Madhya Pradesh Judicial Service - Civil Judge (Entry Level) Exam Solved

Question Papers of Indian Penal Code, 1860 From 2009-2019

Raj Kumar Tripathi

Civil Judge (Senior Division), Sagar (M.P.)

Q. 1 What is an 'Unlawful Assembly' ? When is a member of an unlawful

assembly constructively liable for the offence committed by any other member of
that Assembly ? Can less than five persons be convicted with the aid of Section
149 ? [Asked in 2009]
Ans. In a group liability pertaining to an unlawful assembly a person may be
constructively liable for an offence by virtue of being just a member of it and
regardless of the fact that no specific actus reus is attributable to him. In the given
question, the point of law involved is being discussed one after other-

Unlawful Assembly:- Under section 141 of the Indian Penal Code an assembly of five
or more person gets transformed into an unlawful assembly as and when its common
object is relatable to any of the following purposes -
(i) To overawe by criminal force Central goverment or State goverment or Legislature
or Public servant in the exercise of lawful purpose.
(ii) To resist the execution of law or any legal process.
(iii) To commit mischief, trespass or other offense.
(iv) By criminal force to obtain possession of any property or to enforce any right or
supposed right or to deprive any person of any incorporeal right.
(v) By criminal force to compel any person to do what one is not legally bound to do
or to omit what one is legally bound to do.
In a given case, the concerning facts and attending circumstances are relevant to
decide as to what is the common object of an assembly at a given of point of time.
The Explanation appended to section 141 of the IPC also clarifies that an assembly
which is not unlawful at the commencement may become subsequently an unlawful
assembly. So, a requisite common object can develop even after the accused has
assembled at the spot.
Vicarious liability of a member of an unlawful assembly :- If any person is the
member of any unlawful assembly at a particular time within the meaning of section
142 of IPC then Section 149 of the IPC makes him vicariously liable for all offences
which any other member of that unlawful assembly happens to commit irrespective
of his role in the following circumstances-
(i) If an offence is committed in prosecution of common object of the unlawful
assembly.
(ii) Or alternatively, If the committed offence is of such nature that such member of
the unlawful assembly knew to be likely to be committed in prosecution of common
object of the unlawful assembly.
The Hon'ble Apex court held in Mizaji vs State of U.P. AIR 1959 SC 572 that
section 149 of the IPC fixes liability under two part and each one is alternative.
Therefore, even if the first part of the section does not apply in a given case due to
lack of direct relationship with the common object of the unlawful assembly still the
liability may be imposed on accused if the committed offence is of such nature that
he knew the same likely to be committed. On the part of accused, the knowledge of
the likelihood of the commission of an offence is gathered from the nature of
common object for which unlawful assembly is formed and also preparedness such as
carrying of formidable weapon , aggressive behaviour etc.

Minimum number of person required to convict with the aid of Section 149 :-
To attract section 149 of the IPC, the following conditions must be satisfied-
(i) There was an assembly of five persons.
(ii) The assembly had a common object.
(iii) The said common object was to consist one or more of the five illegal object
specified in section 141 of the IPC.
(iv) The particular offence was committed in prosecution of common object or was
within required knowledge.
Accordingly, unlike English Law where only three persons constitutes an unlawful
assembly, the number of persons composing unlawful assembly under section 141 of
the IPC must be five or more. In fact, this point is no more res-intra, a way back in
1963 the constitutional bench of the hon'ble apex court has established in Mohan
Singh vs State of Punjab AIR 1963 SC 174 that where only five named persons
have been charged for constituting an unlawful assembly and one or more of them are
acquitted, the remaining accused who are less than five in number cannot be
convicted as members of an unlawful assembly unless it is proved that the unlawful
assembly besides convicted persons consisted of some other persons but they were
not identified and so could not be named in the case. The aforesaid law has been yet
again reiterated by hon'ble apex in Maina Singh vs State Of Rajasthan AIR 1976
SC 1084.
Thus, the combined reading of sec. 141 and 149 shows that an assembly of less than
five member is not an unlawful assembly within the meaning of section 141 and
cannot therefore form the basis for conviction of an offence with the aid of section
149. The only situation where less than five persons can be convicted with the aid of
Section 149 is that the concerned offence is shown to have been committed by the
person who is being convicted along with some other unknown or unidentified
persons who could not be named in the case but cumulatively such persons were in
five or more in numbers.

Q.2 Briefly state the distinction between the following concepts- [Asked in 2009]
(i) Abetment and criminal conspiracy
Ans. Both abetment and criminal conspiracy are inchaote offence. Under section 107
clause secondly one of the recognised mode of abetment is by way of engaging in
conspiracy. Subsequent to addition of Sec. 120 A & B in IPC vide 1913 amendment,
the conspiracy in India is not only a form of abatement but also a substantive offence.
But despite of such close affinity, the criminal conspiracy is somewhat wider in
amplitude than abetment by conspiracy as contemplated under Sec. 107 of IPC. The
main distinction could be mentioned as below:-
(a) An abetment may be committed by way of instigation, Engaging in conspiracy
or by intentional aid but criminal conspiracy is committed by meeting of minds or
an agreement. So, criminal conspiracy is just one form of abetment and stand in
relation of species and genus respectively.
(b) For an offence under the second clause of section 107 of the IPC, a mere
combination of persons or agreement is not enough and an act or illegal omission
must take place in pursuance of the conspiracy. But, for an offence of criminal
conspiracy under section 120 A & B of the IPC, a bare agreement to commit an
offence is itself enough to complete the offence without any need of overt or covert
act.
(c) The Sec. 107 th clause secondly is restricted to only offence. So, an abetment by
conspiracy can be committed only with respect to any offence. But, section 120 A
read with section 43 of the IPC brings out that criminal conspiracy can happen not
only with respect to offence but also for an act which is prohibited by law or an act
which leads to only civil liability.
(d) In case of abetment by conspiracy charge has to be framed along with the abetted
offence, viz Sec. 109/302 IPC. But, an offence of criminal conspiracy is an
independent offence and punishable on its own, viz Sec. 120 B IPC.
(e) The act of abettor is punishable under section 108 To 117 of the IPC depending
upon the situations. Whereas, the crime of criminal conspiracy is punishable under
section 120 B of the IPC.
(f) The abettor is not a principle offender. Whereas, in criminal conspiracy each
accused is a principal offender .
(g) An abetment can be committed by one or more persons , whereas conspiracy can
be committed by two or more persons.
(ii) Assault and using criminal force
Ans. The difference between an assault and criminal force under Indian law is the
same as in English law between assault and battery. Under Indian law, Section 350
and 351 of the IPC respectively defines the terminology of Criminal force and assault
and still further section 352 punishes them with the same amount of punishment. The
main distinction could be mentioned as below:-
(a) The assault is basically a preparatory stage of criminal force by way of gesture
or preparation to make someone apprehend that maker is about to use criminal force.
On the other hand, in criminal force there is actual use of force by way of causing of
motion, change of motion or cessation of motion.
(b) In assault the guilty mind is directed toward bringing an apprehension in the mind
of another person about the use of criminal force. But, in criminal force the guilty
mind of accused is directed toward committing any offence or causing injury , fear or
annoyance to the other person.
(c) As per the explanation appended to the section 351 of the IPC the "words"
accompanying the gesture or preparation may also be the constituent element of the
offence of assault but section 350 of the IPC does not mention any specific role of
words in committing criminal force.
(d) Every criminal force includes assault but not vice-versa.
Q.3 What legal pleas are open to a person charged with defamation? [Asked
in 2009]
Ans. Section 499 IPC defines the offence of defamation with specificity and
particularity and enumerates ten broad Exceptions when statements against a person
will not be considered defamatory. The provided exceptions are as under when an
accused even after making defamatory statement may prove the required essentials
only to the extent of preponderance of probability to avoid his conviction.
1st Exception:- unlike justification in tort, It does not protect truth as an absolute
defence. It becomes available only if it is cumulatively proved that what has been
imputed concerning the complainant is true and the publication of the imputation is
for the public good. Thus, two ingredients are, namely, truth of the imputation and the
publication of the imputation for the public good .
2nd Exception:- Every citizen has a right to comment on those act of public men
which concern him as a citizen of the country, if he does not make his commentary a
cloak for malice or slander. The Hon'ble apex court has in Kartar Singh vs State of
Punjab AIR 1956 SC 541 held that those who fill a public position must not be too
thiny skinned in reference to comments made upon them. Whoever fills a public
position renders himself open to attack. He must accept an attack as a necessary,
though unpleasant appendage to his office.
Since, under instant exception accuse is required to show that the opinion expressed
by him was in good faith. So, such comment to be fair must has following attributes-
(i) It must be based on facts truly stated.
(ii) It must not impute corrupt or dishonourable motive to the person whose conduct
or work is criticised except in so far as such imputations are warranted by the facts.
(i) It must be honest expression of the writer's real opinion made in good faith.
3rd Exception:- unlike 2nd exception it is not confined to public servants. It enables
to comment in good faith on the conduct and character of the any person touching to
public question. It does not protect truth as an absolute defence. It embraces a very
wide area for fair comment. So, the conduct of any person who takes part in matters
concerning to the public can be commented on in good faith.
4th Exception:- It is not defamation to publish substantially true report of the
proceedings of a court of justice or of the result of any such proceedings.
5th Exception:- It is not defamation to express in good faith any opinion regarding
the merits of any decided civil or criminal case or with respect to conduct of any
party , witness or agent in such case or even the character of such person as far as his
character appears in that conduct.
6th Exception:- It is not defamation to comment in good faith on the merits of any
performance, if the author of such performance has submitted it to the judgment of
the public either expressly or impliedly, including on the character of the author so far
as his character appears in such performance.
7th Exception:- It is not defamation to pass in good faith any censure on the conduct
of any person by another person who is either under authority of law or by way of
lawful cotract has gained the stature of controlling authority with respect to the
matters to which his authority relates.
8th Exception:- Uner it, making over an accusation in good faith against any person
before any lawful authority is not defamation.
9th Exception:- The required ingredients are firstly that the imputation must be made
in good faith; secondly, the imputation must be made for protecting the of the interest
of the maker or recipient of the communication or for the public good.
10th Exception:- The required ingredients are that the accused intended in good faith
to convey a caution to one person against another intending for the good of the person
to whom the caution was conveyed or to some person in whom that person is
interested or for the public goods.
The aforementioned exceptions of section 499 of the
IPC are exhaustive in nature and recourse cannot be had to the English common law
to add new grounds of exceptions as held by hon'ble apex court in M. C.Verghese vs
T. J. Ponnan AIR 1970 SC 1876.
Q. 4 Explain and illustrate the proposition that mistake of fact is a good defence
while mistake of law is no defence in the code [Asked in 2010]
Ans. Section 76 and 79 of the IPC draw distinction between the expression "Mistake
of Fact" and "Mistake of law". These provision categorically state that if someone by
reason of mistake of fact believes in good faith to be bound or justified to do
something and acts accordingly then such mistake of fact is complete defence to all
criminal charges arising out of that. But, at the same, the aforesaid provision in terms
goes to state that such defence will not be available if anything is done under mistake
of law. Thus, section 76 and 79 of the IPC incorporate the common law principle of
'ignorantia facit doth excusat ignorantia juris non-excusat’ i.e. ignorance of fact
excuses, ignorance of law does not excuse.
The justification for exemption of criminal liability on the ground of mistake of fact
and ignorance of fact is based on the principal that a man who is mistaken or ignorant
about the existence of a fact cannot form the necessary intention to constitute a
crime. On the other hand with respect to mistake of law, every man is presumed to
know the law of land except minors, lunatics or insane. Moreover, if mistake of law is
allowed to be pleaded as a defense howsoever innocent or genuine it may be then it
will lead to anarchy and affect the administration of justice because each and
everyone will allege that he was not aware of the law. The Hon'ble Apex Court in
State of Maharashtra vs Mayer Hans George AIR 1965 SC 722 refused to accept
the plea of ignorance of the notification issued by the Reserve Bank of India
imposing restriction on the transit of gold.
In conclusion, while mistake of law is no defence but a mistake fact is a complete
defence in following circumstances:-
(i) That there was a mistake of fact in good faith. As held in State of Orissa vs Ram
Bahadur Thapa AIR 1960 Ori 161 that the expression ' good faith' does not require
a general standard of due care and attention rather it varies depending upon the
maturity and intellectual attainment of the concerned person.
(ii) The mistake of fact must be of such character that had the supposed
circumstances been real they would have prevented the accrual of any criminal
allegation in doing that.
Illustration :-
(i) A a private person, who has the right to arrest a person committing before him a
cognizable and non-bailable, if he arrests B, mistakenly thinking that he has
committed murder, when in fact he killed a dacoit in self defence, A is not liable for
committing the offence of wrongful confinement, his mistake being one of fact.
(ii) Another classical example may be mentioned as happened in the case of
Chirangi vs State 1952 CriLJ 1212 where Hon'ble Bombay High Court held that
since the appellant in a moment of delusion had considered that his target was a tiger
and was not his son and he accordingly assailed it with his axe commited no offence
because by reason of a mistake of fact he was justified in destroying the deceased
whom he did not regard to be a human being but who, as he thought, was a dangerous
animal.
Hence, mistake of fact may happen either because a person is ignorant of the
existence of relevant facts or mistaken as to them.
Q. 5 Distinguish between - [Asked in 2010]
(i) Dishonestly and Fraudulently.
Ans. 'Dishonestly' and 'fraudulently' are defined in Sections 24 and 25 of the Penal
Code respectively. Both words dishonestly and fraudulently appear simultaneously in
several offences such as cheating under section 415 of the IPC, forgery under section
463 of the IPC and counterfeit of coins under section 246 & 247 of the IPC but they
are used to denote two different things. The main distinction could be mentioned as
below:-
(a) The expression dishonestly involves the wrongful gain or alternatively wrongful
loss to other. But, the word fraudulently requires an intent to defraud.
(b) The concept of wrongful gain or loss contemplates pecuniary or economic gain
or loss to one or other person. Whereas, the expression intent to defraud involves two
element, namely, deceit and injury to the person deceived though not necessarily a
pecuniary loss or deprivation of property because as per section 44 of the IPC an
injury even includes harm to reputation, body etc.
(c) The deceit is not an ingredient of the definition of the word "dishonestly" while
the word "defraud" includes an element of deceit.
(ii) Lurking house trespass by night and house breaking.
Ans. House trespass may be committed under various circumstances which may
aggravate its gravity such as violent or surreptitious entry or the time of trespass and
the nature of the property trespassed. Accordingly, both lurking house trespass by
night and house breaking owe their origin to criminal trespass but they differ as
under:-
(a) In Lurking House-trespass by night there is "House-trespass + Concealment of
identity + Night". Whereas, in Housebreaking there is "House-trespass + entry
through six specified ways" i. e. passage made by house-breaker or abettor, climbing
over a wall, through unintended passage, by opening any lock, by using criminal
force or by entering or quitting any passage which was fastened against such
entrance.
(b) The offence of Lurking House-trespass by night can only happen after sunset and
before sunrise. Whereas, the offence of House breaking simpliciter takes place in the
day itself.
(c) In Lurking House-trespass by night the accused makes entry surreptitiously.
Whereas, in the offence of House breaking the entry is made violently and without
any precaution to conceal the identity.
(iii) Section 489 A and Section 489 D.
Ans. Section 489A and 489D aim to protect the currency notes and bank notes from
forgery. Both the aforesaid offence is punishable with the same amount of
punishment but they differ as follow:-
(a) Section 489A of IPC makes the act of Counterfeiting of currency-notes or bank-
notes as such punishable punishable. Whereas, section 489 D of IPC states that
whosoever makes any machinery, instrument or material which may be used for the
purpose of Counterfeiting of currency-notes or bank-notes is a offence.
(b) Under section 489A of IPC even knowingly performing any part of the process of
counterfeiting of currency or bank note is punishable. Whereas, under section 489 D
of IPC declares that it is offence when anyone with knowledge or having reason to
believe performs any part of the process of making, buying, selling etc any
machinery, instrument or material which may be used for forging or counterfeiting
any currency-note or bank-note.
(c) Before the introduction of section 489 A of IPC, the offence of forging currency
notes was punishable under general provision of section 467. Whereas, the act of
making, buying etc of any instrument or machinery which may be used for the
purpose of counterfeiting currency notes was punishable under general provision of
Section 472 of IPC.

