LAW OF CRIMES: INDIAN PENAL CODE

PART – A (5 X 6 = 30)

1. Territorial Jurisdiction

Ans: Jurisdiction and operation of the Indian Penal code (IPC) is dealt with in Section 1 to 4.
It is the power to exercise control and adjudicate over disputes and take necessary legal
action against it. Territorial jurisdiction is nothing bur the geographical limits of a state
within which any offence or dispute will be adjudicated.

Section 2 of the Indian Penal Code deals with the intra territorial jurisdiction of the Code. It
makes the code universally applicable on all the persons on every act or omission contrary to
the provisions of the Act. Section 3 and Section 4 confer extraterritorial jurisdiction to the
Code. According to which a person can be held liable for any act committed beyond the
territory of India.

The only requirement under Section 2 to incriminate a person is that he should commit the
act or omission within the territory of India. Thus, a foreigner who committed a wrong within
the territory of the country cannot plead ignorance of Indian law. However, there are
exceptions to the universal application of the code and so specific class of people are immune
from criminal liability, the class of people include:

 Foreign sovereign;
 Diplomats;
 Enemy aliens;
 foreign army and warships;
 President and governors.

Section 4 of the Indian Penal Code expands the ambit of application of Section 3 of the Act.
According to Section 4 of Indian Penal Code, when an offender has committed an offence
outside the territory of India but is found within the territory of India. Then there are two
courses of actions which may be resorted to:

Extradition: He can be sent to the country where the effect of his wrongdoing took place,

Extraterritorial jurisdiction: he may be tried in accordance with the criminal laws of India.

2. Intention

Ans: Intention is the first stage in the commission of an offence and known as mental stage.
Intention is the direction of conduct towards the object chosen upon considering the motives
which suggest the choice. But the law does not take notice of an intention, mere intention to
commit an offence not followed by any act, cannot constitute an offence. The obvious reason
for not prosecuting the accused at this stage is that it is very difficult for the prosecution to
prove the guilty mind of a person.

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 3. Preparation

Ans: Preparation is the second stage in the commission of a crime. It means to arrange the
necessary measures for the commission of the intended criminal act. Intention alone or the
intention followed by a preparation is not enough to constitute the crime. Preparation has not
been made punishable because in most of the cases the prosecution has failed to prove that
the preparations in the question were made for the commission of the particular crime.

Eg: If A purchases a pistol and keeps the same in his pocket duly loaded in order to kill his
bitter enemy B, but does nothing more. A has not committed any offence as still he is at the
stage of preparation and it will be impossible for the prosecution to prove that A was carrying
the loaded pistol only for the purpose of killing B.

4. Attempt

Ans: Attempt is the direct movement towards the commission of a crime after the
preparation is made. According to English law, a person may be guilty of an attempt to commit
an offence if he does an act which is more than merely preparatory to the commission of the
offence; and a person will be guilty of attempting to commit an offence even though the facts
are such that the commission of the offence is impossible. There are three essentials of an
attempt:

 Guilty intention to commit an offence;

 Some act done towards the commission of the offence;

 The act must fall short of the completed offence.

Attempt Under the Indian Penal Code, 1860- The Indian Penal Code has dealt with attempt
in the following four different ways-

 Completed offences and attempts have been dealt with in the same section and same
punishment is prescribed for both. Such provisions are contained in Sections 121, 124,
124-A, 125, 130, 131, 152, 153-A, 161, 162, 163, 165, 196, 198, 200, 213, 240, 241, 251,
385, 387, 389, 391, 394, 395, 397, 459 and 460.

5. Mens rea

Ans: The second important essential element of a crime is Mens Rea or evil intent or guilty
mind. There can be no crime of any nature without Mens Rea or an evil mind. Every crime
requires a mental element and that is considered as the fundamental principle of criminal
liability. The basic requirement of the principle for Mens Rea is that the accused must have
been aware of those elements in his act which make the crime with which he is charged.

There is a well-known maxim in this regard, i.e., “actus non facit reum nisi mens sit rea”
which means that, the guilty intention and guilty act together constitute a crime. It comes
from the maxim that no person can be punished in a proceeding of criminal nature unless it
can be showed that he had a guilty mind.

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 6. Actus Reus

Ans: The third essential element of a crime is actus reus. In other words, some
overt(evident) act or illegal omission must take place in pursuance of the guilty intention.
Actus reus is the manifestation of Mens Rea in the external world. Prof. Kenny was the first
writer to use the term ‘actus reus’. He has defined the term thus- “such result of human
conduct as the law seeks to prevent”.

7. Death sentence

Ans: In this type of punishment the court orders the execution of the accused. It is also
termed as capital punishment. This punishment is the punishment of gravest nature. Death
penalty can be given by the method of hanging or shooting. These are ordered in “rarest of
rare” cases. The court thinks upon two questions in case of death penalty first, the crime has
an uncommon element which renders the life imprisonment inadequate and death penalty is to
be imposed and second, even after giving the most weightage to the mitigating factors
favouring the accused death penalty is the only option. It can be imposed for the crimes
covered under sections 120B, 121, 132, 194, 302,303, 305, 364A, 396, 376AB and 376A of
Indian penal code.

Also, the circumstance of the offender when the crime was committed has to be taken into
account as well as when the crime of the most serious nature has taken place the death
penalty can be given. The President and the Governor under articles 72 and 161 have the
power to grant mercy though Governor doesn’t hold the power regarding the court martial as
by the President under article 72. It is a legal penalty in India.

Accused has the right to be heard then they can appeal in supreme court under section 379
of code of criminal procedure after the high court has consented to the death sentence as
per article 136 and the accused also may plead for commutation etc under section 433 and
434 of code of criminal procedure. Some points the prisons keep in mind for execution are
giving the prisoner proper food and examination of health twice in a day, to make sure he can’t
attempt suicide the ropes are to tested and described etc.

8. Impressment for life

Ans: this punishment was earlier known as the transportation for life but after the code of
criminal procedure (amendment) act 1955 it came to be known as imprisonment for life. It
goes on for about the complete life of the prisoner. It is a rigorous imprisonment not a simple
one.

Life imprisonment is minimum for fourteen years and it is for the period of life time of the
offender but as per section 55 of Indian penal code the appropriate government can commute
the sentence of prisoner and under 433 and 433A of the code of criminal procedure life
imprisonment is not limited to fourteen years and the appropriate government can commute
the sentence. The convict has to serve the period of fourteen, twenty, thirty or life time in
prison but the appropriate government can commute the sentence for the prisoner without
the offender’s consent.
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 9. Mistake of Fact

Ans: Under Section 76: Act done by a person bound or by mistake of fact believing, himself
to be bound by law in included. Nothing is an offence which is done by a person who is or by
reason of a mistake of fact, not by mistake of law in good faith believes himself, to be, bound
by law to do such act. It is derived from the legal maxim “ignorantia facti doth excusat,
ignorantia juris non excusat”.

 Example: If a soldier firing on a mob by the order of his officer in conformity through
the command of the law, then he will not be liable.

Under Section 79: Act done by a person justified or by mistake of fact believing, himself
justified, by law is included. Nothing is an offence which is done by any person who is justified
by law, or who by reason of mistake of fact and not mistake of law in good faith, believes
himself to be justified by law, in doing that particular act

 Example: A thought Z to be a murderer and in good faith and justified by law, seizes Z
to present him before authority. A has not committed any offence.

10. Insanity as Defence in Criminal Cases

Ans: Act of a person of unsound mind. Nothing is an offence which is done by a person who at
that time of performing it, by reason of unsoundness of mind, is incapable of knowing the
nature of the act, or that he is doing what is either wrong or contrary to law.

 Example: A, who is insane or unsound, killed B with a knife, thinking it to be a fun game,
will not be liable for B’s death as he was not aware of the nature of act and law. he was
incapable of thinking judiciously.

Case law for Section 84

In Ashiruddin Ahmed Vs. State, the accused Ashiruddin was commanded by someone in
paradise to sacrifice his own son, aged 4 years. Next morning, he took his son to a Mosque and
killed him and then went straight to us uncle, but finding a chowkidar, took the uncle nearby a
tank and told him the story.

The Supreme Court opined that the accused can claim the defence as even though he knew
the nature of the act, he did not know what was wrong.

11. Abetment

Ans: Section 107 of the Indian Penal Code, 1860 deals with offences relating to abetment.
Abetment basically means the action of instigating, encouraging or promoting a person into
committing an offence. It can also mean aiding the offender while he is committing a crime.

When more than one person contributes to committing an offence, each person’s involvement
may vary. This variation may be either in the manner or in the degree to which the
involvement occurs.

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For example, one person may procure a gun and hand it over to another who may shoot
somebody with it. The former person is guilty of abetment, while the latter commits murder.

As per Section 107, IPC, abetment basically takes place when a person abets the doing of a
thing by:

a. instigating a person to do that thing; or

b. engaging with another person (or persons) in a conspiracy to do that thing; or
c. intentionally aiding a person to do that thing.

12. Criminal Conspiracy

Ans: Criminal Conspiracy can be defined under Section 121 A of the IPC as an act when two or
more persons agree to do or cause to do:

i. Any illegal act.

ii. Any act which is done through illegal means.

It is important to note that the objective to do such a crime is very important in this act. In
the case of Mulcahy Vs. Regina, it was said that the criminal intent of doing an act is very
indispensable from constituting an act of conspiracy. In Rex Vs. Jones, it was first held that
“Criminal Conspiracy ought to charge a conspiracy, either to do an unlawful act or a lawful act
by unlawful means”. The idea of intent extends in various cases in national and international
law. Many have argued on the constitution of the ‘unlawful’ act. The real meaning to that is
still getting scrutinised by the courts, however, we can still count that as anything which is
against the law.

In Rajiv Kumar Vs. State of UP, the court took out some basic necessary ingredients in
order to constitute conspiracy,

i. There must be two or more persons;

ii. There must be an illegal act or an act in an illegal way;

iii. There must be a meeting of minds;

iv. There must be an agreement regarding the same thing.

13. Common Intention

Ans: Section 149 of the Indian Penal Code, specifies that there must be a common intention
along with the unlawful act. The section holds the people in the act of unlawful assembly
jointly liable for the act done through a common intention.

In the case of Queen Vs. Sabib Ali, common intention was viewed as a pathway to complete
the unlawful action.

In the case of Ganesh Singh Vs. Ram Raja, the court said that the common objective must
be achieved through a common intention of doing the task. It is generally ascertained by prior
meetings, meeting of minds and pre-arranged plans of doing something which is not legal.

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In Kripal Singh Vs. State of Uttar Pradesh, the court said that the common intention is
supposed to be ascertained from the facts and the circumstances of the case. The scope of
common intention is also supposed to be ascertained by the facts and circumstances of the
case.

14. Waging War

Ans: Waging war means an attempt to fulfil any purpose of public nature by the means of
violence. Such a war occurs when several people rise and assemble against the State in order
to attain any object of public nature by force and violence. In order to constitute an offence
against the State, the purpose and intention are taken into consideration and not the murder
or the force.

Section 121 to Section 123 of the Code deals with waging war against the Government of
India. Here, the phrase ‘Government of India’ is used in a much wider sense, that is, to imply
the Indian State which derives the right and power of authority from the will and consent of
its people. In other words, this expression signifies that although the State derives the
power of authority from Public International Laws, however, such authority is vested by the
people of the territory and is exercised by the representative government.

Under Section 121, the following are considered as essentials of the offences as they need to
be proved in order to constitute an offence for waging war against the Government of India:

The accused must have:

 Waged war; or
 Attempted to wage war; or
 Abetted the waging of war.

Such a war must be against the State.

The punishment under this Section includes either life imprisonment or the death penalty. A
fine can also be imposed in certain cases.

15. Perjury

Ans: Perjury as a crime is not stated in the IPC. The crime referred to as “False evidence”.
Section 191 of the IPC deals with false evidence which deals with making a false statement
under oath which he believes to be false and still makes it knowing its falsehood.

Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates
false evidence for the purpose of being used in any stage of a judicial proceeding, shall be
punished under section 193 of IPC with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or
fabricates false evidence in any other case, shall be punished with imprisonment of either
description for a term which may extend to three years, and shall also be liable to fine.

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 16. Mischief

Ans: he definition of mischief is mentioned under Section 425 of IPC & the punishment is
prescribed under Section 426 of IPC. Further Section 427 to 440 lays down the specific
punishment prescribed for aggravated forms of mischief depending upon the nature & the
value of the property damage.

As per the Section 425 of the Indian Penal Code,1860 that whenever anyone performs an act
either having an intention to cause or is aware that his act is likely to bring, some destruction
or damage to any property, destroying or diminishing its value and utility, hence, resulting in
an undue loss or damage to the public or any person is said to commit mischief.

The Law of Mischief under IPC is specifically drafted with an objective to provide protection
against the destruction of the property causing any wrongful loss or damage to the public or
an individual. It is an extension to the legal maxim sic utretuoleadas which means “use your
own property, but not in a way that can injure your neighbour’s or other’s property.”

17. Public Nuisance

Ans: Public Nuisance, also known as Common Nuisance is one of the two kinds of Nuisance, the
other one being Private Nuisance. It essentially means an activity on one’s land that materially
affects a class of people. It is a punishable offence.

Section 3(48) of the General Clauses Act, 1897 and Section 268 of the Indian Penal
Code both deal with Public Nuisance.

What consists of a Public Nuisance?

 An act or illegal omission

 Should cause any common injury, danger or annoyance

 Should be caused to the people in general who dwell, or occupy the property, in the
vicinity

 Must necessarily cause an injury, an obstruction, danger or any annoyance to persons

who may have occasion to use any public right.

