University Roll No : L02/LLB/181120

Registration Number : L02-1111-0084-18

Name of Examination : B.A. LL.B. (5 Years)

Semester : 4th Semester

Subject : Law of Crime I

Paper : IV

Date Of Examination : 04/12/2020

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 Group A

Question 2(a): Define Crime. Distinguish between ‘tort’ and ‘crime’.

Does every tortious act amount to crime or vice-versa?

Answer:

Sir John Salmond explains torts as “Torts as civil wrong for which
the remedy is common law action for unliquidated damages, and
which is not exclusively the breach of contract or the breach of
trust or other merely equitable obligation”.

According to Austin “A wrong which is pursued at the discretion of

the injured party and his representatives is a civil injury”

According to Tappan (1960) “Crime is an intentional act or

omission in violation of criminal law committed without defence of
justification.” In this definition, Tapan has emphasized five
characteristics of crime.

(1) A crime should be an act or omission of an act. In other

words, a person cannot be punished for his criminal
thoughts. Only when his thought is expressed in a criminal
action, it will be considered as a crime.

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(2) The act must be voluntary and the person (criminal) has
control over his actions. In other words, any act committed when
the person is insane and has no control over his action cannot be
a crime.

(3) The act should be intentional with a motive and intention may
be general or specific, i.e. any crime committed without a specific
intention, all of a sudden, out of rage or any sudden situational
factor is not a crime.

(4) The act should be a violation of criminal law which is clearly

different from non-criminal law or civil and administrative law. This
is essential because the law and order authority can thereby take
action against the accused.

(5) The act should be committed without defense or justification.

Hence, any action which is committed for self-defense or self-

protection and during an insane or abnormal condition cannot be
considered as a crime, even if it causes harm or injury to a
person. For instance, if it is proved that a rape victim kills a man
to protect her prestige, it is not considered as a crime. But
ignorance of the law is not usually a defense.

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An act may be considered a crime if it has the following
characteristics:

1. Harmful:

A crime is an action. An action to be called a crime must harm the

victim. It must have a harmful impact on the victim which can be
observed externally.

2. Illegal:

An important characteristic of crime is that it is illegal in nature

and violates the law of the land.

3. Malafide Intention:

An action to be called “crime must be performed with a malafide

intention.” The intention of the crime is always to do harm to
someone either physical or mental like causing physical injury or
killing someone, forcibly taking away valuable properties,
abduction or kidnapping someone’s child or relation, etc.

4. Criminal Intention:

Any action to be labeled as a crime must be criminally oriented. It

must have criminal intent. In certain crimes, the motive may be
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good but the intention is always illegal and criminal. For example,
recently in a pathetic incident, a woman threw to the well all her 3
daughters and killed them, and then committed suicide.

Because she was too poor and could not see her daughters
starving for days together, she committed this act. The motive of
this crime is good but the intention of killing is criminal as per law
and legally not allowed.

5. Cause-Effect Relationship:

There must be a cause and effect relationship between crime and

voluntary misconduct. For instance, if a man dies for some other
reason (suffocation) even after he is shot, the relationship
between criminal conduct and death (harm) is not clear cut. It will
only be considered a crime when the cause-effect relationship is
quite clear.

6. Concurrence of Intention and Conduct:

The conduct and intention of a person must coincide with each

other to be called a crime. In other words, the criminal intention
and conduct of a person must coincide with each other. A
policeman who enters a house to arrest somebody alleged to be
involved in a murder cannot be called a trespasser.
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7. Punishment Prescribed must be Legal:

Any punishment awarded to the criminal must be legal and

prescribed by law. If a misconduct comes under a criminal action,
then the punishment prescribed to him must have the legal
sanction.

When all the above characteristics are present in behavior or

conduct it is ideally called a crime. These seven characteristics of
crime are however interrelated and overlapping in nature. In short,
it can be said that a crime is any act that causes harm to man’s
interest, be it personal, social, familial, physical, or economic.

Some specific characteristics of the crime, in India, may be

different from the characteristic of crimes in other cultures, but
crime, in general, has certain common characteristics.

The crime rate in India is not very high compared to other

countries. While the crime rate for one lakh population in India is
614.79, it is 10404 in Britain, 5898 in the U.S.A., 10,955 in
Canada, 1510 in Japan, and 9507 in the Netherlands. Of the total
crimes committed in India, every year about 16.35 lakh crimes are
cognizable crimes under IPC which include theft, robbery,
burglary, dacoity, murder, riot, kidnapping, cheating, etc.

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Under the local and special laws about 38.76 lakh offenses are
committed every year under the Dowry Prohibition Act, the
Prohibition Act, Gambling Act, Arms act. Immoral traffic
prevention act. Explosive Substance Act, Narcotic drug and
psychotropic substances Act, Railway Act, etc.

Thus in India crimes under local and special laws are more than
cognizable crimes under the Indian penal code. The pattern of
IPC crime indicates that of the total cognizable crimes 14.4
percent are violent crimes such as murder, rape, abduction,
kidnapping, 26 percent are property crime such as burglary and
theft, 3.1 percent are white-collar crimes like cheating, breach of
trust, Fraud and 56.5 are other types (miscellaneous) of crimes.

Of the total cognizable crimes committed in India a year, 28

percent are property crimes, out of which 18.6 are theft and 7.4%
are burglary, 1.4% are robbery and dacoity 0.6%. Thus, crime is
greater for property offenses than for other offenses against
persons like murder, abduction which is similar to the U.S. where
77 percent of the crimes are property crimes and 23 percent are
crimes against persons.

Of the total IPC crimes, 50.6% are committed in 5 states of India

namely Uttar Pradesh, Maharashtra, Madhya Pradesh, Bihar, and

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Rajasthan in order of percentage of crimes committed. More than
85%; of the offenders commit cognizable crimes under the IPC for
which they get less than six months imprisonment.

Crime rates are much higher for males than females i.e., 96.2%
are males and 3.8% are females. The ratio of urban offenders is
much less than the rural offenders.

The crime rate is highest among the low, low middle, and middle
socio-economic groups. The crime rate is highest in the age
group of 18 to 30 years (51%), 41% in the 30-50 years age group,
and 7 percent in the 50 + age group. Thus adults seem to commit
more crimes than children and adolescents.

The rate of organized crime has increased in India, i.e., large

scale organizations have come up for criminal activities. Rackets
for control and distribution of illicit goods like drugs, narcotics,
smuggling of gold, girls for prostitution in inland and Arabian
countries Mafia groups to control Cinema industry, coal industry,
unions in industries, etc. are on the rise in India.

All these data about Indian crimes and criminals go to prove that
in recent times there has been disorganization in society due to
non-confirmation of social norms and disturbances in social

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relationships. The crime rate is increasing alarmingly day by date
because of social unrest among young and old, rich, and poor.

The unrest and tension are increasing in almost all sections of our
society, among the minorities, peasants, and youths.

This increases strain and frustration leading to violation of social

and legal norms and standards. Because of various organized
and unorganized crimes at various levels of the society the law
and order in the society have been disturbed. Peaceful citizens of
the country are in nightmares due to their fear of criminals.
Murders have become a daily affair.

On the basis of the criminal procedure code, all crimes can be

classified into two categories.

(1) Cognizable crime

(2) Non-cognizable crime

Cognizable Crime:

Cognizable crimes are broadly categorized falling either under the

Indian Penal Code (IPC) or under the special and local laws
(SLL). All cognizable crimes reported in a state are dealt by the

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police in which a police officer may arrest a person without a
warrant. In cognizable crimes, the police have a direct
responsibility to take immediate action on receipt of a complaint or
secret information.

He may visit the place of crime, make investigations, interrogate

the suspected offenders, apprehend the offender deemed fit and
produce him before a court of law having jurisdiction over the
matter. He has also the responsibility of preparing a charge sheet
against the alleged offender. Let us take a sample survey of
cognizable crimes committed in Chennai from 1995 to 1998.

Non-Cognizable Crimes:

Non-cognizable crimes are usually pursued by the affected

parties themselves in courts. Police do not initiate investigations
against non-cognizable crimes except with the permission of a
magistrate. As many as 8, 23,232 crimes were reported in the
State of Chennai during 1998 of which 1, 49,293 cases were
under IPC and 6,73,939 cases were under SLL.

Major Difference between Tort & Crime

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A tort is best defined as a private infringement on someone’s civil
rights. In legal terms, a tort occurs when negligence directly
causes damage to a person or their property.

There are different types of tort, but they all result in injury to a
private person or property. Negligence is the most common
cause of a tort. When a person acts without care and
unintentionally injures someone the injured party may sue and
accuse the defendant of a tort. Strict liability torts become an
issue if a private party is injured through the attack of an animal or
faulty product. These unintentional acts cause damage to a
person’s health or property. Intentional torts occur when an
individual intentionally causes harm to another person. These
injuries could be the result of battery or defamation of character.
The injured party may sue for loss of income as a result of the tort
or for damages to the property due to negligent behavior.

Intentional torts can be confused with the crime because they

often happen during criminal activity. If the injured party decides
to sue for compensation, then the criminal case becomes a tort.
The perfect examples of a tort can be seen in motor vehicle
accidents, cases of slipping and falling, medical malpractice,
assault, product liability, and workplace accidents. A tort that is
part of criminal activity is evident when someone driving under the

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influence of alcohol or drugs causes bodily harm to another
individual involved in the accident. The crime is described as the
way the guilty party drove, and the tort is the injury sustained by a
private individual. Therefore, it is clear to see the role of a tort in
a situation violating the safety and health of an individual during
the course of what is classified as a crime.
A tort is unlawful because –
● A tort causes bodily harm or psychological injury to an
individual and impairs a person’s lifestyle.
● A tort goes against the civil rights of an individual in society.
● Torts are covered by the law and the offense can be
prosecuted, but the outcome will differ based on the legal
guidelines serving the law and civil rights.
A crime is a wrongdoing that affects society. It has been
identified by the state legal system and is prosecuted according to
the laws of the state and the procedure followed in a criminal
court of law.
The injured party is classified as the society and the laws broken
have been set up by the state or federal government to protect
the members of society.
The proceedings that are used to bring about justice take place in
a criminal court of law. The punishment will fit the crime under

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criminal law and the defendant will serve the sentence given to
him through the criminal court of law.
Crimes go against laws that are already set for the protection of
society and to keep peace ensuring everyone can have the right
to live in a crime-free society, in an ideal world.

Crimes are illegal acts for the following reasons.

● Crimes go against existing laws laid down in society.

● Crimes affect the standard of living for law-abiding citizens
who wish to live peacefully in their social environment.
● A crime is a deliberate act going against the law and
contravening human rights.
Basic Difference between Tort & Crime
1. Method
A tort is a wrongdoing that goes against an individual, while a
crime affects the social order of the community we live in.

2. Intent
The intent of a tort can be unintentional, it is accidental and
caused by negligence. It is still damaging to the individual. A
crime is intentional wrongdoing that affects society. Individuals
may be caught up in the crime and suffer during the criminal

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activity, but generally, the crime and criminals break the law and
intend to gain from the wrongdoing.

3. Effect on society
Torts and crimes affect society in different ways, but the impact is
negative. A tort upsets the well-being of an individual and they
may seek legal action and compensation. A crime affects society
and criminal law will ensure the perpetrators are punished for their
crimes. Sometimes, torts and crimes can be inter-twined in the
same criminal activity. An individual, on the scene of the crime,
could be injured because of the criminal activity.

Does every tortious act amount to crime or vice-versa?

The tortious act cannot be considered as a crime, because

tortious law is not applicable in India but there are few

Legislations like the motor vehicle Act and Consumer Protection,

where actually the death of a person happens but it does not

imply criminal Law Implications.

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Question 2 (b): What are the different stages of a crime and how

far each of them is punishable?