Q. 6 Discuss the scope of the right to private defence of the body under the penal
code. Can an accused person rely on the plea of such private defence without
specifically pleading it ? Support your answer with the help of decided cases.
[Asked in 2011]
Ans. Right of private defence is essentially a defensive right and acknowledges the
need of self-preservation because the vigilance of magistrate can never make up for
the vigilance of each individual on his own behalf. But, it is equally important to
mention that it is not punitive or retaliatory right.
Scope:- As per section 97 of the IPC, the right of private defence is available not
only with respect to his own body but also with respect to the body of any other
person against any offence affecting the human body including such act by person of
unsound mind, minor etc. This makes the horizon of the right to private defence
under Penal Code even broader than its counterpart under English law because
thereof such right cannot be exercised to defend the stranger. Under English law, it is
required that there must be some kind of relationship existing such as father and son,
husband and wife, guardian and ward, master and servant etc before the right of
private defence may be successfully exercised by someone.
Furthermore, according to section 100 of the IPC, the right to private defence of the
body may be even exercised to the extent of voluntary causing death of the assailant,
if the offence which occasions the exercise of the right falls under any of the
following descriptions :-
Firstly - Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault.
Secondly - Such an assault as may reasonably cause the apprehension that grievous
hurt will otherwise be the consequence of such assault.
Thirdly - An assault with the intention of committing rape.

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

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

Sixthly - An assault with the intention of wrongfully confining a person, under such
circumstances which may reasonably cause him to apprehend that he will be unable
to have recourse to the public authorities for his release.

Seventhly - An act of throwing or administering acid or an attempt to throw or

administer acid which may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such act.

But, the aforementioned scope of the right to private defence is not unfettered or
absolute. This aspect is very much apparent from the opening words of Sec. 97, 100
and 101 etc which goes to state that exercise of private defence is subject to the
restrictions mentioned in section 99 of the IPC. Such restrictions are as important as
the right itself. The Hon'ble Apex Court has held in State Of U.P vs Ram Swarup
AIR 1974 SC 1570 that the right of private defence is a right of defence not of
retribution. It is available in the face of imminent peril to those who act in good faith
and never who act under pre-meditated plan. The scope of right to private defence is
circumscribed with following limitations:-

(i) There is no right of private defence against any act if done or attempted to be done
by the public servant himself or under the direction of such public servant by
someone else while acting in good faith under the colour of his office though such act
or direction may not be strictly justifiable by law. However, the protection to public
servant or those acting under their direction is not absolute. Such protection has its
own exception in following circumstances-

(a) When act of public servant or those acting under their direction reasonably cause
the apprehension of death or of grievous hurt to the victim.

(b) When the victim/accused does not actually know or he has no reason to believe
that the act is done by public servant or under his direction.

(c) When those acting under the direction of the public servant does not state the
authority or if he has the authority in writing does not produce the same on the
demand of victim/accused .

(ii) There is no right of private defence when there is time to have recourse to the
protection of the public authority. The necessity of self-help disappears when accused
had ample opportunity to have recourse to state authorities.

(iii) Private defence does not extend to inflict more harm than it is necessary to inflict
for the purpose of defence. The principle is that the force of repulsion must bear
reasonable proportion to the force of aggression. The Hon'ble Apex Court in
Mohinder Pal Jolly vs State of Punjab AIR 1979 SC 577 where the worker of the
company threw stone and in response to that the owner of the company fired with
revolver, had held that private defence was exceeded. But, at the same time, it is
equally relevant to mention that the victim is not required to weight on golden scales
in the heat of the moment the number of injuries required to disarm his assailants as
held by Hon'ble Apex Court in Buta Singh vs The State Of Punjab AIR 1991 SC
1316.

