Summary On Indian Penal Code

i
SUMMARY ON
INDIAN PENAL CODE
ii
First Edition ……. June 2020

iii
SUMMARY OF INDIAN PENAL CODE

[As amended by The Criminal Law (Amendment) Act, 2018]
by-
Krishna Murari Yadav

Assistant Professor
Faculty of Law, University of Delhi, Delhi
(Former Assistant Professor - Puducherry & Varanasi)
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DEDICATED TO MY BELOVED STUDENTS

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FOREWORD
If you are reading this, that means you have something special. The Court is meant to
interpret law, Parliament meant to enact the law, Executive to execute the law, but without a good
teacher, it is not possible to mold good lawyers, judges, politicians, or bureaucrats.
I am mirthful to write in brief about Assistant Prof. Krishna Murari and his marvelous step
for writing this book. For a moment, I want to take you a few years back, when a lawyer we also
know him as the father of nation; Mohandas Karamchand Gandhi was assassinated, but still today,
we remember him because of his thoughts, “You can kill a man but you can’t kill a thought”. This
is why I dazzled by Assistant Prof. Krishna Murari, he has given the most essential essence of life
i.e. “thought”.
The Indian Penal Code (IPC) is not just an Act it is a “Code”. IPC is the 45th legislation
passed in the year of 1860. The code was drafted in 1860 on the recommendations of the first law
commission of India established in 1834 under the Charter Act of 1833 under the Chairmanship of
Lord Thomas Babington Macaulay. In the coming months, you will study Criminal Procedure
(CrPC), Indian Evidence Act, etc. but the base will be always IPC (Substantive Law). This book
will not only help you to get through the semester exam but also help you to get through many
judicial examinations.
I was lucky enough to study IPC under Sir Krishna Murari, for me it was unbelievable that
I also got the opportunity to study Indian Evidence and CrPC under his guidance. Every section
was explained by him in such a beautiful and organized way that you will get it by heart in a very
moment if you are all ears.
This book not only contains the syllabus of Faculty of Law but also have previous year
semester questions and how to write their answers, if you think this is enough, it’s inappropriate, it
also covers the previous year questions of judicial service examination, you will get guidance for
how to write its answers. I assure you that, it is nearly possible that you get a multi-dimension
source in a single place. For Krishna Sir, every student is like his offspring and you are going to
study IPC with such a great thought, you should not take him, as granted.
Rome wasn’t built in a day, so as trust, but have enough courage to trust your teachers one
more time and always one more time.
I feel blessed that I got a chance to pen my thoughts about this excellent book and hard work
of our esteemed faculty Asst. Prof. Krishna Murari Yadav, a great son, brother, husband, father,
and most loved teacher.
Once again, I congratulate him for his hard work on bringing such a great thought to reality,
change is the salt of life, “Be the change you want to see in the world” – M.K. Gandhi.
Regards Sumit Kumar

LL. B 2nd Year
2019-2022
Faculty of Law,
University of Delhi,
vivaank12@gmail.com
vi
Preface
As per Article 1 of Indian Constitution, India, that is Bharat, Union of 28 States and 8 Union
Territories. To give LIBERTY of thought, expression, belief, faith and worship; EQUALITY of
status and of opportunity; and to promote among them all; FRATERNITY assuring the dignity of
the individual; the state must need a uniform and unbiased law, to impose Rights, Liabilities, Duties,
backed by Sanction.
To achieve such uniformity and unbiased law, many scholars contributed, what we see
today’s Indian Jurisprudence. Only by the procedure established by law, Rights of individual can
be curtailed or partially restricted followed by imprimatur. Indian Penal Code (IPC), one of such
substantive law plays important role for curtailing or partially restrict the rights of the individual
whenever justice demands. Earlier IPC was not applicable in the territory of Jammu and Kashmir,
instead of IPC, Ranbir Penal Code was applicable. The Code came into force in Jammu and Kashmir
on 31 October 2019, by the Jammu and Kashmir Reorganisation Act, 2019, and replaced the State’s
Ranbir Penal Code.
It may also be interesting to know that various sections of the IPC are controversial, the
Supreme Court overruled its judgement of Suresh Kumar Koushal v. Naz Foundation, which
criminalised same-sex relations (Section 377, IPC), in case Navtej Singh Johar v. Union of India.
Section 309 of the Indian Penal Code deals with unsuccessful suicides, whereby attempting to
commit suicide was punishable with imprisonment up to one year. The Government of India in
December 2014 decided to decriminalise attempts to commit suicide by dropping Section 309 of
the IPC from the statute book. But on other hand In an August 2015 ruling, the Rajasthan High
Court made the Jain practice of undertaking voluntary death by fasting at the end of a person's life,
known as Santhara, punishable under sections 306 and 309 of the IPC, later SC stayed the decision
of the High Court and lifted the ban on the practice.
Only by knowing the flaws and how the judiciary works, we can be able to amend the law
for better being of society.
To understand what it means to be a successful lawyer; a student must develop the
understanding to read the logic behind any legislation enacted by parliament and to correlate with
each other.
This book is the result of many months of facilitating, researching, hard work. It is important
to teach our students skills that are needed to shape future lawyers in all aspects. This book places
a clear emphasis on teaching skills first but also ensures that those skills are based on rigorous and
current research.
Contrary to what your friends and family might believe the minute you start law school;
nobody knows everything about the law. Whilst you are not expected to know everything, you are
expected to know how to find the information you need with current judgements. Legal research is
therefore key. Resources are increasingly electronic, so good computer skills are a real bonus.
The sections are divided in such an organized way manner you won’t cope with any
difficulties in understanding the concept behind it.
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ACKNOWLEDGEMENT
I would like to pay my gratitude to a great scholar of Criminal Law, Prof. R.K. Murali Sir,
Faculty of Law, Banaras Hindu University. I have learned dedication and honesty from Late Prof.
D.K. Sharma Sir, Former Head & Dean, Faculty of Law BHU, Varanasi.
Special thanks to my guardian in legal field Prof. Chaturbhuj Nath Tewari Sir, Former Head
& Dean, Mahatma Gandhi Kashi Vidyapith, Varanasi, who has always accepted me with all my
flaws and weaknesses. I have learned from them that all the students are equal, and they must not
be discriminated. Thanks to Ravindra Ji, Additional Chief Judicial Magistrate, who has been an
expert opinion in assisting me with practical knowledge of Court from time to time. Raghvendra
Kumar Chaudhary, Research Scholar, Faculty of Law, BHU, has been a source of authentic
information and has always shared authentic information. Thanks to Manoj Chaurasiya who shared
his practical experiences as a Public Prosecutor.
Over and above all, I owe my deep sense of gratitude to parents, brothers & sisters and
village members for inspiration, encouragement and co-operation during my study. Writing of this
book was not possible without the immense support of my wife and son. They have compromised
and have been deprived from my love and affection on several occasions. I bow my head with
respect in their feet. Thanks to Sharvan for all the support. Writing without monetary and emotional
support is not possible, Thanks to Santosh Bhaiya and Mr. Rana Navneet Roy, Assistant Professor,
HNLU, Raipur who have always supported me economically, physically and psychologically.
This writing would not have been possible without the support of my students from Dr.
Bhim Rao Ambedkar Law College, Puducherry, Maharaja Balawant Singh P.G. College, Gangapur,
Varanasi and Faculty of Law, University of Delhi. Mentioning the name of all the students is not
possible. But some students played an important role and they must be mentioned. Some among
them are Ankit, Abhishek, Viresh, Vikash, Sachendra, Harsh, Aditya, Anand, Shahbaz, Shivam,
Ishu, Shivani, Kapil, Raja, Aakash, Nani, Dean Danial, Anshul, Kranti, Harsh, Bhanu, Akhilesh,
Bhadresh, Anurag, Aayush Kumar Jayaswal, etc. Students of Campus Law Centre also supported
in this mammoth task. Special thanks to Aditya Nath Sharma, Aanand Kumar Vaishishta and Vishal
Kumar Yadav. Thanks to Sushma Maurya and Palak Jain from LC-II who helped in making
corrections. I’m very lucky that I got students of Section G (Session 2019 -2022) they have
physically & mentally supported me in all the circumstances. They have highly expressed their
interest and have encouraged me in writing and corrections.
Special thanks to Sumit Kumar without whose technical support, making of chart, smart art
etc. were impossible.
Thanks to my Facebook friends who have always either supported or criticized. Taking
name of everyone is not possible. But few among them are – Prosenjit Mukharjee Sir from Ranchi,
Neelmani Singh Sir, Rajendiran Veerappan, Jayant, Ashish, etc. Thanks to everyone who has
directly or indirectly supported me in this Journey.
viii
CONTENTS
CHAPTERS TOPICS PP.

CHAPTER I Elements of Crime 1-13
CHAPTER II Rights of Private Defence 14- 30
CHAPTER III Culpable Homicide, Murder, Rashness and Negligence 31 – 63
CHAPTER IV Kidnapping, Abduction & Sections 354 to 354D 64 – 76
CHAPTER V Rape and Unnatural offences 77- 106
CHAPTER VI Joint Liability 107 – 113
CHAPTER VII Offences against property 114 – 132
CHAPTER VIII Attempt 133 -142
ANNEXURE I DU LL.B. 2013 143 -
ANNEXURE II DU LL.B. 2014 162 – 171
ANNEXURE III DU LL.B. 2016 172 – 183
ANNEXURE IV DU LL.B. – Joint Liability 184 – 187
ANNEXURE V DU LL.B. - Marital Rape, Rape & POCSO 188 – 199
ANNEXURE VI DU LL.B. - Kidnapping & Abduction 200 -206
ANNEXURE VII DU LL.B. Sections 299 – 304A 207 – 225
ANNEXURE VIII DU LL.B. – Elements of Crime 226 – 233
ANNEXURE IX IPC – (1) UGC NET 2018 Dec. and (2) UP (J) (Pre) 2018 234 – 245
ANNEXURE X DU LL.B. 2019 246 – 249
Following TOPICS are not in syllabus of DU LL.B.
CHAPTER IX Sections 76-105 250 - 260
CHAPTER X Abetment of thing 261 – 261
TEST
FIRST TEST IPC – OBJECTIVE QUESTIONS 263 – 276
THIRD TEST IPC – OBJECTIVE QUESTIONS 277 – 289
FOURTH TEST IPC – OBJECTIVE QUESTIONS 290 – 294
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TABLE OF CASES
Case Name
A Page No.
Abhayanand Mishra v. State of Bihar 135, 171, 267
Akhil Kishor Ram v. Emperor 131
219, 220, 224,
Alister Anthony Pareira v. State of Maharashtra 225, 267, 284
Amar Singh v. State of Rajasthan 234, 235, 292
Amjad Khan v. State 20, 26,162
Anda and Ors. v. The State of Rajasthan 47, 211, 267
Aruna R. Shanbaugh v.UOI 183
Asgarali Pradhania v. Emperor 170, 267
Avtar Singh v. State of Punjab 118
B
Babu Lal v. State. 56, 161
Bachan Singh v. State of Punjab 60, 286
Baldeo Prasad Singh v. State 72
Barendra Kumar Ghosh v. King Emperor 109, 184
Basdev v. The State of Pepsu 183
Bhakari v. State of U.P. 156
Bhupendra Singh Chavdasama v. State of Gujarat 250
Bilkis Yakub Rasool v. State of Gujarat and Others 101
Brend v. Wood 4,8,227,228
Buta Singh v. State of Punjab 26
C
Chenna agadeeswar and Anr. v. State of Andhra Pradesh 183
Cherubin Gregory v. State of Bihar 62,221,222,267
Common Cause (A Regd. Society) v. Union of India and Another 183
D
Dahyabhai v. State of Gujarat 256
Dashrath Paswan v. State of Bihar 59
Deelip Singh @ Deelip Kumar v. State of Bihar 165
86, 165,195,
Deepak Gulati v. State of Haryana. 197, 272
14, 19,22, 26,
Deo Narain v. State of U.P. 164, 236
Dhania Daji v Emperor 251
Director Public Prosecution v. Beard 258
Durham v. United States 255
E
Eisenstadt v. Baird 93, 189
Emperor v. Dhirajia 38, 224
Emperor v. Vasudeo Balwant Gogte 138
Emporer v. M.S. Murthy 33, 34, 285, 287
x
F 2,4,6, 203, 227,

Fowler v. Padget 265
G 56,58, 148, 174,
Ghapoo Yadav & Ors. v. State of M.P. 175, 248
Gian Kaur v. State of Punjab 182, 183
Gopal Naidu And Anr. v. King-Emperor 252
Gurdatta Mal v. State of U.P. 19,110,164
Gyarsibai w/o Jagannath v. The State 42,43, 53
H
Hansa Singh v. State of Punjab 169
Harla v. State of Rajasthan 12
Heeralal v. State of Bihar 252
Hobbes v. Winchester Corporation 5, 228
82, 88, 90, 92,
I 96, 152, 192,
Independent Thought v. Union of India & Anr. 193
J
J.M. Desai v. State of Bombay 110, 184
Jadunandan Singh v. Emperor 122, 123, 146
Jai Lal v. Delhi Administration 256
Jaikrishnadas Manohardas Desai (J.M. Desai) and Another v. State of Bomaby 127
James Martin v. State of Kerala 15, 16, 24, 26
Joginder Singh v. State of Punjab 34, 207, 208
Joseph Shine v. Union of India 238, 269
Justice K.S. Puttaswami (Retd.) And Anr. v. UOI and Ors. 266, 268
K N Mehra v. State of Rajasthan 117
K.M. Nanavati v. State of Maharashtra 55,161, 169, 285
Kanwar Singh v. Delhi Administration 18, 164
Kapur Singh v. State of Pepsu 44, 211, 212
Kiran Bedi and Jinder Singh v. The Committee of Inquiry 250
Kishan v. State of M.P. 23
Lillu v. State of Haryana 82, 100
M.B. Singh v. Manipur Administration 61
Mahaboob Shah v. Emperor 109, 186, 268
Mahadev Prasad v. State of Bengal 130
Malkiat Singh v. State of Punjab 140, 268, 273
Maruti Shri Pati Dubal v. State of Maharashtra 183
Mithu Singh v. State of Punjab 60, 283, 286
Mizaji and Anr. v. State of Uttar Pradesh 112
33, 173, 207,
Moti Singh and Anr. v. State of UP 208
Mouse’s Case 251
Mukesh and Anr. v. State for NCT of Delhi 88
Munah Binti Ali v. Public Prosecuter 142, 170, 268
110
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N
Nanak Chand v. The State of Punjab
Nathu Lal v. State of M.P. 3,4,10,11,228
National Legal Services Authority v. Union of India and others 103
238, 240, 264,
Navtej Singh Johar v. Union of India 266
Naz Foundation v. Government of NCT of Delhi and Others 104
Niharendu Datt Majumdar v. Emperor 238
O
Om Prakash v. State of Punjab 135, 137
Oyami Ayatu v. State of M.P. 257
P
P. Rathinam v. UOI 182, 183
Palani Goundan v. Emperor 36, 37, 172, 247
Pandurang v. State of Hyderabad 110, 237, 269
Pani Bhushan Beheru v. State of Orissa 83, 91, 110
Poonai Fattemah v. Emperor 59, 259
Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Others 229, 232
Pyare Lal Bhargava v. State of Rajasthan 116, 123, 265
Q
Q. v. Tolson 3, 227
Queen v. Lakshmi Agradani 252
Queen-Empress v. Ramakka 139, 268
R
R v. Daniel Mc Naughten 256
39, 40, 43, 177,
209, 267, 284,
R v. Govinda 285
R v. M’Naghten 254
R. v. Arnold 253, 256
R. v. Blue 215, 216
R. v. Dudley and Stephan 251
R. v. Hadfield 254, 256
3,5,6,8,,204,229,
R. v. Prince 232
R. v. Shivpuri 142, 171
R. v. Tolson 3,4,7
Ram Jas v. State of U.P. 130, 178
Ranga Billa v. Union of India 236
Ranjit D. Udeshi v. State of Maharashtra 8
Rattan Lal v. State of Punjab 12
Rawalpenta Venkalu v. State of Hyderabad 44
Re Thavamani Case 36
Reg v. Cruise 107, 237
Reninger v. Fogossa 258
xii
Rishi Deo Pandey v. State of U.P. 110

Rupan Deol Bajaj v. KPS Gill & KPS Gill v. State 72, 260
S
S. K. Nair v. State of Punjab 257
64, 67, 150, 205,
S. Varadrajan v. State of Madras. 206, 267
S.N. Hussain v. State of Andhra Pradesh 63, 222, 247,
Sakshi v. Union of India 88, 272
Salim Zia v. State of U.P. 15, 16, 286
Sekar v. Arumugham 122, 123
Sheralli Wali Mohammed v. State of Guj. 257
3,4,7,8,228,231,
Sherras v. De Rutzen 365
Shree Kantia v. State of Bombay 110
Shreekantiah Ramayya Munipalli v. The State of Bombay 128, 184
Shrikant Anand Rao Bhosale v. State of Maharashtra 258
Sri Bhagwan S.S.V. V. Maharaj v. State of A.P. 131
48, 209, 211,
State of A.P. v. R. Punnayya & Another 267, 284, 285
State of Haryana v. Krishan 214, 215
67, 69, 201, 202,
State of Haryana v. Raja Ram 203, 238, 264
State of Karnataka v. Basavegowda 122, 123
State of M.P. v. Ahmadullah 256
3, 11, 229, 230,
State of M.P. v. Narayan Singh 264
3, 8, 231, 233,
State of Maharashtra v. M.H. George 243
State of Maharashtra v. Mohammad Yakub 135, 267
State of Orissa v. Bhagaban Barik 250
State of Orissa v. Ram Bahadur Thapa 250
State of Punjab v. Gurmit Singh 87, 88, 89, 272
State of Punjab v. Major Singh 72, 73, 234
State of Punjab v. Nanak Chand 236
State of U.P v. Ram Swarup 15, 286
State of U.P. v. Chottey Lal 84
State of West Bengal v. Shew Mangal Singh 250
219,220,224,
State Tr. P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda 225
135, 139, 267,
Sudhir Kumar Mukherjee v. State of West Bengal 273
50, 148, 174,
Surain Singh v. The State of Punjab 248, 285
111, 248, 268,
Suresh and Another v. State of Uttar Pradesh 272
Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors 103, 105
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T
Tabu Chetia v. State of Assam 257
Thakorilal D Vadgama v. State of Gujarat 67, 70, 201, 276
5, 8, 10, 231,
The Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. 283
83, 85, 195, 196,
Tukaram v. State of Maharashtra 267, 272
Tunda v. Rex 250
Uday v. State of Karnataka 185
Ulla Mahapatra v. King 252
V. Rewathi v. Union of India 238, 269
44, 45, 174, 175,
Virsa Singh v. State of Punjab 210, 211, 212
65, 234, 267,
Vishwanath v. State of U.P. 284, 288
W. Kalyani v. State Tr.Insp. of Police & Anr 238
Yedla Srinivasa Rao v. State of A.P. 165
Yeshwant Rao v. State of M.P. 20, 85
Yusuf Abdul Aziz v. The State of Bombay 238, 269
Zahira Habibulla H. Shiekh & Anr. v. State of Gujarat and Ors. 100
1
CHAPTER I
ELEMENTS OF CRIME
MEANING OF CRIME
Exams Jurist Definition
Bentham “Offences are whatever the legislature has prohibited
for good or for bad reasons ….according to the
principles of utility, we give the name of offence to
every act which we think ought to be prohibited by
reasons of some evil which it produces or tends to
produce.”
Henry Maine An ancient time, penal law is not the criminal law,
but it is wrong law.
UPPCS2002 Blackstone “Crime is an act committed or omitted in violation of
UP Lower public law either forbidding or commanding it.”
Blackstone “Crime is violation of public right or duties due to the
whole community, considered as a community, in its
social aggregate capacity.”
Austin “A wrong which is pursued at the discretion of the
injured party and his representative is a civil injury. A
wrong which is pursued by the sovereign or his
subordinate is a crime.”
UPPCS2005 Stephan “Crime is an act forbidden by law and which is at the
same time revolting to the moral sentiments of the
society.”
UPPCS2003 Kenny “Crimes are wrongs which sanction is punitive and is
no way remissible by any private person, but is
remissible by crown alone, if remissible at all.” Here
sanction means punishment and remissible means
pardon by crown.
Keeton “A crime would seem to be any undesirable act which
the State finds it most convenient to correct by the
institution of proceedings for the infliction of a penalty,
instead of leaving the remedy to the discretion of some
injured party.”
Millar “Crime is …to be commission or omission of an act
which the law forbids or commands under pain of a
punishment to be imposed by the State by a proceeding
in its own name.”
2
Elements of Crime
There are four elements of crime namely,
(a) Human being

(b) Mens Rea / Guilty Mind
(c) Actus reus / Prohibited act, and
(d) Injury to society or human being.
Actus non facit reum, nisi mens sit rea (Common Law Doctrine)
Actus non facit reum, nisi mens sit rea means the act itself does not make a man guilty, unless
the mind is also guilty. This theory was developed be Common Law Courts. First time concept of
Mens Rea was discussed by Justice Coke. In case of Fowler v. Padget (1798) Lord Kenyon held
that actus reus and mens rea both are essentials for commission of crime. There are four essential
ingredients of crime, namely,
(a) Human Being
(b) Guilty Mind
(c) Prohibited act,
(d) An injury to human being or society.
This maxim denotes that guilty mind and prohibited act both are part and parcel of crime.
It is rule that without guilty mind, crime cannot be committed. There are also certain exceptions
of this maxim.
If maxim applies – In case of application of this maxim, accused person would be benefited
and there would be utmost probability of to win the case because prosecutor would be bound to
prove prohibited act and guilty mind.
If maxim does not apply - It would be very easy for prosecutor to win the case because he
would be bound to prove only one condition i.e. prohibited act. To prove guilt mind always very
difficult. It in such case there would be a lot of harm for accused.
Meaning of Actus reus -

Actus reus means physical condition of penal liability. Actus Reus is defined as a result of
voluntary human conduct which law prohibits. It is the doing of some act by the person to be held
liable an ‘act’ is a willed movement of body.
Meaning of Mens Rea -
Mens Rea means guilty mind or an evil/ mala-fide intention to commit illegal act. It can be
identified as intention, knowledge, reason to believe, negligence, recklessness etc.
Exception of Actus non facit reum, nisi mens sit rea (Strict Liability) -
Sometimes offence is constituted even without guilty mind it is called strict liability. There are
certain exceptions of Actus non facit reum, nisi mens sit rea.
These exceptions are following -
(1) Criminal Libel
(2) Public Nuisance (Hicklin Test)
Krishna Murari Yadav, Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delhi.
3
(3) Contempt of Court

(4) Abduction/Kidnapping1
(5) Bigamy2
(6) Waging war3
(7) Sexual Harrasment4
(8) Rape5
(9) Selling of obscene books6
(10) Essential Commodities Act, 19557
(11) Motor Vehicles Act, 1988
(12) FERA (Foreign Exchange and Regulation Act, 19478
(13) Sea Customs Act9
(14) Statutory offences.
Schools of Mens Rea (Interpretation of statutes)

There are two schools regarding interpretation of statutes in context of mens rea. These Schools
shall be applicable only when statutory provisions are silent about mens rea.
These Schools are
(1) Presumption of Existence of Mens Rea, and

(2) Presumption of Absence of Mens Rea. Both presumptions are rebuttable.
(1) Presumption of existence of Mens Rea- In every Statute mens rea should be treated as
part of crime unless contrary is shown. Existence of Mens Rea is presumed. In case of Q.
v. Tolson court acquitted lady on the ground of her innocent. She got marriage after full
inquiry. But Court also accepted that by statute mens rea may be excluded. This theory was
led by Justice Wright in case of Sherras v. De Rutzen (1895). In case of Sherras v. De
Rutzen (1895) Justice Wright said “In every statute mens rea is to be implied unless
1
R. v. Prince (1875), Section 361 and 362 of IPC.
2
Section 494 of IPC. In the Case of R. v. Tolson British Court did not apply strict liability. But we are not
bound by decision of that Court. Application of it depends upon facts and circumstances of the case.
3
Section 121 of IPC
4
Section 354A of IPC.
5
Section 375. There are two parts of definition of rape namely;
(1) Prohibited act committed by accused ( Section 375 (a),(b),(c) and (d), and
(2) mental condition of victim rather than accused (Section 375 Firstly, secondly………..seventhly).
6
Ranjit D.Udeshi v. State of Maharashtra (SC 1964).
7
In the case of Nathu Lal v. State of M.P. (1965)Supreme Court presumed presence of mens rea. To
override this judgment Essential Commodities Act, 1955 were amended in 1967. After this amendment
State of M.P. v. Narayan Singh (1989) were decided and Supreme Court did not apply the maxim because
law was very clear.
8
State of Maharashtra v. M.H. George (SC 1964)
9
Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs, Calcutta (SC
1964)
4
contrary is shown”. In case of Brend v. Wood (1946), Justice Goddard, “The general rule
applicable to criminal case is actus non facit reum, nisi mens sit rea…It is of the utmost
importance for the protection of the liberty of the subject that a court should always bear
in mind that, unless the statute, either clearly or by necessary implication rules out mens
rea as a constituent part of a crime, a defendant should not be found guilty of an offence
against the criminal law unless he has got a guilty mind”. Principle of mens rea was
revived by Justice Goddard. In the case of Nathu Lal v. State of M.P.10 (1965) Supreme
Court acquitted the accused on the basis of absence of mens rea.
Rebuttal of presumption
In Halsbury’s Laws of England, 3rd Edn., Vol. 10, in para 508, at p. 273, the following
passage appears: A statutory crime may or may not contain an express definition of the
necessary state of mind. A statute may require a specific intention, malice, knowledge,
willfulness, or recklessness.
On the other hand, it may be silent as to any requirement of mens rea, and in such a case
in order to determine whether or not mens rea, is an essential element of the offence it is
necessary to look at the objects and terms of the statute.
Archbold in his book on Criminal Pleading, Evidence and Practice, says “There is a
presumption that mens rea, is an essential ingredient in a statutory offence, but this
presumption is liable to be displaced either by the words of the statute creating the offence
or by the subject matter with which it deals.
In the case of Brend v. Wood Justice Goddard said that this presumption can be rebuted
by statute either clearly or by necessary implication.
i. Cases related to Presumption of existence of Mens Rea
S.No. Name of Case Justice Year

1 Fowler v. Padget Lord Kenyon 1798
2 R. v. Tolson Justice Wills 1889
3 Sherras v. De Rutzen Justice Wright 1895
4 Brend v. Wood Justice Goddard 1946
5 Nathu Lal v. State of M.P. Justice Subba Rao 1965
(2) Presumption of absence of Mens Rea- According to second School, statute must be
interpreted in absence of mens rea unless requirement of mens rea has been specifically
mentioned. On the basis of this theory Justice Blackburn decided the R.v. Prince (1875)
and he convicted the accused who had no guilty mind. Accused believed that the girl was
18 year while real age of girl was 14 year. At that time taking of girl below the age of 16
10
This case was decided by Supreme Court on March 22, 1965.
5
years out of keeping of lawful guardian was crime. Appearance of Girl was age of 18 years.
Court denied to accept Actus non facit reum, nisi mens sit rea (Common Law Doctrine).
This theory was led by Justice Kennedy in Hobbes v. Winchester Corporation (1910). In
case Ranjit D.Udeshi v. State of Maharashtra (1964) books seller was punished under
section 292 of IPC.
In the case of State of Maharashtra v. M.H.George11 (1964) Supreme Court convicted the
accused. Justice K.Subba Rao delivered minority opinion.
ii. Cases related to Presumption of absence of Mens Rea
S.No. Name of Case Justice Year

1 R. v. Prince Justice Blackburn 1875
2 Hobbes v. Winchester Corporation Kennedy 1910
3 The Indo-China Steam Navigation Co. Ltd. B P Sinha Feb. 3, 1964)
v. Jasjit Singh, Addl. (Constitutional Bench
4 Ranjit D.Udeshi v. State of Maharashtra Hidayatullah Aug. 19, 1964
(Constitutional Bench)
5 State of Maharashtra v. M.H.George K. AYYANGAR Aug. 24, 1964
(Full Bench)
Intention
There are two elements namely.
(1) Desire of consequence, and
(2) Foresight of consequences.
Knowledge
There is only one element namely, Foresight of consequences. In knowledge desire of
consequences is missing. It is presumed that every sound person has knowledge.
Motive
Neither bad motive nor good motive is relevant to constitute offence. It is relevant under
section 8 of Indian Evidence Act. Motive prompts a person to do something. Sometime offence is
committed with motive and sometimes without motive. Intention refers to the immediate object,
while motive refers to the ulterior object which is at the root of intention.
Negligence
Negligence is not taking care, where there is a duty to take care. Negligence or
Carelessness indicates a state of mind, viz. absence of a desire to cause a particular consequence.
Recklessness
11
This case was decided by Supreme Court on August 24, 1964.
6
Recklessness occurs when the actor does not desire the consequence but foresees the possibility
and consciously takes the risk.
Some Leading Cases
There are some leading cases related to elements of crime –
Fowler v. Padget12 (1798) (Lord Kenyon)

Actus reus (prohibited act) and mens rea (guilty mind) both are essentials for commission of crime.
Lord Kenyon said, “It is a principle of natural justice, and of our law, that actus non facit reum
nisi mens sit rea. The intent and the act must both concur to constitute the crime”.13 This case was
related to bankruptcy.
R. v. Prince14 (1875) (Blackburn)

Facts - Henry Prince was charged under section 5515 of the Offences Against the Persons Act,
1861.16 This section was related to abduction. There was no any category of offence like
kidnapping under this Act. At that time unlawfully taking of a girl below the age of sixteen years
without permission of lawful guardian was an offence. It was proved that the prisoner took the girl
whose age was below the age of sixteen years from out of possession of lawful guardians without
their permission.17 Real age of girl was 14 years. Actus reus was present but mens rea was absent.
Accused proved that he took the girl who was looking age of 18 years and he took with consent
and after her replying that her age was 18 years. He did in good faith.
Actual Age of Girl 14 Years
Abduction Under the age of 16 years
She appears/ Accused thought Near about 18 years
Decision - Court denied these defences. This section had not mention about mens rea i.e. intention,
knowledge, reason to believe etc. Justice Blackburn denied applying the maxim Actus non facit
12
(1798)7 TLR 509(514):101 ER 1103
13
K D Gaur, Textbook on Indian Penal Code, 107 (LexisNexis, Gurgaon, 6th edn., 2016).
14
(1875) L.R. 2 C.C.R. 154
15
Section 55 of Offences Against the Persons Act, 1861 - Abduction of a girl under sixteen years of age -
Whosoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen
years, out of the possession and against the will of her father or mother, or of any other person having the
lawful care or charge of her, shall be guilty of a misdemeanor, and being convicted thereof shall be liable,
at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard
labour.
16
Offences Against the Persons Act, 1861 is available at:
http://www.legislation.gov.uk/ukpga/1861/100/pdfs/ukpga_18610100_en.pdf (Visited on August 31,
2018.
17
S.N. Mishra, Indian Penal Code …(Central Law Publications, Allahabad, 20th edn, 2017).
7
reum, nisi mens sit rea and held that the provision did not require guilty intention or knowledge so
Court could not insert requirement of intention or knowledge only on the basis of maxim. So Prince
was convicted even without guilty mind. Principle of strict liability was followed.
R. v. Tolson18 (1889) (Wills) (Koi Mere Dil Se Puchhe – Hindi Movie)

Facts – Mrs. Tolson married in Sept 1880. Her husband went missing in December 1881.
She was told that he had been on a ship that was lost at sea. She also inquired from elder brother
of her husband. Six years later, believing her husband to be dead, she married another. All the
circumstances were well known to second husband. Her husband returned after 11 months from
the date of marriage. She was charged with the offence of bigamy under section 57 of ‘Offences
Against the Persons Act, 1861’.19 Reason was that she had got second marriage within 7 years.
She did in good faith. This section was silent regarding guilty mind.
Held: She was afforded the defence of mistake as it was reasonable in the circumstances to believe
that her husband was dead. She was acquitted.
Reason- Honest and reasonable mistake stands in fact of the same footing as absence of
the reasoning faculty, as in infancy; preservation of that faculty , as in lunacy. These exceptions
apply equally in case of statutory offences unless they are excluded expressly or be necessary
implication. The Court applied the Actus non facit reum, nisi mens sit rea.
Justice Wills, said “Although, prima facie and as a general rule, there must be a mind at
fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a
subject-matter and may be so framed as to make an act criminal whether there has been any
intention to break the law or otherwise to do wrong or not”.
Sherras v. De Rutzen20 (1895) (Wright )

Fact-Section 16(2) of the Licensing Act, 1872, prohibited a licensed victualler (victualler
means supplier of foods fit for human being) from supplying liquor to a police constable while on
duty. It was held that section did not apply where a licensed victualler bona fide believed that the
police officer was off duty.
Justice Wright said –
(1) “There is a presumption that mens rea, an evil intention, or knowledge of the wrongfulness
of the act, is an essential ingredient in every offence.”
(2) “In every statute mens rea is to be implied unless contrary is shown”
(3) “There is a presumption that mens rea, an evil intention, or a knowledge of the
wrongfulness of the act, is an essential ingredient in every offence; but that presumption is
18
(1889) 23 QBD 168: (1886-1890)All ER Rep 26.
19
Offences Against the Persons Act, 1861 is available at:
http://www.legislation.gov.uk/ukpga/1861/100/pdfs/ukpga_18610100_en.pdf (Visited on August 31,
2018.
20
(1895) 1QB 918
8
liable to be displaced either by the words of the statute creating the offence or by the
subject-matter with which it deals, and both must be considered.”
R. v. Prince Section 55, Offences Against Person Act, 1861 Abduction

R.v. Tolson Section 57, Offences Against Person Act, 1861 Bigamy
Sherras v. De Rutzen Section 16(2), The Licensing Act, 1872, Selling of liquor to
prohibited buyer
Hobbs v. Winchester Corp. (1910) Kennedy

Kennedy said, “You ought to construe the statute literally unless there is something to show
that mens rea is required.”
Brend v. Wood (1946) (Goddard) - Revival of Mens rea

Goddard C. J. “It is…............. of the utmost importance for the protection of the liberty of
the subject that a court should always bear in mind that, unless the statute, either clearly or by
necessary implication rules out mens rea as a constituent part of a crime, a defendant should not
be found guilty of an offence against the criminal law unless he has got a guilty mind”.
The Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. (February 3,
1964)
This case is related to smuggling of gold. Chief Justice Gajendragadkar said, “The intention
of the legislature in providing for the prohibition prescribed by section 52 A of the Sea Customs
Act is, inter alia, to put an end to illegal smuggling which has the effect of disturbing very rudely
the national economy of the country. It is well-known, for example, that smuggling of gold has
become a serious problem in this country and operations of smuggling are conducted by operators
who work on an international basis. The persons who actually carry out the physical part of
smuggling gold by one means or another are generally no more than agents and presumably, behind
them stands a well- knit Organisation which, for motives of profit making, undertakes this
activity.”
Ranjit D. Udeshi v. State of Maharashtra (August 19, 1964)

Selling of ‘Lady Chatterley’s Lover’ book was prohibited in India. Seller was convicted
under section 292 of IPC for selling this book, although he had no knowledge of this book. Strict
liability was imposed.
State of Maharashtra v. M.H. George (August 24, 1964)

Facts - Mayer Hans George, a German Smuggler, left Zurich (Famous city of
Switzerland) by plane on 27th November 1962 with 34 kilos of gold concealed on his person to be
delivered in Manila (Capital of Philippines). The plane arrived in Bombay on the 28th but the
9
respondent did not come out of the plane. The customs authorities examined the manifest of the
aircraft to see if any gold was consigned by any passenger, and not finding any entry they entered
the plane, searched the respondent, recovered the gold and charged him with an offence
under ss. 8(1) and 23(1-A) of the Foreign Exchange Regulation Act, 1947 read with a notification
dated 8th November 1962 of the Reserve Bank of India which was published in the Gazette of India
on 24th November.
Important Places
Germany Smuggler was citizen of Germany
Zurich George left Zurich to Manila
Bombay He was arrested in Bombay airport
Manila His final destination was Manila
Important Dates
Nov. 24, 1962 RBI published notification
Nov.27, 1962 George left Zurich to Manila
Nov.28, 1962 George was arrested at 6.05 a.m.
August 24, 1964 George was convicted by Supreme Court
Objects of Act
1 To prevent smuggling of gold
2 To converse foreign exchange
3 To protect national economy of country
Decision – Supreme Court examined several British and Indian Cases. All the cases have
been discussed above. Purpose of FERA, 1947 was to prevent smuggling. This case is related to
economic condition of country. So Supreme Court did not apply the maxim and applied the strict
liability principle.
Majority Opinion - N. Ayyangar and J.R. Rajagopala Mudholkar convicted the accused.
Minority Opinion - Justice K. Subba Rao said that M.H. George had no intention to commit crime
in India. So he was not guilty.
Remarks – In the M.H. George Case all abovementioned cases have been discussed. So at the
time writing of answer related to M.H. George case all cases must also be discussed.
Decision of Courts
Presidency Court George was convicted
Bombay High Court George was acquitted
Supreme Court George was convicted
10
Important Provisions
The Indo-China Steam Section 52A, Sea Customs Smuggling of gold

Navigation Co. Ltd. v. Jasjit Act, 1878
Singh
Ranjit D.Udeshi v. State of Section 292, IPC Selling of obscene book
Maharashtra
State of Maharashtra v. FERA, 1947 Smuggling of gold
M.H.George
Nathu Lal v. State of M.P.21 (22 March 1965)

Facts - The appellant is a dealer of food grains at Dhar in Madhya Pradesh. He was
prosecuted in the Court of the Additional District Magistrate, Dhar, for having in stock 885 maunds
and 21/4 seers of wheat for the purpose of sale without a licence and for having thereby committed
an offence under section 7of the Essential Commodities Act, 1955. The appellant pleaded that he
did not intentionally contravene the provisions of the said section on the ground that he stored the
said grains after applying for a licence and was in the belief that it would be issued to him.
Reason – Supreme Court said, “Mens rea is an essential ingredient of a criminal offence.
Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction
adopted in England and also accepted in India to construe a statutory provision creating an offence
in conformity with the common law rather than against it unless the statute expressly or by
necessary implication excluded mens rea.”22
Decision - He was acquitted because he had without any guilty mind.23 Unless statute expressly
exclude, law should be construed as including mens rea.
Effect of Decision - After this case section 7 of Essential Commodities Act was amended
in 1967 and mens rea was excluded. “whether knowingly, intentionally or otherwise” were
inserted.
Essential Commodities (Amendment) Act, 1967
After the decision of Nathu Lal case big problem arose before country. At that time India was
facing acute shortage of food grains. There were several reasons of this namely; Indo-China War,
famine, increasing tension & war on Indo-Pak border and denial of USA to export grains. USA
was creating pressure in favour of Pakistan.
In the Nathu Lal Case Supreme Court held person would not be punished without guilty mind. So
this Act was amended. After amendment statute is very clear. Person will be punished even without
guilty mind.
21
AIR 1966 SC 43.
22
S.N. Mishra, Indian Penal Code 21 (Central Law Publications, Allahabad, … edn, 2006).
23
S.N. Mishra, Indian Penal Code 22 (Central Law Publications, Allahabad, … edn, 2006).
11
State of M.P. v. Narayan Singh24 (25 July 1989)

Facts – Essential Commodities Act, 1955 were amended in 1967. The respondents who
were lorry drivers, cleaners and coolie were carrying fertiliser bags in trucks from Indore (Madhya
Pradesh) to Maharashtra. They were intercepted at a Sales Tax Barrier near the border of
Maharashtra State. The documents seized from the lorry drivers contained the invoices and other
records but did not include permits issued under the Fertilisers (Movement Control) Order, 1973.
Consequently, they were prosecuted under the Fertiliser (Movement Control) Order, 1973
read with section 3 and 7 of the of the Essential Commodities Act, 1955 for exporting fertilisers
from Madhya Pradesh to Maharashtra without a valid permit. They were charged under section
511.
Decision – There are following decisions of Supreme Court on following points -
(1) Mens Rea -The words used in section 7 (1) are “if any person contravenes whether
knowingly, intentionally or otherwise any Order made under section 3”. The section is
comprehensively worded so that it takes within its fold not only contraventions done
knowingly or intentionally but even otherwise, i.e., done unintentionally. The element of
mens rea in export of fertiliser bags without a valid permit is therefore not a necessary
ingredient for convicting a person for contravention of an order made under Sec. 3 if the
factum of export or attempt to export is established by the evidence on record.
(2) Attempt – This was case of attempt. Whatever has been done was beyond preparation.
(3) Only conviction but not punishment -Supreme Court set aside the order of acquittal by
Trial Court and High Court and convicted the accused. But did not pass any order of
punishment. Reason was that more than fifteen years have gone by since they were
acquitted by the Trial Magistrate. The learned counsel for the appellant State was more
interested in having the correct position of law set out than in securing punishment orders
for the respondents in the two appeals for the offence committed by them.
Section 7, The Essential

Nathu Lal v. State of M.P. Unauthorized store of food
Commodities Act, 1955 grains (Wheat)
State of M.P. v. Narayan Section 7, The Essential Carrying fertiliser bags in
Singh Commodities Act, 1955 (as trucks without permission
amended in 1967).
IMPORTANT MAXIMS RELATED TO CRIMINAL LAW

Pro Reo
Whenever any penal law is applied or construed, and that law is giving two interpretation,
one lenient to the offender and one strict to the offender, that interpretation which is lenient or
favorable to the offender will be adopted.
24
AIR 1989 SC 1789.
12
Nullum Crimen Sine Lege, Nulla Poena Sine Lege25 (No crime without law, no punishment
without law)
According to this maxim there must be no crime or punishment, except in accordance with
fixed predetermined law. This maxim conveys four different rules, namely,
(1) Non retroactivity of penal laws: It means penal laws which are against the interest of
accused will not be applied from retrospective effect. But it does not prohibit accused form
taking benefit of retrospective laws. In the case of Rattan Lal v. State of Punjab (1965)
Supreme Court also interpreted article 20 (1) and said that “Ex post facto laws which are
beneficial to the accused is not prohibited by Art. 20(1) of the Constitution. In this case
Justice Subba Rao said, “The object of criminal law is more to reform the individual
offender than to punish him.
(2) Penal statutes must be construed strictly: Penal statutes must be construed strictly. It
directly affects Fundamental Rights. So, it must be construed strictly.
(3) Certainty in legislation: It should not be construed in such a way as to cover every act.
(4) Accessibility of the laws: Laws are binding over every people. So, it must be published in
proper way so that every people may know it. Harla v. State of Rajasthan (1952) Supreme
Court said, “It would be against the Principle of natural justice to permit the subjects of a
State to be penalized by laws of which they had no knowledge and of which they could not
even with the exercise of due diligence have acquired any knowledge . Natural justice
required that before a law can be operative it must be promulgated and published.”
Stages of Crime
If a person commits a crime voluntarily, it involves four important stages, viz.
(1) Intention of Contemplation

(2) Preparation
(3) Attempt; and
(4) Commission of Crime or accomplishment / execution. The first two stages would not
attract culpability but the third and fourth stages would certainly attract culpability.26
(1) Intention - Intention is mental status, which cannot be traced, so mere intention is not
punishable.
(2) Preparation - Generally preparation is also not punishable. But there are some exceptional
cases when at the stage of preparation; offence is punishable, namely,
I. Preparation to wage war against the Government (Section 122)
II. Anyone commits damages to the property and destruction of property within the
territories of our country and the country which is with peace with our government
(Sec. 126)
25
UGC NET Nov. 2017.
26
State of Madhya Pradesh v. Narayan Singh & Ors , AIR 1989 SC 1789
13
III. Preparation for counterfeiting of coins or Government Stamps (Sections 233 to

235), 255 and 257.
IV. Possessing counterfeit coins, false weights or measurements and forged documents
(Section 242, 243, 259, 266 and 474)
V. Making preparation to commit dacoity (Section 399).
(3) Attempt – Attempt is called inchoate crime (incomplete crime). It is punishable.
(4) Execution of Offence – When an offender achieved his desired goal i.e. called execution
of an offence.
14
CHAPTER II
RIGHTS OF PRIVATE DEFENCE27
Need of Right of Private Defence

Self-help is the first rule of criminal law.28 State has limited resources and it cannot protect
every person in every circumstances. At the same time, it cannot expected when offence is going
to be committed. In a room husband and wife is sleeping. For example, it might be that sudden
struggle starts on the issue of extra-matrimonial relation of either party and husband starts to beat
his wife. In this circumstances wife has right of private defence. Bentham in his book ‘Principle
of Penal Laws’ elaborated need of right of private defence and said, “The right of defence is
absolutely necessary. The vigilance of Magistrates can never make up for the vigilance of each
individual on his own behalf. The fear of the law can never restrain bad man as the fear of the sum
total of individual resistance. Take away this right and you become in so doing the accomplice of
all bad men.”29 So it has been provided under section 96 of IPC that if an act is done in exercise
of right of private defence that act would not be an offence.
In the case of Munshi Ram and Others v. Delhi Administration30 Justice K.S. Hegde said,
“The right of private defence serves a social purpose and that right should be liberally construed.
Such a right not only will be a restraining influence on bad characters but it will encourage the
right spirit in a free citizen. There is nothing more degrading to the human spirit than to run away
in the face of peril.”
Nature of Right
In the case of Deo Narain v. State of U.P.31 (1972) nature of right of private defence was
discussed. Supreme Court said, “This right rests on the principle that where a crime is endeavored
to be committed by force, it is lawful to repel that force in self-defence. The right of private defence
is available for protection against apprehended unlawful aggression and not for punishing the
aggressor for the offence committed by him. It is a preventive and not a punitive right. In case of
excitement or disturbed mental equilibrium it is difficult to expect parties facing grave aggression
to coolly weigh, as if in golden scales, and calmly determine with a composed mind as to what
precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful
aggression.”
27
Sections 96 to 106 of IPC deal right of private defence.
28
K D Gaur, Textbook on Indian Penal Code 254 (LexisNexis,Gurgaon,6th edn., 2016).
29
V Suresh and D Nagasila, PSA Pillai’s Criminal Law 151, (LexisNexis, New Delhi, 9th edn. Fourth reprint
2007).
30
AIR 1978 SC 702. This case was decided on November 27, 1967.
31
AIR 1973 SC 473. This case was decided on December 11, 1972.
15
Own body & property or body &property of another person

Right of private defence is only for defence rather than for aggression. This right is
available for own body as well as body of another person (section 97). In case of property this right
is available in limited cases. This right is also available against a person who cannot commit crime
for example person of unsound mind or person doing act in mistake of fact (section 98). But this
right is subject to certain limitations (section 99). It may be used even there is risk for innocent
person (Section 106).
Death or Harm
In exercise of right of private defence in certain cases either harm or death may be caused
(sections 100 and 103). In other case only harm can be caused and causing of death is not allowed
(sections 101 and 104).
Commencement and continuance

Right of private defence of body and property commences from the reasonable
apprehension of danger of body or property as the case may be arises (sections 102 and 105).
Scheme of right of private defence in IPC

Chapter IV (Sections 76 -106) deals ‘General Exceptions’. Right of private defence is part of this
chapter. Right of private defence has been provided under sections 96 to 106. Sections 96 to 106
may be divided into three categories namely;
(1) Common sections - Sections 96, 97, 98, 99, & 106
(2) Sections related to body - Sections 100,101&102
(3) Sections related to property - Sections 103,104 &105.
Common sections are applicable either right of private defence is related to body or property.
Compare between sections of body and property
There are following comparison between both -
(1) Section100 (Body)-103(Property) -Circumstances in which death or any harm may be

caused
(2) Section 101 (Body)-104(Property) - Circumstances in which harm may be caused &
(3) Section102 (Body)-105 (Property) - Commencement and continuance of right of private
defence.
Burden of proof (Preponderance of probabilities)

May 2, 1974 State of U.P v. Ram Swarup
Nov. 24, 1978 Salim Zia v. State of U.P.
Dec. 16, 2003 James Martin v. State of Kerala
16
Section 105 of Indian Evidence Act, 1872 is relevant for this. In the case of State of U.P. v. Ram
Swarup32 victim had started to run away. He was shot dead. In this case Supreme Court said that
the right of private defence constitutes a general exception to the offences defined in the Penal
Code. The burden which rests on the accused to prove the exception is not of the same rigour as
the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for
accused to show as in a civil case that the preponderance of probabilities is in favour of his plea.
In the case of Salim Zia v. State of U.P. (1978) Supreme Court observed, “ It is true that the
burden on all accused person to establish the plea of self defence is not as onerous as the one which
lies on the prosecution and that while the prosecution is required to prove its case beyond
reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by
establishing a mere preponderance of probabilities either by laying a basis for that plea in the cross-
examination of prosecution witnesses or by adducing defence evidence”.
Same view was expressed by Supreme Court in the case of James Martin v. State of Kerala
(2003).
Common sections - Sections 96, 97, 98, 99, & 106
Section 96
Section 96 says “Nothing is an offence which is done in the exercise of the right of private
defence.” This section is declaratory nature. If anyone exceeds his power in exercise of right of
private defence and matters comes under exception 2 of section 300, it will amount to culpable
homicide.
Section 9733
Section 97 is genus. This section contains two clauses. First clause deals right of private
defence against any offence affecting the human body (Sections 299-377). Second clause deals
right of private defence in respect of property (movable or immovable) when offence is related to
TRMC (Trinmool Congress) (T-Theft, R-Robbery, M-Mischief, C-Criminal Trespass) or attempt
to commit these offences. There are only four offences right of private defence is available in case
of property. If any offence which derives from these offences even in that case right of private
defence would be available. In case of criminal misappropriation or breach of trust right of private
defence is not available because these are not covered under section 97(2). These rights are not
32
AIR 1974 SC 1570.
33
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 or criminal
trespass.
17
absolute. These are subject to section 99 of the Code, 1860. Body or property may be of own or of
other.
Section 9834
Section 98 is extension of section 97. Section 98 makes right of private defence very wider.
This section is applicable in all circumstances either right of private defence is related to person or
property of his own or other. Rule is that right of private defence is available only against offences.
But section 98 declares that even in certain cases right of private defence would be available
against acts. For example, person of unsound mind cannot commit an offence due to under section
84 but his act might cause reasonable apprehension of death of another person. So against such act
of person of unsound mind, another person has right of private defence.
There are following exceptional cases when right of private defence is available against acts –
When an act, which would otherwise be a certain offence, is not that offence,
(1) by reason of the youth, (Section 82)

(2) the want of maturity of understanding, (Section 83)
(3) the unsoundness of mind, (Section 84)
(4) the intoxication of the person doing that act, (Sections 85 & 86)
(5) by reason of any misconception of facts, (Section 76 and 79)35
every person has the same right of private defence against that act which he would have if the act
were that offence.
Illustrations- There are two illustrations. First illustration is based on section 84 and second
illustration is based on section 76. These illustrations are -
(a) 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.
(b) 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 97 (Offence) Section 98 (Act)

Right of private defence is available against Right of private defence is available against
offence act
34
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.
35
K D Gaur, Textbook on Indian Penal Code 262 (LexisNexis,Gurgaon,6th edn., 2016).
18
Section 99 (Acts against which there is no right of private defence)

Section 99 may be divided into four parts.
(1) First part deals that when right of private defence is not available against public servant.
According to this part if conditions mentioned in this part are not being fulfilled then right
of private defence is also available even against public servant. For example, if there is
reasonable apprehension that police is about to kill then other person has right to kill that
person. But this right is not available for stage manager. If you have created such
circumstances in which police is about to kill you in his self defence and in counter, you
kill him then right to private defence is not available for you.
(2) Second part covers those matters which had been done on the direction of public servant.
(3) Third part covers those matters in which person has time to recourse protection of public
authorities.
(4) Fourth part deals that this right must not be used to take revenge. It must be used only for
the purpose of protection.
(1) Public Servant: There is no right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to
be done, by a public servant acting in good faith under colour of his office, though that
act, may not be strictly justifiable by law.
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. Kanwar Singh v. Delhi
Administration36- A raiding party possessing authority u/s 418, Delhi Municipal
Corporation Act seized the stray cattle belonging to the accused. The accused resisted the
seizure of the cattle and inflicted injuries on the raiding party. Since the raiding party was
public servants discharging their lawful duties, they were justified in law to seize the cattle,
no right of private defence was available to the accused. He was convicted.
(2) Person doing on the direction of public servant: There is no right of private defence
against an act which does not reasonably cause the apprehension of death or of grievous
hurt, if done, or attempted to be done, by the direction of a public servant acting in good
faith under colour of his office, though that direction may not be strictly justifiable by
law.
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
36
AIR 1965 SC 871.
19
person states the authority under which he acts, or if he has authority in writing, unless
he produces such authority, if demanded.
(3) Time for recourse to the protection of the public authorities: There is no right of private
defence in cases in which there is time to have recourse to the protection of the public
authorities. Gurdatta Mal v. State of U.P.37 There was a land dispute between the accused
and the deceased. There was prolonged civil litigation wherein the deceased had
established his right of title and physical possession of the property. He went along with
his men to harvest the crop with police protection. In such a situation, it was held that the
accused had ample time to have recourse to authorities and had no right to assault the
deceased to claim possession of the properties. Hence, they had no right of private defence.
Right of self defence of either body or property can only be at the time when there is
imminent danger or harm.38
(4) Extent to which the right may be exercised: The right of private defence in no case extends
to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Deo Narain v. State of U.P.39(1972) Supreme Court said, “If a blow with a lathi is aimed
at a vulnerable part like the head it cannot be laid down as a sound proposition of law that
in such cases the victim is not justified in using his spear in defending himself. In such
moments of excitement or disturbed mental equilibrium it is difficult to expect parties
facing grave aggression to coolly weigh, as if in golden scales, and calmly determine with
a composed mind as to what precise kind and severity of blow would be legally sufficient
for effectively meeting the unlawful aggression.”
Section 100 (Seven circumstances when death is allowed)

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, 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:—
(1) First (Death) -Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault.
(2) Secondly (Grievous hurt) -Such an assault as may reasonably cause the apprehension that
grievous hurt will otherwise be the consequence of such assault.
(3) Thirdly (Rape) -An assault with the intention of committing rape.
(4) Fourthly (Unnatural lust) - An assault with the intention of gratifying unnatural lust.
37
AIR 1965 SC 257. UGC NET -2008.
38
V Suresh and D Nagasila, PSA Pillai’s Criminal Law 151,(LexisNexis, New Delhi, 9th edn. Fourth reprint
2007).
39
AIR 1973 SC 473. This case was decided on December 11, 1972.
20
(5) Fifthly (Kidnapping or abducting) -An assault with the intention of kidnapping or abduct-
ing.
(6) Sixthly (Wrongfully confinement) - 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.”
(7) Seventhly (Acid attack) (Ins. in 2013) - 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 consequences of such act.
(1) First (Death)

“Such an assault as may reasonably cause the apprehension that death will otherwise be
the consequence of such assault” Death may be caused by a person who is not competent to
commit an offence. For example, person come under section ss. 82, 83, 84 and 85. Even his
death may be caused in private defence. Death may also come under sections 299, 300, 304A
and 304 B.
Amjad Khan v. State40 (1952) (Golden Scales) (Reasonable apprehension) A communal
riot broke out at Katni on the 5th of March 1950, between some Sindhi refugees resident in the
town and the local Muslims. It was enough that the mob had actually broken into another part
of the house and looted it, that the woman and children of his family fled to the appellant
(Amjad Khan) for protection in terror of their lives and that the mob was actually beating at
his own doors with their lathis and that Muslim shops had already been looted and Muslims
killed in the adjoining locality. These things cannot be weighed in too fine a set of scales or
in golden scales.
Accused was justified to use right to private defence because there reasonable apprehension
of his death and death of his family.
(2) Secondly (Grievous hurt) (Section 320)

“Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault”
(3) Thirdly (Rape) (Ss. 375 & 376)

“An assault with the intention of committing rape”
Yeshwant Rao v. State of M.P.41(1992) Minor daughter of the accused had gone to the
toilet on the rear side of the house. The deceased gripped her and had sexual intercourse with
her. The accused seeing his minor girl being raped by the deceased hit the deceased with a
spade. Daughter was minor so her consent was immaterial and act of the deceased would
amount to committing rape under section 376 and hence the father in defence of the body of
his daughter was justified in exercising his right of private defence.
40
AIR 1952 SC 165
41
AIR 1992 SC 1683.
21
(4) Fourthly (Unnatural lust) (Section 377)

“An assault with the intention of gratifying unnatural lust”
(5) Fifthly (Kidnapping or abducting) (Sections 359 and 362)

“An assault with the intention of kidnapping or abducting”
Vishwa Nath v. State of U.P.42 (1959) The accused’s sister was staying with her father and
brother (accused) because she did not want to live with her husband. Husband, with three others,
went to the quarter of wife’s father and he went inside and came out dragging his reluctant wife
behind him. She caught hold of the door and husband started pulling her. At this brother shouted
to his father that sister’s husband was adamant and thereupon his father replied that he should
be beaten. The appellant took out a knife from his pocket and stabbed once. The knife
penetrated the heart of sister’s husband and he died.
The Court held that appellant had the right of private defence of person under the fifth
clause of s. 100 and did not cause more harm than was necessary and acquit him.
(6) Sixthly (Wrongfully confinement) (Section 340)

“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.”
(7) Seventhly (Acid attack) (Ins. In 2013) (Ss. 326A and 326 B)
“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 consequences
of such act.”
Section 101
Section 101 - 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.
Combined reading of sections 100 and 101 denotes that in seven circumstances as
mentioned in section 100 either harm or death may be caused and in other cases only harm can be
caused in exercise of right of private defence. For example in the presence of reasonable
apprehension of rape, in exercise of right of private defence either harm or death may be caused.
But in case of reasonable apprehension of hurt, only harm can be caused. Causing death is not
allowed because offence of voluntary causing harm has not been mentioned in section 100.
42
AIR 1960 SC 67. This case was decided on September 3, 1959.
22
Differences
1 Section 100 and 103 You can cause ether death or any other harm
2 Section 101 and 104 Only harm can be caused. Causing death is not
allowed. If death is caused it will amount culpable
homicide under section 300 Exception 2.
Section 102
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.
Deo Narain v. State of U.P.43(1972)

Facts – There were disputes and legal proceedings with respect to title and possession of
the plot situated in Ghazipur district. On September 17th, 1965 after 12 noon there was a clash
between the party of the accused (Deo Narain) and the party of the complainant. In this clash lathis
and spear were used from both sides. The blow of lathi was aimed at a vulnerable part like the
head of Deo Narain. In consequence of this Deo Narain in his private defence inflicted a fatal spear
injury on the chest of the deceased. All these things were going on in excitement. Trial Court and
High Court convicted the appellant for exceeding the right of private defence. It was said that
merely using of lathi did not justify for usuing the spear. Supreme Court said that Trial Court and
High Court did not understand sections 100 and 102. Supreme Court acquitted the accused on the
ground that he had not exceeded his right and there was reasonable apprehension of death.
Reason of Decision of Supreme Court – There are following reasons of decision of this case –
(1) Imminent danger -The threat must reasonably give rise to the present and imminent, and
not remote or distant, danger. This right rests on the general principle that where a crime
is endeavored to be committed by force, it is lawful to repel that force in self-defence. Deo
had used in self defence. Use of lathi at head was imminent danger.
(2) Golden Scales - “….In such moments of excitement of disturbed mental equilibrium it is
somewhat difficult to expect parties facing grave aggression to coolly weigh, as if in golden
scales, and calmly determine with a composed mind as to what precise kind and severity
of blow would be legally sufficient for effectively meeting the unlawful aggression.” At
the time of fighting anyone cannot be expected to calm and decide how much force have
to use in self defence.
(3) Preventive Right - The right of private defence is available for protection against
apprehended unlawful aggression and not for punishing, the aggressor for the offence
43
AIR 1973 SC473
23
committed by him. It is a preventive and not punitive right. Whatever Deo had done, he
had done only to defend himself.
State of U.P. v. Ram Swarup44 (1974) (Melon Case)

Facts - At about 7 a.m. on that day Ganga Ram is alleged to have gone to the market to
purchase a basket of melons. The deceased declined to sell it saying that it was already marked for
another customer. Hot words followed during which the deceased, asserting his authority, said that
he was the Thekedar of the market and his word was final. Offended by this show of authority,
Ganga Ram is alleged to have left in a huff.
An hour later Ganga Ram went back to the market with his three sons, Ram Swarup, Somi
and Subhash. Ganga Ram had a knife, Ram Swarup bad a gun and the two others carried lathis.
They threw a challenge saying that they wanted to know whose authority prevailed in the market.
They advanced aggressively to the gaddi of the deceased who, taken by surprise, attempted to rush
in a neighbouring kothari. But that was much too late for before he could retreat, Ram Swarup shot
him dead at point-blank range. It was at all stages undisputed that Ganga Ram and Ram Swarup
went to the market at about 8 a.m. that one of them was armed with a gun and that a shot fired
from that gun by Ram Swarup caused, the death of Munimji.
Decision – Ram Swarup was convicted under section 302.
The Court said -

(1) No right for stage manager -“The right of private defence is a right of defence, not of
retribution. It is available in face of imminent peril to those who act in good faith and in no
case the right be conceded to a person who stage-manages a situation wherein the right can
be used as a shield to justify an act of aggression. For example if a person goes with a gun
to kill another, the intended victim is entitled to act in self-defence and if be so acts there
is no right in the former to kill him in order to prevent him from acting in self-defence.”
(2) Burden of prove - Section 105 of Indian Evidence Act is relevant for this. In this case
Supreme Court said that the right of private defence constitutes a general exception to the
offences defined in the Penal Code. The burden which rests on the accused to prove the
exception is not of the same rigour as the burden of the prosecution to prove the charge
beyond a reasonable doubt. It is enough for accused to show as in a civil case that the
preponderance of probabilities is in favour of his plea. It is responsibility of the accused to
prove that his act come under general exception of which right of private defence is part.
(3) Only for defence - The right of private defence is a right of defence, not of retribution.
Kishan v. State of M.P.45(Nov. 19, 1973)

Facts – There was dispute regarding use of bricks. There were four brothers- (1) Kishan
(2) Damrulal (3) Ganesh & (4) Har Charan. They reached at the home of Bucha. Bucha was
dragged out of his house upto a nearly neem tree. There he was given a beating by fists and kicks
by the appellant and his three brothers Bucha contrived to extricate himself from their grip and
44
AIR 1974 SC 1570.
45
AIR 1974 SC 244.
24
picked up a Khutai lying nearby. He gave three blows on the head of Har Charan with the Khutai.
Har Charan fell down on the ground and became unconscious. Thereafter Kishan and his remaining
two brothers, Ganesh and Damrulal, caught hold of Bucha. The appellant snatched the Khutai from
the hand of Bucha and gave two or three blows on his head. Bucha fell down on the ground and
became unconscious.
Later on Har Charan and Bucha died. Kishan was prosecuted for murder.
Contention of Appellant - Arguments of Kishan was that he did in exercise of right of private
defence.
Rejection of Contention – The Court rejected this argument on the basis that appellant along with
his three brothers, Ganesh, Damrulal and Har Charan went to the house of Bucha, pulled him out
of his house upto the neem tree and there subjected him to punching and kicking. So they were
aggressors. They took the law in their own hands.
Bucha contrived to escape from their grip, caught hold of the khutai and struck three blows on the
head of Har Charan. Bucha was then acting in exercise of the right of self-defence. Therefore, he
was not an aggressor. The appellant could not claim to have beaten Bucha in exercise of the right
of self-defence
Decision -He was convicted for murder.
James Martin v. State of Kerala46

James Martin & his father Xavier was charged for ss. 302,307 and 326 and for some other
offences. There was Bharat Bandh on 15.3.1998 sponsored by some political parties. James and
his father Xavier had their residence, besides a bread factory and a flour mill in the same compound
in suburb of Kochi. Some activists unlawfully entered into residence and pressurized for closing
the operation of flour mill. Bandh activists who got into the place by scaling over the locked gate
and that their entry was unlawful too, besides intimidating and assaulting worker and making him
flee without shutting down the machines. There was reasonable apprehension of causing death. In
the circumstances, the inevitable conclusion is that the acts done by the accused were in the
reasonable limits of exercise of his right of private defence and he was entitled to the protection
afforded in law under Section 96.
In this case Supreme Court observed following important points -
(1) Self-preservation is instinct - Self-preservation is the prime instinct of every human being.
The right of private defence is a recognized right in the criminal law. Section 96 of IPC
also recognize this right.
(2) Lakshman Rekha –Section 99, IPC denotes ‘Lakshman Rekha’. Here ‘Lakshman Rekha’
means boundary beyond which you cannot go. It means right of private defence is not
absolute right. It is subject to restrictions mentioned under section 99, IPC.
(3) Number of Injuries -The number of injuries is not always a safe criterion for determining
who the aggressor was.
46
(2004) 2 SCC 203
25
(4) Consideration of entire facts - In order to find whether the right of private defence is
available to an accused, the entire incident must be examined with care and viewed in its
proper setting.
(5) Social purpose –The right of self-defence is a very valuable right, serving a social purpose
and should not be construed narrowly.
(6) Criteria to determine availability of right of Private Defence - In order to find whether
right of private defence is available or not, (i) the injuries received by the accused, (ii) the
imminence of threat to his safety, (iii) the injuries caused by the accused and (iv) the
circumstances whether the accused had time to have recourse to public authorities are all
relevant factors to be considered.
(7) Defensive right -The right of private defence is essentially a defensive right circumscribed
by the governing statute i.e. the IPC, available only when the circumstances clearly justify
it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive
or retributive purpose of offence. It is a right of defense, not of retribution, expected to
repel unlawful aggression and not as retaliatory measure. While providing for exercise of
the right, care has been taken in IPC not to provide and has not devised a mechanism
whereby an attack may be a pretence for killing. A right to defend does not include a right
to launch an offensive, particularly when the need to defend no longer survived.
(8) Golden Scales and high- powered spectacles or microscopes – It is not possible to weigh
with golden scales whether circumstances exist to exercise right of private defence or not.
Such circumstances must not be viewed with high- powered spectacles or microscopes.
(9) Hartal or Bandh do not authorize to violate the right of other person – Supreme Court
said, “We part with the case it needs to be noted that in the name of Hartal or Bandh or
strike no person has any right to cause inconvenience to any other person or to cause in
any manner a threat or apprehension of risk to life, liberty, property of any citizen or
destruction of life and property, and the least any government or public property”.
(10) Advice to Government – Supreme Court said, “It is high time that the authorities concerned
take serious note of this requirement while dealing with those who destroy public property
in the name of strike, hartal or bandh. Those who at times may have even genuine demands
to make should not lose sight of the overall situation eluding control and reaching
unmanageable bounds endangering life, liberty and property of citizens and public,
enabling anti-social forces to gain control resulting in all around destruction with
counterproductive results at the expense of public order and public peace. No person has
any right to destroy another’s property in the guise of bandh or hartal or strike,
irrespective of the proclaimed reasonableness of the cause or the question whether there
is or was any legal sanction for the same”.
Decision – The case at hand is one which led to the destruction of property and loss of lives,
because of irresponsible and illegal acts of some in the name of bandh or hartal or strike. Unless
those who organize can be confident of enforcing effective control over any possible turn of events,
they should think twice to hazard themselves into such risk prone ventures endangering public
26
peace and public order. The question whether bandh or hartal or strike has any legal sanctity is of
little consequence in such matters. All the more so when the days are such where even law-
enforcing authorities/those in power also precipitate to gain political advantage at the risk and cost
of their opponents. Unless such acts are controlled with iron hands, innocent citizens are bound to
suffer and they shall be the victims of the highhanded acts of some fanatics with queer notions of
democracy and freedom of speech or association. That provides for no license to take law into
their own hands. Any soft or lenient approach for such offenders would be an affront to rule of law
and challenge to public order and peace.”
Supreme Court set aside the conviction and sentence.
Golden Scales
1 March 20, 1952 Amjad Khan v. State

2 Dec. 11, 1972 Deo Narain v. State of U.P.
3 March 26, 1991 Buta Singh v. State of Punjab
4 Dec. 16, 2003 James Martin v. State of Kerala
In the case of Amjad Khan v. State (March 20, 1952) Supreme Court said that these things
cannot be weighed in too fine a set of scales or in golden scales.
In the case of Deo Narain v. State of U.P. (1972 SC) Supreme Court said, “…In such
moments of excitement or disturbed mental equilibrium it is difficult to expect parties facing grave
aggression to coolly weigh, as if in golden scales, and calmly determine with a composed mind as
to what precise kind and severity of blow would be legally sufficient for effectively meeting the
unlawful aggression.”
In the case of Buta Singh v. State of Punjab (1991 SC) he could not have weighed in
golden scales in the heat of the moment the number of injuries required to disarm his assailants
who were armed with lethal weapons.
In the case of James Martin v. State of Kerala (2003) Supreme Court observed, “a person
who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment
and in the heat of circumstances, the number of injuries required to disarm the assailants who were
armed with weapons. In moments of excitement and disturbed mental equilibrium it is often
difficult to expect the parties to preserve composure and use exactly only so much force in
retaliation commensurate with the danger apprehended to him where assault is imminent by use of
force, it would be lawful to repel the force in self-defence and the right of private-defence
commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically
viewed and not with high- powered spectacles or microscopes to detect slight or even marginal
overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided
in considering what happens on the spur of the moment on the spot and keeping in view normal
human reaction and conduct, where self-preservation is the paramount consideration.
27
But, if the fact situation shows that in the guise of self-preservation, what really has been done is
to assault the original aggressor, even after the cause of reasonable apprehension has disappeared,
the plea of right of private-defence can legitimately be negative”.
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:—
(1) First. - Robbery;
(2) Secondly. - House-breaking by night;
(3) Thirdly. - Mischief by fire committed on any building, tent or vessel, which building, tent
or vessel is used as a human dwelling, or as a place for the custody of property;
(4) 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.
UPSC 2008
Question -The right of private defence of property extends to the voluntary causing of death of
wrong-doer under certain descriptions. Which one of the following descriptions is not included in
those?
(a) Robbery
(b) House breaking in night
(c) Lurking House trespass in night
(d) Mischief by fire on any human dwelling
Answer- (c) Lurking House trespass in night.
DU LL.B. 2018 Question (1) (b)

Question- ‘A’ a man whose crop was frequently stolen, found ‘B’ committing theft and gave him
some blows with a Lathi which resulted in his death. Is he justified in killing ‘B’ in exercise of
right of private defence of property.
Answer – This matter will not covered under section 95 of IPC because he was frequently stealing
crops. There was no reasonable apprehension of death or grievous hurt. So matter will not fall
under section 103, Fourthly. He exceeded his right of private defence by casing death in case of
theft without reasonable apprehension of death or grievous hurt. This matter will come under
section 300 Exception 2 which deals exceeding of right of private defence. So he will be liable for
causing culpable homicide not amounting to murder. He will be punished under section 304, IPC.
UGC NET 2018 Dec. and UP J (Mains) 2019

Question 13 (NET)
‘A’ enters into the house of ‘B’ with the intention to commit theft. ‘B’ along with other members
of the family surrounded and attack ‘A’ with wooden sticks. ‘A’ finding his life in danger fires
with pistol causing death to ‘B’. Here ‘A’ has committed :
28
Option –
(1) Culpable homicide not amounting to murder
(2) Murder
(3) Theft
(4) No offence as he acted in self –defence.
Answer - Murder.
Right of private defence is not available against right of private defence. It is also not available
for stage manager.
Question no. 10 (b) - UP (J) Mains 2019

This problem can be solved with the help of State of U.P. v. Ram Swarup which is known
as Melon Case decided by Supreme Court in 1974. In this case Supreme Court observed, “The
right of private defence is a right of defence, not of retribution. It is available in face of imminent
peril to those who act in good faith and in no case the right be conceded to a person who stage-
manages a situation wherein the right can be used as a shield to justify an act of aggression. For
example if a person goes with a gun to kill another, the intended victim is entitled to act in self-
defence and if be so acts there is no right in the former to kill him in order to prevent him from
acting in self-defence.”
From the ratio of Ram Swarup case, it can be concluded that ‘A’ has committed murder.
Section 104. When such right extends to causing any harm other than death-
If the offence, the committing of which, or the attempting to commit which occasions the
exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the
descriptions enumerated in the last preceding section, that right does not extend to the voluntary
causing of death, but does extend, subject to the restrictions mentioned in section 99, to the
voluntary causing to the wrong-doer of any harm other than death.
Differences
1 Section 100 and 103 You can cause ether death or any other harm
2 Section 101 and 104 Only harm can be caused. Causing death is not
allowed. If death is caused it will amount culpable
homicide under section 300 Exception 2.
29
Section 10547 - Commencement and continuance of the right of private defence

of property-
I. First Para – Commencement- The right of private defence of property commences when
a reasonable apprehension of danger to the property commences.
II. Second Para – RPD in case of Theft- 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.
III. Third Para – RPD in case of robbery - 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 or as long as the fear of instant death or of instant hurt or of
instant personal restraint continues.
IV. Fourth Para – RPD in case of criminal trespass or mischief - 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.
V. Fifth Para – RPD in case of house-breaking by night- 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.
Continuance of RPD in case of TRMC
1 RPD in case of Theft (i) till the offender has effected his retreat with the property
(ii) till the assistance of the public authorities is obtained
(iii) till the property has been recovered.
2 RPD in case of Causes or attempts to cause death , hurt or criminal trespass
robbery instant death or of instant hurt or of instant personal restraint
3 RPD in case of Till the continuation of commission of criminal trespass or
criminal trespass or mischief
mischief
4 RPD in case of house- Till the continuation of house trespass
breaking by night
Section 106. 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 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.
47
UK (J) Mains 2016 , ( Regarding year I have some confusion. I appeared in this mains exam. It may be 2015).
30
Some important questions asked in UPSC

Question UPSC 2009 –
To whom, among the following, is the ight of private defence, under Chapter IV of IPC is
available?
(1) Only to the defender being a preventive right.