Answer: If a person commits a crime voluntarily or after

premeditation, the doing of it involves four stages. Such as

1 Intention

2 Preparation

3 Attempt and

4 Accomplishment or Commission of crime.

In every crime, there is firstly an intention to commit it, secondly,

preparation to commit it, and thirdly, an attempt to commit it. Thus
a culprit first intends then makes preparation for committing it and
therefore attempts to commit the offense. If the attempt succeeds,
he has committed the offense, if it fails due to reasons beyond his
control, he is said to have attempted to commit the offense. The
object of this paper is to deal with the meaning and concept of
crime and the stages involved in the commission of crime.

Intention or Contemplation: It is the first stage in the commission

of the offense and is known as the mental stage. In olden times
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mere intention was not punishable. According to Burdick, “The
doctrine that a mere intent amounts to a crime passed long ago in
order to constitute an attempt to commit a crime there must be
something more than an intent to commit it”. The obvious reason
for not pursuing the accused at this stage is that it is very difficult
for the prosecution to prove the guilty intention of a man. The
courts have also shown their unwillingness in punishing a man for
mere guilty intention. It was observed by an English judge that the
thought of a man is not triable because the devil himself knoweth
not the thought of a man. Therefore so long as an act of a person
rests in his intention no criminal liability arises. But if his intention
is made known to others either by words or conduct, it will give
rise to criminal responsibility.

Under Indian criminal law mere intention to commit an offense is

not punishable. However, the law in certain circumstances does
take notice of an intention to commit an offense. For example,
waging war against the state (Sections 121 to 123), Sedition124 A
in the IPC have been considered to be serious offenses and mere
preparation to commit these offenses is punishable as these are
to be checked at their earlier stage. Similarly, according to
Section 120-A when two or more persons agree to do or cause to
be done an illegal act or an act which is not illegal by illegal
means, such an agreement is designated a criminal conspiracy.
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But the mere act is not punishable but some act besides the
agreement must be done. Parties to such conspiracy but the mere
agreement are not punishable as provision added to the section
requires that some act besides the agreement must be done.
Parties to such conspiracy are however punishable on the basis
of an agreement between them. Mere assembly of persons for
committing the dacoity without any further proof of preparation is
punishable under Section 402 of the code.

Preparation:

Preparation is the second stage in the commission of a crime. It

means to arrange means or measures necessary for the
commission of the intended criminal act. An act done towards the
commission of the offense unless it is followed by other acts is
merely an act of preparation. Intention alone or intention followed
by preparation is not enough to constitute the crime. Preparation
has not been made punishable because in most of the cases the
prosecution has failed to prove that necessary preparations were
made for the commission of the offense. If ‘A’ purchases a pistol
and keeps the same in his pocket duly loaded in order to kill his
enemy ‘B’ but does nothing more ‘A’ has committed any offense
as he is still at the stage of preparation and it will be impossible
for the prosecution to prove that ‘A’ was carrying the loaded pistol

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only for the purpose of killing ‘B’. It is so since it is not necessary
that whosoever makes the preparation will actually commit the
offense also. The law allows a locus penitente (opportunity to
repent) and does not punish the person unless he has passed
beyond the stage of preparation. There is a lesser degree of
determination in preparation as compared with an attempt.

In Noorbibi v. State AIR 1952 J&K 55, the accused without

proper permission was going towards the border with the object of
stepping into Pakistani territory and was arrested before reaching
the border. It was held that there could be no presumption that
whosoever moved towards the border would necessarily cross
over. Similarly, a jeweler in order to prefer a false claim to an
insurance company pretended that his shop had been burgled
and informed the police accordingly. On investigation when the
truth was made known he was prosecuted but was held not guilty
as he was still preparing to commit the crime. He could have been
guilty, had he submitted the claim to the insurance company.
Under the IPC, mere preparation to commit the following offenses
is punishable as there are considered to be grave offenses:

1. Preparation to wage war against State (Section 122)

2. Preparation to commit depredation on territories of a power at

peace with Govt. of India (Section 126)
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3. Preparation to commit dacoity (Section 399)

4. Preparation for counterfeiting of coins or Govt. stamps (Section

s 233 to 235, 255 and 257)

5. Possessing counterfeit coins, false weight or measurement and

forged documents. Mere possession of these is a crime and no
possessor can plead that he was still at the stage of preparation
(Sections 242, 243, 259, 266, and 474)

Attempt:

It is also known as the preliminary crime. Section XXIII of the IPC,

1860 deals with the attempt to commit offences and provides the
punishment for attempt. Park B. in R. V. Eagleton 1855 Dearsly
said, “Acts remotely leading to the commission of offense are not
to be considered as attempts to commit it but acts connected with
it are”. There is a greater degree of determination in “attempt’’ as
compared with “preparation’’. The Supreme Court has observed
that the attempt stage is reached when the culprit takes deliberate
overt steps to commit the offense and this overt act need not be a
penultimate act.

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Essentials of Attempt:

When a person wants to commit a crime, he firstly forms an idea,

then makes some preparation and ultimately does something for
achieving the object. If he succeeds in his object he is guilty of
completed offence otherwise only for making an attempt. Thus
there are three essentials of attempt:

1 Guilty intention to commit an offence.

2 Some act done towards the commission of crime.

3 The act must fall short of the completed offence.

The present doctrine that to attempt a crime is itself an offence

was clearly approved by Mansfield, J. In R V. Scofield 1784 Cald
397 thereafter the rule that attempting to commit crime is
punishable because of universal application. In R. V. Taylor
(1859) 1 F and F 511., the accused purchased the matchbox with
the intention to set fire to a haystack. He was, however, arrested
before he took the matchbox out of his pocket. It was held that he
was not guilty however clearly it might be proved that he intended
to set fire also if he had approached the stack with the matchbox
in his pocket all this would have been mere preparation. He could
have been held guilty if he had lit the match and then
extinguished it on finding that he was being watched. Malkiat
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Singh v. State of Punjab (1969)1 SCC 157 In this case the
appellant was arrested by the Punjab police 32 miles before the
Punjab-Delhi border for exporting poddy to Delhi without license.
It was held that it was mere preparation. It was quite possible that
the appellants might have changed their minds at any place
before reaching the border. The court also observed the test for a
determination whether the act of the appellant constitutes an
attempt or preparation is whether the overt acts already did 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 State of Maharastra v. Mohd Yakub (1980 )3 SCC 57three

accused persons were caught along with along with jeep and
truck loaded with silver which was to be smuggled out of India.
The court held that their act was proximate enough to the
intended result. The measure of proximity is not in relation to time
and place but in relation to intention.

Under the I.P.C attempt has been described in 3 different ways

1. Completed offences and attempts have been dealt with in the

same section and same punishment is prescribed for both. Such
provisions are contained in Sections 121, 124, 124-A, 125, 130,

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131, 152, 153-A, 161 163,165, 239, 240, 241, 251, 385, 387, 389,
391, 395, 397, 459 and 460.

2. In case of four grave offences attempts are described

separately but side by side with the offences and specific
punishment is prescribed for them like.

a) Murder is punishable under Section 302 and attempt to murder

underSection 307.

b) Culpable homicide is punishable under Section 304 and

attempts to commit culpable homicide under Section 308.

c) Attempt to commit suicide is punishable under Section 309

completed offense is not punishable and as such no provision for
punishment has been made.

d) Section 392 provides for punishment for robbery and attempt to

commit robbery is punishable under Section 393 and if armed
with deadly weapons.

e) Dacoity with murder is punishable under Section 396 and

dacoity with an attempt to cause death is punishable under
Section 397.Voluntarily causing hurt in committing robbery is
punishable under Section 394 and attempt to cause grievous hurt
in committing the robbery is punishable under Section 397

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f) All other cases of attempt are covered under Section 511 which
provides that the accused shall be punished with one-half of the
longest term of imprisonment provided for the offence or with fine
or both.

Impossible Attempt:

It was for some time supposed that it would be no crime if a man

attempted to do that which in fact was impossible to do. This

fallacy was due to the fact that impossible attempts were
considered to be a mere preparation. That is why in R. V.
Collins(1864)12 WR886 the accused could not be convicted for
putting his hands into the empty pocket of another. This decision
was based on a case decided in 1857, where the accused could
not be convicted for breaking and entering the house to steal
goods which had been stolen already. The court held that an
attempt must be to do that which if successful, would amount to
the felony charged, but here the attempt never could have
succeeded. In R .V. Brown, where he observed that these cases
were decided on a mistaken view of law and are no longer the
law. In this case the accused was convicted for committing the
offence of sodomy although the complete offence was not
possible due to physical defects. Finally in R. V. Ring (1892) 17
cox 491 settled the whole
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controversy. In this case the accused was convicted for thrusting
his hands into the empty pocket of a woman while she was
entering the compartment of a train. If such attempts are not
punished then even a noted pickpocket may pass around in a
crowd in full view of policemen and even in the room of a police
station, and thrust his hand into pocket of another to steal, and yet
be not prosecuted until the police has first ascertained that there
was in fact money or valuables in the pocket.

In State v. Mitchell (1902) 170 mo 633, the accused fired at the

pillow of an empty bed with the intention to kill his enemy who
usually used to sleep there. It was held that the accused was
guilty and the victim being miles away on the particular occasion
was immaterial. The whole controversy has now been set at rest
with the passage of the Criminal Attempt Act 1981, Section 1
deals with such situations in Anderson v. Ryan (1985) 2 ALL ER
355 HL where a lady purchased a videotape recorder believing it
to be stolen, whereas it was not so it was held that she was
entitled to acquittal. This case has, however, been overruled in R.
V. Shivpuri in this case the accused was arrested by a customs
officer for possessing a suitcase containing prohibited drugs. He
also told officials that he is dealing with prohibited drugs but on
opening the suitcase no drug was found therein. Holding him
liable the court observed that Sec. 1 when truly construed it
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reveals that a person is guilty of an attempt merely if he did an act
which was more than merely preparatory to the facts were such
that the actual offense was impossible.

Section 511 of IPC is more specific and the following two

illustrations clearly make impossible attempt punishable-

1. ‘A’ makes an attempt to steal jewels from an empty box. ‘A’ is

guilty;

2. ‘A’ makes an attempt to pick the empty pocket of ‘Z’. ‘A’ is

guilty.

In Asgar Ali v. Emperor AIR 1933 Cal 893 the accused

suggested to a lady, whom he caused pregnancy, to take drugs to
procure a miscarriage and when she refused to take the drug he
tried to pour the liquid in her mouth against her will. In the
meantime her father and some neighbours came out and the
accused fled. On medical examination no poison was found in
liquid and neither the powder nor the liquid was found harmful. It
was held that the accused could not be convicted of an attempt to
cause miscarriage as what he did was not an act done towards
the commission of the offence of causing miscarriage.

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Illustrative cases

1. The accused persons were seen going towards the Pakistan

border with a tin case in their hands and when they recognised
the raiding party they immediately turned round and ran away.
They were chased into the house of the accused where the
raiding party found the accused persons hiding or concealing the
tin box containing currency notes in the heap of wheat in the
house. Court held that the facts are sufficient to constitute an
attempt to smuggle the currency notes.

2. Where a man, having a wife living, caused the banns of

marriage to be published, he could not be punished for an attempt
to marry again during the lifetime of his wife.

Attempt and Preparation Distinguished:

Preparation is to arrange or devise means or measures and

attempt is direct movement towards the commission of the
offence

1- Preparation is usually not punishable but attempt is always

punishable

2- Mere preparation is an indifferent act possessing no definite

indication of criminality. An attempt is an act of such a nature that
it is itself a clear evidence of mens rea.
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3- If accused has lost the opportunity to repent he is in the stage
of attempt otherwise he will be in the stage of preparation only.

SECTION 511 AND Section 307, IPC.

