) Judicial Act (Section 77 and 78)

Accident (Section 80) Necessity (Section 81)

Infancy (Section 82, 83) Consent (Section 87 – 92)

Insanity (Section 84) Duress (Section 94)

Intoxication(Section 85 & 86) Communication (Section 93)

Trifles (Section 95)

Private Defense (Section 96 -106)

Absence of Criminal Intention : (Section 81 to 86) (Section 92 and 94)

MISTAKE OF FACT (SECTION 76 AND 79) : The two sections exclude a person from criminal liability when
they are ignorant of the existence of relevant facts or have mistaken them and commit a wrongful act, in good
faith, believes himself to be bound or justified by law.

It is always to be kept in mind that mistake relating to the facts in various case laws should be a mistake of fact,
not a mistake of law. The mistake of law is never excusable in any court of law because everyone is always
expected to know the law of the land.

It is important that the mistake must be reasonable and must pertain to the fact of the case and not the law.

This is derived from the legal maxim “Ignorantia facit excusat, ignorantia juris non excusat ”.

(Ignorance of fact excuses, ignorance of law does not excuse).

SECTION 76 : Section 76 excuses a person from criminal liability who, in to good faith, commits an act which he
believes he is bound to do so under law, due to mistake of fact.

A person believes that he is under a legal compulsion to do such an act.

Ingredients of Section 76

1) An act must be done by reason of a mistake of fact not by reason of a mistake of law.

2) Act done with due care and attention (in Good Faith section 52).

3) He must believes himself to be bound by law to do such act.

Illustration A soldier firing on a mob under the lawful orders of his superior – This is an act where the soldier is
bound by law to do so.

If the superior's order is unlawful then the subordinate officer is not bound to do it.

If a subordinate officer obeys the illegal orders of his superior. Then the subordinate officer will be liable for
obeying those illegal commands.

Respondeat superior (Let the master answer) is not apply here..

Section 76 of IPC is also applicable to private persons who help the police or other officers.

Section 43 of CrPC empowers the private person to arrest a person suspected to have committed non-bailable
offence and to apprehends such person and to handover him to the nearest police station

Gopalia Kaliaiay vs.. State (1923) Brief Facts: A, a police officer, of the surrounding district, was ordered to
arrest a wrong-doer. A warrant was issued on the name of wrong-doer. The police officer made reasonable
inquiries arrested the complainant, believing in good faith he was the wrong-doer. The complainant filed a case
against the officer alleging that he was wrongfully confined. The Court held that the police officer was protected
under Sec. 76.

SECTION 79 excuses a person from criminal liability who, in to good faith, commits an act which he believes he
is justified to do, due to mistake of fact.

A person acts because he thinks there is a legal justification for the act he has committed.

Ingredients of Section 79

1) An act must be done by reason of a mistake of fact not by reason of a mistake of law.

2) Act done with due care and attention (in Good Faith section 52).

3) He must believes himself to be justified by law to do such act.

Illustration A sees Z commit what appears to A to be a murder. A, in the exer cise, to the best of his judgment
exerted in good faith, of the power which the law gives to all persons of apprehending murder ers in the fact,
seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out
that Z was acting in self-defence.

State of Orissa vs. Khora Ghasi (1978)

Brief Facts: The accused-an agriculturist was guarding his maize field lying on a Manche (specially constructed
in the agricultural fields). He observed that one animal was moving in his field. He cried. Inspite of his crying, he
observed that some animal was moving in the field and coming towards him.

He fired his gun. In fact, it was not an animal, but a person, who was hiding there. The Court held that the
accused was protected under Sec. 79 and also 80 (Accident).

Emperor vs. Jagmohan Thukral (AIR 1947)

Brief Facts: The accused was passing through a forest in a night. He saw the eyes of an animal besides the
bushes and plants and fired with his gun. Unfortunately two military officers were wounded with that gun fire.

There was a military camp in the forest in that area. The accused did not know about the military camp. He was
tried for the offence under Sec. 307. The Court held that the accused was protected under Sec. 79.

SECTION 77 : ACT OF JUDGE WHEN ACTING JUDICIALLY:

The whole section can be divided into following two parts:

(i) Nothing is an offence which is done by a judge when acting judicially in the exercise of any power which is given to him
by law.

(ii) Nothing is an offence which is done by a judge when acting judicially in the exercise of any power which in good faith he
believes to be given to him by law.

Under the first part, a judge does not commit an offence when he does something in his judicial capacity while exercising a
power which the law has given to him. Under the second part, it is not an offence for a judge to do something in his judicial
capacity while exercising such power which in good faith he believes the law has given to him.

The first part of the section is applicable when a judge acting in his judicial capacity does something while exercising such
a power which in fact has been given to him by law. The law empowers him to do something and he does that thing in his
judicial capacity. In such circumstances he cannot be held liable for an offence.

In Anowar Hussein v. Ajoy Kumar, the Supreme Court found the accused acting in his executive authority and not judicially
and hence was not exempted from liability.

SECTION 78 . ACT DONE PURSUANT TO THE JUDGMENT OR ORDER OF COURT:

Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing
of a lawful act in a lawful manner by lawful means and with proper care and caution.

Illustration A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of
proper caution on the part of A, his act is excusable and not an offence.