The modes of establishing the plea of private defence:- Under section 101 of the
Evidence act the burden of proof to establish all the ingredients of the offence with
which accused is charged lies on the prosecution. But, section 105 of the Evidence
Act is a special provision and mandates that if accused in any particular case raises
the defence of general exception then burden is on him to prove the existence of the
circumstances which constitute general exception. At the same time, section 105 puts
an obligation on the court to presume the absence of such circumstances. Thus, if
accused takes plea of private defence then he is duty bound to show the existence of
circumstances bringing the case within the general exception as pleaded. To lay down
such foundation, as held by Hon'ble Apex Court in Salim Zia vs State Of U.P AIR
1979 SC 391 the burden on the accused person is not as onerous as lies on the
prosecution and he may discharge his onus of proof by establishing on a scale of
mere preponderance of probabilities either by laying a basis for exercise of private
defence in the cross-examination of prosecution witnesses or by adducing the
defence evidence. Moreover, even if no plea is taken but circumstances are borne out
from the record of the case to raise reasonable doubt in the mind of the Court then
also the accused is entitled the benefit of the general exception.
And Once, on the aforesaid yardstick the necessary circumstances are proved then
under section 6 of the IPC the court is also obliged to follow that every definition of
offence, illustration etc shall be understood subject to 'General Exceptions' provided
in Chapter IV of the act. Thus, undoubtedly, the accused can rely on the plea of
private defence without specifically pleading it if necessary foundation is available on
the record by way of cross-examination of the opposite party etc.
Q. 7 Define the term criminal conspiracy ? What are its essential ingredients ?
What is difference between abetment and criminal conspiracy [Asked in 2011]
Ans. In the original I.P.C., the criminal conspiracy in the stictu sensu was absent. It
existed only by way of abetment under section 107-clause secondly of the IPC.
Subsequent to addition of Sec. 120 A & B in IPC vide 1913 amendment, the scope of
criminal conspiracy has expanded and assumed the character of a substantive offence.
This has also assimilated the law of criminal conspiracy in India with that of England.
Definition:- For the first time, the House of Lord in England evolved a new criminal
jurisprudence in the form of criminal conspiracy in its judgment Mulcahy vs Regina:
(1868) LR HL 306. Later on, Lord Brampton defined Criminal conspiracy in leading
case of Quinn v. Leathem (1901) AC 495 (528). The aforesaid definition is also
reflected under S. 120-A of the IPC and goes to state that 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. It is further added by virtue of 'Proviso' in the section that except when the
agreement is to commit an offence in order to constitute criminal conspiracy some act
in addition to such agreement is also required to be done.
Essential ingredients:- Recently, Hon'ble Apex court in Rajiv Kumar vs State Of
Uttar Pradesh (2017) 8 SCC 791 highlighted the necessary constituent element of
criminal conspiracy. The aforesaid ingredients are being discussed one after other -
(i) There has to be an agreement to cause an illegal act or an act which is not illegal in
itself by way of illegal means : So long as a design rests in intention only, howsoever
horrendous it may be, it is not indictable because conspiracy consists not merely in
the intention of two or more but in the agreement of two or more. The essence of the
offence of conspiracy is the meeting of minds and such combination or association is
itself the gist of the offence. So, it is the unlawful agreement which is the gravemen
of the crime of conspiracy.
Since, the offence of criminal conspiracy has its foundation in an agreement to
commit an illegal act or a legal act by illegal means. Since, the offence of criminal
conspiracy has its foundation in an agreement to commit an illegal act or a legal act
by illegal means. Section 43 of IPC defines expression 'illegal' to cover everything
which is an offence or which is prohibited by law or which furnishes ground for a
civil action. Such unlawful agreement which amounts to a conspiracy need not be
formal or express, but may be inherent in and inferred from the circumstances,
especially declarations, acts and conduct of the conspirators. It is also not necessary
that each conspirator must know all the details of the scheme nor be a participant at
every stage.
The crux of the aforementioned law has been nicely summed up by Hon'ble Apex
Court in Esher Singh vs State Of Andhra Pradesh (2004) 11 SCC 585 is that when
two or more person agree to carry out an illegal act or a legal act by illegal means
into effect, then the very plot is an act in itself, and an act of each of the parties,
promise against promise, actus contra actum, is punishable.

(ii) The agreement must be between two or more natural persons: It is an established
rule of the law of conspiracy that there should be at least two persons. The Hon'ble
Apex court in Topandas vs The State Of Bombay AIR 1956 SC 33 held that it is
a principle of common sense that one person alone can never be held guilty of
criminal conspiracy for the simple reason that one cannot conspire with oneself. But,
Hon'ble Apex court has also visualised the possibility in Bimbadhar Pradhan vs
The State Of Orissa AIR 1956 SC 469 when a person may be indicted alone for
conspiring with persons who are unknown, dead, uncaught, incapable of committing
the crime or immune or have been pardoned.
(iii) If such agreement is to commit offence then it is ipso facto sufficient to
constitute criminal conspiracy and in all other cases an act besides agreement is also
needed: The 'Proviso' attached to the section 120 A of the act draws distinction
between an agreement to commit offence and all other agreement such as an act
forbidden by law etc. While in the former case agreement on its own constitutes the
criminal conspiracy but in the latter cases an overt act needs to be done in pursuance
of the conspiracy to complete the criminal conspiracy. The Hon'ble apex court also
held in State vs Nalini (1999) 5 SCC 253 (Rajiv Gandhi Assasination case) that
when agreement is to do a legal act by illegal means then an overt act is necessary to
constitute crime of conspiracy.
Distinction :- Both abetment and criminal conspiracy are inchaote offence. Under
section 107 clause secondly one of the recognised mode of abetment is by way of
engaging in conspiracy. Subsequent to addition of Sec. 120 A & B in IPC vide 1913
amendment, the conspiracy in Indian is not only a form of abatement but also a
substantive offence. But despite of such close affinity, the criminal conspiracy is
somewhat wider in amplitude than abetment by conspiracy as contemplated under
Sec. 107 of IPC. The main distinction could be mentioned as below:-
(a) An abetment may be committed by way of instigation, Engaging in conspiracy
or by intentional aid but criminal conspiracy is committed by meeting of minds or
an agreement. So, criminal conspiracy is just one for form of abetment and stand in
relation of species and genus respectively.
(b) For an offence under the second clause of section 107 of the IPC, a mere
combination of persons or agreement is not enough and an act or illegal omission
must take place in pursuance of the conspiracy. But, for an offence of criminal
conspiracy under section 120 A & B of the IPC, a bare agreement to commit an
offence is itself enough to complete the offence without any need of overt or covert
act.
(c) The Sec. 107 th clause secondly is restricted to only offence. So, an abetment by
conspiracy can be committed only with respect to any offence. But, section 120 A
read with section 43 of the IPC brings out that criminal conspiracy can happen not
only with respect to offence but also for an act which is prohibited by law or an act
which leads to civil liability.
(d) In case of abetment by conspiracy charge has to be framed along with the abetted
offence, viz Sec. 109/302 IPC. But, an offence of criminal conspiracy is an
independent offence and punishable on its own, viz Sec. 120 B IPC.
(e) The act of abettor is punishable under section 108 To 117 of the IPC depending
upon the situations. Whereas, the crime of criminal conspiracy is punishable under
section 120 B of the IPC.
(f) The abettor is not a principle offender. Whereas, in criminal conspiracy each
accused is a principal offender .
(g) An abetment can be committed by one or more persons , whereas conspiracy can
be committed by two or more persons.

Q. 8 Describe the offences relating to marriage ? [Asked in 2012]

Ans. Chapter XX of the IPC specifically deals with offences relating to marriage.
The rationale is to preserve the sanctity of marriage. Unlike other criminal offences,
the locus standi to make complain of such offences has been restricted only to the
aggrieved person under section 198 of the CrPC unless any of the exception is
attracted. The various type of offences are being discussed one after other as under-
(i) Section 493 of the IPC:- The gist of offence is that a person deceitfully causes a
woman to believe that she is lawfully married to him and thereafter under such
deceitful belief induces her to have sexual intercourse with him. So, Sec. 493 of the
IPC punishes a man for obtaining the body of a woman by a deceitful assurance that
he is her husband. An offence under this section may also be covered under section
375 clause fourthly of the IPC.
(ii) Offence of bigamy under section 494 of the IPC:- Section 494 of the IPC has been
modelled on the English law of Bigamy. The section makes bigamy an offence in
case of all persons living in India irrespective of his/her personal law. The essential
ingredients of the offence of bigamy are as under-
(a) That the accused spouse had already been married.
(b) That while the first marriage was subsisting, the spouse contracted a second
marriage.
(c) That both the first and subsequent marriage must have been valid in the sense of
essential ceremonies required by the personal laws governing the parties had been
duly performed: The validity of marriage depends upon the religion of the party, their
domicile and the performance of certain ceremonies constituting the marriage. The
Hon'ble Apex court in Bhaurao Shankar Lokhonde vs State of Maharashtra AIR
1965 SC 1564 has held that to constitute an offence of bigamy, the marriage must be
celebrated with proper ceremonies and in due form.
(d) That it is due to existence of the previous marriage, the subsequent marriage is
rendered void under the personal laws governing the parties: This is very crucial
requirement. Since, under section 11 of the Hindu marriage act 1955, the second
marriage during the existence of the first marriage has been declared void. So, if a
hindu whether male or female enters into second marriage then he is liable to be
punished under section 494 of the IPC. But, a muslim male is permitted to contract as
many as four marriages. So, it is only his fifth marriage which is rendered void due to
existence of already four marriages under the muslim personal and accordingly liable
under section 494 of the IPC for the fifth one. Hence, finally it has to be decided
under the personal law applicable to the parties as to when and which marriage is
rendered void due to existence of the accused's previous marriage.
(e) The section 494 of the IPC has no application if previous marriage of the accused
has been annulled by the court or the spouse of previous marriage has been so absent
for the seven years as to be declared civilly dead.
(iii) Section 495 of the IPC:- It is an extended aspect of section 494 of IPC and states
that if accused conceals the fact of former marriage from the person with whom the
subsequent marriage is contracted then it will act as an aggravating factor and will be
more severely punishable.
(iv) Mock marriage under section 496 of the IPC:- The gist of offence is that a person
whether male or female fraudulently performs a marriage ceremony with no intent of
lawful marriage. So, the prosecution must prove that the accused knew that there was
no valid marriage and he had gone through a show of marriage with a fraudulent or
ulterior motive.
(v) Adultery under section 497 of the IPC:- As it stood prior to Joseph Shine case, it
declared only male offender of adulterous act to be liable for punishment leaving the
the husband of the offending wife as well as the wife of offending husband to be
remediless against their respective disloyal spouse. Similarly, adulteress wife was
exonerated from all criminal consequence on the notion that the women, like chattels,
are the property of men and victim in such offence. Moreover, extramarital affair with
unmarried women or widow was not within the purview of the adultery. Due to such
manifest arbitrariness and being discriminatory, it was declared as ultra virus by the
Hon'ble Apex Court in its judgment Joseph Shine vs UOI.
(vi) Criminal elopement under section 498 of the IPC:- The gist of offence the
deprivation of the husband of his custody and his proper control over his wife with
the object of having illicit intercourse. It has following essential ingredient-
(a) Taking or enticing away or concealing or detaining the wife of another man from
that man or any person having care of her on behalf of that man.
(b) That accused has knowledge or reason to believe that she is the wife of another
man.
(c) Such taking, concealing or detaining must be with the intent that she may have
illicit intercourse with any person.
Over the years, Legislature has also added several other provisions including section
498 A and section 304 B of the IPC. These offences are meant to sub-serve various
other purposes relating to a matrimonial relationship and extinction of life of a
married woman during subsistence of marriage.