Whether Section 511 is wide enough to include cases for
attempts to murder which are punishable under Section 307 of
IPC. The Allahabad High court held that Section 307 of the IPC is
exhaustive and within the four corners of that section. Is to be
found the whole provision of law relating to attempt to murder.

Section 511 is,therefore, inapplicable in cases of attempt to

murder. The Bombay High court took a different view and held
that in order to constitute an offence under Section 307 there
must be an act done under such circumstances that the act must
be capable of causing death in the natural and ordinary course of
things. If the act complained of is not of that description, a
prisoner cannot be convicted of attempt to commit murder under
Section 307 and will then be convicted under Section 511

The correct view seems to be that the offence of attempt has

different meanings in Sections 307 and 511. If specific provisions
for attempt to murder have been made in Section 307 there is no
sense and also it will be against the interest of justice it attempts
to murder is tried under Sections 302/511 IPC. Section 307 is
therefore exhaustive and its scope cannot be narrowed down by
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Section 511 Limitation in Section 511 relates to such offenses as
an attempt to commit murder, or an attempt to commit suicide, or
an attempt to obtain illegal gratification which is expressly
punishable by other sections of the code.

The scope of attempt under Indian law is wider than English law.
Pointing out the reason for this Turner, j. Observed, “The
circumstances stated in the illustration to Section 511, IPC would
not have constituted an attempt under the English law, they were
introduced in order to show that these provisions were designed
to extend to a much wider range of cases than would be deemed

punishable as offenses under the English law”.

Accomplishment:

The last stage in the commission of a crime is its

accomplishment. If the accused succeeds in his attempt to
commit the crime, he will be guilty of the offense. If this attempt is
unsuccessful, he will be guilty of an attempt only. e,g. ‘A’ fires at
‘B’ with the intention to kill him. If ‘B’ dies, ‘A’ will be guilty of
committing the offense of murder only. If the offense is complete,
the person will be tried and punished under the specific provisions
of the code.

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 Group B

Question 4(a): Define the following terms-

(i) Culpable homicide and Murder

(i) Culpable homicide and Murder

Homicide is a term which originates from the Latin term

‘Homo’ means human and ‘caedere’ means killing. The

act of homicide is an act that has been a part of human

life since day 1. Early men used to kill each other for food

or creating dominance, the kings used to perform

homicide to win territories and now people kill each other

in the sway of jealousy, greed, etc. Homicide is one of the

most grievous act a person can commit as it is the highest

order of bodily injury inflicted on a human being hence

that’s why regulations regarding Homicide are really

grave, for instance, culprits are usually sentenced to life

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imprisonment or the death penalty as these are the most

extreme punishments given by the judiciary.

In India homicide is divided into two forms- Culpable

Homicide (Section 299 of the Indian Penal Code) and

Culpable Homicide amounting to murder (Section 300 of

the Indian Penal Code). Both of these have a very minimal

difference but these differences prove to be very crucial

for the legal system as the delivery of a fair judgment is

dependent on these differences.

· Lawful and Unlawful Homicide

A culprit in a case of Homicide cannot always be culpable.

This derives the notion of lawful homicide where the

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accused had a valid reason to commit the crime. In these

cases, the person will not tend to be tried by the law and

can also be exempted from the charges. These can

include death caused in self-defence or by mistake of fact

or there was a bonafide execution of the law etc. Hence

Homicide can be lawful as well as unlawful. Lawful

Homicide may include justifiable and excusable homicide.

Unlawful Homicide may include death by rash and

negligent act (Sec 304-A), suicide (Sec 309) or culpable

homicide.

· Culpable Homicide

As mentioned before culpable homicide is a type of

unlawful homicide. Laws regarding culpable homicide are

enshrined in the Indian Penal Code 1862 (IPC). According

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to which, there are two types of culpable homicides-

Culpable Homicide not amounting to Murder (Section 299

IPC)

It can be simply referred to as culpable homicide, this

comes under the purview of Section 299 of The Indian

Penal Code 1862 which states that:

An act done with the intention of causing death or causing

such bodily injury which is likely to cause death or having

the knowledge that he can likely by his act cause death,

he’ll be committing the offense of culpable homicide.

Conditions:

After bifurcating the definition, we get 3 conditions which

have to be fulfilled to attract Section 299 of the Indian

Penal Code these are-

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 o The intention of causing death.

o The intention of causing such bodily injury as is

likely to cause death.

o With the knowledge that he is likely by such an act

to cause death.

Illustration

A not knowing that D has a tumour in his brain, hits him

hard on the head with a cricket bat, with the intention of

causing death or with the knowledge that death is likely to

be caused.

D dies because of the bursting of the tumour. A is liable

for culpable homicide not amounting to murder.

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Case Law

It was held in the case of Nara Singh Challan v. State of

Orissa (1997) that Section 299 of the Indian Penal Code

is the genus and Section 300 of the Indian Penal Code is

the species. Hence, there are no independent sections

regarding culpable homicide not amounting to murder it is

the part of Section 300 of IPC which defines Murder.

Herein, the court observed that:

“For deciding the proper punishment which is

proportionate to the current offense, IPC has divided

culpable homicide into three degrees. First is the gravest

form which is Murder it is defined under section 300 of

IPC, the second is the culpable homicide of the second

degree which is punishable under Section 304 part 1 of

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IPC and Third is the lowest degree of culpable homicide

which is punishable under Section 304 part 2 of IPC.”

Culpable Homicide amounting to Murder

It can be simply referred to as Murder, this comes under

the purview of Section 300 of the Indian Penal Code 1862

which states that:

Culpable homicide is murder, if the act is done with the

intention of causing death or if it is done with the intention

of causing such bodily injury as is likely to cause the death

of the person or if the inflicted bodily injury is sufficient

enough in the ordinary course of nature to cause death or

if there is knowledge involved that the act done is so fatal

that in all probability it can cause death or such bodily

injury as is likely to cause death and commits such act

without any excuse.

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Conditions:

After bifurcating the definition, we get 4 conditions which

have to be fulfilled to attract Section 300 of the Indian

Penal Code these are-

o The intention of causing death.

o The intention of causing such bodily injury as the

offender knows to be likely to cause the death of the

person to whom the harm is caused.

o With the intention of causing bodily injury to any person

and the bodily injury intended to be in-flicted is sufficient in

the ordinary course of nature to cause death.

o 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

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commits such act without any excuse for incurring the risk

of causing death or such injury as aforesaid.

Illustration

X knows that Z has a tumour in his brain and he hits him

again and again with a bat on his head with the intention

of causing death, and Z dies subsequently. X is liable for

Murder.

Exceptions to Section 300 of the Indian Penal Code 1862

Culpable homicide amounts to murder when the act is

done with the intention of causing death but in the cases

mentioned below this principle doesn’t apply. The

following acts can amount to culpable homicide not

amounting to murder. Exceptions 1-5 in the (d) and (f)

illustrations of section 300 of the IPC define conditions

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when culpable homicide is not amounting to murder, these

are as follows-

It is not culpable homicide amounting to murder if it is

committed by a person who gets deprived of the power of

self-control and causes the death of someone because of

a grave and sudden provocation.

It is not culpable homicide amounting to murder when the

offender causes the death of someone while exercises his

right of private defense of person and property in good

faith

It is not culpable homicide amounting to murder if a public

servant causes someone’s death while performing his

duties and in good faith and he believes that his acts were

lawful.

It is not culpable homicide amounting to murder if a

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person causes the death of someone commits it in a

sudden fight in the heat of passion upon a sudden quarrel

· It is not culpable homicide amounting to murder when a

person suffers death with his own consent when he is

above 18 years of age.

Essential Ingredients:

Culpable Homicide not amounting to Murder According to

the definition provided under Section 299 of the Indian

Penal Code, there are majorly 3 essential ingredients to

prove that the person is liable for culpable homicide not

amounting to murder. These are-

o The intention of causing death.

o The intention of causing such bodily injury as is likely to

cause death.

o With the knowledge that he is likely by such an act to

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cause death

Culpable Homicide amounting to Murder

According to the definition provided under Section 300 of

the Indian Penal Code, there are majorly 4 essential

ingredients to prove that the person is liable for culpable

homicide amounting to murder. These are-

o The intention of causing death.

o The intention of causing such bodily injury as the

offender knows to be likely to cause the death of the

person to whom the harm is caused.

o With the intention of causing bodily injury to any person

and the bodily injury intended to be in-flicted is sufficient in

the ordinary course of nature to cause death.

o The person committing the act knows that it is so

imminently dangerous that it must, in all probability, cause

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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.

o Culpable homicide by causing the death of a person

other than the person whose death was intended.

o The notion of ‘culpable homicide by causing the death

of a person other than the person whose death was

intended’ is enshrined in Section 301 of the Indian Penal

Code which states that:

A person commits culpable homicide when he causes the

death of another person while trying to kill the other

person. Here the intention of the person who killed or

grievously hurt any other person whom he didn’t want to

kill or hurt is not considered.

Illustration:

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Let’s consider, there was Mr A who was angry with Mr B

as he took over his business. He plans to kill Mr B. In

order to achieve that he Buys a gun.He spots Mr B on the

street. He takes out his gun and shoots Mr B. Accidentally

the bullet deflects because of a pole and eventually kills

Mr C. Now according to the law, Mr A has committed

culpable homicide.

It is also regarded as the principle of transferred intent or

transferred knowledge or doctrine of the transfer of

malice.

Case Laws:

This is not a new piece of legislation, it dates back to the

British era. In the case of R. v Latimer (1886) a person

got into a fight and in course of the fight, to beat the man
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he took out his belt and struck the belt but it rebounded

and hit a lady, she was grievously injured. The court held,

The defendant is to be held liable for the injuries inflicted

on the woman ignoring the fact that he had no intention to

harm her. The mens rea has transferred to the woman

from the man he was going to hit with his belt. This piece

of legislation is so confusing that some courts tend to

forget that this type of law even exists, it is evident from

the case of Rajbir Singh v. State of U.P..

Herein the Supreme Court came thrashing on the

Allahabad High Court for not considering Section 301 of

the Indian Penal Code in the present case. In this case, a

girl died of a bullet which was fired on another person.

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The High Court stated in its decision that there was

mistake involved and there was no intention of the

accused to kill the girl. The supreme court held that the

intention of the accused should be ignored in the present

case. The court also held that the Allahabad High Court’s

reasoning behind stating the act as an accident is not to

be sustained as their reasoning was erroneous. Ultimately

he was held liable for his actions.

Punishment:

As we know there are two types of culpable homicide

according to the Indian Penal Code 1862. Culpable

homicide not amounting to murder (Section 299 IPC) and

culpable homicide amounting to murder (Section 300

IPC). Hence there are two different provisions regarding

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the punishment for both the offences mentioned in the

Indian Penal Code.

Section 304 of IPC

Section 304 of the Indian Penal Code provides

punishment for culpable homicide not amounting to

murder (Section 299 IPC), it states that whoever causes

death with intention or causes such bodily injury as is

likely to cause death or with the knowledge that death is

likely to be caused because of the act, shall be liable for

life imprisonment or imprisonment of either description for

a term which may extend to ten years, and shall also be

liable to fine (Section 304(1) IPC).

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Secondly, whoever causes death without the intention of

causing death or such bodily injury as is likely to cause

death or doesn’t have the knowledge that his act could

cause death shall be sentenced to imprisonment of either

description for a term which may extend to ten years, and

shall also be liable to fine(Section 304(2)IPC).

If the act which causes death is done without the intention

of causing death but with the knowledge that death is

likely to be caused by such act, the person shall be

sentenced to imprisonment of either description for a term

which may extend to ten years, and shall also be liable to

fine.

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 o Case Law

In the case of Shanmugam v. State of T.N., it was held

that offences under Section 304 can be considered as

cognizable, non-bailable and triable by the Court of

Sessions. In this, there arose a quarrel between the

accused and the deceased In course of the quarrel the

accused stabbed the deceased with a spear in the

abdomen and the chest resulting in the death of the victim

because of septicemia. The accused was sentenced to life

imprisonment under part I of Section 304 of IPC.