18. Criminal Trespass

Ans: According to Section 441 of the Indian Penal Code, criminal trespass is defined as,
whoever enters into or upon property in the possession of another person with the intent to
commit an offence or to intimidate, insult or annoy any person in possession of such property,
or having lawfully entered into or upon such property, but unlawfully remains there with an
intent thereby to intimidate, insult or annoy any such person, or with an intent to commit an
offence, is said to commit “Criminal Trespass”.

In simpler words, when a person unlawfully enters into private property of another person or
unlawfully remains into such property with criminal intentions, is said to commit “Criminal
Trespass”.
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Criminal trespass has two limbs, firstly, unlawfully entering into the property of another
person with criminal intentions and secondly, entering lawfully into that property but
remaining unlawfully there with criminal intentions.

19. Unlawful Assembly

Ans: Article 19 (1)(B) of the Constitution of India 1949, lay down that ‘All citizens shall
have right to assemble peaceably and without arms. That means citizens of India has been
given freedom to assemble and organize a public gathering or even processions on their own
will. But this right to assemble is subject to reasonable restriction by the state in the
interest of sovereignty and integrity of India or public order under clause 3 of Article 19 of
the Constitution of India 1949. Thus, an appropriate authority can prohibit holding up of a
public meeting, in a case where they are of the opinion that doing so is necessary for
maintaining public peace and tranquillity.

An assembly may turn unruly and which may cause injury to person, property or public order.
Such an unruly assembly is termed as ‘Unlawful Assembly.’ In Moti Das v. State of Bihar, it
was held that ‘an assembly, which was lawful to start with, became unlawful the moment one
of the members called on the others to assault the victim and his associates, and in response
to his invitation all the members of the assembly started to chase the victim while he was
running.’

The term ‘Unlawful Assembly’ has been defined under section 141 of the Indian Penal Code,
1860 as an assembly of five or more persons having a common object to perform an omission
or offence.

20. Deterrent Theory

Ans: In Deterrent theory of punishment, the term “DETER” means to abstain from doing any
wrongful act. The main aim of this theory is to “deter” (to prevent) the criminals from
attempting any crime or repeating the same crime in future. So, it states that deterring
crime by creating a fear is the objective; to set or establish an example for the individuals or
the whole society by punishing the criminal. That simply means, according to this theory if
someone commits any crime and he/she is punished by a severe punishment, then, it may
result maybe that the people of the society will be or may be aware of the severe
punishments for certain kinds of crimes and because of this fear in the minds of the people
of the society, the people may stop from committing any kind of crime or wrongful act. Here I
used the phrase “may stop” instead of “will stop”. That means, there is a probability of
committing any crime or repeating the same crime.

The deterrent theory of punishment is utilitarian in nature. For a better understanding we

can say like, ‘The man is punished not only because he has done a wrongful act, but also in
order to ensure the crime may not be committed.’ It is best expressed in the word of
Burnett, J who said to a prisoner:

“Thou art to be hanged not for having stolen a horse, but in order that other horses may not
be stolen”.
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Through making the potential criminals realize that it doesn’t pay to commit a crime, the
deterrent theory hopes to control the crime rate in the society.

21. Assault

Ans: When a gesture is made to any person, knowing that the person is going to apprehend it
as the person is going to use criminal force on that person is known as assault. Mere words do
not consist of an assault. But a person may use certain gestures and expressions or
preparation, such gestures, expressions and preparations may amount to assault. For example:

 X shakes his fist at Y, intending or knowing that may cause to believe Y that X is about
to strike Y. X has committed assault.

 X loosens the muzzle of a ferocious dog knowing that the dog will cause harm to Y. So,
X has committed an assault upon Y.

 A takes up a stick, says to Z, “I am going to beat you up”. Here, although the words
employed by A may in no case amount to a direct assault, and although the mere
gesture, unaccompanied by the other circumstances, may not amount to an assault, the
gesture explained by the words might amount to an assault.

22. Affray

Ans: The word “affray” means a skirmish or fighting between two or more, and there must be
a stroke given or offered, or a weapon drawn. An affray is committed is a public offence to
the terror of the people. According to Section 159 of the Indian Penal Code, Affray is
defined as “When two or more persons by fighting in a public place, disturb the public peace,
they are said to commit an affray.”

The punishment for committing affray is imprisonment for up to one month or fine up to one
hundred rupees or both (Section 160). This offence necessarily postulates the commission of
a definite assault or a breach of the peace. Mere quarrelling or abusing in a place not resulting
in the exchange of blows is not enough to draw the attention of Section 160 IPC. A fight is a
necessary element to constitute affray. This means both the parties have to be aggressive
and participate in the struggle.

23. Sedition

Ans: Whoever, by words, either spoken or written, or by signs, or by visible representation, or

otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to
excite disaffection towards, the Government established by law in India, shall be punished
with imprisonment for life, to which fine may be added, or with imprisonment which may
extend to three years, to which fine may be added, or with fine.

Explanation 1: The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2: Comments expressing disapprobation of the measures of the Government with

a view to obtain their alteration by lawful means, without exciting or attempting to excite
hatred, contempt or disaffection, do not constitute an offence under this section.
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Explanation 3: Comments expressing disapprobation of the administrative or other action of
the Government without exciting or attempting to excite hatred, contempt or disaffection, do
not constitute an offence under this section.

24. Forgery

Ans: Forgery refers to the creation, addition or alteration of any writing, record, instrument,
stamp, register, deed, etc in a false manner to the prejudice of another individual’s right. It
is an act to commit fraud that is fuelled by the intention of deceit. In a case of forgery, the
instrument in question is altered in such a manner that if it is passed off as genuine then it
shall possess legal value or establish legal liability.

As per Section 463 of the Indian Penal Code, 1860 forgery is committed when an individual
makes any false documents or false electronic records or a part of such documents or records
with an intention to cause injury or damage to the public or any other person, or to support a
particular claim or title, or to cause any other person to part with property or to enter into
any express or implied contract, with an intention to commit fraud or that fraud may be
committed.

25. Theft

Ans: Theft is defined under the Section 378 of The Indian Penal Code as, any person
intending to take any movable property without honesty, out of the possession of any person
without that individual’s consent, moves that property in order to such taking is said to
commit theft.

Essential Ingredients

 There must be a dishonest intention of an Individual to take that property.

 The property being taken away has to be movable.
 Such a property must be taken away from the owner.
 The property has to be taken away from the possession of an individual. In other
words, there has to be a possession of that property by someone.
 Such a property has to be taken away without the consent of such an individual.

26. Extortion

Ans: Under the Indian penal code, the term extortion has been defined explicitly and how it
is constituted. Section 383 of the Indian penal code states that if a person intentionally puts
another person in a position of fear or of threat to cause him injury, or deceitfully persuade
him so that he may deliver the property or any other valuable goods to another person or any
document which has been signed and can be turned in a valuable security. Punishment
regarding extortion is enshrined under Section 384 of the Indian penal code.

Essentials of extortion

 An act which causes imminent threat and injury to a person.

 The act must be done intentionally and deceitfully.
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  Such a person tends to cause injury to another person in which he seeks interest.
 An unreasonable force should be shown through which a person seeks to take the
property or any other valuable goods of another person or any document.
 So, it can be concluded if a person commits an offence which includes the all the
following points as mentioned above then the offence committed is known as
extortion.
 Intention plays an important role. The gravity of such dishonest intention upon the
facts and circumstances of a case. For example, if A takes any valuable stuff from
B at point of a gun, then a is an offence of extortion

27. Dacoity

Ans: According to the dictionary of oxford, dacoity means an act of violent robbery which is
committed by an armed gang. There is only one factor which differentiates dacoity from
robbery and that is the number of offenders. One person can also commit a robbery and more
than 1 person can also commit robbery. But when 5 or more than 5 commit a robbery, it is
termed as dacoity.

Section 391 of the Indian Penal Code defines robbery. It says that when 5 or more than 5
conjointly commit or attempt to commit a robbery, or where the whole number of persons
conjointly committing or attempting to commit a robbery, and persons present and aiding such
commission or attempt, amount to five or more, every person so committing, attempting or
aiding, is said to commit “dacoity”.

Essential Ingredients

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

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

 They should conjointly commit or attempt to commit dacoity;
 They should have dishonest intention.

28. Kidnapping

Ans: Kidnapping means taking away a person against his/her will by force, threat or deceit.
Usually, the purpose of kidnapping is to get a ransom, or for some political or other purposes
etc. Kidnapping is classified into two categories in Section 359 of the Indian Penal Code and
defined in Section 360 and 361 of the Indian Penal Code. Let’s understand these sections
better.

As per Section 359 of the Indian Penal Code, Kidnapping is of two types:

a. Kidnapping from India,

b. Kidnapping from lawful guardianship.

Section 360 explains kidnapping from India. According to section 360, if any person takes a
person beyond the limits of India against the consent of that person or against the consent of

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someone who is legally entitled to give consent on that person’s behalf, then the offence of
kidnapping from India is committed.

Section 361 explains kidnapping from lawful guardianship. According to this section, if a
person takes away or entices a minor (i.e, a boy under the age of 16 years and a girl under the
age of 18 years) or a person of unsound mind, away from his/her lawful guardian without the
guardian’s consent, then that person commits the offence of kidnapping from lawful
guardianship.

29. Wrongful Restraint

Ans: Restraint means- the action of keeping someone or something under control or,
restricting someone’s personal liberty or freedom of movement. Wrongful restraint is defined
in Section 339 of the Indian Penal Code. It states that whoever on purpose obstructs any
person with the intent to prevent him from moving in any direction in which he has a right to
move or to proceed is said to wrongfully restrain that person.

In a simpler language- it means intentionally blocking someone’s right to move from one place
to another. It is important to note that restraining someone’s right physically is not the only
factor which constitutes restraint. Threats to restrain someone’s right of way to proceed will
also constitute wrongful restrainment.

Wrongful restraint is a partial restraint because only a particular direction is restricted and
not all the directions of a person to move is restricted.

30. Dowry Death (Section 304 B)

Ans: Section 304B of the Indian Penal Code states that if a woman dies within seven years of
marriage by any burns or bodily injury or it was revealed that before her death she was
exposed to cruelty or harassment by her husband or any other relative of the husband in
connection to demand dowry then the death of the woman will be considered as a dowry
death.

Punishment for dowry death is a minimum sentence of imprisonment for seven years or a
maximum sentence of imprisonment for life.

Essential Ingredients

 Death should be caused by burns or bodily injury or by any other circumstances.

 Death must occur within the seven years of marriage.
 It must be revealed that soon before her death she was exposed to cruelty or
harassment by her husband or any other relative.
 The cruelty or harassment on her should be in connection with the demand for
dowry.

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 31. Bigamy

Ans: When a person is already married and the marriage is still valid, then contracts another
marriage with another person is called bigamy and the person committing the said offence is
called bigamist.

The offence of bigamy or marrying again during lifetime of husband or wife is punishable
under Section 494 of the Penal Code and under Section 17 of the Hindu Marriage Act, 1955.

Essentials of Section 494 of IPC

 The first marriage should be according to the law i.e., it should be legal
 Second marriage should have taken place
 The first marriage should be existing
 The spouse must be alive
 Both marriages should be valid

Classification of offence

 It is a non-cognizable offence.
 It is a bailable offence

32. Defamation

Ans: Any person who by spoken or written words, signs or visible gestures creates or
publishes any imputation on any person with an intention to harm the reputation of that
person. The person making such imputation should have the knowledge or a reason to believe
that such imputation will ruin the reputation of the person.

Reputation

To sue any person, it is necessary to establish that real damage or harm has occurred to the
reputation of the person. Only speaking or writing the words, picturing or gesturing does not
amount to defamation until the reputation of the person has been harmed.

Harm to reputation is the only negative consequence that can arise from the act of
defamation.

It could prove harmful to your professional career as well. For example, if someone pointing
out to a shopkeeper says that you should not buy groceries from him as he sells low-grade
things at a high rate. In this case, if the statement is found to be untrue then the reputation
of the shopkeeper is being harmed as this will lead to the shortage of customers coming to
his shop.

33. Section 498 A

Ans: Most of the people are not aware of the Section 498A of the IPC or what to do when a
case related to Section 498A is registered. It is important to know more on what this law is
all about. Section 498A was introduced in the year 1983 to protect a married woman from
being subjected to cruelty. It claims to provide protection to women against dowry-related
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harassment and cruelty. On the other hand, it became an easy tool for women to misuse it and
wreak revenge from their NRI husbands or to file a false case. Section 498A is one of the
most controversial sections of the IPC.

What is Section 498A?

Section 498A of the Indian Penal Code (IPC) deals with the violence done on women after her
marriage by her husband or her in-laws or any relative of the husband. It prescribes
punishment for 3 years and a fine. It gave a new definition to cruelty. Cruelty can be defined
as –

 If the act done is of such a nature that the woman is enticed to commit suicide or
cause an injury to herself, which may prove fatal. This was added in the case
of Shobha Rani v. Medhukar Reddy 2010 SCC Online Mad 4195. It was held in the case
that evidence is required to prove cruelty.

 If the act done is to harass women or any other person related to her to meet unlawful
demands.

PART-B (2 X 15 = 30 Marks)

1. Define Crime. What are the essential elements of Crime? (Sept 2012) (Sept
2013) (Sept 2015)
Define Crime. Write about the stages of Crime (July 2012)
Explain the stages of Crime. (Sept 2019)
Discuss about the concept, meaning and definition of Crime (Dec 2020)
Write a brief note on stages of Crime with special reference to attempts. (Sept
2021)

Ans: A crime is defined as the commission of an act that is prohibited by law, or an omission
of an act that is obligated by the law. In other words, crime may be defined as the
disobedience of law. Another important aspect of a crime is that it affects the public
interest, rather than the rights of a single individual, which shall be a part of civil law.