Q. 9 What is criminal misappropriation ? How it differs from criminal breach

of trust and cheating ? [Asked in 2012]
Ans. The offence of criminal misappropriation consists in dishonest
misappropriation or conversion either permanently or temporarily of movable
property which is already in the possession of the offender. Such possession of the
property may have earlier come to the accused either innocently such as with the
consent of owner or even wrongfully such as by theft etc. An illustrations (a), (b) and
(C) attached to the section 403 of IPC show that how an original innocent taking gets
transformed into criminal misappropriation by subsequent acts. And, such subsequent
act may be in the form of change of intention or gaining knowledge of some new
facts with which the accused was not previously acquainted and thereby rendering an
initial innocent taking into an offence. The essential ingredients may be mentioned as
under-
(i) There has to be a dishonest mens rea.
(ii) There has to be misappropriation or conversion of the property for a person’s
own use. The appropriate means to set apart or assign the property to oneself or to
another to the exclusion of the owner. Likewise, the words ' convert to own use'
means dealing with the property of another, as if it is one's own property. Most
importantly, there must be actual misappropriation or conversion of thing. The
Hon'ble Apex Court has also held in Ramaswami Nadar v. State of Madras , AIR
1958 SC 56 that the words used in section 403 of IPC ‘converts to his own use’
necessarily connotes that the accused has used or dealt with the property in
derogation of the rights of the owner of the property.
(iii) And, such property must be movable.

Distinction between criminal misappropriation and criminal breach of trust :- Section

403 and 405 of the IPC respectively defines the offence of criminal misappropriation
and criminal breach of trust. Both are offences against the property but they differ as
under:-
(i) In criminal misappropriation, the offender may have come into the possession of
the property in anyway. Whereas, for criminal breach of trust the possession of the
property must come with accused by a particular mode, that is by way of
'Entrustment'.
(ii) In criminal misappropriation, there is dishonest misappropriation or conversion.
Whereas, in criminal breach of trust there can be dishonest misappropriation or
conversion and also by way of dishonest use or disposition of the property in
violation of the term of law or contract constituting the entrustment of such property.
(iii) The criminal misappropriation can be only with respect to movable property.
Whereas, the offence of criminal breach of trust can be committed with respect to
both movable and immovable property.
Distinction between criminal misappropriation and cheating :- Section 403 and 415
of the IPC respectively defines the offence of criminal misappropriation and cheating.
Both are offences against the property but they differ as under :-
(i) In criminal misappropriation, the possession of the property comes with accused
first in point time to commit the offence. Whereas, the offence of cheating may be
committed regardless of the possession of the property with the offender.
(ii) In criminal misappropriation, there is dishonest misappropriation or conversion.
Whereas, in cheating at the first instance there is deception to the complainant and
thereafter a fraudulent or dishonest inducement to deliver property etc.
(iii) In criminal misappropriation, the harm is restricted to the movable property only.
Whereas, in cheating the offender may even cause harm or injury to body, mind and
reputation of the complainant.
(iv) The criminal misappropriation can be only with respect to movable property.
Whereas, the offence of cheating can be committed with respect to both movable and
immovable property.

Q. 10 What is defamation ? What are the essential ingredients to constitute an

offence of defamation ? Explain its exceptions. [Asked in 2013]
Ans. Sections 499 of the IPC provides for defamation and the same is punishable
under Section 500 IPC. A special provision under section 199 of the Cr.P. C has also
been laid down for presentation of complaint in respect of the said offence. The
aforesaid provisions aim to protect the reputation of the person which is an
inseparable facet of Article 21 of the Constitution. Recently, the Hon'ble apex court
has also held its validity in Subramanian Swamy vs UOI (2016) 7 SCC 221 by
holding that such provision has source in the word “defamation” used in Article 19(2)
of the Constitution. In the given question, the point of law involved is being
discussed one after other-
Defamation :- The common thread which emerges from the view of famous author
Salmond & Heuston on the Law of Torts and Winfield & Jolowics on Torts also from
the words of Halsburys Laws of England is that defamation is a statement which
tends to lower a person in the estimation of right thinking members of the society
generally or to cause him to be shunned or avoided or to expose him to hatred,
contempt or ridicule or dislike. The classical definition has also been given by by
Justice Cave in the English case of Scott v. Sampson as a “false statement about a
man to his discredit.”
Essential ingredients:- The necessary ingredients required to constitute the offence of
defamation is as under -

(i) Mens rea : It may be in the form of intention, knowledge and reason to believe and
directed toward harming the reputation of other. Unlike civil concepts of defamation,
the defamation under section 499 is a typical offence and requires blameworthy or
guilty mind to constitue the offece.
(ii) Actus reus : Publishing such harmful imputation with respect to the complainant
either in the libel or slander form i. e. in writing, speaking, in sign or visual
representation. Section 499 of the IPC emphasises the words " makes or publishes"
to convey that defamatory matter is required to be published.
As above, it is categorical that Causing of harm to the reputation of the complainant
is essence of the offence. Then the natural question is as to when an imputation may
be considered harmful to the reputation of other ? The answer lies in Explanation (4)
of the section 499 . The test is to assess the impact of the concerned statement from
the perspective of reasonable man and if it is calculated to lower moral or intellectual
character of the complainant or his caste or calling or credits or demonstrates him in
loathsome or disgraceful state. Still further, the Explanation No. (3) appended to the
section clarifies that merely because statement is in innuendo form the maker can not
escape the liability.
Exceptions :- Sec. 499 is not an absolute offence but acknowledges in all ten
exception whereudner an accused even after making defamatory statement may prove
the required essentials only to the extent of preponderance of probability to avoid his
conviction. The exceptions are as under-

1st Exception:- unlike justification in tort, It does not protect truth as an absolute
defence. It becomes available only if it is cumulatively proved that what has been
imputed concerning the complainant is true and the publication of the imputation is
for the public good. Thus, two ingredients are, namely, truth of the imputation and the
publication of the imputation for the public good .

2nd Exception:- Every citizen has a right to comment on those act of public men
which concern him as a citizen of the country, if he does not make his commentary a
cloak for malice or slander. The Hon'ble apex court has in Kartar Singh vs State of
Punjab AIR 1956 SC 541 that those who fill a public position must not be tooo thiny
skinned in reference to comments made upon them. Whoever fills a public position
renders himself open to attack. He must accept an attack as a necessary, though
unpleasant appendage to his office.
Since, under instant exception accuse is required to show that the opinion expressed
by him was in good faith. So, such comment to be fair must has following attributes-
(i) It must be based on facts truly stated.
(ii) It must not impute corrupt or dishonourable motive to the person whose conduct
or work is criticised except in so far as such imputations are warranted by the facts.
(i) It must be honest expression of the writer's real opinion made in good faith.
3rd Exception:- unlike 2nd exception it is not confined to public servants. It enables
to comment in good faith on the conduct and character of the any person touching to
public question. who work touches on the justification in tort, It does not protect
truth as an absolute defence. It embraces a very wide area for fair comment. So, the
conduct of any person who takes part in matters concerning to the public can be
commented on in good faith.
4th Exception:- It is not defamation to publish substantially true report of the
proceedings of a court of justice or of the result of any such proceedings.
5th Exception:- It is not defamation to express in good faith any opinion regarding
the merits of any decided civil or criminal case or with respect to conduct of any
party , witness or agent in such case or even the character of such person as far as his
character appears in that conduct.
6th Exception:- It is not defamation to comment in good faith on the merits of any
performance, if the author of such performance has submitted it to the judgment of
the public either expressly or impliedly, including on the character of the author so far
as his character appears in such performance.
7th Exception:- It is not defamation to pass in good faith any censure on the conduct
of any person by a another person who is either under authority of law or by way of
lawful cotract has gained the stature of controlling authority with respect to the
matters to which his authority relates.
8th Exception:- Uner it, making over an accusation in good faith against any person
before any lawful authority is not defamation.
9th Exception:- The required ingredients are firstly that the imputation must be made
in good faith; secondly, the imputation must be made for protecting the of the interest
of the maker or recipient of the communication or for the public good.
10th Exception:- The required ingredients are that the accused intended in good faith
to convey a caution to one person against another intending for the good of the person
to whom the caution was conveyed or to some person in whom that person is
interested or for the public goods.

The aforementioned exceptions of section 499 of the IPC are exhaustive in nature and
recourse cannot be had to the English common law to add new grounds of exceptions
as held by hon'ble apex court in M.C.Verghese vs T. J. Ponan AIR 1970 SC 1876.
Thus, Section 499 IPC defines the offence of defamation with specificity and
particularity and enumerates ten broad Exceptions when statements against a person
will not be considered defamatory.

Q. 11 Describe the offences of Voyeurism & Stalking. [Asked in 2013]

Ans. In the aftermath of Delhi gang-rape 'Nirbhaya' case which shook the conscious
of nation. The government of Indian constituted a committee led by retired Chief
justice of India Shri J . S. Verma to suggest changes in the law governing sexual
assault on women. Subsequent to that, acting on the recommendations, the parliament
enacted Criminal Law (Amendment) Act, 2013, which inter alia created new offences
such as Sec. 354 (C) for Voyeurism and 354 (D) for stalking in the IPC w. e. f.
03.02.2013. These two offences are being discussed as under-

Voyeurism:- Etymoligically, the word 'Voyeurism' is derived from the French word
voyeur which literally means “one who looks”. Under section 354 C of the IPC,
following essentials are required to constitute the offence.
(i) That any man watches or captures or disseminates the image of a woman.
(ii) And, it is done so while the women is involved in a given circumstance in such a
private act where she would usually have the expectation of not being observed either
by the perpetrator or by any other person at the behest of the perpetrator. The
Explanation No. (1) attached to the section further elaborates the expression 'private
act' to include an act of watching the place where women in the given circumstances
would reasonably expect her privacy and more specifically where the victim’s
genitals, posterior or breasts are exposed or covered only in underwear or the victim
is using a lavatory or the victim is doing a sexual act that is not of a kind ordinarily
done in public.
(iii) And, for the above act the victim has not consented because the Explanation No.
(2) attached to the section goes to state that to the extent of the victim's consent the
offence stands decriminalized. But, if such consent was limited to the only capturing
of the image then the act of the dissemination of same by the accused is liable to be
punished as an offence of Voyeurism.
It also needs to be mentioned that the offence of the Voyeurism as contained under
section 354 C of the IPC is women specific offence. While, on the same line a gender
neutral and more generic provision is also provided under Section 66E of Information
Technology Act, 2000 to encompass wider area.
Stalking:- Section 354 D of the IPC takes into account both, the physical stalking
and also cyber stalking:
(i) Physical Stalking : It happens in following situation-
(a) That a man follows a woman and thereby either he succeeds to contact her or his
act just remains in the realm of an attempts to contact such woman.
(b) That intention of such man is to foster personal interaction with such women.
(c) That such man continues to do so repeatedly despite a clear indication of
disinterest by such woman to him.
(ii) Cyber stalking : “Cyber stalking” is defined as a crime where the stalkers use
internet or any other electronic device to stalk someone. Under section 354 D clause
secondly states that it is also stalking if accused monitors the use by a woman of the
internet, email or any other form of electronic communication.
Exception : - Section 354 D of the IPC also provides following exception of the
physical and cyber stalking-
(i) That is, if stalking was made for the purpose of preventing or detecting crime and
the stalker had been entrusted with the responsibility of prevention and detection of
crime by the State. Or,

(ii) If stalking was made under any law or to comply with any condition or
requirement imposed by any person under any law. Or,

(iii) When in the particular circumstances the stalking was reasonable and justified.
It also needs to be mentioned that in the aforementioned conditions, section 354 D
makes stalking per se punishable. But, if during such stalking a child below the age of
18 year is targeted with a view to publicize such material in which children are
engaged in sexual activities and to terrorize such children then it also constitutes a
separate offence under 67 B of the Information Technology Act, 2000. Likewise, if
while stalking, the stalker tries to publish any obscene material or sexually explicit
about the victim then depending upon the situation he may also be liable under
section 292 of the IPC or 67 & 67 A of the Information Technology Act, 2000.