If we see in this case that Exception 4 under Section 300

applies here. Hence, it would come under Section 299 of

the IPC. Part 1 of Section 304 was attracted because it

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was clear from the facts that there was a clear intention to

cause death or cause such bodily injury which is likely to

cause death.

o Section 302 of IPC

Section 302 of the Indian Penal Code provides

punishment for murder or culpable homicide amounting to

murder (as stated in Section 300 of IPC), it states that

whoever commits murder shall be liable for life

imprisonment or death penalty and he shall also be liable

for a fine too.

o Death penalty under Section 302

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However, death penalty can only be given in rarest of the

rare case this was held in the case of Bachan Singh v.

State of Punjab wherein it was observed that when the

court can avail the recourse of life imprisonment then why

the court has to go for such an inhumane punishment like

death penalty. The Indian Judiciary has defined certain

conditions in which death penalty could be used as a

recourse these were laid down in the Machhi Singh And

Others v. State Of Punjab which are as follows:

o When the murder committed is extremely brutal,

ridiculous, diabolical, revolting, or reprehensible

manner which awakens intense and extreme

indignation of the community. For instance, setting

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 someone’s house on fire with the intention to burn

them alive;

o The magnitude of the crime is at a large scale

which means causing multiple deaths;

o When death is caused because of the caste and

creed of the person;

o When the motives of the accused were cruelty or

total depravity; and

o When the murder victim is an innocent child, a

helpless woman or person (due to old age or

infirmity), a public figure, etc.

But it is still subjective to determine what is rarest of the

rare and what is not. Hence it leaves an ambiguity that in

what cases can the death penalty be applied and with

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recent developments in the Mukesh & Anr vs State For

Nct Of Delhi & Ors (Nirbhaya case) where all the

accused were sentenced to death penalty, made this topic

the epicenter of several heated debates across the

country, the major question raised is that like other

countries why can’t India sort to abolish the death penalty

when there is a recourse like life imprisonment present

with the judiciary.

· Illustrations

Section 299 IPC (Culpable Homicide not amounting

to Murder)

A, dig a deep pit and cover it with grass and clay, with the

intention of causing death or with the knowledge that

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death is likely to be caused. B thinking it as a hard ground

tries to stand on it and dies. A is liable of Culpable

Homicide not amounting to Murder.

A paid a truck driver to slam his truck on the car of C, he

did it with the intention of causing death or with the

knowledge that death is likely to be caused. C went to the

market to buy groceries. The truck crashes with his car, C

dies. A is liable of Culpable Homicide not amounting to

Murder.

A not knowing that D has a tumour in his brain, hits him

hard on the head with a cricket bat, with the intention of

causing death or with the knowledge that death is likely to

be caused. D dies because of the bursting of the tumour.

A is liable of Culpable Homicide not amounting to Murder.

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· Section 300 IPC (Culpable Homicide

amounting to Murder)

o X shoots Z with a shotgun on the point-blank

range with intention to cause death, and Z dies

subsequently. X is liable of Murder.

o X knows that Z has a tumour in his brain and he

hits him again and again with a bat on his head with

the intention of causing death, and Z dies

subsequently. X is liable for Murder.

o X starts firing a machine gun in a crowded mall

with an intention of causing death, and subsequently

killing 10 people. X is liable for Murder

· Exceptions of Section 300 IPC

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o X on coming home finds that his wife is sleeping

with A. He causes the death of A by stabbing him

with a knife under grave and sudden provocation. X

Is not liable under Section 300 of IPC.

o X was attacked by thugs who had guns with them,

X in private defence kills all the thugs with his

licensed gun. X is not liable under Section 300 0f

IPC.

o X is a Police Officer, one day when he was on

duty, he saw some robbers entering a house with

weapons, X encounters the robbers and kills them

assuming that they would harm the residents of the

neighbourhood. X is not liable under Section 300 of

IPC.

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o X and Y had a dirty fight, X in a fit of rage punches

Y so hard on the stomach that Y starts bleeding

internally and dies. X is not liable under section 300

of IPC.

o A who’s an adult instigates B to jump from a ten-

story building, B being under 18 and not being able

to comprehend what A was up to does the same and

Dies, here A is liable for Abetted Murder

· Section 302 IPC

o A with the intention of killing B shoots at him but

the bullet deflects because of bad aim and kills C. A

is liable of culpable homicide under article 301 of

IPC.

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 o A was driving his car, under the influence of

alcohol he was driving at a speed of 150 kmph, he

loses control and

o ramps the car on a footpath killing almost everyone

sleeping there. A is liable for culpable homicide

under article 301 of IPC.

MURDER

In layman’s language the unlawful killing of a human being with

malicious intention by another human being is known as murder. It

may sound easy but under the Indian Penal Code murder has more

vast meaning than just killing. Its definition is very similar to that of

Culpable Homicide yet it differs by a few ingredients. To determine

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exactly what kind of homicide has taken place the circumstances

and state of mind of the accused is to be considered.

A person can be killed out of the hands of some other person by a

number of ways. There might be certain instances where the

accused didn’t intend to kill them; there can be accidents,

negligence etc. To help the investigators determine which death of

human being can be considered as murder, the statute provides

the definition of murder under IPC. It specifies exactly when and in

what circumstances it can be said that it was a murder and not just

any other homicide. There are certain exceptions to it are also

embodied under the Section 300 of IPC.

· Definition of Murder
The definition of murder under Section 300 mentions the cases of

culpable homicide that can be called as murder. Those cases are:-

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o Act by which death is caused was done with intention of
causing death
Here action also includes intentional omission. Where a child was

very ill and his family members refused to take him to the hospital

for providing necessary treatment, as a result the child dies. Such

a case shall be called as murder.

o Having intention to cause bodily injury which is likely to

cause death
Here the offender has the intention to cause bodily harm and

knowledge that by his act death will be caused. This clause may

include those cases where the victim was suffering from a trauma

or disease that the offender knew about and used it as an

advantage by inflicting bodily injury which resulted in death of that

person, what may not have caused death of a normal person.

o When injury is sufficient to cause death in the ordinary

course of nature

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For this clause the offender must have intention and would’ve

caused a bodily injury that is sufficient enough to cause death to

any other person in ordinary course of nature.

o Having the knowledge of the dangerous at

Where the offender doing the act knows the gravity of his actions

that it will, in all probability, will cause death of the person or the

bodily injury that is inflicted is likely to cause death, and still

commits such act without any prominent excuse for causing death

or such injury. This is applicable on cases of dangerous action

without any intention to cause specific injury. For e.g., rash driving.

The four cases mentioned above are the culpable homicides that

are considered as murder. All the other remaining cases continue

to be culpable homicides. All culpable homicides are murder but

not all murders are culpable homicides.

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· Exceptions
Though the definition of murder is subject to some exceptions that

are in the following circumstances the death cannot be called as

murder.

· Provocation
This happens when a person is forced to kill another human being.

The act should be done according to the will of the some other

person. Also it is important that there should not be sufficient time

between the prosecutions. These exceptions are also used as

partial defence if all the following conditions are fulfilled:-

a. There should be provocation

b. Grave and sudden provocation,

c. Due to such prosecution the person has no self-control.

d. The death of a person has been caused by mistake or accident.

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· If done under the ambit of private defence
Where a person kills another while protecting their own life or

property it shall not be considered as murder. Provided the person

who got killed must be doing an act which was out of his rights

given by the law and infringing the rights of the accused. There is

no intention to cause death in cases of private defence. If intention

is present does not remain an exception anymore and the accused

will be punished.

· Public Servant
If the offender is a public servant who only acted for public justice,

but exceeded the power given to him by law and then caused the

death of a human, in good faith. Also if he believes what he did was

lawful and necessary for him to do under his duty as a public

servant. This act by the public servant should be without any ill-

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intention. In a case a police constable fired at reapers under the

orders of a superintendent of police, it was found there was no

necessity for public security to disperse those reapers by firing

upon them. They were charged for murder.

· Death caused in a sudden fight

For this exception, the death should be caused in a sudden fight

without any premeditation due to the heat of a sudden quarrel.

Keeping in mind the accused should not have crossed any line. It

does not matter who started the fight, it just have to be with the

person who got killed. Here the fight is between two or more

persons, with or without weapons.

· Punishment for Murder

According to Section 302 of IPC the punishment for murder is the

death penalty or imprisonment for life and also liable to pay fine.

Though in very rare cases the court the court resorts to providing

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death penalty for murder. Life imprisonment is the rule and death

penalty is an exception in the offence of murder. Before giving

death penalty a proper explained reason should also be given as

to why such type of penalty is being given. This is mentioned under

Section 354 (b) of Criminal Procedure Code, 1973. Each and every

aspect is considered before giving such a penalty. The Death

penalty should only be provided in rarest of rare cases . If it is seen

that the offender is grieved by his acts and is willing to atone for his

sins then the court has the power to substitute his sentence for the

death penalty to imprisonment for life.

But if the sentence of the death penalty is taking time in execution

the punishment cannot be changed into life imprisonment. In cases

where the trial courts and the High Courts are not in consensus in

the decision as to what punishment should be given, in such

instances imprisonment of life is provided.

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The punishment should also be given after considering all the

shreds of evidence, circumstantial evidence, witness statements,

placement of injuries, etc. in a case the husband had doubts about

his wife that she might be cheating on him. One day while she was

working in the fields with her 12 years old daughters he told both of

them to follow him to the river to wash clothes. Later after this, both

mother and daughter were found dead. The husband was

convicted for murder.

· Murder by life Convict

A life convict is a person who is guilty of a crime and sentenced to

imprisonment for life by the court. Hence in Section 303 IPC, it talks

about cases where murder is committed by a person already going

through the life imprisonment sentence. It is only applicable to the

people convicted under Section 302 read with Section34 or Section

302 read with Section 149.

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The Section states that if a person going through the sentence of

imprisonment of life commits murder, then he shall be punished

with the death penalty. This section is making capital punishment

necessary for a person who even after being convicted for the

imprisonment of life commits murder.

In a case, the Supreme court had said where a person is

undergoing a sentence of imprisonment of life for murder and is

released as by remission then that person is no longer under the

sentence of life imprisonment. The murder committed during the

remission period will not be taken into consideration while giving

punishment under this section. Hence the accused shall not be

given life imprisonment.

(ii) Kidnapping and Abduction

I. Kidnapping

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The meaning of kidnapping is not given as such, but the kinds of

kidnapping are provided in the code. This will help us understand

the actual sense of what kidnapping is. So according to section

359[2], kidnapping is of two types, one being “kidnap from India”

and the other being “kidnap from lawful guardianship”. Each of

them is separately provided in IPC.

Kidnapping is of two kinds: kidnapping from India, and kidnapping

from lawful guardianship”

· Kidnapping from India

Section 360 deals with kidnapping from India, which uses the

terms “beyond the limits of India”. So here, a person conveying is

crossing the boundaries

360 Kidnapping from India—Whoever conveys any person

beyond the limits of India without the consent of that person, or of

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some person legally authorized to consent on behalf of that

person, is said to kidnap that person from India.

The person kidnapping must go beyond the limits of India to be

held convicted under this section. Further, it is not mandatory that

they reach their destined location in foreign territory for conviction.

And if a person is caught hold before crossing the boundary, then

that will not lead to the conviction under this section but will be

treated as an attempt to commit the kidnapping from India.

To know what constitutes India, the penal code has defined the

same under section 18. It includes the territory of India, excluding

the state of Jammu and Kashmir. But as the article 370 has been

abrogated, the laws of IPC, CrPC and other central laws would be

applicable upon the state too.