The stages of crime or elements of a crime include intention, preparation, attempt and
accomplishment. The constitution of a crime includes all the elements. Some of these
elements are even punishable before the accomplishment of the crime. All the stages can be
explained further as follows:

Intention
The fundamental elements of a crime are ‘mens rea’ and ‘actus reus’, the former being the
intention to commit a crime and the latter being the act done in furtherance of the intention.
The criminal liability of a person shall be decided only when he or she has a mala
fide intention. It is the direction of conduct towards the objects chosen upon considering the
motive which suggests the choice. Mere intention shall not constitute a crime, as it is almost
impossible to know the intentions of a person. As the famous saying goes “the devil himself
knoweth not the intention of a man”. Since it is hard to know the intentions of a man, a
criminal liability at this stage cannot be drawn.

14
Mens rea
Mens rea literally means guilty mind. This basically implies that a person committing the crime
is mindful of his/her actions and knows that accomplishment of that act would result in a
crime. To simplify, the intention of the person committing a crime should be mala fide.
Further, mens rea can be further divided into four levels depending upon the degree of intent
of committing the crime. These four levels are:
1. Negligence: This is the least and in fact the mildest form of mens rea where the
person is negligent of his/her actions and does not ensure reasonable care in his/her
act/omission.
2. Recklessness: This is of a slightly higher amplitude than negligence where the person
can anticipate the crime which may arise out of the act/omission but did not expect or
intended the same and acts negligently.
3. Knowledge: The third level is knowledge where the person is associated with the risks
that may occur on his act/omission and still continues with such act/omission. Here,
he/she is not negligent.
4. Intent: This is of the highest amplitude where the person intentionally carries out an
act or omits something in order to commit the crime.

Actus reus
Actus reus is the act or omission on part of the person which causes a crime and involves some
physical activity. It is imperative to note that not just an act but an omission can also be a
crime. For example, non-payment of taxes or maintenance is a crime.

Preparation
The next stage of a crime is preparation. It can be understood as an act in furtherance of
the mala fide intention of a person. It is an act that shall be a means to the attempt and
accomplishment of the crime. In the previous illustration, if A purchases a weapon legally and
carries it with himself, it shall amount to the preparation of the crime.

Reasons why preparation is not punishable

The general rule under the law is that the preparation of a crime shall not be punishable. The
reason behind the general rule is that it is nearly impossible to prove that the accused made
the preparation to execute the crime. Apart from this, the test of locus poenitentiae is
applied in cases where the culpability of preparation is in question. The test provides that a
person has an opportunity to withdraw from his act before he actually commits the intended
crime. The test has been further explained in the subsequent sections.

Exceptions in which criminal liability may be imposed

Exceptions to the general rule that a person cannot be held criminally liable for the
preparation of an act have been provided under the Code. These exceptions include:
1. Preparation to wage a war against the Government of India – Section 122 of the Code
provides that collection of arms, ammunition, or associating with people with an
intention to wage a war against the State shall be a punishable offence with
imprisonment for a term that may not exceed ten years, and such the offender shall
also be liable for fine.
2. Counterfeiting coins – Section 233, Section 234, and Section 235 of the Code provide
the punishment for counterfeiting any coin, including an Indian coin and the possession
15
 of any counterfeit coin. These provisions also provide punishment for the preparation
of producing or using a counterfeit coin.
3. Manipulation of the weight of the coins – Section 244, Section 246 and Section 247 of
the Code provide the punishment for altering or diminishing the weight of any coin. In
these circumstances, even the preparation to commit such crimes is punishable.
4. Counterfeiting Government stamps – Section 255 of the Code provides that “Whoever
counterfeits, or knowingly performs any part of the process of counterfeiting, any
stamp issued by Government for the purpose of revenue shall be punished with
imprisonment for life or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.” In addition to this, the provision
also criminalises the possession (Section 256) and selling (Section 257) of
counterfeiting Government stamps.
5. Preparation to commit a dacoity – Section 399 of the Code provides that “Whoever
makes any preparation for committing dacoity, shall be punished with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to
fine.”
6. Possession of forged documents – Section 474 of the Code provides the punishment
for the possession of forged documents. The intention behind the provision is to
prevent any type of fraud that may occur by using such forged documents.

These offences are punishable at the stage of preparation due to the gravity of the outcome
of the crime, if committed.
Attempt
There exists a very thin line of distinction between the preparation of a crime and an attempt
to commit the same. It may be defined as an action in furtherance of the intention and
preparation of a person to commit a crime. Thus, an attempt to commit a crime is often
termed “preliminary crime”. An attempt to commit a crime is punishable under the Code. It
has been provided under various provisions for specific crimes. However, in case of the
absence of punishment for an attempt to commit a particular crime, Section 511 of the Code
comes into the picture. Some of the specific provisions of the Code under which an attempt
to commit a crime have been enumerated hereunder:
 Section 121 – Attempt to wage a war;
 Section 131 – Attempt to seduce a soldier, sailor or airman from his duty;
 Section 307 – Attempt to murder;
 Section 308 – Attempt to culpable homicide;
 Section 309 – Attempt to suicide;
 Section 326B – Attempt to throw suicide;
 Section 356 – Attempt to commit theft;
 Section 357 – Attempt to wrongfully confine a person;
 Section 393 – Attempt to commit robbery;
 Section 397 – Robbery or dacoity with an attempt to cause death or grievous hurt;

Circumstances under which attempt becomes impossible

In the 19th century, English law established that an attempt to commit an impossible act shall
not be punishable. Cases of the early 19th century were decided on the notion that an
attempt cannot be made on a crime that cannot be committed. Thus, where a pickpocket
thrusts his hand in an empty pocket of a person, he shall still not be held liable.
16
However, the courts found the notion to be illogical and unreasonable in the later part of the
19th century, and hence, overruled the judgements. This was the first time an attempt to
commit an impossible act was made punishable.

Section 511 of the Code particularly provides that any attempt to commit an impossible act is
punishable. The illustrations provided under the provision are indicative of the same. Thus,
under the Indian Penal Code, an attempt to commit an impossible act is punishable.

Difference between preparation and attempt

The difference between the preparation and attempt to commit a crime is a crucial one. It
can determine the criminal liability of a person. The prime difference between the two is the
fact that whether the act that has already been finished during the stages of crime, has an
impact on the victim. If it has an impact, it is considered to be an attempt, otherwise, it is
considered to be mere preparation. The Courts in various cases have attempted to
differentiate between the two through various tests, which shall be discussed hereunder.
Tests for determining an attempt to commit a crime
 Proximity rule – The proximity rule provides that in cases where the accused
accomplishes a series of acts in furtherance of his intention to commit a crime, the
liability shall be decided upon the proximity with the completion of the Act.
 Locus Poenitentiae – The doctrine of locus poenitentiae provides that where a person
withholds himself from the actual commission of the crime, it would amount to mere
preparation. The doctrine was propounded after analysing that a person has a
reasonable opportunity to withdraw himself from committing the crime.
 Equivocality Test – The equivocality test states that when an act of a person can prove
beyond reasonable doubt the likeliness of committing the crime, it shall constitute as
an attempt to commit the crime rather than mere preparation.

Accomplishment
The accomplishment of a crime is when an attempt to commit a crime is successfully
executed. Every person shall be liable for the act, offence or crime that he commits or
accomplishes. The provisions of the Code provide for specific punishments for various crimes
in the country.

Stage at which liability commences

The above discussion reveals how these four stages of crime decide the criminal liability of an
accused. Undisputedly, at the level of accomplishment, the criminal liability of a person shall
arise. Nevertheless, the above discussion reveals how the liability can commence even at the
stage of the attempt and in some cases, even at the stage of preparation. Usually, in such
instances, the crime committed is very serious and poses a threat to society. Hence, the main
object of ascertaining liability at such stages is to create a deterrent effect in the minds of
people and prevent them from committing such heinous crimes.
[

Judicial Pronouncements
Asgarali Pradhania v. Emperor (1933)
In this case, the Calcutta High Court, while distinguishing between an attempt to commit an
offence and its preparation, was of the opinion that not every act done by the accused can
constitute an attempt to commit the said offence. The facts of the case included the
accusation of an attempt to cause a miscarriage of his ex-wife. The Court held that if the
17
accused, with an intention to administer a drug which shall cause a miscarriage, administers
any harmless substance instead, he shall not be liable for the attempt to cause miscarriage.
However, if the failure of the accused is caused by someone else, it shall result in the
contrary.

Madan Lal v. State of Rajasthan (1986)

In this case, the convict was sentenced to rigorous imprisonment for two years when found
guilty of attempting to commit rape of the victim under Section 376 read with Section 511 of
the Code. The facts of the case included three prime witnesses, who found the convict laid
down naked on the victim, who was also found naked, and the mouth of the victim was covered
by the convict’s hand. It was established the convict himself removed his clothes and that of
the victim and had an intention to rape the victim.

The Court, while analysing the stage of attempt, held that “It is the stage beyond preparation
and it precedes the actual commission of the offence. An attempt to commit an offence is not
meant to cover only the penultimate act towards the completion of an offence but it also
covers all those acts or series of acts which travel beyond the scope of preparation and
exhibit a definite intention and determination to commit a particular offence. It need not be
an act which just precedes the last act on the happening of which the offence itself is
committed but it covers all those acts or series of acts which may precede the penultimate
act towards the commission of that offence.”

State of Madhya Pradesh v. Narayan Singh (1989)

In this case, the Hon’ble Supreme Court held that the commission of an offence involves four
stages; i.e. intention, preparation, attempt and commission. The first two stages of these
offences would not attract culpability, however, the last two stages would attract it. In this
case, the respondents were trying to export fertilisers without a permit from Madhya
Pradesh to Maharashtra. Hence, the act was considered to be an attempt of the offence
rather than just preparation.

Nasim v. Senior Superintendent of Police (2002)

This case is related to cow slaughter which attracts criminal liability as per UP Prevention of
Cow Slaughter Act, 1955. The petitioner, in this case, was found to be holding a knife, 38cm in
length, and to be sitting on the top of a cow with all of its legs tied. The instant petition was
filed for quashing an FIR registered under Section 3 and Section 8 of the impugned Act.
Relying upon the Narayan Singh case (1989) as discussed above, the Hon’ble Allahabad High
Court held that preparation had been done by the petitioner and he would have moved to the
third stage i.e. attempt had he not been stopped. Resultantly, he had criminal liability as
attempt and accomplishment of crime would have attracted liability under the said Act.

Mathivanan v. the State of Tamil Nadu (2021)

In this case, the Madras High Court reiterated that the first and the second stage (intention
and preparation) are generally not culpable, whereas the third and the fourth stage (attempt
and accomplishment) are culpable. However, exceptions to this general notion are the
offences under Section 122 and Section 399 of the Code.
Commenting on Section 122 of the Code, the Court opined that “To wage war would require
several steps and crossing of stages. There has to be mobilisation of men as well as
accumulation of arms and ammunition. That would require a concerted effort. Each individual
18
who is a party to the conspiracy to wage war may be allotted a particular task. One may be
tasked with collecting men, another with arms and the third with ammunition. The expression
“otherwise prepares” in this context should not be construed on the application of the
principle of ‘ejusdem generis’. A person may be engaged in fund-raising. Another may be
responsible for providing reinforcements. Some may be engaged in making logistical
arrangements. Some may be engaged in the intellectual front. There could be several
dimensions. All of them would fall within the scope of “otherwise prepares”. But as already
held, when it comes to application of the provision to concrete facts, courts will apply a higher
threshold.”

Satvir Singh v. State of Punjab (2001)

In this case, the appellants were accused of abetting an attempt to commit suicide, which was
done by the wife of the primary appellant. The issue before the court was whether it was
whether, in an episode of an attempt to suicide made by a person due to harassment by
another, the person harassing such person shall be liable for an attempt to abet the
commission of suicide. The Court answered in negative, stating that an attempt to abet shall
only be punishable if the said offence has been committed, hence providing successful
abetment. In case the said offence has not been committed, the abettor shall not be held
liable.

Abhayanand Mishra v. State of Bihar (1961)

In this case, the appellant was a candidate appearing in an entrance examination of the Patna
University for the course of M.A. in English. In his application form, the appellant had
provided that he was a graduate and was also teaching in certain schools after his graduation.
However, the University, only after dispatching his admit card for the examination, found the
information to be forged. He was convicted by the lower court and the High Court
under Section 420 read with Section 511 of the Code. Under the appeal before the Hon’ble
Supreme Court, the contention of the appellant was that it was mere preparation to commit
fraud and not an attempt. The Court rejected the argument and held that when the appellant
submitted the forged information, it constituted preparation to commit fraud, and when the
said forged documents were dispatched, it amounted to an attempt. The court reiterated
that an attempt may not be seen as only the penultimate act, rather, it means any act in
furtherance of the preparation.

2. Define Crime. Differentiate between Crime and Tort. (Jan 2012)

Discuss the definition and meaning of “Crime”. Explain the distinction between
“Crime” and “Tort”. (Sept 2014)
Define Crime. Distinguish between “Crime” and “Tort”. (Sept 2016)

Ans: A crime is defined as the commission of an act that is prohibited by law, or an omission
of an act that is obligated by the law. In other words, crime may be defined as the
disobedience of law. Another important aspect of a crime is that it affects the public
interest, rather than the rights of a single individual, which shall be a part of civil law.