The section is a natural corollary to section 77 of the Code. It protects those who execute a judgment or order of the Court
of Justice. The section says that whilst a judgment or order of a Court of Justice remains in force, anything done in
pursuance of the same or warranted by the same is not an offence even if the Court may not have jurisdiction to pass such
judgment or order provided the person who does the act believes in good faith that the Court did have such
jurisdiction.Section 80. Accident in doing a lawful act

SECTION 80 : Accident . Nothing is an offence if it is committed:-

1) By accident or misfortune

2) Without criminal intention or knowledge

3) While doing a lawful act

4) In a lawful manner

5) By lawful means

6) Where due care and caution is exercised.(Good faith)

Accident means an unintentional act or an unexpected act.

It is necessary to prove that the act was done without any criminal intention, with no mens rea. An act that was intended by
or known to the doer cannot be an accident.

The act must be a lawful act, in a lawful manner by lawful means. Proper care and caution must be exercised.

Illustration A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of
proper caution on the part of A, his act is excusable and not an offence.

The Nagpur High Court has held that shooting by an unlicensed gun does not deprive one of this defence if the essential
elements of this defence are proved.

SECTION 81 : NECESSITY AS A DEFENCE :

Act likely to cause harm, but done without criminal intent, and to prevent other harm.—Nothing is an offence merely by
reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to
cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property

Ingredients of Section 81:

1. The circumstances shall compel wrong-doer to do such a criminal act and the wrong-doer shall not have criminal
intention.

2. The wrong-doer shall have to do that act with an intention to prevent other harm.

3. The act must be justified under the circumstances. It is a question of fact.

4. The wrong-doer must act in good faith.

When there are two dangers causing two harms in front of a person, under unavoidable circumstances, he is put to face
them; he is excused to commit less harm.

In such circumstances, he knows what he is doing. He is compelled to do willful wrong-doing. Law excuses him for such
willful wrong-doing. If he does the same thing in the ordinary circumstances, definitely the law punishes him. This is called
the Doctrine of Necessity and Compulsion or Jus necessitates.

This is explained in the famous maxim “Necessitas non habet legem ”. It means: “Necessity knows no laws”.

Illustration - Self-preservation:

Fire is spreading. To stop the spreading of fire, if A pulls down a hut or house, A is excused. A is not guilty of the offence.

Illustration - Right of Private Defence:

If A attacks against the person or property of B, or if A attempts to commit rape against C, B can kill A to protect his person
and property and also C can kill A to protect her chastity.

The Supreme Court has opined in Veeda Menezes v. Yusuf Khan that the word ‘harm’ used in this section and in sections 87,
88, 89, 91, 92, 93, 95, 100, 104 and 106 of the Code can only mean physical injury.

Queen v Dudley and Stepbens[(1884) 14 QBD 273] : Deliberate killing of an unoffending and unresisting man amounts to
willful murder and cannot be justified by necessity– House of Lords– 1884

In the famous English case of Dudley and Stephens, the accused were seamen. Their ship having capsized in a storm they
along with a boy, about seventeen years of age, managed to float on a wooden plank. On the 8th day, Dudley and Stephens
killed the boy and fed the flesh and blood to survive them.

On 12th day, they were rescued by passing the ship. They were prosecuted for the murder of the boy. The accused pleaded
that they acted out of necessity for preservation of their lives.

Both accused were held guilty of murder and their defence of necessity in the form of self-preservation of life was rejected
and they were sentenced to death.

3 principles:

a) Self preservation is not absolute necessity

b) No person has right to take another’s life to preserve his own.

c) There is no necessity that justifies homicide.

Gopal Naidu vs. State (1922) 46 Mad 605) Brief Facts: The accused was a rich person in a village. He drank and created
public nuisance and also grave danger to the public. The village Magistrate arrested him. The accused filed a case against
the village Magistrate.

Judgment: The Court upheld the act of the village Magistrate as it was necessary to protect the people from the grave
danger of the drunken accused and that the village Magistrate acted with lawful authority in good faith under Section 78.
INFANCY (SECTION 82 AND 83) ACTS OF INFANT UNDER SECTIONS 82 AND 83 OF IPC

ACCORDING TO SECTION 82 OF IPC, nothing is an offence where –

Act is done by a child Under seven years of age

Doli Incapax - There is Absolute incapacity for the crime under seven years of age.

Presumption of law- Doli Incapax i.e. a child has no discretion to distinguish right from wrong, thus criminal intention does
not arise.

Marsh v. Loader : In this case, the defendant caught a child while stealing a piece of wood from his premises and gave into
custody. Since the child was under the age of 7 years, he was discharged.

Abettor: No doubt criminal law, as a general principle, exempts a child under seven years of age from the criminal liability.
However, when a child below the age of seven years is engaged by an adult person to commit the offence, such an adult is
liable as an abettor.

ACCORDING TO SECTION 83 OF IPC, nothing is an offence where

1) Act is done

2) by a child between 7-12 years of age

3) Has no sufficient maturity of understanding

4) To judge the nature and consequences of his conduct is no offence.

Malitia Supplet Oetatem – Malice Supplies Age

Ulla Mahapatra’s case : In this case, the accused was a boy over eleven years but under twelve years of age. He ran towards
the deceased with a threatening gesture and saying that he would cut him to bits which he did. The Court held him guilty

Abdul Sattar’s case : In this case, the accused persons who were under twelve years old broke open the lock of a shop and
stole pulse were held guilty on the ground that they had developed sufficient maturity of understanding the nature and
consequences of their act.

If proven to have sufficient maturity of understanding, liability arises.