This act of taking or kidnapping a person away from the territory

of India is made a separate offense as it would be forceful

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removal of a person beyond the jurisdiction of India, and Indian

law enforcing officials. The other important point would be

“consent”. It requires that such acts must be done without the

consent of the person who is being kidnapped or of the guardian

who is lawfully authorized to give consent. This means this

section is applicable to both minors as well as legally major

people.

· Kidnapping from Lawful Guardianship

Section 361, defines the offense of kidnapping from lawful

guardianship

“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,

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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”

Explanation – The words “lawful guardian” in this section include

any person lawfully entrusted with the care or custody of such

minor or other people.

· Exception – This section does not extend to the act of any

person who in good faith believes himself to be the father of an

illegitimate child, or who in good faith believes himself to be

entitled to the lawful custody of such child unless such act is

committed for an immoral or unlawful purpose” This section is

mainly applicable to those who are not legally authorized to

consent on their own. That is the person being kidnapped must be

minor or as per the age requirement provided in the section itself.

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There is a similar law in England which is termed as the ‘child

stealing’ under the ‘Offenses against the Person Act 1861’. In

India, this law was made to protect minors and persons with

unsound mind from such kidnapping.

· Essentials of the Offence

The following are the essentials of the offense of “kidnapping from

lawful guardianship”-

1. Taking or Enticing away a minor or a person of unsound mind.

2. If a male – under 16 years of age and if female – under 18

years of age.

3. Such taking or enticing must be away from the lawful

guardian’s kee.

4. It must be done without the consent of such a lawful guardian.

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If the above essentials are fulfilled the person can be made

convicted under this section for kidnapping from the lawful

Guardianship.

· Taking or Enticing

As the definition of both the words taking and enticing has not

been denied under the code. The word taking does not mean a

forceful act. It implies no active or constructive force. Hence the

act requires that while taking, there must be no consent.

Further, the consent of a child is not valid. However, the force is

not an issue, and there must be some overt act done by the

accused to take or to persuade the minor or unsound minded

person to go along with the accused or be taken away by the

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accused. The word enticing means to persuade or to allure or

offer a desirable thing.

The law requires there must be a successful inducement for the

purpose of conviction under this section. Further if a minor is

induced by the promise of marriage and is made to leave the

guardian’s home is said to be an enticement for the purpose of

this section.

In the case of S Varadarajan v. the State of Madras, AIR 1965

SC 942, where the court studied the fact that the girl who is on the

verge of almost attaining majority, had voluntarily left the father’s

house. She got married to the accused at a registered offense.

The court found that there was no active role played by the

accused to persuade her to leave the house. This was the core of

the conviction; then the court was satisfied that such an act was

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not an offense under section 361.

To understand the above ruling, it can be compared to another

case which is State of Haryana v. Raja Ram, AIR 1973 SC 819.

In this case, there was a minor who was 14 years old, met a

person accused, and became friendly to him. The father of the

victim had warned him not to talk to her daughter. But the

accused used the third person to talk to her, persuading her to

leave her home and meet him. When she met him, he seduced

her and had committed rape as she was a minor. When the

supreme court was put with a question as to whether this would

amount to kidnapping from the lawful guardianship, the court

replied yes. It stated that the section does not require any force or

fraud to be committed. The active role played by the accused to

persuade her to leave her lawful guardian’s place itself attracted

the section. Hence he was made liable under section 361.

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· Age of the Minor

As the code had specified the age for both male and female who

can be a victim under this offense, now it is the duty of the

prosecution to prove that at the time of the commission of the

offense the age of the victim was below 16 years if it is a male

and below 18 years if it is a female.

· Keeping of Lawful Guardian

The section uses the term, lawful guardian and not legal guardian

who makes the ambit of such guardianship to be wider. Which

would include not only parents but also others like teachers,

relatives, etc., who are lawfully entrusted with the duty of care of

such minor or unsound minded person.

Further, what is keeping a lawful guardian, has been explained by

the court of law as to be under protection, control, or

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maintenance. It is not enough if there is merely physical presence

absent. It requires the minor to be beyond the parent’s control.

· Consent

Consent is the main essential which might help the accused in

getting away with the criminal liability of such ounces. Thus, it

must be proved that the guardian has not consented to take away

and a minor’s consent if no valid consent. Further, if a guardian

has consented after the act of kidnapping, then it is totally

irrelevant.

· Exception

There is also an exception to this section which says if anyone

acts in good faith, either believes to be a parent of a child whom

he believes to be an illegitimate child. Or if he acts in good faith

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with the belief that he is the lawful guardian of that child. Now the

aspect of good faith will depend upon the facts and circumstances

of each case.

· Punishment for Kidnapping

Section 363 provides for the punishment for the offense of

kidnapping under section 360 or section 361.

“363 Punishment for kidnapping—Whoever kidnaps any

person from India or from lawful guardianship, shall be punished

with imprisonment of either description for a term which may

extend to seven years, and shall also be liable to fine”

II. Abduction

The offense of abduction is dependent under section 362. As we

see the definition, abduction is not an offense; however, if it is

accompanied by the intention to commit such a crime. Hence, if a

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person assaults, is doing so with an intention to abduct, then it is

an offense under this section. Without such intention, abduction

cannot be punishable.

“362 Abduction—Whoever by force compels, or by any deceitful

means induces, any person to go from any place, is said to

abduct that person”

· Essentials

The section requires that there must be

1. Force or Deceitful Means: For conviction under this section, the

law requires there must be the use of actual force and not a mere

threat to show force. But when a victim is threatened with a pistol

to make her go along with the accused is said to be abducted

under this section. Further, if a person uses deceitful means in

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alternative to abduct a person is also said to be an offense under

this section.

2. To Go From a Place: In the offense of Abduction, the

movement of a person being abducted is necessary. Abduction is

a continuing offense and requires not only moving the victim from

one place but also the one being moved from one place to

another. If a kidnapped victim escapes the kidnappers and when

found a police constable, he instead of helping her, keeps her

with him until he receives money from her mother to hand her

over. This act too was said to be an abduction as defined under

this section. If a victim is handed over many times to different

persons, then each of such persons becomes liable for abduction

if there is intention.

(iii) Theft and Extortion

Theft
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Theft is defined under Section 378 of The Indian Penal Code as,

any person intending to take any movable property without

honesty, out of the possession of any person without that

individual’s consent, moves that property in order to such taking is

said to commit theft.

· Essential Ingredients

(i) There must be a dishonest intention of an Individual

to take that property.

(ii) The property being taken away has to be movable.

(iii) Such a property must be taken away from the owner

(iv) The property has to be taken away from the

possession of an individual. In other words, there has to

be a possession of that property by someone.

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 (v) Such a property has to be taken away without the

consent of such an individual.

· Dishonest Intention

It is also called as malafide intention which can be represented in

the form of mens rea. This is the core element of the theft. The

petitioner has to prove that something was taken away by

someone with a dishonest intention.

However, intention acts as a mental element in this case which is

difficult to prove but evidence according to the circumstances of

the case is considered for this purpose. The main measurement

of dishonest intention is to make a wrongful loss to another

person then such an act is considered to be done with dishonest

intention.

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· Movable Property

The subject of the theft is movable property. Immovable property

cannot be stolen. Movable property is that type of property which

is able to move easily and is not stationary or which is not

immovable. On the other hand, the kind of property which cannot

be moved and is attached to the Earth is considered as

immovable property, and it is not the subject of theft. It becomes

the subject of theft when it is taken off from the surface of the

Earth.

· Such a property must be taken away from the owner:

The movable property must be in the possession of another

individual from where it is taken away. There is no theft of wild

animals, birds or fishes while at large but there is a theft of

animals which are owned by someone.

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· Illustration

Ace finds a locket lying on the road which was in the possession

of someone. An ace by taking it commits no theft, though he may

commit criminal misappropriation of property.

The property has been taken away without the consent of the

owner The consent can be either expressed or implied and it may

be given by either of the persons involved in possession or by any

individual having for some purpose expressed or implied

authority.

· Illustration

Ace has friendly terms with Zoey, he goes into Zoey’s room in her

absence, and takes away a book without her express consent for

the purpose of merely reading it (with the intention of returning it)

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Here it is probable that Ace might have conceived that he had

Zoey’s implied consent to use her book. If this was Ace’s thought

then Ace has not committed theft.

Pyarelal Bhargava v. State AIR 1963,

In this case, a government employee took a file from the

government office and presented it to someone else, and brought

it back to the office after two days of taking it away. It was held in

this case that permanent taking away of a person’s property is not

essential, even a temporary takeaway of the property with

dishonest intention is enough to constitute the offence of theft.

· What is the Punishment for theft?

The Punishment for the offence of Theft is defined under Section

379 of the Indian Penal Code which states that anyone who

commits theft will be pun-ished with imprisonment of either for a

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term which can be extended to a period of three years either with

fine, or with both.

· Theft in Dwelling House

Theft in Dwelling houses is defined under Section 380 of the

Indian Penal Code, it states that, Any person who commits the

offence of theft in a building or a vessel which is used for the

purpose of Human dwelling or is being used for the custody of the

property will be punished with an imprisonment of a description

for a term of seven years (maximum) and it can be less than that

also and he shall also be liable to fine.

The word dwelling house means a building or a vessel which is

being used by a person for living or remains there permanently or

even temporarily. Such as A railway waiting room is a building

which is used for human dwelling. Theft of articles from the roof of

a house can fall under the section.

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Extortion

Under the Indian penal code, the term extortion has been defined

explicitly and how it is constituted. Section 383 of the indian penal

code states that if a person intentionally puts another person in a

position of fear or of threat to cause him injury, or deceitfully

persuade him so that he may deliver the property or any other

valuable goods to another person or any document which has

been signed and can be turned in a valuable security. Punishment

regarding extortion is enshrined under section Section 384 of the

Indian penal code.

· Essentials of extortion

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(i) An act which causes imminent threat and injury to a

person.

(ii) The act must be done intentionally and deceitfully.

(iii) Such a person tends to cause injury to another

person in which he seeks interest.

(iv) An unreasonable force should be shown through

which a person seeks to take the property or any other

valuable goods of another person or any document.

(v) So it can be concluded if a person commits an

offence which includes the all the following points as

mentioned above then the offence committed is known as

extortion.

(vi) Intention plays an important role. The gravity of such

dishonest intention upon the facts and circumstances of a

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 case. For example, if A takes any valuable stuff from B at

point of a gun, then a is an offence of extortion

· Illustration

If A who kidnapped B’s child Z, demands a sum of 10,00,000 Rs.

from B. all the efforts made by B in order to know the

whereabouts of his child turned out to be futile. B with all the

failed attempts to pay the prescribed amount to A. A has

committed the offense of extortion.

Queen v. Nathalirc Mirad, [(1844) 7 WR Cr 28]

In the instant case, the bishop was threatened in order to expose

his illegitimate relationship with a woman. This act was

considered an offense of extortion

Romesh Chandra Arora v. The State (AIR 1960 SC 154)

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In the instant case, a boy and a girl were compelled by the

accused to take off their clothes. While they were naked several

photographs were taken by him. Later these photos were used by

the accused in order to extort money from them. This act was

considered to be an offence of extortion.

· Punishment regarding the offense of extortion (section

384 of IPC)

Under section 384 of the Indian penal code punishment or

extortion has been prescribed. A person committing such offence

shall be punished with imprisonment of 3 years or with fine or

both.

(iv) Robbery and Dacoity

Robbery

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· Essential Ingredients of Robbery

Section 390 of the Indian Penal Code, 1860 says that in all

robbery there is either extortion or theft. The Black law’s

dictionary defines robbery as the felonious act of taking the

personal property of another from a person or immediate

presence against his will accomplished by using force and fear,

with the intention of permanently depriving the owner of the thing.

· Causing Death, Hurt or Wrongful Restraint or Fear

· Death, hurt, wrongful restraint or fear can be caused when

theft is a robbery or when extortion is robbery. These two are

explained below with the help of illustrations.