Tort is a civil wrong where a person can sue another without any pre-existing relation which is
in the case in Law of contracts and person can himself and not the state which is the case in
Criminal Law, where one is relying on the state or its authorities for suing another person.

19
What constitutes the law of torts?
The important elements of Torts can be highlighted as:
1. Wrongful Act: The first and foremost element to establish torts is that there is a
wrongful act which was done by the defendant, it can be either active commission of
act or silent omission of act which was supposed to be done and that has resulted in
breach of duty which is either fixed by law or was to be done due to special position
that a person holds. The wrongful act is supposed to be omission or commission of an
act which a reasonable and prudent person would have or would not have done.
2. Legal Damage: The second ingredient to constitute torts is legal damage that is the
result of the wrongful act done in the first place. Legal damage is the result of any
breach of a legal right which the plaintiff needs to prove.
3. Legal remedy: The last ingredient to constitute torts is a legal remedy available in the
court of law, the damage that has caused must have a remedy and the court can take
action and provide with unliquidated damages.

What is the Law of crime?

Austin defines crime as “A wrong which is pursued by the sovereign or his subordinates is a
crime”.

In other words, crime is wrong in which the state will sue the wrongdoer because the state
had forbidden the acts and when done are punishable by the court.

In a more lucid manner crime is a violation of the law, which is laid down by the authorities
and when such laws are violated by the individual the person is taken to the task by the state.
These laws are provided by the government in various statutes and acts passed by the
government.

This is not the case with torts law where the rights are recognized by the government and
have derived through various case laws and precedents. There is no list or act that
specifically mentions these rights but are generally accepted by the government and society
and are enforced by the courts.

What constitutes the law of crime?

The important ingredients are Mens Rea and Actus Reus:
1. Mens Rea: This is the mental element of a crime, one should form the intent to commit the
crime, mere accident or negligence don’t usually constitute a crime. If the person didn’t have
the intent to commit the act but it results in wrongdoing, then there are chances that person
won’t be guilty of that crime.

2. Actus Reus: This is the actual commission of the crime, once the intention is formed and
the person acts according to his intent and actually does an act that constitutes Actus Reus
and results in the commission of the crime. If there is only intention to commit the crime but
no action in furtherance of this would lead to a non-commission of crime.

Either Mens Rea or Actus Reus independently will not result in the commission of the crime.
These need to be both presents at the time of action for the commission of the crime.
From the following definitions and explanations, we can form these differences:

20
Who can sue and who can be sued?
In torts law, it is an individual who will come to the court for seeking remedy for breach of
the right because these are a breach of individual rights and it doesn’t affect society at
large. It violates the right in persona i.e. violates the right of an individual person.
Illustrations: Mike and Louis were neighbours. Mike used to make a lot of sound pollution due
to the loud music he used to play. In this case, it is Louis who can go to court for breach of
his right to peaceful enjoyment of his property. The state will not interfere in this
neighbourhood feud.

In torts law both the individual and state or corporation can be sued, because these rights
can be violated by anyone and all can be liable to pay damages to the person entitled to it.
Illustrations: Pearson Hardman is a corporation which has unlawfully set a stage in the front
gate of Daniel causing false imprisonment of Daniel. Daniel can sue Pearson Hardman for
wrongful imprisonment as a corporation.

However, in criminal law, it is the state that will go to court for the commission of the crime,
because the criminal tends to affect the society at large, so it is the responsibility of the
state to take the matter in its hand and its consequences have a large role to play in society.
It violates the right in rem i.e. violates the right of public at large.
Illustrations: Harvey and Louis were enemies. One day Louis murdered Harvey, then the
prosecution will be taken by the state, not by representatives of Harvey.

In criminal law, only the individual can be liable because only individuals have the capacity to
commit the nature of act constituting a crime and the only individual are guilty under the law
of crime because only in person these can be sentenced to jail or given capital punishment.
No corporation or state can commit these crimes as these crimes are of personal nature and
require human involvement and mental intent to commit the crime. State and corporation can’t
form this intent to commit the crime hence these can never be liable for these crimes.

What is the remedy in the Law of Torts and Law of crimes?

The remedy in tort law is the compensation in the form of unliquidated damages which are
given to the plaintiff to put the plaintiff in the same position in which he used to be before
the damages and are paid by the wrongdoer who has caused damages. The compensation in the
form of unliquidated damages is measured on the basis of the individual case and wrongful
loss and damages caused to a particular person.

But in criminal law, when the person convicted, he is awarded punishment. The objective is to
make deterrence from further committing the crime which is in the best interest of the
society. The quantum of punishment is measured by the nature of the act and punishment
given in various codes and statutes.

Another important matter is one can mitigate his right to go to court in case of breach of
right in torts law or waive his right for compensation however this is not the case for criminal
act, one cannot waive his right and the person will be punished no matter one wants to sue or
not for the best interest of the society and is prosecuted by the state.
On whom the burden of proof lies?
In torts law, the burden of proof is just of preponderance of evidence where it is to satisfy
the court of probability of chances of the commission of the act whereas in criminal law it is

21
beyond reasonable doubt, the threshold is much higher in criminal law than civil or torts law
because the stake in criminal law is the life of a particular person but in civil law stake is not
that high, it involves only damages.

The element of Mens Rea is not required to be proved in Torts law and doesn’t play any crucial
role in determining the fault and the act of wrongdoing would be tort even if there is no Mens
Rea. However, Mens Rea plays a major role in determining the guilt of the person.

What are the sources and developments?

The torts law has developed through various precedent and there is no Act or statute in India
for the law of torts and major developments have been through court judgement and
precedent is the most important source of torts law.

Though there are precedents in criminal law too but there are statutes and Acts that govern
most part of the law. The court decisions are based on these statutes and Acts and act as a
catalyst in the justice delivery system.

It is no wonder that suit for Torts would be in civil court and that for the law of crime in
criminal law.

What is the Reason for differences?

These differences are due to the nature of the act. The tort law applies when there is a
breach of a person’s individual rights, but these are less damaging to society and can be
results of accident or negligence. Due to these features’ damages are awarded to restore the
loss caused to these acts and no further action is taken to cause deterrence.

However, in criminal law, these acts are so grave and dangerous in nature that affects society
at large. Due to these factors, they are not mitigating in nature further to cause deterrence
in the society these people are awarded imprisonment which is in the best interest of the
society.

The similarity between Crime and Torts?

It is not true that the Law of Torts and crime are different sports altogether, there are
many similarities in both of them and are different players of the same sports.

First, they both are the resulting breach of particular persons’ right, one cannot have an
action in either torts law or criminal law if there is no breach of any right.

Second, to enforce these rights, judiciary plays an important role in both criminal and torts
law. One cannot enforce these rights on his own and need to take a judicial course to enforce
these rights.

There are many wrongs which are covered under both civil and criminal wrongs like nuisance or
fraud which are wrong under both torts and is a crime under criminal law.

Both the laws overlap each other, such as there are many wrongs in criminal law which don’t
require intention but can be convicted without Mens Rea in the first place. Example of such
crime is strict liability crime which is punishable without any fault or intent of the person.
Similar is the case of Torts law, there are many wrongs which require an intention to be
proved in order to constitute torts. Example of such wrong is Conversion, Trespass, Assault,

22
Battery, fraud. Though these come under the purview of torts, they all require intention in
order to prove them as wrong.

3. What are the General exceptions to Criminal Law under Criminal Law? (Sept 2013)
What are the General exceptions under Criminal Law? Give suitable examples (Sept
2018)
Write a brief note on General exceptions under Criminal Law with special reference to
Instanity (Sept 2021)

Ans: Generally, a crime is committed when it fulfils the two essentials for constituting the
crime. They are: Mens Rea and Actus Reus. Apart from this, the crime committed should be
backed by justifications and excuses. Therefore, the general exception under IPC is divided
under two heads:
1. Excusable exception
2. Justifiable exception

Excusable exceptions: Those exceptions from which the bad character or bad intention of
the person committing the crime cannot be inferred are said to be excusable exception to the
crime. They include:
 Mistake of fact;
 Infancy;
 Accident;
 Insanity;
 Intoxication.

Justifiable Exceptions: Those exceptions in which crimes committed are wrongful in normal
conditions but due to different circumstances, it was considered to be tolerable and
acceptable to everyone are said to be justifiable exceptions. They include:
 Judicial act
 Necessity;
 Consent;
 Duress;
 Communication;
 Trifles;
 Private defence.

Object of the Chapter IV of the Indian Penal Code, 1860

According to the report of Lord Macaulay, the object of this Chapter was to obviate the
necessity of repeating in every clause a considerable number of limitations for the offences
committed.

Burden of Proof
The person who is accused of committing the offence has the responsibility of proving that
he/she was struck under different circumstances or within special provision or exception
provided by this part. For instance, an insane person, if accused, has to prove and establish by
any means that he/she is not mentally sound or he had no mens rea to commit that crime.

23
Standard of Proof
The standard of proof refers to the extent to which the party to burden of proof has to
prove its case. It refers to the amount of evidence necessary to prove an ascertain or claim
its trial. As it has been already said that the accused has the burden of proof to prove that
he is entitled to any of the general exceptions to criminal liability. As to the standard of
proof, the Supreme Court has laid down that the accused may raise a plea of exception either
by pleading the same specifically or by relying on the probabilities and circumstances obtained
in the case. After due consideration of the evidence, the Court shall decide as to which
exception the accused is entitled to and would also check whether he/she would be acquitted
of the offence charged or would be liable for a lesser punishment and convict him/her
accordingly.

Mistake of Fact
Section 76 and 79 deals with mistake of Fact as a defence to the offence. According to this
exception, a person can be excluded from conviction if the act done by him was not intended
i.e., the accused had no mens rea to perform that act. This concept is based on the Latin
maxim of ignorantia facti excusat. The condition required for attracting this Section is that
if the circumstances and the facts were known then the act committed by the accused might
have been preventive in doing that action. This defence is mostly provided when proof of
intention or foresight is unnecessary.

Also, although an act may not be justified by law, yet if it is done under a mistake of fact, in
good faith under the belief that it is justified by law will not be an offence. The question of
good faith is always a question of fact to be determined in accordance with the proven facts
and circumstances of each case.

In a landmark English case of Tolson, where a woman remarried believing her husband to be
dead. The accused woman was convicted of bigamy. But the court held that a bona fide belief
was made on reasonable grounds that her husband is dead after desertion for seven years.

Acts Done by Persons Bound by Law or Justified by Law

According to Section 76 of the Act, an accused person in good faith believes himself/herself
to be bound by law to that act. Whereas, Section 79 of the Act lays down that an accused
person in good faith believes himself/herself justified by law to that act.
There is a thin line of distinction between persons committing the offence considered himself
to be bound by law or justified by law. “Bound by law” means that although the true state of
the facts show that the offence is committed yet the person under mistake of fact believes
that he was bound by law to act in that particular way. For a clear understanding, a servant
kills his master at night mistaking him for a burglar who entered his house. Here, the servant
was bound by law to protect his master’s house from burglary.

On the other side, “justified by law” means that a person committing the act was empowered
by law i.e., done on adequate reasons sufficiently supported by evidence to do that act. For
instance, A saw B engaged in inflicting severe blows on C. A caught B in order to hand over him
to the police. But later it was found that B was acting in self defence. Here, since A acted in
good faith that he was justified by law, he will be excused.

24
Acts done under Order of a Superior Authority
The maxim respondeat superior is not applicable as a reason in the cases of mistake of fact.
Cases, where illegal acts are done by a person on the orders of a parent or a master or a
superior, will not be considered to be defence or a reason to be entitled for acquitting under
mistake of fact. However, if the order from the superior is in conformity with law, then the
accused subordinate person is protected but if the order from the superior is not in
accordance with the law, then the subordinate person performing the act cannot claim
protection under mistake of fact believing to be bound by law to perform that act.

Moreover, in the case of State of West Bengal v. Shew Mangal Singh, the Supreme Court held
that if order by superior is lawful then its obedience is obviously lawful.

Act of State
An act of State is an act done by any representative of the Government’s authority, civil or
military, either sanctioned or ratified by the Government. To claim protection under this
section, one has to establish:
 The accused had authority to act on behalf of the state.
 The accused action was outside the law.

Good Faith
‘Good faith’ is defined under Section 52 of IPC which means that an act done with ‘due care
and attention’. In order to claim the benefit of mistake of fact under this provision, then the
accused has the onus to prove that the belief which they had about their actions being
justified in law was in good faith and due care and attention. Absence of good faith is enough
to deny him the benefit that he claims.

Difference between Section 79, Indian Penal Code 1860 and Section 197, Code of
Criminal Procedure 1973
Section 197 of the Code of Criminal Procedure provides for prosecution of public servants or
judges for the acts done while discharging official duties. It is not necessary that a public
servant can claim exception of mistake under Section 79 when he is acting or purporting to
act with the sanction of the government.

Only those acts will be protected which were done in honest pursuance of official duty under
a mistake of fact as to the existence of such sanction or permission by the Government. The
act of the public servant must be within the scope of his official duty. For example, a judge
will not act or purport to act as a judge when he is committing the offence of accepting
bribes while delivering judgements. The best way to test if the act done was in his official
capacity is by challenging the act and then asking that particular public servant to reasonable
claim that what he did was in virtue of his office.

Judicial Acts
Judicial acts are those acts which are derived from normal exercise of judicial power within
proper jurisdiction. They can also be called as “Act of a judge”. The section 77 and 78 of the
Indian Penal Code exempts a judge in cases where he proceeds irregularly in the exercise of
powers which the law bestows on him as well as where he, in good faith, exceeds his
jurisdiction and has no lawful powers.