Q. 12 Describe the offences relating to "trafficking of person" and exploitation

of a "trafficked person" ? [Asked in 2014]
Ans. In the aftermath of Delhi gang-rape 'Nirbhaya' case which shook the conscious
of nation, a Committee under the Chairmanship of late former Chief Justice of India
J. S.Verma constituted to amend several provisions of IPC. Subsequent to that,
sections 370 and 370A were introduced by the Criminal Law (Amendment) Act, 2013
which respectively deals with trafficking of person and exploitation of the trafficked
person. These two offences are being discussed as under-
Trafficking of person:- Section 370 of IPC deals with it and has following essential
ingredient—
(i) The accused has motive of exploitation of any person. The expression '
exploitation' has been given an expanded connotation under explanation No. (1)
attached to the section to include any act of physical exploitation or any form of
sexual exploitation and more specifically the forced removal of organs or the practice
of slavery or practices similar to that of slavery and servitude.
(ii) In order to such exploitation, the accused recruits, transports, harbours, transfers,
or receives such person.
(iii) And, the victim of such exploitation is recruited, transported etc by way of
threats, force, coercion, abduction, fraud, deception, abuse of power or by through
inducement. It is also clarified that act of inducement includes giving or receiving of
payments or benefits, in order to achieve the consent of any person having control
over the victim of exploitation. Most importantly, it needs to be underlined that by
virtue of explanation No. (2) attached to the section the consent of the victim has
been rendered immaterial in determination of the offence of trafficking. So, accused
cannot take the plea that the victim had duly consented him for the purpose of
exploitation.
On the satisfaction of the
aforesaid ingredient, the offence of the trafficking of person is made out. But, the
tenure of punishment further depends upon the fact whether the accused is first time
offender or a repeat offender. Likewise, if offence of trafficking is committed by a
public servant or by a police officer or where such offence is committed against more
than one person or against a minor victim then it is also treated as a aggravating
factor and punished with more severity.
Recently, Hon'ble hight court of Madhya Pradesh has also held Ku Priyanka vs
State of Madhya Pradesh [CRR No. 789/2019, Order dated 20/05/2020] that a
woman in prostitution cannot be charged with the offence of trafficking under section
370 of IPC because she cannot be said to exploit herself rather she is victim in such
offence.

Exploitation of Trafficked person :- Section 370 A of IPC deals with it and has
following essential ingredient—
(i) Mens rea : The concerned accused must have knowledge or having reason to
believe that minor or a person has been trafficked. A minor or a person is said to have
been trafficked against whom an offence has been committed under section 370 of
IPC.
(ii) Actus reus: With the aforesaid state of mind, the accused engages such trafficked
minor or adult victim for sexual exploitation in any manner. While, at the stage of
trafficking of a person it is only purpose of exploitation need to shown but in the
instant section, there has to be actual engagement for sexual exploitation in any
manner whatsoever.
Under the scheme, if offence is committed against a minor victim then it is treated as
a aggravating factor and punished with more severity.
Q. 13 What is criminal trespass? Whether the offence of criminal trespass can be
committed with respect to a movable property ? Explain with example. [Asked
in 2014]
Ans. Criminal Trespass:- The definition of ‘Criminal trespass’ in Black’s Law
Dictionary is stated as “A person who enters on the property of another without any
right, lawful authority or an express or implied invitation or license”. All around the
globe, trespass against the property has been recognized as a civil wrong. However, a
lot of countries, including India have made it a criminal offence too. In India,
following ingredients of the offence of criminal trespass have been laid down under
section 441 of IPC-
(i) There must be an unauthorised entry into or upon another's property against the
will of such person in possession. It is not always necessary that aggrieved persons
must be in actual physical possession of property. Over the years, a new trend has
emerged to widen the scope of protection against property. The Hon'ble Himachal
Pradesh High court has held in Sant vs The Union of India AIR 1962 HP 1 that the
concept of possession embraces both actual and constructive possession or legal
possession. It is also settled law that the question of title is not to be raised on a plea
of possession as the offence is against possession and not against ownership of
property. Due to such attributes, even a landlord shall be guilty of the offence of
trespass if he forcibly enters the property in possession of tenant and dispossess him
after the expiry of the lease.
(ii) Alternatively, if initial entry was lawfully obtained then unlawfully remaining
therein.
(iii) And such entry or unlawful stay must be with an intention: Unlike civil trespass,
for criminal trespass Just the unlawful presence of a person on someone else’s
property is not enough. There has to be an intentional presence coupled with
following specific objectives-
(a) To commit an offence. Section 40 of the IPC defines as to when an offence is
made out.

(b) Or, To intimidate, insult or annoy the person in possession of the property.

Applicability to movable property:- The section 441 of IPC uses the general term
‘property’ without any qualification. Sec. 22 of the act also gives inclusive definition
of the word 'movable property'. The Hon'ble Apex Court has laid down a test in its
judgment R. K. Dalmia vs Delhi Administration : AIR 1962 SC 1821 that the
word 'property' in a particular section covers all types of property which can be the
subject matter of the offence contemplated in concerned section. Undoubtedly, a
criminal trespass can be committed with respect to even movable property. One such
situation happened in the case of Dhananjoy vs Provat Chandra Biswas : AIR
1934 Cal 480 where hon'ble Kolkata High court expressly held that there could be a
criminal trespass within the meaning of Section 441 to a motor car, an aeroplane and
certainly to a boat. So, the scope of section 441 of IPC is wide enough to cover both
movable and immovable property but does not include incorporeal properties such as
a right of fishery, right to ferry etc..
Example:-
(i) There can be criminal trespass with respect to 'Water Cinema'.
(ii) There can be criminal trespass with respect to ' ATM cash Van'.

Q.14 Distinguish between 'giving false evidence and fabricating false evidence' ?
[Asked in 2015]
Ans. Section 191 and 192 of IPC respectively defines the offence of giving of false
evidence and fabricating of false evidence. The aforesaid both offence is punishable
under section 193 of IPC with same amount of punishment. But, with reference to
ingredient of offence, they differ as follow:-
(i) In giving false evidence, there is making of false statement or false declaration
despite of legal obligation to speak truth. Whereas, the offence of fabricating false
evidence involves causing of any circumstances to exist or making of any false entry
or of any document containing a false statement with a intention that it may appear
before judicial proceeding or before public servant or an arbitrator.
(ii) In giving false evidence, there is general mens rea in the form of knowledge and
reason to believe. Whereas, in the offence of fabricating false evidence there has to
be a particular intention i.e., to use a false entry etc in evidence in proceeding and to
procure the formation of a wrong view on a material point.
(iii) In giving false evidence, the offence is complete at the moment when a false
statement or declaration is made irrespective of the fact that such statement or
declaration may not have been in relation to a material point of proceeding.
Whereas, in the offence of fabricating false evidence, the fabrication must be on a
point material to the proceeding so as to lead court or concerned officer to form an
erroneous opinion touching any material object.
(iv) In giving false evidence, there must be a proceeding, judicial or non-judicial in
existence at the time when the offence is committed. Whereas, in the offence of
fabricating false evidence, it is enough that there is a reasonable prospect of a
proceeding and the fabricated evidence is intended to be used in such a proceeding.

Q.15 What is extortion ? How it differs from theft ? Describe with illustration.
[Asked in 2015]
Ans. The offence of extortion as provided under section 383 of IPC is carried out by
overpowering the will of the complainant. In order to complete the offence of
extortion, the essential ingredients happen in following three stages:-
(i) Firstly, the accused intentionally puts any person in fear of any injury to that
person or any other person. The fear of injury need not be necessarily physical
injury, it may be an injury of any kind as enumerated under section 44 of the IPC.
But, the fear of injury must be of a real nature so as to unsettle the mind of man upon
whom it is exercised in such a way that the act does not remain voluntary.
(ii) Secondly, while the complainant remains in fear of injury, the accused
dishonestly induces him to deliver any property or valuable security or anything
which is singed or sealed and may be converted into a valuable security.
(iii) Finally, the person extortioned must deliver abovementioned property either to
the accused himself or at his instruction to anyone else. Delivery of property by the
person put in fear is the essence of the offence under this section as held in
Jadunandan Singh vs Emperor, AIR 1941Pat 129.

Difference:- Both extortion and theft are offence against the property, but they differ
in following way-
(i) In theft, the property is taken away without the consent of the owner. Whereas, in
extortion, the consent of the owner is obtained by putting him in fear of injury.
(ii) The offence of theft can be committed only with respect to movable property.
Whereas, in extortion the property may be either movable or immovable.
(iii) In theft, there is moving of the property for taking dishonestly. Whereas, in
extortion, there is delivery of the property.
(iv) In theft, the subject matter of the offence has to be in possession of the
complainant. Whereas, in extortion the property may not be in possession of the
complainant at the time of offence.
Illustration:-
(i) If 'A' goes to the house of his friend 'B' to meet him and takes away a book from
his study table without his knowledge in order to retain with him then it's a case of
theft. However, in the same case if 'A' after meeting with 'B' puts him in fear of injury
and makes him to deliver a book then it's a case of extortion.
(ii) If 'A' picks the pocket of 'B' and takes away the money then it's a case of theft.
However, if 'A' telephonically calls 'B' and puts him in fear of injury and thereafter
asks him to deliver the money which he is carrying in his pocket to the extortionist
himself or to anyone else then it's a case of extortion.