· When theft is robbery?

Theft is a robbery when in order to commit theft, the offender

voluntarily causes or attempts to cause to any person death,

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subject him to wrongful restraint, cause hurt or induce fear of

instant death, instant wrongful restraint or cause instant hurt.

Theft can be called as a robbery when the conditions given below

are satisfied:

· When the offender voluntarily attempts to cause death;

· wrongful restraint;

· fear of instant death;

· instant wrongful restraint;

· instant hurt.

And the above acts are done:

· while committing the theft,

· While carrying away the property acquired by theft, or

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· While attempting to carry away property.

For example, if A holds B down and fraudulently takes B’s money

from B’s clothes without B’s consent. Here A has committed theft

and by committing theft he has voluntarily caused wrongful

restraint to B. Therefore, A has committed robbery.

· When extortion becomes robbery

Extortion becomes robbery when the person committing the

offence of extortion put the other person in fear and commits

extortion by putting that person in fear of death, instant wrongful

restraint to that person or to some other person and by doing so

induces the person so put in fear then and there deliver the thing

that has been extorted.

For example, if A meets B and B’s child is on a road. A takes the

child and threatens to fling it down a height unless B delivers his

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purse. B delivers his purse. Here A has extorted the purse from B

by causing B to be in fear of instant hurt to the child who is

present. A has therefore robbed B. However if A obtains the

property by saying that your child is in my hand of my gang and

he/she will be put to death unless you send us ten lakh rupees.

This will amount to extortion, and punishable as such, but it would

not be considered as robbery unless B is put in fear of instant

death of his child.

· Possession of Stolen Property

Property is an important part of the law. Section 410 to Section

414 of the India Penal Code talks about the concept of stolen

property. Section 410 of the Indian Penal code defines it as when

a person transfers his/her property to another person. It can

happen by way of theft, extortion or robbery. It includes all kinds

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of properties which a person can misappropriate for criminal

breach of trust.

These kinds of instances related to the property are known as

stolen properties. Section 410 of the Indian Penal Code also says

that if a person transfers the property by using any of the means

given below that will be considered as stolen property. These

means are:

Theft;

Extortion;

Robbery;

Criminal misappropriation;

Criminal breach of trust.

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Section 411 of the Indian Penal Code says that any person who

dishonestly possess or retains the property will be punished with

at least 3 years of imprisonment, fine or both.

· Punishment for Robbery

Indian Penal Code, 1860 deals with all kinds of punishments

related to criminal law . Under Section 392 of this code, the

punishment for robbery is defined. This section says that any

person who commits robbery shall be punished with imprisonment

which may be extended up to ten years and shall also be liable for

fine.

Further, this section says that if a person commits a robbery on a

highway then the term for imprisonment will be of 14 (fourteen)

years. Section 393 of the Indian Penal Code defines the

punishment for an attempt to commit robbery. The punishment for

this is imprisonment for up to 7 years and also liable for fine

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· Punishment for Being a Member of Gang of Robbers

Section 412 of the Indian Penal Code deals with the punishment

for being a member of a gang of robbers. This section deals with

the person who retains or receives stolen property the possession

of which he/she knows that it is due to the commission of a

dacoity. It further says that when a person receives from another

person whom he or she knows or has justification to believe that

property belongs to a group of dacoits, and knows or has reason

to believe that the property have robbed or stolen.

For all such people, the punishment is imprisonment of life or with

a rigours term which can be extended to 10 years. This section

punishes everyone who receives any property which has been

acquired by the commission of dacoity.

· Attempt to Commit Robbery

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Attempt to commit robbery has been defined under Section 393 of

the Indian Penal Code, 1860. It explicitly says that any person

who attempts to commit robbery will be punished with rigorous

imprisonment whose term can be extended to 7 years and he or

she will also be liable to pay the fine.

· Dacoity (Aggravated Form of Robbery)

Aggravated form of robbery not only includes robbery but it also

includes theft and serious injuries to the victim. When five or more

than five persons commit or attempt to commit a robbery that is

known as dacoity. It is more of an aggravated form of robbery and

generally, the robber is armed with deadly weapons.

Dacoity is defined under Section 391 of the IPC and the

punishment for it is defined under Section 395 of the IPC. The

only difference between robbery and dacoity is a number of

participants. Section 395 punishes every member of the group in

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dacoity whether that person takes an active part or not. The

punishment under this section is imprisonment up to 10 years with

fine.

Dacoity

According to the dictionary of oxford, dacoity means an act of

violent robbery which is committed by an armed gang. There is

only one factor which differentiates dacoity from robbery and that

is the number of offenders. One person can also commit a

robbery and more than 1 person can also commit robbery. But

when 5 or more than 5 commit a robbery it is termed as dacoity.

Section 391 of the Indian Penal Code defines robbery. It says that

when 5 or more than 5 conjointly commit or attempt to commit a

robbery, or where the whole number of persons conjointly

committing or attempting to commit a robbery, and persons

present and aiding such commission or attempt, amount to five or

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more, every person so committing, attempting or aiding, is said to

commit “dacoity”.

· Essential Ingredients

In order to commit dacoity, there are 3 essentials which must be

there. These essentials are:

· There should be at least five or more than five persons;

· They should conjointly commit or attempt to commit dacoity;

· They should have dishonest intention.

· Sentence for Dacoity

Punishment for dacoity is defined under Section 395 of the

Indian Penal Code, 1860. This section says that a person who

commits dacoity shall be punished with imprisonment for life, or

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 with rigorous imprisonment for a term which can be extended to

ten years, and shall also be liable to pay the fine. This offence

is cognizable, non-bailable, and non-compoundable in nature.

The State vs Sadhu Singh and Ors in this case, four and one

kurda Singh was involved in committing a dacoity. They all were

armed with deadly weapons such as rifles and pistols. They

committed a robbery at the house of gharsiram. They injured

Gharsiram, jugalkishore, Sandal and Jugalkisore. The dacoits, in

this case, tried to take a wristwatch and a shawl of one person but

as they were villagers the dacoits were not able to take anything

with them. When dacoits started running from the villagers they

received a hot chase from them and in return dacoits shot a fire.

As a result, dharma, one of the villagers died but the villages

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captured one of the dacoits. In this case, the dacoits were

charged under Section 395 of the Indian Penal Code.

· Aggravated form of Dacoity

Aggravated form of dacoity is defined under Section 396 of the

Indian Penal Code, 1860. Under Section 396 aggravated form is

defined as dacoity with murder. It says that if anyone of five or

more than five persons, who are conjointly committing dacoity,

commits murder in so committing dacoity, every one of those

persons shall be punished with death and shall also be liable to

fine.

· The ingredients of Section 396 are:

The offence of dacoity must be committed with the joint act of the

accused persons; Murder must be committed in course of the

commission of the dacoity.

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If anyone of the five or more persons who is committing robbery

commit murder while committing dacoity then, every one of them

will held liable for murder even if some of them did not participate

in committing the murder. Under Section 396 of the IPC, it is not

necessary to prove whether the murder was committed by a

single person or it was committed by all of them. It is also not

necessary to prove the common intention. The prosecution is only

required to prove that the murder was committed while committing

the dacoity. If the prosecution successfully proves that the murder

was committed while committing dacoity, then all of the members

will be punished under Section 396 of the IPC.

If the offenders are running and while chasing them if one of the

dacoits kill someone then the other members of the gang can not

be held guilty under Section 396 of the IPC. In one of the

landmark case laws i.e. Laliya v state of Rajasthan it was

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observed that whether the murder is a part of dacoity or not, it

totally depends on the circumstances of that time.

The court decided that attention has to be paid on these points

before coming to a conclusion. These points are:

· Whether the dacoits retreated or not and the murder was

committed while retreating or not?

· What is the time interval between the attempt of murder and

dacoity?

· What is the distance between the places where they attempt to

murder and attempt to dacoity was committed?

In one of the cases i.e. in Shyam Behari v. State of Uttar

Pradesh, the dacoit killed one of the victims, who had caught the

robber’s associate in an attempt to commit dacoit. The robber was

convicted under Section 396 of IPC because any murder

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committed by the dacoits during their fight would be treated as

murder.

Offences Connected with Dacoity

Before committing any offence intention plays a very important

role in it. Under criminal law, the intention is known by Mens Rea.

Mens rea means guilty of Mind. For every criminal offence, there

should be Mens rea on the part of the offender. If put in other

words it means that there has to be intention to commit a crime.

The term “Intention” has not been explicitly defined under the

Indian Penal Code, 1860 But under IPC Section 34 of it deals with

common intention.

Section 34 of IPC defines acts done by several persons in

furtherance of common intention. This section says that “when a

criminal act is done by several persons in furtherance of the

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common intention of all, every such person is liable for the act in

the same manner as if it were done by him alone.”

This section requires a particular criminal intention or knowledge

and the act should be committed by more than one person.

Everyone who joins the act with the knowledge of the

consequences, all of them should be made liable under this

section.

Preparation to Commit Dacoity

Section 399 of the Indian Penal Code, 1860 has talks about

preparation to commit dacoity. It says that whoever makes any

preparation for committing dacoity shall be punished with rigorous

imprisonment for a term which may extend to ten years, and shall

also be liable to fine.

Assembling for the Purpose of Committing Dacoity

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Assembling for the purpose of committing dacoity is defined under

Section 402 of the Indian Penal Code. It says that whoever, at

any time after the passing of the act, shall be one of five or more

persons assembled for the purpose of committing dacoity, shall

be punished with rigorous imprisonment for a term which may

extend to seven years and shall also be liable to fine.

Belonging to Gangs of Dacoits

Belonging to gangs of dacoits is defined under Section 400 of the

IPC. It says that anybody who at any time after the passing of this

act, shall belong to a gang of persons associated for the purpose

of habitually committing dacoity will be punished with

imprisonment for life, or with rigorous imprisonment for a term

which may extend to ten years, and shall also be liable to fine.

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Arjun Ganpat Sandbhor vs state of Maharashtra

In this case, a truck driver was killed and the truck was taken

away by the dacoits. This incident took place in darkness. The

evidence of the son of the deceased, who was in the truck at the

time when the accident took place was not free from doubt. He

admitted at that time that he used to have forgetting tendencies.

Test identification parade was not held according to guidelines

prescribed under the Criminal Manual. In the view of the totality of

the evidence the accused was entitled to acquittal.

Md Imamuddin & Anr. vs. State of Bihar

In this case, the plea was to reduce the punishment for dacoity.

Some of them were accused of committing dacoity in a running

train. They were sentenced to undergo rigorous imprisonment for

seven years and two years for respective offences. The accused

remained in custody for a substantial amount of time, about 50

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per cent of the punishment. Their punishment was reduced to half

and which they have already passed the time in imprisonment

Defamation:

Whoever, by words either spoken or intended to be read, or by

signs or by visible representation, makes or publishes any

imputation concerning any person intending to harm, or knowing

or having reason to believe that such imputation will harm, the

reputation of such person, is said, except in the cases hereinafter

expected, to defame that person. Section 499 defines the offence

of defamation with the help of four explanations, 10 exceptions

and a number of illustrations.

Explanation 1:

It may amount to defamation to impute anything to a deceased

person, if the imputation would harm the reputation of that person

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if living, and is intended to be hurtful to the feelings of his family or

other near relatives.

Explanation 2 It may amount to defamation to make an imputation

concerning a company or an association or collection of persons

as such.

Explanation 3 An imputation in the form of an alternative or

expressed ironically, may amount to defamation.

Explanation 4 No imputation is said to harm a person’s reputation,

unless that imputation directly or indirectly, in the estimation of

others, lowers the moral or intellectual character of that person, or

lowers the character of that person in respect of his cast or of his

calling, or lowers the credit of that person, or causes it to be

believed that the body of that person is in a loathsome state, or in

a state generally considered as disgraceful.