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Object of the Sections
A separate section was included in the general exception of Indian Penal Code for judges
especially because a judge has to be indifferent and unbiased while delivering the judgements.
Therefore in order to render justice, judges decisions cannot be under scrutiny because even
if the judgements pronounced are wrong or not in favour, then the judicial review is a tool for
reviewing the judgment. But if the acts are challenged then judges will be bound to act
according to the will of the people or government.

Acting Judicially
The phrase “acting judicially” is an essential ingredient for the offence to attract the
particular exception to immune the acts of a judge while acting under judicial capacity. When
the act done or ordered is in a judicial capacity, his protection is absolute and no enquiry can
be entertained against him even if the act done was erroneously or illegally done.

Exercise of Power Believed in Good Faith to be Given by Law

A judge acting in good faith is entitled to the immunity provided by Section 77, even if the
court has no jurisdiction to convict an accused. Moreover, the Judicial Officers Protection
Act, 1850 protects judicial acts from civil suits if the act done was in good faith that the
court had competent authority as well as jurisdiction while doing that act.

Acts Done Pursuant to Judgment or Order of Court

According to Section 78 of the General Exception, if any act is done by any person in
furtherance of a judgement or order of a Court of Justice, then he/she shall be protected
under this Section.

In a case of Kapur Chand v. State of Himachal Pradesh, a search warrant was issued against a
minor married girl by her mother for her recovery. The mother of the girl obtained a search
warrant under Section 100 of Cr. P. C. The magistrate having recorded the statement of the
girl directed her to be given to her husband. Here, if the husband and his companions try to
make her sit in a car, they would not commit offence as they are fully protected under
Section 78 of IPC.

The only difference between Section 77 and 78 is that the judicial acts may be protected
under Section 78 even if the authorised court has no jurisdiction but in Section 77, the
Judge must act within his jurisdiction to be protected by it.

Accident and Misfortune

Accident is a word which is used to indicate a course of events or acts done by a person over
which he/she had no control and was unavoidable after taking due diligence and care.
Misfortune is a sign of bad luck or undesirable event. Section 80 of IPC immunes a person who
does an act in an innocent and lawful manner and without any mens rea for committing an
offence. A law provides that a person cannot be punished for an act over which he had no
control and the consequences were not probable.

Essential Ingredients
The essential ingredients of Section 80 are:
1. The act done must be without knowledge and criminal intention of harming or hurting
someone else.
2. The act done must be lawful and it should be done in a lawful manner with legal means.
26
 3. The act done must be done with proper care and caution.
4. There must not be probable consequence of offence being committed by the at done.
5. Absence of Criminal Intention or Knowledge

The two essential elements for committing an offence is mens rea and actus reus. Mens rea
being one of the most important elements, if any act was done with the very purpose of
committing that act intentionally, then he is said to be liable or punishable under IPC.
However, in cases of accident and misfortune, there is something that happens out of the
ordinary course of things which was not prudent and no reasonable precautions can be taken
against it.

However, in case of Sukhdev Singh v. State of Delhi, the accused pleaded that while doing a
lawful act, he accidentally committed murder of deceased. But the evidence showed that
accused during the course of scuffle deliberately used gun and fired shots at deceased.
Hence, the Supreme Court held that it was not a case of accident covered under Section 80.

A Lawful Act in a Lawful Manner by Lawful Means

An act is said to be done accidentally if it is neither done wilfully nor negligently. For
constituting an offence under negligence, a lawful act is said to be done in a lawful manner by
illegal means or a lawful act done in an unlawful manner by legal means. For getting oneself
acquitted from an offence under the exception of accident, then he/she must have done a
lawful act in a lawful manner by lawful means. For better understanding, if two friends agree
to accidental injuries in a wrestling bout with each other. Here, if one of them dies in the
course, the other can claim protection under this section if there was no foul play within that
time, since the wrestling bout is a lawful act done in a lawful manner by legal means.

Medical negligence
Medical negligence under criminal law is that act which is done or failed to be done by any
medical practitioner. To prosecute under medical negligence, it has to be proved that in the
given facts and circumstances no medical professional in his ordinary senses and prudence
would have done or failed to do so. Moreover, the criminal liability cannot be laid unless the
negligence was so obvious and of such a high degree that it would be culpable by applying the
settled norms. This was held in the case of Dr Saroja Patil v. State of Maharashtra.

Proper Care and Caution

A person can claim protection for accident only if the act which was done by him was under
proper care and caution. Proper care and caution also come under the purview of mens rea.
Since, if any act is done without taking proper care and caution then that means that he/she
must have the required mens rea for committing that offence.

In the case of State of Orissa v. Khora Ghasi, the court acquitted the accused because he
went to the forest to hunt for an animal and with bona fide intention shot an arrow aiming at
an animal. Unfortunately, the accused caused the death of a human being hiding behind the
bush.
Necessity
The term “necessity” is defined in Black law’s dictionary as a controlling force; irresistible
compulsion; a power or impulse so great that it admits no choice of conduct. Section 81
provides for the defence of necessity, which means that if an act which is done might be a

27
crime if it was done only in order to avoid consequences which could have inflicted more harm
to the person or property.

Doctrine of Necessity
The doctrine of necessity can be explained as the choice between two evils where the accused
chose the lesser one. This doctrine based on ‘Salus populi suprema lex esto’ which means that
welfare of people must be supreme and if a person is causing harm to any person or property
in order to prevent a greater harm, then it is excusable.
Illustration: A person pulls down houses in order to prevent the conflagration from spreading.
He does this with good intention to save human life and property. Here, since the harm was of
imminent danger, he is not guilty of the offence.

The doctrine of necessity emanates from Latin maxim “Quod necessitas non hebet leegam”
meaning necessity knows no law. However, if the evidence does not show the nature of
emergency, then the defence of necessity cannot be taken.

Mens Rea
The element of mens rea must include the guilty mind to commit the offence and inflict harm
to other person or property. However, if a person causes the harm without any criminal
intention, and merely with the knowledge, he/she will not be held responsible for the result of
his act, but the act should be done in good faith to avoid or prevent other harm to person or
property.

Preventing or Avoiding Other Harm

The doctrine of necessity can be attracted only when the harm i.e., loss or detriment is
caused in order to prevent or avoid harm.

In a landmark case of R v. Dudley and Stephens, a ship was cast away in a storm on the high
seas and was compelled to use a lifeboat. Consequently, there was a shortage of food and
acute hunger due to which two of the four men decided to kill the third person and satisfy
their hunger. The court held that one does not justify murder by killing an innocent person to
save one’s own life.

Infancy
The defense of infancy can be taken when the act is done by an infant who is under seven
years of age. By presumption of law, an infant under the age of seven is considered to be doli
incapax which means that the child cannot constitute the required mens rea to commit a
crime. Whereas an infant of seven or more is considered to be dolix capax which means that
although the child is unknown to the crime but can frame intended mens rea to commit the
crime.

Essential Ingredients
(I) Act of Child under Seven Years of Age
An act done by a child who is seven years of age is presumed to be doli incapax by law. The
liability of an offence is absolute if the offender has intended the consequences of his act.
Since, a child lacks both maturity and understanding for the commission of crime, therefore,
he/she cannot held liable for the offence committed.

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(2) Act of a Child above Seven but Below 12 Years of Age
For the children above seven years and below twelve years if commits a crime, then the
incapacity to commit an offence arises only when the child has not attained sufficient
maturity or understanding. The test of maturity and understanding is the outcome of the act
which he intended to do. Therefore, a child to have the immunity of this Section must prove
himself or herself to be below twelve years of age. Also, the onus of non-attainment of
maturity and understanding has to specially pleaded and proved. It is not necessary for the
prosecution to lead positive evidence to show that an accused person below 12 years of age
had arrived at the sufficient maturity of understanding within the meaning of this Section. It
would be permissible for the court to arrive at that finding even on a consideration of the
circumstances of that particular case.

(3) Maturity of Understanding

A child between seven to twelve years cannot be convicted of any offence unless it is
expressly found that he/she has attained sufficient maturity of understanding. The
consequences of the act must show that he/she knew what he/she is doing and what will be
the result of that.

Juvenile Justice (Care and Protection of Children) Act, 2015

This Act was enacted to consolidate and amend the law relating to children and providing
proper care, protection, treatment and disposal of matters and their rehabilitation and other
matters concerned with juveniles.

Determination of Age of an Accused Juvenile

The determination of age of a juvenile has always been a controversial issue. Time and again
with the help of cases, the judiciary has tried to determine the age of a juvenile.

In the case of Deoki Nandan Dayma v. State of Uttar Pradesh, the court held that for the
purpose of determination of age of an accused, the date of birth recorded in school record
will be taken into consideration.

In the case of Krishna Bhagwan v. State of Bihar, for considering the relevant age of juvenile,
the age on the offence committed will be considered.

In the case of Arnit Das v. State of Bihar, the court overruled its previous decision and held
that date of claiming of juvenility should be the date on which the accused is brought before
the authority.

The arrest of a Juvenile Offender

If any juvenile is alleged to be guilty of any crime, then such juvenile shall be charged under
special juvenile police unit or the designated child welfare police officer. The authorised
police officer shall produce the juvenile offender before the Board within 24 hours excluding
the journey time.

An alleged juvenile shall in no circumstances be placed in police back up or jail. The authorised
police officer has the responsibility of the child and has to maintain him/her.
If the child commits bailable or non-bailable offence, then he/she shall be released on bail
with or without surety under the charge of a fit person. In case, if a person is not released on

29
bail, then the Board shall arrange for observation home or place of safety during the
pendency period.

The parents of the alleged juvenile shall be informed and direct them to be present before
the Board where the child is being produced.

Trial of Delinquent Juveniles

After the initial process of taking into account the accused juvenile offender, following steps
shall be taken for the trial of a delinquent juvenile:
1. An inquiry shall be set up and pass such orders in relation to the child. The inquiry shall
be within four months of its first prosecution.
2. In order to ensure a fair and speedy trial, the court shall look into:
 The child has not been subject to ill treatment by the police and other such authorised
persons.
 The proceedings shall be conducted in a child-friendly atmosphere.
 Every juvenile shall be given right of being heard and participate in inquiry.
 In case of petty offence, the court shall dispose the case through summary trials.
 In case of serious offence, the court shall dispose of the case by following the trial
procedure as given in CrPC.
 In case of heinous offence, if the child is below 16 years of age, then the case shall be
disposed of by following the trial procedure as given in CrPC and if the child is above
16 years, then the court shall follow the procedure as laid down by this Act.

Sentencing of Juveniles
 If the orders regarding a child is not found to be not in conflict with the law, then the
Board shall pass such orders to that effect.
 If the orders regarding a child is found to be in conflict with the law, then the Board
shall pass following orders according to the nature of crime.
 The child shall be sent back to home after counselling process and advice.
 The child shall be directed to participate in group counselling and other activities.
 The parents of the child will be asked to pay a fine amount.
 The child shall be directed to be released on probation of good conduct and placed
under the care and protection of parents or any other person as the Board may deem
fit.
 The child shall be directed to be sent to a special home for a maximum of three years
for reformative purposes including education, skill development, etc.

Insanity or Mental Abnormality

Section 84 of the IPC provides for a defence to a crime committed who are insane or who
cannot constitute required mens rea to commit an offence. Every normal and sane human being
is expected to possess some degree of reason to be responsible for his/her conduct and acts
unless any contrary is proved. But a person of unsound mind or a person suffering from a
mental disorder cannot be said to possess this basic norm of human behaviour.

Essential Ingredients of Section 84

The essential elements of Section 84 are as follows:
1. The accused must, at the time of commission of the act be of unsound mind.

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 2. The nature of unsoundness must be of such nature of which he is incapable of knowing
the consequences or what is in violation of law.
3. The nature of act must show that there is absence of motive in commission of an act.
4. Unsoundness of Mind

‘Unsoundness of mind’ means a state of mind in which an accused is incapable of knowing the
nature of his act or that he is incapable of knowing that he is doing wrong or contrary to law.
The burden of proof is on the accused to show that he/she was labouring under the defect of
not able to frame reasons of his/her act, a disease of the mind or unknown about the act
legality or consequences of his act.

The liability of a person will not be reduced because he/she did the act under the influence of
some delusion, or in order to avenge any grievances. Mere subjection to insane impulses is not
sufficient for a person to acquit himself/herself under this Section.

An insane person committing crime in a lucid interval i.e., when he/she is able to judge his acts
normally is responsible for any act or offence.

M’Naghten Rule
In a landmark case of Re M’Naghten where M’Naghten who was an Englishman apparently
paranoid by Schizophrenia shot and killed the Secretary of Prime Minister of Britain. To the
surprise, M’Naghten was acquitted from the offence because it was proved that he was insane
at the time of commission of this act. Since this case was the first case where insanity as an
exception was observed by House of Lords.

It was held that every man is presumed to be sane until the contrary is proved and in order to
establish a defense on the ground of insanity, one has to prove that the accused was laboring
under the diseased state of mind and he did not know about the nature and quality of the act
what he was doing.

The applicability of M’Naghten Rule is very apparent in India because Section 84 clearly
brings out the essential ingredients as laid down in the judgment. Assam High Court in the
case of State v. Kartik Chandra held that M’Naghten Rule is the basis of Section 84 and is
embodied in it.

Medical insanity and legal insanity

There is a difference between medical and legal insanity. A Court is always concerned with
the legal insanity and not with the medical insanity. Medical insanity is that condition of any
person who is suffering from any medical illness or other mental diseases whereas legal
insanity is that condition of any person who is having loss of reasoning power at the time of
committing crime.

