1 Define Punishment and explain different principle of Punishment

Section 53 of Indian Penal Code, 1860 –

Ans…..
Explained!
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Legal Provisions of Section 53 of Indian Penal Code, 1860.

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.

ADVERTISEMENTS:

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. Since the span of life is uncertain, imprisonment for life is not an
imprisonment for a fixed term. The Supreme Court reiterated the view in Kartar Singh v.
State. In Bhagirath v. Delhi Administration, the Supreme Court said that imprisonment for
life is a sentence for the term of one’s life. In Maru Ram v. State, the Supreme Court ruled
that the section will apply prospectively.

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.
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.

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. However, in this section the Court has
been empowered to impose less than the minimum mandatory imprisonment also by stating
special reasons for the same in the judgment.

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. However, sentences of
imprisonment till rising of the Court have been imposed in very exceptional cases and they
mean that the convict shall remain confined in the premises of the Court till the Court rises.

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. A heavy fine may be imposed where there have been a conspiracy to
smuggle a large quantity of gold into India worth crores of rupees. A college student held
guilty of theft of a scooter could be let off with a fine and the imprisonment already
undergone as he had a wife and small children to maintain.

Where an appeal against acquittal under section 420 of the Code for making substantial gains
by the accused partners took about fifteen years to decide against them, the Court held that
fine, and not imprisonment, was the proper punishment. In a case against the accused under
sections 467, 471, 477A and 409 of the Code, the period of imprisonment was reduced to that
already undergone mainly on the grounds that he was an old man and it was his first offence,
but the amount of fine against him was enhanced to Rs. 100/-.Where a young man accused of
murder was in prison for some time and then remained out of prison on bail for about thirteen
years, it was held that in addition to the period he had already been in prison a fine of Rs.
50,000/- would meet the ends of justice.

In a case against the accused under section 354 of the Code, where a deterrent punishment
was called for, imposition of Rs. 100/- only as fine by the Magistrate was held to be too
lenient. But as enough time had passed since the date of the incident, the High Court merely
raised the amount of fine to Rs. 300/- out of which Rs. 150/- would be paid to the outraged
woman, and in case of default of fine a rigorous imprisonment of one month was ordered. A
fine of one rupee only was imposed on the accused who had committed theft, partly because
he was being paid very low wages and partly because he was subsequently turned out of
employment.

2.Discuss Accident as defense under Indian Penal Code.

 Accident – Section 80 of the Indian
Ans..
Penal Code, 1860 – Explained!
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Nothing is an offence which is done by accident or misfortune—

(a) Without criminal intention or knowledge;

ADVERTISEMENTS:

(b) In the doing of a lawful act—

(i) by lawful manner,

(ii) By lawful means, and

(iii) With proper care and caution.

ADVERTISEMENTS:

Illustrations:

(i) A is at work with a hatchet; the head flies off and kills a man. Here if there was no want of
proper caution on the part of A, A has committed no offence.

(ii) A and B go a hunting. They take up certain positions and lie in wait for the game. A hears
a rustle and thinking that an animal is moving about fires in the direction of the rustle. The
shot reaches B and causes B’s death. B’s death is the result of an accident or misfortune.

(iii) A takes up a gun and without examining whether it is loaded or not points it in sport at B
and the gun goes off killing B. Such a death is an accident or misfortune and A had no
criminal intention or knowledge in pointing it at B, but since there is an absence of proper
care and caution on his part his act shall not be excused under Section 80. The position would
have been otherwise if A had reason to believe that the gun was not loaded and he had acted
with proper care and attention.

ADVERTISEMENTS:

(iv) A shoots at a bird in B’s house in order to steal it and kills B. The act of A is not lawful
as he intended to commit theft and he is not protected for shooting under this section.

(v) A and B are fighting. C intervenes to separate them and in doing so C is stabbed by a
spear in the hand of A. A’s act in stabbing C is illegal. It is not a lawful act.