Ingredients.

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The offense of defamation consists of the following essential

ingredients, viz:-

1) Making or publishing of an imputation concerning a person.

2) Such imputation should have been made:

(a) By words either spoken or written or

(b) By signs or

(c) By visible representations.

3) The said imputation should have been made with intent to

harm or knowing having reason to believe that it will harm the

reputation of such person or defame him.

The section is aimed at protection of the reputation, integrity and

honor of the persons. The definition of offence contains three

important elements, viz:-

(i) The person

(ii) His reputation

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(iii) The harm to reputation of person with necessary men rea

(guilty mind).

If the imputation is defamatory per se, necessary men rea will be

presumed.

The offence of defamation is non-cognizable, bailable,

compoundable with permission of the court, and liable by the

Court of Session.

Imputation:

Implies an accusation which something more than an expression

of suspicion.

Some of the imputations that have been held to be defamatory

are: to call a man a drunkard, black marketer, goonda, a woman

of lose character, an illegitimate person, a trader as an insolvent,

a woman as having a paramour, imputation against the deceased

etc. Similarly words coward, dishonest man and something worse

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than either, and words to the effect that the complainant and other

were preparing to bring a false charge against the accused were

held to be defamatory.

It is immaterial whether the imputation is conveyed obliquely or

indirectly, orby way of question, conjecture exclamation or by

irony. Concerning any person The words must contain an

imputation concerning some particular person or persons whose

identity can be established. That person need not necessarily be

a single individual. A newspaper is not defamation and therefore

newspaper can’t be defamed. However defamation of newspaper

may in some cases refer to those responsible for its publication.

All those who compose, dictate, write or in any way contribute to

the making of a libel are liable for defamation. For example, if one

dictates, other writes and the third approves of what is written,

they are all makers of it and are jointly liable.

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The mechanic or the compositors of the press are not liable for

libel as they neither make nor publish the matter that might be

impug;ned as defamatory. Imputation by words either spoken or

written:

Under Indian law a person can be defamed by writing as well as

spoken words.

English law recognizes writing, printing and engraving as a

defamatory. Under English law spoken words never constitute

defamation. Imputation can be made by visible representation

also. The words ‘visible representation’ will include every

possible form of defamation that ingenuity can devise. Thus a

statute, a caricature, effigy, chalk marks on a wall, signs, or

pictures may constitute a libel, in addition to words spoken.

Publication:

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The defamatory matter must be published, that is communicated

to some person other than the person about whom it is

addressed.

Publication of defamatory matters in the newspaper. The

publisher of a newspaper is responsible for defamatory matter

published in the paper, whether he knew the contents of such

paper or not.

The sending of a newspaper containing defamatory matter by

post from Calcutta, where it is published, addressed to a

subscriber at Allahabad, is publication of such defamatory matter

at Allahabad. Imputation to harm reputation There must be an

intention and knowledge that the imputation will harm the

reputation. It is not necessary that actual harm should result.

Exceptions to section 499

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Section 499 provides ten expectations to the charge of

defamation. These are based on the ground of truth, good faith, or

public interest and strike a balanced behavior

freedom of speech and expression guaranteed under article 19

(1)(a) of the constitution and individuals right to reputation.

First Exception

Imputation of truth in the public interest for public good

To invoke this exception two conditions must be proved, namely:-

(i) that the alleged imputation regarding the complainant was true;

and

(ii) That its publication was for the public good.

If any one of the two conditions is not satisfied, Exception 1 would

not be attracted. Where a person makes a comment upon the

conduct of a public servant and it is for the public good; no action

will lie against him so long as the comments are honestly made

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and there is no willful misrepresentation (Chaman Lal vs The

State of Punjab (1970) 1 sec 590).

No amounts of truth will justify a libel unless its publication was for

public goods. The question of public good has to be considered

from the point of view of the good of the general public as

contrary to that of an individual.

Radha Govind Datta v. Saila Kumar Mukherjee AIR 1970 sc

1372.

In this case, the accused, an editor of a newspaper, published an

article in the form of a questionnaire referring to certain

defamatory allegations against the complainant contained in a

leaflet distributed a few days prior to the publication by him. The

questionnaire made direct imputation against the complainant but

merely stated that certain complaints had been received against.

The complainant called upon him to remove all doubts in the

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minds of the public by stating as to whether the complaints were

correct.

The honorable court has held that the questionnaire virtually

amounted to a publication of the defamatory statement contained

in the leaflet and the accused would be guilty of offense of

defamation unless he was protected by Exception I of section

499.

The journalist possesses no higher right, than an ordinary citizen

has in respect of freedom of speech. At the same time by virtue of

the special character of his profession, the journalist owes certain

duties to the public, the most important of which is the

dissemination of news and fully and truly expressed on matters

affecting public good. Second Exception Public conduct of public

servants deals with criticism of public servants. Any person

occupying a public position renders himself open to criticism for

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his actions while discharging his functions from the position he

occupies. Such a criticism must be made in good faith and it must

relate to actions of public servants. Good faith presupposes a

reasonable degree of care and caution in making an imputation

which on the far of it is defamatory. It does not merely imply

absence of ill will. In order that a comment may be fair

a) It must be based on facts truly stated,

b) It must not impute corrupt or dishonorable motives to the

person whose conduct or work is criticized except insofar as such

imputations are warranted by the facts.

c) It must be an honest expression of the writer’s real opinion

made in good faith.

d) It must be for the public good.

Fair criticism, however, does not justify a personal incentive since

an attack on a person’s private life is not privileged but sometimes

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a private question may become public one if the public is called

upon to support it. The whole character of a person can’t be under

public character alone is involved.

In Purushottam Vijay v. State of Madhya Pradesh, the High

Court of Madhya Pradesh, while observing that a newspaper

should be more cautious and careful than a private individual, has

stated the requirements of the defence available under the

second and third Exceptions to section499. These are

(i) The facts (on which the comment is offered) should be

substantially true;

(ii) The comments should be fair, in the sense that they are

inspired by a genuine desire on the part of the writer to serve the

public interest, and not by any intention of venting private spite;

and

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(iii) The criticism should be in the public interest, and for public

good. It should not be malicious. It is for the accused to show that

these requirements are satisfied.

Third Exception

Conduct of any person touching any public question The conduct

of publicists who take part in politics or other matters concerning

the public can be commented on in good faith. In construing a

document the courts are not concerned with what the parties

intended but with what the parties did and what they said; the

words actually used by them and language actually employed.

Thus the Rangoon high court has held that where the editor of a

newspaper not content with making a comment upon the

happenings in a municipal office observed that the respondents

conduct was inconsistent and topsy turvey; use of such

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expression was unjustified and he will be guilty under section 500

IPC.

Fourth Exception

Publication of Reports of proceedings of Courts The fourth

Exception to section499 provides that it is no defamation to

publish a substantially true report of the proceedings of a Court or

of the result of any such proceedings. The Explanation to the

exception provides that a Justice of the Peace or other officer

holding an inquiry in open court, preliminary to a trial in a Court of

Justice, is a Court within the meaning of the above exception.

In Annanda Prasad v.Manatosan Roy, it was held that it is not

necessary under this Exception that the proceedings of the court

should be published continuously. The publication need not be

true by word, but should give a substantially true account of the

proceedings. Good faith is not an ingredient of the exception.

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Fifth Exception

Merits of a case decided in Court or conduct of witnesses and

others The administration of justice is a matter of universal

interest to the whole public.Therefore, a free comment on the

judgments of the court, the verdict of the jury, the conduct of

parties and of witnesses is necessary. The criticism must not

intentionally assail the character of others or impute criminality to

them. The journalist is supposed to discharge his duties fairly and

if his comments are fair no one will be permitted to complain.

Sixth Exception.

This Exception deals with literary criticism of public performances

submitted to its judgment. It covers criticism of books published

on literature, art, painting, speeches made in public, acting,

singing, etc. The criticism must be fair and made in good faith.

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Seventh Exception Censure passed in good faith by a person

having lawful authority over another. This Exception provides that

it is not defamation of a person having over another any authority,

either conferred by law or arising out of a lawful contract made

with another, to pass in good faith any censure on the conduct of

that other in matters to which such lawful authority relates. The

illustration to Exception gives six instances of censure protected

by this Exception, if good faith is established. For instance, the

following acts of censure fall within the purview of this Exception.

1. A Judge consuming the conduct of a witness, or an officer of

the court

2. A head of Department censuring those who are under him

3. A Parent censuring his or her child in the presence of other

children

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4. A school master whose authority is derived from a parent

censuring pupil in the presence of other pupils

5. A master censuring a servant from remissness in service: and

6. A banker censuring the cashier of his bank or conduct of the

cashier as such cashier.

In Jotindrar Nath Mukharji, AIR 1934 & Pat 548 A municipal

engineer reported to the municipality as a result of an enquiry that

a stock of metal was taken away by the contractor. Held that if the

report is made in good faith, the Seventh Exception is to be

applied.

Eighth Exception

Accusation preferred in good faith to authorized person:

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This Exception indicates that accusation in good faith against a

person to any of Those who have lawful authority over that person

are not defamation.

An accused relying on Exception 8 to Sec. 499 IPC need not

establish the truth of his allegation. All that he needed to do is to

show that there were reasonable grounds for believing in the

allegations and that he acted on the bonafide belief that the

allegations were true.

Ninth Exception:

Imputation made in good faith by person for protection of his or

others interests. For the purpose of this Exception the Imputation

must have been made or published by the accused:

A. For the protection of his interest and

B. In good faith

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Mere plea that the accused believed that what we stated was true

by itself will not sustain his case of good faith under the 9th

Exception. It must be a belief inspired on rational basis and not to

be just blind belief.

The Supreme court set aside the conviction of the appellant, in

case of Harbhajan Singh, state of Punjab, who had been

prosecuted under section 500, IPC Surinder Singh Kairon, the

son of Pratap Singh Kairon, the then chief minister of state of

Punjab, had complained that appellant had published a statement

in Blitz, a monthly magazine published from Bombay. Extracts

from it which were given wide publicity in a number of local,

regional and national papers were highly defamatory of Mr.Kairon.

The statement reads:

The son of our Chief Minister is not only a leader of smugglers but

is responsible for a large no. of crimes being committed in the

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125
Punjab. But because the culprit happens to be the Chief Ministers

son, the cases are always shelved.

The apex court said that, as the impugned statement was for

public good, the appellant was entitled to claim protection of

Exception 9 to sec 499 of IPC.

Tenth Exception: Caution intended for good of person to whom

conveyed or for public good. This exception gives immunity to

caution conveyed in good faith to the person against another,

provided that such caution be intended for the good of person to

whom it is conveyed, or of some person in whom that person is

interested or for public good.

In order to attract the tenth Exception it must be proved that

accused intended in good faith to convey a caution to person

against another intending for the good of the person for whom the

caution was conveyed or to some person in whom that person is

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interested or for the public good Section 500 prescribes

punishment for aims of defamation with simple imprisonment for

the term that may extend to two years or fine or both. The offense

under this section is non-cognizable, bailable

Question 4(b):

Answer(b)Defamation:

Whoever, by words either spoken or intended to be read, or by

signs or by visible representation, makes or publishes any

imputation concerning any person intending to harm, or knowing

or having reason to believe that such imputation will harm, the

reputation of such person, is said, except in the cases hereinafter

expected, to defame that person. Section 499 defines the offence

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of defamation with the help of four explanations, 10 exceptions

and a number of illustrations.

Explanation 1 It may amount to defamation to impute anything to

a deceased

person, if the imputation would harm the reputation of that person

if living, and is intended to be hurtful to the feelings of his family or

other near relatives.

Explanation 2 It may amount to defamation to make an imputation

concerning a company or an association or collection of persons

as such.