Q. 16 What do you mean by "Common Intention" ? How does it differ from

"Common Object" ? [Asked in 2016]
Ans. Section 34 of the IPC is based on an English case Reg vs Cruse 1838 SC & P
541. It simply lays down a rule of evidence and does not create any substantive
offence. Under it, the basis of liability is not actually committing of the offence with
own hand rather it is sharing of 'common intention' with co-accused to commit an
offence. Accordingly, once a common intention is shown to exist then irrespective of
the actual role in the offence, all accused are vicariously liable for the acts of others
which is done in furtherance of the common intention of all.
Since, common intention is sine qua non for liability under section 34 of IPC. Hence,
its salient feature needs to be spelt distinctly in order to identify its existence or non-
existence in any particular case. The Hon'ble Apex Court in Pandurang vs The State
Of Hyderabad : AIR 1955 SC 216 held that common intention requires a pre-
arranged plan in a prior meeting of mind. If such prior concert is lacking then two or
more accused can have similar intention but that cannot qualify to be called common
intention as held by Privy Council in leading case Mahbub Shah vs Emperor,(1945)
47 BOMLR 941 . But, it is equally important to mention that such prior meeting of
mind or concert need not to be very elaborate. It can be formed or develop even at
the spur of moment as held by Hon'ble Apex Court in Dukhmochan Pandey vs
State of Bihar, AIR 1998 SC 40. In each and every case it is question of fact
whether mutuality of mind is reached because of meeting of minds and fusion of idea
or not by looking attending circumstances of the case and also the mutually
complimentary conduct of the accused.
Difference:- Both section 34 of IPC and section 149 of IPC deal with group liability.
In fact, Hon'ble Apex Court in Karnail Singh v. State 127. AIR 1954 SC 204 went
on to hold that sections 34 and 149 overlap to each other to some extent. But, despite
of that , there is real and substantive distinction between the aforesaid two provisions
which may be discussed as under -
(i) Section 34 of IPC incorporates a rule of evidence. Whereas, section 149 of IPC
creates a substantive offence.

(ii) Under section 34 of IPC requirement is of two or more accused. Whereas, under
section 149 of IPC there has to be five or more persons to constitute an unlawful
assembly.

(iii) Under section 34 of IPC the liability originates with respect to act done in
furtherance of common intention of all. Whereas, under section 149 of IPC makes
liable for the act done in furtherance of common object and also even for acts known
to be likely to be committed in prosecution of the common object.

(iv) Under section 34 of IPC there has to be participation is some action whether by
overt or covert act. Whereas, under section 149 of IPC mere membership of the
assembly at the time of the committing of the offence is sufficient to fasten with
liability.

Q. 17 What is private defence ? When does the right of private defence of the
body extend to cause death ? [Asked in 2016]
Ans. Right of private defence is essentially a defensive right and acknowledges the
need of self-preservation because the vigilance of magistrate can never make up for
the vigilance of each individual on his own behalf. As per section 97 of the IPC, the
right of private defence is available not only with respect to his own body and
property but also with respect to the body and property of any other person
respectively against any offence affecting the human body and a few specified
offences affecting the property. All act done in exercise of right of private defence is
justified under section 96 of IPC and exonerated from criminal consequences.
Extension of right of private defence of the body to cause death:- Under section 100
of the IPC, the right to private defence of the body may be even exercised to the
extent of voluntary causing death of the assailant, if the offence which occasions the
exercise of the right falls under any of the following descriptions :-
Firstly - Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault.
Secondly - Such an assault as may reasonably cause the apprehension that grievous
hurt will otherwise be the consequence of such assault.
Thirdly - An assault with the intention of committing rape.

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

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

Sixthly - An assault with the intention of wrongfully confining a person, under such
circumstances which may reasonably cause him to apprehend that he will be unable
to have recourse to the public authorities for his release.

Seventhly - An act of throwing or administering acid or an attempt to throw or

administer acid which may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such act.

Extension of right of private defence of the property to cause death:- Likewise, under
section 103 of the IPC, the right to private defence of the property may be even
exercised to the extent of voluntary causing death of the assailant, if the offence
which occasions the exercise of the right falls under any of the following
descriptions :-
Firstly—Robbery.
Secondly —House-breaking by night.

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

Fourthly —Theft, mischief, or house-trespass, under such circumstances as may

reasonably cause apprehension that death or grievous hurt will be the consequence, if
such right of private defence is not exercised.

But, the aforementioned scope of the right to private defence is not unfettered or
absolute. This aspect is very much apparent from the opening words of Sec. 97, 100
and 103 etc which goes to state that exercise of private defence is subject to the
restrictions mentioned in section 99 of the IPC. Such restrictions are as important as
the right itself. The Hon'ble Apex Court has held in State Of U.P vs Ram Swarup
AIR 1974 SC 1570 that the right of private defence is a right of defence not of
retribution. It is available in the face of imminent peril to those who act in good faith
and never who act under pre-meditated plan. The scope of right to private defence is
circumscribed with following limitations:-

(i) There is no right of private defence against any act if done or attempted to be done
by the public servant himself or under the direction of such public servant by
someone else while acting in good faith under the colour of his office though such act
or direction may not be strictly justifiable by law. However, the protection to public
servant or those acting under their direction is not absolute. Such protection has its
own exception in following circumstances-

(a) When act of public servant or those acting under their direction reasonably cause
the apprehension of death or of grievous hurt to the victim.

(b) When the victim/accused does not actually know or he has no reason to believe
that the act is done by public servant or under his direction.

(c) When those acting under the direction of the public servant does not state the
authority or if he has the authority in writing does not produce the same on the
demand of victim/accused .

(ii) There is no right of private defence when there is time to have recourse to the
protection of the public authority. The necessity of self-help disappears when accused
had ample opportunity to have recourse to state authorities.

(iii) Private defence does not extend to inflict more harm than it is necessary to inflict
for the purpose of defence. The principle is that the force of repulsion must bear
reasonable proportion to the force of aggression. The Hon'ble Apex Court in
Mohinder Pal Jolly vs State of Punjab AIR 1979 SC 577 where the worker of the
company threw stone and in response to that the owner of the company fired with
revolver, had held that private defence was exceeded. But, at the same time, it is
equally relevant to mention that the victim is not required to weight on golden scales
in the heat of the moment the number of injuries required to disarm his assailants as
held by Hon'ble Apex Court in Buta Singh vs The State Of Punjab AIR 1991 SC
1316.

Q. 18 When offence falls under Sec. 304 Part (I) and when falls under Sec. 304
Part (II) of I.P.C, ? Discuss. [Asked in 2017]
Ans. The term ‘culpable homicide is defined u/s 299 IPC and ‘Murder’ is defined u/s
300 IPC. Illustratively, the culpable homicide is a full circle out of which when
additional condition of the section 300 of IPC is satisfied then a part of it qualifies to
become a graver offence of culpable homicide amounting to murder and the residue
remains punishable as such culpable homicide under section 304 of IPC. But, section
304 of the IPC further makes sub-classification of culpable homicide not amounting
to murder and punishes them with different sentence. Those are as under-
Offence under section 304 Part (I) :- In following circumstances:-
(i) When clause (a) of the section 299 is attracted but additional condition of the
corresponding section 300- clause firstly is not satisfied. That is, whoever causes
death by doing an act with the intention of causing death
(ii) When clause (b) of the section 299 is attracted but additional condition of the
corresponding section 300- clause firstly or Secondly is not satisfied. That is.
whoever causes death with the intention of causing such bodily injury as is likely to
cause death.
With respect to above two categories, the Hon'ble Apex Court has also held in
Keshub Mahindra vs State of M. P., (1996) 6 SCC 129 that the first part of section
304 of IPC applies where the accused causes necessary bodily injury to the victim
with intention leading to culpable homicide whereas Part II of the said section, comes
into effect when death is caused by doing an act with knowledge that it is likely to
cause death.
(iii) When either clause (a) or clause (b) of the section 299 is attracted and at the
same time the requisite additional condition of the corresponding section of 300 IPC-
clause firstly or Secondly or Thirdly is satisfied leading to the elevation of offence
into culpable homicide amounting to murder. But, further at the same time either of
the five exception of section 300 of the IPC is attracted and thereby the same offence
is reverted back to the culpable homicide by virtue of that effect. Such culpable
homicide is also punishable under section 304 Part (I) of the IPC as held by Hon'ble
Apex Court in Mohinder Pal Jolly vs State of Punjab 1979 AIR SC 577 that If the
accused commits an act while exceeding the right of private defence by which the
death is caused either with the intention of causing death or with the intention of
causing such bodily injury as was likely to cause death then he would be guilty under
Part I of Section 304 of IPC. On the other hand if accused had only knowledge based
mens rea and thereby his act is murder under section 300 within the meaning of
clause "4thly", then in case of application of any of the five exception to that section
the offence is punishable only under Part II of Section 304 of IPC.