All medical insanity cannot be considered to be legal insanity and all medical insanity cannot
claim protection under this Section. The court is only concerned with the “state of mind” of
the accused at the time of conduct of the act and the antecedent and subsequent conduct of
the man is relevant only to show what state of mind existed at the commission of the crime.

Moreover, to clearly point out the importance of distinction of medical insanity with legal
insanity, the court in a case where the accused committed murder and had full understanding
31
of the conduct of his act. Here, the court said that even though there is proven medical
insanity yet Section 84 cannot be invoked when legal insanity is not established by the
accused. This was held in the case of Govind Raj v. State.

Kinds of Insanity
There are five general types of insanity. They are:
1. Melancholia- it is a condition of medical insanity where a person is struck with
depression and it leads to withdrawal from society. He is often irritated and all things
are detestable to him. Sometimes he imagines a part of his body to be made of glass or
some other stuff like this.
2. Homicidal Mania- it is a condition in which there are disorder and emotional
abnormalities. It is characterised by meaningless giggles and often a self-satisfied
smile. Behaviour is often silly, mischievous and eccentric.
3. Monomania- it is a condition in which a single delusion is held for a longer period of
time. In this form of insanity, a person becomes obsessed with the possession of one
fixed idea or a thing.
4. Dementia- it is a condition in which there is deterioration in memory, thinking,
behaviour and ability to perform everyday activities.
5. Idiocy- a condition where a person does an extremely stupid behaviour.

Hallucination or Delusion
Delusions are false beliefs. An act of a person is to be judged on the basis of the nature of
the delusion. Existence of delusions which indicate a defect of sanity will protect a person
from criminal liability. If a person is struck with insane delusion and he/she commits a crime
knowing that he/she was acting contrary to law, but did the act under the influence of insane
delusion of taking revenge of any grievances or injuries, he/she is punishable according to the
nature of the crime committed.
Hallucination is the condition of insanity in which a person experiences apparent perception of
something not actually present. The High Courts in India have time and again held that if a
person is sane but is suffering from hallucinations, then the protection cannot be claimed
under this Section.

Somnambulism
Somnambulism is the condition when a person walks while sleeping. Causing any harm while
walking in a sleep is no offence since the act done by the person is involuntary. The person
shall not be liable for any harmful act done by him/her because he/she is not legally
responsible for the actus reus and hence realm of criminality cannot be established in the
case of somnambulism.

Moreover, the conduct of a man for offence committed immediately after waking up from
sleep depends upon individual facts of each case.

In the case where a man suddenly woke up at midnight and saw a phantom advancing towards
him. He asked twice, “who is that?” after receiving no answer, he attacked the spectre with
the hatchet and it was found that he had murdered his wife. He was found “not guilty” on the
ground that he was not conscious of his actions.

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Irresistible Impulse, Mental Agitation, Annoyance and Fury
Crime is generally said to be done with free-will except in cases of abetment or coercion.
However, there are cases where a person can claim protection for irresistible internal
compulsion affecting the emotions and the will. The act of committing crime is spontaneous,
sudden and uncontrollable under the law of insanity. Even in some cases, people may know what
is right or wrong yet he is incapable of restraining himself from doing it because of his
freedom of will is overpowered by mental disease.

This doctrine of irresistible impulse is not included in the Indian Law. a person has to prove
prior unsoundness of mind along with the irresistible impulse.

In the case of Brij Kishore Pandey v. State of UP, the Supreme Court held that plea of
irresistible impulse shall be considered as a mitigating factor in aggravating the act to be
done. The mere fact that murder was committed on sudden impulse will not be sufficient to
claim protection under Section 84 of IPC.

Insanity as a Result of Smoking Ganja or Heavy Intoxication

A regular ganja smoker cannot claim protection under this section for the unreasonable state
of mind at the time of commission of an offence under the influence of ganja. In a case of
Sakharam Valad Ramji case, a regular ganja smoker killed his wife and children when she
refused to go to a village where he proposed to go. The court held that accused’s habit of
smoking ganja had induced in him a diseased state of mind and therefore he was not able to
know the consequences of his act and hence he cannot be relieved under this exception of
crime committed.

In case of heavy intoxication, the criminality of a person’s act is determined by the degree of
madness which has rendered him/her incapable of distinguishing right from wrong. If there is
sufficient amount of intoxication which leads to lack of knowledge or wrongfulness which he
had previously possessed, then he/she shall be acquitted.

Lack of Motive or a Trifling Matter

The motive and intention have a thin difference between them. Motive is the reason which
forms the intention. The mere presence of a good motive can never be an excuse for the
commission of crime. When an act is done with a motive, it cannot amount to insanity but when
an act is done in insanity, it cannot amount to the absence of motive. This means that even if
there was no motive, yet the act done with a reasonable state of mind cannot be said to be
protected under this Section because absence of motive cannot amount to insane act.
However, the close relationship between the victim and the accused may provide a clue to the
Court that in absence of motive, the act could be committed by an insane person only.
In the case of S.W. Mohammed, the court held that the mere fact that no motive was present
at the time of committing murder of his wife and children and his presence at the crime
scene did not prove that he was insane or he did not have required mens rea. Whereas in
other cases, where there was a similar situation but the person was insane for some months
prior to the incident, the court granted the benefit of this Section under insanity.
Therefore, a motive itself is never sufficient to determine the culpability of the accused.
Motive, deliberation and preparation and conduct before, at the time and after commission of
offence are circumstances relevant for drawing inference of insanity.

33
A trifling matter will not lead a case to conclusion of insanity. One has to establish other good
reasons and grounds to prove his/her insanity.

Excessive or Unusual Violence

The commission and nature of crime cannot determine the insanity of the person and the
closure of the case. Howsoever the act is in excess, brutal or ferocious, yet the crime
committed cannot be excused by its veracity.

Presumption of Sanity
Law presumes every person to be sane until and unless the contrary is proved. To prove the
particular person to be insane, one has to prove the following:
1. He must show that he was suffering from a disease of the mind when he committed an
illegal act.
2. He must show that he was unable to frame reason or was absent-minded which
rendered him insane.
3. Due to unsound mind, the act affected the legal responsibility of knowing the nature
and consequences of his wrongful act.

In a case of Arumugham v. State of Tamil Nadu, an accused in a sort of provocation caught

hold of seven years old child and dashed his head thrice in quick succession resulting in the
death of the boy. Immediately after the occurrence the accused ran away. Here, the accused
pleaded for insanity as a defence. But the court held that his running away from the crime
scene shows that he had no legal sanity and hence his plea of insanity was rejected and was
punished for the crime committed.

Procedure for Trial of Persons of Unsound Mind

The procedure for trial of lunatic person is provided under chapter XXV of Criminal
Procedure Code. The procedure must be followed in the following manner:
 A magistrate holding an inquiry shall inquire into the fact of unsoundness of a person
and examine it by the help of a civil surgeon or other medical officers as directed by
the State Government and shall reduce the examination in writing.
 A case may be bailable or not, yet the Magistrate shall release the lunatic or unsound
person on the security and provide proper care to such persons to prohibit him/her
from doing any injury and for his attendance in the Court as and when required.
 If the trial is postponed, then the Magistrate or the Court may resume the trial and
require the accused to appear even after the person concerned has ceased to be of
unsound mind.
 If the accused is capable of enough of making his defence, then he/she shall be
allowed otherwise he/she shall be dealt in a different manner.
 After taking all the facts and circumstances into consideration, the magistrate or the
court shall proceed with the case and pass the orders.

Intoxication
Intoxication is a state of mind in which the person is incapable of knowing the nature of act
or he was doing an act which was either wrong or contrary to law. Section 85 and 86 provides
immunity to an intoxicated person only if the intoxicating thing was given to him without his
knowledge or against his will. Voluntary drunkenness is no excuse for the commission of the
crime. This was held in the case of Chet Ram v. State.
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Moreover, in the year 1956, the principle was laid for immuning from criminal act due to
drunkenness in the case of Basdev v. State of Pepsu as:
 If the intoxication is self-induced then the accused shall be treated as if he had been
aware of the risk taken by doing a criminal act.
 Intoxication can be induced by drink or drugs.
 The recklessness of an act is an alternative to intent or knowledge.

Involuntary Intoxication
Involuntary intoxication is a state when a person is administered with intoxicating substances
involuntarily i.e. when he was unknown of the fact. Involuntary intoxication is immuned under
Section 85 if the accused is able to prove with the satisfaction of the Court that the crime
committed was not intended by him and he had no knowledge of the cause of the inebriated
state of mind.

Incapable of Knowing the Nature of the Act

State of intoxication determines whether the accused is capable or not of knowing the nature
of the act. There are varying degrees of intoxication like in a case if the accused had made
itself so inebriated that he is incapable of knowing the nature of his act, then that person will
be liable in the same manner as the person who was not intoxicated. Whereas in other cases
where the accused is inebriated but not to that level where he cannot know about the nature
of his act, then he shall be liable in the same manner as the normal person shall be punished.

It is also presumed that every man has the requisite intent to know the results of his
consequences but in cases where there was the obscure mind of the accused person and he
was not able to form the basic intent to commit a crime, then he cannot be liable for his acts.

'Without His Knowledge’ or ‘Against His Will

The expression ‘without his knowledge’ or ‘against his will’ means ignorance of the act or thing
being administered to him. The administration of the intoxicating thing is done either by
force, fraud or ignorance in case of involuntary intoxication. In such cases, the criminal act
will be judged on the mental condition at the time of the commission of an act.

Voluntary Intoxication
Generally, voluntary intoxication is not considered an exception to criminal liability. However,
there are two exceptions to be taken into consideration. They are:
1. A case where Mens rea is an essential element of the offence charged and the
evidence shows that the state of intoxication of the accused is such that he is
incapable of forming the specific intent to commit the crime.
2. A case where the accused in habitual behaviour been addicted to intoxication that his
diseased state of mind is incapable of knowing the nature of the act or the illegality of
his act.

Voluntary Intoxication: Presumption of Knowledge

Section 86 of the Act provide for the presumption of knowledge while committing the act. If
an offence is committed by one who voluntarily made himself intoxicated, then the Court shall
treat him as if he had the necessary knowledge required to commit the crime.

35
An accused because of his drunken condition gave way to violent or rash passion of his life
which led to commission of crime. Here, it can be reasonably inferred that the accused person
intended the natural consequences of his act.

Voluntary Intoxication and Intention

The voluntary intoxication of a person does not necessarily have the intention of committing
the crime but it is generally presumed that he has a basic knowledge of the consequences of
his act. The court cannot presume guilty intention in judging the nature of offence committed
by the drunken person. But the guilty intention is inferred from the proved facts and
circumstances which may vary from one case to another.

Since there are varying degrees of intoxication, therefore, if the accused knew the natural
consequences of his act, then it is necessarily followed that guilty intention may also be
present while committing the offence.

Difference: Section 85 and Section 86

Section 86 of the Act is an exception to Section 85 of the Act. Section 85 covers the entire
offences relating to intoxication whereas Section 86 take care of offences requiring specific
intent and knowledge. Section 86 lays down that if the intoxication is involuntary then there
was neither knowledge nor intention of committing the crime. But if the intoxication is
voluntary, then only knowledge will be taken into account and intention will no longer be
considered.

Intoxication and Insanity

In a landmark case of Basdev v. State of Pepsu, the difference between intoxication and
insanity was highlighted. According to the court, there are two conditions:
1. Defence of insanity caused by excessive drunkenness.
2. Defence of drunkenness causing incapacity of mind to form an intention.

If the defence of insanity is taken due to excessive drunkenness, then the accused cannot be
relieved as it furnishes that insanity was induced by external agent and hence is liable.
But if the defence of drunkenness is taken, then the facts and circumstances of the case is
taken into consideration to determine whether or not there was intention. However, in cases
where it becomes difficult to establish such conditions and the passion of the accused has led
to drunkenness and commission of crime, then it is assumed that the man knew the natural
consequences of his act.

Burden of Proof
Burden of proof to establish the essential ingredients to claim protection under General
Exception is on the accused. The accused has to prove that he was incapable of framing the
specific intention to commit crime due to intoxication.

In the case of Dasa Kandha v. State of Orissa, it was laid down that mere proof of drinking
some amount of liquor will not prove his acquittal. Instead one has to rebut the presumption
of an accused knowing the natural consequences of the crime and proving the degree of his
intoxication which was insufficient to know the natural consequences of his act.

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Trivial Acts
Offence by Trivial acts are those offences which causes slight harm which would not be
complained by an ordinary person. Section 95 of the General Exception provides immunity to
the person who commits trivial offences. A trivial act is distinguished depending upon the
nature of the injury, the knowledge, intention and other related circumstances. Therefore, if
the allegation of the complainant is of a petty or trivial nature, then no criminal proceeding
should be taken.

Object and Applicability of the Section

The scope of this Section is based on the Latin maxim ‘de minimis non curat lex’ which means
that the law takes no account of trifles. According to Supreme Court, Section 95 is intended
to prevent penalisation of negligible wrongs or of offences of trivial nature. However, an
offence mentioned in any statute does not fall under the scrutiny of trivial acts. So, if the
adulteration in food is negligible, yet the accused will be punished according to penal offences
provided in Food Adulteration Act.

Acts regarded as trivial

Acts such as theft of cheque of no value, harm to the reputation of a person when he was
travelling with a wrong ticket, etc are considered to be trivial. Even the case of
Public Prosecutor v. K. Satyanarayana established that the conduct of a lawyer in using filthy
language in the course of cross-examination are treated as trivial.

Meaning of Harm
The Supreme Court in the case of Bindeshwari Prasad Sinha v. Kali Singh cleared the meaning
of harm. According to the Court, the harm in Section 95 includes financial loss, loss of
reputation, mental worry and apprehension of injury which cannot be the reason of the
complainant to punish the accused.