Illustrations :

(i) A child of 9 years of age took a necklace valued at Rs. 2/8/- from another boy and immediately sold it to another for five
annas, the child was discharged under this section, but the accused was convicted of receiving stolen property for the court
considered convict displaying sufficient intelligence to hold him guilty.

(ii) The accused, a girl of 10 years of age, a servant of the complainant, picked up his button worth eight annas and gave it
to her mother. She was convicted and sentenced to a month’s imprisonment. But the High Court quashed the conviction
holding that there was no finding by the Magistrate that the accused had attained maturity of understanding sufficient to
judge the nature of her act.

In England it is a presumption of law regarding the sexual offences that a boy below fourteen years cannot be guilty of rape.
In India, however, the presumption of English law has no application and therefore boy of twelve years may be convicted of
attempt to commit rape.

INSANITY

SECTION 84.. ACT OF A PERSON OF UNSOUND MIND —Nothing is an offence which is done by a person who, at the time of
doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either
wrong or contrary to law.

Section 84 embodies the fundamental maxim of criminal law—’atus non facit nisi mens sit rea ’ — (an act does not
constitute guilt unless done with a guilty intention). In order to constitute a crime, 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 furiosus mulla voluntas est, , which
means mad man has no Wills.

It is necessary for the application of Section 84 to show —

1. That the accused was of unsound mind;

2. That he was of unsound mind at the time he did the act and not merely before or after the act; and

3. That as a result of unsoundness of mind he was incapable of knowing the nature of the act and that what he was doing
was either wrong or contrary to law.

PERSONS OF UNSOUND MIND: These persons may be said as persons of unsound mind:

(i) Idiot— Idiot is such a person who cannot count upto twenty or cannot tell the name of days of week or his parents.

(ii) Lunatic.—It a person who is permanently mad without any interval is said as natural insanity.

A person who behaves in a stupid way doing crazy and often dangerous things

(iii) Non compos mentis.—If a person has become non compos mentis due to regular illness he is exempted from criminal
liability.

(iv) Disease of mind.—If the accused is suffering from disease of mind at the time of commission of offence, he is entitled
to get the exemption of Section 84.

The accused must show that his cognitive faculties were so impaired that he was deprived of the power of understanding
the nature of the act or distinguishing right from wrong.

For the application of the section it would not be sufficient to show that the accused was mentally unsound at the time of
the commission of the offence. Apart from this it must be clearly proved that his mental condition was so defective that he
was not knowing the nature and quality of the act which he was doing or that he was knowing the act but he was not
knowing that it was wrong.

In Pulu Mura v. State of Assam - the facts were that four young kids were killed by their own father for late coming to the
house after watching movie on the. T.V. which the accused father did not appreciate. The Court held that it cannot be said
that the accused was of unsound mind or he did not understand the implication of what he was doing. The accused was
not really unsound within the meaning of Section 84 of the Indian Penal Code.

Mc Naughten’s Case In 1843, the accused Mc Naughten of Scotland killed Mr. Drummond, the private secretary of the
British Prime Minister Sir Robert Pel, believing under a mistake that he was killing the Prime Minister. He pleaded insanity
and the House of Lords acquitted him of the murder. This generated a lot of public sentiment and debate and the pressure
was so much that ultimately the House of Lords had to constitute a special committee of its own judges to finalise the law
relating to insanity. Five questions were put to this committee of judges and their answers are known as Mc Naughten’s
Rules.

DELUSION OR HALLUCINATION

In Kanbi Kurji v. State the accused believed himself to be pure blooded Suryavanshi Arjun of the Mahabharat. He had cordial
relations with his family members. One day he killed his wife and the eldest son without any provocation. He then went to
the Sarpanch of the village and addressing him as Bhishma Pitamaha he told him that he had killed Bhangdi (meaning his
wife) and Kama (meaning his son). The court held that he was suffering from unsoundness of mind at the time of
committing the murders and even though he knew the nature of his acts at the time, he did not know that his acts were
wrong or contrary to law as he believed himself to be Arjun and, therefore, entitled to kill Bhangdi and Kama. He was
acquitted of the charges.

UNSOUNDNESS CAUSED BY INTOXICATION

Voluntary intoxication is not a defence under sections 85 and 86 of the Code. But if continuous voluntary intoxication on the
part of the accused over a long period of time affects the mind of an accused to such an extent that he becomes a person
of unsound mind then he is entitled to be protected under this section if he satisfies the court that because of the
unsoundness of mind he did not know the nature of his act or that he was doing what was either wrong or contrary to law.
FACTORS PROVING UNSOUNDNESS

In Niman Sha v. State of Madhya Pradesh, the accused committed gruesome murder of two ladies without any reason by
cutting their heads by an axe. There was evidence on record that earlier also he had suffered from attacks of mental
disorder. After the occurrence the accused was saying that he was haunted by God and hence had cut the heads of the two
ladies. The Madhya Pradesh High Court accepted the plea of insanity and directed that the accused be kept in mental
hospital until cured.

SOMNAMBULISM OR SLEEP WALKING : The disease of somnambulism or sleep walking, when proved, may grant
protection to the accused under this section.

Leprosy, insanity, paranoid schizophrenia and paranoid psychosis

INTOXICATION

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 to him without his knowledge or against his will.

Ingredients of involuntary drunkenness

Voluntary drunkenness is no excuse for commission of a crime; Mirza Ghani Baig v. State of Andhra Pradesh, (1997) 2
Crimes 19 (AP).