(2) An aggressor, while facing action on the part of the defender which is excessive?
Select the correct answer using the code given below.

(a)1 only (b) 2 only (c) Bothe 1 and 2 (d) Neither 1 nor 2
Answer – (a)
Question UPSC 2008 –

What is the prime object of Criminal Law?
(a) To punish the forbidden conduct

(b) To protect public property
(c) To protect public and private property
(d) To protect public by maintenance of law and order
Answer- (d).
31
CHAPTER III
CULPABLE HOMICIDE, MURDER, RASHNESS AND NEGLIGENCE
Homicide
Homi means Human Cide means Cutting
Unjustified/Unlawful
Justified/Lawful Homicide
Homicide
General Exception (Ch. IV) 299, 300, 304A and 304B etc.
Murder (Sub-Species)
Culpable Homicide (Species)
Homicide (Genes)
Homicide Culpable Homicide Murder
(I) All homicides are not Culpable Homicide (II) All Culpable Homicides are not murder.
Three babies A, B &C were born at same time. A died before attaining 18 years. B died before
attaining 60 years. C died after attaining 90 years. This can be applied to understand relation
between all these three.
Homicide Culpable Homicide Murder
(I) All murders are Culpable Homicide (II) All Culpable Homicides are homicide.
32
HOMICIDE-(1st Stage)
Homicide means killing of human being. All homicides are not punishable, for example,
any homicide which comes under chapter IV (Sections 76-106) of IPC. Here, there is a relation
between cause and death but guilty mind is absent. Actus non facit reum, nisi mens sit rea. It
means, the act itself does not make a man guilty, unless his intention was so.
When a homicide is committed with guilty mind, that homicide would be either culpable homicide
or murder. So, it is said that all homicide is not culpable homicide, but all culpable homicide is
homicide. Preparation to commit murder is not punishable offence.48
CULPABLE HOMICIDE – (2nd Stage)
When homicide is done with guilty intention or knowledge and degree of intention or
knowledge is higher, then it is culpable homicide.
MURDER-3rd Stage
When homicide is done with guilty intention or knowledge and degree of intention or
knowledge is highest, then it is murder.
Difference between Culpable Homicide and Murder depends upon degree of intention and
knowledge. So now I am going to search how in case of murder there is more degree of intention
and knowledge than degree of Culpable Homicide.
First of all, we have to understand Culpable Homicide (Section 299) and Murder (300).
There are two conditions must be fulfilled namely
(1) There must be cause-effect relationship, and
(2) Guilty Mind. “Actus non facit reum, nisi mens sit rea” is applicable in case of culpable
homicide and murder.
Section 299
Actus Reus Mens Rea
Causing by doing an Intention to cause Intention to cause knowledge to

Death act death bodily injury cause bodily injury
Section 299 -Mens Rea

(a) Intention to cause Death
(b) Intention to cause Bodily Injury Likely to Death
(c) Knowledge Bodily Injury Likely to Death
48
U.P.H.J.S. Pre. 2009
33
Section 299:
(1) Cause-effect relationship -
(2) “Whoever causes death (Section 46) by doing an act (Sections 32 &33)
(3) Guilty Mind -
(a) Intention to cause death - with the intention (Desire and foresight of
consequences) of causing death, or
(b) Intention to cause bodily injury - with the intention of causing such bodily injury
as is likely to cause death (there is no intention to cause death, only intention is to
cause bodily injury) or
(c) Knowledge -with the knowledge (foresight of consequences) that he is likely by
such act to cause death, commits the offence of culpable homicide.”
The guilty intention in the first two conditions contemplates the intended death of the
person harmed or the intentional causing of an injury likely to cause his death. The knowledge in
the third condition contemplates knowledge of the likelihood of the death of the person.49
Illustrations
There are three illustrations. First illustration (a) is related to sticks and turf over a pit. It is
not intended to kill particular person.50 Second illustration (b) is related where A knows Z to be
behind a bush but B does not know it. This illustration denies role of innocent person and victim.51
Third illustration is related to shooting at fowl with intent to kill and steal it. He was doing without
intention or knowledge to kill human being. He was not guilty of culpable homicide.
Explanations
There are three explanations clarifies the culpable homicide. First Explanation is related
to bodily injury, disorder & disease (BIDIDI) and acceleration of death, second Explanation is
related to proper remedies and skilful treatment and third Explanation is related to child who has
been brought forth even though he has not taken breath.
These explanations are clarifying that merely acceleration of death, resorting of proper remedies
and skilful treatment and child not born completely cannot be taken defence. Even in these
circumstances persons shall be liable for culpable homicide.
First Condition
There must be cause and effect relationship/ Causa causans (Immediate or operating cause)
(1) Moti Singh and Anr. v. State of UP,52 (DOJ. Jan. 23, 1963). (Primary cause and the death
should not be too remote. You have to prove that by act of accused, death of victim has
49
Anda and Ors. vs The State Of Rajasthan, 9 March, 1965 SC
50
Emporer v. M.S.Murthy (Halva Case) 1912, Mad. H.C.
51
52
AIR 1964 SC 900
34
occurred). Deceased had been injured during the occurrence and had been taken to the
hospital where his dying declaration was recorded. He left the hospital and died 20 days
later. Before any postmortem examination could be held, his body was cremated.
Prosecutor could not prove what the reason of cause of death of victim was whether it was
injury caused by accused or negligence in taking medicine after discharge of hospital.
Moti Singh and Jagdamba were acquitted.
(2) Joginder Singh v. State of Punjab53 (1979)
The deceased Rupinder Singh had teased the sister of accused. In retaliation accused
reached at the house of deceased. Seeing these things deceased started to run away.
Accused tried to hold deceased. Accused was about 15 to 20 feet away from victim when
victim jumped into well. There was no cause & effect relationship. Here cause and effect
means, there must be death of victim by act of accused.
If this condition is not fulfilled, no further question regarding intention or knowledge.
Second Condition
There Must Be Guilty Mind.
Act must be done with guilty mind. There are three degrees of mens rea-
(i) Intention to cause death, or

(ii) Intention to cause such bodily injury as is likely to cause death, or
(iii)With the knowledge the he is likely by such act to cause death. Here ‘likely’ word denotes
probability. By aiding some special words, this probability would be converted into
certainty. Then culpable homicide would be converted into murder.
In absence of guilty mind person would not be liable for Culpable Homicide. Example –
Dispute was going between husband and wife. Wife was along with baby. Husband struck a
blow on her body rather than vital part of her body. Accidently that blow struck baby and baby
died. Husband was not doing lawful work. So he would not get benefit of section 80. He had
no intention to cause death of wife or his blow was not sufficient to cause death of her wife.
There is matter of transfer of malice under section 301. So that person would be liable only for
causing voluntarily grievous hurt. Rather than causing of culpable homicide.54

Facts - Accused was not intended to kill Rajalakshmi. He was intended to kill Appala
Narasimhulu, (on whose life he had effected large insurances without Appala Narasimhulu’s
knowledge, and in order to obtain the sums for which he was insured), gave him some sweetmeat
(halva) in which a poison containing arsenic and mercury in soluble form had been mixed. Appala
after eating some poisonous sweetmeat (halva) remaining halva he threw. Without knowledge of
53
AIR 1979 SC 1876
54
U.P.A.P.O.(Special) 2007.
35
accused the girl (Rajalakshmi) took the halva and ate and subsequently died. He was liable for
murder under section 302. But in this case section 299 was also discussed very thoroughly.
In this case Supreme Court discussed following important points –
(1) Intention to cause particular person is not necessary
(2) Contributory action of victim does not resolve the accused from his responsibility.
(3) Contributory action of third party is also not relevant.
Death of Particular person - Intention to cause death of particular person is not necessary. It
becomes very clear after cumulative readings of Sections 299 to 301 and illustrations of these
sections. It is to be observed that the section does not require that the offender should intend to kill
(or know himself to be likely to kill) any particular person. It is enough if he “causes the death” of
any one, whether the person intended to be killed or anyone else.
Illustration –
This is clear from the first illustration to the section, “A lays sticks and turf over a pit, with
the intention of thereby causing death, or with the knowledge that death is likely to be thereby
caused Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the
offence of culpable homicide.”
Contributory action of victim or third party-

Nor is it necessary that the death should be caused directly by the action of the offender,
without contributory action by the person whose death is caused or by some other person. That
contributory action by the person whose death is caused will not necessarily prevent the act of the
offender from being culpable homicide, even if the death could not have occurred without such
contributory action, is clear from the above illustration, and that contributory action by a third
person will not necessarily prevent the act of the offender from being culpable homicide, even if
the death could not have occurred without such contributory action, is clear from the second
illustration, viz. A knows Z to be behind a bush. B does not know it. A, intending to cause, or
knowing it to be likely to cause, Z’s death, induces B to fire at the bush. B fires and kills Z. Here
B may be guilty of no offence; but A has committed the offence of culpable homicide.
The language of the section and the illustration show that neither the contributory action of Appala
Narasimhulu in throwing away part of the sweetmeat, nor the contributory action of the girl in
picking it up and eating it prevent holding that it was the accused that caused the girl’s death.
Ganesh Dooley Case (1879)
(Sometimes even gross negligence may amount to knowledge)
A snake charmer exhibited in public a venomous snake whose fangs he knew had not been
extracted and to show his own skill but without intention to cause harm to anyone, placed the snake
on the head of the one of the spectators. The spectator in trying to push off the snake was bitten
and died in consequence. The snake charmer was held guilty of culpable homicide not amounting
to murder.
36
Relation between ‘Mens Rea’ and ‘Actus Reus’

DU LL.B. 2018 Question 2018 (5) (a)
‘A’ was in the habit of beating up his wife over trivial issues. One day, during such fight,
‘A’ picked up a lathi lying nearby and hit his wife on her head. Consequent to the lathi blow, the
woman fell unconscious. Believing her to be dead he hung her body by a rope in order to create
an appearance that the wife committed suicide. However, postmortem examination showed that
death was due to hanging. With the help of decided cases determine the culpability of A.
Answer – Palani Goundan v. Emperor 1919, Mad. H.C. ‘A’ has not committed culpable
homicide. He has committed voluntarily hurt.
Palani Goundan v. Emperor 1919, Mad. H.C.

Husband struck a violent blow on the head of his wife (Ramayee) with ploughshare. She
became unconscious. He thought that she had died while she was merely unconscious. So for
concealment of evidence, he hanged her. She died due to hanging.
The accused did not intend to cause death. He intended to cause bodily injury. It was not shown
that the blow was likely to cause death. He was not liable either for culpable homicide or murder.
He was liable only for causing of grievous hurt and concealing evidence. He had neither intention
nor knowledge to kill his wife.
In Re Thavamani Case, 1943 Mad. H.C.

There are two stages of the facts of the case.
(1) First stage - In the first stage there was intention to cause death. They hit the woman
(Meenakshi Achi) when she was in her flower garden. They thought that she had died. In
reality she was merely unconscious.
(2) Second stage - After believing her death they threw into well to conceal evidence. She died
in well.
Second stage was continuation of first stage. So he was guilty of murder.
Differences
S. No. Palani Goundan In Re Thavamani Case
1 1919 1943
2 From the very beginning there was From the very beginning there was
intention to cause bodily injury intention to cause death
3 Public Prosecutor failed to prove that by Everything was proved properly
causing injury by ploughshare was likely
to cause death
4 Liable for causing of grievous hurt and Liable for causing murder
concealing evidence.
37
LL.B. –DU 2016
Question 1(a) - A, B, and C assaulted their junior and fresher X in their hostel room while ragging
him. They punched and kicked him on non-vital parts of his body as he refused to dance on a song
played by them on their mobile phone. X fell down and became unconscious. Presuming him to
be dead they hanged him from the ceiling fan by a rope, so as to create an impression that X had
committed suicide. The post-mortem examination showed that death was due to asphyxiation.
Decide culpability of A, B and C with the help of decided case.
Answer:
In this problem sections 201, 299, 321& 323 and ratio of judgment of Palani Goundan v.
Emperor (1919, Mad. H.C.) are involved. Actus non facit reum, nisi mens sit rea means the act
itself does not make a man guilty, unless the mind is also guilty.
Section 321 related to voluntarily causing heart and its punishment has been provided under
section 323. Section 299 deals culpable homicide.
Section 299 Culpable Homicide - Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily injury as is likely to cause death, or
with the knowledge that he is likely by such act to cause death, commits the offence of culpable
homicide.
There are two parts of section 299. First part i.e. “Whoever causes death by doing an act” is an
actus reus i.e prohibited act. There must be cause effect relationship. Second part deals mens rea
i.e. guilty mind. Second part may be divided into three parts namely (a) Intention to cause death
or (b) Intention to cause bodily injury or (c) Knowledge. If either condition is missing, section 299
shall not be applicable.
Palani Goundan v. Emperor (1919, Mad. H.C.)

Husband struck a violent blow on the head with ploughshare. She became unconscious. It
was not shown to be a blow likely to cause death. He thought that she had died. So for concealment
of evidence, he hanged her. She died due to hanging. He was not liable either for culpable homicide
or murder. He was liable only for causing of grievous hurt and concealing evidence. He had neither
intention nor knowledge to kill his wife.
Evaluation of problem
Section 299
(i) Cause – effect relationship
Here cause-effect relationship means death must be occurred by act of accused. If reason
of death is not act of accused then no further question arises regarding application of guilty
38
mind. In the Moti Singh v. State of U.P., Supreme Court said that there must be connection
between the primary cause and the death which should not be too remote.
In this problem Z died due to hanging him by all accused from the ceiling fan by a rope.
So in this case first condition of section 299 is being fulfilled.
(ii) Guilty Mind – Without guilty mind homicide is possible but culpable homicide is not
possible. In this problem there was no intention to cause death. Although there was
intention to cause bodily injury but bodily injury was on non-vital part by which there was
no probability to cause death. Here knowledge was that they were inflicting the injury on
non-vital part. But by that injury there was no probability to cause death.
So in this problem guilty mind as required under section 299 is missing.
So conclusion is that they will not be liable to culpable homicide. Here death occurred due
to hanging. At the time of hanging mere intention was to conceal the evidence rather than
to cause death.
Palani Goundan Case

In this case it was held, “The conclusion is irresistible that the intention of the accused must
be judged, not in the light of the actual circumstances, but in the light of what he supposed to be
the circumstances. It follows that a man is not guilty of culpable homicide, if his intention was
directed only to what he believed to be a lifeless body.”
In this problem they presumed him to be dead. So they hanged him from the ceiling fan by a rope,
so as to create an impression that X had committed suicide.
So we can say that they had not committed culpable homicide.
Voluntarily Causing Hurt
According to section 319 a person who causes bodily pain, disease or infirmity to any
person is said to cause hurt. Hurt is not punishable because here guilty mind is missing. Only
voluntarily causing hurt is punishable. According to section 321 if hurt is caused with the intention
or knowledge then it is called voluntarily causing hurt which is punishable under section 323.
In this problem A, B, and C had caused hurt voluntarily. This hurt is not coming under the category
of grievous hurt as mentioned in section 320. So they will be liable for voluntarily causing hurt.
Disappearance of evidence (section 201)
Presuming him to be dead they hanged him from the ceiling fan by a rope, so as to create an
impression that X had committed suicide. So they will be punished under section 201.
Conclusion
From the above discussion it becomes clear that A, B, and C had not committed culpable homicide.
They had committed offences under section 323 (voluntarily causing hurt) and section
201(Disappearance of evidence) of IPC, 1860.
Emperor v. Dhirajia (1940)

She jumped into the well along with her baby and her baby died. She jumped into the well
with excuse. Excuse was that she did due to fear of her husband who were running behind her.
39
Allahabad High Court held that every sane person shall be presumed to have knowledge about
his/ her own conduct. She had done with excuse. So she was liable only for culpable homicide
rather than murder.
Difference between Culpable Homicide (CH) and Murder
According to Sir James Fitzjames Stephen (Father of Indian Evidence Act) CH and
Murder is the weakest part of the Code because in both cases death of person is involved as well
as intention and knowledge. There are two leading cases one was decided by Justice Melvil (R v.
Govinda, July 18, 1876, Bombay High Court) and another decided by Justice Ranjit Singh Sarkaria
(State of A.P. v. R. Punnayya, September 15, 1976, Supreme Court).
S.No. R v. Govinda State of A.P. v. R. Punnayya

1 Bombay High Court Supreme Court
2 July 18, 1876 September 15, 1976
3 Justice Melvil Justice Ranjit Singh Sarkaria
4 Causing death of wife Causing death under political vendetta
There are two types of homicide namely; lawful homicide (Sections 76 to 106) and
unlawful homicide (299, 300, 301, 304A, 304B, 305, 306,307, 308, 309). All homicide is not
culpable homicide (unlawful homicide). But all culpable homicide is homicide. All culpable
homicide is not murders, but all murders are culpable homicide.
Example – Suppose there are three children namely A, B and C. Age of all is 18 years (Homicide).
But at the sharp age of 18 years A died but B and C completed age of 60 Years (Culpable
Homicide). But at the sharp age of 60 years B died, but C still surviving and completed age of 90
years (Murder).
Age of 18 years is equal to - Homicide.
Age of 60 years is equal to - Culpable Homicide.
Age of 90 years is equal to - Murder.
C is person who completed age of 90 years. But before completing age of 90 years, he had to
complete age of 18 years (Homicide). He had also completed age of 60 years (Culpable Homicide).
After completing age of 60 years, he also completed age of 90 years. So all murder is CH but all
CH is not murder. All culpable homicide is homicide but all homicide is not culpable homicide.
Difference among Homicide, Culpable Homicide and Murder depends upon mental condition of
human being. If person is doing without intention to commit wrong that will amount only
Homicide. For example death caused by person under section 100 or 103 is merely homicide.
If homicide is caused with guilty mind that will amount to culpable homicide. If there is higher
degree of guilty mind that culpable homicide amount murder. There are five exceptions of murder.
40
All exceptions are murder but they have been put under categories of culpable homicide because
of special reasons.
Division of Culpable Homicide and murder

It may be divided on the basis of two grounds mental condition and nature of injury.
Mental condition - Culpable Homicide and murder may be divided into two parts on the ground
of mental condition namely;
(1) Culpable Homicide and murder caused with intention and
(2) Culpable Homicide and murder caused with knowledge.
Nature of Injury - Culpable Homicide and murder may be divided into two parts on the ground of
nature of injury namely;
(1) Intention to cause death or
(2) Intention to cause bodily injury, and
(3) Knowledge of act.
R v. Govinda,
(Justice Melvil, Bombay High Court, July 18, 1876)
Facts – The Court observed “In the present case the prisoner, a young man of 18, appears
to have kicked his wife, (a girl of 15) and to have struck her several times with his fist on the back.
These blows seem to have caused her no serious injury. She, however, fell on the ground, and I
think that the evidence shows that the prisoner then put one knee on her chest, and struck her two
or three times on the face. One or two of these blows, which, from the medical evidence, I believe
to have been violent and to have been delivered with the closed fist, took effect on the girl’s left
eye, producing contusion (A wound in which the skin is not broken; often having broken blood
vessels and discolouration) and discoloration. The skull was not fractured, but the blow caused
an extravasation (discharge) of blood on the brain, and the girl died in consequence either on the
spot, or very shortly afterwards.”
Decision - Prisoner was convicted of culpable homicide not amounting to murder, and he was
sentenced to transportation for seven years.
Ratio- Justice Melvil made differences between CH and murder. For convenience he divided guilty
mind for culpable homicide under three categories namely; (a), (b) and (c).He made three
categories to make difference namely;
(1) Intention to cause death, (C.H. – (a), Murder – Firstly)

(2) Intention to cause bodily injury, (C.H. – (b), Murder – Secondly & Thirdly)
(3) Knowledge of act. (C.H. –(c), Murder – Fourthly)
41
(1) Intention to cause death - S. 299(a) and S.300 (Firstly)

In case of intention to cause death culpable homicide is always murder.
Justice S.299 (a) - Intention to cause death - S. 300(Firstly) - Intention to cause death.
Melvil On this point, there is no difference. It “(a) and (1) show that where there is an
means homicide is committed with intention to kill, the offence is always
intention to cause death, that homicide murder.”
is always murder.
(2) Intention to cause bodily injury - (S.299 (b) & S.300– (Secondly) & (Thirdly)
In section 299 only (b) category talks about intention to cause bodily injury while S.300– Secondly
& Thirdly deals intention to cause bodily injury. In section 300– Secondly & Thirdly certain
specific words have been which increase the gravity of guilty mind.
2 (b) Secondly
(b)Intention to cause bodily injury + (Secondly)Intention to cause bodily injury +
by such bodily injury, it is likely to Offender knows that by such bodily injury, it is
cause death likely to cause death.( Intention + knowledge+
(Intention +Likely). likely).
Here knowledge is missing. Here knowledge of offender has enhanced
probability of death.
(b) Thirdly
(b) Intention to cause bodily injury + Thirdly- With the intention of causing bodily
by such bodily injury, it is likely to injury to any person, and the bodily injury
cause death. (Intention + Likely). intended to be inflicted is sufficient in the
(The distinction lies between a bodily ordinary course of nature to cause death. By
injury likely to cause death and a using the words sufficient in the ordinary course
bodily injury sufficient in the ordinary of nature, enhanced the gravity of probability.
course of nature to cause death.) (1)State of A.P. v. R.Punnayya. J Ranjit Singh
Sarkaria.
(2)Virsa Singh v. The State of Punjab, Justice
Vivian Bose.
42
(3) Knowledge of act. (S.299 –(c), S. 300 – Fourthly)

Existence of imminently dangerous (ID Card) and all probability to cause death enhance the
gravity of knowledge.
3 Knowledge (c) Knowledge(Fourthly)
No Knowledge + Knowledge+ Imminently Dangerous (ID) + all probability
intention, Likely to cause to cause death + without excuse. For example-Terrorist
only death attack
knowledge
Without any excuse - (1) Emperor v. Dhirajia. Dhirajia has
done with excuse. So she was liable only for culpable
homicide.
(2) Gyarsibai w/o Jagannath v. The State. Gyarsibai has
done without execuse. So She was liable for murder.
Conclusion –
There are following stages -
Homicide - (1) There must be death, and (2) That death must be caused by act of accused. (Cause
-effect relationship).
Culpable Homicide- Cause-effect relationship must be result of guilty mind as mentioned in 299.
Murder – Culpable homicide may come under the category of murder if conditions mentioned
under section 300 are being fulfilled. Murder may convert into CH only in five exceptional
circumstances mentioned in section 300
43
Differences between Section 299 and Section 300:

Homicide CH Murder
Chapter 299 300
IV(Sections7
6-106)
1 Intention to cause death rather Intention to cause death rather than bodily
than bodily injury injury
Intention To (a)Intention to cause death (J. (Firstly) Intention to cause death. Justice
Cause Death Melvil, On this point , there is no Melvil-R v. Govinda (1876)
difference-. It means homicide is “(a) and (1) show that where there is an
committed with intention to cause intention to kill, the offence is always
death, that homicide is always murder.”
murder.
2 Intention to cause bodily injury
Intention to cause bodily injury
(b) Secondly & Thirdly
Intention to (b)Intention to cause bodily (Secondly)Intention to cause bodily injury
cause bodily injury + by such bodily injury, it is
+ Offender knows that by such bodily
injury likely to cause death injury, it is likely to cause death.( Intention
rather than (Intention +Likely). + knowledge+ likely). Here knowledge of
death Here knowledge is missing. offender has enhanced probability of death.
(b) Intention to cause bodily Thirdly- With the intention of causing
injury + by such bodily injury, it is
bodily injury to any person, and the bodily
likely to cause death.
injury intended to be inflicted is sufficient
(Intention+Likely). in the ordinary course of nature to cause
(The distinction lies between adeath; By using the words sufficient in the
bodily injury likely to cause death
ordinary course of nature, enhanced the
and a bodily injury sufficient in
gravity of probability.
the ordinary course of nature to
State of A.P. v. R.Punnayya.
cause death). J Ranjit Singh Sarkaria.
In Virsa Singh v. The State of Punjab,
Justice Vivian Bose .
3 Knowledge (c) Knowledge(Fourthly)
No Knowledge + Likely to cause Knowledge+ Imminently Dangerous + all
intention, death probability to cause death + without
only excuse. For example-Terrorist attack
knowledge
Without any excuse
(1) Emperor v. Dhirajia,
(2) Gyarsibai W/O Jagannath v. The State
44
Difference Bet. Sec.299 & 300 Regarding Sentences:

Murder C H (Intention) C H (Knowledge)
Section 302 Section 304 ( Part 1) Section 304 (Part 2)
Death or LI and LI or Ten years imprisonment and fine Ten years of either description or
fine fine or both. No L I.
Section 299 (a) & Section 300 Firstly (Intention to cause death)
Rawalpenta Venkalu v. State of Hyderabad AIR 1956 SC 171
There was long dispute between the deceased and the family of the second appellant (Bodla
Ram Narsiah) regarding land. Rawalpenta Venkalu is the first appellant. After taking toddy and
wine, they went to the house of the deceased (Md. Moinuddin) to burn alive him and locked the
house and second appellant set the fire to the house with a matchstick. Md. Moinuddin was crying
for help. His servants tried to save him. They were assaulted by the accused. Servants went towards
village for help. When villagers came for help they were also beaten indiscriminately. So they
returned back.
Supreme Court found that there was clear intention to cause death. So appeal was
dismissed. It means death sentence of appellant was confirmed.
DU LL.B. Question 2 (2013)

Critically explain the test laid down by the Supreme Court in Virsa Singh v. State of Punjab AIR
1958 SC 465 for invoking the charge of murder under section 300(3) read with section 302 IPC.
Comment on principles in Kapur Singh v. State of Pepsu AIR 1956 SC 654 and of Virsa Singh the
latter case.
Answer
Kapur Singh v. State of Pepsu55
Facts - About a year before the date of the occurrence, Bachan Singh s /o the deceased
caused a severe injury on the leg of Pritam Singh s/o Kapur Singh resulting in the amputation of
his leg. Kapur Singh F/O Pritam Singh with the help of Chand Singh took revenge. Chand Singh
gripped the father of Bachan Singh by the head and Kapur Singh inflicted as many as 18 injuries
on the arms and legs of the deceased with a gandasa. It is significant that out of all the injuries
which were thus inflicted none was inflicted on a vital part of the body.
Decision - Appellant had no intention to cause death. But by such bodily injury it was
likely to cause death. He was convicted under section 304(1) of IPC. The Court rejected to apply
section 302.
55
AIR 1956 SC 654
45
Bachan Singh s /o the caused a severe injury on the leg of Result- amputation of his
deceased Pritam Singh s/o Kapur Singh leg.
Kapur Singh f/o Pritam Father of Bachan Singh inflicted as Result – Death.
Singh many as 18 injuries on the arms and There was only intention to
legs of the deceased with a gandasa. cause bodily injury. Injury
There was no injury on vital part. was caused to take revenge.
Conviction Section 299(b) Section 304 1st Part
Defect of judgment Section 300, Thirdly was not
discussed.
Medical Report There was no medical report
Virsa Singh v. State of Punjab56 (March 11, 1958) (Justice Vivian Bose)
Facts – There was only one injury on the body of Khem Singh. Virsa Singh thrust a spear
into the abdomen of the deceased. This injury caused his death. Three coils of intestines were
coming out of the wound. In the opinion of the doctor the injury was sufficient to cause death in
the ordinary course of nature.
Section 300, thirdly
“If it is done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death.”
Contentions of Appellant – Main contention of the appellant was that there are two parts of section
300 thirdly and in both parts intention is necessary. It means (1) there must be intention to cause
bodily injury and (2) there must be intention to cause such bodily injury as is sufficient in the
ordinary course of nature to cause death. According to contention in both cases subjective test
must be followed.
Decision of Court – Supreme Court rejected this contention. Supreme Court held that there
are two parts of section 300 thirdly. The Court said that these two parts are disjunctive and separate.
These parts are namely;
Part 1-If it is done with the intention of causing bodily injury to any person (Subjective
test) and
Part 2- the bodily injury intended to be inflicted (It is descriptive of part 1) is sufficient in
the ordinary course of nature to cause death (Objective Test).
Part 1 & Intention – Intention is necessary only for part one. It must be proved that bodily injury
was caused with intention. It must not be accidental or unintentional. It must be decided according
to subjective test. Personal intention is necessary.
Part 2 & Intention – In the second part intention is not necessary. To decide whether bodily injury
is sufficient or not, objective test must be followed.
56
AIR 1958 SC 465.
46
Four Steps
To put it shortly, the prosecution must prove the following facts before it can bring a case under
section 300 thirdly-
(1) First Step - it must establish, quite objectively, that a bodily injury is present;
(2) Secondly Steps- the nature of the injury must be proved. This is purely objective
investigations.
(3) Thirdly Steps- it must be proved that there was an intention to inflict that particular bodily
injury, that is to say, that it was not accidental or unintentional, or that some other kind of
injury was intended- Subjective Test.
Once these three elements are proved to be present, the enquiry proceeds further and,
(4) Fourthly Steps - it must be proved that the injury of the type just described made up of the
three elements set out above is sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to do with the
intention of the offender.
First Step Bodily injury is present Objective Test

Secondly Steps Nature of Injury Objective Test
Thirdly Steps Intention to inflict that particular bodily injury Subjective Test
Fourthly Steps Such bodily injury is sufficient to cause death in Objective Test
the ordinary course of nature
Once these four elements are established by the prosecution (and, of course, the burden is on the
prosecution throughout) the offence is murder under section 300 thirdly.
Medical Report - The doctor said that the injury was sufficient to cause death in the ordinary
course of nature.
Decision – Virsa Singh was convicted by the first court under section 302 and his conviction and
sentence were upheld by the High Court. Appeal was dismissed by the Supreme Court.
Remarks – In Virsa Singh case Supreme Court has explained the meaning and scope of section
300(3).57 Guidelines were laid down to attract section 300(3).
Thus according to the rule laid down in Virsa Singh’s case even if the intention of accused
was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of
nature and did not extend to the intention of causing death, the offence would be murder.
57
M.P.H.J.S. (Pre) 2010.
47
Comparison between Kapur Singh and Virsa Singh Case

Ground Kapur Singh Virsa Singh
Injury 18 injuries on arms & legs One injury in abdomen
Weapon Gandasa Spear
Mens Rea Intention to cause bodily injury Intention to cause bodily injury
Medical There was no medical report According to Medical Report, the
Report bodily injury was sufficient to cause
death
Sec. 300 Sec. 300 Thirdly was not discussed Sec. 300 Thirdly was discussed
Thirdly minutely.
Offence Section 299 (b) Section 300 Thirdly
Punishment Causing of Culpable Homicide with Causing of murder with intention.
intention. Section 304, First Part. Section 302.
Anda and Ors. v. The State of Rajasthan, 9 March 1965

In this case Supreme Court observed following important points -
(1) Murder is an aggravated form of culpable homicide.
(2) The existence of one of four conditions turns culpable homicide into murder while the
special exceptions reduce the offence of murder again to culpable homicide not amounting
to murder.
Section 300
Culpable homicide not

Murder
amounting to murder
(Section 300 Firstly, Secondly,

(Section 300, Five Exceptions)
Thirdly & Fourthly)
With intention With knowledge

Section 302
(Section 304, 1st Part) (Section 304, 2nd Part)
(3) Taking the four clauses one by one we find that under the first clause of Section 300
culpable homicide is murder when the act by which death is caused is done with the
intention of causing death. This clause reproduces the first part of Section 299. An
48
intentional killing is always murder unless it comes within one of the special exceptions
in Section 300. If an exception applies, it is culpable homicide not amounting to murder.
(4) The word ‘act’ in all the clauses of Section 299 or Section 300 denotes not only a single
act but also a series of acts taken as a single act.
DU LL.B. 2018 Question (3)

Tej had scolded Teena, daughter of Shan, for misbehaving with his daughter. Shan did not
like this and was looking for an opportunity to give good thrashing to Tej. One day Shan saw that
Tej was passing through his place and seizing this opportunity, Shan caught hold of a stick lying
nearby and gave nineteen blows with the stick on the legs and arms of Tej. Tej was removed to a
nearby hospital and died after two days. The post-mortem report attributed death to multiple
fractures on arms and legs and internal bleeding. Shan is tried for the offence of murder under
section 300 (3) IPC. Decide with the help of decided cases.
Answer:
In this case Kapur Singh, Virsa Singh, Anda and Punnayya cases must also be quoted.
State of A.P. v. R. Punnayya & Another58

(Sept. 15, 1976, S.C. Justice Ranjit Singh Sarkaria)
Facts -In Rompicherla village, there were factions belonging to three major communities viz.,
Reddys, Kammas and Bhatrajus.
(1) Rayavarapu (Respondent No. 1 herein) was the leader of Kamma faction. Kammas were
supporters of Swatantra Party.
(2) Chopparapu Subbareddi was the leader of the Reddys. The Reddys were supporting the
Congress Party.
Several times disputes have occurred between both groups during elections.
(3) Sarikonda Kotamraju, the deceased person in the instant case, was the leader of Bhatrajus.
In order to devise protective measures against the onslaughts of their opponents, the
Bhatrajus held a meeting at the house of the deceased, wherein they resolved to defend
themselves against the aggressive actions of the respondents and their party men. PW 1, a
member of Bhatrajus faction has a cattle shed. The passage to this cattle-shed was blocked
by the other party. The deceased took PW 1 to Police Station Nekarikal and got a report
lodged there. On July 22, 1968 Sub-Inspector visited the place and directed to come at
police station for compromise. There were some disputes pending in Court before a
Magistrate at Narasaraopet.
July 23, 1968 - On the morning of July 23, 1968, at about 6-30 a.m., the deceased with two
other person boarded bus for going to Nekarikal. Some minutes later, accused 1 to 5 also got into
58
AIR 1977 SC 45.
49
the same bus. When the bus was stopped at Nekarikal Crossroads, at about 7-30 a.m. July 23,
1968, the deceased and his companions alighted for going to the Police Station. The five accused
also got down. The deceased and one companion went towards a Choultry while third companion
went to the roadside to ease himself. Two accused picked up heavy sticks and went after the
deceased into the Choultry. On seeing the accused the companion ran away towards a hut nearby.
The deceased stood up.
He was an old man of 55 years. He was not allowed to run. Despite the entreaties made by
the deceased with folded hands, both accused indiscriminately pounded the legs and arms of the
deceased. One of the by-standers, asked the assailants as to why they were mercilessly beating a
human being, as if he were a buffalo. The assailants angrily retorted that the witness was nobody
to question them and continued the beating till the deceased became unconscious. The accused
then threw their sticks at the spot, boarded another vehicle, and went away. The victim was
removed to Narasaraopet Hospital. There, at about 8.45 a.m., Doctor Konda Reddy examined him
and found 19 injuries, out of which, no less than 9 were (internally) found to be grievous. The
deceased, however, succumbed to his injuries at about 4.40 a.m.on July 24, 1968, despite medical
aid.
Autopsy Report - The autopsy was conducted by Dr. P.S. Sarojini in whose opinion, the
injuries found on the deceased were cumulatively sufficient to cause death in the ordinary course
of nature. The cause of death, according to the Doctor, was shock and haemorrhage resulting from
multiple injuries.
Decision of Supreme Court
Supreme Court laid down several important points –
(1) Genus and Species – In the scheme of the Indian Penal Code, ‘culpable homicide’ is genus
and ‘murder’ is its species. All ‘murder’ is ‘culpable homicide’ but not vice-versa.
(2) Speaking generally, ‘culpable homicide’ sans (sans means without) ‘special characteristics
of murder’, is ‘culpable homicide not amounting to murder’. ‘Culpable homicide’ with
‘special characteristics of murder’, is ‘culpable homicide amounting to murder’.
(3) Degrees of Culpable Homicide –
For the purpose of fixing punishment, proportionate to the gravity of this generic
offence, IPC practically recognizes three degrees of culpable homicide.
(a) 1st Degree -The first is, what may be called, culpable homicide of the first degree.
This is the gravest form of culpable homicide which is defined in section 300 as
‘murder’.
(b) 2nd Degree -The second may be termed as ‘culpable homicide of the second
degree’. This is punishable under the 1st part of section 304. Culpable homicide
committed with intention
(c) 3rd Degree - There is ‘culpable homicide of the third degree.’ This is the lowest
type of culpable homicide and the punishment provided for it is, also, the lowest
among the punishments provided for the three grades. Culpable homicide of this
50
degree is punishable under the second Part of Section 304. Culpable homicide
committed with knowledge.
Difference Bet. Sec.299 & 300 Regarding Sentences

1st
Degree (Highest Degree) 2nd Degree (Middle Degree) 3rd Degree (Lowest Degree)
Murder C H (Intention) C H (Knowledge)
Section 302 Section 304 (Part 1) Section 304 (Part 2)
Death or LI and fine LI or Ten years Ten years of either description or
imprisonment and fine fine or both. No L I.
Difference between CH and Murder –

The safest way of approach to the interpretation and application of these provisions seems to be to
keep in focus the key words used in the various clauses of ss. 299 and 300. With the help of
comparative table, distinction was discussed.
(i) Clause (b) of s. 299 corresponds with cl. (2) of s. 300.

The distinguishing feature of the mens rea requisite under cl. (2) is the knowledge
possessed by the offender regarding the particular victim being in such a peculiar condition
or state of health that the intentional harm caused to him is likely to be fatal,
notwithstanding the fact that’ such harm would not in the ordinary way of nature be
sufficient to cause death of a person in normal health or condition. It is noteworthy that the
‘intention to cause death’ is not an essential requirement of el. (2). Only the intention of
causing the bodily injury coupled with the offender’s knowledge of the likelihood of such
injury causing the death of the particular victim, is sufficient to bring the killing within the
ambit of this clause. This aspect of cl. (2) is borne out by illustration (b) appended to s.
300.
(ii) Clause (b) of s. 299 corresponds with cl. (3) of s. 300.
In clause (3) of s. 300, instead of the words ‘likely to cause death’ occurring in the
corresponding el. (b) of s. 299, the words “sufficient in the ordinary course of nature”
have been used. Obviously, the distinction lies between a bodily injury likely to cause death
and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction
is fine but real, and, if over-looked, may result in miscarriage of justice. The difference
between cl. (b) of s. 299 and cl. (3) of s. 300 is one of the degree of probability of death
resulting from the intended bodily injury. To put it more broadly, it is the degree of
probability of death which determines whether a culpable homicide is of the gravest,
medium or the lowest degree. The word “likely” in cl. (b) of s. 299 conveys the sense of
’probable’ as distinguished from a mere possibility. The words “bodily injury... sufficient
in the ordinary course of nature to cause death” mean that death will be the “most
probable” result of the injury having regard to the ordinary course of nature.
51
Difference bet. Section 299(b)….likely to Section 300, Thirdly… sufficient in the

299(b) & Section ordinary course of nature to cause
300, Thirdly death
Probable Most Probable
(iii) Clause (c) of s. 299 and cl. (4) of s. 300

Both require knowledge of the probability of the causing death. It is not necessary for the
purpose of this case to dilate much on the distinction between these corresponding clauses.
It will be sufficient to say that cl. (4) of s. 300 would be applicable where the knowledge
of the offender as to the probability of death of a person or persons in general as
distinguished from a particular person or persons being caused from his imminently
dangerous act, approximates to a practical certainty. Such knowledge on the part of the
offender must be of the highest degree of probability, the act having been committed by
the offender without any excuse for incurring the risk of causing death or such injury as
aforesaid.
Bodily Injury (Singular) v. Bodily Injuries (Plural) –

The mere fact that the beating was designedly confined by the assailants to the legs and
arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary
course of nature to cause death, will not exclude the application of Clause 3rdly of section 300.
The expression “bodily injury” in Clause 3rdly includes also its plural, so that the clause would
cover a case where all the injuries intentionally, caused by the accused are cumulatively sufficient
to cause the death in the ordinary course of nature, even if none of those injuries individually
measures up to such sufficiency. The sufficiency spoken of in this clause is the high probability of
death in the ordinary course of nature, and if such sufficiency exists and death is caused and the
injury causing it is intentional, the case would fall under Clause 3rdly of section 300.
Virsa Singh Case (1958) –

Ruling of Virsa Singh Case was accepted. According to the rule laid down in Virsa Singh’s
case even if the intention of accused was limited to the infliction of a bodily injury sufficient to
cause death in the ordinary course of nature and did not extend to the intention of causing death,
the offence would be murder. Illustration (c) appended to s. 300 clearly brings out this point.
Murder –
All the conditions which are a pre-requisite for the applicability of this clause have been
established and the offence committed by the accused in the instant case was ‘murder’.
52
Emperor v. Mt. Dhirajia59 (June 4, 1940) Justice Braund

Facts – This is the case of Varanasi. There were dispute between Mt. Dhirajia and her
husband Jhagga. Husband was continuously beating. They had a six months old baby. The wife
desired to go to visit her parents while Jhagga was opposing. One day she woke up and started to
move with her baby along with railway track. Late that night Jhagga woke up and found his wife
and the baby missing. He went out in pursuit of them and when he reached a point close to the
railway line he saw her making her way along the path. When she heard him coming after her Mt.
Dhirajia turned round in a panic, ran a little distance with the baby girl in her arms and then either
jumped into an open well which was at some little distance from the path. Baby died and she
eventually survived. She was charged for committing murder of baby and attempt of suicide.
Decision –
Important point of this case –
(1) First step CH and Second step Murder - According to the scheme IPC, ‘murder’ is merely
a particular form of culpable homicide, and one has to look first to see in every murder
case whether there was culpable homicide at all. If culpable homicide is present then the
next thing to consider is whether it is of that type which under section 300 is designated
‘murder’ or whether it falls within that residue of cases which are covered by Section 304
(Punishment for CH) and are designated ‘culpable homicide not amounting to murder’.
(2) Intention v. Knowledge – In this case the Court accepted that Dhirajia had neither intention
to cause death nor intention to cause bodily injury. But she was sane. So she had
knowledge.
The Court said, “ ‘Intention’ appears to us to be one thing and ‘knowledge’ appears to us
to be a different thing.
In order to possess and to form an intention there must be a capacity for reason. And when
by some extraneous force the capacity for reason has been ousted, it seems to us that the
capacity to form an intention must have been unseated too.
But to our minds, knowledge stands upon a different footing. Some degree of knowledge
must be attributed to every sane person. Obviously, the degree of knowledge which any
particular person can be assumed to possess must vary. For instance, we cannot attribute
the same degree of knowledge to an uneducated as to an educated person. But we think
that to some extent knowledge must be attributed to everyone who is sane.”
(3) ..such act…. must be “without any excuse for incurring the risk of causing death....” –
She feared her husband and she had reason to fear her husband. She was endeavouring to
escape from him at dawn and in the panic into which she was thrown when she saw him
59
AIR 1940 All. H.C. 486
53
behind her she jumped into the well. She had excuse and that excuse was panic or fright.
For these reasons Mt. Dhirajia is not guilty of murder.
(4) Attempt to suicide – She was acquitted. She did not take conscious effort to take own life.
She did so in an effort to escape from her husband.
(5) Conviction for Killing of baby – She was convicted under section 304 because she had
done with knowledge under excusable circumstances.
(6) Punishment – She was sentenced for six months with rigorous imprisonment. She had
already been in prison for a period of eight months. So she was released at once.
Gyarsibai w/o Jagannath v. The State60 (23 Oct., 1952) Madhya Pradesh High
Court by Justice Dixit
Facts - Gyarsibai, her children, her husband Jagannath and her sister-in-law Kaisar Bai
used to reside together. There were constant quarrels between the appellant and her sister-in-law
and very often Jagannath used to slap the appellant for picking up a quarrel with her sister-in-law
Kaisar Bai. It is alleged that one such quarrel took place on the morning of 14.8.1951 when
Jagannath was away from his home. In this quarrel Kaisar Bai asked the appellant to leave the
house. Thereupon, the appellant left the house, taking her three children aged 7 years, 5 years and
1½ years and saying that on account of her sister-in-law she would jump into a well. Soon after,
the appellant went to a well in the village and threw herself into the well along with her three
children. A few hours after, some inhabitants of the village found Gyarasibai supporting herself
on an edge of the well and the three children dead in the well. The appellant admitted before the
Committing Magistrate as well as before the Sessions Judge that she jumped into the well together
with her children on account of her sister-in-law Kaisar Bai's harassment.
Decision – Gyarsibai was convicted for murder as well as for attempt of suicide. Appeal was
dismissed.
(1) She jumped into the well in consciousness. So she was liable for attempt to suicide.
(2) She was liable for causing murder of three children because she had jumped into the well
without any excuse. She did this only for satisfaction of self-ego. There was no any
imminent danger.
S.No. Emperor v. Mt. Dhirajia Gyarsibai v. The State

1 W/O Jagga W/O Jagannath
2 One baby Three Babies
3 Dispute was husband & wife Dispute was between sisters-in law
(Wife and sister of Jagannath)
4 4 June , 1940 23 Oct., 1952
5 Justice Braund Justice Dixit
6 Allahabad High Court MP High Court
60
M.P.Civil Judge, 1989.
54
7 Punishment under section 304 2nd Part She was convicted for murder (Reason
(Reason – She had jumped with excuse. – There was no excuse. She jumped
Excuse was that her husband was into the well for her ego satisfaction).
following him).
Exceptions of Section 300

There are five exceptions of section 300 namely;
(1) Grave and sudden Provocation

(2) Private Defence
(3) Acts of Public Servants
(4) Sudden Fight
(5) Consent
Exception 1 of Section 300 - Grave and sudden Provocation

K.M.Nanavati v. State of Maharashtra61 (Nov. 24, 1961)
Nanavati, a Naval Officer, was charged for committing murder of wife’s paramour. She
had three children. On the day of occurrence his wife Sylvia confessed to him of her illicit intimacy
with Prem Bhagwandas Ahuja, a businessmen of Bombay. He drove his wife and children to a
cinema where he dropped them promising to pick them up when the show ended at 6 p.m., and the
accused went to his ship, took from its stores a revolver and cartridges on a false pretext, loaded
the same, went to Ahuja’s flat, entered his bed room and shot him dead.
Essential Ingredient of Exception - Homicide is the killing of a human being by another. Under
this exception, culpable homicide is not murder if the following conditions are complied with:
(1) The deceased must have given provocation to the accused.

(2) The provocation must be grave.
(3) The provocation must be sudden.
(4) The offender, by reason of the said provocation, shall have been deprived of his power of
self-control.
(5) He should have killed the deceased during the continuance of the deprivation of the power
of self-control.
(6) The offender must have caused the death of the person who gave the provocation or that of
any other person by mistake or accident.
61
AIR 1962 SC 605
55
Test of Grave and Sudden Provocation –

There are following important points must be considered -
(1) Objective Test -The test of “grave and sudden” provocation is whether a reasonable man,
belonging to the same class of society as the accused, placed in the situation in which the
accused was placed would be so provoked as to lose his self-control.
(2) Words and gestures are sufficient - In India, words and gestures may also, under certain
circumstances, cause grave and sudden provocation to an accused so as to bring his act
within the first Exception to section 300 of the Indian Penal Code.
(3) The mental background created by the previous act of the victim may be taken into
consideration in ascertaining whether the subsequent act caused grave and sudden
provocation for committing the offence.
(4) Blow during influence of passion -The fatal blow should be clearly traced to the influence
of passion arising from that provocation and not after the passion had cooled down by lapse
of time, or otherwise giving room and scope for premeditation and calculation.
Decision - He was liable for murder under section 302. He could not get benefit of section 300
Exception 1. In this case fact was grave (keeping of sexual intercourse without consent of husband
is grave) but death caused by Nanavati was not sudden. Grave and sudden must be decided
according to fact and circumstances of the case.
DU LL.B. Question 4 (b)

Explain with the help of decided cases the legal fiction of ‘reasonable man’ for determining
the ‘grave’ and ‘sudden’ provocation and the concept of ‘cooling down period’ for reducing the
criminality of an accused for murder to culpable homicide not amounting to murder under
Exception I to section 300 IPC.
Answer –
Reasonable Man’s Test
In the case of K.M. Nanavati v. State of Maharashtra ‘reasonable man’ test was laid down to
decide “What is grave & Sudden Provocation?” Question is that on what basis a man can be said
a reasonable man.
In this case Supreme Court said, “No abstract standard of reasonableness can be laid
down. What a reasonable man will do in certain circumstances depends upon the customs,
manners, way of life, traditional values etc.; in short, the cultural, social and emotional
background of the society to which an accused belongs. In our vast country there are social
groups ranging from the lowest to the highest state of civilization. It is neither possible nor
desirable to lay down any standard with precision: it is for the court to decide in each case, having
regard to the relevant circumstances.
The Indian law, relevant to the present enquiry, may be stated thus :
56
(1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the
same class of society as the accused, placed in the situation in which the accused was
placed would be so provoked as to lose his self-control.
(2) In India, words and gestures may also, under certain circumstances, cause grave and
sudden provocation to an accused so as to bring his act within the first Exception to section
300 of the Indian Penal Code.
(4) The fatal blow should be clearly traced to the influence of passion arising from that
provocation and not after the passion had cooled down by lapse of time, or otherwise giving
room and scope for premeditation and calculation.
Cooling Time - It is not necessary in this case to ascertain whether a reasonable man placed in
the position of the accused would have lost his self- control momentarily or even temporarily when
his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence
that the accused regained his self-control and killed Ahuja deliberately. K.M. Nanavati case
accused got sufficient time to cool his mind. So he was convicted for murder. His matter did not
come under Exception1 of Section 300. In case of Babu Lal v. State (1960 All. H.C.) there was no
cooling time. If there is cooling time then Exception 1 cannot be invoked.
Ghapoo Yadav & Ors. v. State of M.P. (Feb. 2003)

(Difference between Exception (1) and Exception (4)
Exception 4 -For bringing in its operation it has to be established that the act was
committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel
without the offender having taken undue advantage and not having acted in a cruel or unusual
manner.
Facts of the Case - There was land dispute. On the request of Ramlal measurement was
done by Revenue Authority. After measurement of the land possession of berry tree was
transferred from Ramlal to Ghapoo Yadav. It was cut down by family member of Rampal. On this
point altercation and scuffle started. Without premeditation fight started. During this Gopal
seriously injured and felt down on earth. After this no injury was caused to Gopal. He was not
beaten cruelly. His dying declaration was recorded. He died.
Party
Ramlal (Victim) Ghapoo Yadav (Accused)
Gopal (S) ;
Lekhram (S) Janku (S) Kewal (S) Mangal (S) Sunder (N)
Deceased
57
Decision – He got the benefit of exception four and he was punished under section 304(1st Part).
Ratio of this Case – There are following important points which were discussed in this case –
(1) Difference between Exception 1 and Exception 4-
a. Principle is same. Both depend upon without premeditation. But, while in the case
of Exception 1 there is total deprivation of self-control, in case of Exception 4,
there is only that heat of passion which clouds men’s sober reason and urges them
to deeds which they would not otherwise do.
b. There is provocation in Exception 4 as in Exception 1; but the injury done is not
the direct consequence of that provocation. In fact Exception 4 deals with cases in
which notwithstanding that a blow may have been struck, or some provocation
given in the origin of the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties puts them in respect of guilt
upon equal footing.
(2) Meaning of Sudden Fight - A ‘sudden fight’ implies mutual provocation and blows on
each side. The homicide committed is then clearly not traceable to unilateral provocation,
nor in such cases could the whole blame be placed on one side.
(3) Mutual Provocation and aggravation - There is no previous deliberation or determination
to fight. A fight suddenly takes place, for which both parties are more or less to be blamed.
It may be that one of them starts it, but if the other had not aggravated it by his own conduct
it would not have taken the serious turn it did. There is then mutual provocation and
aggravation, and it is difficult to apportion the share of blame which attaches to each
fighter.
(4) No undue advantage or cruel manner - During this Gopal seriously injured and felt down
on earth. After this no injury was caused to Gopal. He was not beaten cruelly.
DU LL.B. Question no. 4 (a)

Bring out clearly the distinction between the requirements of the partial defence contained in
Exception I and IV to section 300 IPC with the help of decided cases and also the similarity in
some of the essentials, if any, of two exceptions.
Answer
Once it is proved that homicide is culpable homicide, then next question arises whether
that culpable homicide is murder or not. Once it is proved that culpable homicide is murder then
accused is entitled to argue that the murder comes under any of the five exceptions of section 300.
If murder comes under any of the exceptions of section 300 then murder converts into culpable
homicide. So culpable homicide has been divided into two parts namely;
58
(1) culpable homicide not amounting to murder – Sections 299 and five exceptions of section
300
(2) culpable homicide amounting to murder – Section 300.
Exception 1- Culpable homicide is not murder if the offender, whilst deprived of the power of
self-control by grave and sudden provocation, causes the death of the person who gave the
provocation or causes the death of any other person by mistake or accident.
Exception 4 -Culpable homicide is not murder if it is committed without premeditation in a

sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken
undue advantage or acted in a cruel or unusual manner.
Relation between Exception 1 and Exception 4

In the K.M. Nanavati Case Supreme Court discussed Exception 1 of Section 300. Ghapoo
Yadav & Ors. v. State of M.P. ( Feb. 2003) and Surain Singh v. The State of Punjab (DOJ-10
April 2017) are leading cases in which Supreme Court thoroughly discussed relations between
Exception 1 and Exception 4 of section 300 which are following -
Exception 1 -Grave and Sudden Exception 4 - Sudden Fighting
Provocation
Similarity Similarity
(1) Both are based on same principle (2) Provocation is involved in both the cases.
i.e. both depend upon without (3) In both the cases murder will convert into
premeditation. culpable homicide.
Differences Differences
1 Here one party is to be blamed. He hasA fight suddenly takes place, for which both
created grave and sudden parties are more or less to be blamed.
provocation. A “sudden fight” implies mutual provocation
and blows on each side. The homicide
committed is then clearly not traceable to
unilateral provocation, nor could in such cases
the whole blame be placed on one side.
2 It covers matters of grave and sudden This covers matters of sudden fight.
provocation.
3 There is total deprivation of self- There is only that heat of passion which
control clouds men’s sober reason and urges them to
deeds which they would not otherwise do.
4 Act is done in direct consequences of The injury done is not the direct consequence
that provocation. of that provocation..
59
Poonai Fattemah v. Emperor62(1869)

Exception -5 of Section 300 and Section 90 (Consent)
Exception -5- The points to be proved are:

(1) The death was caused with the consent of the deceased;
(2) The deceased was then above 18years of age;
(3) That such consent was free and voluntarily and not given through fear or misconception
of facts.
Facts- The accused, who professed to be a snakecharmer persuaded the deceased to allow
himself to be bitten by a poisonous snake, including him to believe that he had power to protect
him from harm.
It was held that consent was given under a misconception of facts arising out of the
misrepresentation made by the accused that he had power by charms to cure snake bites and the
accused knew that the consent was given in consequence of such misconception and therefore, the
accused not entitled to protection on the ground of consent of the deceased.
Decision – Accused was guilty of murder.
Dashrath Paswan v. State of Bihar63 (Nov. 14, 1957) (Patna High Court)
Dashrath Paswan was a student of class X. He had failed at the annual examination for 3
years in succession. The deceased, his wife, was aged about 19 years. It appears that she was a
literate woman. The appellant was very much upset at these failures. He told his wife that he had
decided to end his life.
His wife told him in reply that he should first kill her and then kill himself. This talk took
place at about 8 a.m. on 13-6-55. That morning the parents of the appellant had gone out early in
the morning to work in the fields and there was nobody else in the house besides the appellant and
his wife. In accordance with the pact, about an hour later, the wife spread a mat on the floor in one
of the rooms in the house and lay down quietly. The appellant at first struck her with a bhala
causing a minor injury on her chest. Then he took up a sharp-cutting hasuli and gave her three
violent blows on the neck killing her on the spot.
He then ran out of the house with his bloodstained clothes in order to end his own life. He was
arrested.
Reason -It is undisputed that the deceased was above the age of 18 years and that she had suffered
death with her own free consent.
Decision - He was punished under section 304, Part –I.
62
UPHESC Exam, 2014.
63
AIR 1958 Pat. 190.
60
Section 301 (Transfer of Malice/Transmigration of motive)

The English doctrine of Transfer of Malice/Transmigration of motive has been embodied
in section 301.64 Example –A intends to kill B but kills C whose death he neither intends nor knows
to be likely to cause, the intention to kill C is by law attributed to him. A has committed an offence
under section 301.65
Section 302
Punishment for murder- Whoever commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to fine.
There are two types of punishment for death namely;
(1) Death Sentence/ Capital punishment and fine, or

(2) Imprisonment for life, and fine.
If a Court of Session awards rigorous imprisonment for ten years to a person whose age
was 70 years and he was also disabled, such punishment is unlawful because punishment
for murder can be either Capital punishment or imprisonment for life. There is no provision
for awarding punishment for ten years.66
Bachan Singh v. State of Punjab (9 May, 1980) –

In this case Supreme Court said that death sentence can be imposed only in the ‘rarest of
the rare’ cases.67 Capital punishment from Indian Society cannot be abolished. Life imprisonment
is rule while death sentence is an exception.68
Section 303
Punishment for murder by life-convict -Whoever, being under sentence of imprisonment
for life, commits murder, shall be punished with death.
This section provides mandatory death sentence for murder committed by convict serving a
sentence of life imprisonment.
Since 1860- 1983 – Section 303 was valid during 1860- 1983.
After 1983 – Mithu Singh v. State of Punjab (April 7, 1983) – In this case Constitutional bench
comprises by five judges struck down section 303 on the basis of violation of article 14 and 21 of
the Constitution of India.69
Section 304
Punishment for culpable homicide not amounting to murder –
64
Uttarakhand (J) (Pre) 2011.
65
U.P.A.P.O 2002. M.P. Civil Judge, 2010.
66
M.P.Civil Judge, 1986.
67
U.P.A.P.O 2005 & 2007. M.P.APO 2009.
68
Uttarakhand (J) (Pre) 2011.
69
Uttarakhand PCS(J), 2002, 2005, 2009, UPHJS 2009, MPAPO 2008, UPAPO 2002, UPPCS J 2006
61
Part I (Intention) -Whoever commits culpable homicide not amounting to murder shall be
punished with imprisonment for life, or imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done
with the intention of causing death, or of causing such bodily injury as is likely to cause death,
or
Part II (Knowledge) -with imprisonment of either description for a term which may extend
to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to
cause death, but without any intention to cause death, or to cause such bodily injury as is likely to
cause death.
Division of Culpable Homicide

Culpable homicide may be divided into two parts –
(1) Culpable homicide not amounting to murder – Section 299, Exceptions of section 300
and punishment therefore section 304.
(2) Culpable homicide amounting to murder – Section 300 and punishment therefore 302.
1st Degree (Highest 2nd Degree (Middle Degree) 3rd Degree (Lowest Degree)
Degree) Culpable Homicide (Intention) Culpable Homicide (Knowledge)
Murder
Sec. 299 (a) & (b)and Sec. 299 (c) and
Exceptions of 300 (If it is related to Exceptions of 300 (If it is related
Intention) to knowledge)
Section 302 Section 304 ( Part 1) Section 304 (Part 2)
Death or Life Life Imprisonment or Ten years Ten years of either description or
Imprisonment and imprisonment and fine fine or both. No Life
fine Imprisonment.
Example - If the offender has the intention to cause bodily injury accompanied with the knowledge
that such injury is likely to cause the death of the person injured as defined in s. 300, cl.(2), then
the offence will come under section 302 and not section 304, Part I, unless it falls under any of the
five exceptions u/s 300 of IPC.70
M.B.Singh v. Manipur Administration,71 it was held that the appellant was guilty of the offence
under Part I to section 304 of IPC, when he exceeded his right of private defence by brutally killing
the deceased who was an old person.
70
V Suresh & D Nagasila, PSA Pillai’s Criminal Law 648 ( LexixNexis, New Delhi, Edn., 9th, Fourth
Reprint, 2007).
71
AIR 1967 Manipur 41
62
Section 304A
Section 304 A. Causing death by negligence-Whoever causes the death of any person by doing
any rash or negligent act not amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or with
both.
Section 304A was inserted in 1870 to cover those cases which were caused by either rash or
negligent and not covered by section 299 and 300. Law Commission of India in its 42nd Report
(1971) recommended increasing punishment up to five years. Negligent or rashness driving is main
concern.
To bring homicide under section 304A following conditions must be fulfilled-
(1) There must be homicide

(2) The accused must cause such death (Cause-effect Relationship)
(3) Such death must be caused by rash or negligent act
(4) Such death must not fall under sections 299 and 300.
Rashness -
Cherubin Gregory v. State of Bihar,72 (July 31, 1963)

Facts - Cherubin Gregory was charged under section 304A of Indian Penal Code for
causing the death of Mst. Madilen. The deceased was residing near the house of the accused. The
wall of the latrine of the house of the deceased had fallen down about a week prior to the day of
occurrence and so the deceased along with others started using the latrine of the accused. The
accused protested against their coming there. The oral warnings however, proved ineffective
and so he fixed up a naked copper wire across the passage leading up to his latrine and that wire
carried current from the electrical wiring of his home to which it was connected. There was no
warning that the wire was live. The deceased managed to pass into the latrine without contacting
the wire but that as she came out her hand happened to touch it and she got a shock as a result of
which she died soon after.
Decision –
(1) Right of Private Defence – Although she was trespasser. But mere trespass has not been
mentioned under section 103 in which death of person may be caused.
(2) Culpable Homicide- Accused had no intention to cause death. So he was not liable for
culpable homicide.
(3) Duty towards trespasser -It is, no doubt true that the trespasser enters the property at his
own risk and the occupier owes no duty to take any reasonable care for his protection, but
at the same time the occupier is not entitled to do willfully acts such as set a trap or set a
72
AIR 1964SC 205
63
naked live wire with the deliberate intention of causing harm to trespassers or in reckless
disregard of the presence of the trespassers.
(4) Rashness - The voltage of the current passing through the naked wire being high enough
to be lethal, there could be no dispute that charging it with current of that voltage was a
‘rash act’ done in reckless disregard of the serious consequences to people coming in
contact with it.
Cherubin Gregory was liable under section 304A. Appeal was dismissed.
S.N.Hussain v. State of Andhra Pradesh73 (DOJ Jan. 5, 1972)

S.N.Hussain was bus driver. Accident occurred at the time of crossing railway gate. Gate
was open and he was driving in slow speed and due to cold freeze there was less visibility. Goods
train dashed against bus. Some passenger died and others severally injured. He was charged under
section 304A.
Meaning of Rashness- Rashness consists in hazarding a dangerous or wanton act with the
knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running
the risk of doing such an act with recklessness or indifference as to the consequences.
Meaning of Criminal negligence -Criminal negligence on the other hand, is the gross and culpable
neglect or failure to exercise that reasonable and proper care and precaution to guard against injury
either to the public generally or to an individual in particular, which, having regard to all the
circumstances out of which the charge has arisen, it was the imperative duty of the accused person
to have adopted.
Decision – He was acquitted.
Important Facts of this case –
(1) The bus was not driven and could not have been driven fast.
(2) That the gate of the level crossing which is a manned gate, was open, indicating thereby
that no train was expected to come at the time and inviting vehicles to pass.
(3) The railway track was at a higher level and the road was lined by babbool trees and,
therefore, a passing train coming from a distance was not visible from the bus.
(4) The bus was making a huge noise because it was not fitted with the silencer.
(5) As a cold breeze was blowing some of the window screens of the bus were lowered for the
comfort of the passengers in the bus.
(6) There is no evidence that the train while approaching the level
crossing gave any whistle or whistles. In any case there is no evidence that any
whistle was heard by any of the occupants of the bus.
73
AIR 1972 SC 685
64
CHAPTER IV
KIDNAPPING & ABDUCTION
Some Important Points
(1) There are two types of kidnapping (Section359).74
(2) These are
(I) Kidnapping from India,
(II) Kidnapping from Lawful Guardianship.
(3) Kidnapping comes under category of strict liability. Intention of accused is immaterial.
Intention of accused is not essential ingredient of kidnapping.75
(4) For kidnapping – Under 16 years of age if a male and under 18 years of age if a female.76
(5) S. Varadrajan v. State of Madras is related to section 363 (Punishment for Kidnapping).77
(6) Importation of girl from foreign country for illicit intercourse, Section 366B– What should
be age? – Under 21 Years.78
Introduction – ‘Kidnapping’ is combination of two words namely; kid (child) and napping which
is American cant word means stealing. Kidnapping is an offence against lawful guardianship.79
There are two types of kidnapping (Section359).80These are (I) Kidnapping from India (Section
360), and (II) Kidnapping from Lawful Guardianship (Section 361).
Section 360- Kidnapping from India.—Whoever conveys any person (Section11) beyond
the limits of India (Sec. 18) without the consent (Section 90) of that person, or of some person
legally authorised to consent on behalf of that person, is said to kidnap that person from India.
Section 361 - Kidnapping from lawful guardianship –

(1) Whoever takes or entices any (TEA)
(2) minor under sixteen years of age if a male, or under eighteen years of age if a female, or
any person of unsound mind, (Minor or Person of Unsound mind)
(3) out of the keeping of the lawful guardian of such minor or person of unsound mind,
74
MP Civil Judge, 2002
75
UPAPO 2002
76
77
Uttarakhand Civil Judge, 2009.
78
Uttarakhand Civil Judge, 2011.
79
Law Commission of India, 42nd Report, Para No.16.93 (June 1971) available at:
http://lawcommissionofindia.nic.in/1-50/Report42.pdf (Visited on October 3, 2018).
80
65
(4) without the consent of such guardian, is said to kidnap such minor or person from lawful
guardianship.
Explanation -The words “lawful guardian” in this section include any person lawfully entrusted
with the care or custody (CC) of such minor or other person.
Exception –
Illegitimate Child - This section does not extend to the act of any person who in good faith (52)
believes himself to be the father of an illegitimate child, or who in good faith believes himself to
be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful
purpose (I U.P.).
Law Commission of India -- Law Commission of India in its 42nd Report suggested to make equal
age of male and female and change in Explanation .It suggested under 18 years of age for male
and female.
S. No. Kidnapping from India Kidnapping from Lawful Guardianship
1 Conveys Taking or enticing
2 Any Person Minor or Person of Unsound mind
3 Beyond the limits of India Out of Lawful guardianship
4 Without consent Consent is immaterial
5 Out of keeping of lawful Out of keeping of lawful guardianship.
guardianship has not been Kidnapping of orphan is not possible. If he is in
mentioned here. Kidnapping of orphan home then kidnapping is possible.
orphan from India is possible.
Abduction
Section 362 - Abduction–
(1) -Whoever by force compels, or by any deceitful means induces, (FCDI)
(2) any person
(3) to go from any place, is said to abduct that person.
Vishwanath v. State of U.P.81

In this case following important points were laid down -
(1) (1)For section 100 simple abduction is sufficient. No need of further object.
(2) Abduction per se is not an offence. Abduction pure and simple is not an offence under IPC.
Only abduction with certain intent is punishable as an offence. Abduction is an offence
only if it is done with intent to
81
AIR 1960 SC 67
66
a. Murder (S. 364)

b. Secretly and wrongfully confine person (S. 365)
c. Induce women to compel her marriage (S. 366)
d. Grievous hurt, slavery etc. (S. 367)
e. Steal from a person under 10 Years (S. 369).
Abduction is not offence. It is continuing offence.
Difference between Kidnapping and Abduction
S.N. Kidnapping Abduction

1 Kidnapping is substantive offence. It is an Abduction is not a substantive offence.
offence under section 363. It is an offence only when done with
some other intent as given in sections
363A, 364,364A to 369.
2 Kidnapping is not continuing offence. It is Abduction is a continuing offence and
complete as soon as the minor or person of continues so long as the abducted person
unsound mind is removed from lawful is removed from one place to another
guardianship. person.
3 Minor (M-16 Years, F-18Years) or Person Any person
of unsound mind
4 TEA FCDI
5 Without Consent of guardian Without Consent
6 Consent of victim is immaterial. He or Free and voluntarily consent of the
she is not capable to give consent. person abducted condones abduction.
7 Intention of the kidnapper is immaterial Intention of the abductor is an

for the offence. important factor in determining guilt
of the accused.
8 Out of keeping of Lawful Guardianship. Abduction of orphan is possible.
Kidnapping of orphan is not possible.
67
KIDNAPPING (Kid - Child+Napping – American word -

Thief)82
Sec.359 Kind of Kidnapping
360 Kidnapping from India
361 Kidnapping from lawful guardianship
363 Punishment for kidnapping
KIDNAPPING
TEA - (T-Take, E-entices, A-any minor)
9 Sep. 1964 S.C. S. Varadrajan v. State of Madras.
No offence under section S. Varadrajan was acquitted.
363 “There is a distinction between “taking” and allowing a minor
to accompany a person.”
In this case, there was no taking.
Savitri had fallen in love of neighboring person S. Varadrajan.
27 October, 1972 State of Haryana v. Raja Ram
Keeping =CPC….M
CPC=C—charge, P- protection, C- control
..M- Maintenance.
Force or fraud is not necessary. Persuasion is sufficient.
2 May 1973 S.C. Mohini’s Thakorilal D Vadgama v. State of Gujarat
birthday, the appellant Meaning of taking and enticing.
presented her with a parker The appellant, an industrialist, had a factory at Bunder Road for
pen. T.D. was liable for manufacturing oil engines and adjoining the factory was his
kidnapping. (Parker Pen residential bungalow. During the bombardment of Jainnagar by
Case) Pakistan in 1965, Mohini's parents came to reside temporarily at
Dhrol near Jamnagar. The appellant came to be introduced to that
family and on December 18, 1965, which was Mohini's birth-day,
the appellant presented her a parker pen.
S. Varadrajan v. State of Madras (9 Sep. 1964 S.C.)