Explanation 3 An imputation in the form of an alternative or

expressed ironically, may amount to defamation.

Explanation 4 No imputation is said to harm a person’s reputation,

unless that

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imputation directly or indirectly, in the estimation of others, lowers

the moral or

intellectual character of that person, or lowers the character of

that person in

respect of his cast or of his calling, or lowers the credit of that

person, or causes it to be believed that the body of that person is

in a loathsome state, or in a state

generally considered as disgraceful.

Ingredients

The offence of defamation consists of the following essential

ingredients, viz:-

1) Making or publishing of an imputation concerning a person.

2) Such imputation should have been made:

(a) By words either spoken or written or

(b) By signs or

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(c) By visible representations.

3) The said imputation should have been made with intent to

harm or knowing

having reason to believe that it will harm the reputation of such

person or

defame him.

The section is aimed at protection of the reputation, integrity and

honor of the

persons. The definition of offence contains three important

elements, viz:-

(i) The person

(ii) His reputation

(iii) The harm to reputation of person with necessary men rea

(guilty mind).

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If the imputation is defamatory per se, necessary men rea will be

presumed.

The offence of defamation is non-cognizable, bailable,

compoundable with

permission of the court, and liable by the Court of Session.

Imputation:

Implies an accusation which something more than an expression

of suspicion.

Some of the imputations that have been held to be defamatory

are: to call a man a

drunkard, black marketer, goonda, a woman of lose character, an

illegitimate

person, a trader as an insolvent, a woman as having a paramour,

imputation

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against the deceased etc. Similarly words coward, dishonest man

and something

worse than either, and words to the effect that the complainant

and other were

preparing to bring a false charge against the accused were held

to be defamatory.

It is immaterial whether the imputation is conveyed obliquely or

indirectly, or

by way of question, conjecture exclamation or by irony.

Concerning any person The words must contain an imputation

concerning some

particular person or persons whose identity can be established.

That person need

not necessarily be a single individual. A newspaper is not

defamation and therefore

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newspaper can’t be defamed. However defamation of newspaper

may in some

cases refer to those responsible for its publication.

All those who compose, dictate, write or in any way contribute to

the making

of a libel are liable for defamation. For example, if one dictates,

other writes and

the third approves of what is written, they are all makers of it and

are jointly liable.

The mechanic or the compositors of the press are not liable for

libel as they neither

make nor publish the matter that might be impug;ned as

defamatory.

Imputation by words either spoken or written:

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Under Indian law a person can be defamed by writing as well as

spoken words.

English law recognizes writing, printing and engraving as a

defamatory. Under

English law spoken words never constitute defamation.

Imputation can be made by

visible representation also. The words ‘visible representation’ will

include every

possible form of defamation which ingenuity can devise. Thus a

statute, a

caricature, effigy, chalk marks on a wall, signs, or pictures may

constitute a libel,

in addition to words spoken.

Publication:

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The defamatory matter must be published, that is communicated

to some person

other than the person about whom it is addressed.

Publication of defamatory matters in newspaper

The publisher of a newspaper is responsible for defamatory

matter published in the

paper, whether he knew the contents of such paper or not.

The sending of a newspaper containing defamatory matter by

post from

Calcutta, where it is published, addressed to a subscriber at

Allahabad, is

publication of such defamatory matter at Allahabad.

Imputation to harm reputation

There must be an intention and knowledge that the imputation will

harm the

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reputation. It is not necessary that actual harm should result.

Exceptions to section 499

Section 499 provides ten expectations to the charge of

defamation. These are based

on the ground of truth, good faith or public interest and strike a

balance behaviour

freedom of speech and expression guaranteed under article 19

(1)(a) of the

constitution and individuals right to reputation.

First Exception

Imputation of truth in public interest for public good

To invoke this exception two conditions must be proved, namely:-

(i) that the

alleged imputation regarding the complainant was true; and

(ii) That its publication was for the public good.

L02-LLB-181120
136
If any one of the two conditions is not satisfied, Exception 1 would

not be

attracted. Where a person makes a comment upon the conduct of

a public servant and it is for the public good; no action will lie

against him so long as the comments are honestly made and

there is no willful misrepresentation (Chaman Lal vs The State of

Punjab (1970) 1 sec 590).

No amounts of truth will justify a libel unless its publication was for

the

public goods. The question of public good has to be considered

from the point of view of the good of the general public as

contrary to that of an individual.

Radha Govind Datta v. Saila Kumar Mukherjee AIR 1970 sc

1372.

L02-LLB-181120
137
In this case, accused, an editor of a newspaper, published an

article in the

form of questionnaire referring to certain defamatory allegations

against the

complainant contained in leaflet distributed a few days prior to the

publication by him. The questionnaire made of direct imputation

against the complainant but merely stated that certain complaint

had been received against. The complainant and called upon him

to remove all doubts in minds of public by stating as to whether

the complaints were correct.

The honorable court has held that questionnaire virtually

amounted to a

publication of the defamatory statement contained in leaflet and

accused would be guilty of offence of defamation unless he was

protected by Exception I of section 499.

L02-LLB-181120
138
The journalist possesses no higher right, than an ordinary citizen

than an

ordinary citizen has in respect of freedom of speech. At the same

time by virtue of the special character of his profession, the

journalist owes certain duties to public, the most important of

which is the dissemination of news and fully and truly expressed

on matters affecting public good.

Second Exception Public conduct of public servants

Exception 2 deals with criticism of public servants. Any person

occupying a public position renders himself open to criticism for

his actions while discharging his functions from position he

occupies. Such a criticism must be made in good faith and it must

relate to actions of public servants. Goo d faith presupposes a

reasonable degree of care and caution in making an imputation

L02-LLB-181120
139
which on the far of it is defamatory. It does not merely imply

absence of ill will. In order that a comment may be fair

a) It must be based on facts truly stated,

b) It must not impute corrupt or dishonorable motives to the

person whose

conduct or work is criticized except in so far as such imputations

are

warranted by the facts.

c) It must be honest expression of the writer’s real opinion made

in good faith.

d) It must be for the public good.

Fair criticism, however does not justify a personal incentives since

an attack

on a person’s private life is not privileged but sometimes a private

question may

L02-LLB-181120
140
become public one if public is called upon to support it. The whole

character of a person can’t be under public character alone is

involved.

In Purushottam Vijay v. State of Madhya Pradesh, the High Court

of Madhya

Pradesh, while observing that a newspaper should be more

cautious and careful than a private individual, has stated the

requirements of the defence available under the second and third

Exceptions to section499. These are

(i) The facts (on which the comment is offered) should be

substantially true;

(ii) The comments should be fair, in the sense that they are

inspired by a genuine desire on the part of the writer to serve the

public interest, and not by any intention of venting private spite;

and

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(iii) The criticism should be in the public interest, and for public

good. It should not be malicious. It is for the accused to show that

these requirements are satisfied.

Third Exception

Conduct of any person touching any public question

The conduct of publicists who take part in politics or other matters

concerning the public can be commented on good faith. In

construing a document the courts are not concerned with what the

parties intended but with what the parties did and what they said;

the words actually used by them and language actually employed.

Thus the Rangoon high court has held that where the editor of a

newspaper not content with making a comment upon the

happenings in a municipal office observed that the respondents

conduct was inconsistent and topsy turvey; use of such

L02-LLB-181120
142
expression was unjustified and he will be guilty under section 500

IPC.

Fourth Exception

Publication of Reports of proceedings of Courts

The fourth Exception to section499 provides that it is no

defamation to publish a substantially true report of the

proceedings of a Court or of the result of any such proceedings.

The Explanation to the exception provides that a Justice of the

Peace or other officer holding an inquiry in open court, preliminary

to a trial in a Court of Justice, is a Court within the meaning of the

above exception.

In Annanda Prasad v.Manatosan Roy, it was held that it is not

necessary under this Exception that the proceedings of the court

should be published continuously. The publication need not be

L02-LLB-181120
143
true by word, but should give a substantially true account of the

proceedings. Good faith is not an ingredient of the exception.

Fifth Exception

Merits of a case decided in Court or conduct of witnesses and

others. The administration of justice is a matter of universal

interest to the whole public.Therefore, a free comment on the

judgments of the court, the verdict of the jury, the conduct of

parties and of witnesses is necessary. The criticism must not

intentionally assail the character of others or impute criminality to

them. A

journalist is supposed to discharge his duties fairly and if his

comments are fair no one will be permitted to complain.

Sixth Exception

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This Exception deals with literary criticism of public performances

submitted to its judgment. It covers criticism of books published

on literature, art, painting, speeches made in public, acting,

singing, etc. The criticism must be fair and made in good faith.

Seventh Exception Censure passed in good faith by person

having lawful authority over another. This Exception provides that

it is not defamation of person having over another any authority,

either conferred by law or arising out of lawful contract made with

another, to pass in good faith any censure on the conduct of that

other in matters to which such lawful authority relates. The

illustration to Exception gives six instances of censure protected

by this Exception, if good faith is established. For instance, the

following acts of censure fall within the purview of this Exception.

1. A Judge consuming the conduct of a witness, or an officer of

the court

L02-LLB-181120
145
2. A head of Department censuring those who are under him

3. A Parent censuring his or her child in the presence of other

children

4. A school master whose authority is derived from a parent

censuring pupil in the presence of other pupils

5. A master censuring a servant from remissness in service: and

6. A banker censuring the cashier of his bank or conduct of the

cashier as such cashier.

In Jotindrar Nath Mukharji, AIR 1934 & Pat 548

A municipal engineer reported to the municipality as a result of an

enquiry that a stock of metal was taken away by the contractor.

Held that if the report is made in good faith, the Seventh

Exception is to be applied.

Eighth Exception

Accusation preferred in good faith to authorized person:

L02-LLB-181120
146
This Exception indicates that accusation in good faith against a

person to any of those who have lawful authority over that person

is not defamation.

An accused relying on Exception 8 to Sec. 499 IPC need not

established the truth of his allegation. All that he need to do is to

show that there were reasonable grounds for believing in the

allegations and that he acted on the bonafide belief that the

allegations were true.

Ninth Exception:

Imputation made in good faith by person for protection of his or

others interests.

For the purpose of this Exception the Imputation must have been

made or published by the accused:

A. For the protection of his interest and

L02-LLB-181120
147
B. In good faith Mere plea that the accused believed that what we

stated was true by itself will not sustain his case of good faith

under 9th Exception. It must be a belief inspired on rational basis

and not to be just blind belief.

The Supreme court set aside the conviction of the appellant, in

case of Harbhajan Singh, state of Punjab, who had been

prosecuted under section 500, IPC Surinder Singh Kairon, the

son of Pratap Singh Kairon, the then chief minister of state of

Punjab, had complained that appellant had published or

statement in Blitz, a monthly magazine published from Bombay.

Extracts from it which were given wide publicity in a number of

local, regional and national papers were highly defamatory of

Mr.Kairon. The statement reads:

The son of our Chief Minister is not only a leader of smugglers but

is responsible for a large no. of crimes being committed in the

L02-LLB-181120
148
Punjab. But because the culprit happens to be the Chief Ministers

son, the cases are always shelved.

The apex court said that, as the impugned statement was for

public good, the appellant was entitled to claim protection of

Exception 9 to sec 499 of IPC.

Tenth Exception: Caution intended for good of person to whom

conveyed or for public good. This exception gives immunity to

caution conveyed in good faith to the person against another,

provided that such caution be intended for the good of person to

whom it is conveyed, or of some person in whom that person is

interested or for public good.

In order to attract the tenth Exception it must be proved that

accused intended in good faith to convey a caution to person

against another intending for the good of the person for whom the

caution was conveyed or to some person in whom that person is

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149
interested or for the public good Section 500 prescribes

punishment for aims of defamation with simple imprisonment for

the term that may extend to two years or fine or both. The offence

under this section is non-cognizable.

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