Principle

(i) So far as knowledge is concerned, the standard of test is same as in case of intention; Mirza Ghani Baig v. State of
Andhra Pradesh, (1997) 2 Crimes 19 (AP).

(ii) The court must attribute to the intoxicated man the same knowledge as if he was quite sober unless he was besides his
mind altogether at the time of incident; Mirza Ghani Baig v. State of Andhra Pradesh, (1997) 2 Crimes 19 (AP).

SECTION 86. OFFENCE REQUIRING A PARTICULAR INTENT OF KNOWLEDGE COMMITTED BY ONE WHO IS INTOXICATED

In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act
in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not
been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

Ingredients

(i) The prosecution has to prove that in spite of drunkenness the accused had intention to commit the act forbidden by law;
Mirza Ghani Baig v. State of Andhra Pradesh, (1997) 2 Crimes 19 (AP).

(ii) Sometimes intention on the part of the person who is drunk can also be assessed from the nature of weapon used in the
com mission of the offence. If a person uses a weapon which is not dangerous and the attack results in death, a
malicious intention cannot be drawn against him even though drunkenness is no excuse; Mirza Ghani Baig v. State of
Andhra Pradesh, (1997) 2 Crimes 19 (AP).
CONSENT AS A GOOD DEFENCE SECTION 87 TO 92 OF IPC

Sec. 87 to Sec. 92 explains about the provisions of Consent. When a person willfully consents an injury he
cannot blame the person who inflicted the injury. Especially in case of medical treatment, the doctor gives
injection. It gives pain. We bear it.

A patient needs operation. He or his relations give consent letter to the doctor. If the operation fails, the doctor
cannot be blamed. That is why it is said “He who consents suffers no injury “.

However, if the doctor negligently operates, he will be held responsible under Section 304-A. We heard Sridevi’s
mother’s operation case in America, and then the doctors conducted the operation negligently. The Court
ordered to pay huge amount towards compensation.

In certain occasions, the doctors do operation for the benefit of the patients. If the operation success, the
patient and his/her relatives are happy. If the operation fails, the patient and his/her relatives become unhappy.

Section 10 of the Indian Contract Act, 1872 says that “all agreements are contracts if they are made by the free
consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby
expressly declared to be void.”

Section 10 also provides that unless law requires, such contract need not be registered or need not be in writing.

This is the legal position of consent and contract in the Law of the Contract.

Getting operation, treatment or any other services, etc., come within the meaning of contract. If we approach a
medical practitioner for treatment, it means we have a contract between us and that medical practitioner. If the
medical practitioner does any negligence, he shall be held liable under the Consumer Protection Act, 1986, and
also under the Indian Penal Code, 1860.

Some of the Sections from 87 to 95 of the Indian Penal Code say about this particular legal matter, i.e., consent.
Mere reading of these Sections, illustrations, is sufficient to understand the effectiveness of “consent”.

SEC. 87. ACT NOT INTENDED AND NOT KNOWN TO BE LIKELY TO CAUSE DEATH OR GRIEVOUS HURT, DONE
BY CONSENT: Nothing which is not intended to cause death, or grievous hurt, and which is not known by the
doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be
intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether
express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely
to cause to any such person who has consented to take the risk of that harm.

Illustration : A & B decided to play boxing if anyone of them gets serious hurt during the act other cannot be held
liable for the injury caused.

The section has no application where, for instance, wrestlers are wrestling on a hard surface, or boxers are
boxing without wearing gloves, or where a prize fight which is prohibited by the law is going on.

This section is based on the principle ‘volenti non fit injuria’ which means he who consents suffers no injury.
It is important to note that the person giving consent must be above eighteen years of age. Also this section
does not justify intentional causing of death or grievous hurt, or where the doer knows that death or grievous
hurt is likely to result to one giving consent.

Poonai Fattemah v. Emp., The accused, who professed to be a snake-charmer, induced the deceased to believe
that he had the power to protect him from any harm caused by snake bite. The deceased, believing this to be
true, allowed himself to be bitten by a snake as a consequence of which he died. The defence of consent was
rejected.

Harpal Singh v. State The Supreme Court held that even though consent of the girl is generally a defence in sex
offences, the same is totally irrelevant in case of rape where the age of the victim is less than sixteen years.

SEC. 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.

Illustration: A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under
a painful complaint, but not intending to cause Z’s death, and intending, in good faith Z’s benefit, performs that
operation on Z with Z’s consent. A has committed no offence.

R.P. Dhanda v. Bhurelal, The appellant, a medical doctor, performed an eye- operation for cataract with the
patient’s consent. The operation, however, resulted in loss of sight. It was held that since the doctor had acted in
good faith for the benefit of the patient, he was protected under section 88 of the Code.

Deepa v. Sub-Inspector of Police The Kerala High Court has held that sections 87 and 88 of the Code cannot be
held to be applicable in cases where interest of the society is involved.

SEC. 89. ACT DONE IN GOOD FAITH FOR BENEFIT OF CHILD OR INSANE PERSON, BY OR BY CONSENT OF
GUARDIAN: Nothing which is done in good faith for the benefit of a person under twelve years of age, or of
unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge
of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or
be known by the doer to be likely to cause to that person:

Provisos: Provided,—

Firstly: That this exception shall not extend to the intentional causing of death, or to the attempting to cause
death;

Illustration : where A, in good faith, for his daughter’s benefit intentionally kills her to prevent her from falling into
the hand of dacoits, A is not within this exception.