Facts - Savitri had fallen in love of neighboring person S. Varadrajan.
There are five persons are involved in this case namely;
(1) S. Varadrajan – Lover and Later on Husband. (2) Savitri – Beloved and Later on Wife (3) Rama
– Sister of Savitri (4) S.Natarajan – Father of Savitri (5) K. Natarajan – Relative of S.Natarajan
Three important days –
82
Law Commission of India, 42nd Report,Para No.16.91 available at: http://lawcommissionofindia.nic.in/1-
50/Report42.pdf (Visited on October 3, 2018).
68
(1) DOB of Savitri – 13/11/1942

(2) Narrataion about love affairs by Rama to Her father and sending Savitri at home of relative
-30/09/1960
(3) Savaitri leaved home of relative and telephoned her lover. Both got marriage – 01/10/1960
Elements of Kidnapping
There are four conditions must be proved to make any person liable for kidnapping –
(1) TEA
(2) M-16Y, F -18Years/ Person of Unsound Mind (Section 7 r/w Section 84)
(3) Out of keeping of lawful guardianship (S. Natarajan (Father) still had lawful guardianship)
(4) Without consent of such guardian.
Decision- In this case conditions numbers (2), (3) & (4) were fulfilled but first condition was
missing. There was neither taking nor enticing.
There was no taking, only allowing – In this case Savitri was at the verge of attaining the age of
maturity. She was well educated. She was student of second year of B.Sc. She was living in urban
area. She was capable to know what is right and what is wrong. She called lover and she chose
meeting point. There was no pre-planning. S. Varadarajan had neither administered threat nor
blandishment. So he had done only acted to fulfill her desire.
No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the
intention of the girl. That part falls short of an inducement to the minor to slip out of the keeping
of her lawful guardian and is, therefore, not tantamount to “taking”.
Difference between taking and allowing –

The two expressions are not synonymous. There are differences between both.
In this case the accused have not taken her away from the keeping of her lawful guardian.
Something more has to be shown in a case of this kind and that is some kind of inducement held
out by the accused person or an active participation by him in the formation of the intention of
the minor to leave the house of the guardian.
Burden of prove - It would, however, be sufficient if the prosecution establishes that though
immediately prior to the minor leaving the father's protection no active part was played by the
accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if
evidence to establish one of those things is lacking it would not be legitimate to infer that the
accused is guilty of taking the minor out of the keeping of the lawful guardian merely because
after she has actually left her guardian's house or a house where her guardian had kept her, joined
the accused and the accused helped her in her design not to return to her guardian's house by taking
her along with him from place to place.
It is not duty to return- She willingly accompanied him and the law did not cast upon him the duty
of taking her back to her father's house or even of telling her not to accompany him.
69
Reason of Decision –
(1) There is a distinction between “taking” and allowing a minor to accompany a person.
(2) In this case, there was no taking.
Decision - S. Varadrajan was acquitted. No offence under section 363.
State of Haryana v. Raja Ram (1972)
27 October, 1972 State of Haryana v. Raja Ram

Keeping =CPC….M
CPC=C—charge, P- protection, C- control
..M- Maintenance.
Force or fraud is not necessary. Persuasion is sufficient.
Facts -
(1) Santosh Rani-14Years D/O Narain Das, District – Karnal
(2) Jai Narain (32Years) visited the house of Narain Das for treatment of his sons and he had
fallen in love of Santosh Rani. Love started to culminate slowly and slowly. Narain Das
opposed and prohibited entry of Jai Narain in his house.
(3) Raja Ram (Messenger of Jai Narain) - Raja ram was giving message of Jai Narain. In
persuasion of Raja Ram, Santsh Rani leaved her house on the night between April 4 and 5
and went along with raja Ram to meet Jai Narain. Finally she met with Jai Narain and both
enjoyed their life.
Arrest of Accused - On April 13, 1968 at about 7 a.m. Ram Shah, S.H.O. along with three other
persons and Narain Dass, saw Jai Narain and Santosh Rani coming from the side of Dera Waswa
Ram. As they reached near Dera Ganga Singh, Narain Dass identified his daughter and Jai Narain,
accused, was taken into custody. The prosecutrix had a jhola which contained one suit and a shawl
and two chunis which were taken into possession. The salwar of the, prosecutrix appeared to have
on it stains of semen.
Decision of High Court - Both the convicts appealed to the High Court of Punjab & Haryana. A
learned single Judge of that Court dismissed the appeal of Jai Narain maintaining his conviction
and sentence but acquitted the respondent Raja Ram of the charge under Section 366 IPC. It is
against the order of the respondent’s acquittals that the State of Haryana has appealed to Supreme
Court.
Supreme Court –
Supreme Court laid down following important points-
70
(1) Object of Section 361- The object of this section seems as much to protect the minor
children from being seduced for improper purposes as to protect the rights and privileges
of guardians having the lawful charge or custody of their minor wards.
(2) Taking or enticing - The gravamen of this offence lies in the taking or enticing of a minor
under the ages specified in this section, out of the keeping of the lawful guardian without
the consent of such guardian. The words “takes or entices any minor out of the keeping of
the lawful, guardian of such minor” in section 361, are significant.
(3) Meaning of Keeping (CPC-M)-The use of the word “keeping” in the context connotes the
idea of charge, protection, control and maintenance, further the guardian’s charge and
control-appears to be compatible with the independence of action and movement in the
minor, the guardian’s protection and control of the minor being available, whenever
necessity arises.
(4) Consent of Minor/Guardian -On plain reading of this section the consent of the minor
who is taken or enticed is wholly immaterial. It is only the guardian’s consent which takes
the case out of its purview.
(5) Persuasion is sufficient - Nor is it necessary that the taking or enticing must be shown to
have been by means of force, or fraud. Persuasion by the accused person which creates
willingness on the part of the minor to be taken out of the keeping of the lawful guardian
would be sufficient to attract the section.
Decision -The result is that the appeal is allowed and setting aside the order of the High Court
acquitting Raja Ram. Raja Ram should surrender to his bail bond to serve out the sentence.
Thakorilal D Vadgama v. State of Gujarat (Parker Pen Case) (1973)
2 May 1973 S.C. Thakorilal D Vadgama v. State of Gujarat

Mohini's birthday, the Meaning of taking and enticing.
appellant presented her Thakorilal D Vadgama, an industrialist, had a factory at Bunder
with a parker pen. T.D. was Road for manufacturing oil engines and adjoining the factory was
liable for kidnapping. his residential bungalow. During the bombardment of Jainnagar
(Parker Pen Case). by Pakistan in 1965, Mohini's parents came to reside temporarily
at Dhrol near Jamnagar. The appellant came to be introduced to
that family and on December 18, 1965, which was Mohini's birth-
day, the appellant presented her a parker pen. He was actually
found by the side of Mohini in Mohini's bed by Mohini's mother
at Mount Abu. She objected. But due to allurement of T. D.
Vadagama, Mohini leaved parental home and reached at the
garage of accused according to pre plan. They made sexual
relation. She leaved the garage at the instance of appellant.
71
Meaning of Taking - The word ‘takes’ in s. 361 I.P.C. does not necessarily connote taking by
force and it is not confined only to use of force, actual or constructive. This word merely
means “to cause to go”, “to escort” or “to get into possession”.
Meaning of Entice (IIIA)- The word “entice” means to involve the idea of inducement or
allurement (IIIA)by giving rise to hope or desire (HD)in the other. If the minor leaves her
parental home, influenced by any promise, offer or inducement emanating from the guilty party
then the latter will be guilty of an offence as defined in section 361I.P.C.
Varadarajan and Rajaram – These case were cited.
Decision- He was convicted.
OFFENCES AGAINST WOMAN
Section 354 Assault of criminal force to woman with intent to outrage Original
her modesty
Section 354A Sexual harassment and punishment for sexual harassment. Ins. 2013
Section 354B Assault or use of criminal force to woman with intent to Ins. 2013
disrobe
Section 354C Voyeurism. Ins. 2013
Section 354D Stalking Ins. 2013
Section 354 - Assault or criminal force to woman with intent to outrage her
modesty
Whoever assaults (Section 351) or uses criminal force (Section 350) to any woman
(Section 10), intending (Desire & Foresight of consequences) to outrage or knowing (Desire &
Foresight of consequences) it to be likely that he will there by outrage her modesty, shall be
punished with imprisonment of either description for a term which shall not be less than one year
but which may extend to five years, and shall also be liable to fine.
72
Leading Cases
State of Punjab v. 1967 S.C. A female child of 7-1/2 months was held to be a woman
Major Singh and as accused had caused injury to be private parts he
was held guilty under this section.
Justice Bachawat observed, “The essence of a woman’s
modesty is her sex and from her very birth she possesses
the modesty which is the attribute of her sex”. Section
10 of the Indian Penal Code explains that ‘woman’
denotes a female human being of any age. The
expression ‘woman’ is used in s. 354 in conformity with
section 7.
Baldeo Prasad 1984 Orissa He entered into house and squeezed her breasts. He
Singh v. State HC was punished under section 354.
Rupan Deol Bajaj v. 1996 S.C. Rupan was an IAS. KPS Gill was DGP of Punjab. KPS
KPS Gill & 2005 Gill slapped Mrs Rupan on her posterior. This was done
& KPS Gill v. State (Last in the full presence of the other ladies and guests in party.
(Both went to judgment - Offences against women do not come under section 95.
appeal) 2005) KPS was punished under section 354 of IPC.
De minimis non Law does not Section 95. Rupan Deol Bajaj v. KPS Gill, 1996 S.C.
curat lex concern itself Court held that section 95 is not applied in case of
with trifles. offences against women. In this case the Court did not
applied section 95.
(1) Rupan Deol Bajaj v. KPS Gill &

(2) KPS Gill v. State
(Both went to appeal)(Decision 2005)
Anatomy- This part of body is called butt.
This case is known as ‘Butt Slapping Case’.
(1) Rupan Deol Bajaj v. KPS Gill – Rupan Deol Bajaj (Victim) approached Supreme Court
for enhancement of punishment.
(1) KPS Gill v. State - KPS Gill (accused) was found guilty under section 354 and section 509.
He approached Supreme Court against his conviction.
73
Facts
On July 29, 1988, Mrs. Rupan Deol Bajaj, an Officer of the Indian Administrative Service
(I.A.S) belonging to the Punjab Cadre and then working as the Special Secretary, Finance, lodged
a complaint alleging commission of offences under Sections 341, 342, 352, 354 & 509 of the
Indian Penal Code by Mr. K.P.S. Gill, the Director General of Police, Punjab on July 18, 1988 at
a dinner party. KPS Gill slapped Mrs Rupan on her posterior. This was done in the full presence
of the other ladies and guests in party.
He was convicted under section 354.
Ratio of Judgment –
(1) Section 95 - Court held that section 95 is not applied in case of offences against women.
(2) Meaning of Modesty - Since the word ‘modesty’ has not been defined in IPC we may
profitably look into its dictionary meaning.
a. Shorter Oxford English Dictionary (Third Edition) - Modesty is the quality of
being modest and in relation to woman means “womanly propriety of behaviour;
scrupulous chastity of thought, speech and conduct”. The word `modest' in relation
to woman is defined in the dictionary as “decorous in manner and conduct; not
forward or lewd; shamefast”.
b. Webster’s Third New International Dictionary - Modesty as ‘freedom from
coarseness, indelicacy or indecency; a regard for propriety in dress, speech or
conduct’.
c. Oxford English Dictionary (1933 Ed) - The meaning of the word ‘modesty’ is
given as ‘womanly propriety of behaviour; scrupulous chastity of thought, speech
and conduct (in man or woman); reserve or sense of shame proceeding from
instinctive aversion to impure or coarse suggestions’.
(3) State of Punjab v. Major Singh - Justice Bachawat observed, “The essence of a woman’s
modesty is her sex and from her very birth she possesses the modesty which is the attribute
of her sex.
(4) Faith in Judicial System –The incedent happened in 1988. Despite the accused holding a
high positition in the State Police, the various courts found him guilty of the offence
punishable under section 354 and section 509 and that by itself is a setting a model for
others and would enhance the faith in judicial system.
Punishment – The accused had completed probation. There was no occasion to enhance
punishment.
74
Sexual Harassment (PDS and M.Sc.) Section 354A

Sexual Harassment has been provided under section 354A which was inserted by Criminal Law
(Amendment) Act, 2013. According to section 354A (1) A man committing any of the following
acts-
(i) P -physical contact and advances involving unwelcome and explicit sexual
overtures; or
(ii) D- a demand or request for sexual favours; or
(iii)S- showing pornography against the will of a woman; or
(iv) M.Sc. making sexually coloured remarks, shall be guilty of the offence of sexual
harassment.
Punishment for sexual harassment - Punishment for sexual harassment may be divided into
two parts –
 Punishment for PDS (i)(ii) and (iii) (Three Years) -Any man who commits the offence
specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with
rigorous imprisonment for a term which may extend to three years, or with fine, or with
both.
 Punishment for M.Sc. (iv) (One Year) -Any man who commits the offence specified in
clause (iv) of sub-section (1) shall be punished with imprisonment of either description for
a term which may extend to one year, or with fine, or with both.
Section 354B- Assault or use of criminal force to woman with intent to disrobe.
Any man who assaults or uses criminal force to any woman or abets such act with the
intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either
description for a term which shall not be less than three years but which may extend to seven years,
and shall also be liable to fine.
DU LL.B. 2014 Question 5(b)

Write short notes on any two of the following:
(ii) Voyeurism
(iii) Stalking
(ii) Voyeurism – Section 354C

Voyeurism has been provided under section 354C which was inserted by Criminal Law
(Amendment) Act, 2013.
Any man who watches, or captures the image of a woman engaging in a private act in
circumstances where she would usually have the expectation of not being observed either by the
perpetrator or by any other person at the behest of the perpetrator or disseminates such image
shall be punished on first conviction with imprisonment of either description for a term which
shall not be less than one year, but which may extend to three years, and shall also be liable to fine,
75
and be punished on a second or subsequent conviction, with imprisonment of either description

for a term which shall not be less than three years, but which may extend to seven years, and shall
also be liable to fine.
 Explanation1- For the purpose of this section, “private act” includes an act of watching
carried out in a place which, in the circumstances, would reasonably be expected to provide
privacy and where the victim’s genitals, posterior or breasts are exposed or covered only
in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is
not of a kind ordinarily done in public.
 Explanation 2 - Where the victim consents to the capture of the images or any act, but not
to their dissemination to third persons and where such image or act is disseminated, such
dissemination shall be considered an offence under this section.
There are following ingredient of voyeurism –
(1) Expectation of woman- There must be expectation of woman that no one must see her. If
she is taking kiss with her boyfriend in public auto rickshaw and another passenger is
seeing rather than grazing it will not amount voyeurism.
(2) “Private Act” - The woman must engage in ‘private act’. According to explanation 2
“private act” includes an act of watching carried out in a place which, in the circumstances,
would reasonably be expected to provide privacy and where the victim’s genitals,
posterior or breasts are exposed or covered only in underwear; or the victim is using a
lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.
(3) Watching, capturing or disseminating – When she is engaging in private act someone is
either watching or capturing the images of woman or he disseminates such images.
According to explanation 2 where the victim consents to the capture of the images or any
act, but not to their dissemination to third persons and where such image or act is
disseminated, such dissemination shall be considered an offence under this section.
(4) Perpetrator or on behalf of perpetrator – Such Watching, capturing or dissemination may
be occurred either by perpetrator or on behalf of perpetrator.
(5) Conviction for first time (1-3Yrs) – He shall be punished on first conviction with
imprisonment of either description for a term which shall not be less than one year, but
which may extend to three years, and shall also be liable to fine.
(6) Second or subsequent conviction (3-7Yrs), with imprisonment of either description for a
term which shall not be less than three years, but which may extend to seven years, and
shall also be liable to fine.
(iii) Stalking (Physical or Electronic) –Section 354D

Stalking has been provided under section 354D which was inserted by Criminal Law
Kinds of Stalking -There are two types of stalking namely; (1) Physical and (2) Electronic
76
(1) Physical Stalking - Any man who follows a woman and contacts, or attempts to contact
such woman to foster personal interaction repeatedly despite a clear indication of
disinterest by such woman or
(2) Electronic Stalking- Any man who monitors the use by a woman of the internet, email or
any other form of electronic communication, commits the offence of stalking.
Three categories of conduct will not amount stalking –
(i) Prevention of Crime - It was pursued for the purpose of preventing or detecting
crime and the man accused of stalking had been entrusted with the
responsibility of prevention and detection of crime by the State; or
(ii) Compliance of Law -It was pursued under any law or to comply with any
condition or requirement imposed by any person under any law; or
(iii) Reasonable conduct- in the particular circumstances such conduct was
reasonable and justified.
Burden of these three types of conduct will lies on that person who wants to take benefit.
Punishment for Stalking - Punishment for stalking may be divided into two categories namely (i)
First Conviction and (ii) Subsequent Conviction
(i) First Conviction - Whoever commits the offence of stalking shall be punished on
first conviction with imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine;
(ii) Subsequent Conviction – He shall be punished on a second or subsequent
conviction, with imprisonment of either description for a term which may extend
to five years, and shall also be liable to fine.
77
CHAPTER V
RAPE & UNNATURAL OFFENCE83
Definition of Rape
‘Rape’ word has been defined under section 375. The word rape is derived from the Latin
word ‘rapio’ which means to seize. Thus rape literally means a forcible seizure and that is the
essentials characteristic feature of the offence.84 Justice J.S.Verma Committee suggested for
replacing definition of section 375.85 The Law Commission of India vide its 172nd Report dated
13th March, 2000 after considering all aspects had recommended that sexual offences should be
made gender neutral. Bill was introduced in Rajya Sabha on July 12, 2019 to make rape law as
neutral law.86 At present time rape law is gender based.
Rape may be committed by four methods i.e. PIMA (P- Penetrate, I- Insert, M-Manipulate,
A-Applies) in seven circumstances. Only man (section 10) can commit rape of woman (section
10). One woman cannot commit rape of either man or woman either by inserting sex toy or any
part of her body. One man cannot commit rape of another man. Definition of rape is gender based
rather than neutral.
Method to commit rape – There are four methods to constitute the rape which are following
–
1. P- Penetrates (Penis)–There must be penetration into four parts
a. Anus
b. Vagina
c. Urethra and
d. Mouth.
2. I-Inserts (Any object or part of body other than penis) –
a. Anus
b. Vagina
c. Urethra
3. M-Manipulates (Any part of the body of woman)-
a. Anus
b. Vagina
c. Urethra or
d. Any part of the body of woman.
83
This topic must be read along with Annexures V&VA)
84
V Suresh and D Nagasaila ‘PSA Pillai’sCriminal Law’ 719 (Lexis Nexis, New Delhi, 9th Edn. 4th Reprint,
2007).
85
Justice J.S. Verma Committee Report, Page no.439, available at:
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20r
eport.pdf (Visited on October 12, 2018).
86
http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/crimnal-E-12719.pdf
78
4. A-Applies – (Mouth) –
a. Anus
b. Vagina
c. Urethra
PIMA Common in all……. makes her to do so with him or any other
person;
(1)P-Penetrate87 Penis (4) (i) Anus (ii) Vagina (iii) Urethra and (iv)
Mouth.
(2) I- Insert88 Any object or part of body (i) Anus (ii) Vagina (iii) Urethra. In crowd area
other than penis if anyone inserts his finger or pen into anus of
woman, it will be rape. You cannot take
(3) defence that it was not directly inserted.
Exception 1 Medical Treatment A medical procedure or intervention shall not
constitute rape.
(3) Any part of the body of (i) Anus (ii) Vagina (iii) Urethra or (iv) Any
M-Manipulate89 woman…to cause part of the body of woman – For example
penetration (4) penetration into navel or penetration between
two boobs.
(4) A-Applies90 Mouth (3) (i) Anus (ii) Vagina (iii) Urethra
Explanation 1 Extension of Meaning of Vagina includes labia majora.
vagina
Use of mouth in Rape
Mouth of victim Mouth of accused
87
Section 375(a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or
makes her to do so with him or any other person;
88
Section 375 (b) inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any other person;
89
Section 375 (c) manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any part of body of such woman or makes her to do so with him or any other person;
90
Section 375 (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with
him or any other person,
79
Mouth word has been used in two times. Insertion of anything into mouth of woman will
not constitute rape. Only penetration of penis into mouth of woman without her free consent will
constitute rape. Here penis means penis of man rather than penis of animal.
Mouth of (1)Victim &(2) Accused Mouth word has been used in two times
(1)Victim-375(a) Accused-375(d)
Penetration of penis into mouth of woman. A man applies his mouth to vagina, urethra or
Penetration of penis into mouth of man will anus of woman or makes her to do so with him
not constitute rape. It may come under the or with another person.
POCSO, 2012 or if without consent then under If a man or woman applies his or her mouth to
section 377. anus of man it will not constitute rape.
..…makes her to do so with him or any other person

Section 375 (a), (b), (c) and (d)
..…makes her to do so with him or any other person is common in all categories of section 375(a),
(b), (c) and (d). These are great significant for protection of interest of women.
…..with him – Sometimes man does not do anything except for giving direction. For example –
suppose he is on bed. He is giving direction a female to rub her vagina with his mouth or with his
penis. The woman is doing so without her free consent as prescribed under seven circumstances
in second part of s.375. The man will be liable for committing rape.
…any other person -Generally video of pornography is prepared by two or more persons. One
person makes sexual relationship and another person gives direction how to make sexual relation
and takes click and shot of those scene. In this case both persons are liable for rape.
(i) Anus (ii) Vagina (iii) Urethra
Section 375 (a), (b), (c) and (d)

These are common in Section 375 (a), (b), (c) and (d) of woman.
Woman-
According to section 10 the word “woman” denotes female human being of any age. In
this way rape can be committed even of child whose age is one month. Rape can also be committed
of a woman whose age is of 90 years or above. Age of woman is immaterial.
Man-
According to section 10 the word “man” denotes male human being of any age. It means
even a person whose age is below the age of seven years can commit a rape. It is another thing that
80
he can get benefit of section 82 of IPC. A minor may commits rape. It is another point that he is
treated under special law.
Special (For example POCSO) or Local Laws -According to section 5 of Indian Penal Code , this
Code shall not affect special or local law or laws related to mutiny or desertion of soldiers, sailors
or airmen etc.
….to any extent (Section 375 (a) & (b)
Penetration of full penis or insertion of full part of body or whole object is not necessary. Now no
need of rupture of hymen.
Two finger test91 – Two finger test has been prohibited by Supreme Court. So insertion of two
fingers for check up to decide commission of rape by medical practitioner will constitute rape.
Seven Circumstances -These seven circumstances are related to mental condition of victim. There
are two types of consent namely;
(1) Lawful consent -Voluntarily consent, and
(2) Unlawful consent - Consent obtained under fear, fraud or misconception of fact or consent
given by those person who are not competent to give consent. In reality unlawful consent
is no consent in eyes of law. Sections 7, 90 and Explanation 2 of section 375 are also
relevant.
There are seven circumstances when consent is treated unlawful consent. For the sake of
understanding these seven circumstances may be divided into four categories namely;
(1) No Consent – First and Secondly
(2) With Consent – Thirdly, fourthly and fifthly
(3) With or Without Consent – Sixthly (Modified in 2013 – 16 Years to 18 Years).
(4) Unable to communicate consent – Seventhly (Ins. in 2013)
Consent is anti-thesis of rape.92 It was recommended to substitute the ‘consent’ by ‘free and
voluntary consent’.
91
Lillu @ Rajesh and Anr. v. State of Haryana [(2013)14SCC643]. It violates right to privacy. The two
finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity
and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption
of consent.
92
LCI, Report 84, Para 2.6, Page no. 6 http://lawcommissionofindia.nic.in/51-100/Report84.pdf (Visited on
October 12,2018).
81
Mental Condition of Victim

(1) No Consent- First and Secondly
First Against her will
Secondly Without her consent.
(2) With Consent- Thirdly, fourthly and fifthly
Thirdly With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or
believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.
(3) With or Without Consent – Sixthly
Sixthly With or without her consent, when she is under eighteen years of age.
(4) Unable to communicate consent - Seventhly (Ins. 2013)
Seventhly When she is unable to communicate consent
Meaning of Consent
Explanation Consent means an unequivocal voluntary agreement when the woman by words,
2 gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration
shall not by the reason only of that fact, be regarded as consenting to the sexual
activity93.
93
This proviso has been inserted to nullify judgment of Tuka Ram Case.
82
Two Exceptions of Section 375
Exception 1 Medical Treatment A medical procedure or intervention shall not

[In case of Lillu v. State of constitute rape.
Haryana (2013) Hon’ble This exception excludes insertion of object for
Supreme Court held that medical treatment from section 375(b). In
“Two Finger Test” is absence of this exception several activities of
violation of ‘Right to medical treatment will come under the
Privacy’. categories of rape.
Exception 2 Sexual intercourse by Sexual intercourse or sexual acts by a man with
(Now husband with wife. his own wife, the wife not being under fifteen
unconstitutional) years of age, is not rape.
Independent Married Unmarried Sexual intercourse with wife who is below the
Thought v. Below Below age of 15 years will constitute the rape.
Union Of India 15Yrs 15Yrs Independent Thought v. Union of India &
& Anr.94 Rape Rape Anr.95
(1) Section 375 Exception 2 is arbitrary to
Married Unmarried Articles 14, 15 & 21 of the Constitution of
15 -18Yrs Below India. It makes unreasonable classification
18Yrs between married (15 -18 yrs. - No rape) and
No Rape Rape unmarried girl (15 -18 yrs – Rape).
(2) It is inconsistent with the provisions of
POCSO, which must prevail.
(3) Now in all cases, sexual intercourse with a
women including wife, if she is below the age
of 18 years, is rape.
(4) In this way, now, there is no difference
between unmarried and married women. If wife
is below the age of 18 years, and husband
makes sexual relation with his wife whether
with consent or without consent, it would be
amount to rape.
94
Date of Judgment11Oct.2017.
95
83
Two Explanations
Explanation Extension of Vagina includes labia majora.

1 meaning of
vagina. This
is landmark
change for
protection of
women.
Explanation Meaning of Consent means an unequivocal voluntary agreement when

2 Consent the woman by words, gestures or any form of verbal or
Tukaram v. non-verbal communication, communicates willingness to
State of participate in the specific sexual act:
Maharashtra Provided that a woman who does not physically resist to
(Mathura the act of penetration shall not by the reason only of that
Rape Case) fact, be regarded as consenting to the sexual activity.
Provided has been inserted in the light of decision of
Tukaram Case.
Consent for Specific sexual act
If a woman has given consent for penetration of penis into vagina but person intentionally had
inserted penis either into urethra or anus or mouth it will amount to rape.
Before 2013 Amendment, to constitute the rape insertion of penis into vagina was necessary. So
several accused persons were getting benefit by proving that there was no insertion of penis into
vagina. Now law has been changed. Now penetration of penis into urethra (Urine part), vagina
(Now vagina includes labia majora. Earlier it was not so. There are two types of labia namely
(i) Labia minora and (2) Labia Majora. In Law Labia majora covers labia minora), anus and mouth
also constitute rape. This law is in favour of women. So with the help of this chart we can
understand differences among vagina, urethra, labia majora and labia minora. In some cases Courts
held that rupture of humane was necessary. Later on in the case of Pani Bhushan Beheru v. State
of Orissa, Orissa High Court held that rupture of hymen was not necessary.
84
Strict Liability (Section 375 does not talk about guilty mind of accused)
Rape
Victim Accused
Mental
Actus Reus Mens Rea
Condition
Firstly to Section 375

PIMA
Seventhly is silent
State of U.P. v. Chottey Lal (2011) S.C.

Difference between “against her will” and “without her consent”
The expressions “against her will” and “without her consent” may overlap sometimes but
surely the two expressions in clause Firstly and clause Secondly have different connotation and
dimension. The expression “against her will” would ordinarily mean that the intercourse was done
by a man with a woman despite her resistance and opposition. On the other hand, the expression
“without her consent” would comprehend an act of reason accompanied by deliberation.
It must be noted that the Courts have followed the tests laid down under Section 90 of the
IPC for establishing “consent”.
Section 90. Consent known to be given under fear or misconception.—

A consent is not such a consent as is intended by any section of this Code, 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
85
[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.”
Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and
Justice and Another (Date of Judgment - September 06, 2018).
(1) Para 206 - A cursory reading of Section 375 IPC divulges that it is a gender specific
provision for the protection of women as only a man can commit the offence of rape. The
Section has been divided into two parts. The former part, comprising of Clauses (a) to (d),
simply describes what acts committed by a man with a woman would amount to rape
provided that the said acts are committed in the circumstances falling under any of the
seven descriptions as stipulated by the latter part of the Section.
(2) While Section 375 permits consensual penetrative acts (the definition of ‘penetration’
includes oral and anal sex), Section 377 makes the same acts of penetration punishable
irrespective of consent. This creates a dichotomy in the law.
(3) The proscription of a consensual sexual relationship under Section 377 is not founded on
any known or rational criteria. Sexual expression and intimacy of a consensual nature,
between adults in private, cannot be treated as “carnal intercourse against the order of
nature”.
INDIAN PENAL CODE AND LEADING CASES-

When a person makes an assault with the intention of causing rape, victim may cause any harm
including death of assailant.96 Victim may claim right of private defence of body.97
(1) Yeshwant Rao v. State of M.P.98 Minor daughter of the accused had gone to the toilet on
the rear side of the house. The deceased gripped her and had sexual intercourse with her.
The accused seeing his minor girl being raped by the deceased hit the deceased with a
spade. Daughter was minor, so her consent was immaterial and act of the deceased would
amount to committing rape under section 376 and hence the father in defence of the body
of his daughter was justified in exercising his right of private defence under Section 100
Thirdly.
(2) Tukaram v. State of Maharashtra99 (Mathura Rape case) Mathura was a girl who was
raped in Police Station by two policemen. Accused was acquitted by Supreme Court on the
ground that there was implied consent. Implied consent was drawn on the basis that there
was no injury on the body of victim. This judgment was vehemently criticized by public
and jurists. Mathura Case led to the Criminal Law Amendment Act, 1983.
96
The Indian Penal Code, 1860 (45 of 1860), Section 100, Thirdly.
97
The Indian Penal Code, 1860 (45 of 1860), Section 100.
98
AIR 1992 SC 1683. Date of Judgment- 4 May, 1992.
99
Supreme Court , Date of Judgment15th September 1978,
86
CHART RELATED TO 1983 & 2013 AMENDMENTS RELATED TO RAPE.
AMENDMENT
IN 1983
Reasons of The Criminal The 1983 Act discussed what constituted
Amendment, Law custodial rape, provided for enhanced
1983 was (Amendment) punishments under S. 376(2), and brought in
Mathura Act, 1983. presumption of absence of consent in cases
Case (1978) Tuka Ram & Anr. booked under section 376(2) IPC, 1860. This
v. State of was done by bringing in an amendment in the
Maharashtra Indian Evidence Act; section 114(A) IEA.
IPC Punishment of rape were substituted- Sections
375 and 376.
Indian Evidence 114A- – Presumption as to absence of consent
Act in rape cases were inserted.
Cr.PC. S. 327(2) In case of rape trial, in camera
proceedings to be conducted; S. 327(3) it shall
not be lawful for any person to print or publish
any matter regarding proceeding.
AMENDMENT
in 2013
Delhi Gang The Criminal (1)S.166APublic Servant denying to register
Rape Case Law FIR, he shall be punished,(2)S. 166BIn-charge
(16Dec.2012) (Amendment) of hospital shall be punished for non-treatment
& J.S.Verma Act, 2013 First of victim (3)– S. 375: Rape, ,(4) –S. 376 :
Committee time death Punishment for Rape, ,(5) – S. 376A :
Report- The sentence in rape Punishment for causing death or persistent
Committee case was provided vegetative state due to rape, ,(6) –S. 376B-
submitted its in two Sexual Intercourse by husband upon his wife
report on circumstances during separation, ,(7) –S.376C -Sexual
January 23, namely (1) S. Intercourse by a Person in Authority,(8) - S.
2013. 376A, 376D – Gang rape, ,(9) - S.376E- Punishment
S. 376A for repeat,
(3) Deepak Gulati v. State of Haryana100- Intercourse under promise to marry constitutes rape
only if from initial stage accused had no intention to keep promise. An accused can be
100
Date of Judgment –May 20, 2013.
87
convicted for rape only if the court reaches a conclusion that the intention of the accused
was mala fide and that he had clandestine motives.
(4) State of Punjab v. Gurmit Singh (January 16, 1996).Facts – A girl below the age of 16
years was kidnapped by Gurmit Singh and another 3 accused when she was returning after
appearing in Exam of 10th class at 12.30 p.m. They went at tubewell. She was taken to the
‘kotha' of the Tubewell and raped. She was again raped in night. Next morning they
dropped her in front of school. After appearing in exam she went to home and narrated all
facts to her mother and mother narrated these facts to father. Father immediately called
Panchayat but he was unable to get justice from Panchayat. Finally FIR was lodged. High
Court acquitted them. Matter reached to the Supreme Court. Supreme Court convicted
them and laid down some important guidelines which are following –
(5) Effect of Rape -
a. Hon’ble Justice Anand observed, “….a rapist not only violates the victim’s privacy
and personal integrity, but inevitably causes serious psychological as well as
physical harm in the process. Rape is not merely a physical assault. It is often
destructive of the whole personality of the victim.A murderer destroys the physical
body of his victim, a rapist degrades the very soul of the helpless female.”
b. Previous sexual intercourse does not authorize everyone to make sex -“…Even
if the prosecutrix has been promiscuous in her sexual behavior earlier, she has a
right to refuse to submit herself to sexual intercourse to anyone and everyone
because she is not a vulnerable object or prey for being sexually assaulted by
anyone and everyone.”
c. Trial of accused rather than rape of victim - Even in cases where there is some
acceptable material on the record to show that the victim was habituated to sexual
intercourse, no such inference like the victim being a girl of “loose moral character”
is permissible to be drawn from that circumstance alone.No stigma, like the one as
cast in the present case should be cast against such a witness by the Courts, for after
all it is the accused and not the victim of sex crime who is on trial in the Court.
d. Duty of Court in Cross-examination - Some defence counsel adopt the strategy
of continual questioning of the prosecutrix as to the details of the rape. The victim
is required to repeat again and again the details of the rape incident not so much as
to bring out the facts on record or to test her credibility but to test her story for
inconsistencies with a view to attempt to twist the interpretation of events given by
her so as to make them appear inconsistent with her allegations. The Court,
therefore, should not sit as a silent spectator while the victim of crime is being
cross-examined by the defence. It must effectively control the recording of
evidence in the Court.
e. Trial in Camera rather than in open Court – Section 327 of Cr.P.C. 1973 must
always keep in mind. Trial of rape cases in camera should be the rule and an open
trial in such cases is an exception.
88
(6) Sakshi v. Union of India (2004) S.C.- In this case ‘Sakshi’ is an NGO working for sexual
victim. It filed writ petition for direction especially for widening the definition of rape. It
was requested that “sexual intercourse” as contained in section 375 of the Indian Penal
Code must include all forms of penetration such as (1) penile/vaginal penetration, (2)
penile/oral penetration, (3) penile/anal penetration (4) finger/vaginal and finger/anal
penetration and (5) object/vaginal penetration. After the change in definition of rape in
2013 maximum suggestions of “Sakshi” have been incorporated in sections 375 and 376.
For example -
a. penile/vaginal penetration –Section 375(a),
b. penile/oral penetration- Section 375(a),
c. penile/anal penetration - Section 375(a),
d. finger/vaginal and finger/anal penetration Section 375(a),
e. object/vaginal penetration- Section 375(b).
Following directions were issued in this case-

f. The provisions of sub-section (2) of section 327 Cr.P.C. shall in addition to the
offences mentioned in the sub-section would also apply in inquiry or trial offences
under section 354 and section 377 IPC.
g. In holding trial of child sex abuse or rape: a screen or some such arrangements may
be made where the victim or witnesses (who may be equally vulnerable like the
victim) do not see the body or face of the accused; the questions put in cross-
examination on behalf of the accused, in so far as they relate directly to the incident,
should be given in writing to the presiding Officer of the Court who may put them
to the victim or witnesses in a language which is clear and is not embarrassing; the
victim of child abuse or rape, while giving testimony in court, should be allowed
sufficient breaks as and when required.
These directions are in addition to those given in State of Punjab v. Gurmit Singh.
(7) Mukesh and Anr. v. State for NCT of Delhi101- This case is related to Delhi Gang Rape
Case (Dec.16, 2012).This is related to confirmation of death sentence by Supreme Court.
(8) Independent Thought v. Union of India & Anr.102 Sexual relations with wife, when wife
is below the age of 18 years is rape. Section 375 Exception 2 is arbitrary to Articles 14, 15
& 21 of the Constitution of India. Court may take cognizance under section 198(6) of Cr.
P.C. Now in all cases, sexual intercourse with a women including wife, if she is below the
age of 1 8 years, is rape. In this way, now, there is no difference between unmarried and
married women. If wife is below the age of 18 years, and husband makes sexual relation
with his wife whether with consent or without consent, it would be amount to rape.
101
Date of Judgment-05 May, 2017.
102
89
TABLE
Year Age of Age Minimum age of
Consent mentioned marriage under the
under section in the Child Marriage
375, 6th exception to Restraint Act, 1929
Clause IPC sec.375
1860 10 10 -
1891(After 12 12 -
amendment of IPC)
1925(After 14 13 -
amendment of IPC)
1929( After the 14 13 14
passing of Child
Marriage Restraint
Act, 1929)
1940 (After the 16 15 15
passing of Child
Marriage Restraint
Act, 1929 and IPC)
1978 16 15 18
2017 18 15 PCMA, 2006. 18
(F) 21(M)
COMPARISON BET. BEFORE AND AFTER 2013 AMENDMENT REGARDING RAPE

Before 2013 Amendment After 2013 Amendment
Definition Sexual Intercourse was Now sexual intercourse is not
of Rape necessary. Earlier insertion of necessary. Penetration of penis
penis into vagina was necessary. into the vagina, mouth, urethra or
Such sexual intercourse must be anus of a woman or insertion of
in six circumstances namely , any object into vagina, urethra or
anus is sufficient. If a man
Firstly- Against her will.
manipulates any part of the body
Secondly—Without her consent. of woman for penetration or
Thirdly— With her consent, applies his mouth to the vagina,
when her consent has been urethra or anus of a woman or
obtained by putting her or any make her to do so against her will
person in whom she is interested or without her consent or with or
in fear of death or of hurt. without her consent, when she is
Fourthly..Fifthly.. Sixthly — under eighteen years of age is
With or without her consent, rape.
when she is under sixteen years of
age. Explanation.
90
Age to give Section 375 Sixthly — With or Section 375 Sixthly — With or
consent without her consent, when she is without her consent, when she is
under sixteen years of age. under eighteen years of age.
New There were six categories of Now, there are seven categories
ground consent. of consent.
regarding Seventhly- When she is unable
consent to communicate consent.
Punishment There was no provisions There are two circumstances
regarding punishment of death when in rape cases death
sentence. sentence may be awarded. These
two cases are (1) Section 376A-
Punishment for causing death or
resulting in persistent vegetative
state of victim. (2) Section 376E-
Punishment for repeat offenders.
Exception There was one exception- Sexual There are two exceptions.
intercourse by a man with his Exception1-A medical procedure
own wife, the wife not being or intervention shall not
under fifteen years of age, is not constitute rape.
rape. Exception2-Sexual intercourse
by a man with his own wife, the
wife not being under fifteen years
of age, is not rape.
Exception 2 does not exist after
decision of Independent Thought
v. Union of India & Anr.103
103
Available at: https://indiankanoon.org. (Visited on April 10, 2018). Date of Judgment11Oct.2017.
91
Before 2013 Amendment, to constitute the rape insertion of penis into vagina was
necessary. So several accused persons were getting benefit by proving that there was no
insertion into vagina. Now law has been changed. Now penetration of penis into urethra
(Urine part), vagina (Now vagina includes labia majora. Earlier it was not so. There are
two types of labia namely (i) Labia minora and (2) Labia Majora. In Law Labia majora
covers labia minora), anus and mouth also constitute rape. This law is in favour of women.
So with the help of this chart we can understand differences among vagina, urethra, labia
majora and labia minora. In some cases, Courts held that rupture of hymen was necessary.
Later on in the case of Pani Bhushan Beheru v. State of Orissa, High Court held that rupture
of hymen was not necessary.
(9) PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 (POCSO)
Protection of Children from Sexual Offences Act, 2012 (POCSO) was enacted in pursuance
of Article 15(3) of Constitution of India and Convention on the Rights of the Child, 1989.
This Act came into force on November 14, 2012. Under this Act, it has been provided for
the establishment of Special Court, Special Public Prosecutor and Special Juvenile Police
Unit so that better protection may be given to children.
92
Conflict between Protection of Children from Sexual Offences Act, 2012

(POCSO) Act and Section 375, Exception 2.
For the purpose of POCSO Act, 2012 a person who is below the age of eighteen years is a
104
child. According to section 2(2) of this Act, any word which has been used in this Act but not
defined in this Act and defined in IPC, 1860, Cr.P.C.1973 or Information Technology Act, 2000
shall have the same meaning respectively assigned to them in IPC, 1860, Cr.P.C.1973 or
Information Technology Act, 2000. Here child has not been divided on the basis of married. Sexual
relation with any child below the age of 18 is an offence.
Exception of Section 375 was clearly saying that sexual relation by husband with his wife even
below the age of 18 years and above 15 years was not rape. So it was direct conflict between two
statutes. This controversy was settled down by the decision of Independent Thought v. Union of
India & Anr.105
In this case Supreme Court held that a man will be punished for rape if he is found to be guilty of
having sexual intercourse with his minor wife i.e. below the age of 18 years.
With this verdict, the Supreme Court has ended the disparity between this exception to Section
375, which allows a husband to have sexual relationship with his 15-year-old wife, and the
definition of ‘child’ in recent laws such as the Protection of Children from Sexual Offences Act,
2012, which includes any person below the age of 18.
Difference between UK and India

United Kingdom India
A man can commit rape of man or woman. Here rape of man is not possible.
Section 142 of the Criminal Justice and
Public Order Act 1994 definition of rape
was changed.
Here marital rape is rape. Here if the age of wife is above the age of 18 years,
marital rape is not possible. This must be read in the
light of Independent Thought Case.
J.S. Verma Committee recommended that the
exception for marital rape must be removed. But
this recommendation was rejected at the time of
making amendment in criminal law.
104
Protection of Children from Sexual Offences Act, 2012 (No. 32 of 2012).Section 2(1) (d).
105
93
USA
In Eisenstadt v. Baird the US Supreme Court observed that a “marital couple is an independent
entity with a mind and heart of its own, but an association of two individuals each with a separate
intellectual and emotional makeup.”
Canada, South Africa and Australia

These countries have declared marital rape as rape.
India
Section 375, Exception 2 -“Sexual intercourse or sexual acts by a man with his own wife, the wife
not being under fifteen years of age, is not rape.”
Marital Rape can be divided into three parts namely;
(1) Minor Marital Rape (Birth to 15 Yrs.)

(2) Minor Marital Rape (Since 15 years – 18 Years)
(3) Adult Marital Rape (Since 18 Years to onwards).
Marriage Marriage Marriage

Since birth to 15 years Since 15 years – 18 Years Since 18 Years to onwards
Rape Rape No Rape
Reason -Exception of section Reason –Interpretation of Reason –Interpretation of

375. Marital Rape from the Exception -2 of section 375 in Exception -2 of section 375 in
very beginning the case of Independent the case of Independent
Thought Thought. In this case SC did
not consider beyond statutory
provisions.
(1) Minor Marital Rape (Birth to 15 Yrs.)– This is marital rape declared by the Indian Penal
Code under section 375, Exception 2. Section 375, Exception 2 says “Sexual intercourse
or sexual acts by a man with his own wife, the wife not being under fifteen years of age,
is not rape.” It means if wife is below the age of fifteen years then sexual intercourse or
sexual acts by her husband whether with consent or without consent of her will amount to
rape. If wife is above the age of 15 years, then there is no rape. Sexual intercourse by
husband with wife who is above 15 yrs. and below 18 years was challenged in Independent
Thought Case.
(2) Minor Marital Rape (Since 15 years – 18 Years) – Exception 2 of section 375 deals
marital rape. According to bare reading of this provision sexual intercourse with wife
(Since 15 years – 18 Years) by husband is not rape. But after the decision of Independent
Thought case this is the rape.
94
After the decision of division bench of Supreme Court in the case of Independent Thought
v. Union of India on October 11, 2017 sexual intercourse by a husband with his wife
whether with or without consent is rape if she is below the age of eighteen years. It was
interpreted in the light of POCSO and Article 14 of the Constitution of India.
In the case of Independent Thought v. Union of India Supreme Court confined itself only
with marital rape of a girl child between 15 and 18 years of age in the context of Exception
2 to Section 375 of the IPC.
(3) Adult Marital Rape – In India Adult Marital Rape is no rape. But marital rape victim has
civil remedy under the Protection of Women from Domestic Violence Act, 2005.
Justice J. S. Verma Committee Report - The IPC differentiates between rape within
marriage and outside marriage. Under the IPC sexual intercourse without consent is
prohibited. However, an exception to the offence of rape exists in relation to un-consented
sexual intercourse by a husband upon a wife. The Committee recommended that the
exception to marital rape should be removed. Marriage should not be considered as an
irrevocable consent to sexual acts. Therefore, with regard to an inquiry about whether the
complainant consented to the sexual activity, the relationship between the victim and the
accused should not be relevant.
J.S.Verma Committee said that notion has changed and now wife is not property of
husband. Even the United Kingdom and several other countries have changed its law. The
Committee was in favour of deletion of section 375 Exception and declaration of marital
rape as a rape in India also.
Report of this Committee was discarded.
Recommendation of Human Rights Council- In the Report of the Human Rights Council on its
thirty-sixth session recommended to remove exception for IPC and declare marital rape as rape
(June 2018).106
QUESTION 7 (B) (2015)

“Rape is a question of law.” Explain the essentials of crime of rape. How is this law different from
the law against sexual assault provided under POCSO.
Answer
Rape under IPC - According to section 375 “Rape is PIMA committed by a man (section 10)
against woman (section 10) under seven circumstances and which does not come under two
exceptions.” I have already discussed rape. So no need to repeat again and again.
Categories of offences under POCSO Act, 2012 – There are six categories of offences which are
following- (1)Penetrative Sexual Assault (Section -3) (2) Aggravated Penetrative Sexual Assault
106
Available at:
https://www.ohchr.org/en/hrbodies/hrc/regularsessions/session36/pages/36regularsession.aspx
95
(Section - 5) (3) Sexual Assault (Section - 7) (4) Aggravated Sexual Assault (Section -9) (5) Sexual
Harassment of the Child (Section - 11) (6) Use of Child for Pornographic Purposes (Section -13).
Sexual Assault (Section 7) - Section 7 of POCSO Act which deals ‘Sexual assault’ says,
“Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the
child touch the vagina, penis, anus or breast of such person or any other person, or does any other
act with sexual intent which involves physical contact without penetration is said to commit sexual
assault. Section 8 deals punishment for Sexual assault.
Difference between POCSO Act, 2012 and Rape under IPC, 1860
Basis POCSO Act, 2012 IPC, 1860
Sex It is gender neutral. Here accused may It is gender specific. In case of rape only
be either man or woman. Even gender of man can commit rape. Only woman can
victim is immaterial. Victim may be be victim of rape.
either man or woman.
Age It covers only child. Here child means In case of rape age of woman is
any person below the age of eighteen immaterial. It covers minors as well as
years (section 2 (d)). Sex of child is majors.
immaterial. It does not cover persons
who have attended age of majority.
Marriage It covers all types of women whether Section 375, Sixthly - Sexual intercourse
married or unmarried if she is below the with a woman who is under the age of
age of eighteen years. eighteen years is rape and her consent is
immaterial.
Marital Intercourse- Exception 2 of
section 375. It says that sexual
intercourse with wife with or without
consent is not rape if she is above the age
of fifteen years.
Nature Special Law. Combined reading of General Law. According to section 5
of law Article 15(3) of Constitution of India IPC shall not affect special laws. Section
and sections 5 & 41 it becomes clear that 41 Special law is a law applicable to
in case of conflict between general law particular subject. Article 15(3) State is
(IPC) and special law (POCSO Act), empowered to make special laws.
special law shall prevail over general
laws.
Relation Independent Thought Case. In this case Exception 2 of section 375was declared
between unconstitutional. It was inconsistent with POCSO Act, 2012, Articles 14, 15 and
IPC, 21and section 375, sixthly of IPC.
POCSO
& Const.
96
Independent Thought v. Union of India & Anr. (11Oct. 2017.)

This case is a leading case which was decided by Division Bench of Supreme Court on
October 11, 2017. In this case triangle relationship of POCSO, IPC and Constitution was involved.
Independent Thought v. Union Of India & Anr. (11Oct.2017.)
Married Unmarried
(1) Section 375 Exception 2 is arbitrary to Articles 14, 15 &
Below Below
21 of the Constitution of India. It is unconstitutional. It
15Yrs 15Yrs
makes unreasonable classification between married (15 -18
Rape Rape
no rape) and unmarried girl (15 -18 years – Rape).
(2) It is inconsistent with the provisions of POCSO, which
Married Unmarried must prevail.
15 -18Yrs Below (3) Now in all cases, sexual intercourse with a women
18Yrs including wife, if she is below the age of 18 years, is rape.
No Rape Rape (4) In this way, now, there is no difference between unmarried
and married women. If wife is below the age of 18 years,
and husband makes sexual relation with his wife whether
with consent or without consent, it would be amount to
rape.
SPECIAL FEATURES OF THE CRIMINAL LAW (AMENDMENT) ACT,

2018.107
Now Criminal Law (Amendment) ‘Ordinance’ has been replaced by the Criminal Law
Amendment Act, 2018.108 By this “Act” changes have been done in IPC, 1860, Indian Evidence
Act, 1872, Code of Criminal Procedure, 1973 and Protection of Children from Sexual Offences
Act, 2012. Rape has been classified into four categories- (1) Rape with girl below the age of twelve
years (2) Rape with girl below the age of sixteen years (3) Rape with girl below the age of eighteen
years (4) Rape above the age of eighteen years.
107
This Ordinance has been issued by President under Article 123(1). This Ordinance was signed by
president on 21st April,2018. It is available at :
http://www.prsindia.org/uploads/media/Ordinances/The%20Criminal%20Law%20Amendment%20Ordin
ance%202018.pdf (Visited on October 13, 2018).
108
THE CRIMINAL LAW (AMENDMENT) ACT, 2018. The Act of Parliament received the assent of the
President on the 11th August, 2018. It shall be deemed to have come into force on the 21st day of April,
2018. Available at: https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf
(Visited on October 13, 2018).
97
Provisions Before Criminal Law After Criminal Law (Amendment)

(Amendment) Act, 2018. Act, 2018.
INDIAN PENAL CODE,1860 INDIAN PENAL CODE,1860
Section 166A (c) Public 376B,376C, 376D, and 376E 376AB, 376B, 376C, 376D, and
servant disobeying Substituted by 376DA, 376DB.
direction under law.
Section 228A 376A,376B,376C, 376D, Section 376 A, Section 376AB,
Disclosure of identity 376B,376C, 376D, and 376DA,
376DB.
Section 376(1) …not be less than seven years …not be less than ten years but which
Punishment for rape but which may extend to may extend to imprisonment for life..
imprisonment for life…
Section 376(2)(i) Rape on a woman when she is Deleted
under sixteen years of age
Section 376 (3) Section 376 (3) was absent. Newly inserted.
(It had been provided under Rape on a woman when she is under
Section 376(2) (i) for which sixteen years of age – Not less than
punishment was……. twenty years –which may be
not be less than ten years but imprisonment for life.
which may extend to
imprisonment for life..
Section 376 A Section 376 A Section 376 A (No change)
Section 376 AB Absent Inserted. Punishment-
Rape with girl below Not less than twenty Years – up to LI
the age of 12 Years and fine or Death sentence
Section 376DA Life Imprisonment
Punishment for gang
rape on a women under
sixteen years of age
Section 376DB LI and Fine or Death Sentence
Punishment for gang
rape on a women under
twelve years of age
Omitted Substituted Inserted
Section 376(2)(I) Section 166A,Section 228 A, Section 376(3), Section 376AB,
Section 376(1) Section 376DA, Section 376DB
Protection of Children From
Sexual Offences Act, 2012
Section 42 Section 376A, Section C, Sections 376A, 376AB, 376B, 376C,
Substituted Section D Section 376D, 376DA and 376 DB.
98
There are following special features of this ‘Act’-
 Amendments in Four Statutes-

By this “Act” changes have been done in IPC, 1860, Indian Evidence Act, 1872, Code of
Criminal Procedure, 1973 and Protection of Children from Sexual Offences Act, 2012.
 Classification of Rape Victims on the basis of age-
Rape has been classified into four categories-
(i) Rape with girl below the age of twelve years – Section 376AB and Section 376 DB.
(ii) Rape with girl below the age of sixteen years Section 376DA
(iii)Rape with girl below the age of eighteen years Section 376(1)
(iv) Rape above the age of eighteen years.
 Enhancement of Punishment-
 Minimum Punishment- (a) According to section 376(1), minimum punishment in
rape cases is 10 years. Earlier minimum punishment was seven years.
 Minimum Punishment for Rape with women below the age of 16Years-
According to section 376(3), rigorous punishment for a term which shall not be
less than twenty years.
 Minimum Punishment for Rape with women below the age of 12 Years-
According to section 376AB, rigorous punishment for a term which shall not be
less than twenty years and which may extent to LI or death sentence.
 Life Imprisonment- According to Section 376DA Punishment for gang rape on a
women under sixteen years of age is imprisonment for life which shall mean
imprisonment for the remainder of that person’s natural life, and with fine.
 Death Sentence - (Section 376 AB Section 376DB) - Two more categories of
offences related to rape have been inserted when death sentence may be awarded.
After this “Act” there are four categories of offences related to rape when death
sentence may be awarded.
DEATH SENTENCE IN RAPE CASES
S.N. Act / Provisions Punishment
The Criminal Law (Amendment) Act, 2013
2013
1 Section 376A- Punishment for causing death or resulting in persistent Death Sentence
vegetative state of victim
2 Section 376E- Punishment for repeat offenders. Death Sentence
THE CRIMINAL LAW (AMENDMENT) Act, 2018.109
2018
3 Section 376AB- Rape with women below the age of 12 Years Death Sentence
4 Section 376DB- “Gang Rape” with women below the age of 12 Years Death Sentence
109
This Ordinance has been promulgated by President under Article 123(1) on 22nd April, 2018.
99
RAPE OF WOMEN AND PUNISHMENT
S.N. Age of Woman Punishment Sections

1
2018 Rape of Woman under 12 Years Minimum 20Years in Jail Section 376AB
or LI or Death Sentence
2018 Gang Rape of Woman under 12 Years LI and Fine or death Section 376DB
Sentence
2
2018 Rape of Woman under 16 Years Minimum punishment 20 Section 376(3)
years (Earlier it was
10Years) which may
extend to LI and fine.
2018 Gang Rape of Woman under 16 Years LI and Fine Section 376DA
3
years (Earlier it was 7
Years) which may extend to
LI and fine.
2013 Gang Rape of Woman under 18 Years Not less than 20 years Section 376D
which may extend to LI
and fine.
4 Under or above 18 Years Rape whether rape has been committed with or without consent
LI and fine.
and fine.
LAW RELATED TO COMMISSION OF RAPE IN INDIA

Introduction – Rape word has been derived from Latin word ‘Rapio’. It means to seize
forcefully. It destroys not only body of victim but also soul of victim. In the case of State of Punjab
v. Gurmit Singh (1996) A murderer destroys the physical body of his victim, a rapist degrades the
very soul of the helpless female.”
100
 In the case of Zahira Habibulla H. Shiekh & Anr. v. State of Gujarat and Ors.
(12/04/2004, SC) which is known as ‘Best Bakery Case’ Supreme Court observed, “Denial
of a fair trial is as much injustice to the accused as is to the victim and the society. Concept
of fair trial is triangulation.”
(1) Effect of Rape -
 Hon’ble Justice Anand observed, “….a rapist not only violates the victim’s privacy and
personal integrity, but inevitably causes serious psychological as well as physical harm in
the process.
 Rape is not merely a physical assault. It is often destructive of the whole personality of the
victim.
(2) Definition of Rape - Section 375
Section 375,IPC
(Strict Liability)
Non registration of FIR is offence Right of Private Defence - S. 100

under s. 166A. Thirdly
Main body Two explanations (Meaning) Two exceptions
Actus Mens rea of Explanation 2 Exception

Explanation 1- Medical Exception 2-
reaus accused is - Consent
1 - Vagina intervention Secuxual
missing unequivocal
(PIMA) includes or intercourse or
(Strict voluntary
Labia procedure acts with wife
Liability. agreement for
Majora not under 15
specific
sexual act. yrs of age
First to Two Finger
Seventhly Test - Lillu v.
deal about Pani Bhushan (Mathura State of Independent
mental Beheru v. State Rape Case) Haryana Thought v.
condition of of Orissa Union of
victim rather (Rupture of India
than accused. hymen is not
necessary.
101
(3) CrPC
1. FIR –
 FIR / Zero FIR
 FIR on the basis of Victim or third person / FIR by Police Suo Motu/ On the
direction of Court
2. Investigation – Section 173- within two months

3. Trial – Section 309 - Two months from the date of filing of the charge sheet.]
4. Appeal – Section 377 (4) - within a period of six months from the date of filing of such
appeal.
5. Compensation and Treatment – Sections 357 A,B,C
Bilkis Yakub Rasool v. State of Gujarat and Others110 (23 April, 2019)
The Supreme Court ordered the Gujarat government to pay 2002 communal riots victim Bilkis
Yakoob Rasool Bano
 ₹50 lakh as compensation,
 a government job and
 housing in the area of her choice.
6. Bail –
 No anticipatory bail
 Bail under section 439 – Hearing of victim also.
Indian Evidence Act

Section 53A. Evidence of character or previous sexual experience not relevant in
certain cases –
In a prosecution for an offence under section 354, section 354A, section 354B, section
354C, section 354D, section 376, 2[section 376A, section 376AB, section 376B, section 376C,
section 376D, section 376DA, section 376DB] or section 376E of the Indian Penal Code (45 of
1860) or for attempt to commit any such offence, where the question of consent is in issue,
evidence of the character of the victim or of such person’s previous sexual experience with any
person shall not be relevant on the issue of such consent or the quality of consent.]
Section 114A.
Presumption as to absence of consent in certain prosecution for rape - In a prosecution for
rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h),
clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376
of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the
question is whether it was without the consent of the woman alleged to have been raped and such
woman states in her evidence before the court that she did not consent, the court shall presume that
she did not consent.
110
https://main.sci.gov.in/supremecourt/2003/17411/17411_2003_Order_23-Apr-2019.pdf
102
Explanation. - In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses
(a) to (d) of section 375 of the Indian Penal Code (45 of 1860).]
Suggestion – (1) Proper implementation of law (2) Awareness (3) Division of Police department
in two parts (i) Law and Order, and (ii) Investigating agency (4) Rehabilitation Centre. (5)
Compensation.
Section 377
Section 377 - Unnatural offences.- Whoever voluntarily has carnal intercourse against the order
of nature with any man, woman or animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the
offence described in this section.
Important words
 Lesbian: (woman and a woman) - Women who are attracted to women. The word “lesbian”
is derived from the name of the Greek island of Lesbos, where it was rumored that female
same-sex couples proliferated.
 Gay: (Men to Men) - Men who are attracted to men, although this term is sometimes also
used generically for all same-sex attracted persons.
 Bisexual: Women who are attracted to both sexes; men who are attracted to both sexes.
 Transgender – Sex is not clear of these persons.
 Homosexual (Same): People of either gender who are attracted, sexually, emotionally and
in relationships, to persons of the same sex. Gay and lesbian are two parts of homosexual.
In case of man to man – Gay, and in case of woman to woman – Lesbian.
The word “homosexual” is not derived from “homo” meaning man, but from “homo”
(Greek word) means ‘same’.
 Heterosexuals (Opposite) (man and woman) – Opposite sex attract to each other. This is
most popular form of sexual attraction. But bisexual is challenging its supremacy. Reason
of this is easy access of every types of pornography.
 Penile – Related to penis
 Carnal Intercourse – Sexual Intercourse between organs which are not part for the
purpose of procreation of child.
Introduction -Section 377 penalises all forms of non-penile-vaginal intercourse. Section

377 criminalizes sexual intercourse that is penile and non-vaginal, deeming it “against the order
103
of nature”. The law affects the rights of the lesbian, gay, bisexual and transgender (LGBT)
population, in particular, but its provisions can also be applied to heterosexual citizens.111
In 2009, the Delhi High Court had ruled in favour of decriminalising section 377. This decision
was overturned by Division Bench of Supreme Court in 2013, in the Suresh Kumar Koushal v.
Naz Foundation case. On Sep. 6,2018 S.K.Koushal Case was overruled by Constitutional Bench
of Supreme Court.
Leading Cases
Year/Court Leading Cases Remarks