To invoke the help of Section 80, there should be the absence of both criminal intention as
well as criminal knowledge. No act is per se criminal unless the actor did it with criminal
intent. As the object of criminal law is to punish only serious infractions of the rules of
society, it cannot punish a man for his mistakes or misfortune.

If people in following their common occupations, use due caution to prevent danger, and
nevertheless happens unfortunately to kill anyone, such killing is homicide by misadventure.

Accident is not of itself a defence to a civil suit, unless it was only an accident but also a
misfortune. The word “accident” in the section does not mean mere chance. It rather means
an unintentional, an unexpected act.

In common parlance, “accident” means an event that occurs without one’s sight or
expectation and in the same way law also adopts it.

Actually accident is really an event which occurs all of a sudden and no man of ordinary
prudence could anticipate it. If consequence is caused by an accidental act, the conscience of
nobody would allow to punish the doer, because accidental act is not his act at all. He does
not will it; and therefore he is not responsible for the consequence.

Legal Provisions Regarding “Accident” in

India – Section 80 of IPC
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Section 80 IPC explains that an accident occurred in doing a lawful act is exempted from
criminal liability.

Sec. 80. Accident in doing a lawful act:

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

ADVERTISEMENTS:

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.

Important Points:

ADVERTISEMENTS:

A. Object:

Sec. 80 provides exemption from criminal liability to an act done by accident of 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 attention.
B. State Government of M.P. vs. Rangaswamy (AIR 1952 Nag. 268):

A Heyna, wild animal was moving in the villages and causing injuries and deaths to small
children. The people frightened with it. They complained to the authorities. The Government
deputed certain officers.

ADVERTISEMENTS:

While they were wandering in the forests in search of Heyna, they saw a moving animal
behind the bushes. It was a rainy day and the vision was not clear.

The officers thought that it was the Heyna. It was common that no people would be moving
in that area and in particularly in that rainy time. The accused, one of the officers, fired at the
moving object. The result was that the death of a human being. The Madhya Pradesh High
Court held that the accused was protected under Sec. 80.

C. State of Orissa vs. Khoraghasi (1978 CrLJ 105 Ori.)

The accused was a tribal. He went into the forest to hunt the animals. He shot an arrow with a
bona fide intention that he aimed at an animal. But the arrow caused the death of a human
being. The Orissa Divisional Bench of the High Court acquitted the accused under Sec. 80.

D. Bhupendrasinha A. Chudasama vs. State of Gujarat (SC 1998 SCC 603)

Brief Facts: The accused and the deceased were police constable and head-constable. They
were posted to protect a dam site. The accused killed his colleague in the night by firing at a
close range without knowing the identity of his target. The accused pleaded the defence of
Sec. 80. The trial Court convicted him under Section 302.

On appeal, the Supreme Court confirmed the conviction under Section 302, and held that the
accused acted without proper care and caution, and that the act of accused could not come
under an accident or misfortune or it was not a lawful act.

4. What do you understand by private defence?

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. 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.

Body may be one’s own body or the body of another person and likewise property may be movable
or immovable and may be of oneself or of any other person. Self-help is the first rule of criminal law.
The right of private defence is absolutely necessary for the protection of one’s life, liberty and
property. It is a right inherent in a man. But the kind and amount of force is minutely regulated by
law. The use of force to protect one’s property and person is called the right of private defence.

Nature of The Right

It is the first duty of man to help himself. The right of self-defence must be fostered in the Citizens of
every free country. The right is recognised in every system of law and its extent varies in the inverse
ratio to the capacity of the state to protect life and property of the subject( citizens). It is the primary
duty of the state to protect the life and property of the individuals, but no state, no matter how
large its resources, can afford to depute a policeman to dog the steps of every rouge in the country.
Consequently this right has been given by the state to every citizen of the country to take law into
his own hand for their safety. One thing should be clear that, there is no right of private defence
when there is time to have recourse to the protection of police authorities. The right is not
dependent on the actual criminality of the person resisted. It depends solely on the wrongful or
apparently wrongful character of the act attempted, if the apprehension is real and reasonable, it
makes no difference that it is mistaken. An act done in exercise of this right is not an offence and
does not, therefore, give rise to any right of private defence in return.