Secondly: That this exception shall not extend to the doing of anything which the person doing it knows to be
likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any
grievous disease or infirmity;

Illustration : For instance, A, in good faith, for his child’s benefit without his child’s consent, has his child cut for
the stone by a surgeon, knowing it to be likely that the operation will cause the child’s death, but not intending to
cause the child’s death. A is within the exception, inasmuch as his object was to cure the child.

Thirdly: That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to
cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any
grievous disease or infirmity;

Illustration : A in good faith, for his child’s pecuniary benefit, emasculates his child. Here inasmuch as A has
caused grievous hurt to the child for a purpose other than for preventing of death or grievous hurt to the child, A
is not within the exception.

Fourthly: That this exception shall not extend to the abetment of any offence, to the committing of which
offence it would not extend.

The protection under this section is available only when the act is done in good faith for the benefit of a person
who is under twelve years of age, or a person of any age who is of unsound mind. The explanation to section 92
of the Code states that mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92.

SEC. 90. CONSENT KNOWN TO BE GIVEN UNDER FEAR OR MISCONCEPTION : A consent is not such a consent
as is intended by any Section of this Code, if the consent is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception; or

Consent of insane person : If the consent is given by a person who, from unsoundness of mind, or intoxication,
is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child : Unless the contrary appears from the context, if the consent is given by a person who is under
twelve years of age.

SEC.91. EXCLUSION OF ACTS WHICH ARE OFFENCES INDEPENDENTLY OF HARM CAUSED:

The exceptions in Sections 87, 88 and 89 do not extend to acts which are offences independently of any harm
which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the
consent, or on whose behalf the consent is given.

Illustration : Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is
an offence independently of any harm which it may cause or be intended to cause to the woman.

Therefore, it is not an offence “by reason of such harm”; and the consent of the woman or of her guardian to the
causing of such miscarriage does not justify the act.

SEC. 92. ACT DONE IN GOOD FAITH FOR BENEFIT OF A PERSON WITHOUT CONSENT : Nothing is an offence by
reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that
person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that
person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it
is possible to obtain consent in time for the thing to be done with benefit: Provisos:— Provided,—

Firstly: That this exception shall not extend to the intentional causing of death, or the attempting to cause death;

Secondly: That this exception shall not extend to the doing of anything which the person doing it knows to be
likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any
grievous disease or infirmity;

Thirdly: That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt,
for any purpose other than the preventing of death or hurt;

Fourthly:That this exception shall not extend to the abetment of any offence, to the committing of which offence
it would not extend.

Illustration : (a) Z is thrown from his horse, and is insensible. A, a surgeon finds that Z requires to be trepanned.
A, not intending Z’s death, but in good faith for Z’s benefit, performs the trepan before Z recovers his power of
judging for himself. A has committed no offence.

Illustration : (b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but
not intending to kill Z, and in good faith intending Z’s benefit. A’s bullet gives Z a mortal wound. A has
committed no offence.

Illustration : (c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be
immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the
entreaties of the child, intending in good faith, the child’s benefit. A has committed no offence.

Illustration : (d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child
from the housetop, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and
intending, in good faith, the child’s benefit. Here, even if the child is killed by the fall, A has committed no offence.

Explanation : Mere pecuniary benefit is not benefit within the meaning of Sections 88, 89 and 92.

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RIGHT OF PRIVATE DEFENCE IPC : (Section 96-106) : A Right Available To All People In India
IPC Section 96 to 106 of the penal code states the law relating to the right of private defence of person and
property.

The provisions contained in these sections give authority to a man to use necessary force against an assailant
or wrong-doer for the purpose of protecting one’s own body and property as also another’s body and property
when immediate aid from the state machinery is not readily available and in so doing he is not answerable in law
for his deeds.

NATURE OF THE RIGHT

1) The right of private defence is purely preventive and not punitive or retributive.

2) Danger must be real.

3) Right cannot be based upon surmises(अनुम ान करना)

4) The right of private defence is subject to limitation mention in section 99 clause (3) and (4).

To justify exercise of right of private defence the following are to be examine:

Entire accident.

Injuries received by the accused.

Injuries caused by the accused.

Immense of threat to its safety.

Circumstances whether the accused had time to have recourse to the public authorities.

RIGHT OF PRIVATE DEFENCE VERSUS NECESSITY

The right of private defence arises from necessity that is necessity for self preservation however the concept of
necessity is wider and consequently it can't be said that whenever there is necessity there is right of private
defence.

As expressed in Thangavel case: The general proverb or adage that “necessity knows no law” does not find a
place in modern jurisprudence. The right of self-preservation is inherent in every person but to achieve that end
nothing could be done which militates against the right of another person.

SECTION 96. THINGS DONE IN PRIVATE DEFENCE : Nothing is an offence, which is done in the exercise of the
right of private defence.

Right of private defence cannot be said to be an offence in return. The right of self-defence 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 defence.

It is well settled that in a free fight, no right of private defence is available to either party and each individual is
responsible for his own acts.
The onus of proving the right of private defence is upon the person who wants to plead it. But an accused may
be acquitted on the plea of the right of private defence even though he has not specifically pleaded it.