2009 Naz Foundation Case Section 377 –Partially Unconstitutional
2013 Suresh Kumar Koushal & (1) Section 377- Constitutional (2) Naz
Anr. v. Naz Foundation & Foundation case was overruled.
Ors 112 Reason of Decision – (i) The LGBT community
comprised only a minuscule fraction of the total
population and
(ii) that the mere fact that the said Section was
being misused is not a reflection of the vires of the
Section.
2014 National Legal Services Transgenders are person
Authority v. Union of India A person‘s sex is usually assigned at birth, but a
and others relatively small group of persons may be born with
bodies which incorporate both or certain aspects of
both male and female physiology.
Navtej Singh Johar & Ors. Section 377 is partially struck down
V. Union Of India Thr.
Secretary Ministry of Law
and Justice
The provisions of Section Sex with consent -Section 377 IPC, so far as it
377 will continue to govern penalizes any consensual sexual relationship
non-consensual sexual acts between two adults, be it homosexuals (man and a
against adults, all acts of man), heterosexuals (man and a woman) or
carnal intercouse against lesbians (woman and a woman) cannot be regarded
minors, and acts of as constitutional.
beastiality. Sex without Consent -Any act of the description
covered under Section 377 IPC done between two
111
https://www.livemint.com/Politics/d8zjDGMLYr2hCHMt54iKcN/Section-377-verdict-by-Supreme-
Court-today-5-key-things-to.html
112
(2014) 1 SCC 1
104
individuals without the consent of any one of them

would invite penal liability under Section 377 IPC.
Sex with animals - if anyone, by which we mean
both a man and a woman, engages in any kind of
sexual activity with an animal, the said aspect of
Section 377 is constitutional and it shall remain a
penal offence under Section 377 IPC.
Suresh Koushal Case – This case was overruled.
Reasoning of decision (1)Consensual sexual intercourse between two
adult male and female is valid while between two
males or females it is crime. It is volative of article
14.
(2) While Section 375 permits consensual
penetrative acts (the definition of ‘penetration’
includes oral and anal sex), Section 377 makes the
same acts of penetration punishable irrespective of
consent. This creates a dichotomy in the law.
(i) Naz Foundation v. Government of NCT of Delhi and Others (2009) Division Bench of
the Delhi High Court- Hon’ble JJ. Ajit Prakash Shah & S.Muralidhar – Section 377 is
Partially Unconstitutional. Delhi High Court partially struck down Section 377 IPC clearly
stating that carnal intercourse between homosexuals and heterosexuals with consent cannot
be an offence.
(ii) Suresh Kumar Koushal & Anr v. Naz Foundation & Ors (11 December, 2013), Supreme
Court Division Bench – JJ. G.S. Singhvi, Sudhansu Jyoti Mukhopadhaya – Appeal was
referred from the judgment of Naz Foundation v. Government of NCT of Delhi and Others
(2009). In this case Supreme Court declared that Section 377 is constitutional.
(iii)Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and Justice
(September 6, 2018) Constitutional Bench
Hon’ble JJ. (1) Dipak Misrahon’ble (2) Rohinton Fali Nariman, (3) A.M. Khanwilkar, (4)
Dr. Justice D.Y. Chandrachud, (5) Indu Malhotra (Four concurring Order).
After this judgment section 377 may be divided into two parts –
Constitutional part of section 377

Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal
intercouse against minors, and acts of beastiality.
In following cases section 377 is constitutional
(i) Sex without Consent -Any act of the description covered under Section 377 IPC done
between two individuals without the consent of any one of them would invite penal liability
under Section 377 IPC.
105
(ii) Sex with Minor – According to section 5 special law (POCSO Act) shall prevail over
general law (IPC). But where special law is salient general law (section 377) shall apply.
(iii)Sex with animals (Beastiality) - if anyone, by which we mean both a man and a woman,
engages in any kind of sexual activity with an animal, the said aspect of Section 377 is
constitutional and it shall remain a penal offence under Section 377 IPC.
Suresh Koushal Case – This case was overruled.
Unconstitutional Part of Section 377

LGBT (Lesbian, Gay, Bisexual and Transgender)
In following cases section 377would be unconstitutional-
(1) Sex with consent -Section 377 IPC, so far as it penalizes any consensual sexual relationship
between two adults at private place, be it homosexuals (man and a man), heterosexuals (man and
a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. Now in these
case section 377 would not be applicable.
Indu Malhotra
(i) In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises
consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent
to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is,
however, clarified that such consent must be free consent, which is completely voluntary
in nature, and devoid of any duress or coercion.
(ii) The declaration of the aforesaid reading down of Section 377 shall not, however, lead to
the reopening of any concluded prosecutions, but can certainly be relied upon in all pending
matters whether they are at the trial, appellate, or revisional stages.
(iii)The provisions of Section 377 will continue to govern non-consensual sexual acts against
adults, all acts of carnal intercouse against minors, and acts of beastiality.
(iv) The judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. is hereby
overruled.
Justice Deepak Mishra

(i) Distinction between ‘natural’ and ‘unnatural’ is not acceptable - Rejecting the
distinction between ‘natural’ and ‘unnatural’ sexual relations, said that “what nature gives
is natural”, and “the natural identity of an individual should be treated to be absolutely
essential to his being”. Sexual attraction for the same sex is controlled by neurological and
biological factors; an individual’s natural orientation is innate and lies at the core of her/his
being and identity.
(ii) Majoritarian Rule is not acceptable- The Constitution is not for just the majority, the
fundamental rights are guaranteed to “any person” and “any citizen”, and the sustenance
of these rights does not require majoritarian sanction.
(iii)Homosexuality is not mental illness - “Homosexuality is neither mental illness nor moral
depravity,” CJI Misra said in clear terms. Nor does one choose to be homosexual — the
106
science of sexuality says an individual has little or no control over whom she/he is attracted
to. Research shows sexual orientation is decided very early, possibly even before birth.
Section 377 criminalises carnal intercourse even between heterosexuals, and is legally
unsustainable for the simple reason that Section 375 IPC clearly stipulates that carnal
intercourse between a man and a woman with the wilful and informed consent of the
woman does not amount to rape, and is not punishable.
107
CHAPTER VI
JOINT LIABILITY113
Section 34 -Acts done by several persons (Section 11) in furtherance of common intention -
When a criminal act (S. 32- Act includes illegal omission and S. 33- “Act” denotes as well as a
series of acts as a single act) is done by several persons in furtherance of the common intention
of all (Ins. in 1870114 to make more clear), each of such persons is liable for that act in the same
manner as if it were done by him alone.
Act Criminal Act
(Section 32 – Acts includes illegal omission)
(Here I am using ‘act’ in not legal sense).
Several persons had attended marriage Several persons had attended marriage
ceremony and performed dance. It is act. ceremony and performed dance. At the time of
performing dance some disputes aroused
between two parties. They started to fight each
other. This is criminal act.
Act does not attract section 34. Only Criminal act attracts section 34.
All acts are not criminal act. But all criminal acts are act.
Introduction – Section 34 creates sever (separate) and joint liability.115 Section 34 is based on the
ratio of decision of Reg v. Cruise (1838).116 In this case Police Constable went to arrest A at his
house. B C & D came out of house gave him a blow. In this case the Court evolved the ‘Doctrine
of Joint liability’. ‘…in furtherance of the common intention of all’ were inserted in 1870117.
No specific offence, only evidence - Section 34 does not create specific offence. It has been
mentioned under Chapter II (General Explanations, Sections 6-52A). It only lays down rule of
evidence that if two or more than two persons commits criminal act in furtherance of the common
intention of all each of the persons will be liable on the principle of joint liability.
Section 149 -Every member of unlawful assembly guilty of offence committed in prosecution of
common object – If an offence (Section 40) is committed by any member of an unlawful assembly
(Section 141 – Minimum 5 persons) in prosecution of the common object (Section 141 – 5 types
of circumstances) 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.
There are four parts of section 149 –
113
Sections 34 and 149 of IPC
114
UPPCS 2001, UKAPO 2010
115
UPPCS 1991.
116
UP (J) 2019
117
UPPCS 2001, UKAPO 2010
108
(i) Member of unlawful assembly – If person is not member or he was member but ceased to
be member of unlawful assembly then section 149 shall not attract.
(ii) Committed some work -He had done some work in prosecution of common object, or
(iii)Mere knowledge is sufficient - He had knowledge but personally he did nothing. He did
not perform any act but he was member of unlawful assembly and he knew that such act
was likely to be committed in prosecution of common object.
(iv) Vicarious Liability - Every person who, at the time of the committing of that offence, is a
member of the same assembly, is guilty of that offence.
No new offence – Section 34 does not create new offence like sections 149 and 120B. It is merely
declaratory section.
Difference between 34 and 149
Section 34 Section 149
1 It does not create substantive offence. It It creates substantive offence. It has been
deals only rule of evidence. mentioned under Chapter VIII.
2 Active participation either in form of Being a member of unlawful assembly is
overt act or covert act is necessary. sufficient. He will be liable even he does
not do any act.
3 Common intention is sine qua non. Common object is sine qua non. Common
Common intention is wider. object is limited up to five circumstances.
4 Criminal act must be done at least by Offence must be done at least by five
two persons. Maximum person has not persons. Maximum persons have not been
been mentioned. It may be 3,4,5,6,7,8,9, mentioned.
10…. persons or more persons.…..Only It may be 5,6,7,8,9,10….. persons or more
condition is that other conditions persons.…..Only condition is that other
mentioned under section 34 must be conditions mentioned under section 149
fulfilled. must be fulfilled.
5 There is only one part of section 34. There are two parts of section 149.
When a criminal act is done by several First Part - If an offence is committed by
persons.. any member of an unlawful assembly in
prosecution of the common object of that
assembly, or
Second Part - Such as the members of that
assembly knew to be likely to be
committed in prosecution of that object,
6 Section 34 was amended in 1870. Till now it has not been amended.
109
JOINT LIABILITY -Sections 34,35,37,38 and 149

SECTION 34 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
Amendment1870 …in furtherance of the common intention of all,
Milton “They also serve who only stand and wait”. Later on it was used
in law by Lord Sumner in case of Barendra Kumar Ghosh v. king
Emperor, 23 Oct.1924.
Lord Sumner “They also serve who only stand and wait”. Barendra Kumar
Ghosh v. king Emperor, 23 Oct.1924.P.C. (Post Office case).
Sir Madhavan Mahaboob Shah v. Emperor, 1944, Sir Madhavan Nair,
Nair “…Care must be taken not to confuse same or similar intention
with common intention, the partition which divides ‘their bonds’
is often very thin ; nevertheless, the distinction is real and
substantial , and if overlooked , will result in miscarriage of
justice..”
23 Barendra Kumar The Sub-Postmaster at Sankaritolla Post Office was counting
Oct. Ghosh v. king money at his table in the back room, when several men appeared
1924. Emperor, at the door which leads into the room from a courtyard, and, when
Sankaritolla Post just inside the door, called on him to give up the money. Almost
Office Case. immediately afterwards they fired pistols at him. He was hit in
Barendra Kumar two places, in one hand and near the armpit, and died almost at
Ghosh was a once. Without taking any money the assailants fled, separating as
freedom fighter. they ran. Appellant was caught. He was the man outside the room.
He was convicted Lord Sumner, “They also serve who only stand and wait”.
for murder u/s302 A criminal act means unity of criminal behaviour which results in
r/w section 34. something, for which an individual would be punished, if it were
all done by himself alone, that is, in a criminal offence.
By section 33 a criminal act in section 34 includes a series of
acts. “The act” in the latter part of the section must include the
whole action covered by “a criminal act” in the first part, because
they refer to it.
31st Mahaboob Shah In this case there was dispute regarding cutting of reed on the bank
Jan. v. Emperor of river. Allah Dad and his companion were given warning not to
1945 (Indus River cut reed. Ignoring this warning they cut the reed. Altrcation
Case ) started. Quasim Shah shouted out for help and Wali Shah and
Mahbub Shah came up. They had guns in their hands. When Allah
Dad and Hamidullah tried to run away, Wali Shah and Mahbub
Shah came in front of them and Wali Shah fired at Allah Dad
who fell down dead and Mahbub Shah fired at Hamidullah,
110
causing injuries to him. In this case there was common intention

to save Quasim Shah.
Sir Madhavan Nair, “…Care must be taken not to confuse same
or similar intention with common intention, the partition which
divides ‘their bonds’ is often very thin ; nevertheless, the
distinction is real and substantial , and if overlooked , will result
in miscarriage of justice..” Common intention within the meaning
of section 34 implies a pre-arranged plan.
Mahaboob Shah succeeded in his appeal. His conviction for
murder and the sentence of death was set asided.
3 Dec. Pandurang v. The common intention should be prior or antecedent to the
1954 State of occurrence.
Hyderabad Supreme Court observed, “Now in the case of section 34 we think
it is well established that a common intention presupposes prior
concert. It requires a pre-arranged plan because before a man can
be vicariously convicted for the criminal act of another, the act
must have been done in furtherance of the common intention of
them all.
3 Feb. Rishi Deo Pandey Common intention may develop on the spot.
1955 v. State of U.P.
1965 Gurdatta Mal v. This principle that the provisions only lays down the rule or
UGC State of U.P. principle of joint liability and does not create a separate offence
2008 Section 34 does was considered by the Supreme Court in this case. Sections 34
not create distinct and 96 of IPC were involved.
offence. Supreme Court observed, “It is well settled that Section 34 of
the Indian Penal Code does not create a distinct offence: it
only lays down the principle of joint criminal liability”.
Physical Presence and Active Participation
1955 Shree Kantia v. Physical presence and active participation of every person is
S.C. State of Bombay necessary.
1960 J.M. Desai v. In case of offences against property, presence of every person is
S.C. State of Bombay not necessary.
Difference between 34 and 149
25 Nanak Chand v. S.C. observed, “There is a clear distinction between the
Janua The State of provisions of sections 34 and 149 of the Indian Penal Code and
ry, Punjab 118
the two sections are not to be confused….
1955
118
MPPCS J,1993, UPPCS 2006, UPAPO 2007
111
Suresh and Another v. State of Uttar Pradesh

(Date of Judgment –March 2, 2001, Supreme Court)(Sections 34 r/w 302)
Facts
In this case Ramesh and Suresh were brothers. Ramesh was living in his house along with
his wife and four children. There was some land disputes between Ramesh and Suresh. Suresh
along with his brother-in-law made plan for killing of all members of family of Ramesh. In
midnight Suresh along with his brother-in-law Ramji attacked over family of Ramesh and killed
all members except Jitendra (Seven Years) who also suffered injuries but fortunately survived.
Pavitri Devi w/o Suresh was also charged for exhortation. Suresh, Ramji and Pavitri were charged
under sections 302 r/w 34.
Decision
In this Case Supreme Court held that Pavitri Devi was not involved and she was acquitted
and Ramji and Suresh were liable for murder.
Important Points
In this leading case Supreme Court laid down several important points –
(i) Meaning of ‘Criminal act’ - According to section 32 ‘act’ includes omission and according
to section 33 ‘act’ denotes as well as series of acts as single act. This means a criminal act
can be a single act or it can be the conglomeration of a series of acts.
(ii) Juxtaposition of Section 34 – Sections 35 37, 38 are juxtaposition of Section 34. All
sections deal joint liability.
(iii)Vicarious liability -There are two types of vicarious liability namely; (a) vicarious liability
in the criminal jurisprudence (b) vicarious liability in the civil jurisprudence (Law of
Torts). Section 34 of IPC recognises the principle of vicarious liability in the criminal
jurisprudence.
(iv) Meaning of vicarious liability - It makes a person liable for action of an offence not
committed by him but by another person with whom he shared the common intention.
(v) Not substantive offence, only evidence - It is a rule of evidence and does not create a
substantive offence. It means this section itself does not constitute any offence. Only use
of this section is to prove the liability of co-accused. So if there is only one person has
committed crime this section will not be applicable.
(vi) Commonsense Principle -The section gives statutory recognition to the commonsense
principle that if more than two persons intentionally do a thing jointly, it is just the same
as if each of them had done it individually.
(vii) Pre-plan - There is no gainsaying that a common intention pre-supposes prior concert,
which requires a pre- arranged plan of the accused participating in an offence. Such a pre-
concert or pre-planning may develop on the spot or during the course of commission of the
offence but the crucial test is that such plan must precede the act constituting an offence.
Common intention can be formed previously or in the course of occurrence and on a
112
spur of moment. The existence of a common intention is a question of fact in each case to
be proved mainly as a matter of inference from the circumstances of the case.
(viii) Some act must be done by all – Participation of all is necessary. If there is only common
intention but there is no participation, person may be liable under section 109 or 120B but
his matter will not cover under section 34. Even exhortation to another accused would
amount to participation.
Section 34 Supposed section 34

When a criminal act is done by several When a criminal act is done by one person in
persons in furtherance of the common furtherance of the common intention of several
intention of all, each of such persons is liable persons, each of such several persons is liable
for that act in the same manner as if it were for that act in the same manner as if it were done
done by him alone. by all such persons.
Participation of all is necessary. Activity of one is sufficient in furtherance of
common object.
(ix) Presence on the spot is not necessary - binoculars or mobile phones (Para 22) - Due to
scientific development a person may actively involve in commission of crime from far
away (It is my example - In Mumbai attack in 2008 some terrorist in sitting Pakistan were
guiding another terrorist who were directly involve in commission of crime). In this case
the Court said that due to advancement of electronic equipment like binoculars or mobile
phones a person may effectively participate in commission of crime.
(x) Either overt or covert act is sufficient (Para 24) – No need of substantial act. It is enough
that the act is only for guarding the scene. Here covert act means illegal omission.
According to Section 32 act includes illegal omission. The act mentioned in section 34 IPC
need not be an overt act, even an illegal omission to do certain act in certain situation can
amount an act. For example – A co-accused, standing near the victim face to face saw an
armed assailant nearing the victim from behind with a weapon to inflict a flow. The co-
accused did not inform with the idea that the blow should fall on the victim.
(xi) Hence an act, whether overt or covert is indispensable to be done by the co-accused to be
fastened with the liability.
(xii) Barendra Kumar Ghosh Case, Mahbub Shah Case, Pandurang Case, Iftikhar Khan Case
Tukaram Case were also discussed in this case.
Mizaji and Anr. v. State of Uttar Pradesh AIR 1959 SC 572

Section 149 (Second Part)
In this case sections 141(Fourth), 149 and 302 are involve. According to section
141(Fourth),
An assembly of five or more persons is designated an “unlawful assembly”, if the common
object of the persons composing that assembly is-
113
Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain
possession of any property, or to deprive any person of the enjoyment of a right of way…
Facts- In this case there was dispute regarding possession of field. One day Tez Singh
(spear), his son Mizaji (pistol in the fold of dhoti) and three other persons - Maiku ,Subedar and
Machal (lathis) made a plan for acquisition of property forcefully. They reached the field along
with their arms.
They divided themselves into three parties. Maiku was in the field where jowar was sown and he
was ploughing it. Mizaji, Subedar and Machal were in the sugar field and cutting the crop. Tej
Singh was keeping watch. Victim and his parties reached and started to protest to Tej Singh.
Thereupon, all the members of Tej Singh’s party gathered at the place where Tej Singh was and
asked the complainants “to go away otherwise they would be finished”, but they refused to go.
Thereupon Tej Singh asked Mizaji to fire at them and Mizaji fired the pistol which he was carrying
in the fold of his dhoti as a result of which Rameshwar was injured, fell down and died I hour later.
Reason of decision - Two of them were armed one with a spear and the other with a pistol.
The rest were armed with lathis. The evidence is that when the complainants’ party objected to
what the appellants did, they all collected together and used threats towards the complainants' party
telling them to go away otherwise they would be finished and this evidence was accepted by the
High Court. From this conduct it appears that members of the unlawful assembly were prepared
to take forcible possession at any cost and the murder must be held to be immediately connected
with the common object and therefore the case falls under section 149 and they are all guilty of
murder.
114
CHAPTER VII
OFFENCES AGAINST PROPERTY
Theft (Sections 378-382)

Section 378 - Whoever, intending to take dishonestly (Section 24- dishonestly, Section 23-
Wrongful gain or wrongful loss) any moveable property (Sec. 22 and Explanation 1 Animal are
also movable property - Ill. b ) out of the possession (Section 27 and De facto and de jure
possession) of any person (Section 11) without that person’s consent (Section 90 and
Explanation 5), moves (Explanations 3 & 4) that property in order to such taking, is said to
commit theft.
Explanation 1-A thing so long as it is attached to the earth, not being movable property, is not the
subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from
the earth.
Explanation 2.- A moving effected by the same act which affects the severance may be a theft.
Explanation 3.-A person is said to cause a thing to move by removing an obstacle which prevented
it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.-A person, who by any means causes an animal to move, is said to move that
animal, and to move everything which, in consequence of the motion so caused, is moved by that
animal.
Explanation 5.—The consent mentioned in the definition may be express or implied, and may be
given either by the person in possession, or by any person having for that purpose authority either
express or implied.
Illustrations
Illustration (a) – (Explanation I and taking) - A cuts down a tree on Z’s ground, with the intention
of dishonestly taking the tree out of Z’s possession without Z’s consent. Here, as soon as A has
severed the tree in order to such taking, he has committed theft. (Explanation I)
Illustration (b) (Theft of animal) -A puts a bait for dogs in his pocket, and thus induces Z’s dog
to follow it. Here, if A’s intention be dishonestly to take the dog out of Z’s possession without Z’s
consent. A has committed theft as soon as Z’s dog has begun to follow A. ( Pet animals are also
subject matter of theft)
Illustration (c) – (Animal) - A meets a bullock carrying a box of treasure. He drives the bullock
in a certain direction, in order that he may dishonestly take the treasure. As soon as the bullock
begins to move, A has committed theft of the treasure.
115
Illustration (d) – (Possession) - A, being Z’s servant, and entrusted by Z with the care of Z’s plate,
dishonestly runs away with the plate, without Z’s consent. A has committed theft. (De facto
possession – A (Servant), De Jure possession – Z (Owner).
Illustration (e) (Possession) - Z, going on a journey, entrusts his plate to A, the keeper of the
warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not
in Z’s possession. It could not therefore be taken out of Z’s possession, and A has not committed
theft, though he may have committed criminal breach of trust.
Illustration (f) – (Possession) - A finds a ring belonging to Z on a table in the house which Z
occupies. Here the ring is in Z’s possession, and if A dishonestly removes it, A commits theft.
Illustration (g) – (Without possession, no theft) - A finds a ring lying on the highroad, not in the
possession of any person. A by taking it, commits no theft, though he may commit criminal
misappropriation of property.
Illustration (h) – (Taking)- A sees a ring belonging to Z lying on a table in Z’s house. Not
venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring
in a place where it is highly improbable that it will ever be found by Z, with the intention of taking
the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first
moving the ring, commits theft.
Illustration (i) Without dishonest - A delivers his watch to Z, a jeweller, to be regulated. Z carries
it to his shop. A, not owing to the jeweller any debt for which the jeweller might lawfully detain
the watch as a security, enters the shop openly, takes his watch by force out of Z’s hand, and carries
it away. Here A, though he may have committed criminal trespass and assault, has not committed
theft, in as much as what he did was not done dishonestly.
Illustration (j) Theft of own property -If A owes money to Z for repairing the watch, and if Z
retains the watch lawfully as a security for the debt, and A takes the watch out of Z’s possession,
with the intention of depriving Z of the property as a security for his debt, he commits theft, in as
much as he takes it dishonestly.
Illustration (k) Theft of own property - Again, if A, having pawned his watch to Z, takes it out
of Z’s possession without Z’s consent, not having paid what he borrowed on the watch, he commits
theft, though the watch is his own property in as much as he takes it dishonestly.
Illustration (l) Temporary Taking - A takes an article belonging to Z out of Z’s possession,
without Z’s consent, with the intention of keeping it until he obtains money from Z as a reward for
its restoration. Here A takes dishonestly; A has therefore committed theft.
Illustration (m) Implied Consent - A, being on friendly terms with Z, goes into Z’s library in Z’s
absence, and takes away a book without Z’s express consent for the purpose merely of reading it,
and with the intention of returning it. Here, it is probable that A may have conceived that he had
Z’s implied consent to use Z’s book. If this was A’s impression, A has not committed theft.
Illustration (n) Implied Consent - A asks charity from Z’s wife. She gives A money, food and
clothes, which A knows to belong to Z her husband. Here it is probable that A may conceive that
Z’s wife is authorised to give away alms. If this was A’s impression, A has not committed theft.
116
Illustration (o) Section 27 Wife is equal to Clerk and servant - A is the paramour of Z’s wife.
She gives a valuable property, which A knows to belong to her husband Z, and to be such property
as she has no authority from Z to give. If A takes the property dishonestly, he commits theft.
Illustration (p) No Dishonest Intention- A, in good faith, believing property belonging to Z to be
A’s own property, takes that property out of B’s possession. Here, as A does not take dishonestly,
he does not commit theft.
Difference between Larceny and Theft

Larceny Theft
Only permanent gain or loss is Either temporary or permanent gain or loss is
necessary. sufficient.
Pyare Lal Bhargava v. State of Rajasthan119, Oct. 22, 1962 Supreme Court
Facts - Ram Kumar Ram obtained permission from the Alwar Government to supply
electricity in November 24, 1945. Ram Kumar Ram was a friend of Pyarelal Bhargava, who was
a Superintendent in the Chief Engineers Office, Alwar. At the instance of Ram Kumar Ram,
Pyarelal Bhargava got the file Ex. PA/ 1 from the Secretariat and took the file to his house and
made it available to Ram Kumar Ram and some documents were substituted. It was again put in
‘Office’.
It is not necessary that the taking should be of a permanent character, or that the accused
should have derived any profit. A temporary removal of an office file from the office of a Chief
Engineer and making it available to a private person for a day or two amounts to the offence of
theft.
Arguments of Appellant Decision of Court
Possession The Superintendent(Pyare Lal) The file was in the Secretariat of the
was in possession of the file and Department concerned, which was in charge
therefore he could not have taken of the Chief Engineer. The appellant was only
the file from himself one of the officers working in that department
and it cannot, therefore, be said that he was in
legal possession of the file.
There was no intention to take it To commit theft one need not take movable
Temporary dishonestly as he had taken it property permanently out of the possession of
only for the purpose of showing another with the intention not to return it to
the documents to Ram Kumar him. It would satisfy the definition if he took
Ram and returned it the next day any movable property out of the possession of
to the office and therefore he had another person though he intended to return it
not taken the said file out of the later on. Illustration 378(b) and (l).
possession of any person.
119
AIR 1963 SC 1094.
117
Dishonestly He did not intend to take it The appellant unauthorisedly took the file
(Wrongful dishonestly, as he did not receive
from the office and handed it over to Ram
gain or any wrongful gain or cause any Kumar Ram. He had, therefore, unlawfully
wrongful wrongful loss to any other taken the file from the department, and for a
loss person. short time he deprived the Engineering
Department of the possession of the said file.
The loss need not be caused by a permanent
deprivation of property but may be caused
even by temporary dispossession, though the
person taking it intended to restore it sooner
or later. A temporary period of deprivation or
dispossession of the property of another
causes loss to the other.
Illustration (b)-Temporary removal of a dog which might ultimately be returned to the owner or
Illustration (l)-the temporary taking of an article with a view to return it after receiving some
reward constitutes theft, indicating thereby that temporary deprivation of another person of his
property causes wrongful loss to him.
Decision – Pyare Lal Bhargava was liable for theft.
K N Mehra v. State of Rajasthan 120(February 11, 1957. Supreme Court)

(Theft of Aircraft) (Jodhpur to Pakistan)
Both Mehra and Phillips were cadets on training in the Indian Air Force Academy, Jodhpur.
The prosecution is with reference to an incident which is rather extraordinary being for alleged
theft of an aircraft, which, according to the evidence of the Commanding 'Officer, P.W. 1, has
never so far occurred. The alleged theft was on May 14, 1952. Phillips was discharged from the
Academy just the previous day, i.e., May 13, 1952, on grounds of misconduct. Mehra was a cadet
receiving training as a Navigator. The duty of a Navigator is only to guide a pilot with the help of
instruments and maps. It is not clear from the evidence whether Phillips also had been receiving
training as a Navigator. It is in evidence, however, that he knew flying. On May 14, 1952, Phillips
was due to leave Jodhpur by train in view of his discharge. Mehra was due for flight in a Dakota
as part of his training along with one Om Prakash, a flying cadet. It is in evidence that he had
information about it. The authorised time to take off for the flight was between 6 a.m. to 6-30 a.m.
The cadets under training have generally either local flights which mean flying area of about 20
miles from the aerodrome or they may have cross-country exercises and have flight in the country
through the route for which they are specifically authorised. On that morning admittedly Mehra
and Phillips took off, not a Dakota, but a Harvard H.T. 822. This was done before the prescribed
time, i.e., at about 5 a.m. without authorisation and without observing any of the formalities, which
are prerequisites for an aircraft-flight. It is also admitted that some time in the forenoon the same
120
AIR 1957 SC 369
118
day they landed at a place in Pakistan about 100 miles away from the Indo-Pakistan border. It is
in the evidence of one J. C. Kapoor who was the Military Adviser to the Indian High Commissioner
in Pakistan at Karachi, that Mehra and Phillips contacted him in person on the morning of May 16,
1952, at about 7 a.m. and informed him that they had lost their way and force-landed in a field,
and that they left the plane there. They requested for his help to go back to Delhi. Thereupon
Kapoor arranged for both of them being sent back to Delhi in an Indian National Airways plane
and also arranged for the Harvard aircraft being sent away to Jodhpur. While they were thus on
their return to Delhi on May 17, 1952, the plane was stopped at Jodhpur and they were both
arrested.
(1) (1)Taking- Flying of aircraft was taking.

(2) Movable Property - Aircraft was movable property.
(3) Dishonestly (Wrongful gain or wrongful loss) -In the present case there can be no
reasonable doubt that the taking out of the Harvard aircraft by the appellant for the
unauthorised flight has in fact given the appellant the temporary use of the aircraft for his
own purpose and has temporarily deprived the owner of the aircraft, viz., the Government,
of its legitimate use for its purposes, i.e., the use of this Harvard aircraft for the Indian Air
Force Squadron that day. Such use being unauthorised and against all the regulations of
aircraft-flying was clearly a gain or loss by unlawful means. Further, the unlawful aspect
is emphasised by the fact that it was for flight to a place in Pakistan.
(4) Out of possession – It was out of the possession of Government of India (Indian Air Force
Academy).
(5) Without Consent – Both were not authorised for flying Harvard T-22.
Decision – Conviction was upheld. K N Mehra was punished under section 379.
Avtar Singh v. State of Punjab (Supreme Court 24 August, 1964)

Electricity is not movable property. So it is not subject matter of theft. Dishonest
abstraction of electricity is an offence under Electricity Act, 1910.
Dinner Party and Theft (De facto and De jure Possession)

There are two types of possession namely De facto and De jure Possession. For example
A the master of house gives a dinner party; the plate and other things on the table are in his de jure
possession though from time to time they are in the de facto possession of his guests or servants.
Theft of own property
For theft possession is deciding factor rather than ownership. If owner takes his property
from the possession of another person dishonestly without his consent, he has committed the theft.
Illustration (j) and (k) mekaes this things clear.
(j) Theft of own property -If A owes money to Z for repairing the watch, and if Z retains the
watch lawfully as a security for the debt, and A takes the watch out of Z’s possession, with the
119
intention of depriving Z of the property as a security for his debt, he commits theft, in as much as
he takes it dishonestly.
(k) Theft of own property - Again, if A, having pawned his watch to Z, takes it out of Z’s
possession without Z’s consent, not having paid what he borrowed on the watch, he commits theft,
though the watch is his own property in as much as he takes it dishonestly.
Theft of property of husband by wife
Butchit (1893)17 Mad 401 Case Madras High Court
A wife during her husband’s absence removed his property and handed over her
paramour. Both of them convicted for theft. In India there is no presumption regarding unity of
husband and wife. If the wife, removing the husband’s property from his house, does so with
dishonest intention, she is guilty of theft.
120
Robbery (Section 390)

Section 390 - Robbery is either theft or extortion. Robbery is aggravated form of theft or
extortion. There are two types of robbery namely, (1) Robbery by theft & (2) Robbery by extortion
When theft becomes robbery – There are five essentials of theft. If two more conditions are added
in theft then theft converted into robbery.
Section Theft (1) Dishonest intention
378 (2) Movable Property
(3) Out of possession
(4) Without consent
(5) Moves that property
Section Robbery (6) Voluntarily (section 39) causes or attempts to cause
390 (a) death or hurt or wrongful restraint or
(b) fear of instant death or hurt or wrongful
restraint
(7) Why death….?
(a) in order to committing theft or
(b) in committing theft or
(c) carrying away the property obtained in theft or
(d) attempting to carrying away the property
obtained in theft
Robbery (1) Dishonest intention
(Theft + Robbery) (2) Movable Property
(3) Out of possession
(4) Without consent
(5) Moves that property
(6) Voluntarily (section 39) causes or attempts to cause
(a) death or hurt or wrongful restraint or
(b) fear of instant death or hurt or wrongful
restraint
(7) Why death….?
(8) in committing theft or
(9) carrying away the property obtained in theft or
(10) attempting to carrying away the property obtained in
theft
When extortion becomes robbery –

There are six essentials of extortion. If three more conditions are added in extortion then extortion
converted into robbery.
121
Section Extortion (1) Dishonest intention

383 (2) Putting any person into fear
(3) Fear of injury (section 44- Mind, body, reputation or
property) to the person so put into fear or any other person
(4) Dishonest inducement
(5) to deliver
(6) Any property (Movable or immovable) or valuable
security (section 30) or anything signed or sealed which may
be converted into valuable security
Robbery (7) Offender is in the presence of the person put in fear
(8) There must be in fear of instant death or instant hurt or
instant wrongful restraint to that person or to some other
person
(9) Then and there delivery
Section Robbery (1) Dishonest intention
390 (Extortion + (2) Putting any person into fear
Robbery) (3) Fear of injury (section 44- Mind, body, reputation or
property) to the person so put into fear or any other person
(4) Dishonest inducement
(5) to deliver
(6) Any property (Movable or immovable) or valuable
security (section 30) or anything signed or sealed which may
be converted into valuable security
(7) Offender is in the presence of the person put in fear
(8) There must be in fear of instant death or instant hurt or
instant wrongful restraint to that person or to some other
person
(9) Then and there delivery
Distinction between Theft & Extortion

S.No. Theft Extortion
1 Movable property (Section 22) Any property (Movable or immovable) or valuable
security (section 30) or anything signed or sealed
which may be converted into valuable security
2 Taking Delivery
3 Without Consent With unlawful consent
4 No fear of injury Fear of injury
122
Jadunandan Singh v. Emperor121

(Difference between ‘taking’ and ‘delivery’)
Facts –
(1) Narain Dusadh and Sheonadan Singh, were returning after the inspection of their fields.
The two petitioners and others assaulted them.
(2) The petitioner Alakh gave bhala blow to Narain on the right leg, and then other people
assaulted him with lathis.
(3) Jadunandan and others then assaulted Sheonandan.
(4) Jadunandan after this forcibly TOOK the thumb impressions of Narain on one piece of
blank paper, and of Sheonandan on three blank papers.
Magistrate – (1) Conviction of Alakh – 324 (2) Conviction of Jadunandan – Section 384 and
Section 323
High Court - Cases frequently occur which turn on the difference between the giving and the
taking of thumb impressions. But in this case there was no delivery. So it was not extortion. In this
case taking was involved. But this taking of documents was not out of possession of victim. So it
was not theft. In this case the use of criminal force or an assault punishable under Section 352, IPC
was involved. So Jadunandan was punished under section 352 of IPC.
Sekar v. Arumugham122
Sekar had loan from Bank of Madura for purchase of Ashok Leyland Lorry. He had
executed a deed of hypothecation in favour of the bank and the said lorry was security. The bank
was continues to be the owner of the lorry.
The petitioner defaulted in payment of the monthly installments and because of this, the respondent
bank seized the lorry on 30-7-1998.
When the respondent has been empowered to seize the lorry under Clause 14(e), it cannot be said
that the respondent has committed theft of the lorry when the petitioner has committed default in
payment of installments, the bank has seized the lorry.
State of Karnataka v. Basavegowda123

Facts - Basavegowda was the husband of Bhagyamma and it was alleged that about 10
days after their marriage, on 30-4-1987, he took her to the Burudala Bore forest under the pretext
of going for the wedding of a friend and that he threatened to kill her unless she parted with all her
ornaments. Bhagyamma, finding no other option, removed all her jewellery valued at around Rs.
121
AIR 1941 Pat. 129
122
(2000) Cr. L.J 1952 (Mad.)
123
(1997) Cr.L.J 4386 (Kant)
123
11,000/- and handed the same over to the accused who wrapped the same in a handkerchief and
put it in his pocket. Thereafter, the accused is alleged to have assaulted her with a big stone
whereupon, Bhagyamma screamed. The accused continued to assault her with his fists and seeing
two other persons coming there, he ran away. Bhagyamma was thereafter taken to the town and
ultimately to the hospital. He was charged with offences punishable under Sections 307 and
392.Majority of witnessed turned hostile.
Decision - Accused was punished under section 325 and section 384.
Reason- She stated that ornaments were in her custody and on her person and that the accused
under threat, took the ornaments away from her. If the custody of the ornaments has come to the
accused under these circumstances, then his possession becomes clearly unlawful.
The Court said, “We need to add here that ornaments and personal property belonging to a wife
necessarily constitute her personal possessions and divesting a wife of these against her wishes or
without her consent would clearly bring the case within the ambit of a criminal offence. It is a
misnomer to argue that irrespective of such a situation, that the possession of the wife’s personal
ornaments by husband still continues to be lawful. In our considered view, the extortion of the
ornaments from Bhagyamma under threat and the subsequent recovery of these ornaments from
the custody of the accused would clearly make him liable for an offence of extortion”.
Cases in Case Material of Law Faculty of D.U.
Supreme Pyare Lal Bhargava v. State of Theft was committed.

Court Rajasthan
(1962) (Temporarily removal of document
from office)
Pat. H.C. Jadunandan Singh v. Emperor Difference between ‘taking’ and
(1941) (Forcefully taking thumb impression) ‘delivery’. Not convicted for extortion.
He was convicted under section 352.
Mad. Sekar v. Arumugham It was not theft.
H.C.(2000) (Recovery of Bank Loan)
Kant.H.C. State of Karnataka v. Basavegowda Husband was punished for extortion.
1997 (Extortion with his own wife)
Dacoity (Section 391)

(1) There are following essential ingredients of dacoity –
(2) There must be robbery (section 390)
(3) That robbery must be committed or attempted to commit or aiding to commit robbery
(4) By five or more persons (minimum five and maximum is unlimited)
Conjointly – All persons must committed robbery conjointly.
124
Difference between Robbery and Dacoity

Deciding factors to make differences between robbery and dacoity are number of persons and share
of common intention of committing robbery. Suppose that 100 persons are committing robbery
without conjointly then that is merely robbery and it cannot convert into dacoity merely due to
number of persons of more than five.
(i) Every dacoity is robbery but every robbery is not dacoity.

(ii) In dacoity minimum number is five while in case of robbery minimum number is one.
(iii)Only that robbery can convert into dacoity when number of persons is five or more and
they are doing conjointly. If number of persons is five or more and they are not conjointly
to each other that is merely robbery.
Criminal Misappropriation
(Sections 403 and 404)
Section 403. Dishonest misappropriation of property - Whoever dishonestly misappropriates
or converts (DMC- Delhi Municipal Corporation. D- Dishonestly, M- Misappropriates, C-
Converts) to his own use any movable property, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
(i) Ingredients – There are following essential ingredients of criminal misappropriation –

(ii) Dishonestly (Intention to cause wrongful gain or wrongful loss)
(iii)Misappropriation or conversion
(iv) For his own use
(v) Moveable property (Section 22)
Illustrations
(a) A takes property belonging to Z out of Z’s possession, in good faith, believing, at any time
when he takes it, that the property belongs to himself. A is not guilty of theft;
but if A, after discovering his mistake, dishonestly appropriates the property to his own
use, he is guilty of an offence under this section.
(b) A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes away a
book without Z’s express consent. Here, if A was under the impression that he had Z’s
implied consent to take the book for the purpose of reading it, A has not committed theft.
125
But, if A afterwards sells the book for his own benefit, he is guilty of an offence under this
section.
(c) A and B, being joint owners of a horse, A takes the horse out of B’s possession, intending
to use it. Here, as A has a right to use the horse, he does not dishonestly misappropriate it.
But, if A sells the horse and appropriates the whole proceeds to his own use, he is guilty
of an offence under this section.
Explanation I - A dishonest misappropriation for a time only is a misappropriation with the

meaning of this section.
Illustration - A finds a Government promissory note belonging to Z, bearing a blank endorsement.
A, knowing that the note belongs to Z, pledges it with a banker as a security for a loan, intending
at a future time to restore it to Z. A has committed an offence under this section.
Explanation 2 - A person who finds property not in the possession of any other person, and takes
such property for the purpose of protecting it for, or of restoring it to, the owner does not take or
misappropriate it dishonestly, and is not guilty of an offence;
but he is guilty of the offence above defined, if he appropriates it to his own use, when he knows
or has the means of discovering the owner, or before he has used reasonable means to discover
and give notice to the owner and has kept the property a reasonable time to enable the owner to
claim it. What are reasonable means or what is a reasonable time in such a case, is a question of
fact. It is not necessary that the finder should know who is the owner of the property, or that any
particular person is the owner of it; it is sufficient if, at the time of appropriating it, he does not
believe it to be his own property, or in good faith believe that the real owner cannot be found.
Illustrations
(a) A finds a rupee on the high road, not knowing to whom the rupee belongs. A picks up the
rupee. Here A has not committed the offence defined in this section.
(b) A finds a letter on the road, containing a bank note. From the direction and contents of the
letter he learns to whom the note belongs. He appropriates the note. He is guilty of an offence
under this section.
(c) A finds a cheque payable to bearer. He can form no conjecture as to the person who has lost
the cheque. But the name of the person, who has drawn the cheque, appears. A knows that this
person can direct him to the person in whose favour the cheque was drawn. A appropriates the
cheque without attempting to discover the owner. He is guilty of an offence under this section.
(d) A sees Z drop his purse with money in it. A picks up the purse with the intention of restoring
it to Z, but afterwards appropriates it to his own use. A has committed an offence under this
section.
(e) A finds a purse with money, not knowing to whom it belongs; he afterwards discovers that it
belongs to Z, and appropriates it to his own use. A is guilty of an offence under this section.
(f) A finds a valuable ring, not knowing to whom it belongs. A sells it immediately without
attempting to discover the owner. A is guilty of an offence under this section.
126
Criminal Misappropriation and Theft
Criminal misappropriation is very close to theft. There are following relation between both –
Theft Criminal Misappropriation
1 Movable Property Movable Property
2 Dishonest Intention Dishonest Intention
3 Temporary or Permanent Temporary or Permanent
Illustrations (b) and (l) and Explanation I
Pyare Lal Bhargawa Case.
1 Taking Taking /Found
(a) A TAKES property belonging to Z out of
Z’s possession, in good faith, believing, at any
time when he takes it, that the property belongs
to himself. A is not guilty of theft; but if A, after
discovering his mistake, dishonestly
appropriates the property to his own use, he is
guilty of an offence under this section.
(e) A FINDS a purse with money, not knowing
to whom it belongs; he afterwards discovers that
it belongs to Z, and appropriates it to his own
use. A is guilty of an offence under this section.
2 Out of possession Out of possession / Without possession
Above discussed illustration namely (a) and (e).
3 Dishonest intention Dishonest intention or in beginning good faith
and later on dishonest intention.
127
Criminal Breach of Trust

(Sections 405-409)
Section 405 - Criminal breach of trust –
(1) Whoever, being in any manner entrusted with property, or with any dominion over
property,
(2) The person who was entrusted or have dominion over property
a. dishonestly misappropriates or converts (DMC) to his own use that property, or
b. dishonestly uses or disposes of that property or wilfully suffers any other person so
to do in violation of
(i) any direction of law prescribing the mode in which such trust is to be discharged, or
(ii) any legal contract, express or implied, which he has made touching the discharge of such
trust, commits “criminal breach of trust”.
Comments
(1) Getting of property in two ways -In criminal breach of trust person gets property in two
ways –
a. Either he is entrusted possession of property or
b. He is given dominion of property.
(2) Mens Rea – Dishonestly (section 24 –Intention to cause wrongful gain or wrongful loss)
denotes mens rea.
(3) What is he (abetting another person - wilfully suffers any other person so to do) doing
with those properties?
a. dishonestly misappropriates or converts (DMC) to his own use that property
b. dishonestly uses or disposes of that property
(4) Against which?
a. against direction of law or
b. against legal contract.
Jaikrishnadas Manohardas Desai (J.M.Desai) and Another v. State of Bomaby 124

(Section 34 and Section 405)
Facts - Jaikrishnadas Manohardas Desai was the Managing Director and the second
appellant a Director and technical expert of a cloth dyeing concern known as Parikh Dyeing and
Printing Mills Ltd. The company entered into a contract with the Textile Commissioner
undertaking to dye a large quantity of cloth which was supplied to the company for that purpose.
In pursuance of the contract certain quantity of cloth was dyed and delivered to the Textile
Commissioner by the company but it failed to dye and deliver the balance of cloth which remained
in its possession and was not returned to the Textile Commissioner in spite of repeated demands.
124
AIR 1960 SC 889
128
Ultimately the two appellants were prosecuted for criminal breach of trust under section 409 read
with section 34 of the Indian Penal Code.
Trial Court –
They were convicted for the same in a trial by jury.
High Court –
In appeal the High Court reviewed the evidence on the ground of misdirection to the jury
but found that the two appellants were liable to account for the cloth over which they had
dominion, and having failed to do so each of them was guilty of the offence of criminal breach of
trust. The High Court refused to accept the appellants’ plea that the cloth was old and was
eaten up by white ants and moths.
Supreme Court –
Section 405- To establish a charge of criminal breach of trust, the prosecution was not
bound to prove the precise mode of conversion, misappropriation or misapplication by the
accused of the property entrusted to him or over which he had dominion. The principal ingredient
of the offence of criminal breach of trust being dishonest misappropriation the mere failure of the
accused to account for the property entrusted to him might not be the foundation of his
conviction in all cases but where he was unable to account and rendered an explanation for his
failure which was untrue, an inference of misappropriation with dishonest intent might
readily be made.
Section 34 (No need of physical presence in all cases)- Shreekantiah Ramayya
Munipalli v. The State of Bombay was cited on behalf of first appellant in which Supreme Court
had held that for application of Section 34 presence of accused is necessary.
But in this case Supreme Court held that physical presence of the accused at the scene of offence
of the offender sought to be rendered liable under section 34 is not, on the words of the
statute, one of the conditions of its applicability in every case.
But this participation need not in all cases be by physical presence. In offences involving physical
violence, normally presence at the scene of offence of the offenders sought to be rendered liable
on the principle of joint liability may be necessary, but such is not the case in respect of other
offences where the offence consists of diverse acts which may be done at different times and
places.
Decision of Supreme Court – Supreme Court dismissed the appeal and held that conviction
of both persons under section 409 r/w 34 by High Court was justified. It was accepted that First
appellant had dominion over property.
Cheating (Section 415)

Section 415- Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces
(D FDI) the person so deceived to deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the person so deceived to do or omit
to do anything which he would not do or omit if he were not so deceived, and which act or
129
omission causes or is likely to cause damage or harm to that person in body, mind, reputation or
property, is said to “cheat”.
Explanation.-A dishonest concealment of facts is a deception within the meaning of this section.
Illustrations
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus
dishonestly induces Z to let him have on credit goods for which he does not mean to pay.
A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that
this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z
to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing
that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and
pay for the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps no money,
and by which A expects that the bill will be dishonored, intentionally deceives Z, and
thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally
deceives Z, and thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend
to him and thereby dishonestly induces Z to lend him money. A not intending to repay it.
A cheats.
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of
indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to
advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining
the money, intends to deliver the indigo plant, and afterwards breaks his contract and does
not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.
(h) A intentionally deceives Z into a belief that A has performed A’s part of a contract made
with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A
cheats.
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no
right to the property, sells or mortgages the same to Z, without disclosing the fact of the
previous sale and conveyance to B, and receives the purchase or mortgage money from Z.
A cheats.
There are following essential ingredient of section 415 –
(i) Deception- There must be deception of any person. (A person deceives another when he
causes to believe what is false or misleading as to matter of fact, or leads into error).
(ii) Property - fraudulently or dishonestly induces (FDI) the person so deceived
a. to deliver any property to any person, or
130
b. to consent that any person shall retain any property,

(iii)Injury (To do or omit to do) - intentionally induces the person so deceived to do or omit
omission causes or is likely to cause damage or harm to that person in body, mind,
reputation or property.
Ram Jas v. State of U.P. (Date of judgment 11/09/1970)125

The ingredients required to constitute the offence of cheating are :--
(i) There should be fraudulent or dishonest inducement of a person by deceiving him;

(ii)
a. The person so deceived should be induced to deliver any property to any person, or
to consent that any person shall retain any property; or
b. The person so deceived should be intentionally induced to do or omit to do anything
which he would not do or omit if he were not so deceived; and
(iii)In cases covered by (ii) (b), the act or omission should be one which causes or is likely to
cause damage or harm to the person induced in body, mind, reputation or property.
Mahadev Prasad v. State of Bengal (1954 Supreme Court ) (Breach of Contract v.

Cheating)
Facts
Mahadev Prasad agreed to purchase from the complainant Dulichand Kheria 25 ingots of
tin on the 5th May 1951. Price was to be paid by the Appellant against delivery. The Appellant
took delivery of the ingots but kept the Jamadar awaiting and did not pay the price to him. The
Jamadar waited for a long time. The Appellant went out and did not return to the Guddi and the
Jamadar ultimately returned to the complainant and reported that no payment was made though
the ingots were taken delivery of by the Appellant. He had no sufficient money which he knew.
The Additional Presidency Magistrate,
The Additional Presidency Magistrate, Calcutta held that the charge against the Appellant was
proved and convicted him and sentenced him as above. The Appellant took an appeal to the High
Court against this conviction and sentence passed upon him.
High Court
The High Court dismissed the appeal and confirmed the conviction and sentence passed upon the
Appellant by the Additional Presidency Magistrate, Calcutta.
Supreme Court
Supreme Court accepted the view of High Court.
Breach of Contract -The High Court observed rightly that if the Appellant had at the time he
promised to pay cash against delivery an intention to do so, the fact that he did not pay would not
convert the transaction into one of cheating.
125
Available at https://www.sci.gov.in/jonew/judis/1333.pdf (Visited on 08 /11/2018).
131
Cheating - But if on the other hand he had no intention whatsoever to pay but merely said that he
would do so in order to induce the complainant to part with the goods then a case of cheating
would be established.
Supreme Court
(1) No miscalculation - There was no question of any miscalculation made by the Appellant in
the matter of his ability to pay the cash against delivery. He knew fully well what his commitments
were, what moneys he was going to receive from outside parties and what payments he was to
make in respect of his transactions upto the 4th May 1951.
(2) Attempt to settlement- The anxiety to arrive at a settlement could easily be explained by the
fact that the Appellant knew that he had taken delivery of the ingots without payment of cash
against delivery and the only way in which he would get away from the criminal liability was to
arrive at a settlement with the complainant.
(3) Convicted under section 420 - The Appellant was therefore rightly convicted of the offence
under section 420 of the Indian Penal Code and both the Courts below were right in holding that
he was guilty of the said offence and sentencing him to one year’s rigorous imprisonment as they
did.
Akhil Kishor Ram v. Emperor (AIR 1938 Pat. 185)

(Vashi Karan Mantra)(Love Sex and Dhokha)
Akhil Kishor Ram was doing his business. He advertised “Gupta Mantra” and claimed that
person will achieve his desire. In case of non-success reward for 100 rs. was advertised.
Object of Charm - It was claimed that the objects which cannot be achieved by spending lacs of
rupees may be had by repeating this Mantra seven times. There is no necessity of undergoing any
hardship to make it effective. It is effective without any preparation. She whom you want may be
very hard-hearted and proud, but she will feel a longing for you and she will want to be for ever
with you, when you read this Mantra. This is a “Vashi Karan Mantra.” It will make you fortunate,
give you service, and advancement, make you victorious in litigation, and bring you profits in
trade. A reward of Rs. 100, if proved fallible.
Method to read formula - Read the Mantra seven times and look at the moon for fifteen minutes
without shutting up your eyes even for a moment. Have a sound sleep with desired object in your
heart after that and you will succeed.
Decision- Finally he was convicted for cheating.
Sri Bhagwan S.S.V.V.Maharaj v. State of A.P. AIR 1999 SC 2332

Sri Bhagwan S.S.V.V.Maharaj represented to have divine healing powers through his
touches, particularly of chronic diseases. Complainant approached him for healing his 15 year old
daughter who is congenitally a dumb child. Appellant assured the complainant that the little girl
would be cured of her impairment through his divine powers. He demanded a sum of Rs.1 lac as
consideration to be paid in instalments. The first instalment demanded was Rs.10,000/- which,
after some bargaining, was fixed at Rs.5,000/-. Complainant paid that amount and later he paid a
132
further amount of Rs.1,000/- towards incidental expenses. He waited eagerly for improvement of
his dump child till 1994 which was the time limit indicated by the appellant for the girl to start
speaking. But he could not get result.
In the meanwhile he got the news that he had cheated several persons and earned more than one
crore of rupees. It was then that the complainant realized the fraud committed by the appellant.
Hence a complaint was lodged with the police for cheating.
Magistrate
Magistrate ordered for re-investigation the case.
The Magistrate took cognizance of the offence on receipt of the said report and issued warrant of
arrest against the appellant. Appellant moved the High Court for quashing the proceedings on two
grounds.
High Court
First is that the Magistrate has no jurisdiction to order reinvestigation after receipt of the first
report of the police, without affording an opportunity to the appellant. Second is that allegations
of the complainant would not constitute an offence of cheating. But the High Court dismissed the
petition for which the impugned order was passed.
Supreme Court
(1) Power of the police to conduct further investigation, after laying final report, is recognised
under section 173(8) of the Code of Criminal Procedure.
(2) For the aforesaid reasons, we are unable to interfere with the order passed by the magistrate.
Appeal is accordingly dismissed.
133
CHAPTER VIII
Attempt (Section 511)
Inchoate crime
An inchoate offense, preliminary crime, or inchoate crime, incomplete crime is a crime of
preparing for or seeking to commit another crime. The most common example of an inchoate
offense is “attempt”. Abetment and conspiracy are also example of inchoate crime.
Section 511 (Residuary Section)

“Section 511- Punishment for attempting to commit offences punishable with
imprisonment for life or other imprisonment.-
Whoever attempts to commit an offence punishable by this Code with imprisonment for life or
imprisonment, or to cause such an offence to be committed, and in such attempt does any act
towards the commission of the offence, shall, where no express provision is made by this Code
for the punishment of such attempt, be punished with imprisonment of any description provided
for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case
may be, one-half of the longest term of imprisonment provided for that offence, or with such fine
as is provided for the offence, or with both.
Illustrations
(a) Empty box Theft Impossible Theory
(b) Empty pocket Theft Impossible Theory
(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening
the box, that there is no jewel in it. He has done an act towards the commission of theft,
and therefore is guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in
the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this
section.”
Section 511 can be elaborated with the help of following points -

(a) Residuary Section (……where no express provision is made by this Code for the
punishment of such attempt….)
There are four types of provisions under IPC namely,
a. Same section for offence and attempt – Same sections which deal offence and
attempt within own sphere and provide same punishment. For example Sections
121, 124, 124A, 161 &196 etc.
b. Different sections- In second category those provisions come which discuss
separately for commission of offence (section 302) and attempt to commission of
134
offence (section 307). There are also different punishment for commission of
offence and attempt to commission of offence.
c. Only attempt is an offence while actual completion of act is not an offence. For
example section 309.
d. No specific provision for attempt – There are several offences for which there is
no specific provisions for attempt. For example theft (sections 378 – 382). For such
types offences section 511 has been provided.
e. Section 511 covers attempt for all types of offences for which there is no specific
provisions which deals attempt.
(b) Limited application (……with imprisonment for life or imprisonment……..)
a. This section will be applicable only offence is punishable either with imprisonment
for life or imprisonment.
b. If any offence is punishable only either with death sentence or fine section 511 will
not be applicable.
(c) Half Punishment
a. 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.
b. ….. one-half of the imprisonment for life (Half of 20 years – 10 years) or, as the
case may be, one-half of the longest term of imprisonment provided for that offence
(Section 376B – Minimum 2 years and maximum seven years –Half of maximum
punishment i.e. three & half years), or with such fine ( Full fine , rather than half
of fine) as is provided for the offence, or with both.
(d) Meaning of attempt
a. ……….. does any act towards the commission of the offence…..
b. There are four stages of crime-
(e) Intention to commit crime (Not punishable) - Intention is mental status, which cannot be
traced, so mere intention is not punishable.
(f) Preparation to commit crime (Not punishable except in few cases – Section
122,126,223-235, 242, 243, 257, 259, 266 & 399) - Generally preparation is also not
punishable. But there are some exceptional cases when at the stage of preparation, offence
is punishable, namely, 1. Preparation to wage war against the Government (Section 122)
2. Any one commits damages to the property and destruction of property within the
territories of our country and the country which is with peace with our government (Sec.
126) 3. Preparation for counterfeiting of coins or Government Stamps (Sections 233 to
235), 255 and 257. 4. Possessing counterfeit coins, false weights or measurements and
forged documents (Section 242, 243, 259, 266 and 474) 5. Making preparation to commit
dacoity (Section 399)
a. Attempt to commit crime – It is punishable in all cases.
b. The actual commission of crime – It is punishable in all cases.
135
Definition of Attempt
Sir James Stephen
“An act done with intent to commit that crime, and forming part of a series of acts which would
constitute its actual commission if it were not interrupted. The point at which such a series of acts
begins cannot be defined, but depends upon the circumstances of each particular case.”
Abhayanand Mishra v. State of Bihar (1961)
Justice Raghubar Dayal,
“The distinction between preparation and attempt may be clear in some cases, but, in most of the
cases, the dividing line is very thin. Nonetheless, it is a real distinction. The crucial test is whether
the last act, if uninterrupted and successful, would constitute a crime.
Difference between preparation and attempt

As a rule in case of preparation person will not liable while in case of attempt person will be liable.
So to establish clarity between preparation and attempt following principles have been accepted.
It depends upon judge in which case he is going to apply which principle. These are following
principles –
(I) Proximity Rule (II) Doctrine of Locus Paenitentiae (III) Impossibility Test (IV) Social Danger
Test (V) Equivocality Test
(I) Cogitationis Poenam Nemo Patitus (Proximity Rule)

No man can safely be punished for his guilty purpose, save so far as they have manifested
themselves in overt acts which themselves proclaim his guilt. Proximity must be not in relation to
time and action but to intention.
(1) Abhayanand Mishra v. State of Bihar (24 April,1961 S.C. Justice Raghubar Dayal).
(2) Om Prakash v. State of Punjab (24 April,1961 S.C. Justice Raghubar Dayal).
(3) Sudhir Kumar Mukherjee v. State of West Bengal, 1973
(4) State of Maharashtra v. Mohammad Yakub
Abhayanand Mishra v. State of Bihar126

(Sections 420 r/w 511)
Facts - The appellant applied to the Patna University for permission to appear at the 1954 M. A.
Examination in English as a private candidate, representing that he was a graduate having obtained
his B.A. Degree in 1951 and that he had been teaching in a certain school. In support of his
application, he attached certain certificates purporting to be from the Headmaster of the School,
and the Inspector of Schools. The University authorities accepted the appellant’s statements and
gave permission and wrote to him asking for the remission of the fees and two copies of his
126
24 April,1961 S.C. Justice Raghubar Dayal
136
photograph. The appellant furnished these and on April 9, 1954, proper admission card for him
was dispatched to the Headmaster of the School.
Information reached the University about the appellant’s being not a graduate and being not a
teacher. Inquiries were made and it was found that the certificates attached to the application were
forged, that the appellant was not a graduate and was not a teacher and that in fact he had been
debarred from taking any University examination for a certain number of years on account of his
having committed corrupt practice at a University examination. In consequence, the matter was
reported to the police who, on investigation, prosecuted the appellant.
Arguments of Appellant in Supreme Court - The appellant contended that on the facts found
the conviction was unsustainable on the grounds
(1) that the admission card had no pecuniary value and was therefore not property under
Section 415, and
(2) that, in any case, the steps taken by him did not go beyond the stage of preparation for the
commission of the offence of cheating and did not therefore make out the offence of
attempting to cheat.
Supreme Court said-
(1) , “We may summarize our views about the construction of s. 511, Indian Penal Code, thus: A
person commits the offence of ‘attempt to commit a particular offence’ when (i) he intends to
commit that particular offence; and (ii) he, having made preparations and with the intention to
commit the offence, does an act towards its commission; such an act need not be the penultimate
act towards the commission of that offence but must be an act during the course of committing
that offence.” penultimate act means final act.
(2) The Court held that preparation was complete when the accused prepared the application for
submission to the university and that the moment, he had dispatched
(3) Essential ingredient of section 415 and this case –

There are following essential ingredient of section 415 –
(1) Deception- There must be deception of any person. (A person deceives another when he
causes to believe what is false or misleading as to matter of fact, or leads into error).
(2) Property - fraudulently or dishonestly induces (FDI) the person so deceived
a. to deliver any property to any person, or
b. to consent that any person shall retain any property,
(3) Injury (To do or omit to do) –
a. intentionally induces the person so deceived to do or omit to do anything which he
would not do or omit if he were not so deceived, and
b. which act or omission causes or is likely to cause damage or harm to that person in
body, mind, reputation or property.
137
Now we have to compare this case with ingredient of section 415 -

The appellant would therefore have cheated the University if he had
(i) deceived the University;

(ii) fraudulently or dishonestly induced the University
(iii)to deliver any property to him; or
(iv) had intentionally induced the University to permit him to sit at the M.A. Examination
which it would not have done if it was not so deceived and
(v) the giving of such permission by the University caused or was likely to cause damage or
harm to the University in reputation.
Supreme Court said, “There is no doubt that the appellant, by making false statements about his
being a graduate and a teacher, in the applications he had submitted to the University, did deceive
the University and that his intention was to make the University give him permission and deliver
to him the admission card which would have enabled him to sit for the M.A. Examination. This
card is ‘Property’. The appellant would therefore have committed the offence of ‘cheating’ if the
admission card had not been withdrawn due to certain information reaching the University.
(4) Conviction - He was convicted for 420 r/w 511.
Om Prakash v. State of Punjab127 (1961)

(Attempt to cause death of married woman by starvation)
Section 307 (Attempt to murder)
Facts - Bimla Devi was married to the appellant in October, 1951. Their relations got strained by
1953 and she went to her brother’s place and stayed there for about a year, when she returned to
her husband’s place at the assurance of the appellant’s maternal uncle that she would not be
maltreated in future. She was, however, ill-treated and her health deteriorated due to alleged
maltreatment and deliberate undernourishment. In 1956, she was deliberately starved and was not
allowed to leave the house and only sometimes a morsel or so used to be thrown to her as alms are
given to beggars. She was denied food for days together and used to be given gram husk mixed in
water after five or six days. She managed to go out of the house in April 1956, but Romesh Chander
and Suresh Chander, brothers of the appellant, caught hold of her and forcibly dragged her inside
the house where she was severely beaten. Thereafter, she was kept locked inside a room.
On June 5, 1956, she happened to find her room unlocked, her mother-in-law and husband away
and, availing of the opportunity, went out of the house and managed to reach the Civil Hospital,
Ludhiana, where she met lady Doctor Mrs. Kumar and told her of her sufferings. The appellant
and his mother went to the hospital and tried their best to take her back to the house, but were not
allowed to do so by the lady Doctor. Social workers got interested in the matter and informed the
brother of Bimla Devi, one Madan Mohan, who came down to Ludhiana and, after learning all
facts, sent information to the Police Station by letter on June 16, 1956.
127
24 April,1961 S.C. Justice Raghubar Dayal
138
Arguments of Appellant - Contention for the appellant is that the ingredients of an offence under
section 307 are materially different from the ingredients of an offence under section 511, IPC. The
difference is that for an act to amount to the commission of the offence of attempting to commit
an offence, it need not be the last act and can be the first act towards the commission of the offence,
while for an offence under section 307, it is the last act which, if effective to cause death, would
constitute the offence of an attempt to commit murder. The contention really is that even if Bimla
Devi had been deprived of food for a certain period, the act of so depriving her does not come
under section 307, as that act could not, by itself, have caused her death, it being necessary for the
period of starvation to continue for a longer period to cause death.
The Court rejected this contention.
Relation between section 511 and 307 - The expression ‘whoever attempts to commit an offence’
in section 511, can only mean ‘whoever intends to do a certain act with the intent or knowledge
necessary for the commission of that offence’. The same is meant by the expression used in section
307 ‘whoever does an act with such intention or knowledge and under such circumstances that if
he, by that act, caused death, he would be guilty of murder’.
According to section 33, act denotes series of acts.
In Emperor v. Vasudeo Balwant Gogte - a person fired several shots at another. No injury was in
fact occasioned due to certain obstruction. The culprit was convicted of an offence under section
307 . Beaumont, C. J.,said
“I think that what section 307 really means is that the accused must do an act with such a guilty
intention and knowledge and in such circumstances that but for some intervening fact the act would
have amounted to murder in the normal course of events”.
This is correct. In the present case, the intervening fact which thwarted the attempt of the appellant
to commit the murder of Bimla Devi was her happening to escape from the house and succeeding
in reaching the hospital and thereafter securing good medical treatment.
“A, intending to murder Z, by poison, purchases poison and mixes the same with food which
remains in A’s keeping; A has not yet committed the offence in this section. A places the food on
Z’s table or delivers it to Z’s servants to place it on Z’s table. A has committed the offence defined
in this section.”
A’s last act, contemplated in this illustration, is not an act which must result in the murder of Z.
The food is to be taken by Z. It is to be served to him. It may not have been possible for A to serve
the food himself to Z, but the fact remains that A’s act in merely delivering the food to the servant
is fairly remote to the food being served and being taken by Z.
Penultimate act is not necessary to constitute offence under section 307.
Conviction under section 307 was upheld.
139
Sudhir Kumar Mukherjee v. State of West Bengal

24 September, 1973 S.C. Justice A. Alagiriswami
The accused person Sudhir Kumar Mukherjee, an employee of a firm had attempted, in collusion
with a limestone dealer, to show false delivery of limestone to his company by forging the
signature of his superior on the invoice after which it would be presented for payment. At the
time when he was caught, he had himself not signed the challan evidencing receipt of the goods.
S.C. followed the ratio of Abhayananda case held that the fact that a challan had been prepared
and that the initial of the concerned clerk had been obtained by the accused on the challan showed
that definite steps had been taken by the accused to commit the offence of cheating. He was liable
for cheating under section 420 r/w section511.
State of Maharastra v. Mohammad Yakub

4March 1980 S.C., Justice R.S. Sarkaria
The prosecution alleged that on the night of the occurrence the respondents carried in
a truck and a jeep silver ingots some of which were concealed in a shawl, and some others
hidden in saw-dust bags from Bombay to a lonely creek nearby and that when the ingots were
unloaded near the creek the sound of the engine of a mechanized sea-craft from the side of the
creek was heard by the Customs officials.
He was held liable.
(II) Doctrine of Locus Paenitentiae (Time for Repentance)

An opportunity to withdraw from a contract or obligation before it is completed or to decide not
to commit an intended crime.
Queen-Empress v. Ramakka
(Section 309) Madras High Court (Decided On: 11.10.1884).
In this case a woman on account of a quarrel with her father and brother rushed towards a well,
shouting that she would jump into it. The Court held that she could not be held guilty for attempt
to suicide as her act amounted only to a preparation to commit suicide. She must have reached into
the well and done a further act, such as trying to jump from the parapet wall of the well, for her to
be liable for conviction.
It was held that she had not gone past the Locus Paenitentiae allowed to her by the law, i.e. there
was every chance that she could have repented at the very last moment and not gone ahead with
her threats and therefore her acts were merely preparatoryband not an attempt. She was acquitted.
140
Malkiat Singh v. State of Punjab (8 November, 1968 S.C. Justice V. Ramaswami)

(Section 511 is not involved although concept of attempt was involved. Special Law
is involved)
Facts- Essential Commodities Act, 1955 section 3 and section 7 and Punjab Paddy (Export
Control) Order, 1959, para 3. Paddy consigned from Punjab to Delhi--Truck carrying paddy
stopped by police at Samalkha barrier post within Punjab which is about 14 miles from the the
Punjab-Delhi Border.
On October 19, 1961 Sub Inspector Banarasi Lal of Food and Supplies Department' was present
at Smalkha Barrier along with Head Constable Badan Singh and others. The appellant Malkiat
Singh then came driving truck no. P.N.U. 967. Babu Singh was the cleaner of that truck. The
truck carried 75 bags of paddy weighing about 140 maunds. As the export of paddy was contrary
to law, the Sub Inspector took into possession the truck as also the bags of paddy.
Provisions of Essential Commodities Act, 1955, section 3 and section 7 and Punjab Paddy (Export
Control) Order, 1959, para.3 are involved in this case.
Decision - Justice V. Ramaswami said, “The test for determining whether the act of the
appellants constituted an attempt or preparation is whether the overt acts already done are such
that if the offender changes his mind and does not proceed further in its progress, the acts already
done would be completely harmless. In the present case it is quite possible that the appellants
may have been warned that they had no licence to carry the paddy and they may have changed
their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not
have proceeded further in their journey. Section 8 of the Essential Commodities Act states that
“any person who attempts to contravene, or abets a contravention of, any order made under Section
3 shall be deemed to have contravened that order”. But there is no provision in the Act which
makes a preparation to commit an offence punishable. It follows therefore that the appellants
should not have been convicted under Section 7 of the Essential Commodities Act.”
(3) Impossibility Test

In the impossible test guilty mind is punished even when the act itself is innocent. The crucial
aspect is the belief of the person and intention preceding his action to do a particular act. Illustration
(a) and (b) of section 511 is based on impossible test. These illustrations are following –
(a) Empty box Theft Impossibility Test
(b) Empty pocket Theft Impossibility Test
(a) Opening an empty box - A makes an attempt to steal some jewels by breaking open a box, and
finds after so opening the box, that there is no jewel in it. He has done an act towards the
commission of theft, and therefore is guilty under this section.
(b) Thrusting hand into empty pocket -A makes an attempt to pick the pocket of Z by thrusting
his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket.
A is guilty under this section.
141
These illustrations clearly shows, it does not matter that it is after breaking open a box with the
intention of stealing jewels which he believes to be inside it or the person who picks another’s
pocket with the intention of picking whatever valuable he finds inside both persons find their
intentions incapable of fulfillment.
The crucial test was whether they had crossed the stage of preparation.
Asgarali Pradhania v. Emperor. 21 July, 1933

(Sections312r/w 511)
The complainant was 20 years of age, and had been married but divorced by consent. She was
living in her father’s house, where she used to sleep in the cook shed. The appellant was a
neighbour who had lent money to her father, and was on good terms with him. He was a married
man with children. According to the complainant he gave her presents, and promised to marry her.
As a result sexual intercourse took place and she became pregnant. She asked him to fulfil his
promise, but he demurred and suggested that she should take drugs to procure a miscarriage. One
night he brought her a bottle half full of a red liquid, and a paper packet containing a powder. After
he had gone she tasted the powder, but finding it salty and strong, spat it out. She did not try the
liquid. The following night the appellant came again and finding that she had not taken either the
powder or the liquid, he pressed her to take them, but she refused saying that she was afraid for
her own life, and that the powder irritated her tongue. Thereupon he asked her to open her mouth,
and approached her with the bottle, and took hold of her chin. But she snatched the bottle from
him and cried out loudly, and her father and some neighbours came, and the appellant fled. The
police were informed, and upon analysis, sulphate of copper was detected in the powder, but the
amount was not ascertained. No poison was detected in the liquid.
Medical evidence -According to the medical evidence, copper sulphate has no direct action on the
uterus, and is not harmful unless taken in sufficiently large quantities, when it may induce
abortion.
McNair, J. “On the facts stated in this case, and for the reasons already given, the appellant cannot
in law, be convicted of an attempt to cause a miscarriage. What he did was not an “act done towards
the commission of the offence” of causing a miscarriage. Neither the liquid nor the powder being
harmful, they could not have caused a miscarriage. The appellant’s failure was not due to a factor
independent of himself. Consequently, the conviction and sentence must be set aside and the
appellant acquitted.”
He was not held liable for miscarriage.
142
Neighbouring to each other Divorcee Woman Married Person having children

Saxual relation between both She became preganant He bought and brought copper
in cook shed. He had made sulphate and red lequide. Test
promised to get marriage. was salty.
Neither the liquid nor the She denied consume these. He was not convicted for attempt
powder being harmful, they He forcefully caught her to causing miscarriage. It was
could not have caused a chin. She raised alarm. He merely preparation.
miscarriage. ran away.
Munah Binti Ali v. Public Prosecuter (1958)

Accused was charged section 312 r/w section 511of with voluntarily attempting to cause one Chee
Yew Cheng to have miscarriage and in such attempt did insert an instrument into her vagina.
Whether an accused is liable for an attempt to cause abortion, when the woman (complainant)
was not actually pregnant, as it came to be known later.
Accused was convicted under section 312 r/w section 511of the Malaysian Penal Code.
R. v. Shivpuri (House of Lords, May 1986)

In this case there was matter of smuggling of prohibited drugs. Accused believed that he was
carrying prohibited drugs. When he was arrested he confessed. In due course the powdered
substance in the several packages was scientifically analysed and found not to be a controlled drug
but snuff or some similar harmless vegetable matter.
Whether an offence which is impossible to commit amounts to a conviction of an attempt. House
of Lords held that accused had committed offence. Principle laid down in this case is that the
accused is punished for his guilty although the act actually committed was innocent.
Job Test is connected to impossibility.