Offence under section 304 Part (II):- In following circumstances:-

(i) When clause (c) of the section 299 is attracted but additional condition of the
corresponding section 300 - clause fourthly is not satisfied. That is, whoever causes
death with the knowledge that he is likely by such act to cause death.
(ii) When clause (c) of the section 299 is attracted and at the same time the requisite
additional condition of the corresponding section of 300 IPC- clause Fourthly is
satisfied leading to the elevation of offence into culpable homicide amounting to
murder. But, further at the same time either of the five exception of section 300 of the
IPC is attracted and thereby the same offence is reverted back to the culpable
homicide by virtue of that effect. Such culpable homicide is also punishable under
section 304 Part (II) of the IPC as held by Hon'ble Apex court in Elavarasan v.
State (2011) 7 SCC 110 that if in any particular case the accused is found to have
committed murder within the meaning of section 300- clause fourthly of IPC and at
the same time of any of the five exception appended to that section is atrracted then
offence gets reduced into culpable homicide and punishable under section under S.
304 Part II IPC.
Therefore, in conclusion all intention based culpable homicide simpliciter is
punishable under section 304 Part I of the IPC whereas the knowledge based culpable
homicide is punishable under section 304 Part IInof the IPC.
Q. 19 What do you mean by term Criminal Conspiracy ? How is it punishable ?
Discuss differences between Criminal liability under section 34 IPC and criminal
conspiracy under section 120A IPC. [Asked in 2017]
Ans. In the original I.P.C., the criminal conspiracy in the stictu sensu was absent. It
existed only by way of abetment under section 107-clause secondly of the IPC.
Subsequent to addition of Sec. 120 A & B in IPC vide 1913 amendment, the scope of
criminal conspiracy has expanded and assumed the character of a substantive offence.
For the first time, the House of Lord in England evolved a new criminal
jurisprudence in the form of criminal conspiracy in its judgment Mulcahy vs Regina:
(1868) LR HL 306. Later on, Lord Brampton defined Criminal conspiracy in leading
case of Quinn v. Leathem (1901) AC 495 (528). The aforesaid definition is also
reflected under S. 120-A of the IPC and goes to state that 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. It is further added by virtue of 'Proviso' in the section that except when the
agreement is to commit an offence in order to constitute criminal conspiracy some act
in addition to such agreement is also required to be done.
Punishability:- Conspiracy is both a crime as well as a tort in India. Unlike just for a
ground of damages, in order to be punishable the conspiracy has to satisfy the
substantive ingredient of offence as provided under section 120 A of IPC. To govern
its procedural aspect, there are also several other relevant provision. Section 10 of
IEA act acknowledges that conspiracy is hatched in secrecy and thereby makes
special rule to lead fact in evidence to prove the same. Likewise, section 196(2) of
CrPc provides special procedure of obtaining sanction of the government when
conspired offence is punishable with less than 2 year rigorous imprisonment because
provision of conspiracy is prone to be misused to implicate even innocent person.
Recently, Hon'ble Apex court in Rajiv Kumar vs State Of Uttar Pradesh (2017) 8
SCC 791 has highlighted the necessary constituent element of criminal conspiracy
which are as under -
(i) There has to be an agreement to cause an illegal act or an act which is not illegal in
itself by way of illegal means : So long as a design rests in intention only, howsoever
horrendous it may be, it is not indictable because conspiracy consists not merely in
the intention of two or more but in the agreement of two or more. The essence of the
offence of conspiracy is the meeting of minds and such combination or association is
itself the gist of the offence. So, it is the unlawful agreement which is the gravemen
of the crime of conspiracy.
Since, the offence of criminal conspiracy has its foundation in an agreement to
commit an illegal act or a legal act by illegal means. Section 43 of IPC defines
expression 'illegal' to cover everything which is an offence or which is prohibited by
law or which furnishes ground for a civil action. Such unlawful agreement which
amounts to a conspiracy need not be formal or express, but may be inherent in and
inferred from the circumstances, especially declarations, acts and conduct of the
conspirators. It is also not necessary that each conspirator must know all the details of
the scheme nor be a participant at every stage.
The crux of the aforementioned law has been nicely summed up by Hon'ble Apex
Court in Esher Singh vs State Of Andhra Pradesh (2004) 11 SCC 585 is that when
two or more person agree to carry out an illegal act or a legal act by illegal means
into effect, then the very plot is an act in itself, and an act of each of the parties,
promise against promise, actus contra actum, is punishable.

(ii) The agreement must be between two or more natural persons: It is an established
rule of the law of conspiracy that there should be at least two persons. The Hon'ble
Apex court in Topandas vs The State Of Bombay AIR 1956 SC 33 held that it is
a principle of common sense that one person alone can never be held guilty of
criminal conspiracy for the simple reason that one cannot conspire with oneself. But,
Hon'ble Apex court has also visualised the possibility in Bimbadhar Pradhan vs
The State Of Orissa AIR 1956 SC 469 when a person may be indicted alone for
conspiring with persons who are unknown, dead, uncaught, incapable of committing
the crime or immune or have been pardoned.
(iii) If such agreement is to commit offence then it is ipso facto sufficient to
constitute criminal conspiracy and in all other cases an act besides agreement is also
needed: The 'Proviso' attached to the section 120 A of the act draws distinction
between an agreement to commit offence and all other agreement such as an act
forbidden by law etc. While in the former case agreement on its own constitutes the
criminal conspiracy but in the latter cases an overt act needs to be done in pursuance
of the conspiracy to complete the criminal conspiracy. The Hon'ble apex court also
held in State vs Nalini (1999) 5 SCC 253 (Rajiv Gandhi Assasination case) that
when agreement is to do a legal act by illegal means then an overt act is necessary to
constitute crime of conspiracy.

Difference:- Both section 34 of IPC and section 120 A of IPC aim to discourage the
group offender. But, they differ as under -
(i) Section 34 of IPC incorporates a rule of evidence and does not constitute any
offence on its own. So, the charge under section 34 of IPC should be along with some
other substantive offence, i. e. 323/34 of IPC. Whereas, section 120 A of IPC creates
a substantive and independent offence i. e. 120 B of IPC.

(ii) Under section 34 of IPC, the essence of offence is common intention by two or
more persons. Whereas, under section 120 A of IPC, it is an agreement to commit an
offence etc by two or more persons which is gravemen of offence.

(iii) Section 34 of IPC is applicable when some criminal act is done in furtherance of
common intention of all. Whereas, under section 120A of IPC mere an agreement to
commit an offence is per se punishable without any need of overt or covert act.

(iv) Under section 34 of IPC, the offender has to be physically present at the scene of
crime or at such distant place from where he can participate in some way in the
offence including just keeping watch by bin-cular. But, under section 120 A of IPC a
person even far away from the place of offence and doing nothing at the time of
offence can be made liable for criminal conspiracy if he was privy to the agreement
to commit an offence.
Q. 20 Define Criminal Intimidation ? How Criminal Intimidation is different
from extortion ? [Asked in 2018]
Ans. In layman's perspective, the 'criminal intimidation' means giving threat with an
intention to cause any injury to any person or his reputation or property. Section 503
of the IPC specifically defines criminal intimidation and the same is made
punishable under section 506 of the act. Section 506 of the IPC has two parts, first
part deals with threat aspect and the second part with the requisite intention aspect of
the criminal intimidation and both have to simultaneously co-exist in order to
constitute the offence. The definition of criminal intimidation has following
necessary ingredients-
(i) That the offender must threaten the victim himself with injury to his person,
reputation or property or even to the reputation or person of anyone in whom victim
is interested.
(ii) The intent of such threatening must be either of following in order to avoid the
execution of such threat :
(a) To cause alarm to that person, or
(b) To do something which he is not legally bound to do, or
(c) To omit something which he is legally bound to do.
As above, the gist of the offence is the effect which the threat is intended to have
upon mind of person threatened. So, in order to have effect upon the mind of victim
the threat must be either made to him by the person threatening or communicated to
him in some way.
Difference:- In a very locus classicus judgment of Ramesh Chandra Arora vs.
State, AIR 1960 SC 154, the Hon'ble Apex Court had held that it is often that a
particular act in some of its aspects comes within the definition of a particular offence
in the Indian Penal Code, while in other aspects, or taken as a whole, it comes within
another definition of offence under the act and despite of that feature there are
obvious differences between the offence of extortion as defined in section 383 and
the offence of criminal offence intimidation as defined in Section 503 of the IPC. The
main distinction is as under -
(i) Section 383 of IPC provides for an offence against property. Whereas, criminal
intimidation as provided under section 503 of IPC is an offence against body.

(ii) Section 383 of IPC, the accused intentionally puts in fear of injury to the victim
himself or anyone whom he is interested. Whereas, section 503 of IPC the accuse
threatens with any injury to the victim himself or anyone whom he is interested.

(iii) Under section 383 of IPC the purpose putting in fear is to dishonestly induce
from the person so put in fear to deliver any property, valuable security etc. Whereas,
under section 503 of IPC the intent of threatening is to cause alarm or make victim to
do which is not legally bound to do or making him to omit which he is legally bound
to do.

(iv) Under section 383 of IPC in order to constitute the offence, the delivery of the
extorted property is mandatory. Whereas, under section 506 of IPC in order to
constitute criminal intimidation it is only intention of accused to cause alarm etc
which is relevant and it is irrelevant whether victim got alarmed or not as held by
Hon'ble Orissa High Court in Amulya Kumar Behera vs Nabaghana Behera ,
1995 CriLJ 3559.

Q. 21 State with reasons, what offence, if any, has been committed by 'A' in
following cases [Asked in 2018]

(i) 'A' finds valuable ring on the road. He picks it up and sell immediately?
Ans. The explanation No. (II) of Section 403 of the IPC prescribes the duty and
liability of the finder of goods of any movable property out of possession of any
person. In such circumstances, it is no offence at all to merely take such property
possession with a view to protect the same or restore it to the owner. But, such finder
of goods becomes liable in following circumstances-
(i) Subsequent to taking into possession of goods, he appropriates the goods to his
own use despite of having actual knowledge about its owner or alternatively he had
means of discovering the owner.
(ii) Or, he appropriates the goods to his own use without using reasonable means to
discover and give notice to the owner and without keeping the property a reasonable
time to enable the owner to claim it.
In the light of aforementioned discussion of law, the accused 'A' in the given problem
has committed an offence of criminal misappropriation as defined under section 403
of the IPC because he appropriated the valuable ring 'immediately' without resorting
the reasonable mean to discover and give notice the owner and also without keeping
the same with him till a reasonable time.

(ii) 'A' cause cattle to enter upon a field belonging to "B" intending to cause and
knowing that he is likely to cause damage to the crop of "B".
Ans. Under section 425 of the IPC, in order to constitute the offence of mischief
following essential ingredient must be satisfied-
(i) That a wrongful loss or damage to the public at large or to any specific person
was intended or there was knowledge of such consequence. It shows that Mens rea is
an essential ingredient.
(ii) And with the aforesaid mens rea, that any property was actually destroyed or any
change should occur in any such property or in the situation thereof that destroys or
diminishes its value or utility or affects it injuriously.
In the light of aforementioned discussion of law, the accused 'A' in the given problem
has committed an offence of mischief as defined under section 425 of the IPC
because he with requisite guilty mind has actually caused damage to the crop of 'B'
standing in the field.
(iii) 'A' flew away with an aeroplane without permission of authorities however
he restored the aeroplane at its place a day after..
Ans. Section 378 of the IPC defines theft and enumerates following essential
ingredient in order to constitute the offence-
(i) Moving a movable property of a person out of his possession without his consent.
(ii) That such moving is in order to take the property with a dishonest intention.
If the aforementioned requirement is satisfied then it is immaterial that the concerned
movable property was taken out of the possession only temporarily. The Hon'ble
Apex Court has in K. N. Mehra vs The State Of Rajasthan, AIR 1957 SC 369 in
similar factual matrix that under section 378 of the IPC in order to complete the
offence a total deprivation of property is not required. The aforesaid legal position
has also been reiterated by Hon'ble Apex Court in Pyare Lal Bhargava vs State Of
Rajasthan, AIR 1963 SC 1094 and held that in order to commit theft one need not
take movable property permanently out of the possession of another with an intention
not to return it to him. So, under the definition of theft it is sufficient to constitue
offence if any movable property is dishonestly taken out of the possession of another
person even accused had an intention to return it sooner or later.
In the light of aforementioned discussion of law, the accused 'A' who flew the
aeroplane without permission of authorities has caused loss to such authority due to
deprivation or dispossession. Hence, accused 'A' has committed an offence of theft as
defined under section 378 of the IPC and it is immaterial that he intended to return
the aeroplane at some later point of time.
(iv) 'A' enters in 'B's house at midnight with intention of committing theft', but
moved away by poverty of B. He kept Rs. 50 in house and left away.
Ans. In the given problem, the culpability of the accused 'A' needs to be examined
on following points-
(i) Related to house trespass :- The accused 'A' has committed an offence of House
trespass simpliciter as defined under section 442 of IPC and accordingly punishable
under section 451 of IPC because he has entered into a building which is used as a
human dwelling (house) with an intention of committing an offence i. e. to commit
theft.
(ii) Related to theft :- Under scheme of Indian Penal Code, 1860, the stage of
preparation to commit the offence of theft is not punishable. It is only an attempt to
commit theft and the offence of theft itself which are punishable. The question as to
whether any particular act of the accused has crossed the stage of preparation and
entered into the realm of an attempt of the offence has to be determined with the help
of Proximity test as laid down by Hon'ble Apex Court in State of Maharashtra vs
Mohammad Yakub (1980) 3 SCC 57. That is, if accused after making preparation
and with the intention to commit the offence, does an act towards its commission
though such act need not be the penultimate act towards the commission of that
offence but must be an act during the course of committing that offence.
In the light of aforementioned discussion of law, the accused 'A' in the given problem
has barely entered into house which has constitued a separate offence but he did not
do any thing related to the offence of theft and much less any direct act toward the
commission of theft. Hence, on the point of committing an offence of theft, the
accused has committed no offence and his act has remained in the stage of
preparation itself.