IPC 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. While it is true that law does not expect from the person, whose life
is placed in danger, to weigh, with nice precision, the extent and the degrees of the force which he
employs in his defence, it also does not countenance that the person claiming such a right should
resort to force which is out of all proportion to the injuries received or threatened and far in excess
of the requirement of the case. 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.

Courts are empowered to exempt in such cases. It must be borne in mind that the burden of proving
an exception is on the accused. It is not the law that failure to setup such a defence would foreclose
this right to rely on the exception once and for all. It is axiomatic that burden on the accused to
prove any fact can be discharged either through defence evidence or even through prosecution
evidence by showing a preponderance of probability. It is true that no case of right of private
defence of person has been pleaded by the accused not put forth in the cross-examination to the
eye-witnesses but it is well settled that if there is a reasonable probability of the accused having
acted in exercise of right of private defence, the benefit of such a plea can still be given to them.

The right of private defence, as the name suggests, is an act of defence and not of an offence.
Consequently, it 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. It was held in a
case that the distance between the aggressor and the target may have a bearing on the question
whether the gesture amounted to assault. No precise yardstick can be provided to fix such a
distance, since it depends upon the situation, the weapon used, the background and the degree of
the thirst to attack etc.

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.

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. In the other words,
“society places a check on the struggle for existence where the motive of self-preservation would
dictate a definite aggression on an innocent person”.

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.

This Section limits exercise of the right of private defence to the extent of absolute necessity. It must
not be more than necessary for defending aggression. There must be reasonable apprehension of
danger that comes from the aggressor in the form of aggression. This Section divides the right of
private defence into two parts, i.e. the first part deals with the right of private defence of person,
and the second part with the right of private defence of property. To invoke the plea of right of
private defence there must be an offence committed or attempted to be committed against the
person himself exercising such a right, or any other person. The question of the accrual of the right
of the private defence, however, does not depend upon an injury being caused to the man in
question. The right could be exercised if a reasonable apprehension of causing grievous injury can be
established. If the threat to person or property of the person is real and immediate, he is not
required to weigh in a golden scale the kind of instrument and the force which he exerts on the spur
of the moment. The right of private defence extends not only to the defence of one’s own body and
property, as under the English law, but also extends to defending the body and property of any other
person.

Thus 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. A true owner has
every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of
trespassing but has not accomplished his mission; but this right is not available to the true owner if
the trespasser has been successful in accomplishing possession and his success is known by the true
owner. In such circumstances the law requires that the true owner should dispossess the trespasser
by taking recourse to the remedies available under the law. The onus of establishing plea of right of
private defence is on the accused though he is entitled to show that this right is established or can
be sustained on the prosecution evidence itself. The right of private defence is purely preventive and
not punitive or retributive. Once it is held that the party of the accused were the aggressors, then
merely because a gun was used after some of the party persons had received several injuries at the
hands of those who were protecting their paddy crop and resisting the aggression of the party of the
accused, there can be no ground for taking the case out of Section 302, I.P.C., if otherwise the
injuries caused bring the case within the definition of murder.

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.

Parichhat vs State of M.P:

A lathi blow on his father’s head, his son, the accused, gave a blow with a ballam on the chest of the
deceased. The court decided that the accused has obviously exceeded his right of private defence.

IPC 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.

Illustrations:-
# 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.
# 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.
This Section lay down that for the purpose of exercising the right of private defence, physical or
mental capacity of the person against whom it is exercised is no bar. In other words, the right of
private defence of body exists against all attackers, whether with or without mens rea. The above
mentioned illustration are pointing a fact that even if an attacker is protected by some exception of
law, that does not diminish the danger and risk created from his acts. That is why the right of private
defence in such cases also can be exercised, or else it would have been futile and meaningless.