A person on the job may be held guilty. A man trying to break the best of steel safes with totally
inappropriate or inadequate instrument , would steel be guilty of attempting to steal, even though
it is probably impossible to actually achieve it.
Social Danger Test
A gives pills to a pregnant woman to procure abortion, but they have no effect because the drug
turns out to be innocuous. A would be guilty of an attempt to cause miscarriage since the act would
cause an alarm to society and would have social repercussions.
Some Important Illustration –
(1) A with intention to cause death of B gave sugar under believe that sugar was arsenic. B ate
sugar. A had not caused any offence. UK (J) 2005.
143
ANNEXURE I
(Previous Year Question Paper 2013. LLB-DU)
SN Contents P. No
1 Distinction amongst ‘motive’, ‘intention’ and ‘knowledge’
2 Distinction amongst the offences of ‘theft’, ‘extortion’ and ‘robbery’.
Distinction between in Exception I and IV to section 300 IPC
3 Distinction and similarities between ‘criminal misappropriation’ &‘criminal
breach of trust’.
4 Difference between Kidnapping and Abduction
5 sSalient features of the Criminal Law (Amendment) Act, 2013
6 Special features of the criminal law (amendment) ordinance, 2018. ( Read only
IPC)
7 ‘Reasonable man’ for determining the ‘grave’ and ‘sudden’ under Exception 1of
Sec.300
Question 1. Write short notes on any two of the followings:

(a) Explain and illustrate distinction amongst ‘motive’, ‘intention’ and ‘knowledge’.
Question 1 (a) Distinction amongst ‘motive’, ‘intention’ and ‘knowledge’
According to Stephen “ Intention is an operation of the will directing an overt act; motive is the
feeling which prompts the operation of the will, the ulterior object of the person willing, e.g., if a
person kills another, the intention directs the act which causes death, the motive is object which
the person had in view, i,g., the satisfaction of some desire, such as revenge etc.”
According to Austin “The intention is the aim of the act, of which the motive is the spring.”
Basdev v. The State of Pepsu (17 April,1956 S.C )128
In this case Supreme Court said, “Motive is something which prompts a man to form an intention
and knowledge is an awareness of the consequences of the act. In many cases intention and
knowledge merge into each other and mean the same thing more or less and intention can be
presumed from knowledge. The demarcating line between knowledge and intention is no doubt
thin but it is not difficult to perceive that they connote different things.”
Neither bad motive nor good motive is relevant to constitute offence. It is relevant under section 8
of Indian Evidence Act. Motive prompts a person to do something. Sometime offence is committed
with motive and sometimes without motive. Intention refers to the immediate object, while motive
refers to the ulterior object which is at the root of intention.
128
The accused was prosecuted for a kill a boy in marriage ceremony during dispute for seat.
144
Motive Intention Knowledge

(1) Motive is the feeling Intention is an operation of Knowledge is only
Definition which prompts the the will directing an overt foresight of
operation of the will. act. Intention is the consequences. Here
combination of desire and desire is missing.
foresight of consequences.
Illustration if a person kills another, A with desire to kill B threw A without desire to
the intention directs the from fourth floor to ground. kill B and for saving
act which causes death, He foresighted that throwing life threw from
the motive is object which from fourth floor was likely fourth floor to
the person had in view, to cause death. So in this ground. He
i,g., the satisfaction of case in presence of desire foresighted that
some desire, such as and foresight there is throwing from fourth
revenge etc. intention. floor was likely to
cause death. So in
this case in absence
of desire and
presence of foresight
is involved. So it is
knowledge.
2 It is the ulterior object It is immediate object. It is immediate
object.
3 Motive is not part of Presence or absence of It is also relevant.
crime. So either good intention is very relevant.
motive or bad motive Rule is that “Actus non facit
shall not commission of reum, nisi mens sit rea”
offence. It means
presence or absence of
motive is not relevant to
constitute offence. It is
relevant to decide
quantum of punishment.
It is relevant under
section 8 of Indian
Evidence Act.
Example A removes a cow A is in a house which is on
belonging to B to save her fire, with Z, a child. People
from being slaughtered. A below hold out a blanket. A
will be liable for theft if drops the child from the
other condition of theft are house-top, knowing it to be
145
being fulfilled. His good likely that the fall may kill
motive cannot save him. 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.
4 A crime committed with A crime committed
Gravity intention is more serious. with knowledge is
Example sec. 304 Part One lesser serious in
comparison with
intention.
Example sec. 304
Part Two.
Question no. 1 (b) Distinction amongst the offences of ‘theft’, ‘extortion’ and ‘robbery’.
Distinction between Theft & Extortion
S.No. Theft Extortion
1 Movable property (Section 22) Any property (Movable or immovable) or valuable
security (section 30) or anything signed or sealed
which may be converted into valuable security
2 Taking Delivery
3 Without Consent With unlawful consent
4 No fear of injury Fear of injury
Theft Extortion Robbery

There is no kind of theft. There is
no kind of There are two types of robbery
extortion. namely;
(i) robbery by theft
(ii) robbery by extortion
Theft is less serious in Extortion is less serious in Robbery is aggravated form of
comparison to robbery. comparison to robbery. either theft or extortion.
146
Here taking is necessary. Here delivery is necessary. Here in case of robbery by theft
Jadunandan Singh v. Jadunandan Singh v. taking is necessary and in case of
129
Emperor Emperor130 robbery by extortion delivery is
necessary. In this way in case of
robbery taking and delivery both
are relevant.
No fear Fear of injury Fear of death, hurt or wrongful
restraint or
Fear of instant death, instant hurt or
instant wrongful restraint
Moveable Property Any property (Movable or In case of robbery by theft –
immovable) or valuable movable property and
security (section 30) or in case of robbery by extortion –
anything signed or sealed any types of property.
which may be converted
into valuable security
Without consent Unlawful consent In case of robbery by theft -
Without consent
in case of robbery by extortion-
unlawful consent
(1) Dishonest intention In case of adding of two more
(2) Movable Property conditions in five condition of
(3) Out of possession theft , theft converts into robbery
(4) Without consent by theft -
(5) Moves that property (6) Voluntarily (section 39) causes
or attempts to cause
(a) death or hurt or wrongful
restraint or
(b) fear of instant death or hurt or
wrongful restraint
(7) Why death….?
(b) in committing theft or
(c) carrying away the property
obtained in theft or
(d) attempting to carrying away the
property obtained in theft
129
AIR 1941 Pat. 129
130
AIR 1941 Pat. 129
147
(1) Dishonest intention In case of adding of three more

(2) Putting any person into conditions in six conditions of
fear extortion , extortion converts into
(3) Fear of injury (section robbery by extortion -
44- Mind, body, reputation (7) Offender is in the presence of
or property) to the person the person put in fear
so put into fear or any (8) There must be in fear of instant
other person death or instant hurt or instant
(4) Dishonest inducement wrongful restraint to that person or
(5) to deliver to some other person
(6) Any property (9) Then and there delivery
(Movable or immovable)
or valuable security
(section 30) or anything
signed or sealed which
may be converted into
valuable security
Every theft is not robbery Every extortion is not In all robbery there is either theft or
robbery. extortion.
Question 3. (a) Bring out clearly the distinction in the degree of rashness required under section
304A IPC and that under section 304 part II, IPC for conviction of offenders with the help of
decided cases and illustrations.
Question no. 4 (a) Bring out clearly the distinction between the requirements of the partial defence
contained in Exception I and IV to section 300 IPC with the help of decided cases and also the
similarity in some of the essentials, if any, of two exceptions.
Answer – Once it is proved that homicide is culpable homicide, then next question arises whether
that culpable homicide is murder or not. Once it is proved that culpable homicide is murder then
accused is entitled to argue that the murder comes under any of the five exceptions of section 300.
If murder comes under any of the exceptions section 300 then murder converts into culpable
homicide. So culpable homicide has been divided into two parts namely;
(i) culpable homicide not amounting to murder – Sections 299 and five exception of section 300
(ii) culpable homicide amounting to murder – Section 300.
Exception 1- Culpable homicide is not murder if the offender, whilst deprived of the power of
self-control by grave and sudden provocation, causes the death of the person who gave the
provocation or causes the death of any other person by mistake or accident.
Exception 4 -Culpable homicide is not murder if it is committed without premeditation in a
sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken
undue advantage or acted in a cruel or unusual manner.
148
Relation between Exception 1 and Exception 4

In the K.M. Nanavati Case Supreme Court discussed Exception 1 of Section 300. Ghapoo Yadav
& Ors. v. State of M.P. ( Feb. 2003) and Surain Singh v. The State of Punjab (DOJ-10 April
2017) are leading cases in which Supreme Court thoroughly discussed relations between Exception
1 and Exception 4 of section 300 which are following -
Exception 1 -Grave and Sudden Exception 4 - Sudden Fighting
Provocation
(1) Both are based on same principle (2) Provocation is involved in both the
i.e. both depend upon without cases.
premeditation.
1 Here one party is to be blamed. He has A fight suddenly takes place, for which
created grave and sudden provocation. both parties are more or less to be blamed.
A “sudden fight” implies mutual
provocation and blows on each side. The
homicide committed is then clearly not
traceable to unilateral provocation, nor
could in such cases the whole blame be
placed on one side.
2 It covers matters of grave and sudden This covers matters of sudden fight.
provocation.
3 There is total deprivation of self- There is only that heat of passion which
control clouds men’s sober reason and urges them
to deeds which they would not otherwise
do.
4 Act is done in direct consequences of The injury done is not the direct
that provocation. consequence of that provocation..
Question 6 (a) - Bring out clearly the distinction and similarities, if any, between the offences of
‘criminal misappropriation’ and ‘criminal breach of trust’.
Answer –
Criminal Misappropriation Criminal Breach of Trust
(Sections 403 - 400) (Sections 405 - 409)
Similarities Similarities
(1) Both offences have been mentioned in Chapter XVII
(Sections 378-462) which is related to offences against
property. It means both offences are related to property.
149
(2) Dishonestly (Section 24) is common in both

offences.
(3) DMC to his own use is common.
Dishonestly misappropriates or converts to his own use
is common in both offences.
Movable Property Any types of property whether

movable or immovable
Taking /Found A person is entrusted with property
In case of Criminal Misappropriation accused either or dominion over property.
takes property or finds the property accidentally.
There is no fiduciary relationship. There is fiduciary relationship.
Here there is violation of law. Here there is no question Here there is either violation of law
of violation of contract. or contract.
Accused is doing only one work i.e. dishonestly Accused is doing two works –
misappropriates or converts (DMC) to his own use that (i) dishonestly misappropriates or
property, or converts (DMC) to his own use that
property, or
(ii) dishonestly uses or disposes of
that property or willfully suffers any
other person so to do
in violation of
(a) any direction of law prescribing
the mode in which such trust is to be
discharged, or
(b ) any legal contract, express or
implied, which he has made touching
the discharge of such trust,
Question7 (a) Bring out clearly the distinction between kidnapping and abduction under the IPC.
Ans. There are two types of kidnapping (Section 359) i.e. kidnapping from India and kidnapping
from lawful guardianship. There is no kind of abduction.
150
Difference between Kidnapping and Abduction

S.N. Kidnapping from Lawful guardianship Abduction

363A, 364,364A to 369.
of unsound mind
4 TEA (T-Taking, E-Enticing, A-Any minor). FCDI (F-Force, C-compels or D-
Without taking or enticing kidnapping is not Deceitful means I-Induces)
possible. S. Varadrajan v. State of Madras.
In this case, there was no taking. Except
taking all the conditions were available. So
S. Varadrajan was acquitted.
6 Consent of victim is immaterial. He or she Free and voluntarily consent of the
is not capable to give consent. person abducted condones abduction.
7 Intention of the kidnapper is immaterial for Intention of the abductor is an important

the offence. factor in determining guilt of the
accused.
S. No. Kidnapping from India Kidnapping from Lawful Guardianship

1 Conveys Taking or enticing
2 Any Person Minor or Person of Unsound mind
3 Beyond the limits of India Out of Lawful guardianship
4 Without consent Consent is immaterial
5 Out of keeping of lawful Out of keeping of lawful guardianship.
guardianship has not been Kidnapping of orphan is not possible. If he is in
mentioned here. Kidnapping of orphan home then kidnapping is possible.
orphan from India is possible.
151
Question 5 (a) Clearly bring out the salient features of the Criminal Law (Amendment) Act, 2013
bringing in changes in rape law and introducing some new offences in the IPC in the category of
offences against women.
COMPARISON BET. BEFORE AND AFTER 2013 AMENDMENT REGARDING RAPE
Before 2013 Amendment After 2013 Amendment

Definition Sexual Intercourse was necessary. Now sexual intercourse is not
of Rape Earlier insertion of penis into vagina necessary. Penetration of penis into the
was necessary. Such sexual intercourse vagina, mouth, urethra or anus of a
must be in six circumstances namely , woman or insertion of any object into
Firstly- Against her will. vagina, urethra or anus is sufficient. If a
Secondly—Without her consent. man manipulates any part of the body
Thirdly— With her consent, when her of woman for penetration or applies his
consent has been obtained by putting her mouth to the vagina, urethra or anus of
or any person in whom she is interested a woman or make her to do so against
in fear of death or of hurt. her will or without her consent or with
Fourthly..Fifthly.. Sixthly — With or or without her consent, when she is
without her consent, when she is under under eighteen years of age or when she
sixteen years of age. Explanation. is unable to communicate consent is
rape.
Age to Section 375 Sixthly — With or without Section 375 Sixthly — With or without
give her consent, when she is under sixteen her consent, when she is under eighteen
consent years of age. years of age.
New There were six categories of consent. Now, there are seven categories of
ground consent.
regarding Seventhly- When she is unable to
consent communicate consent.
Punishme There was no provisions regarding There are two circumstances when in
nt punishment of death sentence. rape cases death sentence may be
awarded. These two cases are (1)
Section 376A-Punishment for causing
death or resulting in persistent
vegetative state of victim. (2) Section
376E- Punishment for repeat offenders.
Exception There was one exception- Sexual There are two exceptions.
intercourse by a man with his own wife, Exception1-A medical procedure or
the wife not being under fifteen years of intervention shall not constitute rape.
age, is not rape. Exception2-Sexual intercourse by a
man with his own wife, the wife not
152
being under fifteen years of age, is not

rape. Exception 2 does not exist after
decision of Independent Thought v.
Union of India & Anr (Oct.11, 2017).
New Section 354 Section 354 A, Section 354B, Section
sections 354C, Section 354 D,Section 326A,
Section 326B Section166A,
Section166B
SPECIAL FEATURES OF THE CRIMINAL LAW (AMENDMENT)

ORDINANCE, 2018.
Or
SPECIAL FEATURES OF THE CRIMINAL LAW (AMENDMENT) Act,
2018.
Now ‘Ordinance 2018’ has been substituted by ‘..Act,2018’. Either they ask ‘Ordinance
2018’ or ‘..Act,2018’will be same. Most important point is that they will ask only those changes
which were made in IPC. Don’t emphasize on Criminal Procedure Code or Evidence or POCSO.
But for safe side you can read. 99.9% chance is that they will ask question from ‘..Act,2018’ related
to IPC.
By this “Ordinance” changes have been done in IPC, 1860, Indian Evidence Act, 1872, Code of
Criminal Procedure, 1973 and Protection of Children from Sexual Offences Act, 2012. Rape has
been classified into four categories- (1) Rape with girl below the age of twelve years (2) Rape with
girl below the age of sixteen years (3) Rape with girl below the age of eighteen years (4) Rape
above the age of eighteen years.
INDIAN PENAL CODE,1860

Provisions Before Criminal Law After Criminal Law (Amendment)
(Amendment) Ordinance, 2018. Ordinance, 2018.
INDIAN PENAL CODE,1860 INDIAN PENAL CODE,1860
Section 166A (c) 376B,376C, 376D, and 376E 376AB, 376B, 376C, 376D, and
Public servant Substituted by 376DA, 376DB.
disobeying
153
direction under
law.
Section 228A 376A,376B,376C, 376D, Section 376 A, Section 376AB,
Disclosure of 376B,376C, 376D, and 376DA,
identity 376DB.
Section 376(1) …not be less than seven years but …not be less than ten years but
Punishment for which may extend to which may extend to imprisonment
rape imprisonment for life… for life..
Section 376(2)(i) Rape on a woman when she is Deleted
under sixteen years of age
Section 376 (3) Section 376 (3) was absent. Newly inserted.
(It had been provided under Rape on a woman when she is under
Section 376(2) (i) for which sixteen years of age – Not less than
punishment was……. twenty years –which may be
not be less than ten years but imprisonment for life.
which may extend to imprisonment
for life..
Section 376 A Section 376 A Section 376 A (No change)
Section 376 AB Absent Inserted. Punishment-
Rape with girl Not less than twenty Years – up to LI
below the age of and fine or Death sentence
12 Years
Section 376DA Life Imprisonment
Punishment for
gang rape on a
women under
sixteen years of
age
Section 376DB LI and Fine or Death Sentence
Punishment for
gang rape on a
women under
twelve years of age
Omitted Substituted Inserted
Section 376(2)(I) Section 166A,Section 228 A, Section 376(3), Section 376AB,
Section 376(1) Section 376DA, Section 376DB
INDIAN EVIDENCE ACT, 1872
Provision Before Criminal Law After Criminal Law (Amendment)
154
Section 53A Section 376A, Section 376B, Section 376A, Section AB, Section
Substituted Section C and 376 D 376B,
Section C and 376 D, Section 376D
and Section 376DA and Section 376
DB.
Section 146 Section 376A, Section 376B, Section 376A, Section AB, Section
DB.
Code of Criminal Procedure 1973
Provision Before Criminal Law After Criminal Law (Amendment)
DB.
DB.
DB.
Section 164 (5A) Section 376A, Section 376B, Section 376A, Section AB, Section
DB.
Section 173(1A) Investigation in relation to rape of Investigation in relation to rape of
Substituted child may be completed within child shall be completed within two
three months months
155

DB.
DB.
Section 309 When the inquiry or trial relates to When the inquiry or trial relates to an
Substituted an offence under Section 376A, offence under Section 376A, Section
Section 376B, Section C and 376 AB, Section 376B, Section C and 376
D the inquiry or trial shall, AS D, Section 376D and Section 376DA
FOR AS POSSIBLE, be and Section 376 DB of IPC, the
completed within the period of two inquiry or trial shall be completed
months from the date of filling of within the period of two months from
the charge sheet. the date of filling of the charge sheet.
Section 327(2) Section 376A, Section 376B, Section 376A, Section AB, Section
Section C and 376 D 376B,
Substituted Section C and 376 D, Section 376D
DB.
Section 357 B- Section 326A and Section 376D Section 326A and Section 376AB,
Substituted Section D, Section DA and Section
DB.
Section 357 C- Section 376A, Section 376B, Section 376A, Section AB, Section
DB.
Section 377 There was no limitation period Section 377 (3)- When appeal has
(3)Appeal disposal of appeal been filed against a sentence passed
Inserted under Section 376A, Section AB,
Section 376B,
DB of IPC , the Appeal shall be
disposed of within a period of six
months from the date of filing of such
appeal
156
DEFECTIVE REASON -Section 377 (3) has It is a silly mistake and human error.
ORDINANCE been inserted without either
substituting clause (3) or
renumbering clause (3) as clause
(4).
Section 438 (4) Absent No anticipatory bail when offence is
Inserted. related to Section 376(3), Section
376AB Section 376DA and Section
376 DB.
Section 439 (1) Absent High Court or Court of Session shall
Second Proviso before, before granting a bail to a
Inserted person who is accused of an offence
under Section 376(3), Section 376AB
Section 376DA and Section 376 DB
give notice to the application for bail
to the Public Prosecutor within a
period of fifteen days from the date of
receipt of the notice of such
application.
Schedule Section 376 AB, Section DA, Section
DB,-, Cognizable, Non-Bailable ,
Court of Session
Protection of Children From
Sexual Offences Act, 2012
Section 42 Section 376A, Section C, Section Section 376A, Section 376AB,
Substituted D Section 376B, Section 376C, Section
376D, Section 376DA and Section
376 DB.
There are following special features of this ‘Ordinance’-
(1) AMENDMENTS IN FOUR STATUTES- By this “Ordinance” changes have been done
in IPC, 1860, Indian Evidence Act, 1872, Code of Criminal Procedure, 1973 and Protection
of Children From Sexual Offences Act, 2012.
(2) CLASSIFICATION OF RAPE VICTIMS ON THE BASIS OF AGE- Rape has been
classified into four categories- (1) Rape with girl below the age of twelve years – Section
376AB and Section 376 DB.(2) Rape with girl below the age of sixteen years Section
376DA (3) Rape with girl below the age of eighteen years Section 376(1) (4) Rape above
the age of eighteen years.
(3) ENHANCEMENT OF PUNISHMENT-
a. Minimum Punishment-
157
i. According to section 376(1), minimum punishment in rape cases is 10 years.

Earlier minimum punishment was seven years.
ii. Minimum Punishment for Rape with women below the age of 16Years-
According to section 376(3), rigorous punishment for a term which shall
not be less than twenty years.
iii. Minimum Punishment for Rape with women below the age of 12 Years-
According to section 376AB, rigorous punishment for a term which shall
not be less than twenty years and which may extent to LI or death sentence.
b. Life Imprisonment- According to Section 376DA Punishment for gang rape on a
women under sixteen years of age is imprisonment for life which shall mean
imprisonment for the remainder of that person’s natural life, and with fine.
c. Death Sentence - (Section 376 AB Section 376DB) - Two more categories of
offences related to rape have been inserted when death sentence may be awarded.
After this “Ordinance” there are four categories of offences related to rape when
death sentence may be awarded.
DEATH SENTENCE IN RAPE CASES

S.N. Ordinance/ Provisions Punishment
The Criminal Law (Amendment) Ordinance, 2013(Now Act)
2013
1 Section 376A- Punishment for causing death or resulting in persistent Death Sentence
vegetative state of victim
2 Section 376E- Punishment for repeat offenders. Death Sentence
THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018.131
2018
3 Section 376AB- Rape with women below the age of 12 Years Death Sentence
4 Section 376DB- “Gang Rape” with women below the age of 12 Years Death Sentence
RAPE OF WOMEN AND PUNISHMENT

S.N. Age of Woman Punishment Sections
1 Under 12 Years
2018 Rape of Woman under 12 Years Minimum 20Years in Jail Section 376AB
or LI or Death Sentence
2018 Gang Rape of Woman under 12 Years LI and Fine or death Section 376DB
Sentence
2 Under 16 Years
131
This Ordinance has been promulgated by President under Article 123(1) on 22nd April, 2018.
158

years (Earlier it was
10Years) which may
extend to LI and fine.
2018 Gang Rape of Woman under 16 Years LI and Fine Section 376DA
3 Under 18 Years
LI and fine.
and fine.
4 Under or above 18 Years Rape whether
rape has been committed with or
without consent
LI and fine.
and fine.
(4) INVESTIGATION- Investigation in relation to rape of child shall be completed within

two months. Earlier period was three months. Earlier it was not mandatory to complete
investigation within three months. Now it is mandatory to complete investigation within
two months.
(5) TRIAL- When the inquiry or trial relates to an offence under Section 376A, Section AB,
Section 376B, Section C and 376 D, Section 376D and Section 376DA and Section 376
DB of IPC, the inquiry or trial shall be completed within the period of two months from
the date of filling of the charge sheet. Earlier it was discretionary power of court to
complete trial as for as possible within two months. Now it is mandatory to complete trial
within two months.
(6) LIMITATION PERIOD FOR DECISION OF APPEAL-Section 377 (3)- When appeal
has been filed against a sentence passed under Section 376A, Section AB, Section 376B,
Section C and 376 D, Section 376D and Section 376DA and Section 376 DB of IPC , the
Appeal shall be disposed of within a period of six months from the date of filing of such
appeal.
159
LIMITATION PERIOD
Ordinance
The Criminal Law (Amendment) The Criminal Law (Amendment)
Ordinance, 2013(Now Act) Ordinance, 2018
Limitation Three months - Investigation in Two Months -Investigation in
Period for relation to rape of child may be relation to rape of child shall be
Investigation completed within three months. completed within two months.
It was discretionary power. Now it is mandatory to complete
Section 173(1A). investigation within two months.
Section 173(1A).
Three months Two Months

Discretion Mandatory
Limitation Section 376A, Section 376B, Section 376A, Section AB,
Period for Trial Section C and 376 D Section 376B,
Section C and 376 D, Section
376D and Section 376DA and
Section 376 DB.
When the inquiry or trial relates to When the inquiry or trial relates to
an offence under Section 376A, an offence under Section 376A,
Section 376B, Section C and 376 D Section AB, Section 376B,
the inquiry or trial shall, AS FOR Section C and 376 D, Section
AS POSSIBLE, be completed 376D and Section 376DA and
within the period of two months Section 376 DB of IPC, the
from the date of filling of the charge inquiry or trial shall be completed
sheet. within the period of two months
from the date of filling of the
charge sheet.
Two Months Two Months
As for as possible… It was , the inquiry or trial shall be
discretionary power of Court. completed..
Now it is mandatory.
Limitation On this point law was silent. Section 377 (3)- When appeal has
Period for been filed against a sentence
disposal of passed under Section 376A,
Appeal Section AB, Section 376B,
Section C and 376 D, Section
376D and Section 376DA and
Section 376 DB of IPC , the
Appeal shall be disposed of
160
within a period of six months

from the date of filing of such
appeal.
No limitation period Six Months
Remarks Limitation period for investigation Limitation period for appeal–
and trial – Two Months Three Months
(7) ANTICIPATORY BAIL Section 438 (4)--No anticipatory bail when offence is related to
Section 376(3), Section 376AB Section 376DA and Section 376 DB.
ANTICIPATORY BAIL and RAPE

BAIL RAPE Important Point
RAPE ANTICIPATORY Section 376(3) Rape with a woman below the age
Section 438(4) BAIL IS NOT Section 376AB of sixteen years, anticipatory bail
ins. by 2018 ALLOWED (Only in Section 376DA is not allowed.
Ordinance. those rape case and Section 376DB
punishment which
have been inserted in
2018)
Section 376(3) Rape on a woman when she is
under sixteen years of age.
Sect.376 AB Rape with girl below the age of 12
Years
Section 376DA Punishment for gang rape on a
women under sixteen years of age
Section 376DB Punishment for gang rape on a
women under twelve years of age
RAPE ANTICIPATORY Section 376 (1)
BAIL IS ALLOWED Section 376 (2)
Section 376 A
Section 376 B
Section 376 C
Section 376 D
Section 376 E.
Question 4 (b) - Explain with the help of decided cases the legal fiction of ‘reasonable man’ for
determining the ‘grave’ and ‘sudden’ provocation and the concept of ‘cooling down period’ for
reducing the criminality of an accused for murder to culpable homicide not amounting to murder
under Exception I to section 300 IPC.
161
Answer – Reasonable Man’s Test - In the case of K.M. Nanavati v. State of Maharashtra
‘reasonable man’ test was laid down to decide “What is grave & Sudden Provocation?” Question
is that on what basis a man can be said a reasonable man.
In this case Supreme Court said, “No abstract standard of reasonableness can be laid down. What
a reasonable man will do in certain circumstances depends upon the customs, manners, way of
life, traditional values etc.; in short, the cultural, social and emotional background of the society
to which an accused belongs. In our vast country there are social groups ranging from the lowest
to the highest state of civilization. It is neither possible nor desirable to lay down any standard with
precision: it is for the court to decide in each case, having regard to the relevant circumstances.
The Indian law, relevant to the present enquiry, may be stated thus :
(1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the
same class of society as the accused, placed in the situation in which the accused was
placed would be so provoked as to lose his self-control.
(2) In India, words and gestures may also, under certain circumstances, cause grave and
sudden provocation to an accused so as to bring his act within the first Exception to section
300 of the Indian Penal Code.
(4) The fatal blow should be clearly traced to the influence of passion arising from that
provocation and not after the passion had cooled down by lapse of time, or otherwise giving
room and scope for premeditation and calculation.
Cooling Time - It is not necessary in this case to ascertain whether a reasonable man placed in
the position of the accused would have lost his self- control momentarily or even temporarily when
his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence
that the accused regained his self-control and killed Ahuja deliberately. K.M. Nanavati case
accused got sufficient time to cool his mind. So he was convicted for murder. His matter did not
come under Exception1 of Section 300. In case of Babu Lal v. State (1960 All. H.C.) there was no
cooling time. If there is cooling time then Exception 1 cannot be invoked.
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ANNEXURE II
Contents P. No
SN
1 Communal riots between Community and Right to Private Defence
2 Statutory limitations on the exercise of Right of Pvt. defence
3 Promise to marriage and Caste System in India ( Law related to Rape)
4 Sections 326A, 354C, 354D, 354A,
5 Grave and Sudden Provocation
6 Impossible attempts
Question 4. (a) Due to breaking of communal riots between Community A and B. Members of
Community A caused loot, plunder and fire of the property belonging to members of Community
B. X, who was a member of Community B was also targeted. He tried to remain within closed
door, to save himself and his family. However, the mob reached and started knocking at his door.
Before the mob could enter, X fired from his licensed revolver and killed a member out of the
mob. Mr. X is charged of murder, however he pleads his right of Pvt. defence against his charge.
Can he do so? Give reasons.
Answer – This problem is based on sections 100 & 102 and Amjad Khan v. State (AIR 1952 SC
165). According to section 96 “Nothing is an offence which is done in the exercise of the right of
private defence.” According to section 97 Firstly, every person has a right, subject to the
restrictions contained in section 99, to defend his own body, and the body of any other person,
against any offence affecting the human body. According to Section 102 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. Under section 100,
there are seven circumstances when a person may either cause death or any other harm. According
to section 100 Firstly if there is an assault which reasonably cause the apprehension that death
will otherwise be the consequence of such assault then victim may cause death.
Amjad Khan v. State (Golden Scales) (Reasonable apprehension) - A communal riot broke out at
Katni on the 5th of March, 1950, between some Sindhi refugees resident in the town and the local
Muslims. It was enough that the mob had actually broken into another part of the house and looted
it, that the woman and children of his family fled to the appellant (Amjad Khan) for protection in
terror of their lives and that the mob was actually beating at his own doors with their lathis and
that Muslim shops had already been looted and Muslims killed in the adjoining locality. Supreme
Court said that these things cannot be weighed in too fine a set of scales or in golden scales.
Accused was justified to use right to private defence because there reasonable apprehension of his
death and death of his family.
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Co-relation between Law and problem – In these problem rioters had already caused loot, plunder
and fire of the property belonging to members of Community B. X was also member of community
B. X was also targeted. He tried to remain within closed door, to save himself and his family.
However, the mob reached and started knocking at his door. It was reasonable apprehension of
death of X and his family (Section 100 Firstly). After 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. X was justified to use right of private defence (Section 102). Although mob had not
entered into the house but knocking to door was sufficient for commencement of right to private
defence. In the Amjad Khan Case Supreme Court said that it is not possible to weight reasonable
apprehension with golden scales.
Conclusion - Killing of member of mob by X is justified on the basis of sections 100 and 102 and
Amjad Khan Case. According to section 96 nothing is an offence which is done in the exercise of
the right of private defence. So X has not committed any offence. X will succeed to defend himself
on the basis of right to private defence.
Question 4 (b)
Discuss statutory limitations on the exercise of Right of Pvt. defence as laid down in Indian Penal
Code.
Answer – If there is right then question arises limitations on the right. In absence of right no
question arises any types of limitation. According to section 97 right to private defence can be
exercised subject to restrictions mentioned in section 99.
Section 99 (Acts against which there is no right of private defence)
Section 99 may be divided into four parts.
First part deals that when right of private defence is not available against public servant.
According to this parts if conditions mentioned in this part are not being fulfilled then right of
private defence is also available even against public servant. For example if there is reasonable
apprehension that police is about to kill then other person has right to kill that person. But this
right is not available for stage manager. If you have created such circumstances in which police is
about to kill you in his self defence and in counter you kill him then right to private defence is not
available for you. Second part covers those matters which had been done on the direction of public
servant. Third part covers those matters in which person has time to recourse protection of public
authorities. Fourth part deals that this right must not be used to take revenge. It must be used only
for the purpose of protection.
(1) Public Servant

There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by a public
servant acting in good faith under colour of his office, though that act, may not be strictly
justifiable by law.
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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.
Kanwar Singh v. Delhi Administration(1965 SC)- A raiding party possessing authority
u/s 418, Delhi Municipal Corporation Act seized the stray cattle belonging to the accused.
The accused resisted the seizure of the cattle and inflicted injuries on the raiding party.
Since the raiding party were public servants discharging their lawful duties, they were
justified in law to seize the cattle, no right of private defence was available to the accused.
He was convicted.
(2) Person doing on the direction of public servant
There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by the
direction of a public servant acting in good faith under colour of his office, though that
direction may not be strictly justifiable by law.
Explanation 2 — A person is not deprived of the right of private defence against an act
done, or attempted to be done, by the direction of a public servant, unless he knows, or has
reason to believe, that the person doing the act is acting by such direction, or unless such
person states the authority under which he acts, or if he has authority in writing, unless
he produces such authority, if demanded.
(3) Time for recourse to the protection of the public authorities
There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities.
Gurdatta Mal v. State of U.P. (1965 SC)- There was a land dispute between the accused
and the deceased. There was prolonged civil litigation wherein the deceased had
established his right of title and physical possession of the property. He went along with
his men to harvest the crop with police protection. In such a situation, it was held that the
accused had ample time to have recourse to authorities and had no right to assault the
deceased to claim possession of the properties. Hence they had no right of private defence.
Right of self defence of either body or property can only be at the time when there is
imminent danger or harm.
(4) Extent to which the right may be exercised.
The right of private defence in no case extends to the inflicting of more harm than it is
necessary to inflict for the purpose of defence.
Deo Narain v. State of U.P. (1972 SC)
Supreme Court said, “If a blow with a lathi is aimed at a vulnerable part like the head it
cannot be laid down as a sound proposition of law that in such cases the victim is not
justified in using his spear in defending himself. In such moments of excitement or
disturbed mental equilibrium it is difficult to expect parties facing grave aggression to
coolly weigh, as if in golden scales, and calmly determine with a composed mind as to
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what precise kind and severity of blow would be legally sufficient for effectively meeting
the unlawful aggression.”
Question 5 (a)
Mr. B and A who were class fellows from class Xth, developed infatuation towards each other.
They carried the relationship for 6 long years till the boy did his master's course and was employed
in good multinational. They had promised to marry each other and were firm to do so, knowing
fully well that they belonged to different castes. On the basis of this promise and long relationship
they entered into sexual relationship many a times. However, finally, when boy disclosed it to his
parents, they refused to do so on the basis of caste. They threatened the boy of social ostraization
and even death of both of them in case they do the same. Compelled by these reason the boy
married another girl. A, charges the boy B of having committed rape · Decide the fate of B.
Answer – In this problem section 375 Secondly and section 90 are involved. This probleb depends
upon meaning of consent. This problem can be solved with help leading cases especially Uday v.
State of Karnataka and Deepak Gulati v. State of Haryana. These cases are following -Uday v.
State of Karnataka (2003 SC) – In this case man and woman were from different caste. She was
well aware of this fact and at the time of proposal she raised this issue. She knew, as we have
observed earlier, that her marriage with the appellant was difficult on account of caste
considerations. So she had not given consent under misconception of facts as mentioned in section
90. To apply section 90 two conditions must be fulfilled namely;
Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it
must be proved that the person who obtained the consent knew, or had reason to believe that the
consent was given in consequence of such misconception. This is what appears to have happened
in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the
appellant with whom she was deeply in love, not because he promised to marry her, but because
she also desired it.
Deepak Gulati v. State of Haryana (20 May, 2013). In this case Supreme Court said that
this Court considered the issue involved herein at length in the case of Uday v. State of Karnataka
(2003 SC) Deelip Singh @ Deelip Kumar v. State of Bihar (2005 SC); Yedla Srinivasa Rao v.
State of A.P. (2006 SC) and came to the conclusion that in the event that the accused’s promise is
not false and has not been made with the sole intention to seduce the prosecutrix to indulge in
sexual acts, such an act(s) would not amount to rape. Section 90 of the Act 1872 provides, that any
consent given under a misconception of fact, would not be considered as valid consent, so far as
the provisions of Section 375 IPC are concerned.
Intercourse under promise to marriage constitutes rape only if from initial stage accused had no no
intention to keep promise. An accused can be convicted for rape only if the court reaches a
conclusion that the intention of the accused was mala fide, and that he had clandestine motives
Law and This Problem – In this case they were knowing that they belong from different caste.
According to Deepak Gulati Case if false promise to get marriage has been made since inception
then there is no consent. B could not fulfill his promise due to the occurrence of facts which were
beyond him.
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Question 5(b)
Write short notes on any two of the following:
(i) Voluntarily causing grievous hurt by acid attack
(ii) Voyeurism
(iii)Stalking
(i) Voluntarily causing grievous hurt by acid attack

Voluntarily causing grievous hurt by acid attack was inserted in section 326A by Criminal
Law (Amendment) Act, 2013.
According to this section “Whoever causes permanent or partial damage or deformity to,
or burns or maims or disfigures or disables, any part or parts of the body of a person or
causes grievous hurt by throwing acid on or by administering acid to that person, or by
using any other means with the intention of causing or with the knowledge that he is
likely to cause such injury or hurt, shall be punished with imprisonment of either
description for a term which shall not be less than ten years but which may extend to
imprisonment for life, and with fine;
Provided that such fine shall be just and reasonable to meet the medical expenses of the
treatment of the victim;
Provided further that any fine imposed under this section shall be paid to the victim.”
(ii) Voyeurism – Section 354C

Voyeurism has been provided under section 354C which was inserted by Criminal Law
Any man who watches, or captures the image of a woman engaging in a private act in
circumstances where she would usually have the expectation of not being observed either
by the perpetrator or by any other person at the behest of the perpetrator or disseminates
such image shall be punished on first conviction with imprisonment of either description
for a term which shall not be less than one year, but which may extend to three years, and
shall also be liable to fine, and be punished on a second or subsequent conviction, with
imprisonment of either description for a term which shall not be less than three years, but
which may extend to seven years, and shall also be liable to fine.
Explanation1- For the purpose of this section, “private act” includes an act of watching
carried out in a place which, in the circumstances, would reasonably be expected to provide
privacy and where the victim’s genitals, posterior or breasts are exposed or covered only
in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is
not of a kind ordinarily done in public.
Explanation 2 - Where the victim consents to the capture of the images or any act, but not
to their dissemination to third persons and where such image or act is disseminated, such
dissemination shall be considered an offence under this section.
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There are following ingredient of voyeurism –

a. Expectation of woman- There must be expectation of woman that no one must see
her. If she is taking kiss with her boyfriend in public auto rickshaw and another
passenger is seeing rather than grazing it will not amount voyeurism.
b. “Private Act” - The woman must engage in ‘private act’. According to explanation
2 “private act” includes an act of watching carried out in a place which, in the
circumstances, would reasonably be expected to provide privacy and where the
victim’s genitals, posterior or breasts are exposed or covered only in underwear;
or the victim is using a lavatory; or the victim is doing a sexual act that is not of a
kind ordinarily done in public.
c. Watching, capturing or disseminating – When she is engaging in private act
someone is either watching or capturing the images of woman or he disseminates
such images. According to explanation 2 where the victim consents to the capture
of the images or any act, but not to their dissemination to third persons and where
such image or act is disseminated, such dissemination shall be considered an
offence under this section.
d. Perpetrator or on behalf of perpetrator – Such Watching, capturing or
dissemination may be occurred either by perpetrator or on behalf of perpetrator.
e. Conviction for first time (1-3Yrs) – He shall be punished on first conviction with
imprisonment of either description for a term which shall not be less than one year,
but which may extend to three years, and shall also be liable to fine.
f. Second or subsequent conviction (3-7Yrs), with imprisonment of either description
for a term which shall not be less than three years, but which may extend to seven
years, and shall also be liable to fine.
(iii)Stalking (Physical or Electronic) –Section 354D

Stalking has been provided under section 354D which was inserted by Criminal Law
Kinds of Stalking -There are two types of stalking namely; (1) Physical and (2) Electronic
i. Physical Stalking - Any man who follows a woman and contacts, or
attempts to contact such woman to foster personal interaction repeatedly
despite a clear indication of disinterest by such woman or
ii. Electronic Stalking- Any man who monitors the use by a woman of the
internet, email or any other form of electronic communication, commits the
offence of stalking.
b. Three categories of conduct will not amount stalking –
i. Prevention of Crime - It was pursued for the purpose of preventing or
detecting crime and the man accused of stalking had been entrusted with the
responsibility of prevention and detection of crime by the State; or
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ii. Compliance of Law -It was pursued under any law or to comply with any
condition or requirement imposed by any person under any law; or
iii. Reasonable conduct- in the particular circumstances such conduct was
reasonable and justified.
c. Burden of these three types of conduct will lies on that person who wants to take
benefit.
d. Punishment for Stalking - Punishment for stalking may be divided into two
categories namely (i) First Conviction and (ii) Subsequent Conviction
i. First Conviction - Whoever commits the offence of stalking shall be
punished on first conviction with imprisonment of either description for a
term which may extend to three years, and shall also be liable to fine;
ii. Subsequent Conviction – He shall be punished on a second or subsequent
conviction, with imprisonment of either description for a term which may
extend to five years, and shall also be liable to fine.
Sexual Harassment (PDS and M.Sc.) Section 354A

Sexual Harassment has been provided under section 354A which was inserted by Criminal Law
(Amendment) Act, 2013. According to section 354A (1) A man committing any of the following
acts-
(i) P -physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) D- a demand or request for sexual favours; or
(iii)S- showing pornography against the will of a woman; or
(iv) (iv)M.Sc. making sexually coloured remarks, shall be guilty of the offence of sexual
harassment.
Punishment for sexual harassment - Punishment for sexual harassment may be divided into
two parts –
(1) Punishment for PDS (i)(ii) and (iii) (Three Years) -Any man who commits the offence
specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous
imprisonment for a term which may extend to three years, or with fine, or with both. (2)
Punishment for M.Sc. (iv) (One Year) -Any man who commits the offence specified in clause
(iv) of sub-section (1) shall be punished with imprisonment of either description for a term which
may extend to one year, or with fine, or with both.
Question 8
Write notes on the following:

a. Grave and Sudden Provocation
b. Impossible attempts
c. Distinction between kidnapping and abduction (Already discussed in Annexure I).
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(a) Grave and Sudden Provocation

To get the benefit of Exception 1 of section 300 is that there must be provocation and provocation
must not only grave but also sudden. Every provocation will not reduce the crime of murder to
homicide. The provocation, to have that result, must be such as temporarily deprives the person
provoked of the power of self- control , as a result of which he commits the unlawful act which
causes death.
(1) There must be provocation

(2) That provocation must be grave and
(3) That provocation must be sudden and
(4) effect of grave and sudden provocation must be so powerful that person deprived from self-
control.
To decide grave and sudden provocation “Reasonable Man’s Test’ is applied. It means object
test is followed. In the case of K.M.Nanavati case this test was thoroughly discussed. In this case
Supreme Court said “No abstract standard of reasonableness can be laid down. What a reasonable
man will do in certain circumstances depends upon the customs, manners, way of life, traditional
values etc.; in short, the cultural, social and emotional background of the society to which an
accused belongs. In our vast country there are social groups ranging from the lowest to the highest
state of civilization. It is neither possible nor desirable to lay down any standard with precision : it
is for the court to decide in each case, having regard to the relevant circumstances.
The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same
class of society as the accused, placed in the situation in which the accused was placed would be
so provoked as to lose his self-control.
For example certain abusive words are common in Haryana State. If one people of Haryana says
to another people is not grave for them but same words for Bihari People is offensive. At the time
of deciding ‘grave and sudden provocation” Bihari people must be treated in different categories
because there culture are different.” A thing which is grave for one person may not be grave for
another person.
In the case of K.M. Nanavati v. State of Maharashtra (1961SC) it was accepted that
keeping sexual intercourse with wife of any person was grave for provocation but action was not
sufficient. It was sufficient time to cool the mind. After listening confession of wife he dropped
his wife and children at a cinema, went to the ship, collected revolver, did some official business
there, drove his car to the office of the deceased and later to his house. Three hours had lapsed by
then and therefor, there was sufficient time for him to regain his self -control. The Court held that
provisions of section 300 Exception 1 would not be applicable in this case. The accused was
convicted for murder and sentenced to the life imprisonment.
In the case of Hansa Singh v. State of Punjab (1976 SC) the deceased saw the accused commiting
an act of sodomy on his son, which enraged him and killed the deceased. It was held that it
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amounted to a grave and sudden provocation. The conviction under section 302 was set aside. He
was convicted under section 304 of IPC.
(b) Impossible attempts

In the impossible test guilty mind is punished even when the act itself is innocent. The crucial
aspect is the belief of the person and intention preceding his action to do a particular act. Illustration
(a) and (b) of section 511 is based on impossible test. These illustrations are following -
(a) Opening an empty box - A makes an attempt to steal some jewels by breaking open a box,
and finds after so opening the box, that there is no jewel in it. He has done an act towards
the commission of theft, and therefore is guilty under this section.
(b) Thrusting hand into empty pocket -A makes an attempt to pick the pocket of Z by thrusting
his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his
pocket. A is guilty under this section.
These illustrations clearly shows, it does not matter that it is after breaking open a box with
the intention of stealing jewels which he believes to be inside it or the person who picks
another’s pocket with the intention of picking whatever valuable he finds inside both
persons find their intentions incapable of fulfillment.
The crucial test was whether they had crossed the stage of preparation.
Munah Binti Ali v. Public Prosecuter (1958)

Accused was charged section 312 r/w section 511of with voluntarily attempting to cause one Chee
Yew Cheng to have miscarriage and in such attempt did insert an instrument into her vagina.
Whether an accused is liable for an attempt to cause abortion, when the woman (complainant)
was not actually pregnant, as it came to be known later. Accused was convicted under section 312
r/w section 511of the Malaysian Penal Code.
Asgarali Pradhania v. Emperor ( 21 July, 1933)

McNair, J. “On the facts stated in this case, and for the reasons already given, the appellant cannot
in law, be convicted of an attempt to cause a miscarriage. What he did was not an “act done towards
the commission of the offence” of causing a miscarriage. Neither the liquid nor the powder being
harmful, they could not have caused a miscarriage. The appellant's failure was not due to a factor
independent of himself. Consequently, the conviction and sentence must be set aside and the
appellant acquitted.” He was not held liable for miscarriage.
This judgment can be criticized and in this case impossible test should have been applied. Reason
is that he had intention of causing miscarriage. After this he purchased liquid and powder for this
purpose. It was preparation. Once he provided those liquid and powder for that purpose. He had
attempted. Again once he tried to put the liquid and powder into her mouth by holding her chin
was also attempt.
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Later on in Abhayanand Mishra v. State of Bihar (1961 SC) Justice Raghubar Dayal
defined the word “attempt” in wider sense and said- “A person commits the offence of ‘attempt to
commit a particular offence’ when (i) he intends to commit that particular offence; and (ii) he,
having made preparations and with the intention to commit the offence, does an act towards its
commission; such an act need not be the penultimate act towards the commission of that offence
but must be an act during the course of committing that offence.” penultimate act means final
act.
R. v. Shivpuri (House of Lords, May 1986)

In this case there was matter of smuggling of prohibited drugs. Accused was believing that he was
carrying prohibited drugs. When he was arrested he confessed. In due course the powdered
substance in the several packages was scientifically analysed and found not to be a controlled drug
but snuff or some similar harmless vegetable matter.
Whether an offence which is impossible to commit amounts to a conviction of an attempt. House
of Lords held that accused had committed offence. Principle laid down in this case is that the
accused is punished for his guilty although the act actually committed was innocent.
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ANNEXURE III
SN Contents P. No
1 Section 299 and Palani Goundan v. Emperor (1919, Mad. H.C.)
2 Section 300 Thirdly and Exception 4 of Section 300 and Leading case.
3 Motive, Intention and Murder
4 Differences and similarities between grave and sudden provocation and sudden
fight.
5 Problem based on Cheating (Section 415 Illustration i)
6 Problem based on Criminal Misappropriation (Section 403 Illustration a)
7 Differences and between theft and Criminal Misappropriation.
8 Differences between motive and intention.
9 Constitutional validity of section 309
Question 1(a) - A, B, and C assaulted their junior and fresher X in their hostel room while ragging
him. They punched and kicked him on non-vital parts of his body as he refused to dance on a song
played by them on their mobile phone. X fell down and became unconscious. Presuming him to
be dead they hanged him from the ceiling fan by a rope, so as to create an impression that X had
committed suicide. The post-mortem examination showed that death was due to asphyxiation.
Decide culpability of A, B and C with the help of decided case.
Answer
In this problem sections 201, 299, 321& 323 and ratio of judgment of Palani Goundan v. Emperor
(1919, Mad. H.C.) are involved. Actus non facit reum, nisi mens sit rea means the act itself does
not make a man guilty, unless the mind is also guilty.
Section 321 related to voluntarily causing heart and its punishment has been provided under
section 323. Section 299 deals culpable homicide.
Section 299 Culpable Homicide - Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily injury as is likely to cause death, or
with the knowledge that he is likely by such act to cause death, commits the offence of culpable
homicide.
or (b) Intention to cause bodily injury or (c) Knowledge. If either condition is missing, section 299
shall not be applicable.
Palani Goundan v. Emperor (1919, Mad. H.C.)
Husband struck a violent blow on the head with ploughshare. She became unconscious. It was not
shown to be a blow likely to cause death. He thought that she had died. So for concealment of
evidence, he hanged her. She died due to hanging. He was not liable either for culpable homicide
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or murder. He was liable only for causing of grievous hurt and concealing evidence. He had neither
intention nor knowledge to kill his wife.
(1) Section 299
(i) Cause – effect relationship
Here cause-effect relationship means death must be occurred by act of accused. If
reason of death is not act of accused then no further question arises regarding
application of guilty mind. In the Moti Singh v. State of UP, Supreme Court said that
there must be connection between the primary cause and the death which should not be
too remote.
In this problem Z died due to hanging him by all accused from the ceiling fan by a rope.
So in this case first condition of section 299 is being fulfilled.
(ii) Guilty Mind – Without guilty mind homicide is possible but culpable homicide is not
possible. In this problem there was no intention to cause death. Although there was
intention to cause bodily injury but bodily injury was on non-vital part by which there
was no probability to cause death. Here knowledge was that they were inflicting the
injury on non-vital part. But by that injury there was no probability to cause death.
So in this problem guilty mind as required under section 299 is missing.
So conclusion is that they will not be liable to culpable homicide. Here death occurred
due to hanging. At the time of hanging mere intention was to conceal the evidence
rather than to cause death.
(2) Palani Goundan Case

In this case it was held, “The conclusion is irresistible that the intention of the accused must
be judged, not in the light of the actual circumstances, but in the light of what he supposed
to be the circumstances. It follows that a man is not guilty of culpable homicide, if his
intention was directed only to what he believed to be a lifeless body.”
In this problem they presumed him to be dead. So they hanged him from the ceiling fan by
a rope, so as to create an impression that X had committed suicide.
So we can say that they had not committed culpable homicide.
(3) Voluntarily Causing Hurt

According to section 319 a person who causes bodily pain, disease or infirmity to any
person is said to cause hurt. Hurt is not punishable because here guilty mind is missing.
Only voluntarily causing hurt is punishable. According to section 321 if hurt is caused with
the intention or knowledge then it is called voluntarily causing hurt which is punishable
under section 323.
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In this problem A, B, and C had caused hurt voluntarily. This hurt is not coming under the
category of grievous hurt as mentioned in section 320. So they will be liable for voluntarily
causing hurt.
(4) Disappearance of evidence (section 201)

Presuming him to be dead they hanged him from the ceiling fan by a rope, so as to create
an impression that X had committed suicide. So they will be punished under section 201.
Conclusion
From the above discussion it becomes clear that A, B, and C had not committed culpable homicide.
They had committed offences under section 323 (voluntarily causing hurt) and section
201(Disappearance of evidence) of IPC, 1860.
Question 1(b) Ajay and Vijay got into an argument while playing cricket match. Ajay suddenly
struck Vijay with his cricket bat and vijay retaliated by forcefully hitting him on the head by the
cricket ball which he was holding. The injury so inflicted caused brain haemorrhage in Ajay and
he died soon afterwards. The doctor stated that the injury was sufficient in the ordinary course of
nature to cause death. A case was registered against Vijay under section 302IPC. Discuss the
criminal liability of Vijay citing relevant case law.
Answer
This problem is based on Section 300 thirdly and Exception 4 of section 300. Relevant cases for
this problem are Virsa Singh v. State of Punjab(1958 SC), Ghapoo Yadav & Ors. v. State of M.P.
( Feb. 2003) and Surain Singh v. The State of Punjab (April, 2017)
(1) Homicide
Death of Ajay is homicide committed by Vijay. Reason is that Ajay died due to injury caused by
Vijay.
(2) Culpable Homicide

There are two types of homicide namely; (1) Justified Homicide and (2) Unjustified Homicide.
Culpable Homicide is unjustified homicide which is committed with guilty mind.
Homicide is culpable homicide only both the conditions of section 299 are being fulfilled namely;
(1) Actus reus. There must proximate connection between death of victim and act of accused. In
this problem death of Ajay occurred due to act of Vijay. (2) Mens Rea (Guilty mind). Guilty mind
under section 299 can be divide three parts namely;(1) Intention to cause death or (2) intention of
causing such bodily injury as is likely to cause death, or (3) with the knowledge that he is likely
by such act to cause death. In this problem there was neither intention to cause death nor knowledge
that by his act it was likely to cause death.
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But in this problem there was intention to cause bodily injury and by such bodily injury there was
possibility to cause death. So Vijay had committed culpable homicide which comes under section
299 (b).
(3) Murder
Murder is at the third stage. First of all homicide have to be proved. If there is homicide then next
question arises whether it is culpable homicide. Once it is proved that there is homicide. Next
question arises whether that culpable homicide amounts to murder or not. In this problem it has
already been proved that there was homicide. Section 300 defines murder.
Section 300 Thirdly -Except in the cases hereinafter excepted, culpable homicide is murder, if
the act by which the death is caused is done
Thirdly -with the intention of causing bodily injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of nature to cause death. In the Virsa Singh v.
State of Punjab (SC 1958) Case it was said that there are two clauses of “Thirdly” and both clauses
are disjunctive and separate. Only intention is necessary for first part. For the first part ‘subjective
test’ will be applied and for second part ‘objective test’ will be applied.
In this problem there was intention to cause bodily injury. According to medical report that the
injury was sufficient in the ordinary course of nature to cause death.
So it becomes clear that this is the murder which comes under section 300,thirdly.
(4) Section 300 Exception 4

Once it is proved that there is murder. Accused can claim that although that is murder but it comes
under exceptions of section 300. So it is only culpable homicide. According to section 105 of
Indian Evidence Act in such cases burden of proof shall lies over accused.
Section 300 Exception 4 -Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel or unusual manner.
Ghapoo Yadav & Ors. v. State of M.P. ( Feb. 2003) and Surain Singh v. The State of Punjab
In these cases it was said that this section is based on act without premeditation. A fight suddenly
takes place, for which both parties are more or less to be blamed. A “sudden fight” implies mutual
provocation and blows on each side. The homicide committed is then clearly not traceable to
unilateral provocation, nor could in such cases the whole blame be placed on one side. There is
only that heat of passion which clouds men’s sober reason and urges them to deeds which they
would not otherwise do. The accused should not have taken undue advantage or acted in a cruel
or unusual manner.
Evaluation of Problem
(1) Without premeditation - In this problem Ajay and Vijay were playing cricket. There was
bonhomie between both. Suddenly argument started. For this there no pre-planning. It
occurred without premeditation.
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(2) Sudden quarrel & fight - Ajay suddenly struck Vijay with his cricket bat and vijay
retaliated by forcefully hitting him on the head by the cricket ball which he was holding.
In the case of Ghapoo Yadav Case and Surain Singh Case Supreme Court held that a
“sudden fight” implies mutual provocation and blows on each side. So in this case there
was sudden fight.
(3) Heat of passion – After striking of Ajay by cricket bat, passion of Vijay became heat. In
the case of Ghapoo Yadav Case and Surain Singh Case Supreme Court held that “There is
only that heat of passion which clouds men’s sober reason and urges them to deeds which
they would not otherwise do.”. This heat clouded Vijay’s sober reason. So he did.
(4) Without taking undue advantage or acted in a cruel or unusual manner. In this problem
Vijay retaliated by the cricket ball which he was holding. After this he did nothing. He did
not committed more injury.
Conclusion
From the above discussion it becomes clear that in this problem Vijay would be entitled to get
benefit of Exception 4 of Section 300. So he will be punished under Section 304 Part 1.
Question 2(a) –
Omprakash, a farmer was very depressed because of recurrent crop failure and economic hardship
caused thereby. He was hard pressed for money. To end his suffering once and for all times to
come he gave poison to his wife and two children. He planned to poison himself too but panicked
at last moment. The wife and children died of poisoning. Omprakash pleaded depression and
poverty as an excuse for killing his family. Will he succeed? Discuss.
Answer –
In this problem motive and intention are involved. Section 299(a) and section 300 firstly are also
involved.
Motive v. Intention
Motive and intention both are different. There are following differences -
Motive Intention
1 Motive is the feeling which prompts the Intention is an operation of the will
operation of the will. directing an overt act.
Intention is the combination of desire and
foresight of consequences.
2 It is the ulterior object. It is immediate object.
3 Motive is not part of crime. So either good Presence or absence of intention is very
motive or bad motive shall not be relevant for relevant. Rule is that “Actus non facit reum,
commission of offence. It means presence or nisi mens sit rea”
absence of motive is not relevant to constitute
offence. It is relevant to decide quantum of
punishment. It is relevant under section 8 of
Indian Evidence Act.
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Motive – Motive is not relevant factor to decide crime. Either good motive or bad motive is not
relevant to decide offence. Motive is relevant only at the time of deciding punishment. In this
problem motive is to end his suffering from poverty. It might be good motive for him. But it is not
relevant. He wanted to permanently get rid of poverty.
Intention – Presence or absence of intention is very relevant to decide the commission of offence.
He gave poison to his wife and two children. Intention was to kill family members. Omprakash
pleaded depression and poverty as an excuse for killing his family. He did not plead that there was
no intention to kill.
Culpable Homicide
He had caused culpable homicide with the intention of causing death. Justice Melvil (R v. Govinda,
July 18, 1876, Bombay High Court), to make differences between sections 299 and 300, divided
section 299 into three parts namely;(1) Sec. 299(a) (2) Sec. 299 (b) & (3) Sec. 299(c) and Justice
Ranjit Singh Sarkaria (State of A.P. v. R.Punnayya, September 15, 1976, Supreme Court) also
discussed differences and accepted the differences made by justice Melvil.
Omprakash had caused death with the intention of causing death. So this is culpable homicide
under section 299(a).
Murder (Section 300 Firstly)

Section 300 defines murder which is following -
Section 300 Firstly -Except in the cases hereinafter excepted, culpable homicide is murder, if the
act by which the death is caused is done with the intention of causing death.
Justice Melvil said that if there is intention to cause death then culpable homicide is always murder
unless it comes under exceptions of section 300.
So Omprakash has committed murder under section 300, firstly.
Conclusion
Motive is immaterial. There was intention to cause death. So Omprakash has committed murder
as defined under section 300, firstly. So he will be punished under section 302 of IPC, 1860.
Question 2(b)
Bring out the differences and similarities between grave and sudden provocation and sudden fight.
Answer –
I have already discussed at pp.4-5 of Annexure I. So no need to repeat here.
Question 7 (a)
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A sells and conveys a farmland to B. Thereafter he mortgages the same farmland to Z, without
disclosing the fact of the previous sale and receives the mortgage money from Z. What offence
has A committed?
Answer –
This problem is based on section 415 and its illustration (i).
Cheating (Section 415)
Section 415- Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces
(D FDI) the person so deceived to deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the person so deceived to do or omit
omission causes or is likely to cause damage or harm to that person in body, mind, reputation or
property, is said to “cheat”.
Explanation.-A dishonest concealment of facts is a deception within the meaning of this section.
Essential ingredients of section 415 were discussed by Supreme Court in Ram Jas Case.
Ram Jas v. State of U.P. (DOJ-11/09/1970 S.C.)
(1) The ingredients required to constitute the offence of cheating of under section 415 are:-
(2) There should be fraudulent or dishonest inducement of a person by deceiving him;
a. The person so deceived should be induced to deliver any property to any person, or
to consent that any person shall retain any property; or
b. The person so deceived should be intentionally induced to do or omit to do anything
which he would not do or omit if he were not so deceived; and
(3) In cases covered by (ii) (b), the act or omission should be one which causes or is likely to
cause damage or harm to the person induced in body, mind, reputation or property.
Illustration (i) of Section 415
A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to
the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and
conveyance to B, and receives the purchase or mortgage money from Z. A cheats.
Solution of Problem
(1) Deceiving – According to Explanation of section 415 a dishonest concealment of facts is a
deception within the meaning of this section. Here A who had already sold and conveyed
farmland to B. But this fact was concealed from Z. So A had deceived Z.
(2) Dishonestly – According to section 24 “Whoever does anything with the intention of
causing wrongful gain to one person or wrongful loss to another person, is said to do that
thing “dishonestly”.
Here A received mortgage money (wrongful gain defined under section 23) from Z for
which he was not authorised and he knew this fact. So he had received money dishonestly.
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(3) To deliver any property to any person – A had after deceiving fraudulently induced to
deliver the mortgage money and in consequence of this Z delivered money.
Conclusion
From the above discussion it may be concluded that A has committed cheating defined under
section 415 and punishable under section 420 of Indian Penal Code, 1860.
Question 7 (b)
A in good faith, believing property belonging to Z to be A’s own property takes that property out
of Z’s possession. After a week A realizes his mistake, but as Z didn’t complain. A keeps the
property himself. Has A committed any offence? Decide.
Answer
This problem is based on section 403 and its illustration (a).
Criminal Misappropriation
Section 403. Dishonest misappropriation of property- Whoever dishonestly misappropriates or
converts (DMC- Delhi Municipal Corporation. D- Dishonestly, M- Misappropriates, C-
Converts) to his own use any movable property, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
Ingredients – There are following essential ingredients of criminal misappropriation –
(1)Dishonestly (Section 24, Intention to cause wrongful gain or wrongful loss) (2)
Misappropriation or conversion (3) For his own use (4) Moveable property (Section 22)
Illustration (a) of section 403

A takes property belonging to Z out of Z’s possession, in good faith, believing, at any time when
he takes it, that the property belongs to himself. A is not guilty of theft;
but if A, after discovering his mistake, dishonestly appropriates the property to his own use, he is
This problem can be evaluated on the following grounds –
(1) Dishonestly- When A took the property in good faith, he did not commit any offence.
According to section 24 when a person does anything with the intention of causing
wrongful gain to one person or wrongful loss to another is said to do that thing dishonestly.
Here once A realized the mistake and decided to keep it at the same moment dishonestly
occurred. -
(2) Misappropriation or conversion – Once he decide to keep it, misappropriation occurred.
(3) For his own use - A keeps the property himself. This denotes that he keeps the property
for his own use.
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Conclusion
On the basis of above explanation of section 403 and its illustration (a) it becomes clear that A had
committed an offence of “Criminal Misappropriation” as defined and punishable under section
403 of Indian Penal Code, 1860.
Question 8 –
Write short notes –
(a) Explain and illustrate differences and between theft and Criminal Misappropriation.
(b) Bring out clearly the differences between motive and intention.
Question 8(a)
Criminal Misappropriation and Theft
Criminal misappropriation is very close to theft. There are following relation between both –
Theft Criminal Misappropriation
1 Movable Property Movable Property
2 Dishonest Intention Dishonest Intention
3 Temporary or Permanent Temporary or Permanent
Illustrations (b) and (l) and Explanation I
Pyare Lal Bhargawa Case.
1 Taking Taking /Found
(a) A TAKES property belonging to Z out of
Z’s possession, in good faith, believing, at any
time when he takes it, that the property belongs
to himself. A is not guilty of theft; but if A, after
discovering his mistake, dishonestly
appropriates the property to his own use, he is
(e) A FINDS a purse with money, not knowing
to whom it belongs; he afterwards discovers that
it belongs to Z, and appropriates it to his own
use. A is guilty of an offence under this section.
2 Out of possession Out of possession / Without possession
Above discussed illustration namely (a) and (e).
3 Dishonest intention Dishonest intention or in beginning good faith
and later on dishonest intention.
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Question 8(b)
Differences between motive and intention