The right of private defence, cannot be allowed to be used as a shield to justify an aggression. This requires a
very careful weighing of the facts and circumstances of each case to decide as to whether the accused had in
fact acted under this right. Assumptions without any reasonable basis on the part of the accused about the
possibility of an attack do not entitle him to exercise this right. The right of private defence will completely
absolve a persons from all guilt even when he causes the death of another person in the following situations, i.e

# If the deceased was the actual assailant, and

# If the offence committed by the deceased which occasioned the cause of the exercise of the right of private
defence of body and property falls within anyone of the six or four categories enumerated in Sections 100 and
103 of the penal code.

Arjun vs State of Maharashtra AIR 2012.

Reasonable apprehension - for claiming right of private defence reasonable apprehension of death or grievous
hurt should be proved.

Kamparsare vs Putappa : Where a boy in a street was raising a cloud of dust and a passer-by therefore chased
the boy and beat him, it was held that the passer-by committed no offence. His act was one in exercise of the
right of private defence.

SECTION 97. RIGHT OF PRIVATE DEFENCE OF THE BODY AND OF PROPERTY : Every person has a right, subject
to the restrictions contained in Section 99, to defend-

First-His own body, and the body of any other person, against any offence affecting the human body;

Secondly-The property, whether movable or immovable, of himself or of any other person, against any act which
is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to
commit theft, robbery, mischief for criminal trespass.

The right of private defence of property is, therefore, comparatively restricted in the sense that it is available only
in cases of the four offences mentioned above and their attempts.

The offences of theft, robbery, mischief and criminal trespass have been defined under sections 378, 390, 425
and 441 of the Code respectively.

This Section limits exercise of the right of private defence to the extent of absolute necessity

SECTION 97 SAYS THAT THE RIGHT OF PRIVATE DEFENCE IS OF 2 TYPES:

(i) Right of private defence of body,

(ii) Right of private defence of property.

Under section 97 even a stranger can defend the person or property of another person and vice versa, whereas
under the English law there must be some kind of relationship existing such as father and son, husband and wife,
etc., before this right may be successfully exercised

It has been held by the Gauhati High Court in Akonti Bora v. State, that while exercising the right of private
defence of property the act of dispossession or throwing out a trespasser includes the right to throw away the
material objects also with which the tresspass has been committed.

Chotelal vs State : B was constructing a structure on a land subject to dispute between A and B. A was trying to
demolish the same. B therefore assaulted A with a lathi. It was held that A was responsible for the crime of
waste and B had therefore a right to defend his property.

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.

This section lays down the principle that the right of private defence is available against such attackers also who
may be mentally incapacitated and because of which they themselves may not be liable for any harm which they
might cause.

In other words, the right of private defence of body exists against all attackers, whether with or without mens rea.

Such defences are the defences of infancy under section 82, want of maturity of understanding under section 83,
unsoundness of mind under section 84, intoxication under section 85 and any misconception on the part of
those persons under sections 76 and 79 of the Code. The private defence law does not make a distinction
between a normal and a non-normal attacker on body or property of any person and in both cases same right is
available to the defender.

Illustration 1 - Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same
right of private defence which he would have if Z were sane.

Illustration 2 - A enters by night a house which he is legally entitled to enter Z, in good faith, taking A for a house
breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same
right of private defence against Z, which he would have if Z were not acting under that misconception.

SECTION 99. ACT AGAINST WHICH THERE IS NO RIGHT OF PRIVATE DEFENCE : There is no right of private
defence against an act which does not reasonable 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 reasonable cause the apprehension of death
or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith
under colour of his office, though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the protection of the
public authorities.

Extent to which the right may be exercised:--The right to Private defence in no case extends to the inflicting of
more harm that 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, demanded.

In other words , there is no right of private defence :

# Against the acts of a public servant; and

# Against the acts of those acting under their authority or direction;

# Where there is sufficient time for recourse to public authorities; and

# The quantam of harm that may be caused shall in no case be in excess of harm that may be necessary for the
purpose of defence.

The acts in either of these clauses must not be of serious consequences resulting in apprehension of causing
death or of grievous hurt which would deprive one of his right of private defence.

To avail the benefit of those clauses

( i ) the act done or attempted to be done by a public servant must be done in good faith;

( ii ) the act must be done under the colour of his office; and

( iii ) there must be reasonable grounds for believing that the acts were done by a public servant as such or
under his authority in the exercise of his legal duty and that the act is not illegal. Good faith plays a vital role
under this section.

Emperor vs Mammun : The accused, five in number, went out on a moonlit night armed with clubs, and
assaulted a man who was cutting rice in their field. The man received six distinct fractures of the skull-bones
besides other wounds and died on the spot. The accused on being charged with murder pleaded right of private
defence of their property. Held under Section 99 there is no right of private defence in cases where there is time
to have recourse to the protection of the public authorities.

SECTION 100. WHEN THE RIGHT OF PRIVATE DEFENCE OF THE BODY EXTENDS TO CAUSING DEATH : The
right of private defence of the body extends, under the restrictions mentioned in the last preceding section(S99),
to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the
exercise of the right be of any of the descriptions hereinafter enumerated, namely:--

First-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence
of such assault;

Secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the
consequence of such assault;

Thirdly-An assault with the intention of committing rape;

Fourthly-An assault with the intention of gratifying unnatural lust;

Fifthly-An assault with the intention of kidnapping or abducting;

Sixthly-An assault with the intention of wrongfully confining a person, under circumstances which may
reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his
release.
*[Seventhly. An act of throwing or administering acid or an attempt to throw or administer acid which may
reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act]

*Inserted by Section 2 of ‘The Criminal Law (Amendment) Act, 2013’

Illustration - If A attacks against the person or property of B, or if A attempts to commit rape against C, B can kill
A to protect his person and property and also C can kill A to protect her chastity.