IPC 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.

Section 99 lays down that the conditions and limits within which the right of private defence can be
exercised. The section gives a defensive right to a man and not an offensive right. That is to say, it
does not arm a man with fire and ammunition, but encourage him to help himself and others, if
there is a reasonable apprehension of danger to life and property. The first two clauses provide that
the right of private defence cannot be invoked against a public servant or a person acting in good
faith in the exercise of his legal duty provided that the act is not illegal. Similarly , clause three
restricts the right of private defence, if there is time to seek help of public authorities. And the right
must be exercised in proportion to harm to be inflicted. 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 protection to public servants is not absolute. It is subject to restrictions. 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. Good faith does not require logical infallibility but due care and caution
as defined under Section 52 of the code.

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.

Public prosecute vs Suryanarayan:

On search by customs officers certain goods were found to have been smuggled from Yemen into
Indian Territory. In course of search the smugglers attacked the officers and injured them. They
argued that the officers had no power to search as there was no notification declaring Yemen a
foreign territory under Section 5 of the Indian Tariff Act. It was held, that the officers had acted in
good faith and that the accused had no right of private defence.

IPC Section100. 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, 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.

To invoke the provisions of sec 100, I.P.C., four conditions must exist:
# That the person exercising the right of private defense must be free from fault in bringing about
the encounter.
# There must be present an impending peril to life or of great bodily harm
# There must be no safe or reasonable mode of escape by retreat;
# There must have been a necessity for taking the life.

Moreover before taking the life of a person four cardinal conditions must be present:
(a) the accused must be free from fault in bringing the encounter;
(b) presence of impending peril to life or of great bodily harm, either real or apparent as to create an
honest belief of existing necessity;
(c) no safe or reasonable mode of escape by retreat; and
(d) a necessity for taking assailant’s life.

Yogendra Moraji vs. State:

The supreme court through Sarkaria, J. discussed in detail the extent and the limitations of the right
of private defence of body. One of the aspects emphasized by the court was that there must be no
safe or reasonable mode of escape by retreat for the person confronted with an impending peril to
life or of grave bodily harm except by inflicting death on the assailant. This aspect has create quite a
confusion in the law as it indirectly suggests that once should first try to see the possibility of a
retreat than to defend by using force which is contrary to the principle that the law does not
encourage cowardice on the part of one who is attacked. This retreat theory in fact is an acceptance
of the English common law principle of defence of body or property under which the common law
courts always insisted to look first as to whether the accused could prevent the commission of crime
against him by retreating.

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.

IPC 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.

Mohinder Pal Jolly v. State of Punjab:-

Workers of a factory threw brickbats 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.

IPC Section102. 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. The
apprehension, however, must be reasonable and the violence inflicted must be proportionate and
commensurate with the quality and character of the act done. Idle threat and every apprehension of
a rash and timid mind will not justify the exercise of the right of private defence.
IPC Section103. 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.

IPC Section 103 provides the right of private defence to the property whereas IPC Section 100 is
meant for exercising the right of private defence to the body of a person. 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. If a person does not have possession over the property, he cannot
claim any right of private defence regarding such property. Right to dispossess or throw out a
trespasser is not available to the true owner if the trespasser has been successful in accomplishing
his possession to his knowledge. This right can be only exercised against certain criminal acts which
are mentioned under this section.

Mithu Pandey v. State:

Two persons armed with ‘tangi’ and ‘danta’ respectively were supervising collection of fruit by
labourers from the trees which were in the possession of the accused persons who protested against
the illegal act. In the altercation that followed one of the accused suffered multiple injuries because
of the assault. The accused used force resulting in death. The Patna High Court held that the accused
were entitled to the right of private defence even to the extent of causing death as the forth clause
of this section was applicable.