Motive Intention
(1) Motive is the feeling which prompts the Intention is an operation of the
Definition operation of the will. will directing an overt act.
Intention is the combination of
desire and foresight of
consequences.
Illustration if a person kills another, the intention directs A with desire to kill B threw
the act which causes death, the motive is object from fourth floor to ground. He
which the person had in view, i,g., the foresighted that throwing from
satisfaction of some desire, such as revenge fourth floor was likely to cause
etc. death. So in this case in
presence of desire and foresight
there is intention.
2 It is the ulterior object It is immediate object.
3 Motive is not part of crime. So either good Presence or absence of
motive or bad motive shall not commission of intention is very relevant. Rule
offence. It means presence or absence of is that “Actus non facit reum,
motive is not relevant to constitute offence. It nisi mens sit rea”
is relevant to decide quantum of punishment. It
is relevant under section 8 of Indian Evidence
Act.
Example A removes a cow belonging to B to save her A is in a house which is on fire,
from being slaughtered. A will be liable for with Z, a child. People below
theft if other condition of theft are being hold out a blanket. A drops the
fulfilled. His good motive cannot save him. child from the house-top,
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.
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Question 1(b) Critically analyze the Constitutional validity of section 309
Gian Kaur v. State of Punjab (1996 SC)

The appellants Gian Kaur and her husband Harbans Singh were convicted by the Trial Court under
Section 306,IPC 1860 and each sentenced to six years R.I. and fine of Rs. 2,000/-, or, in default,
further R.I. for nine months, for abetting the commission of suicide by Kulwant Kaur. On appeal
to the High Court, the conviction of both has been maintained but the sentence of Gian Kaur alone
has been reduced to R.I. for three years. These appeals by special leave are against their conviction
and sentence under Section 306.
The conviction of the appellants has been assailed, inter alia, on the ground that Section 306 is
unconstitutional. The first argument advanced to challenge the constitutional validity of Section
306 rests on the decision in P.Rathinam v. UOI ,(1994) SCC 394, by a Bench of two learned Judges
of this Court wherein Section 309 has been held to be unconstitutional as violative of article 21 of'
the Constitution. It is urged that right to die' being included in article 21 of the Constitution as held
in P. Rathinam declaring sec.309 to be unconstitutional, any person alletting the commission of
suicide by another is merely assisting in the enforcement of the fundamental right under article 21
and, therefore, section 306 penalising assisted suicide is equally violative of Article 21.
Decision – Section 306 and section 309 both are constitutional and they are not violative.
P.Ratthinam Case was overruled by Constitutional Bench.
Reason of decision
Relation between Article 21 and section 309- (1)To give meaning and content to the word ‘life’
in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it
dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with
the continued existence of life resulting in effacing the right itself. The ‘right to die’, if any, is
inherently inconsistent with the ‘right to life’ as is ‘death with life’.
(2) ‘Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination
or extinction of life and, therefore, incompatible and inconsistent with the concept of ‘right to
life’.
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RIGHT TO DIE
HC 1987 Maruti Shri Pati Right to life includes right to die. Section 309 has been
Dubal v. State of declared unconstitutional
Maharashtra
HC 1988 Chenna agadeeswar Right to life does not include right to die. Section 309 is
and Anr. v. State of constitutional.
Andhra Pradesh
SC 1994 P.Rathinam v. UOI Right to life includes right to die. Section 309 has been
declared unconstitutional.
1996 Gian Kaur V. State of Right to life does not include right to die. Section 309 is
Punjab constitutional.
12 EUTHANASIA
2011 Aruna R.Shanbaugh J.Markandey Katju- Passive euthanasia was allowed and
v.UOI for this guidelines were laid down.
3 09 Common Cause (A (1) Right to die with dignity is a fundamental right under
Mar Regd. Society) V. Article 21, (2) Passive euthanasia is legally valid and
ch Union of India and (3) Living will is legally valid.
2018 Another. Meaning of Living Will- Living will is a written
document that allows a patient to give explicit (express)
instructions in advance about the medical treatment to be
administered when he or she is terminally ill or no longer
able to express informed consent.
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ANNEXURE IV
(Previous Year Questions related to Sections 34 &149, LLB-DU)
2010 Question (a) – “The essential distinction between section 34 and 149 of IPC is between
‘participation’ and ‘membership’ respectively”. Discuss.
Answer
Participation and section 34-- For application of section 34, participation of each and every person
is necessary. Merly member of group is not sufficient. Particiation may be either in form of overt
act or covert act. In the case of Barendra Kumar Ghosh v. king Emperor (23 Oct.1924.P.C. Post
Office case), Lord Sumner said, “They also serve who only stand and wait”. Standing and waiting
of Barendra Kumar Ghosh outside of Post office was treated in participation in commission of
crime. The participation must be in doing the act, not merely in its planning. It was accepted that
leading feature of section 34 is ‘participation’.
Shreekantiah Ramayya Munipalli v. State of Bombay (1955 SC) Supreme Court held that
physical presence is necessary for participation in commission of crime for application of section
34. But in the case of J.M. Desai v. State of Bombay (1960 SC) Supreme Court held that
participation need not in all cases be by physical presence. In offences involving physical violence,
normally presence at the scene of offence of the offenders sought to be rendered liable on the
principle of joint liability may be necessary, but such is not the case in respect of other offences
where the offence consists of diverse acts which may be done at different times and places.
This Court again in Tukaram Ganapat Pandare v. State of Maharashtra (Feb. 6, 1974) reiterated
that section 34 lays down the rule of joint responsibility for criminal act performed by a plurality
of persons and even mere distance from the scene of crime cannot exclude the culpability of the
offence. “Criminal sharing, overt or covert, by active presence or by distant direction making out
a certain measure of jointness in the commission of the act is the essence of section 34”.
In the case of Suresh v. State of Uttar Pradesh (SC2001) Supreme Court held that the act
mentioned in section 34 IPC need not be an overt act, even an illegal omission (covert) to do certain
act in certain situation can amount an act. Due to scientific development a person may actively
participate in the commission of crime from far away (It is my example - In Mumbai attack in
2008 some terrorist in sitting Pakistan were guiding another terrorist who were directly involve in
commission of crime). In this case the Court said that due to advancement of electronic equipment
like binoculars or mobile phones a person may effectively participate in commission of crime.
Membership and section 149 – Under section 141 ‘Unlawful Assembly’ has been described. The
word ‘offence in clause Third of section 141 is intended to include all offences both against body
and property.132 Section 142 declares who is member of unlawful assembly. For being a member
of unlawful assembly, he must aware about common object of the assembly. If some entered into
the assembly merely due to curiosity to know about object of the assembly, he cannot be declared
132
Ghansa Singh v. State of Rajasthan (AIR 1958 Raj. 226).
185
member of the assembly. According to section 142 “Whoever, being aware of facts which render
any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said
to be a member of an unlawful assembly.” Here ‘continues’ means physical presence with the
knowledge of unlawful character of the assembly. A member of unlawful assembly may withdraw
from the assembly. It may be either actual and voluntarily or involuntarily depending on the facts
and circumstances of the case.
Section 149 –“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.”
Section 149 is very wider. There are two parts of section 149 namely (1) Offence is committed in
prosecution of common object, and (2) Members knew to be likely to be committed. For
application of section 149 participation of every member is not necessary. Being a member of
unlawful assembly is sufficient for application of section 149.
Example- A, B, C, D, and E (Five persons) decided to commit murder of X in night. They were
going towards house of X. E was behind all other fellows. He fell into dug which was very deep.
E was unable to come out. In next day with the help of villagers he came out. Other members were
too much busy. They forgot E and committed murder of X.
E will not be liable. Reason is that he was not member at the time of commission of murder of X.
Section 149 will also will not be applicable. According to section 149 person must be member at
the time of the committing of that offence.
2010 Question (b)

A,B,C, and D attacked E a lady who was allegedly having illicit relationship with X. A inflicted
an injury on the backside of E near her shoulder with a weapon uttering words “die with this”. B
gave blow with a ganadasa on the right side of the head while C and D gave blow on the neck.
Thereafter, all ran away and E died on the spot. Medical examination confirmed death due to head
injury. While all four (A,B,C, and) are being prosecuted for causing death to E. C and D take the
plea that the injury caused by them is not fatal hence should not be held liable for death of B along
with other. Is the plea of C and D acceptable as per law, if not, give reasons.
Answer
In this case sections 302 r/w 34 and differences between similar/ same intention and common
intention are involved. This case is open ended. Here question is silent whether there was common
intention or not. From the facts there is possibility of presumption of two things namely; (1)
presence of common intention and (2) presence of similar/same intention.
(1) Presence of common intention - From the nature of attack over E by A, B, C, and D , it can
be presumed that there was common intention to cause death of E.
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Section 34 -Acts done by several persons (Section 11) 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.
According to section 34 if any crime is committed in furtherance of the common intention of all,
liability of each person shall be equal.
Here C and D will also be liable for murder. Reason is that they actively participated in furtherance
of the common intention of all i.e. causing death of E. So C and D will also liable for causing death
of E. Plea of C and D is not acceptable.
(2) Presence of similar/same intention – In the case of Mahaboob Shah v. Emperor (1944), Sir
Madhavan Nair said, “…Care must be taken not to confuse same or similar intention with
common intention, the partition which divides ‘their bonds’ is often very thin ; nevertheless, the
distinction is real and substantial , and if overlooked , will result in miscarriage of justice..”
Suppose in this case there was neither pre-meeting of mind nor it developed on the spur of the
moment. There was only similar intention i.e. to cause death of E. In such types situation C and D
will be liable only for causing grievous hurt rather than for the death of E.
Conclusion
In the presence of common intention C and D will also be liable for causing death. In the absence
of common intention and presence of similar intention C and D will be liable only for causing
grievous hurt.
2014 Question 7.
(a) “Establishment of an overt act is not a requirement of law to allow Section 34 to operate in as
much as the Section gets attracted when a criminal act is done by several persons in furtherance of
a common intention of all.” Explain.
Ans. Already discussed.
2015 Question 5 (20 Marks) –

Six persons enter a house at night to commit theft. While others are busy looking for valuables on
the ground floor of the house, one of them climbs up to the first floor of the house and finding the
maid servants sleeping alone there rapes her and threatens to kill her if she raises an alarm. Then
he comes down and joins his associates in the process of collecting valuables after which they all
leave the house. Discuss the laibility of all of them for the offences of theft and rape.
Answer –
Section 149 is very wider. There are two parts of section 149 namely (1) Offence is committed in
prosecution of common object, and (2) Members knew to be likely to be committed. Here if a
member of unlawful assembly (section 142) knew that it was possibility to be committed an
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offence although it was not in prosecution of common object, he will be liable for commission of
that act. For application of section 149 participation of every member is not necessary. Being a
member of unlawful assembly is sufficient for application of section 149.
Theft was done in prosecution of common object.

Rape was neither done in prosecution of common object nor other members knew that such act
was likely to be committed.
Conclusion – For theft all the members will be liable.
For rape only one member who had committed rape will be liable for rape. Other members will
not be liable for rape.
2015 (OC) Question 4 (20 Marks) –

ABCD and E went to the office of X at night to commit theft in the office knowing it to be guarded
by the watchman. While they were committing theft, watchman came there and tried to stop them.
ABCD and E started assaulting him while E took out small knife from his pocket and killed the
watchman. Discuss the liability of all.
Answer –
Theft – Theft was done in prosecution of common object. For theft all the members will be liable.
Voluntarily Causing Hurt – All the members will be liable for voluntarily causing hurt.
Liability for death - Knife was small. E took out small knife from his pocket and killed the
watchman . Liability of other members depends upon knowledge of knife into pocket of E. If they
had knowledge about knife then they knew that it might be used. So they will liable for causing
death of watchman. If they had no knowledge then they will not be liable for death of watchman.
Causing death was done in prosecution of common object.
2016 Question 2 (b) (20 Marks) –

In the wake of demonetization a group of 50 people forcibly entered a leading bank and started
vandalizing the premises. The bank employees who intervened or tried to restrain the crowd were
assaulted. Five group members who carried lathis and rods with them played an active part whereas
the rest of the people quietly witnessed the proceedings. The two bank employees sufferred
grievous injuries and one another suffered simple hurt. Discuss the liability of those who were
armed and those who were unarmed.
Answer –
All the members will be liable. Reason is that they were member of unlawful assebmly. They kney
that other person who were carrying lathis and rods they will use for causing hurt or grievous hurt.
There is no difference between the liability of those who were armed and those who were unarmed.
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ANNEXURE V
MARITAL RAPE, RAPE AND POCSO ACT, 2012
Meaning of Marital Rape - Marital means pertaining to marriage. Sexual intercourse between
husband and wife is called marital sexual intercourse. Essence of rape is consent. If sexual
intercourse is occurred in presence of free consent there is no rape. If it is happened without free
consent, it is rape.
If husband has made sexual intercourse against the consent of her wife, this is marital rape.
Difference between marital rape and rape is that in case of marital rape sexual intercourse occurred
between spouses against free consent of another spouse. In case of rape sexual intercourse occurred
between two persons (In some countries rape laws are neutral and in some countries it is gender
based. In India it is gender based. Only man can commit rape.) against free consent of another
person. Here relationship of husband and wife is missing.
Common in both Marital Rape Rape
Essence of both rapes is Existence of relationship Here there is marital
against free will of another between husband and wife is relationship.
person. sine qua non.
Basis of non-marital rape- The exemption for marital rape stems from a long out-dated notion of
marriage which regarded wives as no more than the property of their husbands. According to the
common law of coverture, a wife was deemed to have consented at the time of the marriage to
have intercourse with her husband at his whim. Moreover, this consent could not be revoked. Sir
Matthew Hale in his book ‘The History of the Pleas of the Crown’ published in 1736 declared:
“The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract the wife hath given herself up in this kind unto her
husband which she cannot retract”. Essence of rape is against will or consent of woman. According
to Mr. Hale consent is given at the time of getting marriage. From that woman cannot retract from
own words. Thought of Mr. Hale was good at that time. In most of the countries marriage
institution was treated sacrament. In Religious phenomenal there was no scope for wife to take
divorce. After changing of time wives were allowed to take divorce under certain circumstances.
Now wife has also independent personality. She has right to live with dignified life. Several
countries have declared sexual intercourse with wife against her will or without her free consent
is rape.
English Law
Sexual Offences Act 1956 rape was not possible by husband even marriage is invalid. According
to Section 6 (2) Where a marriage is invalid under section two of the Marriage Act, 1949, or
section one of the Age of Marriage Act, 1929 (the wife being a girl under the age of sixteen), the
invalidity does not make the husband guilty of an offence under this section because he has sexual
intercourse with her, if he believes her to be his wife and has reasonable cause for the belief. By
section 142 of the Criminal Justice and Public Order Act 1994 definition of rape was changed.
189
This immunity has now been withdrawn in most major jurisdictions. In England and Wales, the
House of Lords held in 1991 that the status of married women had changed beyond all recognition
since Hale set out his proposition. Most importantly, Lord Keith, speaking for the Court, declared,
‘marriage is in modern times regarded as a partnership of equals, and no longer one in which the
wife must be the subservient chattel of the husband.’
Section 142 of the Criminal Justice and Public Order Act 1994 abolished the marital rape exception
by excluding the word 'unlawful' preceding 'sexual intercourse' in s. 1 of the Sexual Offences Act
1956.133
Judgment of the European Commission of Human Rights in C.R. v UK which endorsed the
conclusion that a rapist remains a rapist regardless of his relationship with the victim.
Importantly, it acknowledged that this change in the common law was in accordance with the
fundamental objectives of the Convention on Human Rights, the very essence of which is respect
for human rights, dignity and freedom. This was given statutory recognition in the Criminal Justice
and Public Order Act 1994.” In U.K. marital rape is a kind of rape which is punishable
Difference between UK and India

United Kingdom India
A man can commit rape of man or woman. Here rape of man is not possible.
Section 142 of the Criminal Justice and
Public Order Act 1994 definition of rape
was changed.
Here marital rape is rape. Here if the age of wife is above the age of 18 years,
marital rape is not possible. This must be read in the
light of Independent Thought Case.
J.S. Verma Committee recommended that the
exception for marital rape must be removed. But
this recommendation was rejected at the time of
making amendment in criminal law.
USA
In Eisenstadt v. Baird the US Supreme Court observed that a “marital couple is an independent
entity with a mind and heart of its own, but an association of two individuals each with a separate
intellectual and emotional makeup.”
Canada, South Africa and Australia

These countries have declared marital rape as rape.
133
J.S. Verma Committee Report, Page no.114, Available at:
https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20
report.pdf (Visited on December 1, 2018).
190
India
Section 375, Exception 2 -“Sexual intercourse or sexual acts by a man with his own wife, the wife
not being under fifteen years of age, is not rape.”
Marital Rape can be divided into three parts namely;
(1) Minor Marital Rape (Birth to 15 Yrs.)

(2) Minor Marital Rape (Since 15 years – 18 Years)
(3) Adult Marital Rape (Since 18 Years to onwards).
Marriage Marriage Marriage

Since birth to 15 years Since 15 years – 18 Years Since 18 Years to onwards
Rape Rape No Rape
Reason -Exception of section Reason –Interpretation of Reason –Interpretation of

375. Marital Rape from the Exception -2 of section 375 in Exception -2 of section 375 in
very beginning the case of Independent the case of Independent
Thought Thought. In this case SC did
not consider beyond statutory
provisions.
(1) Minor Marital Rape (Birth to 15 Yrs.)– This is marital rape declared by the Indian Penal
Code under section 375, Exception 2. Section 375, Exception 2 says “Sexual intercourse
or sexual acts by a man with his own wife, the wife not being under fifteen years of age,
is not rape.” It means if wife is below the age of fifteen years then sexual intercourse or
sexual acts by her husband whether with consent or without consent of her will amount to
rape. If wife is above the age of 15 years, then there is no rape. Sexual intercourse by
husband with wife who is above 15 yrs. and below 18 years was challenged in Independent
Thought Case.
(2) Minor Marital Rape (Since 15 years – 18 Years) – Exception 2 of section 375 deals
marital rape. According to bare reading of this provision sexual intercourse with wife
(Since 15 years – 18 Years) by husband is not rape. But after the decision of Independent
Thought case this is the rape.
After the decision of division bench of Supreme Court in the case of Independent Thought
v. Union of India on October 11, 2017 sexual intercourse by a husband with his wife
whether with or without consent is rape if she is below the age of eighteen years. It was
interpreted in the light of POCSO and Article 14 of the Constitution of India.
In the case of Independent Thought v. Union of India Supreme Court confined itself only
with marital rape of a girl child between 15 and 18 years of age in the context of Exception
2 to Section 375 of the IPC.
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(3) Adult Marital Rape – In India Adult Marital Rape is no rape. But marital rape victim has
civil remedy under the Protection of Women from Domestic Violence Act, 2005.
Justice J. S. Verma Committee Report - The IPC differentiates between rape within
marriage and outside marriage. Under the IPC sexual intercourse without consent is
prohibited. However, an exception to the offence of rape exists in relation to un-consented
sexual intercourse by a husband upon a wife. The Committee recommended that the
exception to marital rape should be removed. Marriage should not be considered as an
irrevocable consent to sexual acts. Therefore, with regard to an inquiry about whether the
complainant consented to the sexual activity, the relationship between the victim and the
accused should not be relevant.
J.S.Verma Committee said that notion has changed and now wife is not property of
husband. Even the United Kingdom and several other countries have changed its law. The
Committee was in favour of deletion of section 375 Exception and declaration of marital
rape as a rape in India also.
Report of this Committee was discarded.
Recommendation of Human Rights Council- In the Report of the Human Rights Council
on its thirty-sixth session recommended to remove exception for IPC and declare marital
rape as rape (June 2018).134
QUESTION 7 (B) (2015)

“Rape is a question of law.” Explain the essentials of crime of rape. How is this law different from
the law against sexual assault provided under POCSO.
Answer
Rape under IPC - According to section 375 “Rape is PIMA committed by a man (section 10)
against woman (section 10) under seven circumstances and which does not come under two
exceptions.” I have already discussed rape. So no need to repeat again and again.
Categories of offences under POCSO Act, 2012 – There are six categories of offences which are
following- (1)Penetrative Sexual Assault (Section -3) (2) Aggravated Penetrative Sexual Assault
(Section - 5) (3) Sexual Assault (Section - 7) (4) Aggravated Sexual Assault (Section -9) (5) Sexual
Harassment of the Child (Section - 11) (6) Use of Child for Pornographic Purposes (Section -13).
Sexual Assault (Section 7) - Section 7 of POCSO Act which deals ‘Sexual assault’ says ,
“Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the
child touch the vagina, penis, anus or breast of such person or any other person, or does any other
act with sexual intent which involves physical contact without penetration is said to commit sexual
assault. Section 8 deals punishment for Sexual assault.
134
Available at:
https://www.ohchr.org/en/hrbodies/hrc/regularsessions/session36/pages/36regularsession.aspx
192
Difference between POCSO Act, 2012 and Rape under IPC, 1860
Basis POCSO Act, 2012 IPC, 1860

Sex It is gender neutral. Here accused may be It is gender specific. In case of rape
either man or woman. Even gender of victim only man can commit rape. Only
is immaterial. Victim may be either man or woman can be victim of rape.
woman.
Age It covers only child. Here child means any In case of rape age of woman is
person below the age of eighteen years immaterial. It covers minors as well
(section 2 (d)). Sex of child is immaterial. It as majors.
does not cover persons who have attended
age of majority.
Marriage It covers all types of women whether married Section 375,Sixthly- Sexual
or unmarried if she is below the age of intercourse with a woman who is
eighteen years. under the age of eighteen years is
rape and her consent is immaterial.
Marital Intercourse- Exception 2 of
section 375. It says that sexual
intercourse with wife with or without
consent is not rape if she is above the
age of fifteen years.
Nature Special Law. Combined reading of Article General Law. According to section
of law 15(3) of Constitution of India and sections 5 5 IPC shall not affect special laws.
& 41 it becomes clear that in case of conflict Section 41 Special law is a law
between general law (IPC) and special law applicable to particular subject.
(POCSO Act), special law shall prevail over Article 15(3) State is empowered to
general laws. make special laws.
Relation Independent Thought Case. In this case Exception 2 of section 375was declared
between unconstitutional. It was inconsistent with POCSO Act, 2012, Articles 14, 15 and 21
IPC, of the Constitution of India and section 375, sixthly of IPC.
POCSO
& Const.
Independent Thought v. Union of India & Anr. (11Oct. 2017.)

This case is a leading case which was decided by Division Bench of Supreme Court on
October 11, 2017. In this case triangle relationship of POCSO, IPC and Constitution was involved.
193
Independent Thought v. Union Of India & Anr. (11Oct.2017.)

Married Unmarried
(1) Section 375 Exception 2 is arbitrary to Articles 14, 15 &
Below Below
21 of the Constitution of India. It is unconstitutional. It
15Yrs 15Yrs
makes unreasonable classification between married (15 -
Rape Rape
18 no rape) and unmarried girl (15 -18 years – Rape).
(2) It is inconsistent with the provisions of POCSO, which
Married Unmarried must prevail.
15 -18Yrs Below (3) Now in all cases, sexual intercourse with a women
18Yrs including wife, if she is below the age of 18 years, is rape.
No Rape Rape (4) In this way, now, there is no difference between
unmarried and married women. If wife is below the age of
18 years, and husband makes sexual relation with his wife
whether with consent or without consent, it would be
amount to rape.
Question No. 5 (2016)

Meenu, a 16 years old girl worked as domestic servant in Anita’s house. Anita lost her necklace
and suspected that Meenu had stolen it. She filed a complaint against Meenu and both were called
to the police station. Meenu came with her mother and Anita came with her husband. All were
asked to leave the police station except Meenu, whose presence was required for further
investigation. A Gopal a police constable then had sexual intercourse with Meenu in the Police
Station, whereas another constable Madan touched her private parts. Meenu said that she did not
consent to the sexual intercourse and had protested touching her body in an appropriate manner.
Can Gopal and Madan held liable for rape?
Answer
In this problem Tukaram v. State of Maharashtra (Mathura Rape Case) (1978), section 375 (a),
(c), Sixthly, section 376 C, and section 376D of IPC are involved.
Tukaram Case was decided by Supreme Court in 1978 in which it was said that there were no
physical injury on body of victim. It means she had not resisted. She had given implied consent.
Appellant was acquitted. After this decision, movement started all over India against ratio of this
judgment. Rape law was amended in 1983. Again after Delhi Gang Rape case definition of rape
was substituted and punishment was made harsher. In the light of current definition of rape under
section 375, this problem needs to be discussed.
According to section 375 (a) a man is said to be commit rape if he penetrates his penis, to any
extent, into the vagina, mouth urethra or anus of a woman or makes her to do so with him or any
other person.
194
According to section 375 (c) a man is said to be commit rape if he manipulates any part of the
body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of
such woman or makes her to do so with him or any other person.
First part of section 375 deals about actus reus and second part deals mens rea.
According to section 375 sixthly, if prohibited act is done with or without her consent, when she
is under eighteen years of age then it is rape.
Section 376 C deals punishment for sexual intercourse done by person in authority and Section
376 D deals punishment for gang rape.
Meenu, was 16 years old girl. So according to section 375 sixthly, her consent was immaterial.
Even she had also said that she had not given consent. Gopal had sexual intercourse with Meenu
in the Police Station. So sexual intercourse made by Gopal had fallen into section 375(a). He has
penetrated his penis into vagina of Meenu. Madan touched her private parts which will come under
section 375(c). He was touching the private parts of Meenu to cause penetration.
Gopal was police constable and Madan was constable. They had raped into police station. So they
will be punished under section 376 C. If they had raped in furtherance of common intention, they
will also be liable for ‘Gang rape’ under section 376D of IPC.
Conclusion
From the abode discussion it becomes clear that Gopal and Madan will be held liable for rape
under section 376 C and section 376D of IPC.
Question 7 (2015 OC)

Seema, girl of 16 years had sexual intercourse with her boyfriend Mohan on the promise made by
him of getting married. However, he went to Bombay and stopped entertaining her any more.
Seema filed a complaint against her boyfriend of committing rape on the pretext of getting married.
Decide what offence has been committed by the Mohan.
Answer (Already discussed)

Section 375(a).
Section 375 is gender specific. Only man commits rape. Rape con be committed only of woman.
There are two parts of section 375 namely; (1) Actus reus - (a) to (d) (2) Mens rea –Firstly to
Seventhly.
Seema is woman and Mohan is man. Mohan had sexual intercourse with Seema. Sexual intercourse
means penetration of penis into vagina (including labia majora), urethra anus or mouth. So sexual
intercourse of Mohan with Seema will come under section 375(a).
Section 375 Sixthly
Seema was below the age of eighteen years. She was age of sixteen years. According to section
195
375 sixthly, sexual intercourse with a woman who is under the age of eighteen years is rape and
her consent is immaterial. So Mohan has committed rape.
Section 375 Secondly, Section 90 & Deepak Gulati Case
According to section 90, a consent is not such a consent as it 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.
Section 375 Secondly – If PIMA is done against consent of woman then such PIMA will be rape.
Deepak Gulati v. State of Haryana (SC 2013)- Intercourse under promise to marry constitutes
rape only if from initial stage accused had no intention to keep promise. An accused can be
convicted for rape only if the court reaches a conclusion that the intention of the accused was mala
fide and that he had clandestine motives.
In this problem Seema had sexual intercourse with her boyfriend Mohan on the promise made by
him of getting married. It means Seema was under misconception of fact that Mohan will get
marriage. While Mohan knew that Seema had ready to make sexual intercourse on his promise to
get marriage. But he went to Bombay and stopped entertaining her. It means he was not interested
in getting marriage. He had mala fide and clandestine motives. So Mohan has committed rape.
Conclusion
From the above discussion it becomes clears that Mohan has raped Seema.
Question 5 (2012)
M, a young girl of 16 years having lost her both parents lived with her brother G. M developed
relationship with A and they decided to get married. G filed a report with police that A had
kidnapped M. The police swung into action and brought M, G, and A to the police station at 8p.m.
when their statement were recorded. After recording their statements, the inquiry officer left the
station. When M, G, and A started leaving the police station at around 9.30 PM, T a head constable
and P , a constable directed the M remain at police station for further investigation. Immediately,
thereafter T and P took M into a room. T loosened her underwear, lit a torch and stared at her
private parts. He then felled her on the floor in the room and had sexual intercourse with her. P
was impatience to have sexual intercourse with M but could not do so as there were wide protests
from G and A outside as a result of which a crowd had collected outside the police station.
The crowd broke open the gate and apprehended T and P. It was found that P had already
unbuttoned his trousers. While coming out of the police station, M cried repeatedly that she had
been subjected rape by T. She further cried that had she not been rescued by the people P too would
have raped her. Accordingly, FIR was lodged against T and P for the offence of rape. After
investigation T and P are being tried for the offence of rape u/s 376 (2) (a) and (g) of IPC.
The defence of T and P at the trial, inter alia ( among other things) , is that it was M who had
shown interest in them and that she had voluntarily played back and shown no resistance when T
196
and P purposed sexual intercourse to her. Further, P’s defence is that he cannot be held guilty as
he had no sexual intercourse with her.
Discuss whether the prosecution can succeed in proving the guilt of the accused P & T under
sections 376(2)(a) & (g) of IPC.
Question 5(a) (2015)

Akriti, a girl of 17 years of age ran away with her boyfriend. She was brought to the police station
as her father had filed a complaint of kidnapping against her boyfriend. Sexual intercourse in the
police station between Akriti and Ghanshyam, a police constable was proved. Akriti said that she
did not consent to the sexual intercourse. There are no marks of injury on her person or that of
Ghanshyam. Can Ghanshyam be held liable for rape?
Answer (Question 5 (2012) Question 5(a) (2015)

(I am replying the answers according to current position of law i.e. law in 2018)
In these problems Tukaram v. State of Maharashtra (Mathura Rape Case) (1978), section 114A of
the Indian Evidence Act and section 375 (a), secondly, sixthly, Explanation 2 of IPC are involved.
Tukaram v. State of Maharashtra (Mathura Rape Case)
Mathura’s parents died when she was a child and she was living with her brother, Gama. Both of
them worked as labourers to earn a living. Mathura used to go to the house of Nunshi for work and
during the course of her visits to that house she came in contact with Ashok who was the sister’s
son of Nunshi. The contact developed into an intimacy so that Ashok and Mathura decided to
become husband and wife. On 26th of March, 1972 Gama lodged a report at the police station
alleging that Mathura had been kidnapped by Nunshi, her husband Laxman and Ashok. The report
was recorded by Head Constable Baburao, at whose instance all the three persons complained
against as well as Mathura were brought to the police station at about 9 p.m. and the statements of
Ashok and Mathura were recorded. By that time, it was 10.30 p.m. and Baburao asked all the
persons to leave with a direction to Gama to bring a copy of the entry regarding the birth date of
Mathura. After Baburao left Mathura, Nunshi and Gama and Ashok started to leave the police
station. The appellants, however, asked Mathura to wait at the police station and told her
companions to move out. The direction was complied with. Immediately thereafter Ganpat took
Mathura into a latrine room and raped her and thereafter dragged her to a Chhapri on the back side
and raped her again. Thereafter, Tukaram fondled with her private parts but could not rape her
because he was in a highly intoxicated condition. Nunshi, Gama and Ashok who were waiting
outside the police station for Mathura grew suspicious. They therefore shouted and attracted a
crowd. Thereafter, a complaint was lodged.
Mathura was examined by a doctor who found that she had no injury on her person. Her hymen
revealed old ruptures. The vagina admitted two fingers easily. The age of the girl was estimated
by the doctor to be between 14 and 16 years. The Chemical Examiner did not find the traces of
semen in the pubic hair and vaginal-smear slides. The presence of semen was, however, detected
on the girl’s clothes.
197
Supreme Court wrongly presumed and said that there could be no fear because the girl was taken
away by Ganpat from amongst her near and dear ones. On the point of consent of the victim
Supreme Court said that no marks of injury were found on the person of the girl after the incident
and their absence goes a long way to indicate that the alleged intercourse was a peaceful affair. SO
it was matter of “passive submission”. In this case appellants were acquitted. At that time burden
of prove lies over prosecution.
Effect of Tukaram Case - Against ratio of this judgment protest started all over India. Due to
public pressure criminal laws were changed to nullify the ratio of judgment of this case. In 1983
Indian Evidence Act, IPC and Cr.P.C. were amended at large scale. Section 114A were inserted in
Indian Evidence Act and definition of rape was substituted.
After Delhi Gang Rape Case in 2013 again due to pressure of public criminal laws were amended
in 2013. After Kathua and Unnav Rape Case again criminal laws were amended in
2018.
Section 114A
According to section 114A of Indian Evidence Act, in rape cases if question arises whether sexual
intercourse had been done with or without consent then Court shall presume that there was absence
of consent if two conditions are being fulfilled –
(i) where sexual intercourse by the accused is proved and
(ii) such woman states in her evidence before the court that she did not consent.
If both the conditions is proved then presumption of absence of consent will be and burden of prove
regarding presence of consent shall lies over accused.
Explanation 2 of section 375

According to Explanation 2 of Section 375, “Consent means an unequivocal voluntary agreement
when the woman by words, gestures or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.”
‘Provided that’ has been inserted to prevent repetition like ratio of Tukaram Case.
Section 90
According to section 90, a consent is not such a consent as it 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.
Deepak Gulati Case

Deepak Gulati v. State of Haryana (SC 2013)- Intercourse under promise to marry constitutes rape
only if from initial stage accused had no intention to keep promise. An accused can be convicted
198
for rape only if the court reaches a conclusion that the intention of the accused was mala fide and
that he had clandestine motives.
Evaluation of Problems
Sexual intercourse between Aktiti and Ghanshyam is being evaluated on following grounds-
(1) Sexual intercourse between Aktiti and Ghanshyam will come under section 375(a).
(2)Aktiti was below the age of 18 years. So her consent was immaterial. Her rape comes under
section 375 sixthly.
(3) She had not given consent. Both conditions of section 114A are being fulfilled. First condition
i.e. sexual intercourse has been proved between Akriti and Ghanshyam, a police constable. Second
condition i.e. denial of giving consent had also been proved i.e. Akriti said that she did not consent
to the sexual intercourse. So Court shall presumed that there was no consent.
(4) According to Explanation 2 of 375, a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as consenting to the sexual
activity. So marks of injury on her person or that of Ghanshyam is immaterial.
Conclusion
From the above discussion it becomes very clear that Ghanshyam has committed rape.
Question 5(b) 2013

You are required to decide the criminality of Tukaram and Ganpat under Law as amended under
the Criminal Law (Amendment) Act, 2013 in the following facts and circumstances:
Mathura, an unmarried girl about 18 years of age was called to police station by the above named
policemen in respect of her role in a kidnapping case. After she came out of the police station she
complained that the above two accused confined her in one room and Ganpat undressed her and
before having penile penetration in her vagina he inserted two of his fingers in her vagina. It was
at that time that she was able to run away from the room by forcefully pushing both of them on
one side. She stated that she could thus save herself from being forced to penile sexual intercourse
against her will and without her consent. She also stated in her statement to the police that when
Ganpat had overpowered her, Tukaram was also undressing himself with intent to have forced
penile sexual intercourse with her. Decide.
Answer
Rape
According to section 375 (b) A man is said to commit "rape" if he inserts, to any extent, any object
or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes
her to do so with him or any other person.
199
In this problem Ganapat inserted two of his fingers in her vagina. It was without consent. . It was
at that time that she was able to run away from the room by forcefully pushing both of them on
one side. She stated that she could thus save herself from being forced to penile sexual intercourse
against her will and without her consent. According to section 114 A of IEA once insertion is
proved and woman denies her consent, the court shall presume absence of consent. So as soon as
Ganapat inserted his two fingers into vagina of Mathura against her will (Section 375 firstly) or
without her consent (Section 375 secondly), he committed rape.
Gang Rape
Section 376D- Where a woman is raped by one or more persons constituting a group or acting in
furtherance of a common intention, each of those persons shall be deemed to have committed the
offence of rape and shall be punished with rigorous imprisonment for a term which shall not be
less than twenty years, but which may extend to life which shall mean imprisonment for the
remainder of that person's natural life, and with fine.
In this problem she was called by policemen. Ganapat and Tularam confined her in one room.
when Ganpat had overpowered her, Tukaram was also undressing himself with intent to have
forced penile sexual intercourse with her. These facts denote that both were acting in furtherance
of common intention. Common intention was commit rape. Liability of both persons will be same.
So both will be liable for committing gang rape under section 376D.
Conclusion
From the above discussion it becomes very clear that Ganapat had committed rape as well as gang
rape. Tukaram has committed gang rape along with Ganapat.
200
ANNEXURE VI
KIDNAPPING AND ABDUCTION

Bring out clearly the distinction between kidnapping and abduction under the IPC.
Answer
Differences between Kidnapping and Abduction
S.N. Kidnapping Abduction
363A, 364,364A to 369.
of unsound mind
4 TEA (Taking or enticing any minor) FCDI (..by force compels or by
deceitful means induces)
6 Consent of victim is immaterial. He or she Free and voluntarily consent of the
is not capable to give consent. person abducted condones abduction.
7 Intention of the kidnapper is immaterial for Intention of the abductor is an important
the offence. factor in determining guilt of the
accused.
Question 7(b) (2013)

Rakhi, a female, aged about 15 years, and Raj, a male, aged about 15 years, were good friends in
the school. One day Rakhi proposed to marry Raj but Raj did not heed because he was afraid of
his step mother who would ill-treat him. Rakhi visited Raj’s home in his absence and came to
know from the servants that he was being ill-treated by his step- mother and his father could do
nothing as he was forced by his parents to remarry after he had lost his first wife i.e. Raj’s mother.
Rakhi went home and told her mother about this whole story and sought her help in arranging for
permanent stay of Raj in their out house where he could concentrate on his studies. Rakhi’s mother
expressed no objection should Raj agree to this arrangement. Rakhi gave this offer to Raj and told
201
him that only after he settled down in his life that she would again propose marriage with him. Raj
thought over the matter and finally decided to shift to the outhouse offered to him by Rakhi without
discussing with his father anything about this matter. When Raj did not return home his father filed
an FIR alleging that his son has been kidnapped by Rakhi and his mother. Decide if Rakhi can be
held guilty of kidnapping Raj with the help of judicial decisions and decided cases.
Answer
In this case sections 361,363 and 34 are involved. Leading cases on these points are Thakorilal D
Vadgama v. State of Gujarat (Parker Pen Case) (1973), State of Haryana v. Raja Ram (1972) and
Suresh v. State of U.P. (2001).
The object of section 361 is to protect the rights and privileges of guardians having the lawful
charge or custody of their minor wards. Section 361 defines kidnapping from lawful guardianship
which is following -
Section 361 - Kidnapping from lawful guardianship

“Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years
of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of
such minor or person of unsound mind, without the consent of such guardian, is said to kidnap
such minor or person from lawful guardianship”.
There are following ingredients of section 361 which are following-
(1) Age and Sex – ‘Whoever’ denotes any person either male or female. Age and sex of
accused are immaterial. Only age of victim or his mental condition is deciding factor.
Victim may be minor or person of unsound mind. In case of male victim must be below
the age of 16 years.
(2) Meaning of Taking or enticing – In the case of Thakorilal D Vadgama v. State of Gujarat
(Parker Pen Case) (1973) Supreme Court defined the words ‘taking’ and ‘enticing’. These
meanings are following -
The word ‘takes’ in s. 361I.P.C. does not necessarily connote taking by force and it is not
confined only to use of force, actual or constructive. This word merely means “to cause
to go”, “to escort” or “to get into possession”.
The word “entice” means to involve the idea of inducement or allurement (IIIA)by giving
rise to hope or desire (HD)in the other.
In this case Supreme Court said, “If the minor leaves her parental home, influenced by any
promise, offer or inducement emanating from the guilty party then the latter will be guilty
of an offence as defined in section 361Indian Penal Code.”
In the case of State of Haryana v. Raja Ram (1972) Supreme Court held that persuasion is
sufficient. It is not necessary that the taking or enticing must be shown to have, been by
means of force, or fraud. Persuasion by the accused person which creates willingness on
the part of the minor to be taken out of the keeping of the lawful guardian would be
sufficient to attract the section.
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(3) Consent of Minor/Guardian - In the case of State of Haryana v. Raja Ram (1972)
Supreme Court held on plain reading of this section the consent of the minor who is taken
or enticed is wholly immaterial. It is only the guardian’s consent which takes the case out
of its purview.
(4) Out of Keeping of Lawful guardianship - In the case of State of Haryana v. Raja Ram
(1972) Supreme Court said the use of the word “keeping” in the context connotes the idea
of charge, protection, control and maintenance (CPC-M)-, further the guardian’s charge
and control-appears to be compatible with the independence of action and movement in the
minor, the guardian's protection and control of the minor being available, whenever
necessity arises.
Rakhi is accused. Her age is immaterial. Raj age is about 15 years i.e. below the age of 16 years.
Motive of Rakhi is good to support Raj in his studying. But for kidnapping motive, intention or
knowledge are immaterial. Kidnapping comes under the category of strict liability where mens rea
of accused is immaterial.
Rakhi enticed Raj. Rakhi induced and created hope and desire in the mind of Raj for better life and
comfortable environment for studying. Raj leaved his home in pursuance of offer given Rakhi. In
this process Rakhi did not take consent of father of Raj. Father of Raj was guardian of Raj. So Raj
was kept out of keeping of lawful guardianship.
All the conditions of section 361 are being fulfilled. So Rakhi has kidnapped Raj.
Responsibilities of mother
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.” In the case of Suresh v.
State of U.P. (2001) Supreme Court held that either overt or covert act is sufficient. Presence on
the spot is not necessary in all case.
Mother and sister are several persons. There was common intention to bring Raj out of lawful
guardianship of father of Raj. Mother after knowing all the facts she permitted her daughter to
entice Raj. So liability of Rakhi and her mother will be same. Both will be liable for kidnapping
under sections 34 r/w363.
Conclusion
From the above discussion it becomes clear that Rakhi and her mother had committed kidnapping
from lawful guardianship which is punishable under section 363.
Sorry Rakhi and your Mother. At the anvil of law I could not save. Both of you have won
my heart and I realized my old days. I am always with you. HAHAHAHAHAHAHH
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Question 6 (2014)
A young girl was left to live with his maternal grandfather, as the relationship between her mother
and father were strained. One day the father (F) visited himself where she was kept and took her
with him for a picnic. Mother (M) on reaching home (the place where she was living, found that
minor daughter has been taken away without her or maternal grandfathers consent. She files and
FIR, where she alleges that her daughter has been kidnapped. Advise her about the success of her
case.
Answer
I have already discussed section 361. In the case of State of Haryana v. Raja Ram (1972) Supreme
Court said the use of the word “keeping” in the context connotes the idea of charge, protection,
control and maintenance (CPC-M). Here lawful guardianship was in the hand of mother.
Relationship between husband and mother was strained. So it was also implied that lawful
guardianship was in the hand of mother. Girl was minor i.e. below the age of 18 years. Father took
without consent of mother of minor.
So father has kidnapped his daughter. So he will be liable under section 363.
Question 6 (b) (2014)

Bring out clearly the distinction between kidnapping and abduction under the IPC. Discuss
kidnapping from lawful guardianship as a strict liability offence.
Answer
I have already discussed distinction between kidnapping and abduction under the IPC.
Kidnapping from lawful guardianship as a strict liability offence
Actus non facit reum, nisi mens sit rea means the act itself does not make a man guilty, unless the
mind is also guilty. This theory was developed be Common Law Courts. First time concept of
ingredients of crime, namely, (1) Human Being (2) Guilty Mind (3) Prohibited act, (4) An injury
to human being or society. This maxim denotes that guilty mind and prohibited act both are part
and parcel of crime. It is rule that without guilty mind, crime cannot be committed.
Sometimes offence is constituted even without guilty mind it is called strict liability. There are
certain exceptions of Actus non facit reum, nisi mens sit rea. These exceptions are following -
(1) Public Nuisance (2) Criminal Libel (3) Contempt of Court (4) Statutory Offences (Offences
under Motor Vehicles Act, FERA, ―the Prevention of the Food Adulteration Act, 1954 (Now the
Food Safety and Standards Act, 2006) etc. (5) Waging war (6) Sedition (7) Kidnapping (8)
Abduction (9) Rape (10) Bigamy
There are two schools to interpret statutory provisions namely;
(1) Presumption of Requirement of Mens Rea- In every Statute mens rea should be treated as
part of crime unless contrary is shown. Existence of Mens Rea is presumed.
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(2) Presumption of Non-requirement of Mens Rea- According to second School, statute must
be interpreted in absence of mens rea unless requirement of mens rea has been specifically
mentioned.
R. v. Prince135 (1875) (Blackburn)
Facts - Henry Prince was charged under section 55136 of the Offences Against the Persons Act,
1861. This section was related to abduction. There was no any category of offence like kidnapping
under this Act. At that time unlawfully taking of a girl below the age of sixteen years without
permission of lawful guardian was an offence as abduction. ‘Kidnapping’ was missing from
statutory provisions of British Law. It was proved that the prisoner took the girl whose age was
below the age of sixteen years from out of possession of lawful guardians without their permission.
Real age of girl was 14 years. Actus reus was present but mens rea was absent. Accused proved
that he took the girl who was looking age of 18 years and he took with consent and after her
replying that her age was 18 years. He did in good faith.
Decision - Court denied these defences. This section had not mention about mens rea i.e. intention,
knowledge, reason to believe etc. Justice Blackburn denied applying the maxim Actus non facit
reum, nisi mens sit rea and held that the provision did not require guilty intention or knowledge so
Court could not insert requirement of intention or knowledge only on the basis of maxim. So Prince
was convicted even without guilty mind. Principle of strict liability was followed.
Section 361 - Kidnapping from lawful guardianship

“Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years
of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of
such minor or person of unsound mind, without the consent of such guardian, is said to kidnap
such minor or person from lawful guardianship”.
In section 361 intention or knowledge of offender is missing. For application of section 361 guilty
mind of offender is missing. So Section 361 is an offence which comes under the category of strict
liability offence. Purpose of law is to secure the rights of guardian and interest of minor. So keeping
these things condition of mens rea was not made.
Krishna Maharana v. The King Emperor (1929) Patna High Court

The defence that the accused did not know that the girl was under statutory age or that from her
appearance the girl looked quite older than that age and that the accused took her to have attained
the age of consent could not be accepted.
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(1875) L.R. 2 C.C.R. 154
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Section 55 of Offences Against the Persons Act, 1861 - Abduction of a girl under sixteen years of age
- Whosoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen
years, out of the possession and against the will of her father or mother, or of any other person having the
lawful care or charge of her, shall be guilty of a misdemeanor, and being convicted thereof shall be liable,
at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard
labour.
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Question 6 (2016)
Namita, a fifteen year old girl is devastated when her father remarries immediately upon her
mother’s death. She runs away from the house and seek shelter from Rakesh. Rakesh is her teacher
in school. He persuades Nitibha to return back but she refuses to go back and volunteers to cook
and clean for him if he allows her to stay with him. After a week police recover Nitibha from
Rakesh’s house. He is charged under section 363 IPC for kidnapping Nitibha from lawful
guardianship. Discuss the liability of Rakesh.
Answer
In this case sections 361 & 363 and ration of S. Varadrajan v. State of Madras (1964) are involved.
I have already discussed section 361 and section 363. So no need to discuss again.
In the case of S. Varadrajan v. State of Madras (1964) Supreme Court made distinction between
taking and allowing a minor. The Court said that merely playing role for facilitating the fulfillment
of the intention of the girl will not amount taking. That part falls short of an inducement to the
minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.
The two expressions are not synonymous. There are differences between both.
In this case the accused have not taken her away from the keeping of her lawful guardian.
Something more has to be shown in a case of this kind and that is some kind of inducement held
out by the accused person or an active participation by him in the formation of the intention of the
minor to leave the house of the guardian. She willingly accompanied him and the law did not cast
upon him the duty of taking her back to her father's house or even of telling her not to accompany
him. In this case, there was no taking. S. Varadrajan was acquitted.
In this problem Rakesh had neither taken nor enticed Nitibha. Although he was her teacher. But
there is no evidence that he had either earlier or immediately enticed her. Even he persuades
Nitibha to return back but she refuses to go back and volunteers to cook and clean for him if he
allows her to stay with him. He merely allowed her to stay along with him. It was not his duty to
return back.
Conclusion
From the above discussion it becomes clear that there was neither taking nor enticing. So Rakesh
had not kidnapped Nitibha from her lawful guardian.
Question (4) 2014

Savitri, aged 15 years, became friendly with Varadaraj an, a boy aged 19 years, who was residing
in a house next door to that of Savitri’s father, Mr. Natrajan. They would often talk to each other
from their respective roof tops. Varadarajan was keen to marry Savitri. The intimacy between the
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two came to the knowledge of Mr. Natrajan. Parents of Savitri took her to a distant place and kept
her in the house of a close relative, Mr. Rarigrajan, the idea being that she should be kept as far
away from Varadaraj as possible for some time. On the next day Savitri informed Varadarajan
about her whereabouts and also how she missed him. Varadarajan arrived in the house of
Rangrajan next day and explained to him that his liking for Savitri was banafide and gained his
confidence. He persuaded Rangrajan to permit him to take Savitri for a cinema show and an outing
with the promise that they will return in the evening. They returned back in the evening as
promised. After a few days Savitri sought permission from Rangrajan to join Varadarajan for an
outing to which he did not object. Having gone out to meet Varadarajan whom she met at Railway
station, they both decided not to return and got married in a temple and left for honeymoon. The
father of the girl on coming to know of these developments filed an FIR against the boy,
Varadarajasn, under section 363 IPC for which he is facing trial. He pleads the following in his
defence: (i) It is Savitri who summoned him to Rangrajan’s place; (ii) She had voluntarily come
out of the keeping of her lawful guardians and he only allowed her to accompany; (iii) She joined
him after seeking permission of Rangrajan which amounted to consent within the meaning of
section 363 IPC. Varadarajan submits that in view of the aforesaid reasons, no case is made out
against him and he is entitled to be acquitted of the charge. Decide.
Answer
This problem is based on S. Varadrajan v. State of Madras Case.
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ANNEXURE VII
SECTIONS 299 -304A
Question (3) (a) 2014 OC

Due to rivalry arising out of landed property between A and B. A caused multiple injuries to B and
various parts of body to teach him a lesson. B was admitted to the hospital, where he was treated
and discharged. When B was on his way to recovery, he became negligent about his medicines.
He, therefore, developed fever and septic of two wounds. B died a week later. State the liability of
A. Cite relevant legal provisions and decided cases.
Answer
Statutory Provisions and Cases

In this problem Actus non facit reum, nisi mens sit rea, section 299 and ratio of Moti Singh and
Anr. v. State of U.P., (Jan. 23, 1963 SC) and Joginder Singh v. State of Punjab (1979 SC) are
involved.
Actus non facit reum, nisi mens sit rea

Actus non facit reum, nisi mens sit rea which means the act itself does not make a man guilty,
unless the mind is also guilty. Section 299 is based on this maxim.
Section 299
Section 299 - “Whoever causes death (Section 46) by doing an act (Sections 32 &33) with the
intention (Desire and foresight of consequences) of causing death, or with the intention of causing
such bodily injury as is likely to cause death (there is no intention to cause death, only intention is
to cause bodily injury) or with the knowledge (foresight of consequences) that he is likely by such
act to cause death, commits the offence of culpable homicide.”
There are two conditions must be fulfilled to apply section 299 namely; (1) Actus reus (Prohibited
Act). There must be cause and effect relationship. It means Causa causans (Immediate or operating
cause) is sine qua non and (2) Mens Rea (Guilty Mind).
First Condition
(1) There must be cause and effect relationship/ Causa causans (Immediate or operating cause)
– Primary cause and the death should not be too remote. Prosecutor has to prove that by act of
accused, death of victim has occurred. Here cause and effect means, there must be death of victim
by act of accused rather than act of third person. On this topic there are following leading cases -
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(i) Moti Singh and Anr. v. State of U.P.

Deceased had been injured during the occurrence and had been taken to the hospital where
his dying declaration was recorded. He left the hospital and died 20 days later. Before any
postmortem examination could be held, his body was cremated. Prosecutor could not prove
what the reason of cause of death of victim was whether it was injury caused by accused
or negligence in taking medicine after discharge of hospital. Prosecutor failed to prove
cause- effect relationship.
Moti Singh and Jagdamba were acquitted.
(ii) Joginder Singh v. State of Punjab (1979 SC)
The deceased Rupinder Singh had teased the sister of accused. In retaliation accused
reached at the house of deceased. Seeing these things deceased started to run away.
Accused tried to hold deceased. Accused were about 15 to 20 feet from victim when he
jumped into well. There was no cause & effect relationship.
If this condition is not fulfilled, no further question regarding intention or knowledge arose.
Second Condition
There must be Guilty Mind. There are three degrees of mens rea- (i) Intention to cause death, or
(ii) Intention to cause such bodily injury as is likely to cause death, or (iii) With the knowledge the
he is likely by such act to cause death.
Application of Law with the problem

A caused multiple injuries to B. B was admitted to the hospital, where he was treated and
discharged. In this problem B developed fever and septic of two wounds due to his negligence and
he died a week later. Reason of death is not injuries caused by A. So there is no relationship
between death of B and act of A. So A will not be liable for causing death of B. Causa causans
(Immediate or operating cause) is missing in this problem. First condition of section 299 is not
being fulfilled.
Conclusion
On the basis of above discussion it can be concluded that A has not committed culpable homicide.
He will be liable only for voluntarily causing hurt.
Question 1 (2014)
Ravi suffered serious injuries on his right leg at the hands of Kavi resulting in the amputation of
his leg. Rajinder, father of Ravi, harboured a grudge against Kavi since that time and was out to
take revenge. One day he caught hold of Kavi while he was coming back from work and
indiscriminately pounded legs and arms of Kavi with a heavy stick which he was carrying. In all
there were 18 injuries on the body of Kavi who suffered multiple fractures on arms and legs and
died after two days. The medical report suggested that the cause of death was shock and
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haemorrhage resulting from multiple injuries. The trial court held that in the circumstances of the
case since Rajinder could not be attributed with intention to kill, he was guilty of only culpable
homicide not amounting to murder under section 304 Part-I, although the charge was under section
302 IPC. The high court concurred with the view of the trial court. The state wants to file special
leave to appeal in the Supreme Court against the concurrent judgments of the courts below for
seeking his conviction under section 302 IPC. But before doing so, it seeks your legal opinion
whether a case under s. 302 IPC is made out.
Draw a legal opinion in the matter as required.
Answer
Statutory Provisions and Cases
In this problem sections 299, 300, ratio of R v. Govinda (1876), State of A.P. v. R.Punnayya (1976)
and Virsa Singh v. The State of Punjab are involved.
Difference between Culpable Homicide (CH) and Murder

In this problem Rajinder caused 18 injuries to take revenge. There was intention to cause multiple
injuries. He had been convicted under section 304 Part I. State wants to in appeal for conviction
under section 302. So problem requires making differences between section 299 and section 300
on the issue of intention to cause bodily injuries.
There are two leading cases one was decided by Justice Melvil (R v. Govinda, July 18, 1876,
Bombay High Court) and another decided by Justice Ranjit Singh Sarkaria (State of A.P. v.
R.Punnayya, September 15, 1976, Supreme Court) in which differences between section 299 and
section 300 were discussed thoroughly.
Justice Melvil made differences between culpable homicide and murder. For convenience he
divided guilty mind for culpable homicide under three categories namely; section 299(a), section
299 (b) and section 299(c).
Intention to cause bodily injury - (S.299 (b) & S.300– (Secondly) & (Thirdly)
In section 299 only (b) category talks about intention to cause bodily injury while S.300– Secondly
& Thirdly both deal intention to cause bodily injury. In section 300– Secondly & Thirdly certain
specific words have been added which increase the gravity of guilty mind.
Section 299 (b) Section 300, Secondly
(b)Intention to cause bodily injury + by (Secondly)Intention to cause bodily injury +
such bodily injury, it is likely to cause offender knows that by such bodily injury, it is
death likely to cause death. (Intention + knowledge+
(Intention +Likely). likely).
Here knowledge is missing. Here knowledge of offender has enhanced
probability of death.
(b) Thirdly
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(b) Intention to cause bodily injury + Thirdly- With the intention of causing bodily
by such bodily injury, it is likely to injury to any person, and the bodily injury intended
cause to death. (Intention + Likely). to be inflicted is sufficient in the ordinary course of
(The distinction lies between a bodily nature to cause death. By using the words sufficient
injury likely to cause death and a bodily in the ordinary course of nature, enhanced the
injury sufficient in the ordinary course gravity of probability of death.
of nature to cause death.)
In this problem Rajinder caused injuries only on arms and legs. He did not knowing that by those
injuries shock and haemorrhage might be occurred and finally death would be happened. So
section 300 secondly is not applicable.
Next question is whether 300 thirdly will be applicable.
Virsa Singh v. State of Punjab (1958 SC, Justice Vivian Bose).

In Virsa Singh v. State of Punjab Supreme Court held that there are two parts of section 300 thirdly.
The Court said that these two parts are disjunctive and separate. These parts are namely;
Part1-If it is done with the intention of causing bodily injury to any person (Subjective test), and
Part 2- the bodily injury intended to be inflicted (It is descriptive of part 1) is sufficient in the
ordinary course of nature to cause death (Objective Test).
Only for first part intention of accused is necessary. For second part intention of accused is not
necessary. For first part subjective test is applied while for second part objective test is applied.
Main difference between section 299 (b) which contains ‘likely to’ while section 300 contains
‘sufficient in the ordinary course of nature’ which increases probability of death.
State of A.P. v. R.Punnayya,

(Sept. 15, 1976, Supreme Court, Justice Ranjit Singh Sarkaria)
In this case several accused pounded legs and arms of deceased by lathis and caused 19 injuries.
No injuries were caused on vital parts. Intention was only to cause bodily injuries. The autopsy
was conducted by Dr. P.S. Sarojini in whose opinion, the injuries found on the deceased were
cumulatively sufficient to cause death in the ordinary course of nature. The cause of death,
according to the Doctor, was shock and haemorrhage resulting from multiple injuries. Supreme
Court held that they confined to legs and arms. So it can be inferred that there was no intention to
cause death as contemplated under section 299(a) and section 300firstly.Cumulatively injuries
are sufficient- In this case Supreme Court said, “The expression “bodily injury” in Clause 3rdly
includes also its plural, so that the clause would cover a case where all the injuries intentionally,
caused by the accused are cumulatively sufficient to cause the death in the ordinary course of
nature, even if none of those injuries individually measures up-to such sufficiency. The sufficiency
spoken of in this clause as already noticed, is the high probability of death in the ordinary course
of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional,
the case would fail under Clause 3rdly of section 300.” Accused were convicted under section 302.
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Evaluation of problem with law

In this problem the medical report suggested that the cause of death was shock and haemorrhage
resulting from multiple injuries. Supreme Court in the case of R.Punnayya which contains similar
facts convicted accused on the basis of cumulative effect of injuries under section 302. Cumulative
effect of such injuries is sufficient in the ordinary course of nature to cause death. So it comes
under section 300 thirdly.
Conclusion
After observing above discussed laws and cases my legal opinion is that State should file a petition
for special leave. This matter comes under section 300 thirdly. Trial Court and High Court had
ignored the decision of Supreme Court. State can use cases of Virsa Singh Case, Anda and Ors. v.
The State of Rajasthan (1965 SC) and R.Punnayya Case as a precedent. State will win the case.
Question 2 (2013)
Critically explain the test laid-down by the Supreme Court in Virsa Singh v. State of Punjab AIR
1958 SC 465 for invoking the charge of murder under section 300(3) read with section 302 IPC.
Comment on principles in Kapur Singh v. State of Pepsu AIR 1956 SC 654 and of Virsa Singh the
latter case.
Answer
Statutory Provisions and Cases -In this problem sections 299, 300, Virsa Singh v. The State of
Punjab and Kapur Singh v. State of Pepsu are involved.

Culpable homicide is murder “If it is done with the intention of causing bodily injury to any person
and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death.”
Test in Virsa Singh v. State of Punjab (March 11, 1958) (Justice Vivian Bose)
Four test were laid down in this case for application of section 300 (3) read with section 302 IPC.
which are following –
First Test (Bodily injury) - Prosecution must establish, quite objectively, that a bodily injury is
present,
Second Test (Nature of Bodily injury) - the nature of the injury must be proved. These are purely
objective investigations.
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Third Test (Intention to inflict bodily injury) - it must be proved that there was an intention to
inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that
some other kind of injury was intended- Subjective Test.
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourth Test (the injury sufficient….) - it must be proved that the injury of the type just described
made up of the three elements set out above is sufficient to cause death in the ordinary course of
nature. This part of the enquiry is purely objective and inferential and has nothing to do with the
intention of the offender.
Subjective and objective test – First, second and fourth tests are related to objective test while third
is related to subjective test.
Comment on principles
Both the cases have been decided by Supreme Court. In Kapur Singh case Supreme Court
converted section 302 into section 304 Part I. In Virsa Singh Case Supreme Court dismissed appeal
of Virsa Singh.
Kapur Singh v. State of Pepsu (1956 SC)

Facts - About a year before the date of the occurrence, Bachan Singh s /o the deceased caused a
severe injury on the leg of Pritam Singh s/o Kapur Singh resulting in the amputation of his leg.
Kapur Singh with the help of Chand Singh took revenge. Chand Singh held the father of Bachan
Singh by the head and Kapur Singh inflicted as many as 18 injuries on the arms and legs of the
deceased with a gandasa. It is significant that out of all the injuries which were thus inflicted none
was inflicted on a vital part of the body.
Decision - Appellant had no intention to cause death. But by such bodily injury it was likely to
cause death. He was convicted under section 304(1) of IPC. The Court rejected to apply section
302. The Court did not say anything about section 303 thirdly.
Criticism – On section 300 thirdly this judgment is silent. Its reason might be that on this point no
argument was done by respondent party or argument was done but it was not written in judgment.
Virsa Singh v. State of Punjab (March 11, 1958) (Justice Vivian Bose)
Facts – There was only one injury on Khem Singh. Virsa Singh thrust a spear into the abdomen
of the deceased. This injury caused his death. In the opinion of the doctor the injury was sufficient
to cause death in the ordinary course of nature.
“If it is done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death.”
Contentions of Appellant – Main contention of the appellant was that there are two parts of section
300 thirdly and in both parts intention is necessary. It means (1) there must be intention to cause
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bodily injury and (2) there must be intention to cause such bodily injury as is sufficient in the
ordinary course of nature to cause death. According to contention in both cases subjective test
must be followed.
Decision of Court – Supreme Court rejected this contention. Supreme Court held that there are
two parts of section 300 thirdly. The Court said that these two parts are disjunctive and separate.
These parts are namely;
Part1-If it is done with the intention of causing bodily injury to any person and (Subjective
test)
Part 2- the bodily injury intended to be inflicted (It is descriptive of part 1) is sufficient in
the ordinary course of nature to cause death (Objective Test).
Part 1 & Intention – Intention is necessary only for part one. It must be proved that bodily
injury was caused with intention. It must not be accidental or unintentional. It must be
decided according to subjective test. Personal intention is necessary.
Part 2 & Intention – In the second part intention is not necessary. To decide whether
bodily injury is sufficient or not, objective test must be followed.
Four Test
I have already discussed above. Once these four tests are established by the prosecution the offence
is murder under section 300 thirdly.
Decision – Virsa Singh was convicted by the first court under section 302 and his conviction and
sentence were upheld by the High Court. Appeal was dismissed by the Supreme Court.
Remarks – In Virsa Singh case Supreme Court has explained the meaning and scope of Article
300(3). Guidelines were laid down to attract section 300(3).
Thus according to the rule laid down in Virsa Singh’s case even if the intention of accused was
limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature
and did not extend to the intention of causing death, the offence would be murder.
Question (2) (a) 2014

Arguments between X (husband) and W (wife) on repayment of loan to the Bank, turned ugly.
Husband slapped his wife and not satisfied with this threw a burning stove (kerosene oil) on her.
The oil with flame resulted into fire in which the wife was engulfed. Husband tried dose it off.
However, the burn injuries were beyond 70% which resulted into death of wife four days after in
the hospital. Determine the liability of the husband X in the case.
Answer
In this problem section 300 (3) and ratio of Virsa Case is involved. I have already discussed these
things.
In this problem there was no intention to cause death. It can be inferred from the facts that Husband
tried dose fire off.
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There was intention to cause bodily injury (Section 300 thirdly, First Part). Dispute was going on.
Husband slapped his wife and not satisfied with this threw a burning stove (kerosene oil) on her.
By these facts it can be inferred that there was desire and foresight of consequences. Burning of
70% is sufficient in the ordinary course of nature to cause death (Section 300 thirdly, Second Part).
So X (husband) has committed murder which comes under Section 300 thirdly. He shall be
punished under section 302.
Question (2) (2014)

Rajesh, a liquor baron, with intent to make quick money, adulterated country liquor with methyl
alcohol and water and sold the same in the market through his outlets on holi festival. As a
consequence, the festival day of holi brought disaster to many families inasmuch as 40 person died
and 14 lost eye sight permanently after consuming liquor bought from his outlets Rajesh is being
prosecuted for the offences under sections 302 and 326 IPC. He pleads that he neither had intention
to kill nor knowledge of such imminent disaster. Will the prosecution succeed? Decide with the
help of legal provisions and judicial decisions.
Answer
Statutory Provisions and Cases – In this problem section 299 (c) section 300 fourthly, section
302, section 326 and ratio of State of Haryana v. Krishan (June 9, 2017 SC) are involved.
Section 300 fourthly

Culpable homicide is murder if the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.
Knowledge of act. (S.299 (c), S. 300 Fourthly)

Existence of ID (Card) and all probability to cause death enhance the gravity of knowledge.
Knowledge Sec. 299(c) Section 300, Knowledge(Fourthly)

No Knowledge + Knowledge+ Imminently Dangerous(ID) + all
intention, Likely to cause death probability to cause death + without excuse. For
only example-Terrorist attack
knowledge
Section 326
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means
of any poison or any corrosive substance, or by means of any substance which it is deleterious to
the human body to inhale, to swallow, or to receive into the blood shall be punished with
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imprisonment for life, or with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine.
State of Haryana v. Krishan (June 9, 2017 SC)

In December, 1980, a very brazen, bizarre and outlandish incident took place, commonly known
as ‘hooch tragedy’. The deleterious consequence was that 36 persons who had purchased liquor
from a licensed vend in Village Kalanwali, District Sirsa, Haryana lost their lives after consuming
the same. Another 44 persons who too had purchased the liquor from the same shop and consumed
that liquor lost their eye-sight permanently. Accused adulterated liquor with methyl alcohol. They
were convicted under section 302 and section 328. It was held that that had knowledge that they
were mixing methyl. So this matter comes under section 300 fourthly. It was imminently
dangerous.
Application of law with problem

In Dhirajia Case Supreme Court said that some degree of knowledge must be attributed to every
sane person. Rajesh was liquor-baron. He was well known about effect of methyl. After knowing
these effect he adulterated country liquor with methyl alcohol and water and sold the same in the
market through his outlets on holi festival. He took the risk of life and health of other persons. He
adulterated without any excuse. His act was imminently dangerous and all probability to cause
death. So he committed murder of 40 persons who consumed his liquor. He also committed
voluntarily grievous hurt under section 326 to 14 persons who lost eye sight permanently after
consuming liquor bought from his outlets.
Conclusion
From the above discussion it becomes clear that Rajesh had committed an offence punishable
under section 302 and section 326 of IPC. Prosecution will get success.
Question 5 (a) (2016)

Discuss the criminal liability of Raghu in the following case -
Raghu stabs Rinku who is five years old son of Ram in his leg, due to which there is significant
blood loss. Doctor advises blood transfusion but Ram refuses to get it done since his religious
belief does not allow the same. Rinku dies three days later due to extreme loss of blood.
Answer
In this problem ‘Eggshell Skull Rule’, R. v. Blue (1975), Explanation 2 of section 299 and section
300 thirdly of IPC are involved.
‘Eggshell Skull Rule’ (You take your victim as you find them)
The eggshell skull rule, also known as the thin skull rule, is a principle which says that the frailty,
weakness, sensitivity, or feebleness of a victim cannot be used as a defence in a tort or criminal
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cases. The Egg-Shell Rule can be recognized in S.299 and illustration of S.300 of Indian Penal
Code. The Egg-Shell Rule acts as an exception to the reasonability test which is commonly used
to determine causal responsibility.137 It is immaterial that the unusual sensitive condition of victim
was unforeseeable by the ordinary person. Section 299 of IPC is based on this rule.
R. v. Blue (1975)
The defendant entered the home of an 18-year-old woman and asked for sex. When she declined
his advances, he stabbed her four times; the wound penetrated her lung which necessitated both a
blood transfusion and surgery in order to save her life. After refusing treatment because of her
religious beliefs she died. Medical evidence showed that she would not have died if she had
received treatment. The defence argued that the victim’s refusal to accept medical treatment broke
the chain of causation between the stabbing and her death. Justice Lawton invoking the ‘Eggshell
Skull Rule’ said that as a matter of policy that those who use violence on others must take their
victims as they find them. The accused was held liable for manslaughter.
Explanation 2 of Section 299

“Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed
to have caused the death, although by resorting to proper remedies and skilful treatment the death
might have been prevented.”
If all conditions of section 299 are being fulfilled then accused cannot take defence that by
resorting proper remedies and skillful treatment the death might have been prevented. This is based
on ‘Eggshell Skull Rule’.
Section 300 Thirdly

For application of this provision two conditions must be fulfilled namely; (1) There must be
intention to cause bodily injury, and (2) the bodily injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death.