Offences under Public Welfare Enactments

According to 47th Report of Law Commission of India which deals with the socio-economic
offences and punishments provides that Section 95 would not act in cases of socio-economic
offence like an offence under the Drug (Price Control Order), 1970 or Essential Commodities
Act, 1955, etc.

4. Distinguish between “Common Intention” and “Common Object” (Jan 2012) (Sept
2016)

Ans: Common intention (Section 34)

“When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by him alone.”
From the above section it can be derived that the following categories must be comprised to
consider an act done under common intention:
 Minimum 2 persons are required to form the case of common intention to commit an
offence.
 The multiple accused must have a meeting of minds, it is also an essential component to
prove the common intention of the accused.

37
It must also be kept in mind that section 34 is not itself a punishing clause. It must be read
with another punishing clause. Example: Section 302 with reference to section 34. The
significance of section 34 is one person’s conduct will bind another person’s conduct. An
accused will be liable for this offence which was done in furtherance of the common intention.
The concept of common intention is briefly discussed with the help of certain case laws:

Ramachander v. State of Rajasthan (1970)

Common intention or pre-arranged plan or prior meeting of minds. The meeting of mind needs
to be proved to be liable under section 34. The mere fact that the two accused were found in
the crime scene firing the victims does not show that they both had a common intention.

Nandu Rastogi v. State of Bihar (1985)

The judgment pronounced, in this case, was it is not necessary for every accused to attack
the victim in order to attract section 34, it would be sufficient if proved that each accused
did some similar or separate acts in furtherance of the common intention i.e. to attack the
victim.

Suresh v. State of UP (2001)

The main question that arose, in this case, is that whether a person standing outside a crime
scene is also liable under section 34 or not?

As per KT Thomas to be liable under section 34, the act must be done by more than 1 person
in furtherance of common intention, participation must have some connection with the offence
committed. The act can be an overt (visible act) as well as a covert act (illegal omission).
According to him the presence of the accused at the crime scene is immaterial. Non-
participating accused can be prosecuted under a criminal conspiracy.

As per RP Sethi, the overt act is not necessary for fixing liability. Proof of meeting of minds
whether direct or circumstantial is a necessary element. According to him accused must be
physically present in the crime scene and did not prevent the criminal act to be committed.
Distance from the crime scene does not exclude section 34.

The two opinions have been cited in over 120+ case laws thus determining the importance of
such arguments.

Common object (Section 149)

Every member of unlawful assembly guilty of an offence committed in prosecution of common
object.—”If an offence is committed by any member of an unlawful assembly in prosecution of
the common object of that assembly, or such as the members of that assembly knew to be
likely to be committed in prosecution of that object, every person who, at the time of the
committing of that offence, is a member of the same assembly, is guilty of that offence”.

To understand the concept of the common object we must understand the concept of unlawful
assembly (Section 141).

“Unlawful assembly. —An assembly of five or more persons is designated an “unlawful

assembly” if the common object of the persons composing that assembly is—

38
  To overawe by criminal force, or show of criminal force,[the Central or any State
Government or Parliament or the Legislature of any State], or any public servant in
the exercise of the lawful power of such public servant; or
 To resist the execution of any law, or of any legal process; or
 To commit any mischief or criminal trespass, or other offence; or
 By means of criminal force, or show of criminal force, to any person, to take or obtain
possession of any property, or to deprive any person of the enjoyment of a right of
way, or of the use of water or other incorporeal rights of which he is in possession or
enjoyment, or to enforce any right or supposed right; or
 By means of criminal force, or show of criminal force, to compel any person to do
what he is not legally bound to do, or to omit to do what he is legally entitled to do”.

In the first clause, mere intimidation without the use of criminal force or show of criminal
force is not unlawful. A public servant intimidating within its lawful power cannot be
considered as unlawful but intimidating beyond the power provided to them can be considered
as unlawful. In the second clause, a group of 5 or more individuals cannot prevent from
executing any law or process of law unless the law or process used is illegal, for example,
illegal arrest or unlawful search. In the third clause, an assembly cannot commit any kind of
mischief or criminal trespass or any other offence. ‘other offence’ includes all the offences
as stated under Section 40 of IPC. In the fourth clause, the presence of criminal force is also
an essential component to consider the act of the assembly as unlawful. Criminal force to any
person, or obtain possession of the property, or preventing any person to enjoy the use of
property under its possession or preventing the enjoyment of something which can be
considered as a right. In the fifth clause, no assembly of 5 or more persons can coerce any
person to do any act which is illegal nor can that person be forced to do any illegal omissions.
So, being familiar with the concept of unlawful assembly, let’s understand the concept of
common object. Unlike common intention, common object deals with only those cases which
are stated in Section 141 as discussed above. The essential elements of the common object
are:
 The assembly must consist of 5 or more individuals and such assembly must be unlawful
as stated under Section 141.
 Membership in the assembly is an essential element. Individuals cannot be forced to be
a member of the assembly; it should be totally voluntary. Individuals who were
members during the commission of the offence will be liable for the act.
 The act needs to be done by at least one member of the assembly and this would make
the whole assembly liable for the act.
 The presence of common object of the assembly would make a person liable, even if
there was no intention to commit that act.
 All the acts done or the acts which are likely to be committed to fulfil the common
object will be liable under Section 149.

Section 149 is not a punishing clause itself. It needs to read with another punishing clause.
For example: Section 302 r/w Section 149.

Gender Biasedness of The Indian Penal Code

Following are some case laws that can be helpful for a proper understanding of the concept.

39
Mizaji v. State of UP (1958)
In this case, only one person was involved in firing a shot at a person but the whole assembly
was made liable for such shooting. This is because the common object of the assembly was to
cause any injury to any person who obstructs them from doing their work. So, all the accused
were made liable under section 302 r/w section 149.

Allaudin Mian v. State of Bihar (1989)

In contrast with the above-mentioned case, in an unlawful assembly of 6 people, 2 were
involved in murdering a victim. But it was held that only the two accused were liable for the
act because the common object of the assembly was only to kill another person, not the
victim. So, in this case, there was a nexus between the common object and the offence
committed and hence all the accused were not liable for the act of murder except the two
involved in the act.

Kotta Prakashan and ors v. State of Kerala (1996)

This case dealt with the membership in the assembly. Once a person has ceased to be a
member of an unlawful assembly, he is not liable for offences committed subsequent to such
cessation of membership. It is necessary for a person to be a member of that unlawful
assembly when such a criminal act was committed.

Basic distinction between common intention and common object

 Common intention (section 34) applies when 2 or more people are involved whereas
common object (section 149) applies when 5 or more people are involved.
 Common intention applies for committing any offence whereas common object applies
when offences are within the categories of Section 141.
 Participation is mandatory in the case of common intention whereas membership is
necessary in the case of the common object.

5. Explain deference between “Culpable Homicide” and “Murder” (Sept 2014) (June
2017)
Under what circumstances the “Culpable Homicide” does not amount to “Murder”
(Aug 2014)
Define “Murder”. Distinguish “Culpable Homicide” and “Murder” (Sept 2015)
Discuss deference between “Culpable Homicide” and “Murder” (Sept 2019)
Define “Murder”. State when “Culpable Homicide” not amount to “Murder” (Sept
2021)

Ans: “All murders are culpable homicide, but all culpable homicides are not murder.”

Is the above statement confusing? You won’t be at the end of the article. To start
with, Sections 299 and 300 of the Indian Penal Code (1860) deals with culpable homicide and
murder, respectively. Generally, the thin line of distinction between them is the reason why
many find it interesting. Even it poses difficulty for advocates and legal practitioners who are
unsure where to lay the case. Murder and culpable homicide appear to be more similar than
they are, but they are not interchangeable terms. Section 299 of the Indian Penal Code
defines culpable homicide, whereas Section 300 deals with the concept of murder. The person
who begins to learn these notions is always snarled up by these phrases. The term ‘homicide’
40
refers to the killing of a human being, the term ‘culpable homicide’ refers to the unlawful
killing of a person and the term ‘murder’ also refers to the killing of a person. So what are the
slight points to be pondered to arrive at a conclusion? This article deals with every such
aspect of the topic.

Homicide
Homicide is derived from the Latin phrases homi (man) and cido (cut). Homicide literally
means “the killing of a human being by another human being.” The term ‘homicide’ refers to
the act of causing or hastening the death of a human being by another human being. However,
not all homicides are illegal or criminal. The death of an assailant caused by an innocent agent,
such as a child under the age of discretion (doli incapax) or a person of unsound mind, or the
death of the assailant caused in the exercise of the right of private defence, is not illegal. In
the first, the perpetrator is ‘excused,’ but in the second, the defendant’s actions are
‘justified.’

Types of homicides
As a result, there are two sorts of homicides: (1) lawful homicides and (2) unlawful homicides.
Lawful homicides are ones that fall under the IPC’s Chapter on General Exceptions and are
hence not penalised. The homicides that are penalised under the Code clearly fall within the
category of unlawful homicides.

Lawful homicides can be divided into two categories based on the nature of the ‘general
exceptions’ that surround the homicide: excusable homicides, and justifiable homicides. As a
result, the IPC recognises three types of homicide. There are three types of murders:
 Excusable
 Justifiable, and
 Unlawful or criminal (i.e. killings that are neither excused nor justified).

The ‘Offenses Affecting Life’ under Chapter XVI of the IPC deals with homicide offences. It
is made up of four homicide offenses, namely:
1. Culpable homicide that does not amount to murder,
2. Culpable homicide that does amount to murder,
3. Death by a rash or negligent act, and
4. Dowry death.

Culpable homicide
According to Section 299 of IPC, a person who commits culpable homicide does an act with
the intent of causing death, or with the knowledge that such an act is likely to cause death.
Illustration:
A is aware that Z is hiding behind a bush. B is completely unaware of this. A causes B to shoot
at the bush with the intent of causing, or knowing that it is likely to cause, Z’s death. Z is
killed by B’s bullets. B may be innocent in this case, but A has committed the crime of culpable
homicide.

Culpable homicide is defined under Section 299 of the Criminal Code. Section 300 defines
murder as a culpable homicide with certain distinguishing features, which are listed in clauses
1-4 of Section 300, subject to the exclusions set out in Section 300. Any culpable homicide
that occurs within one of the four clauses in Section 300 is considered murder. All other
41
cases of culpable homicide, including those that may fall under the exceptions to Section 300,
shall be considered culpable homicide rather than murder. While Section 299 defines
‘culpable homicide,’ it is not exhaustive.

Essential ingredients of culpable homicide

The following are the essential elements of culpable homicide:
 a person must be dead;
 the death must have been caused by the act of another person; and
 the act causing death must have been done with:
 the intention of causing death; or
 the intention of causing bodily injury likely to cause death; or
 with the knowledge that such an act is likely to cause death.

Explanations for Section 299 IPC

The definition itself specifies three scenarios in which the presence or absence of particular
criteria in the cause of death is recognised as culpable homicide. Explanations 1-3 deal with
these scenarios.

Explanation 1
It describes a circumstance in which the injured individual has a disorder, sickness, or bodily
infirmity that has hastened his death. The fact that his death was expedited or hastened by
the sickness or disease he was already suffering from does not relieve the person who caused
the damage of guilt. In other words, the person who inflicted the harm cannot avoid criminal
liability for culpable homicide by claiming that the person wounded would not have died if he
had not suffered from the condition or ailment.

For instance, A is suffering from diabetes. B with the intention of hastening the death of A
gave him a lot of sweets. The intended victim ate the sweets, as a result of which, his blood
sugar level went high and eventually resulted in his death. Thus, B is criminally liable.

Explanation 2
It describes a circumstance in which an injured person may have recovered and avoided death
if he had received early and appropriated medical treatment. In such cases, the fact that the
wounded person died as a result of his inability to obtain adequate medical care cannot be
used to absolve the person who caused the harm in the first place of liability.

For instance, A is suffering from diabetes. B with the intention of hastening the death of A
gave him a lot of sweets. The intended victim ate the sweets, as a result of which, his blood
sugar level went high and eventually resulted in his death owing to the lack of immediate
medical care. Here, the fact of the lack of immediate medical care cannot be considered to
acquit B from liability.

Explanation 3
It refers to a somewhat different circumstance. It takes into account a child’s death while
still in the mother’s womb. It is not culpable homicide if the child dies while still in the
mother’s womb, according to the law. However, if any part of the child emerges from the
mother’s womb, even if it is not completely developed, and the kid dies, it is considered a
culpable homicide.
42
For instance, A is a pregnant woman who’s yet to deliver a baby in the hospital. Now, the head
of baby B comes out of the womb. If the baby dies, it amounts to culpable homicide.

In Jabbar And Ors. v. State (1965), Sarju, Jamna’s brother, was said to have been hired as a
labourer by Ishaq, the appellant, to transport limestone from Saraiya hill. Ishaq was said to
have slapped Sarju twice when he stated his willingness to carry just five ‘dharas’ (seers) of
lime instead of the seven that Ishaq demanded. The three brothers, Jabbar, Ishaq, and
Habib are said to have gone to their residence after that and saw Sarju seated there while
Smt. Pangoli was applying turmeric to the back of his neck. Ishaq appellant is accused of
striking two lathi strikes at Sarju as soon as the appellants arrived on the scene, causing him
to flee to his own nearby Kotha. After that, it is reported that Jabbar appellant inquired
about Jamna. As Smt. Pangoli was unable to inform him, the appellant Jabbar is accused of
pushing her, causing her to fall on her stomach, and then kicking her on the side of her
stomach. Smt. Pangoli, who was pregnant at the time, became unwell as a result and gave birth
prematurely to a seven-month-old baby who died. The child’s hands, feet, and other body
parts had developed, according to the post mortem report. In other words, the baby had
developed sufficiently to be deemed an independent entity from the mother in the eyes of
the law. The court found Jabbar guilty of an offence under Section 304A of the Indian Penal
Code and sentenced him to one year of rigorous imprisonment, a fine of Rs. 500, and three
months of further rigorous imprisonment if he did not pay the fee.