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 IPC. 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 cannot be said to be giving a concession to the accused to exceed their right of private
defence in any way. If anyone exceeds the right of private defence and causes death of the
trespasser, he would be guilty under Section 304, Part II. This Section is corollary to Section 103 as
Section 101 is a corollary to Section 100.

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.

Section106. Right of private defence against 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 or 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.

This section removes an impediment in the right of private defence. The impediment is the doubt in
the mind of the defender as to whether he is entitled to exercise his right even when there is a
possibility of some innocent persons being harmed by his act. The Sections says that in the case of
an assault reasonably causing an apprehension of death, if the defender is faced with such a
situation where there exists risk of harm to an innocent person, there is no restriction on him to
exercise his right of defence and he is entitled to run that risk.

Conclusion
To justify the exercise of this right the following are to be examined:-
# The entire accident
# Injuries received by the accused
# Imminence of threat to his safety
# Injuries caused by the accused
# Circumstances whether the accused had time to recourse to public authorities.

Right of private defence is a good weapon in the hand of every citizen to defend himself. This right is
not of revenge but toward the threat and imminent danger of an attack. But people can also like
misuse this right. Its very difficult for court to find out whether this right had been exercised in good
faith or not.

7. Explain the principle of common intention and how it differs from common
abject?

Difference between “Common Intention”

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

149. Every member of unlawful assembly guilty of offence committed in prosecution of

common object

If an offence is committed by any member of an unlawful assembly in prosecution of the common

object of that assembly, or such as the members of that assembly knew to be likely to be committed in
prosecution of that object, every person who, at the time of the committing of that offence, is a
member of the same assembly, is guilty of that offence.

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.
Common Intention (Sec. 34):

1. Number of persons must be more than one. But it is not compulsory that the number of
members should be Five.

ADVERTISEMENTS:

2. It does not create specific and substantive offence, but only states a rule of evidence. It is
always read with other substantive Sections. Punishment cannot be imposed solely upon this
Section.

3. Common intention requires under Sec. 34 may be of any type.

4. “Prior meeting of minds” is necessary before a wrongful act is done under this Section. It
requires that all the accused must meet together before actual attack participated by all takes
place.

5. Only offence committed under Sec. 34 in furtherance of common* intention is punishable.

ADVERTISEMENTS:

6. Common intention under Sec. 34 is also called as “Joint Liability”.

7. Illustrations: [Write some case-laws.]

Common Object (Sec. 149)

1. An unlawful assembly must consist at least 5 persons.

ADVERTISEMENTS:

2. It creates a specific and substantive offence. Punishment can be imposed solely depending
upon Sec. 149.

3. Common object under this Sec. 149 must be one of the objects mentioned in Sec. 141, i.e.,
to commit an offence under such objects.

4. “Prior meeting of minds” under this Section is not necessary. Mere membership of
unlawful assembly at the time of commitment of crime is sufficient.

5. Members of unlawful assembly under this Section are not only liable for act done in
prosecution of common to be done in prosecution of the unlawful object, but its consequent
offence/s.

6. Common object under Sec. 149 is also called as “Constructive Liability”.

9. Define abetment and distinguish between abetment and criminal conspiracy

Difference between ‘Abetment and
‘Conspiracy’ – Explained!
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Abetment is of three kinds: (i) abetment by instigation, (ii) abetment by aid, (iii) abetment by
conspiracy. Abetment may be committed in various ways. Conspiracy is one of many such
ways. Conspiracy is punishable in some cases as mere agreement with no overt act in
pursuance therefore, but even abetment by conspiracy requires an overt act the spoken word
or the manifest gesture to constitute it.

Abetment is not punishable per se but conspiracy is.

ADVERTISEMENTS:

The Supreme Court has held that the distinction between the offence of abetment under the
second clause of section 107 and that of criminal conspiracy under Section 120-A is that, in
the former offence a mere combination of persons or agreement between them is not enough.

An act or illegal omission must take place in pursuance of the conspiracy and in order to the
doing of the thing conspired for; in the latter offence the mere agreement is enough if the
agreement is to commit an offence.