By application of ‘Eggshell Skull Rule’ refusal of Ram for blood transfusion is immaterial. It is
subsequent act. It is independent act from act of accused. Cases are decided according to act of
accused. Explanation 2 of section 299 clarifies that accused cannot take defence for resorting of
proper remedies and skillful treatment.
Cause–effect relationship - Raghu stabs Rinku his leg, due to which there is significant blood
loss. Rinku dies three days later due to extreme loss of blood. It fulfills first condition of section
299.
137
http://www.droitpenaleiljcc.in/PDF/V1I2/8.pdf
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Mens Rea- On the point of mens rea, problem is silent. If there is no mens rea Raghu is not liable
for any offence. Raghu has caused injury in leg and that injury is serious. He has not caused injury
on vital parts. So it can be supposed that he had intention to cause bodily injury.
So Raghu has caused culpable homicide. If child was normal (not suffering from any types of
disease) Raghu shall be liable for causing death. It was sufficient in the ordinary course of nature
to cause death (section 300 thirdly). Raghu will be liable for causing death.
By application of section
Conclusion
From the above discussion it becomes clear that Raghu has committed murder punishable under
section 302 of IPC.
Question 5 (b)(2016)
Discuss the criminal liability of Raghu in the following case -
Raghu is learning shooting. Despite being cautioned against practicing in crowded places, he
practices shooting on a dummy target after placing it in a marketplace during daytime. A shot from
his gun hits a person due to which that person dies.
Answer
In this problem section 300 fourthly and illustration (d) are involved.
Section 300 fourthly

Culpable homicide is murder if the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.
Illustration (d) of section 300

A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is
guilty of murder, although he may not have had a premeditated design to kill any particular
individual.
Raghu was, despite being cautioned against, practicing in crowded places. He knew activity of his
act. He was doing at crowded place. It was all probability to cause death or such bodily injury as
it was likely to cause death. He was doing without any excuse. He was practicing shooting. It was
imminently dangerous. So he has committed murder under section 300(4) which is punishable
under section 302. Illustration (d) of section 300 also suggests such inference.
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Conclusion
On the basis of above discussion it can be concluded that Raghu has committed murder.
Question 8(b) (2016)

Discuss the criminal liability of Raja in the following case: Raja hits Ramu, his servant with a stick
in his stomach as he suspects him of stealing. As a result of that injury his intestine got ruptured
as it was inflamed due to appendicitis. This causes the death of Ramu.
Answer
In this problem section 299 Explanation 1 and section 304A are involved.
According to Explanation 1 of section 299, accused shall not be allowed to take defence that he
has merely accelerated the death of the person who was already suffering from disorder, disease
or bodily injury. To bring homicide under section 304A following conditions must be fulfilled-(1)
There must be homicide (2) The accused must cause such death ( Cause-effect Relationship) (3)
Such death must be caused by rash or negligent act (4) Such death must not fall under sections 299
and 300.
In this problem there was no intention to cause to cause death because Raja hits wih stick. There
was intention to cause bodily injury but by that bodily injury it was not likely to cause death. So
no question arose regarding application of Explanation 1. For application of this Explanation all
condition of section 299 must be fulfilled. Raja negligently Raja hits Ramu, his servant with a stick
in his stomach as he suspects him of stealing. If he had doubt he should have taken recourse of
public servants. No one should be allowed to take laws in his own hands.
Raja has committed offence under section 304A.
Conclusion
From the above discussion it becomes clear that Raja has committed offence under section 304A
of IPC.
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NEGLIGENCE
Discuss the criminal liability of Raja in the following case:
Raja, while driving his car in a drunken state at night, kills a man and injures three others who
were sleeping on a pavement.
Answer
In this case sections 299, 304 Part II, and ratio of Alister Anthony Pareira v. State of Maharashtra
( Jan. 12, 2012 SC) and State Tr. P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda (BMW Case)
(DOJ August 3, 2012) are involved.
Section 299 and 304 Part II.

or (b) Intention to cause bodily injury as is likely to cause death or (c) knowledge that he is likely
by such act to cause death. If either condition is missing, section 299 shall not be applicable.
Section 304 Part II deals for punishment of culpable homicide caused with knowledge.
Alister Anthony Pareira V. State of Maharashtra ( Jan. 12, 2012 SC)

Facts of the Case -
In the night of November 11 -12, 2006, the labourers were asleep in front of their huts on the
pavement. Between 3.45 to 4.00 a.m., that night, Alister Anthony Pareira while driving the car
rashly and negligently with knowledge that people were asleep on footpath rammed the car over
the pavement; caused death of seven persons and injuries to eight persons. At the time of incident,
the appellant was found to have consumed alcohol. A liquor bottle was recovered from the
appellant's car.
Meaning of Knowledge -Knowledge is awareness on the part of the person concerned of the
consequences of his act of omission or commission indicating his state of mind.
Conviction under section 304A - A person, responsible for a reckless or rash or negligent act that
causes death which he had knowledge as a reasonable man that such act was dangerous enough to
lead to some untoward thing and the death was likely to be caused, may be attributed with the
knowledge of the consequence and may be fastened with culpability of homicide not amounting
to murder and punishable under section 304 Part II IPC.
Supreme Court observed, “Drunken driving has become a menace to our society. Everyday
drunken driving results in accidents and several human lives are lost, pedestrians in many of our
cities are not safe. Late night parties among urban elite have now become a way of life followed
by drunken driving. Alcohol leads to loss of coordination, poor judgment, slowing down of
reflexes and distortion of vision.”
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State Tr. P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda (BMW Case) (August 3, 2012, SC)
In this case Sanjeev Nanda who had drunk was driving BMW. Two more persons were in that car.
Just at the corner from where Lodhi Road starts, seven persons including three police men were
standing on the road at about 4.00 a.m. In the meantime, BMW car driven rashly and negligently
came from Nizamuddin side at a high speed and dashed violently against them. The impact was
so great and severe, that they flew in the air and fell on the bonnet and wind screen of the car.
Some of them rolled down and came beneath the car. Some of them started to cry for help. But
three people without helping ran away. Six of them died and one survived. They managed the
Court. Again trial started. Session Court convicted them for section 304 Part II. High Court
converted the punishment into section 304A. Supreme Court held that although there was no
intention to cause death but there was knowledge that driving in unusual speed after taking drink
was possibility to hit someone or something. Supreme Court held that Sanjeev Nanda had
committed offence under section 304 Part II of the IPC.
In this problem Raja drank. Raja, while driving his car in a drunken state at night. He knew that
alcohol leads to loss of coordination, poor judgment, slowing down of reflexes and distortion of
vision. He kills a man and injures three others who were sleeping on a pavement.
Conclusion
After observing the ratio of Alister Anthony Pareira v. State of Maharashtra ( Jan. 12, 2012 SC)
and State Tr. P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda (BMW Case) (August 3, 2012), it
can be concluded that Supreme Court is taking stern action in drunken driving cases. Drunken
driving has become a menace to our society. Everyday drunken driving results in accidents and
several human lives are lost; pedestrians in many of our cities are not safe. From the above
discussion it can be concluded that Raja will be liable for committing culpable homicide with
knowledge (section 299 (c)) which is punishable under section 304 Part II of Indian Penal Code.

In order to prevent the ingress of intruders into his washroom which had been exposed to public
due to the fall of the wall of the washroom in his house and to make such ingress dangerous enough,
Rani fixed up a copper wire across the passage to the washroom. This wire was naked and
uninsulated and carried current from the electric wiring of his house to which it was connected.
Reshma, her neighbour who wanted to take advantage of the situation, came to use the washroom
of Rani, managed to pass into the washroom without contacting the wire but as she came out her
hand happened to touch the live wire. She got a shock as a result of which she died soon after. The
Session Judge before whom Rani was charge sheeted under section 304 IPC held her guilty only
of the offence under section 304A and not section 304 IPC which decision was upheld by the high
court in appeal preferred by the State. The State wants to prefer an appeal to the Supreme Court
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seeking her conviction under section 304 IPC. You are required to advice the State as to whether
it has a case on merits to support its stand. Discuss.
Answer
This problem is based on section 304A and Cherubin Gregory v. State of Bihar (1963.)
Section 304A
According to Section 304A “Whoever causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.”
Section 304A was inserted in 1870 to cover those cases which were caused by either rash or
negligent and not covered by section 299 and 300. Law Commission of India in its 42nd Report
(1971) recommended increasing punishment up to five years. Negligent or rashness driving is main
concern.
(1) There must be homicide (2) The accused must cause such death ( Cause-effect Relationship)
(3) Such death must be caused by rash or negligent act (4) Such death must not fall under sections
299 and 300.
Cherubin Gregory v. State of Bihar (July 31, 1963)

Facts - Cherubin Gregory was charged under section 304A of Indian Penal Code for causing the
death of Mst. Madilen . The deceased was residing near the house of the accused. The wall of the
latrine of the house of the deceased had fallen down about a week prior to the day of occurrence
and so the deceased along with others started using the latrine of the accused. The accused
protested against their coming there. The oral warnings however, proved ineffective and so he
fixed up a naked copper wire across the passage leading up to his latrine and that wire carried
current from the electrical wiring of his home to which it was connected. There was no warning
that the wire was live. The deceased managed to pass into the latrine without contacting the wire
but that as she came out her hand happened to touch it and she got a shock as a result of which she
died soon after.
Decision – Supreme Court laid down following important points -

(1) Right of Private Defence – Although he was trespasser. But mere trespass has not been
mentioned under section 103 in which death of person may be caused.
(2) Culpable Homicide- Accused had no intention to cause death. So he was not liable for culpable
homicide.
(3) Duty towards trespasser -It is, no doubt true that the trespasser enters the property at his own
risk and the occupier owes no duty to take any reasonable care for his protection, but at the same
time the occupier is not entitled to do willfully acts such as set a trap or set a naked live wire with
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the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of
the trespassers.
(4) Rashness - The voltage of the current passing through the naked wire being high enough to be
lethal, there could be no dispute that charging it with current of that voltage was a ‘rash act’ done
in reckless disregard of the serious consequences to people coming in contact with it.
Cherubin Gregory was liable under section 304A. Appeal was dismissed.
Evaluation of problem and Conclusion-

This problem is similar to Cherubin Gregory v. State of Bihar. In this problem Rani fixed up a
copper wire across the passage to the washroom. This wire was naked and un-insulated and carried
current from the electric wiring of his house to which it was connected. Rani had neither intention
nor knowledge to cause death. So she had not committed offence of culpable homicide (section
299 and section 300). She had committed death by her rashness act.
Rani fixed up a copper wire across the passage to the washroom. This wire was naked and
uninsulated and carried current from the electric wiring of his house to which it was connected. It
was lethal. It was rash act of Rani. It was done in reckless disregard of the serious consequences
to people coming in contact with it. So she will be liable under section 304A of IPC.
Conclusion
Ratio of decision of Supreme Court in Cherubin Gregory v. State of Bihar is good. So it can be
suggested the State that no need to go in appeal. Her punishment under section 304A is good. It
needs only to implement the 42nd Report of Law Commission of India (1971) in which it was
recommended for increasing punishment up to five years.
Question (3) (b) 2014 (OC)

Accused X was running a bus at a high speed on a dusty and damaged road. While negotiating a
curve with the same speed, without applying breaks, the bus over turned, killing a pedestrian and
injuring some of the passengers. Prosecution is interested to prosecute X under Section 304-A of
IPC. Can they do and will they succeed? Give reasons.
Answer
This problem needs elaboration of section 304A and S.N.Hussain v. State of Andhra Pradesh (Jan.
5, 1972, S C).
Section 304A
(1) There must be homicide (2) The accused must cause such death ( Cause-effect Relationship)
(3) Such death must be caused by rash or negligent act (4) Such death must not fall under sections
299 and 300.
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S.N.Hussain v. State of Andhra Pradesh138 (DOJ Jan. 5, 1972)

S.N.Hussain was bus driver. Accident occurred at the time of crossing railway gate. Gate was open
and he was driving in slow speed and due to cold freeze there was less visibility. Goods train dashed
against bus. Some passenger died and others severally injured. He was charged under section
304A. He was acquitted.
Supreme Court laid down some important points -
Meaning of Rashness- Rashness consists in hazarding a dangerous or wanton act with the
knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running
the risk of doing such an act with recklessness or indifference as to the consequences.
Meaning of Criminal negligence -Criminal negligence on the other hand, is the gross and culpable
neglect or failure to exercise that reasonable and proper care and precaution to guard against injury
either to the public generally or to an individual in particular, which, having regard to all the
circumstances out of which the charge has arisen, it was the imperative duty of the accused person
to have adopted.
Decision – He was acquitted. There were following reasons of his acquittal -
Reason of Acquittal (1) The bus was not driven and could not have been driven fast. (2) That the
gate of the level crossing which is a manned gate, was open, indicating thereby that no train was
expected to come at the time and inviting vehicles to pass. (3) The railway track was at a higher
level and the road was lined by babbool trees and, therefore, a passing train coming from a distance
was not visible from the bus. (4) The bus was making a huge noise because it was not fitted with
the silencer. (5) As a cold breeze was blowing some of the window screens of the bus were lowered
for the comfort of the passengers in the bus.(6) There is no evidence that the train while
approaching the level crossing gave any whistle or whistles. In any case there is no evidence that
any whistle was heard by any of the occupants of the bus.
Facts of this case is totally different from S.N.Hussain v. State of Andhra Pradesh (Jan. 5, 1972).
In the case of S.N.Hussain, he was driving in moderate speed and due to fog and open gate he
could not know about coming train. In this problem X was running a bus at a high speed on a dusty
and damaged road. He curved the bus in same speed without applying breaks. He was duly bound
by duty to take care to his passengers and pedestrians. He had committed negligence. He was well
aware about condition of Road. He had killed a pedestrian. He had neither intention nor knowledge
to commit death of pedestrian. So death of pedestrian will not come either under section 299 or
section 300. It will come under section 304A of IPC.
Conclusion
From the above discussion it becomes clear that X had committed an offence punishable under
section 304A. Prosecution will succeed.
138
AIR 1972 SC 685
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Question 1 B (2015)
Raghav Ram, a film actor was returning from a party past midnight when he dozed off and the car
that he was driving ran over two persons sleeping on the pavement killing them and thereafter
rammed into a pole. He was jolted out of sleep by the impact of the accident when his car hit the
pole. Tests confirmed high dosage of alcohol in his blood. Discuss his liability for the death of
those two persons.
Answer
In this problem sections 299, 304 Part II and ratio of Emporer v. Dhirajia , Alister Anthony Pareira
V. State of Maharashtra (Jan. 12, 2012 SC) State Tr. P.S.Lodhi Colony, New Delhi v. Sanjeev
Nanda (BMW Case) (August 3, 2012, SC) are involved.
Introduction - In the Alister Anthony Pareira Case Supreme Court observed, “Drunken driving
has become a menace to our society. Everyday drunken driving results in accidents and several
human lives are lost, pedestrians in many of our cities are not safe. Late night parties among urban
elite have now become a way of life followed by drunken driving. Alcohol leads to loss of
coordination, poor judgment, slowing down of reflexes and distortion of vision.” Now time has
come to apply stricter law in such cases when lives of other persons are in danger. At the time
enactment of 304 A, during the British era there was no concept of fundamental rights of victims.
Section 299 and Section 304 Part II.

or (b) Intention to cause bodily injury as is likely to cause death or (c) knowledge that he is likely
by such act to cause death. If either condition is missing, section 299 shall not be applicable.
Section 304 Part II deals for punishment of culpable homicide caused with knowledge.
Section 304 A applies only when homicide is not culpable homicide i.e. section 299 and 300.
Emperor v. Dhirajia (1940)

Allahabad High Court held that every sane person shall be presumed to have knowledge about
his/ her own conduct.
Alister Anthony Pareira V. State of Maharashtra ( Jan. 12, 2012 SC)

Knowledge is awareness on the part of the person concerned of the consequences of his act of
omission or commission indicating his state of mind.
Alister Anthony Pareira and Sanjeev Nanda Case

I have discussed both the cases earlier. Both the cases are related to drunken driving and killing
pedestrian. In both the cases Supreme Court took stern action against convicted them under section
304 Part II. Supreme Court held that although there was no intention to cause death but there was
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knowledge that driving in unusual speed after taking drink was possibility to hit someone or
something.
After observing the ratio of Alister Anthony Pareira v. State of Maharashtra and State Tr.
P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda (BMW Case), it can be concluded that Supreme
Court is taking stern action in drunken driving cases.

Raghav Ram was film actor. He knew consequences of his act even though he took high dosage
of alcohol. After this he was driving on highway. He was well aware of his conduct. The car that
he was driving ran over two persons sleeping on the pavement killing them. He caused death of
pavement knowingly. Knowledge means foresight of consequences. He has committed culpable
homicide punishable under section 304 Part II.
Conclusion
After observing above discussed provisions and ratio of cases, it can be inferred that Raghav Ram
had committed culpable homicide punishable under section 304 Pat II of IPC.

Write short notes on the following - Illustrate and explain the concept of transfer of malice under
common law and its place under the Indian Penal Code.

A’s car hit B's scooter while taking a turn negligently. An argument ensued between A and B. A
slapped B. B left the place immediately and came back after 10 minutes along with his 10 friends
and hit A with lathis and hockey sticks. A died on the spot. B pleaded ‘right of private defence’.
Will he succeed in availing this defence? Give your answer citing relevant legal provisions and
case law.
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ANNEXURE VIII
ELEMENTS OF CRIME
(I have also discussed these topics in other annexures)
Question1 (2010)
Explain the essential elements of crime.
Answer
Definition of Crime
According to Blackstone “Crime is an act committed or omitted in violation of public law either
forbidding or commanding it.”
According to Stephan “Crime is an act forbidden by law and which is at the same time revolting
to the moral sentiments of the society.”
Elements of Crime
There are four elements of crime namely; (1) Human being (2) Mens Rea / Guilty Mind (3) Actus
reus / Prohibited act, and (4) Injury to society or human being.
(1) Human being – Only Human being can commit crime under IPC. In European Countries
animals were also punished for committing crime during medieval era. In Hindu criminal
jurisprudence did not provide for trail and punishment of animals or inanimate objects. Only a
human being under a legal obligation and capable of being punished can be the proper subject of
criminal law. It means a human being must have a body. Legal person like company or idol will
not come under human being.
Mens Rea – Mens Rea means guilty mind. It is denoted with intention, knowledge, negligence,
rashness, wrongful gain or wrongful loss, voluntarily or reason to believe, mala fides etc. Actus
non facit reum, nisi mens sit rea means the act itself does not make a man guilty, unless the mind
is also guilty. Chapter IV (General Exception) of IPC is itself recognition of requirement of mens
rea.There are certain cases in which human being can be punished even without guilty mind. Such
types of offences come under the principle of strict liability. For examples kidnapping, bigamy,
economic offences (M.H. George Case) etc.
(3) Actus reus / Prohibited act- According to Kenny ‘actus reus is such result of human conduct
as the law seeks to prevent. Professor Glanville Williams has given wider meaning of actus reus.
According to him actus reus means the whole definition of crime with the exception of mental
elements. Actus reus includes negative as well as positive elements. According to section 32 of
IPC ‘act’ includes omission. According to section 33‘act also includes series of acts. Mens rea
itself is not sufficient to constitute offence. Guilty mind cannot be identified unless some overt act
is done.
(4) Injury – According to section 44 of IPC the word “injury” denotes any harm whatever illegally
caused to any person, in body, mind, reputation or property. In certain situation person is punished
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even though he has not committed injury to another person. These are the case of inchoate crime
for example abetment, conspiracy and attempt.
Question1 (2011)
Explain the common law principle of “actus non facit reum, nisi mens sit rea” with the help of
decided case. What are the exceptions, if any, to this principle?
Answer
Actus non facit reum , nisi mens sit rea
Actus non facit reum, nisi mens sit rea means the act itself does not make a man guilty, unless the
mind is also guilty. This theory was developed be Common Law Courts. First time concept of
ingredients of crime, namely,(1) Human Being (2) Guilty Mind (3) Prohibited act, and (4) An
injury to human being or society. This maxim denotes that guilty mind and prohibited act both are
part and parcel of crime. In the case of Nathulal v. State of Madhya Pradesh (1965) Justice Subba
Rao observed, “Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may
exclude the element of mens rea, but it is a sound rule of construction adopted in England and also
accepted in India to construe a statutory provision creating an offence in conformity with the
common law rather than against it unless the statute expressly or by necessary implication
excluded mens rea.” Justice Subba Rao also delivered same view in minority opinion of
M.H.George Case (1964).
It is rule that without guilty mind, crime cannot be committed. There are also certain exceptions.
If maxim applies – In case of application of this maxim, accused person would be benefited and
there would be utmost probability of to win the case because prosecutor would be bound to prove
prohibited act and guilty mind.
In the case of Brend v. Wood (1946) Chief Justice Goddard observed the benefit of application of
this maxim and said that application of this maxim is of the utmost importance for the protection
of the liberty of the subjects (citizens).
If maxim does not apply - It would be very easy for prosecutor to win the case because he would
be bound to prove only one condition i.e. prohibited act. To prove guilt mind always very difficult.
It in such case there would be a lot of harm for accused.
Schools of Mens Rea (Interpretation of statutes)

There are two schools regarding interpretation of statutes in context of mens rea. These Schools
are (1) Presumption of existence of Mens Rea, and (2) Presumption of absence of Mens Rea. Both
presumptions are rebuttable.
(1) Presumption of Requirement of Mens Rea- In every Statute mens rea should be treated as
part of crime unless contrary is shown. Existence of Mens Rea is presumed. In case of Q. v. Tolson
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court acquitted lady on the ground of her innocent. She got marriage after full inquiry. But Court
also accepted that by statute mens rea may be excluded. This theory was led by Justice Wright in
case of Sherras v. De Rutzen (1895). In case of Sherras v. De Rutzen (1895) Justice Wright said
“In every statute mens rea is to be implied unless contrary is shown”. In case of Brend v. Wood
(1946), Justice Goddard, “The general rule applicable to criminal case is actus non facit reum
nisi mens sit rea…It is of the of the utmost importance for the protection of the liberty of the
subject that a court should always bear in mind that, unless the statute, either clearly or by
necessary implication rules out mens rea as a constituent part of a crime, a defendant should not
be found guilty of an offence against the criminal law unless he has got a guilty mind”. Principle
of mens rea was revived by Justice Goddard. In the case of Nathu Lal v. State of M.P. (1965)
Supreme Court acquitted the accused on the basis of absence of mens rea.
(2) Presumption of Non-requirement of Mens Rea- According to second School, statute must
be interpreted in absence of mens rea unless requirement of mens rea has been specifically
mentioned. On the basis of this theory Justice Blackburn decided the R.v. Prince (1875) and he
convicted the accused who had no guilty mind. Accused believed that the girl was 18 year while
real age of girl was 14 year. At that time taking of girl below the age of 16 years out of keeping of
lawful guardian was crime. Appearance of Girl was age of 18 years. Court denied to accept Actus
non facit reum , nisi mens sit rea (Common Law Doctrine). This theory was led by Justice Kennedy
in Hobbes v. Winchester Corporation (1910). In the case of State of Maharashtra v. M.H.George
(1964) Supreme Court convicted the accused. Justice K.Subba Rao delivered minority opinion.
Exceptions of Actus non facit reum, nisi mens sit rea
Sometimes offence is constituted even without guilty mind it is called strict liability. Judges applies
this principle only when statutory provisions are silent on the intention of accused. Application
and non-application of this maxim depends upon sound logic and reasonable discretion of
judges.There are certain exceptions of Actus non facit reum, nisi mens sit rea. These exceptions
are following -
(1) Sale, etc., of obscene books (Section 292 of IPC) – Section 292 deals sale, etc., of obscene
books, etc. In the case of Ranjit D.Udeshi v. State of Maharashtra (August 19, 1964) Supreme
Court convicted seller under section 292 for selling Lady Chatterley’s Lover book, although he
had no knowledge of this book. The Court held that in section 292 of IPC unlike several other
sections did not contain the words knowingly, or negligently etc. ‘Principle of Strict Liability’ was
applied.
(2) Sexual Harassment (Section 354A of IPC) - Sexual Harassment has been provided under
section 354A which was inserted by Criminal Law (Amendment) Act, 2013. In this section nothing
has been mentioned about guilty mind of accused. SO in this case principle of strict liability will
be applicable. Section 354A deals about sexual harassment.
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(3) Kidnapping from lawful guardianship (Section 361 of IPC) - Section 361 of IPC deals
kidnapping from lawful guardianship. Mental condition of accused is immaterial. Whether accused
is doing in good faith or not wholly irrelevant.
In the case of R. v. Prince (1875) Justice Blackburn said that section 55 of the Offences Against
the Persons Act, 1861 had not mention about mens rea. He denied applying the maxim Actus non
facit reum, nisi mens sit rea and held that the provision did not require guilty intention or
knowledge so the Court could not insert requirement of intention or knowledge only on the basis
of maxim. So Prince was convicted even without guilty mind. Principle of strict liability was
followed.
(4) Bigamy (Section 494 of IPC) - Whoever, having a husband or wife living, marries in any case
in which such marriage is void by reason of its taking place during the life of such husband or
wife, shall be punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.
(5) Economic offences – Economic offences affect not only develop of nation and life of citizens
but also integrity and sovereignty of nation. In the case of State of Maharashtra v. M.H.George
(1964) majority opinion of Supreme Court observed, “The Foreign Exchange Regulation Act,
1947 is designed to safeguarding and conserving foreign exchange which is essential to the
economic life of a developing country. The provisions have therefore to be stringent and so framed
as to prevent unauthorized and unregulated transactions which might upset the scheme underlying
the controls; and in a larger context, the penal provisions are aimed at eliminating smuggling which
is a concomitant of controls over the free movement of goods or currencies.” The Court further
said that the very object and purpose of the Act and, its effectiveness as an instrument for the
prevention of smuggling would be entirely frustrated if a condition of mens rea were to be read
into the plain reading of the enactment. In this case “Principle of strict liability was applied and
accused was convicted.
(6) Public Health –
In the case of Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Others (Oct. 31, 1973 S C)
Supreme Court said that It is trite law (Trite law means laws that are obvious or common
knowledge) that in food offences strict liability is the rule not merely under the Indian Law but the
entire world over. Nothing more than the actus reus is needed where, regulation of private activity
in vulnerable areas like public health is intended. Social defence reasonably overpowers individual
freedom to injure, in special situations of strict liability. Section 7 of Prevention of Food
Adulteration Act, 1954 casts an absolute obligation regardless of scienter, bad faith and mens rea.
If you have sold any article of food contrary to law, you are guilty. The law denies the right of a
dealer to rob the, health of a supari consumer.
State of M.P. v. Narayan Singh (25 July 1989) -Essential Commodities Act, 1955 were amended
in 1967 to nullify the judgment of Nathulal v.State of Madhya Pradesh (1965). The words used in
section 7 (1) are “if any person contravenes whether knowingly, intentionally or otherwise any
Order made under section 3”. The section is comprehensively worded so that it takes within its
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fold not only contraventions done knowingly or intentionally but even otherwise, i.e., done
unintentionally. Principle of strict liability was applied in the case of State of M.P. v. Narayan
Singh (1989).
American Jurisprudence
Jurisprudence of application of strict liability in adulterated food has been explained in American
Jurisprudence (2d, Vol. 35, p. 864) which are following “The distribution of impure or adulterated
food for consumption is an act perilous to human life and health, hence, a dangerous act, and
cannot be made innocent and harmless by the want of knowledge or by the good faith of the seller;
it is the act itself, not the intent, that determines the guilt, and the actual harm to the public is the
same in one case as in the other. Thus, the seller of food is under the duty of ascertaining at his
peril whether the article of food conforms to the standard fixed by statute or ordinance, unless such
statutes or ordinances, expressly or by implication, make intent an element of the offence.”
Question1 (2013) & Question1 (2015)
“The nature of mens rea that will be implied in a statute creating an offence depends upon the
object of the Act and provisions thereof.” Discuss with the help of decided cases.
Answer
Actus non facit reum, nisi mens sit rea is accepted by all over world subject to statutory provisions.
Question arises when statute is silent about guilty mind of accused whether mens rea should be
treated part of statute or not. It has been observed that in certain cases Judges has incorporated it
as a part of statute and in certain cases not. For example in the case of M.H.George majority
opinion did not borrow this maxim. Justification was given by majority opinion was that object of
FERA was prevent economic condition of country.
Lord Simonds (Halsbury’s Laws of England)
In Halsbury’s Laws of England written by Lord Simonds (3rd edn. Vol. 10, in para, 508, at p. 273,)
the following passage appears: “A statutory crime may or may not contain an express definition
of the necessary state of mind. A statute may require a specific intention, malice, knowledge,
willfulness or recklessness. On the other hand, it may be silent as to any requirement of mens
rea, and in such a case in order to determine whether or not mens rea is an essential element of the
offence, it is necessary to look at the objects and terms of the statute.”
Archbold (Criminal Pleading, Evidence and Practice)

Archbold in his book on “Criminal Pleading, Evidence and Practice”, 35th edn., says much to the
same effect at p. 24 thus: “It has always been a principle of the common law that mens rea is an
essential element in the commission of any criminal offence against the common law In the case
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of statutory offences it depends on the effect of the statute...... There is a presumption that mens
era is an essential ingredient in a statutory offence, but this presumption is liable to be displaced
either by the works of the statute creating the offence or by the subject matter with which it deals.”
Sherras v. De Rutzen (1895)
Wright J., observed “There is a presumption that mens rea, an evil intention, or a knowledge of
the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is
liable to be displaced either by the words of the statute creating the offence or by the subject-matter
with which it deals, and both must be considered.”
The Indo-China Steam Navigation Co. Ltd., v. Jasjit Singh (Feb. 03, 1964 Supreme Court)
The Indo-China Steam Navigation Co. Ltd., which carries on the business of carriage of goods and
passengers by sea, owns a fleet of ships, and has been carrying on its business for over 80 years.
One of he routes plied by its ships in the Calcutta - Japan-Calcutta route. 'Me vessel “Eastern Saga”
arrived at Calcutta on October 29, 1957. On a search it was found that a hole was covered with a
piece of wood and over painted and when the hole was opened a large quantity of gold in bars was
discovered. Gold was confiscated.
This Court in construing the scheme and object of the Sea Customs Act came to the conclusion
that mens rea was no a necessary ingredient of the offence, as, if that was so, the statute would
become a dead-letter. That decision was given on the basis of the clear object of the statute and on
a construction of the provisions of that statute which implemented the said object.
Supreme Court said, “The intention of the legislature in providing for the prohibition prescribed
by Section 52A of Sea Custom Act, 1878, is, inter alia, to put an end of illegal smuggling which
has the effect of disturbing very rudely the national economy of the country. It is well-known, for
example, that smuggling of gold has become a serious problem in this country and operations of
smuggling are conducted by operators who work on an international basis. The persons who
actually carry out the physical part of smuggling gold by one means or another are generally no
more than agents and presumably, behind them stands a well-knit organisation which for motives
of profit-making, undertakes this activity.”
State of Maharashtra v. M.H. George (1964 SC)
Supreme Court observed that the very object and purpose of the Act and, its effectiveness as an
instrument for the prevention of smuggling would be entirely frustrated if a condition of mens rea
were to be read into section 8 (1) or section 23(1-A) of the Act qualifying the plain words of the
enactment, that the accused should be proved to have knowledge that he was contravening the law
before he could be held to have contravened the provision.
Language of the enactment, the object and subject-matter of the statute and the nature and character
of the act ought to be considered.
Nathulal v. State of Madhya Pradesh (1965)

Justice Subba Rao observed, “Mens rea by necessary implication may be excluded from a statute
only where it is absolutely clear that the implementation of the object of the statute would
232
otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an
offence depends on the object of the Act and the provisions thereof.”
Question1 (a) (2014 B)
The fundamental principal of Criminal Liability is that, “there must be wrongful act combined
with wrongful intention”. Elaborate.
Answer
With the help of above case this question can be solved.
Question1 (a) (Dec. 2015)
Explain the rational behind punishing a person guilty of strict liability offence in the absence of
guilty mind.
Answer
Rationality behind application of strict liability
Answer of this question is based on conflict between individual rights v. interest of public at large.
Strict liability is imposed that other person must, in certain cases, take extra care.
Selling of obscene books is dangerous for development of children and nation. It creates lust and
lust creates environment for commission of crime. In case of Ranjit D.Udeshi v. State of
Maharashtra section 292 was interpreted and mens rea was ignored.
For protection of right of guardian application of mens rea is not necessary. For example R. v.
Prince (1875) and section 361 of IPC.
It is necessary for protection of institution of family and health of family. For example in case of
bigamy mens rea is not necessary
Economic offences affect not only develop of nation and life of citizens but also integrity and
sovereignty of nation. In the case of State of Maharashtra v. M.H.George (1964) majority opinion
of Supreme Court observed, “The Foreign Exchange Regulation Act, 1947 is designed to
safeguarding and conserving foreign exchange which is essential to the economic life of a
developing country. The provisions have therefore to be stringent and so framed as to prevent
unauthorized and unregulated transactions which might upset the scheme underlying the controls;
and in a larger context, the penal provisions are aimed at eliminating smuggling which is a
concomitant of controls over the free movement of goods or currencies.” It is necessary for the
prevention of smuggling would be entirely frustrated if a condition of mens rea were to be read
into the plain reading of the enactment.
In the case of Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Others (1973) Supreme
Court said nothing more than the actus reus is needed where, regulation of private activity in
vulnerable areas like public health is intended. Social defence reasonably overpowers individual
freedom to injure, in special situations of strict liability. If you have sold any article of food
contrary to law, you are guilty. The law denies the right of a dealer to rob the health of other.
Jurisprudence of application of strict liability in adulterated food has been explained in American
Jurisprudence which are following “The distribution of impure or adulterated food for
consumption is an act perilous to human life and health, hence, a dangerous act, and cannot be
233
made innocent and harmless by the want of knowledge or by the good faith of the seller; it is the
act itself, not the intent, that determines the guilt, and the actual harm to the public is the same in
one case as in the other. Thus, the seller of food is under the duty of ascertaining at his peril whether
the article of food conforms to the standard fixed by statute or ordinance, unless such statutes or
ordinances, expressly or by implication, make intent an element of the offence.”
Question1 (2015)
The exclusion of Mens rea by necessary implication depends on the object and provisions of
statute. Discuss the Mens rea under strict liability.
Answer
Already discussed
Question1 (a) (2016)

Mens Rea is the very cornerstone of criminal jurisprudence.
Question 1 (2017)
In State of Maharashtra v. M.H. George, AIR 1965 SC 722 the majority did not hold mens rea to
be an essential ingredient of an offence under section 23(1-A) of the FERA, 1947. Whereas Justice
Subba Rao in his dissenting opinion held so. Discuss and State the reasons for their difference of
opinion. Which opinion do you agree with and why?
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ANNEXURE IX
IPC – (1) UGC NET 2018 Dec. and (2) UP (J) (Pre) 2018
Contents
UGC NET 2018 Dec. .................................................................................................................. 234
UP (J) (Pre.) 2018 (Booklet B) ................................................................................................... 237
UGC NET (July 2018) ................................................................................................................ 240
UGC NET (Nov. 2017) ............................................................................................................... 244
UP (Higher Judiciary) Pre. Exam 2018 ...................................................................................... 244
UGC NET 2018 Dec.
Question 13 - ‘A’ enters into the house of ‘B’ with the intention to commit theft. ‘B’ along with
other members of the family surrounded and attack ‘A’ with wooden sticks. ‘A’ finding his life in
danger fires with pistol causing death to ‘B’. Here ‘A’ has committed :
Option - (1) Culpable homicide not amounting to murder (2) Murder (3) Theft (4) No offence as
he acted in self –defence.
Answer - Murder. Right of private defence is not available against right of private defence. It is
also not available for stage manager.
Question 14 – Match the items of List I (Name of Cases) with the items of List II (Offence) and
choose the correct answer from the code given below –
List I List II
(a) Vishwanath v. State of U.P. (i) Kidnapping
(b) State of Punjab v. Major Singh (ii) Private defence
(c) S.Varadarajan v. State of Madras (iii) Modesty of women
(d) Amar Singh v. State of Rajasthan (iv) Dowry Death
Options
(1) (a)ii (b) iii (c) iv (d) i
(2) (a) iv(b) ii (c) i (d) iii
(3) (a) ii(b) iii (c) i (d)iv
(4) (a)iv (b) ii (c) iii (d) i
Answer – (3) (a) ii(b) iii (c) i (d)iv

List I List II
(a) Vishwanath v. State of U.P. (ii) Private defence
(b) State of Punjab v. Major Singh (iii) Modesty of women
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(c) S.Varadarajan v. State of Madras (i) Kidnapping

(d) Amar Singh v. State of Rajasthan (iv) Dowry Death
Question 41 – Who among the following defined crime as “an act committed or omitted in
violation of a public law either forbidding or commanding it”?
Options – (1) Kenny (2) Russel (3) J.F. Stephen (4) Blackstone
Answer - (4) Blackstone. (It was asked in Nov. 2017 NET also).
Question 54 – A, a police office, tortures B to induce him to point out where certain stolen property
is deposited. Here A is guilty of an offence under –
Options- (1) S. 330 (2) S. 331(3) S.332 (4)S. 333 IPC
Answer – Section 330 (Illustration (b)).
Question 62 - A, a public officer, is authorized by a warrant from a Court of Justice to apprehend

Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby
intentionally causes A to apprehend C. In this case ‘B’ abets the apprehension of ‘C’ by-
Option - (1) Aiding and instigation (2) Conspiracy only, (3) Aiding only (4) Instigation only.
Answer – (4). Section 107, Explanation 1, Illustration.
Question – 69 - Match the items of List I with the items of List II and choose the correct answer
from the code given below –
List 1 (Provisions for) List II (Section of IPC)
General Explanation of life Section 45
Act of Judge when acting judicially Section 52
Act of child under seven years of age Section 77
Explanation of ‘Good Faith’ Section 82
Answer –
List 1 (Provisions for) List II (Section of IPC)
General Explanation of life Section 45
Act of Judge when acting judicially Section 77
Act of child under seven years of age Section 82
Explanation of ‘Good Faith’ Section 52
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Question 71 – “The right of private defence of the body commences as soon as a reasonable
apprehension of danger to the body arises and continues so long as such apprehension of danger
continues.” This observation was made by the Supreme Court in :
Option (1) Ranga Billa v. Union of India (2) State of Punjab v. Nanak Chand (3) Deo Narain v.
State of U.P. (4) Ram Swarup v. State of U.P.
Answer – (3)Deo Narain v. State of U.P. 1972.
Question 77 -Which theory of punishment is based on the humanistic principle that even if an
offender commits a crime, he does not cease to be a human being?
Option (1) Deterrent Theory (2) Preventive theory (3) Retributive theory (4) Reformative theory
Answer - (4) Reformative theory.
Question 78 – ‘A’ a woman knowing that his husband ‘B’ has recently committed dacoity,
harbours him with the intention of screening him from punishment. In this case ‘A’ is :
Option - (1) guilty for harbouring as well as screening (2) guilty for harbouring only (3) Not guilty
(4) guilty for screening only.
Answer - (3) Not guilty. Section 212, Exception.
Question 84
Under which of the following situations would Indian Courts have jurisdiction?
(1) Crime committed by an Indian in a foreign country.
(2) Crime committed by a foreigner in India
(3) Crime committed by a person on an Indian ship
Option – (1) 1 and 3 (2) 1 and 2 (3) 2 and 3 (4) All1, 2 and 3.
Answer – (4) All -1, 2 and 3. In all cases Indian Courts have jurisdiction.
(1) Crime committed by an Indian in a foreign country (Section 4(1)).
(2) Crime committed by a foreigner in India (section 2- The phrase ‘every person’ has a wider
connotation. It includes not only citizens, but also non-citizens and even foreigners visiting India.)
(3) Crime committed by a person on an Indian ship (Section 4(2)).
Section 2 deals intra-territorial jurisdiction while section 3 and section 4 deal extra-territorial
jurisdiction.
Question – 96 - Match the items of List I with the items of List II and choose the correct answer
(a) Ex turpi causa non oriture (i) Immediate cause
(b) de minimis non curat lex (ii) From an immoral cause no action arises
237
(c) Causa causans (iii) From day to day

(d) de die in diem (iv) Law does not concern with trifles
Answer –
(a) Ex turpi causa non oriture (ii) From an immoral cause no action arises
(b) De minimis non curat lex (iv) Law does not concern with trifles (Section 95)
(c) Causa causans (i) Immediate cause (Section 299
(d) De die in diem (iii) From day to day
UP (J) (Pre.) 2018 (Booklet B)
Question 37 – The Criminal Law (Amendment) Act, 2018 comes into force -
(a) 11 August, 2018 (b) 21 April, 2018, (c) 1 Sep. 2018 (d) 1 July, 2018
Answer - (b) 21 April, 2018.
Explanation -According to Section 1(2) of The Criminal Law (Amendment) Act, 2018, it shall be
deemed to have come into force on the 21st day of April, 2018.
Question 38- In case of criminal misappropriation subsequent intention must be –

(a) Fraudulent (b) Dishonest (c) Innocent (d) Illegal.
Answer -(b) Dishonest.
Explanation - Section 403 deals about dishonest misappropriation of property.
Question 39- The ‘Doctrine of joint liability’ as envisaged by section 34 of the IPC is based on
the decision of the following –
(a) Barendra Kumar Ghosh v. Emperor(b) Mulcahy v. R ( c) Pandurang v. State of Hyderabad (d)
Reg v. Cruise
Answer - (d) Reg v. Cruise. Section 34 is based on the ratio of decision of Reg v. Cruise (1838).
In this case Police Constable went to arrest ‘A’ at his house. B C & D came and gave him a blow.
In this case the Court evolved the Doctrine of Joint liability.
Explanation - (a) Barendra Kumar Ghosh v. Emperor (1924) (b) Mulcahy v. R (1868) ( c)
Pandurang v. State of Hyderabad (1954) (d) Reg v. Cruise (1838)
Question 40- Which of the following combinations are correctly matched ?

(1) Harbour – Section 51A (2) Wrongful loss – Section 23 (3) Gang Rape of woman under 12
Years of age Section 375DB (4) Gang Rape - Section 375D.
Option – (a) 1, 3 & 4(b) 1, 2&3(c) 2,3&4 (d) 1,2&4.
238
Answer - (c) 2,3&4. Harbour – Section 52A rather than Section 51A.
Question 41- Which of the following is not correctly matched ?

(a) Navtej Singh Johar v. Union of India – Section 498A
(b) K.N. Mehra v. State of Rajasthan- Section 378
(c) Niharendu Datt Majumdar v. Emperor- Section 124A
(d) State of Haryana v. Raja Ram – Section 361
Answer - (a) Navtej Singh Joharv. Union of India – Section 498A.
Explanation - Navtej Singh Joharv. Union of India is a leading case on section 377 in which
Supreme Court partially struck down section 377. This was decided by Constitutional bench on
September 6, 2018.
Question 42 – Consider the following cases and arrange them in chronological order –
(1) W.Kalyani v. State Tr.Insp.Of Police & Anr (2) Yusuf Abdul Aziz v. The State of Bombay (3)
Joseph Shine v. Union of India (4) V. Rewathi v. Union of India.
Code: (a) 4,1, 2,3 (b) 2,4,1,3 (c) 1, 3,4,2 (d) 3,2,1,4.
Answer –(b) 2,4,1,3
(2) Yusuf Abdul Aziz v. The State of Bombay (1954)
(4) V. Rewathi v. Union of India 1998
(1) W.Kalyani v. State Tr.Insp.Of Police & Anr (2011)
(3) Joseph Shine v. Union of India (2018).
All cases are related to section 497 of IPC. In Joseph Shine v. Union of India Supreme Court
declared section 497 as unconstitutional. In this case all previous cases were also discussed.
Question 43 – In which of the following cases, the Supreme Court has remarked that ‘
husband is not the master of his wife’?
(a) Joseph Shine v. Union of India (b) Sarla Mudgal, President, Kalyani v. Union of India (c) Lily
Thomas v. UOI (d) Kailash Singh v. Priti Pratihar.
Answer (a) Joseph Shine v. Union of India – Hon’ble Dipak Misra, CJI, “A woman cannot be
asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters
her core identity. And, it is time to say that a husband is not the master. Equality is the governing
parameter.”
239
Question 44 – ‘A’ with intent to murder, administered a fatal dose of poison to ‘Z’, and then while
‘Z’ was still alive, a stranger ‘B’, without A’s knowledge attacked ‘Z’ and shot him dead.
(a) ‘A’and ‘B’ both would be guilty of murder (b) ‘A’ would be guilty of culpable homicide and
‘B’would be guilty of murder (c) ‘A’ would be guilty of attempt to murder and ‘B’would be guilty
of murder (d) ‘A’ would be guilty of instigating ‘B’ to commit murder and ‘B’would be guilty of
murder.
Answer - (c) ‘A’ would be guilty of attempt to murder and ‘B’would be guilty of murder.
Explanation – For murder two things must be proved namely; (1) Causa causans (Immediate
cause) and (2) guilty mind. In this problem ‘A’ had guilty mind and he was knowing that by that
dose it was likely to cause death. But reason of death of ‘Z’ was not poison. So there was absence
of Causa causans of death. So ‘A’ would be liable for attempt to murder.
‘B’ would be liable for murder because he shot ‘Z’ with the intention to cause death. ‘A’ and ‘B’
both were stranger to each other. So no question arises regarding joint liability.
Question 45 – A, a police-officer, tortures Z in order to induce Z to confess that he committed a

crime. A is guilty of an offence under –
(a) Section 325 IPC (b) Section 326 IPC (c) Section 330 IPC (d) Section 331 IPC
Answer - (c) Section 330 IPC. Explanation Section 330, Illustration (a).
Question 46 – ‘A’ who was entrusted by ‘B’ with certain blocks for printing a catalogue, prints
catalogue of rival’s firm with the same block. ‘A’ is guilty of
(a) Criminal breach of trust (b) Criminal misappropriation (c) Cheating (d) Theft
Answer - (a) Criminal breach of trust
Question 47 – Disclosure of identity of a victim of rape is punishable under

(a) Section 376D, IPC (b) Section 376 E, IPC (c) Section 228, IPC (d) Section 228A, IPC.
Answer - (d) Section 228A, IPC.
Question 48- No right of private defence is available against the offence of

(a) Criminal breach of trust (b) Theft (c) Robbery (d) Criminal Trespass.
Answer -(a) Criminal breach of trust. Explanation- Section 97 Secondly.
240
Question 49- Match the items of List I with the items of List II and choose the correct answer
List I List II
(a) Delivery of property (1) Criminal breach of trust

(b) Taking of property (2) Criminal misappropriation of property
(c) Entrustment of property (3) Theft
(d) Convertibility of property got innocently to one’s own use (4) Extortion
Code – (a) 4,3,1,2 (b) 3,4,1,2 (c) 4,2,3,1(d) 3,1,2,4
Answer - (a) 4,3,1,2
(a) Delivery of property (4) Extortion

(b) Taking of property (3) Theft
(c)Entrustment of property (1) Criminal breach of trust
(d) Convertibility of property got innocently to one’s own use(2) Criminal misappropriation of
property
Question 50 - Voyeurism is defined under which section of IPC-

(a) Section 354 A (b) Section 354 B (c) Section 354C (d) Section 355.
Answer - (c) Section 354C.
Question 51 – In which case, the Supreme Court unanimously ruled that individual autonomy and
intimacy and identity are protected under fundamental rights?
(a) Navtej Singh Johar v. Union of India
(b) Suresh Kumar Kaushal v. Naz Foundation
(c) Castle Rock v. Gonzales
(d) None of the above
Answer - (a) Navtej Singh Johar v. Union of India.
UGC NET (July 2018)
Question 58. Point out the correct statement :

(1) Crime is necessarily an immoral act.
(2) Crime is necessarily an anti-social act.
(3) Crime is necessarily an anti-communal act.
(4) Crime is necessarily an anti-religious act.
Answer – (2)Crime is necessarily an anti-social act.
241
Question 59. Four accused with common intention to kill, shot one B in the bona fide belief that
B was A. In this case :
(1) None of them is liable for the offence of murder.
(2) All accused are guilty of causing death.
(3) Section 34 of Indian Penal Code does not apply.
(4) All accused are guilty of causing death without invoking Section 34.
Answer - (2) All accused are guilty of causing death.
Question 60. Under Section 65 of Indian Penal Code, 1860, sentence of imprisonment for non-
payment of fine shall be limited to :
(1) One-half of the maximum term of imprisonment fixed for the offence.
(2) One-third of the maximum term of imprisonment fixed for the offence.
(3) One-fourth of the maximum term of imprisonment fixed for the offence.
(4) One-fifth of the maximum term of imprisonment fixed for the offence.
Answer - (3) One-fourth of the maximum term of imprisonment fixed for the offence.
Question 61. Under which of the following sections of the Indian Penal Code, 1860, promoting
enmity between different groups on grounds of religion, race, place of birth, residence, language
etc. and doing acts prejudicial to maintenance of harmony is dealt with?
(1) Section 153 (2) Section 153-A (3) Section 153-AA (4) Section 153-B
Answer - (2) Section 153-A
Question 62. A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers

from the wound. Here A is guilty of:
(1) Instigating B to commit murder
(2) Instigating B to commit attempt to murder
(3) Instigating B to commit grievous hurt
(4) No offence
Answer - (1) Instigating B to commit murder. Section 108, Explanation 2, Illustration (b).
Question 63. Under which of the following provisions of the Indian Penal Code, 1860, an assault
or criminal force used in attempting to commit theft of property is punishable?
(1) Section 356 (2) Section 378 (3) Section 379 (4) Section 384
Answer - (1) Section 356
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Question 64. ‘X’ gives grave and sudden provocation to ‘Y’. ‘Y’ on this provocation, fires a pistol
at ‘X’, neither intending nor knowing himself to be likely to kill ‘Z’, who is near him, but out of
sight. ‘Y’ kills ‘Z’. Here ‘Y’ has committed:
(1) Death by negligence (2) Murder (3) Culpable homicide not amounting to murder (4) No
offence.
Answer - (3) Culpable homicide not amounting to murder. Section 300, Exception 1, Illustration
(b).
Question 65. Match List-I with List-II and give the correct answer by using the code given below:
List - I List-II
(a) Dishonest taking of property (i) Criminal breach of Trust
(b) Dishonestly inducing any person to deliver property (ii) Extortion
(c) Entrustment of property (iii) Criminal Misappropriation
(d) Conversion of property (iv) Theft
Code :
(a) (b) (c) (d)
(1) (i) (ii) (iii) (iv)
(2) (iv) (ii) (i) (iii)
(3) (iii) (iv) (ii) (i)
(4) (ii) (iii) (i) (iv)
Answer - (2) (iv) (ii) (i) (iii)
List - I List-II
(a) Dishonest taking of property (iv) Theft
(b) Dishonestly inducing any person to deliver property (ii) Extortion
(c) Entrustment of property (i) Criminal breach of Trust
(d) Conversion of property (iii) Criminal Misappropriation
Question 66. Read Assertion (A) and Reason (R) and give the correct answer by using the code
given below :
Assertion (A) : 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 exact nature of the act.
Reason (R) : Mistake of fact is a good defence and mistake of law is no defence.
Code :
(1) Both (A) and (R) are true, and (R) is the correct explanation of (A).
(2) Both (A) and (R) are true, but (R) is not the correct explanation of (A).
(3) (A) is true but (R) is false.
(4) (A) is false but (R) is true.
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Answer - (2) Both (A) and (R) are true, but (R) is not the correct explanation of (A). Person of
unsound mind always gets benefits whether he has done under mistake of facts or laws.
List - I List-II
(a) Mehboob Shah V. Emperor (i) Mens rea

(b) State of Maharashtra V. M.H. George (ii) Intoxication
(c) Director of Public Prosecutions V. Beard (iii) Common Intention
(d) R.V. Dudley V. Stephens (iv) Necessity
Code :
(a) (b) (c) (d)
(1) (i) (ii) (iii) (iv)
(2) (ii) (iv) (i) (iii)
(3) (iii) (i) (ii) (iv)
(4) (iv) (ii) (iii) (i)
Answer -(3) (iii) (i) (ii) (iv)
List - I List-II
(a) Mehboob Shah V. Emperor (iii) Common Intention
(b) State of Maharashtra V. M.H. George (i) Mens rea
(c) Director of Public Prosecutions V. Beard (ii) Intoxication
(d) R.V. Dudley V. Stephens (iv) Necessity
Question 68. Match List-I with List-II and give the correct answer by using the code given below
:
List – I(Provision for) List-II (Sections of I.P.C.)

(a) Punishment for causing death or resulting
state of victim in persistent vegetative state of victim (i) Section 376-D
(b) Sexual intercourse by husband upon his wife
during separation (ii) Section 376-B
(c) Sexual intercourse by a person in authority (iii) Section 376-A
(d) Gang rape (iv) Section 376-C
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Code:
(a) (b) (c) (d)
(1) (i) (ii) (iii) (iv)
(2) (ii) (iv) (i) (iii)
(3) (iii) (ii) (iv) (i)
(4) (iv) (i) (iii) (ii)
Answer -(3) (iii) (ii) (iv) (i)

List – I(Provision for) List-II (Sections of I.P.C.)
(a) Punishment for causing death or resulting
state of victim in persistent vegetative state of victim (iii) Section 376-A
(b) Sexual intercourse by husband upon his wife
during separation (ii) Section 376-B
(c) Sexual intercourse by a person in authority (iv) Section 376-C
(d) Gang rape (i) Section 376-D
UGC NET (Nov. 2017)
Question 27. The right to private defence against an act done by a public servant is not available:
(1) When it is discharged in good faith
(2) When it is attempted to be done by him
(3) When it was done while he was not in his office
(4) When it is strictly to be justifiable by law
Answer (1) When it is discharged in good faith. Explanation – Section 99 of IPC.
Section 99 (Part 1) -There is no right of private defence against an act which does not reasonably
cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public
servant acting in good faith under colour of his office, though that act, may not be strictly justifiable
by law.
UP (Higher Judiciary) Pre. Exam 2018
Question no. 28 – The Criminal Law (Amendment) Act, 2013 has four new Sections after section
354 of the Penal Code. One of the newly inserted sections deals with Voyeurism. Mark that section:
(A) Section 354A (B) Section 354B (C) Section 354C (D) Section 354 D.
Answer -(C) Section 354C
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Question no. 45 – A police officer has received a sum of Rs. 5000/-against fine from the persons
violating traffic rules, instead of depositing the fine money with State Treasury, he utilized the
same for his personal use. What offence under Indian Penal Code, the police officer has committed:
(A) Criminal Breach of Trust (B) Mischief (C) Cheating the Government (D) None of the above.
Answer - (A) Criminal Breach of Trust. Explanation – Section 403. Silmilar to illustration (e).
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ANNEXURE X
(Question Paper of 2018. LLB-DU)
Marks are given on the basis of logic rather than conclusion. I have tried only to find out some
conclusion. Suggestions are expected. After your suggestions, I will explain these answers in
detail.
Question (1) (a)

Is mens rea necessary for all crimes? If not, discuss the circumstances when mens rea may be
excluded in fixing criminal liability.
Answer – Discussion about ‘ Actus non…..and ‘Strict liability.
Question (1) (b)
‘A’ a man whose crop was frequently stolen, found ‘B’ committing theft and gave him some blows
with a Lathi which resulted in his death. Is he justified in killing ‘B’ in exercise of right of private
defence of property.
Answer – He exceeded his right of private defence. Section 103, sections 300 Exception 2, James
Martin Case.
Question (2) (a)
‘X’ finds a diamond ring belonging to ‘Y’ on a table in latter’s house and X puts the same under
the carpet there with the intention of taking it later. The ring still lies there in the house of ‘Y’
undetected. Better side of man prevails over ‘X’ and he decides not to take out the ring. Has ‘X’
committed any offence?
Answer . There are five essential ingredients of theft. As soon as ‘X’ moves the ring which is
movable property dishonestly, he committed theft.
Section 378, Illustration (h). A sees a ring belonging to Z lying on a table in Z’s house. Not
venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring
in a place where it is highly improbable that it will ever be found by Z, with the intention of taking
the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first
moving the ring, commits theft.
Question (2) (b)
Mira, a girl of 16 years, was living with her aged father and step mother who used to ill-treat her.
She would often narrate her woes to Gopal, her 22 year old neighbor. One day Gopal suggested
that they go to Mumbai and start their lives afresh. He also promised to marry her. Mira agreed
and as planned they boarded the train to Mumbai. What offence, if any, has been committed by
Gopal?
Answer – Gopal has committed kidnapping. He has enticed a minor girl. Meaning of enticing must
be discussed.
Question (3)
247
Tej had scolded Teena, daughter of Shan, for misbehaving with his daughter. Shan did not like this
and was looking for an opportunity to give good thrashing to Tej. One day Shan saw that Tej was
passing through his place and seizing this opportunity, Shan caught hold of a stick lying nearby
and gave nineteen blows with the stick on the legs and arms of Tej. Tej was removed to a nearby
hospital and died after two days. The post-mortem report attributed death to multiple fractures on
arms and legs and internal bleeding. Shan is tried for the offence of murder under section 300 (3)
IPC. Decide with the help of decided cases.
Answer. Anda Case and Kapur Singh Case and some other cases.
Question (4)
Sunil, a senior Air Force Officer, one day invited his junior female colleague, Mamta to his house
at night for having dinner with him in the absence of his wife. Later, he raped her. She struggled
and screamdbut no one came for her rescue. Immediately after words, she drove to the hospitaland
complained that she has been raped. There was no explanation of any complaining reasons for
meeting the officer at night. She asserted virginity but medical evidence showed that she was
habitual to sex. On Mamta’s complaint, Sunil was arrested and tried for rape. Sunil contended
consent on the part of Mamta for the intercourse and pleaded not guilty. Decide the case.
Answer – Sunil has committed rape. Section 375 of IPC, 114A of Indian Evidence Act, Tukaram
Case and Gurmit Singh Case.
Question (5) (a)
‘A’ was in the habit of beating up his wife over trivial issues. One day, during such fight, ‘A’
picked up a lathi lying nearby and hit his wife on her head. Consequent to the lathi blow, the
woman fell unconscious. Believing her to be dead he hung her body by a rope in order to create
an appearance that the wife committed suicide. However, postmortem examination showed that
death was due to hanging. With the help of decided cases determine the culpability of A.
Answer – Palani Goundan v. Emperor 1919, Mad. H.C. ‘A’ has not committed culpable
homicide. He has committed voluntarily hurt.
Question (5) (b)
A, a driver of double-decker bus was driving the bus. A pedestrian suddenly crosses the road
without taking note of the approaching bus. The pedestrian was hit by the bus. Although the driver
was driving the bus very slowly, but he could not apply the brakes so quickly as to save the
pedestrian. The driver was prosecuted and punished under section 304-A IPC for negligent driving.
Has he been rightly convicted?
Answer – A has wrongly been convicted under section 304-A. He was drivingly double-decker
bus negligently. S.N.Hussain v. State of Andhra Pradesh (DOJ Jan. 5, 1972) is relevant case.
Question (6)
‘A’ and ‘B’ agreed to rob the owner of a Liquor Store. The plan was that just before the Store
closes, they would enter the store, and while ‘A’ would threaten the owner with a knife, ‘B’ would
empty the cash box. ‘A’ asked ‘B’ what happens if the owner puts up a fight. ‘B’ replied “Use
your knife”.
248
On the appointed day and time they went to the shop. ‘A’ threatened the owner with the knife. The
owner of the store offered no resistance. ‘B’ emptied the cash box and then both of them walked
towards the door. At that moment ‘X’ a customer walked in and realized at once what was
happening. He tried to seize the cash bag from ‘B’. ‘A’ stabbed ‘X’ several times in the neck and
back. The owner also tried to assist ‘X’. ‘B’ punched him in his stomach causing him to fall and
hit his head on the counter. ‘X’ died as a result of the injuries and the owner suffered a deep cut
on his forehead which required a few stiches. Later on, both were convicted for the murder of ‘X’
under section 302 IPC. Discuss.
Also consider ‘A’s liability for the injuries caused to the owner.
Answer – Both have committed murder.
First approach - Here section 34 r/w section 302 will be applicable. Common intention may
develop on the spur. Suresh and Another v. State of Uttar Pradesh - Common intention can be
formed previously or in the course of occurrence and on a spur of moment.
Second approach – section 302 r/w section 301.
Question (7) (a)

‘A’ hits ‘B’, his servant with a stick in the stomach for being careless and lazy ‘B’ dies as a result
of the injury which caused rupture in the intestine, which was inflamed as a result of appendicitis.
Discuss ‘A’s liability.
Answer –
Question (7) (b)
Rohan is a ware-house keeper. Gopal going on a journey, entrusts his furniture to Rohan, under a
contract that it shall be returned on payment of a stipulated sum for the ware-house room. Rohan
dishonestly sells the goods. What offence, if any, has Rohan committed.
Answer – Section 405, Illustration (b).
Question (8) (a)
Karim, a Police Inspector, invited his subordinate Shyam to his room and they started discussing
some political issues. Suddenly, Shyam made a sarcastic (taunt) remark indicating that Karim
favoured certain accused due to his political associations. Karim got annoyed and started abusing
Shyam in filthy language to which Shyam objected. This further infuriated Karim and a fight
ensued between the two. Shyam punched him in his stomach. Karim picked up his service revolver
which was kept nearby and fired a shot at Shyam causing his death. Karim has been charged with
murder. Prepare arguments in his defence.
Answer – Offence has been committed under Section 300 Exception 4. relations between
Exception 1 and Exception 4 of section 300, K.M. Nanavati Case Ghapoo Yadav & Ors. v. State
of M.P. ( Feb. 2003) and Surain Singh v. The State of Punjab (DOJ-10 April 2017).
Question (8) (b)
Is ‘A’ liable for committing an attempt to commit an offence in the following cases:
(i)
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‘A’ during the quarrel with a woman ‘B’, flung her child about 2 years old into a 4 feet deep pond
out of anger. But ‘C’ who was standing near the pond immediately picked up the child from the
pond and the child did not die.
Answer – Attempt to murder (Section 307).
(ii)
‘A’ enters into ‘B’s house and peeps through a window into B’s room where B’s coat is hanging
on chair. ‘A’ mistaking the coat for ‘B’ fires.
Answer – Attempt to murder. Social danger theory and American Case. ( ‘Wharton’ – Whether it
is book or case, I am searching.)
UGC NET 2018 Dec. and UP J (Mains) 2019
Question 13 (NET)
‘A’ enters into the house of ‘B’ with the intention to commit theft. ‘B’ along with other members
of the family surrounded and attack ‘A’ with wooden sticks. ‘A’ finding his life in danger fires
with pistol causing death to ‘B’. Here ‘A’ has committed :
Option - (1) Culpable homicide not amounting to murder (2) Murder (3) Theft (4) No offence as
he acted in self –defence.
Answer - Murder. Right of private defence is not available against right of private defence. It is
also not available for stage manager.
Question no. 10 (b) (UP J, 2019)

This problem can be solved with the help of State of U.P. v. Ram Swarup which is known as Melon
Case decided by Supreme Court in 1974. In this case Supreme Court observed , “The right of
private defence is a right of defence, not of retribution. It is available in face of imminent peril to
those who act in good faith and in no case the right be conceded to a person who stage-manages
a situation wherein the right can be used as a shield to justify an act of aggression. For example
if a person goes with a gun to kill another, the intended victim is entitled to act in self-defence and
if be so acts there is no right in the former to kill him in order to prevent him from acting in self-
defence.”
From the ratio of Ram Swarup case, it can be concluded that ‘A’ has committed murder.
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CHAPTER IX
SECTIONS 76 TO 95, IPC
GENERAL
EXCEPTIONS
MISTAKE Ignorantia facti excusat, Ignorantia juris (legis) non
(neminem) execusat. Ignorance of fact is excusable, but
ignorance of law is not excusable.
1960 State of Orissa v.
Ori.H.C. Ram Bahadur Thapa
1987 S.C. State of Orissa v.
Bhagaban Barik
1981 S.C. State of West Bengal An act done under the orders of superior authority. S.C.
Section 76 v. Shew Mangal held that the situation warranted and justified the order
Singh. Section 76 to open fire and hence accused got the protection of
Section 76 and cannot be held guilty
1989 S.C. Kiran Bedi and A lawyer was apprehended by the students of the St.
Section 79 Jinder Singh v. The Stephens College, D.U. and handed over to the police
Committee of on the allegation of committing an offence within the
Inquiry campus.The said lawyer was handcuffed and produced
before the court. Handcuffing of lawyer was opposed by
other lawyers.
Section80
1950 Tunda v. Rex Two friends , who were fond of wrestling match.
All.H.C.
1997 Bhupendra Singh Proper care and caution
Chavdasama V. State
of Gujarat
SECTION 81 DOCTRINE OF NECESSITY
1551 Reninger v.Fogossa In order to avoid a dangerous storm at sea, the
Justice QUID defendant, Fogossa, violated a statute in the way he
Polllard NECESSITAS docked his ship. By the strict terms of the statute,
NON HABET Fogossa should have forfeited the goods on board.
LEGAM Fogossa pled the defence of necessity and prevailed.
The court held: “In every law there are some things
which when they happen a man may break the words of
law , and yet not the brweak the law itself and such
things are exempted out of the penalty of the law ….It
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is common proverb , Quid necessitas non habet

legam…where the words of them are broken to avoid
greater inconvenience or through necessity or by
compulsion………….
1608 Mouse’s Case A ferryman was carrying forty-seven people, including

QUID one named Mouse , when a storm threatened the barge.
NECESSITAS Another, one passenger threw the cargo overboard to
NON HABET save the barge. Mouse’s casket included £113 inside
LEGAM was and he sued the passenger for its loss.
upheld. The court found that in cases of necessity, anyone may
act to save lives and there is no liability to them,
although there may be liability against the ferryman. It
was, however, still encumbered on the ferryman to
contribute to the reimburse of the loss.
1884 R. v. Dudley and Lord Coleridge “To preserve one's life is generally
Lord Stephan It is a speaking a duty, but it may be the plainest and the
Coleridge leading English highest duty to sacrifice it. War is full of instances in
“To preserve criminal case which which it is a man's duty not to live, but to die. The duty,
one's life is established a in case of shipwreck, of a captain to his crew, of the
generally precedent throughout crew to the passengers, of soldiers to women and
speaking a the common law children, as in the noble case of the Birkenhead
duty, but it world that necessity (Birkenheadis the name of British ship); these duties
may be the is not a defence to a impose on men the moral necessity, not of the
plainest and charge of murder. preservation, but of the sacrifice of their lives for others,
the highest from which in no country, least of all, it is to be hoped,
duty to in England, will men ever shrink, as indeed, they have
sacrifice it.” not shrunk.”
1868 Dhania Daji v The accused was a toddy tapper. He observed that toddy
Emperor (1868) was brewing stolen from the trees regularly. To prevent
it, he poisoned toddy in some of the trees. He sold toddy
from other trees. However, by mistake the poisoned
toddy was mixed with other toddy, and some of the
consumers were injured and one of them had died. He
was prosecuted. He took the plea of Section 81.The
Privy Council did not accept the contention of the just
necessitas, as mixing poison was done by the accused
intentionally and also with the knowledge that it would
252
cause grave danger to the people. The accused was

punished under section 328.
23 Gopal Naidu And The accused was a rich person in a village3. He drank
December, Anr. v. King- and created public nuisance and also grave danger to the
1922 Emperor public. The village Magistrate arrested him. The
Bom.H.C accused filed a case against the village Magistrate.The
Justice court upheld the act of villager Magistrate as it was
Phillips necessary to protect the people from the grave danger of
the drunken accused.
Section 82 Doli The words “doli incapax” means “incapability of the
Incapax child” to distinguish right or wrong. Hence the law
grants absolute immunity to such an infant from
wrongful acts. In India -7 years, England-10 Years
Section 83
1950 Ulla
Mahapatra In case of doubt of age, benefit shall be given to accused.
v.King Ulla Mahapatra, is a boy of about twelve years of age,
he caused the death of a Dandasi boy named Ranka
Naik . First he threatned and later on accordin to
threating , he cut the deceased to pieces. He was held
liable .
1874 Queen V. Lakshmi Charged for crime of setting a fire with intent to cause
Agradani damage (Arson). She was aware that by such act she
would cause damage but not aware about punishment.
The High Court held that the Words “..consequences of
his conduct..”in section 83 do not refer to penal
consequences.
(AIR 1977 Heeralal v. State of A child of eleven years quarreled with the deceased.
SC 2236) Bihar The child threatened the deceased that he would cut him
into pieces. He picked up his knife and actually stabbed
the deceased to death. In the prosecution, the defence
was pleaded under Sec. 83.
The boy was not entitled to get the immunity under Sec.
83 because his words, gesture, assault, keeping a knife
in his pocket, stabbing the deceased, etc., showed that
the child had attained sufficient maturity of
understanding to judge the wrongful act and also the
consequences of his act
253
PERSON OF UNSOUNND MIND

1 MAXIMS
Non compos mentis Non compos mentis means “ person of unsound mind”
SECTION 84 There are four kinds of persons who may be said to be
unsound mind (1) An idiot (2) A lunatic or idiot man(3)
Unsound mind by reason of illness (4) One who is
drunk
Furiosis nulla voluntas Actus non facit reum , nisi mens sit rea) Sec.84 .A man
without guilty intention cannot be punished – Actus non
facit reum, nisi mens sit rea.
Furiosus absentis low SECTION 84 A mad man is like a person who is
est absent.
Furiosus furore sui SECTION 84 A mad man is punished for his madness.
punier
2 KIND OF INSANITY SECTION 84 There are two types of insanity, (1) Insanity
by birth , (2) Insanity after birth
Dementia naturalis Individuals who are insane by birth.
Dementia adventitia or Individuals who are insane after birth.
accidentialis
Compos mentis Having controls over own mind
Delirium tremens Individuals who are insane by birth.It is a kind of insanity
(Medical Juris.) , it occurs due to over drinking or habitual drinking.
3 BRITISH LAW
Test Related to person of (1) Wild Beast Test. (2) Insane Delusion Test (3)
unsound mind Bowler Test (4) M’ Naghten Rule (5) Durham Rule
(1) Wild Beast Test. It is “Good and Evil test”.
R. v. called wild beast test Victim-Lord Onslow. In the 1724, British case of Rex v.
Arnold because he do like wild Arnold, the judges ruled for the defendant to be acquitted
, (Forest) beast (animal). by reason of insanity because he did not know what he was
1724 Wild beast do not know doing and he was doing no more than a “wild beast” would
Justice whether it is good or do.
Tracy bad.
1724 R. v. Arnold, This test was evolved in R v. Arnold. Here, the accused
Justice Accused was acquitted. was tried for wounding and attempting to kill Lord
Tracy Here visitation of God Onslow. By evidence, it was clear that the person was
means he thought that mentally deranged. J Tracy laid the test as follows, "If
super natural power was he was under the visitation of God and could not
going to kill him. distinguish between good and evil and did not know what
he did, though he committed the greatest offence, yet he
254
could not be guilty of any offence against any law

whatsoever."
1760 Lord Ferrer Case Test of ability to distinguish between good and evil was
approved.
(2) INSANE DELUSION Victim- King George III
TEST
1800 R. v. Hadfield's Case This test was evolved in Hadfield's Case in 1800, where
Delusio James Hadfield had fired Hadfield was charged with high treason and attempting
n a horse gun at the kinng the assassination of King George III. He was acquitted on
Means George III when he the ground of insane delusion. Here, the counsel pleaded
a false entered into Royal Box in that insanity was to be determined by the fact of fixed
idea or theatre during the play . insane delusions with which the accused was suffering and
belief He had missed the which were the direct cause of his crime. He pointed out
that is targetAccused was that there are people who are deprived of their
caused acquitted on the understanding, either permanently or temporarily, and
by ground of insanity. suffer under delusions of alarming description which
mental overpowers the faculties of their victims.
illness.
(3) Bowler test Test of Capacity to distinguish between right and wrong.
It was not clear and definite until the M’ Naghten Case
decided in 1843.
1812 Bowler Case
4 Mc Naghten Victim- Murder of a private secretary of the then prime
Rule(Daniel Mc minister of England
Naghten)
1843 R V. M’Naghten In this case, Danial M'Naghten was tried for the murder
Daniel Mc Naughten, of Edmond Drummond private secretary of the Sir
was under an insane Robert Peel, then prime minister of England. He was
delusion that Sir Robertacquitted on the ground of insanity. This caused a lot of
Peel had injured him anduproar and the case was sent to bench of fifteen judges
mistaking Edmond who were called upon to lay down the law regarding
Drummond for Peel he criminal responsibility in case of lunacy. Some questions
shot and killed him.He were posed to the judges which they had to answer. These
was acquitted. questions and answers are knows as M'Naghten's Rules
which form the basis of the modern law on insanity.
Five Principles There were five principles were propounded by 15 Judges
(1) Knowledge that it is (1) Insane delusion was denied. He would be liable in all
contrary to law. It has circumstances if he knew, at the time of committing such
been incorporated in 84 crime, that he was acting contrary to law.
of IPC.
255
(2) Presumption of sane (2) Every man must be presumed to be sane until
Section 105 of Indian contrary is proved. That is, to establish defence on the
Evidence Act, 1872. ground of insanity, it must be clearly proven that the
Defence’s lawyer has to person suffered from a condition due to which he was not
prove the existence of able to understand the nature of the act or did not know
insanity at the time of the what he was doing was wrong. It has been incorporated in
commission of an IEA,1872.
offence.
(3) His knowledge as to (3) If the accused was conscious that the act was one that
contrary act is sufficient. he ought not to do and if that act was contrary to law, he
It is immaterial whether was punishable. It has not been incorporated in Indian
he knew as to contrary to Law.
law or not.
(4) Partial delusion is equal (4) If the accused suffers with partial delusion, he must
to sane person. be considered in the same situation as to the responsibility,
It has not been as if the facts with respect to which the delusion exists
incorporated in Indian were real. For example, if the accused, under delusion that
Law. a person is about to kill him and attacks and kills the
person in self defence, he will be exempted from
punishment. But if the accused, under delusion that a
person has attacked his reputation, and kills the person due
to revenge, he will be punishable.
(5) Incompetency of (5) A medical witness who has not seen the accused
Medical witness who has previous to the trial should not be asked his opinion
not seen earlier. whether on evidence he thinks that the accused was insane
5 Test Durham Rule ( Product The Durham Rule, sometimes referred to as the “product
Test or Cause-effect test,” provides that the defendant is not “criminally
Test.) responsible if his unlawful act is the product of a mental
disease or defect.” Durham Product test means, the simple
fact that a person has a mental disease or defect is not
enough to relieve him of responsibility for a crime. There
must be relationship between the disease and the criminal
act, such that the act would not have been committed if the
person had not been suffering from the disease.
1 July Durham v. United Monte Durham was charged for housebreaking. Durham
1954 States has a long history of imprisonment and hospitalization. In
1945, at the age of 17, he was discharged from the Navy
after a psychiatric examination.
SUMMARY
256
(1) R. v. Arnold WILD BEAST TEST or “Good and Evil test”.