Illustration - A husband noticed another man trying to rape his wife who was trying to get out of his clutches.
The husband gave a quick succession of lathi blows resulting in the death of the man and rescued his wife. It
was held that the husband acted in exercise of his right of private defence which he did not exceed.

Nand kishore lal case : Accused who were Sikhs, abducted a Muslim married woman and converted her to
Sikhism. Nearly a year after the abduction, the relatives of the woman’s husband came and demanded her return
from the accused. The latter refused to comply and the woman herself expressly stated her unwillingness to
rejoin her Muslim husband. Thereupon the husband’s relatives attempted to take her away by force. The
accused resisted the attempt and in so doing one of them inflicted a blow on the head of the woman’s
assailants, which resulted in the latter’s death. It was held that the right of the accused to defend the woman
against her assailants extended under this section to the causing of death and they had, therefore, committed
no offence.

Guljara Singh vs State 1971 : The right of private defence is not only against one who actually conflicts a blow
but also against all members of an unlawful assembly which is engaged in doing the act in prosecution of
common object of the unlawful assembly.

SECTION101. WHEN SUCH RIGHT EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH : If the offence be
not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body
does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions
mentioned in Section 99, to the voluntary causing to the assailant of any harm other than death.

Thus, under this section, any harm short of death can be inflicted in the exercise of the right of private defence in
any case which does not fall within the provisions of Section 100.

MOHINDER PAL JOLLY V. STATE OF PUNJAB : Agitating workers of a factory threw some brickbats at their
factory building in support of their demands. and the factory owner by a shot from his revolver caused the death
of a worker, it was held that this section did not protect him as there was no apprehension of death or grievous
hurt.

SECTION 102. COMMENCEMENT AND CONTINUANCE OF THE RIGHT OF PRIVATE DEFENCE OF THE BODY :
The right of private defence of the body commences as soon as 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;
and it continues as long as such apprehension of danger to the body continues.

The apprehension of danger must be reasonable, not fanciful. For example, one cannot shoot one’s enemy from
a long distance, even if he is armed with a dangerous weapon and means to kill. This is because he has not
attacked you and therefore there is no reasonable apprehension of attack.

In other words, there is no attack and hence no right of private defence arises. Moreover the danger must be
present and imminent.
Kala Singh case : The deceased who was a strong man of dangerous character and who had killed one person
previously picked up a quarrel with the accused, a weakling. He threw the accused on the ground, pressed his
neck and bit him. The accused when he was free from the clutches of this brute took up a light hatchet and gave
three blows of the same on the brute’s head. The deceased died three days later. It was held that the conduct of
the deceased was aggressive and the circumstances raised a strong apprehension in the mind of the accused
that he would be killed otherwise.

SECTION. 103. WHEN THE RIGHT OF PRIVATE DEFENCE OF PROPERTY EXTENDS TO CAUSING DEATH : The
right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary
causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the
attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions
hereinafter enumerated, namely;

First-Robbery;

Secondly-House-breaking by night;

Thirdly-Mischief by fire committed on any building, tent or vessel, which building, tent of vessel is used as a
human dwelling, or as a place for the custody of property;

Fourthly-Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension
that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

It justifies homicide in case of robbery, house breaking by night, arson and the theft, mischief or house trespass
which cause apprehension or grievous harm.

This right can be only exercised against certain criminal acts which are mentioned under this section.

Jassa Singh v. State of Haryana : The Supreme court held that the right of private defence of property will not
extend to the causing of the death of the person who committed such acts if the act of trespass is in respect of
an open land. Only a house trespass committed under such circumstances as may reasonably caused death or
grievous hurt is enumerated as one of the offences under Section 103.

SECTION104. WHEN SUCH RIGHT EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH : If the offence, the
committing of which, or the attempting to commit which, occasions the exercise of the right of private defence,
be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section,
that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions
mentioned in section 99, to the voluntary causing to the wrong -doer of any harm other than death.

This section is a corollary of section 103. It says that where the offence of theft, mischief or criminal trespass
has been committed or attempted but the description are different from those enumerated in section 103 of the
Code; the right of private defence of property extends only up to the extent to voluntary causing of any other
harm than death.

The relationship of this section with section 103, both dealing with defence of property, is similar in nature to
that of section 101 with section 100 of the Code, both dealing with defence of body. Here also the section
specifically states that the restrictions mentioned under section 99 of the Code shall have an overriding
influence on this right. The expression ‘voluntary causing’ has same meaning as ‘voluntarily’ defined under
section 39 of the Code.

V. C. Cheriyan v State : The three deceased person along with some other person had illegally laid a road
through the private property of a Church. A criminal case was pending in court against them. The three accused
persons belonging to the Church put up barricades across this road with a view to close it down. The three
deceased who started removing these barricades were stabbed to death by the accused. The Kerela High Court
agreed that the Church people had the right of private defence but not to the extent of causing death of unarmed
deceased person whose conduct did not fall under Section 103 of the Code.