Section 120-A may be distinguished from Section 34 of I.P.C. The points of distinction
between the two are as follows: —

Section 34 (Common intention):

ADVERTISEMENTS:

1. Section 34 applies when a criminal act is done in furtherance of the common intention of
all the offenders.

2. Section 34 is a procedural rule; it lays down a principle to determine the criminal liability
of persons more than one in the commission of a crime but does not create a substantive
offence.

3. Active participation in some form is necessary.

4. Criminal act, doing of necessary

ADVERTISEMENTS:

Section 120-A (Conspiracy):

1. Section 120-A deals with or more persons to break law even though the illegal act does not
follow.
2. Section 120-A defines a substantive offence, that is, the offence of conspiracy

3. Participation in the conspiracy may not be beyond assent to the agreement.

4. No act necessary in conspiracy to commit offence.

Section 120-A may, again, be distinguished from Section 107 of the I.P.C. The points of
distinction between the two are as follows: —

Section 107 (Abetment):

1. Abetment consists in instigating a person to commit an offence, or engaging in a

conspiracy to commit it, or intentionally aiding a person to commit it.

2. Abetment may consist of conspiracy as conspiracy is a species of abetment.

3. Abetment per se is not a substantive offence.

Section 120-A (Conspiracy):

1. Conspiracy consists in an agreement between two or more persons to do an illegal act or to

do an act which is not illegal by illegal means and an overt act has been done in pursuance of
the conspiracy in the latter case.

2. A conspiracy would not amount to abetment.

3. Conspiracy per se is a substantive offence.

The Supreme Court in its significant decision in Kehar Singh has observed that ‘there is vital
difference between (i) abetment in any conspiracy, (ii) criminal conspiracy. The former is
defined under the second clause of Section 107 and the latter is under Section 120-A. The gist
of the offence of criminal conspiracy created under Section 120-A is bare agreement to
commit an offence.

It has been made punishable under Section 120-B. The offence of abetment created under the
second clause of Section 107 requires that there must be something more than a mere
conspiracy. There must be some act or illegal omission in pursuance of that conspiracy.

That would be evident by the wordings of Section 107 (Secondly): “engages in any
conspiracy….. for the doing of that thing, if an act or illegal omission takes place in
pursuance of that conspiracy….” The punishments for these two categories of crimes are also
quite different.

Section 109, I.P.C. is concerned only with the punishment of abetments for which no express
provision is made under the Penal Code. A charge under Section 109 should, therefore, be
along with some other substantive offence committed in consequence of abetment.

The offence of criminal conspiracy is, on the other hand, an independent offence. It is made
punishable under Section 120-B for which a charge under Section 109, I.P.C. is unnecessary
and indeed, inappropriate.
In Soma Chakraborty v. Stat the Court held that where fraud alleged to have been committed
by government servants by processing and verifying fake bills, all the officers would be liable
for conspiracy and abetment.

Legal Provisions Regarding “Intoxication”

in India – Section 85 and 86 of IPC
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There are three kinds of abnormal person’s viz., Persons of unsound mind, persons heavily
drunken and minors. These persons do not form the rational thinking, and do not know the
nature of the acts they are doing, and do not know their affects and legal consequences.

Chapter-IV (General Exceptions) of the Indian Penal Code, 1860 exonerates such persons if
their unsoundness of mind, inability of forming rational knowledge of the acts done by them
is proved.

Act done under the influence of heavy intoxication (not voluntarily) is a defence to the
wrong-doer. Sections 85 & 86 of Chapter-IV explain the provisions pertaining to the
wrongful acts done under the influence of intoxication.

ADVERTISEMENTS:

All England Report in its Annual Review 1989 observed: “Alcoholism may constitute a
disease provided it has damaged the brain to an extent as to grossly impair the ability to make
rational judgments and emotional responses.