Q. 22 What is an ' Unlawful Assembly' ? Who is said to be the member of an

unlawful assembly ? When is a member of an unlawful assembly constructively
liable for the offence committed by any other member of that Assembly ? Can
less than five persons be convicted with the aid of Section 149 ? [Asked in 2019]
Ans. In a group liability pertaining to an unlawful assembly a person may be
constructively liable for an offence by virtue of being just a member of it and
regardless of the fact that no specific actus reus is attributable to him. In the given
question, the point of law involved is being discussed one after other-

Unlawful Assembly:- Under section 141 of the Indian Penal Code an assembly of five
or more person gets transformed into an unlawful assembly as and when its common
object is relatable to any of the following purposes -
(i) To overawe by criminal force Central goverment or State goverment or Legislature
or Public servant in the exercise of lawful purpose.
(ii) To resist the execution of law or any legal process.
(iii) To commit mischief, trespass or other offense.
(iv) By criminal force to obtain possession of any property or to enforce any right or
supposed right or to deprive any person of any incorporeal right.
(v) By criminal force to compel any person to do what one is not legally bound to do
or to omit what one is legally bound to do.
The fact and attending circumstances are relevant to decide as to what is the common
object of an assembly at a given of point of time. The Explanation appended to
section 141 of the IPC also clarifies that an assembly which is not unlawful at the
commencement may become subsequently an unlawful assembly. So, a requisite
common object can develop even after the accused has assembled.
Member of an unlawful assembly:- Section 142 of IPC declares as to who is a
member of an unlawful assembly. In order to hold a person as a member of an
unlawful assembly, the following two conditions must be satisfied-
(i) The person joining the assembly must be aware of the facts which render the
assembly unlawful as specified in section 141 of IPC.
(ii) The person must either intentionally join that assembly or if he joined the
assembly before being so aware he must continue in it after becoming so aware.
However, after becoming so aware if he chooses to withdraw from that assembly
which may be either actual and voluntary or involuntary then for any act after his
withdrawal he cannot be made liable.
The Hon'ble Apex Court held in Chandan Bihari Gautam vs State of Bihar, 2002
(9) SCC 208 that mere presence of the accused in not sufficient to hold them guilty
for the sharing of common object as the prosecution has to further establish that they
were not mere by-standers but in fact were sharing the common object.

Vicarious liability of a member of an unlawful assembly :- If any person is the

member of any unlawful assembly at a particular time within the meaning of section
142 of IPC then Section 149 of the IPC makes him vicariously liable for all offences
which any other member of that unlawful assembly happens to commit irrespective
of his role in the following circumstances-
(i) If an offence is committed in prosecution of common object of the unlawful
assembly.
(ii) Or alternatively, If the committed offence is of such nature that such member of
the unlawful assembly knew to be likely to be committed in prosecution of common
object of the unlawful assembly.
The Hon'ble Apex court held in Mizaji vs State of U.P. AIR 1959 SC 572 that
section 149 of the IPC fixes liability under two part and each one is alternative.
Therefore, even if the first part of the section does not apply in a given case due to
lack of direct relationship with the common object of the unlawful assembly still the
liability may be imposed on accused if the committed offence is of such nature that
he knew the same likely to be committed. On the part of accused knowledge of the
likelihood of the commission of an offence is gathered from the nature of common
object for which unlawful assembly is formed and also preparedness such as carrying
of formidable weapon , aggressive behaviour etc.

Minimum number of person required to convict with the aid of Section 149 :-
To attract section 149 of the IPC, the following conditions must be satisfied-
(i) There was an assembly of five persons.
(ii) The assembly had a common object.
(iii) The said common object was to consist one or more of the five illegal object
specified in section 141 of the IPC.
(iv) The particular offence was committed in prosecution of common object or was
within required knowledge.
Accordingly, Unlike English Law where only three persons constitutes an unlawful
assembly, the number of persons composing unlawful assembly under section 141 of
the IPC must be five or more. In fact, this point is no more res-intra, a way back in
1963 the constitutional bench of the hon'ble apex court has established in Mohan
Singh vs State of Punjab AIR 1963 SC 174 that where only five named persons
have been charged for constituting an unlawful assembly and one or more of them are
acquitted, the remaining accused who are less than five in number cannot be
convicted as members of an unlawful assembly unless it is proved that the unlawful
assembly besides convicted persons consisted of some other persons but they were
not identified and so could not be named in the case. The aforesaid law has been yet
again reiterated by hon'ble apex in Maina Singh vs State Of Rajasthan AIR 1976
SC 1084.
Thus, the combined reading of sec. 141 and 149 shows that an assembly of less than
five member is not an unlawful assembly within the meaning of section 141 and
cannot therefore form the basis for conviction of an offence with the aid of section
149. The only situation where less than five persons can be convicted with the aid of
Section 149 is that the concerned offence is shown to have been committed by the
person who is being convicted along with some other unknown or unidentified
persons who could not be named in the case but cumulatively such persons were in
five or more in numbers.
Q. 23 Describe any two and distinguish between the following: [Asked in 2019]
(1) Cheating & Criminal breach of trust.
Ans. Section 415 and 405 of the IPC respectively defines the offence of cheating
and criminal breach of trust. Both are offences against the property but they differ as
under:-
(i) In cheating, it is not essential constituent of the offence that there has to an
entrustment of any property with the accused. Whereas, for criminal breach of trust
there has to be necessarily an 'Entrustment' of property or dominion over it to the
accused.
(ii) In cheating at the first instance a deception has to be practiced over the
complainant and thereafter a fraudulent or dishonest inducement to deliver property
etc.. Whereas, in criminal breach of trust, it is by way of contract or under the
provision of law the property or dominion over it passess from the complainant to the
accused.
(iii) In cheating the offender may even cause harm or injury to body, mind and
reputation of the complainant. Whereas, in he harm is restricted to the movable
property only. Whereas, in criminal breach of trust, the harm is restricted to the
property in the form of dishonest use or disposition of the property in violation of
the term of law or contract constituting the entrustment of such property..
(2) Abetment & Criminal conspiracy.
Ans. Both abetment and criminal conspiracy are inchaote offence. Under section 107
clause secondly one of the recognised mode of abetment is by way of engaging in
conspiracy. Subsequent to addition of Sec. 120 A & B in IPC vide 1913 amendment,
the conspiracy in Indian is not only a form of abatement but also a substantive
offence. But despite of such close affinity, the criminal conspiracy is somewhat wider
in amplitude than abetment by conspiracy as contemplated under Sec. 107 of IPC.
The main distinction could be mentioned as below:-
(a) An abetment may be committed by way of instigation, Engaging in conspiracy
or by intentional aid but criminal conspiracy is committed by meeting of minds or
an agreement. So, criminal conspiracy is just one form of abetment and stand in
relation of species and genus respectively.
(b) For an offence under the second clause of section 107 of the IPC, a mere
combination of persons or agreement is not enough and an act or illegal omission
must take place in pursuance of the conspiracy. But, for an offence of criminal
conspiracy under section 120 A & B of the IPC, a bare agreement to commit an
offence is itself enough to complete the offence without any need of overt or covert
act.
(c) The Sec. 107 th clause secondly is restricted to only offence. So, an abetment by
conspiracy can be committed only with respect to any offence. But, section 120 A
read with section 43 of the IPC brings out that criminal conspiracy can happen not
only with respect to offence but also for an act which is prohibited by law or an act
which leads to civil liability.
(d) In case of abetment by conspiracy charge has to be framed along with the abetted
offence, viz Sec. 109/302 IPC. But, an offence of criminal conspiracy is an
independent offence and punishable on its own, viz Sec. 120 B IPC.
(e) The act of abettor is punishable under section 108 To 117 of the IPC depending
upon the situations. Whereas, the crime of criminal conspiracy is punishable under
section 120 B of the IPC.
(f) The abettor is not a principle offender. Whereas, in criminal conspiracy each
accused is a principal offender .
(g) An abetment can be committed by one or more persons , whereas conspiracy can
be committed by two or more persons.
(3) Giving false evidence and fabricating false evidence.
Ans. Section 191 and 192 of IPC respectively defines the offence of giving of false
evidence and fabricating of false evidence. The aforesaid both offence is punishable
under section 193 of IPC with same amount of punishment. But, with reference to
ingredient of offence, they differ as follow:-
(i) In giving false evidence, there is making of false statement or false declaration
despite of legal obligation to speak truth. Whereas, the offence of fabricating false
evidence involves causing of any circumstances to exist or making of any false entry
or of any document containing a false statement with a intention that it may appear
before judicial proceeding or before public servant or an arbitrator.
(ii) In giving false evidence, there is general mens rea in the form of knowledge and
reason to believe. Whereas, in the offence of fabricating false evidence there has to
be a particular intention i.e., to use a false entry etc in evidence in proceeding and to
procure the formation of a wrong view on a material point.
(iii) In giving false evidence, the offence is complete at the moment when a false
statement or declaration is made irrespective of the fact that such statement or
declaration may not have been in relation to a material point of proceeding.
Whereas, in the offence of fabricating false evidence, the fabrication must be on a
point material to the proceeding so as to lead court or concerned officer to form an
erroneous opinion touching any material object.
(iv) In giving false evidence, there must be a proceeding, judicial or non-judicial in
existence at the time when the offence is committed. Whereas, in the offence of
fabricating false evidence, it is enough that there is a reasonable prospect of a
proceeding and the fabricated evidence is intended to be used in such a proceeding.
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