SECTION105. COMMENCEMENT AND CONTINUANCE OF THE RIGHT OF PRIVATE DEFENCE OF PROPERTY :

The Right of private defence of property commences when a reasonable apprehension of danger to the property
commences. The right of private defence of property against theft continues till 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 of as long as the fear of instant death or of
instant hurt or of instant personal restraint continues.

# The right of private defence of property against criminal trespass or mischief continues as long as the
offender continues in the commission of criminal trespass or mischief.

# The right of private defence of property against house-breaking by night continues as long as the house-
trespass which has been begun by such house-breaking continues.

This right can be exercised if only there is no time to have recourse of public authorities. As soon as the
trespass is accomplished successfully the true owner of the property loses right of private defence to protect
property. No right of private defence to protect property is available to a trespasser when disputed land is not at
all in possession of him.

SECTION 106 : “RIGHT OF PRIVATE DEFENCE AGAINST A DEADLY ASSAULT WHEN THERE IS RISK OF HARM
TO INNOCENT PERSON.” : If, in the exercise of the right of private defence against an assault which reasonably
causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right
without risk of harm to an innocent person, his right of private defence extends to the running of that risk.

Illustration: A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of
private defence without firing on the mob, and he cannot fire without risk of harming young children who are
mingled with the mob. A commits no offence if by so firing he harms any of the children.

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1. Which one of the following is not essential for an offence? (MP. APO.)

(A) Intention (B) Motive (C) Prohibited act (D) Punishment for act (Ans : B)

2. In which of the following mens rea has been considered to be an essential element of an offence? (MP. APO.)

(A) Srinivasmal Barolia Vs. Emperor (B) R. Vs. Tolsen

(C) Nathulal Vs. State of Madhya Pradesh (D) All of the above (Ans : D)

3. Which one of the following is not a valuable security?

(A) A postal receipt for an insured parcel (B) A rent note

(C) A promissory note (D) Added of divoree (Ans : D)

4. Common Intention means– (U.P.A.P.O.)

(A) Similar intention (B) Same intention

(C) Sharing of intention by all persons (D) Common plans (Ans : C)

5. Nothing is an offence which is done by a child of– (Chhat. J.S. Exam)

(A) Eight years (B) Ten years (C) Seven years (D) Twelve years (Ans : C)

6. What punishment may be awarded to the person, whose act is covered under general exceptions? (Chhat. J. S.)

(A) No punishment (B) Half of the punishment prescribed for that offence

(C) One-fourth the of the punishment prescribed for offence (D) Depends upon discretion of court (Ans : A)

7. Insanity is–

(A) Lack of free will (B) Incapacity produced due to drunkenness

(C) Incapable of knowing nature of act committed (D) Diseased mind (Ans : D)

8. A instigates B to give false evidence here if B does not give false evidence what offence A has committed? (M.P.C.J.)

(A) A is guilty of no offence (B) Attempt to give false evidence

(C) Offence punishable with the imprisonment of any description provided for that offence for a term which may extend to
one-fourth part of longest term provided for that offence and with fine

(D) None of above (Ans : C)

9. Minimum number of persons required to commit an affray is– (M.P.C.J.)

(A) Five (B) Two (C) Ten (D) Eleven (Ans : B)

10. A puts his hand in pocket of B for stealing money but pocket was empty. A is guilty of–

(A) Theft (B) Not guilty of theft (C) Guilty of attempt to commit theft (D) Not guilty of any offence (Ans : C)

11. Any hurt is grievous if it causes sufferer to be in severe bodily pain or unable to follow his ordinary pursuits during space
of– (Chhat. J.S.)

(A) Fifteen days (B) Twenty days (C) Twenty five days (D) Thirty days (Ans : B)

12. Sexual intercourse by a man with a woman even with her consent is a rape if she is below age of– (U.P.A.P.O.)

(A) 17 years (B) 16 years (C) 19 years (D) 18 years (Ans : B)

13. For abduction abducted person should be–

(A) Below 16 years of age (B) Below 18 years of age (C) insane person (D) Of any age (Ans : D)

14. A does sexual intercourse with a widow below 16 years of age with her consent– (M.P.A.P.O.)

(A) A has not committed Rape (B) A has committed Adultery

(C) A has committed Rape with B (D) Nothing above is correct (Ans : C)

15. Making preparation to commit dacoity is punishable in the Indian Penal Code 1860 under– (U.P.A.P.O.)

(A) Section 393 (B) Section 395(C) Section 398 (D) Section 399 (Ans : D)

16. There is no offence of adultery if it is committed, with consent of–

(A) Woman (B) Husband of woman (C) Member of family of woman (D) Wife of adulterer (Ans : b)

17. A cheats by pretending to be B, a person who is deceased. A commits–

(A) Cheating (B) Cheating by presentation (C) Extortion (D) Dacoity (Ans : B)

18. A commits house trespass by entering Z’s house through a window it is–

(A) Mischief (B) House-breaking (C) Extortion (D) None of the above (Ans : B)

19. A finds a purse with money not knowing to whom it belongs he afterwards discovers that it belongs to B and
appropriates to his own use. A is guilty of– (U.P.A.P.O.)

(A) Theft (B) Criminal Misappropriation (C) Criminal Breach of Trust (D) Cheating (Ans : B)

20. A makes an attempt to pick pocket of B by thrusting his hand into B’s pocket. A fails in attempt in consequence of B’s
having nothing in his pocket. A is guilty of– (M.P.C.J.)

(A) No offence (B) Theft (C) Attempt of theft (D) Using Criminal Force (Ans : c)

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