A killing attributable to alcoholism is one thing but a killing attributable to the taking of
alcohol is quite another and a line must be drawn between the two though it may be a fine
one in some cases.

The taking of alcohol inevitably impairs judgment and the ability to control the emotion
because of the effect it has on the brain but the transient effects of alcohol cannot be
accounted a “disease”.”

ADVERTISEMENTS:

Drunkenness is no excuse. However, delirium tremens (an affection of the brain caused by
alcoholic excess) caused by drinking (not voluntarily) differs from drunkenness in the eye of
the law.

Because it produces certain degree of madness, incapacity to know the nature of the act
whether it is right or wrong. Hence under certain unavoidable circumstances, the act of
heavily drunkard person is excused from criminal responsibility.”

Sec. 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:

ADVERTISEMENTS:

Provided that the thing which intoxicated him was administered to him without his
knowledge or against his will.

Sec. 86. Offence requiring a particular intent or 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:

The ingredients of Sections 85 and 86 are that a person will be exonerated from liability for
an act done while in a state of intoxication, if he, at the time of doing it, by reason of
intoxication, was,—

(a) Incapable of knowing the nature of the act; or

(b) That he was not in a state of mind to know that the act was either wrong or contrary to
law; and

(c) That the thing which intoxicated him was administered to him without his knowledge or
against his will;

(d) And that voluntary drunkenness is not excuse for the commission of a crime.

(e) Burden of proof lies upon the accused.

Basudev vs. State (1956 AIR SC 488)

Brief Facts:

The accused was a retired Jamedar, attended a marriage party, in which he drank liquor
heavily. He wanted to sit in a chair, in which a boy already sat. The accused asked him to
stand so that he would sit in it.

The boy refused. The accused became annoyed, and shot the boy with his pistol. The boy
died on the spot. Thereafter, the accused walked to the police station and surrendered him.

The accused pleaded that he was heavily intoxicated. The prosecution contended that the
defence of intoxication should not be available to the accused, because he took excess liquor
voluntarily, and also at the time of doing the act, he stood independently.
Judgment:

The trial Court held that standing, arguing and shooting at the time of incidence, and walking
to the police station himself without the help of any body, and surrendering himself to the
police show that the accused did not loose his state of mind.

He was aware what he was doing. The trial Court convicted him for the offence of murder.
The High Court and Supreme Court also confirmed the conviction.

R. vs. Tandy (1989) 1 All ER 267)

Brief Facts:

The accused was regularly drinking Yermouth or barley wine. On the incident day, she took
one full bottle of Vodka. During the night, she strangled her 11-year old daughter. She was
charged with murder under Sec. 2 (1) of the Homicide Act, 1957 (equal to Section 302 of
Indian Penal Code). She pleaded the defence of intoxication.

Judgment:

The trial Court convicted her opining that she had chosen to drink Vodka instead of her daily
drink Yermouth. In her case, the defence of involuntary drunkenness cannot be taken,
because she herself was craving to take the alcohol. Court of Appeal acquitted the accused.
On appeal, the House of Lords confirmed the trial Court’s decision.

R. vs. Kingston (1994) 3 All ER 353)

Brief Facts:

The accused-1 invited a fifteen-year boy to his flat, and gave him alcohol mixed cool drinks.
After consuming alcohol, the boy felt unconscious. Then he invited Kingston-accused-2 to do
unnatural sexual acts with the boy. While Kingston was doing unnatural sexual acts with the
boy, accused screened in video.

Judgment: The trial Court punished both the accused. Kingston appealed. The Court of
Appeal quashed the punishment. On appeal, the House of Lords confirmed the judgment of
the trial Court holding that both the accused were in mens rea. The acts of both partners
would consist wrongful acts, which were pre-planned by them, and both of them were guilty.

Mavari Surya Satyanarayana vs. State of A.P. (1995) 1 CrLJ 689)

Brief Fact: The accused suspected the character of his wife. One day he drank heavily. Some
hot exchange of words took place between wife and husband. The accused poured the
kerosene on his wife.