1724 (Justice Tracy)
(2)1800 R. v. Hadfield INSANE DELUSION TEST
(3)1812 Bowler Case Test of Capacity to distinguish between RIGHT AND
WRONG.
(4) R V. Daniel Mc FIVE PRINCIPLES were propounded. Section 84 of
1843 Naughten IPC is based on this case.
(5) Durham Rule (Product There must be relationship between the disease and the
1 July Test)Cause-Effect criminal act, such that the act would not have been
1954 Relationship Test. committed if the person had not been suffering from the
disease.
4 INDIAN LAW
Section 84. Act of a “Nothing is an offence which is done by a person who, at
person of unsound mind. 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.”
25Jan. State of M.P. v. Unsoundness of mind at the time of committing the
1961 Ahmadullah offence.
19 Dahyabhai v. State of Meaning –Difference between medical insanity and legal
March Gujarat insanity.
1964 The brutality and The appellant was the husband of the deceased Kalavati.
S.C. ferociousness of the act She was married to the appellant in the year 1958. On the
by itself cannot lead to night of April 9, 1959, as usual, the appellant and his wife
the conclusion of slept in their bed-room and the doors leading to that room
insanity. were bolted from inside. At about 3 or 3.30 a.m. on the
next day Kalavati cried that she was being killed. The
neighbors collected in front of the said room and called
upon the accused to open the door. When the door was
opened they found Kalavati dead with a number of
wounds on her body. The accused was sent up for trial to
the sessions on the charge of murder. He took the defence
of insanity.
1966 Bhakari v. State of U.P. Unsoundness of mind at the time of committing the
S.C. offence.
1969 Jai Lal v. Delhi Burden of Proof- From 1958 the, appellant was a Railway
S.C. Administration employee and often lost his temper and had altercations
Every person is to be with other clerks in the office. In October 1960 he was
resumed in sane mind. found to be suffering from a mental illness as he exhibited
The prosecution, in symptom of acute schizophrenia and showed disorder of
discharging its burden in thought, emotion and perception of external realities. He
257
the face of a plea of was treated for and was cured of this illness by July 1961
insanity , has merely to when he resumed his duties. On the morning of November
prove the basic facts and 25, he went to office as usual but as he was late in
rely upon the normal attendance, he was marked absent. He applied in writing
presumptions aforesaid. for one -day's casual leave and returned home. No one
It is then the accused to noticed any symptoms of any mental disorder at that time.
rebut the presumptions. Just after 1 o'clock he entered his neighbour's house and
However the accused stabbed and killed girl 1 1/2 year old and later also stabbed
need not prove the and injured two other persons with a knife. He was
existence of insanity thereafter arrested and interrogated on the same day when
beyond reasonable he gave normal and intelligent answers. He was
doubts. punished.
1972 Sheralli Wali Unsoundness of mind at the time of committing the
S.C. Mohammed v. State of offence and Burden of Proof
Guj.
DIFFERENCE Both are different from each other. Medical insanity is

BETWEEN solely dependent on medical grounds while legal insanity
MEDICAL AND depends on the factors required to be proved in a court of
LEGAL INSANITY. law to enable the accused to be acquitted of the charge.
For sec.84 only legal Only on the grounds of legal insanity person can take
insanity rather than benefit of section 84. On the grounds of medical insanity
medical insanity. person cannot take benefit of section 84 of IPC.
1976 Tabu Chetia v. State of Unsoundness of mind as contemplated by sec. 84 is legal
Gauha Assam UPAPO insanity which means the state of mind in which an
ti (new 2007,UP J2013 accused is incapable of knowing the nature of his act or
name that he is incapable of knowing that he is doing what is
Guwah either wrong or contrary to law. In other words his
ati) cognitive faculties are such that he does not know what he
H.C. has done or what will follow his act.
1974 Oyami Ayatu v. State of Unsoundness of mind at the time of committing the
S.C. M.P. offence.
1997 S. K. Nair v. State of Unsoundness of mind at the time of committing the
S.C. Punjab offence. S.K.Nair was charged for committing the murder
of Naik B Chaudhary and causing another person with
“Khukri” (Nepalese degger). At the time of the
commission, the accused did not completely lose his
sense of understanding. The words spoken by the accused
and his acts clearly demonstrate that at the time of the
258
commission of murder he could explain his intended

action with logic. Hence the accused was not incapable to
understand implication of his acts and was therefore held
liable for committing the murder.
2002 Shrikant Anand Rao Shrikant was a police constable. In the morning there was
S.C. Bhosale v. State of quarrel between husband and wife. While wife was
Maharashtra washing clothes in the bathroom, the appellant hit her with
a grinding stone on her head. He had family history
suffering from psychiatric illness. There was no any
sufficient motive to kill her wife. After killing his wife in
day light he made no attempt to hide himself. The Court
held that from the circumstances of the case an inference
can reasonably be drawn that the accused was under
delusion at the relevant time. He was acquitted.
SECTIONS 85 & 95
SECTION 85 INVOLUNTARY INTOXICATION. Section 85 is very

close to section 84 because he is in such a position which
has not been caused by him. In this case he get absolute
exception.
1551 Reninger v. Fogossa The early common law made no concession because of
intoxication. The earliest case Reninger v. Fogossa in
England wherein the court approved the death sentence for
a homicide committed in extreme intoxication
31 Dec Director Public Death caused during rape. Drunkenness is no defence in
1920 Prosecution v. Beard this case because it could not be established that at the time
By House of Lords, of committing the rape defendant so drunk incapable of
Beard was convicted forming intent to commit it. He was liable for committing
for murder. the murder.
FACT-A girl of thirteen years while going to market passed
through a gate of a mill where the accused Beard was the
watchman on duty. Beard attempted to commit the rape. She
tried to scream, therefore the accused placed his hand over
her mouth and pressed his thumb on her throat in a bid to
prevent her from screaming. In this endeavor he
unintentionally killed her. He was liable for committing the
murder. Some principles were propounded by House of
Lords regarding intoxication.
259
SECTION 86 VOLUNTARY INTOXICATION. In case of voluntarily

intoxication, in case of knowledge, he would be treated as
sane person and he cannot take benefit of section 86. He can
take benefit of section 86 only in case of intention.
1956 Basudeo v. State of Basudeo was retired military officer. A boy aged about 15
S.C. Pepsu or 16 had accompanied him to a marriage party. A Basudeo
was very drunk and intoxicated voluntary, asked the young
boy to step aside a little so that he may occupy a convenient
seat. But when he did not move, Basudeo whipped out a
pistol and shot the boy in the abdomen. He was convicted
for murder.
SECTIONS Volenti non fit injuria
87, 88 & 89
SECTIONS BENEFIT OF A PERSON
88,89,92 & 93
SECTIONS Section 92 Explanation- Mere pecuniary benefit is not
88,89,92 benefit within the meaning of SECTIONS 88,89& 92
Section 87 (1) NO INTENTION of causing death or grievous hurt or
Mainly sports and NO KNOWLEDGE that by such act it is likely to cause
exercise death or grievous hurt.
(2) Harm is caused with intention (3) Person giving the
consent is above the age of 18 years (4) Such consent may
be express or implied
Section 88 Mainly medical treatment.
Section 89 For the benefit of the child or insane person.
Section 90 No Consent- Consent given (1) by a person under fear of
injury (2) under misconception of fact. (3) By a child under
12 years of age. (4) by person of Unsound mind (5) by an
intoxicated person.
Misconception of fact.
UPHESC Poonai Fattemah v. A person consenting under a misconception of fact
2015 Emperor, 1869 arising out of a misrepresentation of fact or fraud
(Snake Charmer practiced on him cannot be said to have consented.
Case) Section 90 Fact-The accused, who professed to be a snake charmer
persuaded the deceased to allow himself to be bitten by a
poisonous snake, including him to believe that he had power
to protect him from harm. It was held that consent was given
under misconception of fact. So accused was not allowed to
take benefit of consent.
260
SECTION 92 Without consent but for his benefit. Circumstances exist in

such a way that it is not possible to take consent or he is not
capable to give consent. All illustrations of this section are
always asked
Illustration (a) Z is thrown from his horse and is insensible. A, surgeon
finds…
UPJ2015 Illustration (b) Z is carried off by a tiger. A fires on a tigre…
Mains
Illustration (c) A surgeon sees a child suffers an accident
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 ……
Section 93 No communication made in good faith is an offence by
reason of any harm to the person to whom it is made if it is
made for the benefit of that person.
Section 94 Actus me invito factus non est mens actus ( An act done
by me against my will is not my act)
No benefit of sec. No benefit of section 94 in case of (1) Murder-Section 300
94- (1) Sec.300 (2) (2) Offences against the State punishable in death- Section
section 121 121(Waging war). (3) When person had voluntarily
involved- Joining of gang.
Only instant death Reasonable apprehension must be instant death of the
person who had been compelled to do an act.
Defect of this Section (1) It protects only in case of instant death of the person who
No scope for any is compelled to do an act. It is not available in case of threat
relative. of any other harm for example rape, grievous hurt etc.(2) It
is not available in case of threat to any other relative for
example , threat to instant death of mother father son
daughter wife etc.
Section 95 De Minimis non curat lex (Law takes no account of trifles).
De Minimis non Rupan Deol Bajaj v. KPS Gill, 1996 S.C. Court held that
curat lex section 95 is not applied in case of offences against women.
In this case the Court did not applied section 95.
261
CHAPTER X
SECTIONS 107 AND 108
Section 107. Abetment of a thing. - A person abets the doing of a thing, who -
First. -Instigates any person to do that thing; or
Secondly. -Engages with one or more other person or persons in any conspiracy for the doing of
that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to
the doing of that thing; or
Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or
procure, a thing to be done, is said to instigate the doing of that thing.
Illustration
A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z, B, knowing
that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally
causes A to apprehend C. Here B abets by instigation the apprehension of C.
Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything
in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is
said to aid the doing of that act.
Section 108. Abettor.—A person abets an offence, who abets either the commission of an offence,
or the commission of an act which would be an offence, if committed by a person capable by law
of committing an offence with the same intention or knowledge as that of the abettor.
Explanation 1.—The abetment of the illegal omission of an act may amount to an offence although
the abettor may not himself be bound to do that act.
Explanation 2.—To constitute the offence of abetment it is not necessary that the act abetted
should be committed, or that the effect requisite to constitute the offence should be caused.
Illustrations
(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.
(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the
wound. A is guilty of instigating B to commit murder.
Explanation 3.—It is not necessary that the person abetted should be capable by law of committing
an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or
any guilty intention or knowledge.
Illustrations
(a) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence,
if committed by a person capable by law of committing an offence, and having the same intention
as A. Here A, whether the act be committed or not, is guilty of abetting an offence.
262
(b) A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an
act which causes Z's death. B, in consequence of the abetment, does the act in the absence of A
and thereby causes Z's death. Here, though B was not capable by law of committing an offence, A
is liable to be punished in the same manner as if B had been capable by law of committing an
offence, and had committed murder, and he is therefore subject to the punishment of death.
(c) A instigates B to set fire to a dwelling-house. B, in consequence of the unsoundness of his
mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary
to law, sets fire to the house in consequence of A's instigation. B has committed no offence, but A
is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment
provided for that offence.
(d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out
of Z's possession. A induces B to believe that the property belongs to A. B takes the property out
of Z's possession, in good faith, believing it to be A's property. B, acting under this misconception,
does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft,
and is liable to the same punishment as if B had committed theft.
Explanation 4.—The abetment of an offence being an offence, the abetment of such an abetment
is also an offence.
Illustration
A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits
that offence in consequence of B's instigation. B is liable to be punished for his offence with the
punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same
punishment.
Explanation 5.—It is not necessary to the commission of the offence of abetment by conspiracy
that the abettor should concert the offence with the person who commits it. It is sufficient if he
engages in the conspiracy in pursuance of which the offence is committed.
Illustration
A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then
explains the plan to C mentioning that a third person is to administer the poison, but without
mentioning A's name. C agrees to procure the poison, and procures and delivers it to B for the
purpose of its being used in the manner explained. A administers the poison; Z dies in consequence.
Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in
pursuance of which Z has been murdered. C has therefore committed the offence defined in this
section and is liable to the punishment for murder.
263
Date - March 9, 2019 (First Test)
SERIES A
SUBJECT – Law (IPC & Four Units Cr.P.C.)
Hours: 2.00 (12. to 2.00P.M.) Max. Marks: 100

Write your name in the box -
Write Your Roll Number in numbers

Write Your Roll Number in words
Directions
(1) Writing of Section and Centre anywhere are prohibited.

(2) Each Question carries equal mark.
(3)The test booklet contains 100 questions. 50 Questions from IPC and 50 Questions from
Cr.P.C. shall be asked.
(4) Cheating is prohibited. A candidate once debarred, he/she shall be debarred forever.
(5) Only first year students of Law Centre -1 are allowed. In exceptional cases students of other
Centre may be allowed.
(6) There is no penalty for wrong answer.
(7) Only blue pen is allowed.
(8) Correction of answer is not allowed. In case of correction, that question shall not be
considered.
(9) Keep mobile in silent mode in your possession. In case of using it candidate shall be
debarred.
(10) If a candidate gives more answer than one, it will be treated as a wrong answer.
(11) Remedial Committee consisted of five members has discretionary powers to change
directions. In case of their appearance in test exam, by other person/s authorised by them
has/have power to change directions.
264
Questions 1. Who is known as father of IPC?

Options – (a) Sir James Fitzjames Stephen
(b) Lord Sir Babington Thomas James Macaulay
(c) Lord Sir James Thomas Babington Macaulay
(d)Lord Sir Thomas James Babington Macaulay
Answer –D
Questions 2. IPC, 1860 came into force on –
Options – (a) October 6, 1860
(b) October 6, 1862
(c) January 1, 1860
(d) January 1, 1862
Answer – D
Questions 3 - Which of the following combinations are correctly matched?
(a) Harbour – Section 51A
(b) Wrongful loss – Section 23
(c) Gang Rape of woman under 12 Years of age Section 375DB
(d) Gang Rape - Section 375D.
Option –
(a) a, c & d
(b) a, b &c
(c) b, c &d
(d) a, b & d.
Answer – C
Question 4- Which of the following is not correctly matched ?

(a) Navtej Singh Johar v. Union of India – Section 498A
(b) K.N. Mehra v. State of Rajasthan- Section 378
(c) State of M.P. v. Narayan Singh – Mens Rea
(d) State of Haryana v. Raja Ram – Section 361
Answer – A
Question 5- No right of private defence is available against the offence of
(a) Criminal breach of trust
(b) Theft
(c) Robbery
(d) Criminal Trespass.
Answer – a
265
Question 6- Match the items of List I with the items of List II and choose the correct
answer from the code given below –
List I List II
(a) Delivery of property (1) Criminal breach of trust

(b) Taking of property (2) Criminal misappropriation of property
(c) Entrustment of property (3) Theft
(d) Convertibility of property got innocently to one’s own use (4) Extortion
Code –
(i) (ii) (iii) (iv)
(a) 4 3 1 2
(b) 3 4 1 2
(c) 4 2 3 1
(d) 3 1 2 4
Answer – A
Question 7 –Match List-I with List-II and give the correct answer by using the code given
below:
List - I List-II
(a) Mehboob Shah V. Emperor (i) Mens rea

(b) State of Maharashtra V. M.H. George (ii) Theft
(c) Virsa Singh v. State of Punjab (iii) Common Intention
(d) Pyare Lal Bhargava v. State of Rajasthan (iv) Section 300(3)
Code :
(1) (2) (3) (4)
(a) (i) (ii) (iii) (iv)
(b) (iii) (i) (iv) (ii)
(c) (iii) (i) (ii) (iv)
(d) (iv) (ii) (iii) (i)
Answer –B
Question – 8 “In every statute mens rea is to be implied unless contrary is shown” was said in
(a) Fowler v. Padget (Lord Kenyon)
(b) Sherras v. De Rutzen (Justice Wright)
(c) Brend v. Wood (Justice Goddard)
(d) R.v. Prince (Blackburn)
Answer - B
266
Question 9- “The right of private defence is a preventive and not a punitive right. In case of
excitement or disturbed mental equilibrium it is difficult to expect parties facing grave
aggression to coolly weigh, as if in golden scales, and calmly determine with a composed mind
as to what precise kind and severity of blow would be legally sufficient for effectively meeting
the unlawful aggression.” This was said in case of
(a) Amjad Khan v. State
(b) Vishwa Nath v. State of U.P.
(c) Deo Narain v. State of U.P.
(d) State of U.P. v. Ram Swarup
Answer – C
Question 10 - Match List-I with List-II and give the correct answer by using the code given
below:
List - I List-II
(a) Navtej Singh Johar v. Union of India (i) Adultery

(b) Joseph Shine v. Union of India (ii) Unnatural Sex
(c) Justice K.S.Puttaswami V. UOI and Ors. (iii) Abolition of Triple Talaq
(d) Shayara Bano v.UOI (iv) Right to Privacy
Code :
(1) (2) (3) (4)
(a) (ii) (i) (iv) (iii)
(b) (iii) (i) (iv) (ii)
(c) (iii) (i) (ii) (i)
(d) (iv) (ii) (iii) (i)
Answer –A
Question 11- (UGC 2014 2nd Paper Q. 43)
The maxim “De Minimis non curat lex” relates to –
(A) Law takes no account of slight harm
(B) Law takes no account of trifles
(C) Exhibition of disrespect
(D) Law takes no account of annoyance
Answer – B
267
Question 12– Which of the following case is not related to kidnapping –

(a) State of Haryana v. Raja Ram
(b) S. Varadrajan v. State of Madras.
(c)Thakorilal D Vadgama v. State of Gujarat
(d)Tukaram v. State Of Maharashtra
Answer – D
Question 13– ―In which case it was observed, “There is a distinction between taking and
allowing a minor to accompany a person.”
(a) Vishwanath v. State of U.P.
(b) State of Haryana v. Raja Ram
(c) Thakorilal D Vadgama v. State of Gujarat
(d) S. Varadrajan v. State of Madras.
Answer – D
Question 14- Which of the following case is not related to section 300
(a) Virsa Singh v. State of Punjab
(b) Cherubin Gregory v. State of Bihar
(c) State of A.P. v. R.Punnayya
(d) Anda and Ors. v. The State of Rajasthan
Answer – B
Question 15 – First time Supreme Court has discussed in detail differences between murder and
culpable homicide –
(a) R v. Govinda, July 18, 1876 Justice Melvil.
(b) Virsa Singh v. State of Punjab -1958 SC, Justice Vivian Bose.
(c) State of A.P. v. R.Punnayya Sept. 15, 1976, Justice Ranjit Singh Sarkaria
(d) Alister Anthony Pareira V. State of Maharashtra ( Jan. 12, 2012 Justice R.M. Lodha
Answer – C
Question 16 - “We may summarize our views about the construction of s. 511, Indian Penal
Code, thus: A person commits the offence of ‘attempt to commit a particular offence’ when (i)
he intends to commit that particular offence; and (ii) he, having made preparations and with the
intention to commit the offence, does an act towards its commission; such an act need not be
the penultimate act towards the commission of that offence but must be an act during the
course of committing that offence.” penultimate act means final act.
In which of the following case Supreme Court observed above ratio for application of section
511 of IPC –
(a) Abhayanand Mishra v. State of Bihar (24 April,1961 S.C. Justice Raghubar Dayal).
(b) Om Prakash v. State of Punjab 1961 (24 April,1961 S.C. Justice Raghubar Dayal).
(c) Sudhir Kumar Mukherjee v. State of West Bengal (1973 Justice A. Alagiriswami)
(d) State of Maharashtra v. Mohammad Yakub (1980, Justice R.S. Sarkaria)
Answer -A
268
Question 17 – Which is the first case in which Doctrine of Locus Paenitentiae (Time for
Repentance) was discussed thoroughly -
(a) Malkiat Singh v. State of Punjab
(b) Asgarali Pradhania v. Emperor .
(c) Queen-Empress v. Ramakka
(d) Munah Binti Ali v. Public Prosecuter
Answer – C
Question 18– Which of the following provision does not provide death sentence in rape case –
(a) Section 376A
(b)Section 376E
(c)Section 376D
(d)Section 376AB
Answer -C
Question 19- Section 377 has been partially declared unconstitutional in following case –
(a) Independent Thought V. Union Of India & Anr.
(b) Shayara Bano v.UOI
(c) Justice K.S.Puttaswami (Retd.) and Anr. V. UOI and Ors.
(d) Navtej Singh Johar v. Union of India
Answer – D
Question 20- Which of the following case is related to marital rape (Section 375 Exception II)
–
(a) Independent Thought V. Union Of India & Anr.
(b) Shayara Bano v.UOI
(c) Justice K.S.Puttaswami (Retd.) and Anr. V. UOI and Ors.
(d) Navtej Singh Johar v. Union of India
Answer – A
Question 21 – In which case it was said that either overt or covert act is sufficient for application
of section 34 of IPC? It was also observed that activities with binoculars or mobile phone are
sufficient and no need to presence on the spot.
(a) J.M. Desai v. State of Bombay
(b) Suresh and Another v. State of Uttar Pradesh
(c) Mahaboob Shah v. Emperor (Indus River Case )
(d) Barendra Kumar Ghosh v. king Emperor, Sankaritolla Post Office Case.
Answer - B
269
Question 22- The ‘Doctrine of joint liability’ as envisaged by section 34 of the IPC is based on
the decision of the following –
(a) Barendra Kumar Ghosh v. Emperor
(b) Mulcahy v. R
(c) Pandurang v. State of Hyderabad
(d) Reg v. Cruise
Answer -D
Question 23– In which of the following cases, the Supreme Court has remarked that
‘husband is not the master of his wife’?
(a) Joseph Shine v. Union of India
(b) Sarla Mudgal, President, Kalyani v. Union of India
(c) Lily Thomas v. UOI
(d) Kailash Singh v. Priti Pratihar.
Answer - A
Question 24 The right to private defence against an act done by a public servant is available:
(a) When it is discharged in good faith
(b) When it is attempted to be done by him
(c) When it was done while he was not in colour of his office,
(d) When it is strictly to be justifiable by law
Answer - C
Question 25 (UP J)- ‘A’ enters into the house of ‘B’ with the intention to commit theft. ‘B’
along with other members of the family surrounded and attack ‘A’ with wooden sticks. ‘A’
finding his life in danger fires with pistol causing death to ‘B’. Here ‘A’ has committed:
Option –
(a) Culpable homicide not amounting to murder
(b) Murder
(c) Theft
(d) No offence as he acted in self –defence.
Answer - B
Question 26 (DJS)– The issue whether section 497 IPC is violative of Article 14 and 15 of the
Constitution was decided by the Supreme Court for the first time in the case of:
(a) Smt. Sowmithri Vishnu v. Union Of India & Anr.
(b) Joseph Shine v. Union of India
(c) V. Rewathi v. Union of India and
(d) Yusuf Abdul Aziz v. The State of Bombay
Answer – B
270
below:
List - I List-II
(a) Man (i) Section 8

(b) Gender (ii) Section 10
(c) Person (iii) Section 9
(d Number (iv) Section 11
Code :
(1) (2) (3) (4)
(a) (i) (ii) (iii) (iv)
(b) (ii) (iv) (i) (iii)
(c) (iii) (i) (ii) (iv)
(d) (ii) (i) (iv) (iii)
Answer – d
below:
List - I List-II
(a) “Court of Justice”. (i) Section 18

(b) “Judge” (ii) Section 19
(c) “India”. (iii) Section 20
(d) “Public servant”. (iv) Section 21
Code :
(1) (2) (3) (4)
(a) (i) (ii) (iii) (iv)
(b) (iii) (ii) (i) (iv)
(c) (iii) (i) (ii) (iv)
(d) (ii) (i) (iv) (iii)
Answer – b
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below:
List - I List-II
(a) “Dishonestly” (i) Section 22

(b) “Wrongful gain” (ii) Section 23
(c) “Fraudulently” (iii) Section 24
(d) “Moveable property” (iv) Section 25
Code :
(1) (2) (3) (4)
(a) (iii) (ii) (iv) (i)
(b) (iii) (ii) (i) (iv)
(c) (iii) (i) (ii) (iv)
(d) (ii) (i) (iv) (iii)
Answer - A
below:
List - I List-II
(a) “Voluntarily” (i) Section 28
(b) “Counterfeit” (ii) Section 39
(c) “Good faith” (iii) Section 40
(d) “Offence” (iv) Section 52
Code : (1) (2) (3) (4)

(a) (iii) (ii) (iv) (i)
(b) (iii) (ii) (i) (iv)
(c) (iii) (i) (ii) (iv)
(d) (ii) (i) (iv) (iii)
Answer – D
Question 31 – In which of the following cases Lord Sumner observed ,“They also serve who
only stand and wait”
(a) Indus River Case (Mahaboob Shah v. Emperor, )
(b) Shankari Tola Post Office case (Barendra Kumar Ghosh v. king Emperor,)
(c) J.M. Desai v. State of Bombay
(d) Gurdatta Mal v. State of U.P.
Answer – (b) Shankari Tola Post Office case
272
Question 32– In which case Supreme Court observed the effect of rape and siad, “….a rapist not
only violates the victim’s privacy and personal integrity, but inevitably causes serious
psychological as well as physical harm in the process. Rape is not merely a physical assault. It is
often destructive of the whole personality of the victim. A murderer destroys the physical body of
his victim, a rapist degrades the very soul of the helpless female.”
Option –
(a) Tukaram v. State of Maharashtra (Mathura Rape case)
(b) State of Punjab v. Gurmit Singh
(c) Sakshi v. Union of India
(a) Deepak Gulati v. State of Haryana
Answer - (b) State of Punjab v. Gurmit Singh
Question -33 In which of the following case differences between ‘Common Intention” and
“Similar Intention” were discussed?
(a) J.M. Desai v. State of Bombay
(b) Suresh and Another v. State of Uttar Pradesh
(c) Mahaboob Shah v. Emperor (Indus River Case )
(d) Barendra Kumar Ghosh v. king Emperor, Sankaritolla Post Office Case.
Answer – C
Question -34 –Preparation to commit murder is
(a) Punishable
(b) Not punishable
(c) Punishable with fine
(d) All the above
Answer – B
Question -35 Which sections have been declared unconstitutional completely or partially?
(a) Section 303
(b) Sections 303 and 497
(c) Sections 303, 497and 377
Answer – C
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Question 36 – There are four cases of rape when death sentence can be awarded. These are
Section 376 A, Section 376 E, Section 376 AB and Section 376 DB. Match List-I with List-II
and give the correct answer by using the code given below:
List - I List-II
(a) Punishment for repeat offenders. (i) Section 376 A
(b) Rape with women below the age of 12 Years (ii) Section 376 E
(c) Punishment for causing death or resulting in
persistent vegetative state of victim (iii) Section 376 AB
(d) “Gang Rape” with women below the age of 12 Years (iv) Section 376 DB
Code : (1) (2) (3) (4)

(a) (iii) (ii) (iv) (i)
(b) (iii) (ii) (i) (iv)
(c) (ii) (i) (iv) (iii)
(d) (ii) (i) (iii) (iv)
Answer – D
Question 37 – Which of the following offence is not inchoate crime –
(a) abetment
(b) conspiracy
(c) attempt
(d) Cheating
Answer D
Question 38 – Match List-I with List-II and give the correct answer by using the code given
below:
List - I List-II
(a) State of Maharastra v. Mohammad Yakub (i) 1968
(b) Sudhir Kumar Mukherjee v. State of West Bengal (ii) 1973
(c) Queen-Empress v. Ramakka (iii) 1980
(d) Malkiat Singh v. State of Punjab (iv) 1884
Code : (1) (2) (3) (4)

(a) (iii) (ii) (iv) (i)
(b) (iii) (ii) (i) (iv)
(c) (ii) (i) (iii) (iv)
(d) (ii) (i) (iii) (iv)
Answer – A
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Question 39 – Who has given the following definition of crime “Crime is an act committed or
omitted in violation of public law either forbidding or commanding it.”
(a) Stephan
(b) Blackstone
(c) Kenny
(d) Austin
Answer – b
Question 40 – What are not essential ingredient of “Nullum Crimen Sine Lege, Nulla Poena
Sine Lege”-
(a) Retroactivity of penal laws.
(b) Penal statutes must be construed strictly
(c) Certainty in legislation.
(d) Accessibility of the laws.
Answer –A
Question 41 – Which of the following statement is wrong?
(a)All homicides is not culpable homicides but all culpable homicides are homicide.
(b) All culpable homicides are not murder but all murders are culpable homicide.
(c) All robbery is either theft or extortion. But all theft are not robbery.
(d) All robbery is either theft or extortion. But all extortions are robbery.
Answer – D
Question 42 – Which of the following is not essential ingredient of theft
(a) Dishonest intention
(b) Things attached to the earth
(c) Out of the possession
(d) Without consent of the person
Answer - B
Question 43 – “The causing of death of child in the mother’s womb is not homicide” has been
discussed under
(a) Section 299 Explanation 1
(a) Section 300 Exception 1
Answer – c
Question 44 – For the purpose of section 375 vagina includes
(a) Vagina includes labia minora
(b) Vagina includes labia majora
(c) Vagina includes labia majora, labia minora, hymen, vaginal opening
(d) Vagina includes labia majora, labia minora, hymen, vaginal opening, urethral
opening, clitoris
Answer - D
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Question 45 – A man (16 years) and woman (17 years) are live in relationship. The woman
voluntarily applied her mouth to penis of the man. In heat of passion the man also applied his
mouth to vagina of the woman. After some months both became enemy to each other. Which of
the following statement is true?
(a) Man has not committed rape while woman has committed rape.
(b) Both have committed rape on each other
(c) Both have not committed rape on each other
(d) Man has committed rape while woman has not committed rape.
Answer - D
Question 46 – Z, petty girl has birthday on 09 March. A knew this fact from Facebook account
of that girl. He was interest to touch her reddish cheeks. He decided to celebrate her birth day
and he purchased a valuable cake. After celebrating birthday he rubbished some cakes on her
cheeks and inserted some parts of cake into her mouth. Both were very happy at that day. Z did
not know his malicious intention. After knowing this fact from the friend of A, Z lodged an FIR.
Which of the following offence ‘A’ has committed
(a) Rape
(b) Attempt to rape
(c) Outrage of modesty of woman
Answer – C
Question 47 – For the purpose of calculation of life imprisonment, according to section 57
life imprisonment means –
(a) 10 Years
(b) 20 Years
(c) 30 years
(d) Period of life imprisonment cannot be calculated. A person may survive for 10 years
or 15 years or 50 Years.
Answer - B
Question 48 – A fare well party was organized in Faculty of law and several film stars came to
faculty. There was huge crowd. ‘Z’ a notorious boy of LL.B. first years inserted his finger into
anus of girl. Although she was in jeans. She realized this and suddenly reacted and slapped the
boy. She filed FIR against boy for causing rape on her. The boy took defend that he could not
insert his finger because she was in dress. Which of the following offence has been committed
by ‘Z’?
(a) Rape
(b) Attempt to rape
(c) Outrage of modesty of woman
(d) Attempt to rape and Outrage of modesty of woman
Answer – D
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Question 49 –‘A’ obtained a sum of rs. 10,000/-from ‘B’ in fear of death. Which of the
following offences was committed by ‘A’?
(a) Cheating
(b) Robbery
(c) Mischief
(d) Extortion
Answer – D
Question 50- ‘X’ on receiving grave and sudden provocation from ‘Z’ intentionally causesthe
death of ‘Y’, who is ‘Z’ brother:
(a) Murder
(b) Grievous hurt
(c) Culpable homicide not amounting to murder
(d) Attempt to murder
Answer – (a) Murder
Question 51 – A revenue officer is entrusted with public money and is directed by law to pay
into treasure all the public money which he holds. He instead of paying the same into the
treasury dishonestly misappropriates the same buying a sofa set for his personal use. What
offence has ‘A’ committed?
(a) Dishonest misappropriation of property
(b)Criminal Breach of trust
(c) Cheating the Government
Answer – B
Question 52 – ‘X’ Hindu,turned his wife of the the marital home and refused to return her
ornaments, money and clothes despite her repeated demands. What offence if any, has ‘X’
committed?
(a) Cajolery
(b) Cheating
(c) Criminal intimidation
(d) Breach of trust
Answer – D
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THIRD TEST
DATE –Nov. 11, 2019
SERIES - A
SUBJECT – Law (Five Units of IPC & Contract
Hours: 1.30 (11.00 to 12.30 P.M.) Max. Marks: 100
Write your name in the box –
Write Your Roll Number in numbers

Write Your Roll Number in words
Directions
(1) Writing of Section and Centre anywhere are prohibited.
(2) Each Question carries equal mark.
(3)The test booklet contains 100 questions i.e. 50 Questions from IPC and 50 Questions from
Contract.
(4) Cheating is prohibited.A candidate once debarred, he/she shall be debarred forever.
(5) Students of all Law Centers of all years(1st , 2nd& 3rd year) are allowed who have paid 30 rs.
But Prize will be given only to First Year Students irrespective of their Centre.
(6) There is no penalty for wrong answer. 50% marks is passing marks.
(7) Only blue pen is allowed.
(8) Correction of answer is not allowed. In case of correction, that question shall not be considered.
(9) Keep mobile in silent mode in your possession. In case of using it candidate shall be debarred.
278
Indian Penal Code, 1860

Questions 1.Who is known as father of IPC? What is the date of enforcement of IPC?
Options –
(a) Sir James Fitzjames Stephen & January 1, 1862
(b) Sir James Fitzjames Stephen & October 6, 1860
(c) Lord Sir Thomas James Babington Macaulay & October 6, 1860
(d) Lord Sir Thomas James Babington Macaulay & January 1, 1862
(e)
Answer –D
Questions 2.Which of the following combination is wrong?
(a) Section 17 – India

(b) Section 19 – Judge
(c) Section 39 –Voluntarily
(d) Section 40 – Offence
Answer –A
Questions 3.In which of the following offence right of private defence is available?
(a) Criminal breach of trust Robbery, Mischief & Criminal Trespass

(b) Theft, Robbery, Mischief & Criminal Trespass
(c) Cheating, Theft, Robbery & Mischief
(d) Criminal Misappropriation, Criminal Trespass, Theft & Robbery,
Answer – B
Question 4- Which definition is not correctly match –
(a) Kenny “Crimes are wrongs which sanction is punitive and is no way remissible
by any private person, but is remissible by crown alone, if remissible at
all.” Here sanction means punishment and remissible means pardon by
crown.
(b) Stephan “Crime is an act forbidden by law and which is at the same time revolting
to the moral sentiments of the society.”
(C) Blackstone “Crime is an act committed or omitted in violation of public law either
forbidding or commanding it.”
(d) Austin “Crime is …to be commission or omission of an act which the law forbids
or commands under pain of a punishment to be imposed by the State by a
proceeding in its own name.”
Answer – (D)
Question 5 - Who will be benefited in case of application of ‘Actus non facitreum, nisi mens
sit rea’ ?
(a) Accused
(b) Victim
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(c) Accused & Victim

(d) None of them
Answer- (a) Accused

Question 6-Which of the following is not example of strict liability?
(a) Rape
(b) Waging war
(c) Selling of obscene books
(d) Culpable Homicide
Answer- (d) Culpable Homicide

Question 7–Who said, “The general rule applicable to criminal case is actus non facitreum, nisi
mens sit rea…It is of the utmost importance for the protection of the liberty of the subject…”
Name of Case Justice Year
S.No.
Fowler v. Padget Lord Kenyon 1798
(a)
1889
(b) R. v.Tolson Justice Wills
Sherrasv. De Rutzen Justice Wright 1895
(c)
Brendv. Wood Justice Goddard 1946
(d)
Answer-D
Question 8-Who had written majority opinion of State of Maharashtra v. M.H.George?
(a) Justice Ayyangar,

(b) Justice Subbarao
(c) Justice Mudholkar
(d) JusticeHidayatullah
Answer- (a) Justice Ayyangar

Question 9- “In every statute mens rea is to be implied unless contrary is shown” was said in
a. Fowler v. Padget (Lord Kenyon)

b. Sherras v. De Rutzen (Justice Wright)
c. Brend v. Wood (Justice Goddard)
d. R.v. Prince (Blackburn)
Answer – B
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Question 10- General exceptions are laid down in the Indian Penal Code in
a. Chapter VI
b. Chapter VIII
c. Chapter IV
d. Chapter IV and VI
Answer -Chapter IV
Question 11- Assertion (A): Homicide is the killing of a human being by a human being
Reason (R): Homicide is always culpable
Codes:
a. Both (A) and (R) are false

b. Both (A) and (R) are true
c. (A) is false but (R) is true
d. (A) is true but (R) is false
Answer -(d). (A) is true but (R) is false.

Question 12– Which of the following statements correctly reflects the cardinal principle, ‘actus
non facit reum, nisi mens sit rea’?
(a) Mensrea is essential element of crime and there cannot be crime without mensrea
(b) Criminal liability under Indian law always implies mensrea
(c) To constitute crime there must be actus reus, mensrea
(d) actus reus is not always necessary to constitute crime.
Answer -(c) To constitute crime there must be actusreus, mensrea
Answer (c) To constitute crime there must be actus reus, mensrea
Question 13 – Which section of Indian Penal Code deals solitary confinement?
(a) Section 73
(b) Section 72
(c) Section 71
(d) Section 70
Answer - (a) Section 73

Question 14 -The maxim “De Minimis non curat” relates to _______.
(a) Slight harm

(b) Trifles
(c) Exhibition of disrespect
(d) Annoyance
Answer- (b) Trifles
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Question 15 –
Select the statement that is most suitable in law:
Culpable homicide is not murder when one is deprived of the power of self-control resulting from
:
(a) Grave and sudden provocation

(b) When death results by voluntary provocation.
(c) Where death results in course of obedience of law.
(d) When death results by mistake.
Answer-(a) Grave and sudden provocation

Question 16.Denotion of mens rea is inferred through
(a) Reason to believe

(b) Voluntarily
(c) Dishonestly
(d) All the above
Answer-(D) All the above

Question 17-Which of the following is correct
(a) Grave and sudden provocation (i) Exception II of section 300

(b) Death caused in sudden fight (ii) Exception III of section 300
(c) Death caused by consent (iii) Exception V of section 300
(d) Exceeding right of private defence (iv) Exception IV of section 300
Answer- C
Question 18.A person who causes bodily injury to another who is labouring under a disorder,
disease or bodily infirmity and thereby accelerates the death of the person. Under which it shall be
deemed to have caused his death ?
(a) Explanation I to Section 299

(b) Explanation I to Section 300
(c) Explanation II to Section 299
(d) Explanation II to Section 300
Answer- A
Question 19. In which provision of Indian Penal Code the definition of ‘valuable security’ is
explained?
(a) Section 29
(b) Section 30
(c) Section 31
(d) Section 13
Answer- B. Section 30
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Question 20. State the age limit prescribed under Section 82 of Indian Penal Code in which if a
child commits an overt act is not considered as an offence?
(a) Under the age of 12 years.

(b) Under the age of 7 years.
(c) Under the age of 16 years.
(d) Under the age of 18 years.
Answer-B
Question 21-Who said, “To preserve one's life is generally speaking a duty, but it may be the
plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not
to live, but to die.
(a) Mansfield
(b) Coleridge
(c) Blackburn
(d) Cordozo
Answer –D. Lord Coleridge

Question 22- A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers
from the wound. A is guilty of –
(a) Murder
(b) Attempt to murder
(c) Abetment of attempt to murder
(d) Abetment of murder.
Answer –D
Question 23–Which of the following section is not related to Volenti non fit injuria?
(a) Section 87
(b) Section 88
(c) Section 89
(d) Section 90
Answer- D
Question 24 – In which of the following cases, the Supreme Court has remarked that
‘husband is not the master of his wife’?
(a) Joseph Shine v. Union of India

(b) SarlaMudgal, President, Kalyani v. Union of India
(c) Lily Thomas v. UOI
(d) Kailash Singh v. PritiPratihar.
Answer (a) Joseph Shine v. Union of India
283
Question 25- There are some sections of IPC which have been declared partially or totally
unconstitutional. Match the following offences –
(a) Mithu Singh v. State of Punjab (April 7, 1983) (i) Section 303
(b) Navtej Singh Johar&Ors. V. Union Of India (ii) Section 375, Exception 2
(c) Independent Thought v. Union of India &Anr (iii) Section 377,
(d) Joseph Shine v. Union of India (iv) Section 497
(a) (b) (c) (d)

(A) (i) (iii) (iv) (ii)
(B) (ii) (i) (iv) (iii)
(C) (iii) (ii) (i) (iv)
(D) (i) (iii) (ii) (iv)
Answer –D
Question 26-‘A’ enters into the house of ‘B’ with the intention to commit theft. ‘B’ along with
danger fires with pistol causing death to ‘B’. Here ‘A’ has committed :
Option –

(b) Murder
(c) Theft
Answer -Murder. Explanation- Right of private defence is not available against right of private
defence. It is also not available for stage manager.
Question 27- Which of the following is wrong?
Section 52A, Sea Smuggling of gold
The Indo-China Steam Customs Act, 1878
Navigation Co. Ltd. v. Jasjit
(a) Singh
RanjitD.Udeshi v. State of Section 292, IPC Selling of obscene book
(b) Maharashtra
State of Maharashtra v. FERA, 1947 Smuggling of gold
(c) M.H.George
(d) R.v. Tolson Section 57, Offences Kidnapping
Against Person Act,
1861
Answer - (d)
Question 28-“The right of private defence is a preventive and not a punitive right. In case of
excitement or disturbed mental equilibrium it is difficult to expect parties facing grave aggression
to coolly weigh, as if in golden scales, and calmly determine with a composed mind as to what
precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful
aggression.” This was said in case of
284
(a) Amjad Khan v. State

(b) VishwaNath v. State of U.P.
(c) DeoNarain v. State of U.P.
(d) State of U.P. v. Ram Swarup
Answer – C
Question 29-Which of the following case is not related to section 300 thirdly

(b) Emperor v. Dhirajia
Answer – B
Question 30 – First time Court has discussed in detail differences between murder and culpable
homicide –
(a) State of A.P. v. R.Punnayya - Justice Ranjit Singh Sarkaria

(b) Virsa Singh v. State of Punjab -Justice Vivian Bose.
(c) R v. Govinda- Justice Melvil.
(d) Alister Anthony Pareira V. State of Maharashtra - Justice R.M. Lodha
Answer – C
Question 31- In which case it was observed, “Self-preservation is the prime instinct of every
human being..…Section 99, IPC denotes ‘LakshmanRekha….. The right of self-defence is a very
valuable right, serving a social purpose and should not be construed narrowly…It is not
possible to weigh with golden scales whether circumstances exist to exercise right of private
defence or not. Such circumstances must not be viewed with high- powered spectacles or
microscopes’”
(a) DeoNarain v. State of U.P.

(b) James Martin v. State of Kerala
(c) State of U.P. v. Ram Swarup
(d) Amjad Khan v. State
Answer- (b)
Question 32- ‘A’ a foreigner stabbed ‘B’ another foreigner in a foreign vessel on the high seas.
Both were brought to Bombay for treatment where ‘B’ died. ‘A’ is also available in Bombay.
Which one of the following proposition is correct in respect of applicability of IPC to the trial of
‘A’?
(a) As both the deceased and accused belong to foreign countries and the occurrence of offence
has taken place on the high seas, IPC is not applicable to A and hence he cannot be
prosecuted in India.
(b) IPC is not absolutely applicable to a foreigner and hence ‘A’ cannot be tried in India.
(c) As the offence is completed in India and accused ‘A’ is available in India. IPC is applicable
and he should be tried in at Bombay
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(d) As IPC is applicable to Indians as well as foreigners ‘A’ must be tried in India.
Answer -(a) As both the deceased and accused belong to foreign countries and the occurrence of
offence has taken place on the high seas, IPC is not applicable to A and hence he cannot be
prosecuted in India.
Question 33-‘X’knows that ‘Y’ is suffering from enlarged liver. Being a doctor, ‘X’ knows that if
he gives a first blow to ‘Y’ in the region with moderate force, it would result in rupture of Y’s liver
and is likely to cause his death. Knowing this, Xgives Y a first blow which ruptures Y’s liver and
causes his death, ‘X’ is liable for murder under
(a) Section 300 First

(b) Section 300 Secondly
(c) Section 300 Thirdly
(d) Section 300 Fourthly
Answer-(b) Section 300 Secondly (State of Andhra Pradesh v. R. Punnaya).

Question 34-In which cases it was observed, “culpable homicide’ is genus and ‘murder’ is its
species. All ‘murder’ is ‘culpable homicide’ but not vice-versa. There are three kinds of ‘Culpable
Homicide’ namely –1st Degree (Highest Degree-Murder),2nd Degree (Middle Degree-Culpable
Homicide caused with Intention and 3rd Degree (Lowest Degree)- Culpable Homicide caused with
Knowledge. For making the difference between murder and Culpable Homicide ‘keywords’ must
be focused.”
(a) State of A.P. v. R.Punnayya - Justice Ranjit Singh Sarkaria

(b) Virsa Singh v. State of Punjab -Justice Vivian Bose.
(c) R v. Govinda- Justice Melvil.
(d) Emperor v. MushnooruSuryanarayana Murthy – Justice Benson
Answer- (a) State of A.P. v. R.Punnayya - Justice Ranjit Singh Sarkaria

Question35-Which are the cases in which difference between Exception 1 and Exceptions 4 were
discussed?
(a) K.M. Nanavati v. State of Maharashtra (1961SC)

(b) Ghapoo Yadav&Ors. v. State of M.P. ( Feb. 2003)
(c) Surain Singh v. The State of Punjab (DOJ-10 April 2017)
(d) Both -Ghapoo Yadav&Ors. v. State of M.P. and Surain Singh v. The State of Punjab
Answer- (d) Both

Question 36–Section 105 of Indian Evidence Act is relevant to decide burden of prove whether
accused is entitled to get benefit of sections 96 to 106. The burden which rests on the accused to
prove the exception is not of the same rigour as the burden of the prosecution to prove the charge
beyond a reasonable doubt. It is enough for accused to show as in a civil case that the
preponderance of probabilities is in favour of his plea.
286
Which of the following case is not related burden of prove regarding ‘General Exceptions’?
1972 Deo Narain v. State of U.P.
(a)
May 2, 1974 State of U.P v. Ram Swarup
(b)
Nov. 24, 1978 Salim Zia v. State of U.P.
(c)
Dec. 16, 2003 James Martin v. State of Kerala
(d)
Answer- A
Question 37 -‘A’ enters into the house of ‘B’ with the intention to commit theft. ‘B’ along with
danger fires with pistol causing death to ‘B’. Here ‘A’ has committed:
Option –

(b) Murder
(c) Theft
Answer – (b) Murder.

Question 38-In which case Supreme Court declared 303 of IPC unconstitutional on the basis of
violation of article 14 and 21 of the Constitution of India?
(a) Cherubin Gregory v. State of Bihar (July 31, 1963)

(b) Bachan Singh v. State of Punjab (9 May, 1980)
(c) Mithu Singh v. State of Punjab (April 7, 1983)
(d) Independent Thought v. Union Of India &Anr. 11Oct.2017.
Answer-(c) Mithu Singh v. State of Punjab (April 7, 1983)

Question 39 –There are 11 circumstances when death may be caused in exercise of right of private
defence. Which of the following pair is correct?
(a) Section 100 (6 circumstances) and 103 (4 circumstances)

(b) Section 100 (7 circumstances) and 103 (4 circumstances)
(c) Section 100 (7 circumstances) and 104 (4 circumstances)
(d) Section 99 (7 circumstances) and 103 (4 circumstances)
Answer- B
Question 40–When right of private defence is not available against public servant?
(a) Anact reasonably causes the apprehension of death

(b) Anact reasonably causes the apprehension of grievous hurt
(c) He is not acting in good faith
(d) He is acting under colour of his office
Answer- D
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Question 41-Nephews of ‘A’ was illegally arrested. A went to police Station and asked why have
you arrested me nephews? Police asked, “Who are you”? He replied that he was uncle of these and
also student of Faculty of Law, University of Delhi. After listening this, they started to beat brutally
and they tried to gratify unnatural lust.
A in exercise of right of private defence
(a) had right to cause death

(b) had right either to cause deathor other harm
(c) had no right either to cause death or other harm
(d) had right either to cause death or other harm under section 103, IPC
Answer- (b) had right either to cause death or other harm

Question 42-
A, B, and C assaulted their junior and fresher X in their hostel room while ragging him. They
punched and kicked him on non-vital parts of his body as he refused to dance on a song played by
them on their mobile phone. X fell down and became unconscious. Presuming him to be dead they
hanged him from the ceiling fan by a rope, so as to create an impression that X had committed
suicide. The post-mortem examination showed that death was due to asphyxiation.
What offence has been committed by A, B and C?
(a) Culpable homicide

(b) Murder
(c) Death by negligence
(d) Voluntarily causing hurt
Answer- (d) Voluntarily causing hurt –Palani Goundan Case

Question 43– Tej had scolded Teena, daughter of Shan, for misbehaving with his daughter. Shan
did not like this and was looking for an opportunity to give good thrashing to Tej. One day Shan
saw that Tej was passing through his place and seizing this opportunity, Shan caught hold of a
stick lying nearby and gave nineteen blows with the stick on the legs and arms of Tej. Tej was
removed to a nearby hospital and died after two days. The post-mortem report attributed death to
multiple fractures on arms and legs and internal bleeding. Which offence Shan has committed?
(a) Culpable Homicide – Section 299 (b)

(b) Culpable Homicide – Section 299 (c)
(c) Murder – Section 300Thirdly
(d) Murder – Section 300 Fourthly
Answer- C
Question 44 – In which of the following case it was clearly said that combined reading of section
299 read with its illustration (a) denotes that section 299 does not require intention to cause death
of particular person…..Contributory action of victim or third party is immaterial…”

(b) Emperor v. M.S.Murthy (Halva Case)
288
Answer- B
Question 45 - Which of the following case is not related to right of private defence?
(a) Vishwanath v. State of U.P.

(b) YeshwantRao v. State of M.P.
(c) Amjad Khan v. State
(d) Fowler v. Padget
Answer-(d) Fowler v. Padget

Question 46 – Which of the following pair is incorrect-
(a) Section 52- Good Faith

(b) Section 38 - “Voluntarily”
(c) Section 40 – Offence
(d) Section 44- Injury
Answer- Section 38 - “Voluntarily”
Question 47- Which Explanation deals “Where death is caused by bodily injury, the person who
causes such bodily injury shall be deemed to have caused the death, although by resorting to proper
remedies and skilful treatment the death might have been prevented”

(b) Section 299 Explanation 2
(c) Section 299 Explanation 3
(d) Section 300 Exception 3
Answer- (a) Section 299 Explanation

Question 48 – To determine ‘Grave & Sudden Provocation’ ‘Doctrine of Reasonable Man’ must
be considered.
Which of the following statement is not relevant to decide ‘Doctrine of Reasonable Man’?
(a) customs, manners, way of life, traditional values etc.

(b) the cultural, social and emotional background of the society to which an accused belongs
(c) there are social groups ranging from the lowest to the highest state of civilization. Level of
civilization
(d) In India, words and gestures may not cause grave and sudden provocation
Answer- (d In India, words and gestures may not cause grave and sudden provocation
289
Question 49 - What is not the true difference between Exception 1 and Exception 4 of Section
300, IPC?
(a) Here one party is to be blamed. He has created A fight suddenly takes place, for which both
grave and sudden provocation. parties are more or less to be blamed.
(b) It depends upon without premeditation. It depends upon premeditation.
(c) It covers matters of grave and sudden This covers matters of sudden fight.
provocation.
(d) There is total deprivation of self-control There is only that heat of passion which
clouds men’s sober reason and urges them to
deeds which they would not otherwise do.
Answer- B
Question 50 – A attempts to pull Z’s nose. Z, in the exercise of the right of private defence, lays
hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence,
and kills Z.
(a) This is culpable homicide. A killed Z under grave and sudden and provocation.
(b) This is murder, inasmuch as the provocation was giving by a thing done in the exercise of
the right of private defence.
(c) This is culpable homicide because A cause death in sudden fight
(d) None of the above.
Answer –(b)
290
Fourh Test
Question 1. Match List-I (Jurists) with List-II (Assumptions) and select the correct answer using
the codes given below:
List-I List-II
a. Lord Macauley i. Preparation of Indian Penal Code
b. Jeremy Bentham ii. Unwritten jurisprudence on penal principles
c. Kelson iii.Substantive law on crimes
d. Sir Barnes Peacock iv. Revision on Penal law
Code:
a b c d
A. i ii iii iv
B. ii iii iv i
C. iii iv i ii
D. ii iii iv i
Answer. A
Question 2. Match the items of List-I(IPC section) with List-II and choose the correct answer
from the code given below:
List-I List-II
a.Section 44 i. Life
b.Section 45 ii.Death
c. Section 46 iii.Animal
d.Section 47 iv.Injury
Code:
a b c d
A.iv ii iii i
B.ii iii iv i
C.iv i ii iii
D.ii i iii iv
Answer.C
Question 3- Causing death of a child in mother’s womb:
A. Is always homicide
B. With intent to cause miscarriage is homicide
C. Is culpable homicide
D. Is culpable homicide if any part of such child has been brought forth, though the child may
not have breathed or been completely born
291
Answer- D
Question 4. ‘A’ digs a pit and leaves four deadly and poisonous snakes into it with the intention
of causing death to others. ‘B’ falls in the pit and is bitten by a snake and dies. ‘A’ is guilty, if
any, of
A. Culpable homicide not amounting to murder under section 299 IPC
B. Voluntarily causing grievous hurt under section 326 IPC
C. Murder under section 300
D. No offence
Answer- A
Question 5. A servant collected money from the debtor of his master authorized by him. The
servant retained the money because it was due to him as wages. He commits:
A. Criminal breach of trust
B. No Offence
C. Theft
D. Criminal misappropriation
Answer- D
Question 6. ‘X’ has consensual sexual relations with ‘Z’s wife. She gives to ‘X’ a valuable
property which ‘X’ knows to belong to her husband ‘Z’ and she has no authority from ‘Z’ to
give. ‘X’ takes the property. Which of the following offences have been committed by ‘X’?
A. Criminal breach of trust
B. Theft
C. Criminal misappropriation
D. Theft and Criminal misappropriation
Answer- B
Question 7. Common intention implies

A. Similar intention
B. Pre-arranged planning
C. Presence of common knowledge
D. Common design for common objects
Answer- B
Question 8. “In every statute, mens rea is to be implied unless the contrary is shown.”:
This view was expressed in-
A. Sherras v. De Rutzen
B. R. v. Dudley & Stephen
C. Harding v. Price
D. R. v. Prince.
Answer. A
292
Question 9. Under section 82 & section 83 of IPC an offence is punishable if it is done by a child:
A. of below seven years of age
B. of above seven years of age but below twelve years if he has not attained sufficient maturity
and understanding
C. of above seven years of age but below twelve years having attained sufficient maturity and
understanding
D. all the above.
Answer. C
Question 10. Match the List-I (Name of Case) with List-II(Offence) and choose the correct answer
from the code given below :
List-I List-II
Vishwanath v state of U.P i. Kidnapping
State of Punjab v Major singh ii.Private defence
S.Varadarajan v. State of Madras iii.Modesty of Women
Amar singh v. State of Rajasthan iv.Dowry death
Code:
a b c d
ii iii iv i
ii iii i iv
iv ii iii i
iv ii i iii
Answer:B
Question 11. Section 84 of IPC provides for:
A. medical insanity
B. legal insanity
C. moral insanity
D. unsoundness of mind of any kind.
Answer. B
Question 12. Match the List-I (Punishment) with List-II(IPC section) and choose the correct
answer from the code given below :
List-I List-II
Punishment for gang rape on woman under 16 years of age i.Section 376AB
Punishment for gang rape on woman under 12 years of age ii.Section 376DB
Punishment for rape on woman under 12 years of age iii.Section 376D
Punishment for gang rape iv.Section 376 DA
Code:
a b c d
ii iii iv i
ii iv i iii
iv ii iii i
iv ii i iii
Answer:D
293
Question 13. The principle ‘de minimus non curat lex’ is contained in:
A. section 92 of IPC
B. section 93 of IPC
C. section 94 of IPC
D. section 95 of IPC.
Answer. D
Question 14. Right to private defence is:
A. available under all circumstances
B. available where there is time to have the recourse to the protection of public authorities
C. available where there is no time to have recourse to the protection of public authorities
D. all of the above.
Answer. C
Question 15. Which of the following is false of Section 34 and Section 149 of the IPC?
A. S. 34 does not by itself create any specific offence whereas S. 149 does so
B. Some active participation in crime is required in S. 34 while it is not needed in S. 149
C. S. 34 speaks of common intention while S. 149 contemplates common object
D. S. 34 requires at least five persons who must share the common intention while S. 149 requires
at least two persons to share the common intention
Answer. D
Question 16. Match List-I (Objectives) with List-II(Propositions) and select the correct answer
using the codes given below:
List-I List-II
a. Inchoate crime i.Whaton says it is the beginning but not complete
b. Attempt ii.It does not act towards the commission of offence
c. Preparation iii.Culprit commences to do something
d. Intention iv.When preparation merges itself with attempt
Codes:
a b c d
ii iii iv i
i ii iii iv
iv ii iii i
iv ii i iii
Answer:B
Question 17. How many types of punishments have been prescribed under the Indian Penal Code:
A. three
B. six
C. five
D. four.
Answer. C
294
Question 18. Under section 65 of IPC sentence of imprisonment for non-payment of fine shall be
limited to:
A. one-third of the maximum term of imprisonment fixed for the offence
B. one-fourth of the maximum term of imprisonment fixed for the offence
C. one-half of the maximum term of imprisonment fixed for the offence
D. equal to the maximum term of imprisonment fixed for the offence
Answer. B
List-I List-II
Mehboob shah v. Emperor i.Mens Rea
State of Maharastra v. M.H.George ii.Intoxication
Director of Public Prosecution v. Beard iii.Common Intention
R.V.Dudley v. Stephens iv.Necessity
Code:
a b c d
i ii iii iv
ii iv i iii
iii i ii iv
iv ii iii i
Answer. C
Question 20. Read Assertion(A) and Reason (R) and give the correct answer by using the code
given below:
Assertion(A): 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 exact nature of the act.
Reason(R): Mistake of fact is a good defence and mistake of law is no defence.
Code:
Both A and R are true and R is the correct explanation of A.
Both A and R are true and R is not the correct explanation of A.
A is true but R is false
A is false but R is true
Answer.B

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i

First Edition ……. June 2020

SUMMARY OF INDIAN PENAL CODE

Krishna Murari Yadav

DEDICATED TO MY BELOVED STUDENTS

Regards Sumit Kumar

CHAPTERS TOPICS PP.

F 2,4,6, 203, 227,

Rishi Deo Pandey v. State of U.P. 110

(a) Human being

Meaning of Actus reus -

(3) Contempt of Court

Schools of Mens Rea (Interpretation of statutes)

(1) Presumption of Existence of Mens Rea, and

i. Cases related to Presumption of existence of Mens Rea

S.No. Name of Case Justice Year

ii. Cases related to Presumption of absence of Mens Rea

S.No. Name of Case Justice Year

Some Leading Cases

There are some leading cases related to elements of crime –

Fowler v. Padget12 (1798) (Lord Kenyon)

R. v. Prince14 (1875) (Blackburn)

R. v. Tolson18 (1889) (Wills) (Koi Mere Dil Se Puchhe – Hindi Movie)

Sherras v. De Rutzen20 (1895) (Wright )

R. v. Prince Section 55, Offences Against Person Act, 1861 Abduction

Hobbs v. Winchester Corp. (1910) Kennedy

Brend v. Wood (1946) (Goddard) - Revival of Mens rea

Ranjit D. Udeshi v. State of Maharashtra (August 19, 1964)

State of Maharashtra v. M.H. George (August 24, 1964)

The Indo-China Steam Section 52A, Sea Customs Smuggling of gold

Nathu Lal v. State of M.P.21 (22 March 1965)

State of M.P. v. Narayan Singh24 (25 July 1989)

Section 7, The Essential

IMPORTANT MAXIMS RELATED TO CRIMINAL LAW

(1) Intention of Contemplation

III. Preparation for counterfeiting of coins or Government Stamps (Sections 233 to

Need of Right of Private Defence

Own body & property or body &property of another person

Commencement and continuance

Scheme of right of private defence in IPC

(1) Section100 (Body)-103(Property) -Circumstances in which death or any harm may be

Burden of proof (Preponderance of probabilities)

Common sections - Sections 96, 97, 98, 99, & 106

(1) by reason of the youth, (Section 82)

Section 97 (Offence) Section 98 (Act)

Section 99 (Acts against which there is no right of private defence)

Section 100 (Seven circumstances when death is allowed)

(1) First (Death)

(2) Secondly (Grievous hurt) (Section 320)

(3) Thirdly (Rape) (Ss. 375 & 376)

(4) Fourthly (Unnatural lust) (Section 377)

(5) Fifthly (Kidnapping or abducting) (Sections 359 and 362)

(6) Sixthly (Wrongfully confinement) (Section 340)

Deo Narain v. State of U.P.43(1972)

State of U.P. v. Ram Swarup44 (1974) (Melon Case)

The Court said -

Kishan v. State of M.P.45(Nov. 19, 1973)

James Martin v. State of Kerala46

1 March 20, 1952 Amjad Khan v. State

DU LL.B. 2018 Question (1) (b)

UGC NET 2018 Dec. and UP J (Mains) 2019

Question no. 10 (b) - UP (J) Mains 2019

Section 10547 - Commencement and continuance of the right of private defence