She tried to escape from the fires and rushed to outside of the house. The accused again
caught the victim, and again poured the kerosene resulting her death. He pleaded the defence
of intoxication.

Judgment:
The trial Court convicted him under Section 304 Part-ll. The Supreme Court held that it could
not be said that the accused was in unsoundness of mind due to heavy drunkenness. He was
aware that when for the first time he poured the kerosene it was not sufficient to complete his
brutal act. To finish his heinous act, kerosene for second time.

This was sufficient to prove his rational thinking and mens rea to fulfill his intended act. The
Supreme Court converted his punishment from 304 Part-II to Section 302.

Capital Punishment

Capital Punishment
Capital punishment, death penalty or execution is punishment by death. The sentence that
someone be punished in this manner is a death sentence. Crimes that can result in a death
penalty are known as capital crimes or capital offences. The term capital originates from the
Latin capitalis, literally "regarding the head" (referring to execution by beheading).

Murder v. Capital Punishment

Murder and execution are morally equivalent because both of them kill people. But this does
not make sense. If that were so, it could be logically said that wrongful confinement of an
innocent person by a civilian and imprisonment of an offender by the state are morally
equivalent, because they both confine a person. 'Murder' term is used for unlawful killings
only and capital punishment by the judiciary is not unlawful. Moreover every type of killing
even by civilians is not murder. Thus there is a fundamental legal difference between killing
innocent people (homicide) and capital punishment for murder

Recent Rarest of Rare Cases of Capital Punishment

Dhananjoy Chatterjee v. State of West Bengal & ors. The appellant, Dhananjoy Chatterjee
was found guilty of offences punishable under Section 376, 302 and 380 of the Indian Penal
Code by judgment and was awarded death sentence by the session judge, confirmed by the
High Court. A special leave petition was filed by the appellant. Leave was granted but the
appeal was dismissed by the Supreme Court.

Sushil Murmu v. State of Jharkhand, A young child of 9 years was sacrificed before
Goddess Kali by the appellant for his own prosperity is what the prosecution alleges. The
Supreme Court awarded death penalty to the Accused.

State of U.P. v. Satish, Stressing that leniency in punishing grave crimes would have serious
consequences the Supreme Court has awarded the death penalty to a mean for the rape and
murder of a six year old girl.

Capital Punishment in India

India retains capital punishment for a number of serious offences. The Indian Supreme Court has
allowed the death penalty to be carried out in four instances since 1995.

The Supreme Court in Mithu vs State of Punjab struck down Section 303 of the Indian Penal Code,
which provided for a mandatory death sentence for offenders serving a life sentence. The number of
people executed in India since independence in 1947 is a matter of dispute; official government
statistics claim that only 52 people had been executed since independence. However, research by
the People's Union for Civil Liberties indicates that the actual number of executions is in fact much
higher, as they located records of 1,422 executions in the decade from 1953 to 1963 alone. In
December 2007, India voted against a United Nations General Assembly resolution calling for a
moratorium on the death penalty. In November 2012, India again upheld its stance on capital
punishment by voting against the UN General Assembly draft resolution seeking to ban death
penalty.

In colonial India, death was prescribed as one of the punishments in the Indian Penal Code, 1860
(IPC), which listed a number of capital crimes. It remained in effect after independence in 1947.

Under Article 21 of the Constitution of India, no person can be deprived of his life except according
to procedure established by law.

The Supreme Court of India ruled in 1983 that the death penalty should be imposed only in "the
rarest of rare cases." While stating that honour killings fall within the "rarest of the rare" category,
Supreme Court has recommended the death penalty be extended to those found guilty of
committing "honour killings", which deserve to be a capital crime. The Supreme Court also
recommended death sentences to be imposed on police officials who commit police brutality in the
form of encounter killings.

An appeal filed in 2013 by Vikram Singh and another person facing the death sentence questioned
the constitutional validity of Section 364A of the Indian Penal Code,