Section 301 IPC : culpable homicide by causing the death of a person other than the
person whose death was intended
By Section 301, if a person commits culpable homicide by causing the death of someone whose
death he neither intends nor knows to be likely to cause, the culpable homicide committed by
the offender is of the same description as if he had caused the death of the person whose
death he intended or knew to be likely to cause.

In Rajbir Singh v. State Of U.P (2006), the appellant alleged that his brother’s home was
attacked with bricks by a neighbour. As a result of this, his father and the accused had a
verbal spat, but the problem was eventually resolved by the locals. The next day, the accused
and two relatives arrived with firearms. They approached the complainant’s business, where
his father was standing. The accused allegedly persuaded or urged his relatives to murder him
there. The accused began firing at the complainant’s father, who was injured and fell to the
ground. A girl went to that shop to buy some items and was injured and fell down. On their
route to the hospital, both of the injured people died. In his defence, the accused claimed
that the girl died by mistake and that they had no intention of killing her. She was going
through that area when she was injured and died as a result. The Supreme Court overturned
the High Court’s decision and found the defendants guilty. He was accused under Section 301
of the IPC.

Murder
By Section 300, unless otherwise specified, culpable homicide is murder:
 If the act that causes the death is done with the intent of causing death, or—
 A fires a shot at Z, intending to kill him. As a result, Z dies. A commits murder.
 If the act is done with the intention of causing such bodily injury as the offender
knows is likely to cause the death of the person to whom the harm is caused, or—
43
 Knowing that B is suffering from an illness that makes a blow likely to kill him, A hits
him with the intention of injuring him. As a result of the strike, B dies. Although the
strike may not have been sufficient in the ordinary course of nature to cause the
death of a person in good health, A is guilty of murder. However, if A, unaware that B
is suffering from a disease, strikes him with a blow that would not, in the ordinary
course of nature, kill a person in good health, A is not guilty of murder if he did not
intend to cause death or bodily injury that would, in the ordinary course of nature, kill
a person in good health.
 If it is done with the aim of inflicting physical damage on another person, and the
bodily injury inflicted is sufficient to cause death in the regular course of nature, or—
 In the regular course of nature, A purposefully causes Z a sword-cut or club-wound
sufficient to kill a man. As a result, Z dies. A is guilty of murder in this case, despite
the fact that he may not have planned to kill Z.
 If the person conducting the act is aware that it is so risky that it must, in all
likelihood, result in death or physical harm that is likely to result in death and conducts
the act without any justification for risking death or injury as stated.
 Without justification, A shoots a loaded cannon into a gathering of people, killing one
of them. A is guilty of murder, even though he did not have a planned plan to kill
somebody in particular.

Exceptions
Exception I : grave and sudden provocation
Culpable homicide is not murder if the offender causes the death of the person who delivered
the provocation or any other person by mistake or accident while being deprived of the ability
of self-control by grave and immediate provocation.
Illustration
Under the impact of emotions aroused by Z’s provocation, A murders Y, Z’s child, on purpose.
In as much as the provocation was not offered by the child, and the child’s death was not
caused by accident or misfortune while doing an act prompted by the provocation, this is
murder.

The exception is subject to three exceptions of its own:

 The provocation should not have been sought voluntarily by the culprit as a
justification for killing or harming anybody.
 The provocation should not be caused by an act carried out in accordance with the law
or by a public official in the lawful exercise of his powers.
 The provocation is unrelated to any actions taken in the exercise of one’s right to self-
defence.

KM Nanavati v. State of Maharashtra

The defendant in KM Nanavati v. State of Maharashtra (1961), was a naval officer. He had
three children and was married. His wife admitted to him one day that she had an affair with
Prem Ahuja, the deceased. Enraged, the accused returned to his ship, got a semi-automatic
pistol and six rounds from the ship’s shop, proceeded to the deceased’s flat, entered his
bedroom, and shot him to death. Following that, the accused turned himself in to the police.
The Supreme Court had to decide whether the accused’s actions were covered by Exception 1

44
of Section 300. The following postulates pertaining to the grave and abrupt provocation were
established by the Supreme Court:
 The test of ‘grave and sudden’ provocation is whether a reasonable man from the same
social group as the accused would be so outraged as to lose his self-control in the
position in which the accused was put.
 In India, words and gestures may give grave and sudden provocation to an accused, so
bringing his act within the first exception to Section 300 of the IPC.
 In determining whether the succeeding action produced significant and immediate
provocation for committing the crime, the mental context formed by the victim’s
earlier act may be taken into account.
 The fatal strike should be definitely connected to the effect of passion emanating
from that provocation, not after the passion had cooled down due to the passage of
time or otherwise allowing for premeditation and calculation.

The accused may have temporarily lost control after his wife admitted to her illegitimate
relationship with the deceased, according to the Supreme Court. After dropping his wife and
children off at a movie theatre, he proceeded to the ship, grabbed the handgun, conducted
some official business, and then drove his car to the deceased’s workplace and afterwards to
his home. By that time, three hours had passed, and he had had ample opportunity to restore
his temper. As a result, the Court decided that the requirements of Exception 1 to Section
300 were not applicable. The defendant was found guilty of murder and sentenced to life in
prison.

This was the last case decided by jury trial. This case was debated hugely among the public.
There was a major criticism about the case. Nanavati had previously served as V. K. Krishna
Menon’s Defence Associate while the latter was High Commissioner to the United Kingdom,
and had gotten close to the Nehrus during that period. Jawaharlal Nehru was Prime Minister
of India at the time of Nanavati’s trial and punishment, and his sister, Vijayalakshmi Pandit,
was Governor of Bombay State. All of these benefits might not have helped Nanavati under
other circumstances, because a pardon could have been perceived by the press and public at
other times as a flagrant abuse of authority to aid a crony of a powerful political family.
Public opinion in the generally conservative country, on the other hand, was overwhelmingly in
favour of Nanavati, who was viewed as an upright navy commander with middle-class ideals and
a strong sense of honour. Nanavati had served three years in prison, and it was thought that
granting him clemency would enrage the Sindhi community, to whom the Ahuja family
belonged. Around this time, the government received a pardon plea from Bhai Pratap, a Sindhi
businessman who had been convicted of abusing an import licence and had been a participant
in the Indian independence struggle. The government was inclined to pardon Bhai Pratap
because of his history as a freedom warrior and the minor nature of his transgression. Finally,
even Mamie Ahuja, the deceased’s sister, signed an application for Nanavati’s pardon. In
writing, she consented to his pardon. Bhai Pratap and Nanavati were finally pardoned by
Vijayalakshmi Pandit, the Governor of Maharashtra at the time. This case is also an epitome
of the influence of media trials.

In Shankar Diwal Wadu. v. State Of Maharastra (2008), according to the prosecution, the
accused Shankar Wadu is the brother of Mahu Wadu, who was assaulted by him and died as a
result of the assault. The event occurred on October 22, 1996, in Kaimad Wadu Pada, Laluka
45
Wada, Thane, where both the accused and the victim, as well as other close relatives, lived.
The accused sought to maintain Kamlibai, the widow of his brother Vasant, as his mistress,
according to the prosecution evidence, but she refused. The appellant was violently dragging
Kamlibai to his residence on the day of the occurrence. His brother Mahu (the deceased) told
him at the time that he couldn’t force and pull Kamlibai to his residence. The accused became
outraged by such unsolicited advice and lifted a wooden plank (Pat) and whacked Mahur on the
head with it, as well as kicking and punching him. Mahu died instantly. Yeshubai, a close
relative of both the offender and the victim, filed a complaint alleging his attack. The
investigation was launched after receiving this complaint, and the accused was detained. The
prosecution called up to eight witnesses to establish its accusation of murder against the
accused, and the learned trial judge, after weighing the evidence, found the accused guilty
and sentenced him to life in prison under section 302 / 506 of the Indian Penal Code, as well
as a fine of Rs.50,000.

Exception II : right of private defence

Culpable homicide is not murder if the offender, in the exercise in good faith of the right of
private defence of person or property, exceeds the power given to him by law and causes the
death of the person against whom he is exercising such right of defence without
premeditation, and without any intention of doing more harm than is necessary for the
purpose of such defence.
Illustration
Z tries to horsewhip A, but not in a way that causes him serious injury. A pulls a handgun from
his pocket. The attack against Z continues. A, believing in good faith that there is no other
way to avoid being horsewhipped, shoots Z to death. A has merely committed culpable
homicide, not murder.

Under some circumstances, the right of private defence even extends to the infliction of
death. This Section applies when a person’s right to private defence has been violated. It
should be noted that the fact that a person has exercised his right to private defence beyond
its limits does not completely exonerate him or her under this exemption. It is only used as a
mitigating element to lessen the crime from murder to culpable homicide that does not
constitute murder. Of course, before this exception may be invoked, it must be established
that the accused has the right to a private defence under Sections 96-106 of the IPC. The
question of whether the accused has exceeded his right to private defence will arise only
once the existence of the right has been proved. If it seems that the accused does not have
the right to a private defence in the first instance, then this provision will not apply.

Nathan v. State of Madras

The accused and his wife were in possession of some land that they had been farming for
some years in Nathan v. State of Madras (1972). They had fallen behind on their lease
payments to the landlady. The accused was forcibly evicted, and the landlord attempted to
harvest the crop. As a result, the accused killed the dead in the exercise of his right to
private property defence. The Supreme Court agreed with the claim that the incident
occurred when the accused was exercising his legal right to private defence against the
property. The right to private property defence was restricted to the degree of causing any
harm other than death under Section 104, IPC because the deceased person was not armed
with any lethal weapons and there could not have been any fear of death or severe harm on
46
the part of the accused and his party. As a result, the accused’s right to private defence was
violated, and the case was classified as culpable homicide not amounting to murder under
Exception 2 to Section 300 of the Indian Penal Code because the act was done in good faith
and without the intent to cause death. The accused’s death sentence was commuted to a term
of life in prison.
Exception III : lawful act of a public servant
Culpable homicide is not murder if the offender, while acting as a public servant or assisting a
public servant acting for the benefit of public justice, exceeds the powers granted to him by
law and causes death by doing an act that he, in good faith, believes to be lawful and
necessary for the proper discharge of his duty as such public servant and without malice
toward the person who is killed.

The following are the essential elements of this exception:

 The offence must have been committed by a public servant or a person assisting a
public servant;
 The alleged act must have been committed by the public servant in the discharge of
his official duties;
 He must have exceeded the powers granted to him by law;
 The act must have been done in good faith; and
 The public servant should have thought that his actions were legal and required for the
proper fulfilment of his duties, and
 He should not have harboured any hatred toward the individual who died as a result of
his actions.

In Dakhi Singh v. State (1955), a suspected thief was apprehended by a police officer and
was being transported to a railway station. The robber was able to flee the speeding train. He
was chased by the constable. He fired at him because he was unable to arrest him. However,
he hit the fireman and killed him in the process. The case was found to be covered by this
exception.
Exception IV : sudden conflict
Culpable homicide is not murder if it is committed in the heat of emotion during a sudden
conflict and without the offenders taking undue advantage or acting in a cruel or unusual
manner.

The only requirements for this exception are that:

 the murder be committed without premeditation;
 it is committed in a sudden fight;
 it is committed in the heat of passion;
 it is committed upon a sudden quarrel; and
 It is committed without the offender taking undue advantage or acting in a cruel or
unusual manner.

In Manke Ram v. State of Haryana (2003), the Supreme Court granted the benefit of
exception 4 to a police inspector who killed his subordinate in a bizarre combination of
circumstances. In his chamber, he asked the deceased to drink. While they were drinking, the
deceased’s nephew entered the room and summoned him for supper. As the deceased rose to
leave the room, the appellant became enraged and began insulting him in obscene terms, which
47
the deceased objected to. This enraged the appellant even more. Between the two of them, a
brawl erupted. The appellant took out his service handgun and fired two bullets at the
deceased, who was standing close. These shots were lethal. The Supreme Court overturned
the Punjab High Court’s conviction under Section 302 of the Code, finding that the incident
occurred in the heat of passion and granting the petitioner the benefit of exception 4. It was
decided that, given the totality of the facts and circumstances of the case, the appellant did
not take unfair advantage of the fight or conduct in an unusual or harsh manner.

Exception V : death with consent

Culpable homicide is not murdered if the dead individual is beyond the age of eighteen years
and suffers or risks death with his consent.
Illustration
A intentionally causes Z, a minor under the age of eighteen, to commit suicide by instigation.
Because Z’s young, he was unable to consent to his own death; as a result, A had aided and
abetted murder.

The following things must be proven:

 The death was induced with the deceased’s permission;
 The deceased was over the age of 18 at the time; and
 The consent provided was free and voluntary, and not based on fear or a
misunderstanding of facts.
In the case of Narendra v. State of Rajasthan (2014), the deceased was a married woman
named Nathi who had left her house and was living with her parents. There, she became close
to the accused Narendra, and the two expressed their desire to marry. Because they
belonged to the same gotra, the villagers were opposed to their desire to marry. Due to their
dissatisfaction with the villagers’ rejection of their love, both of them agreed to commit
suicide. Other villagers saw the accused inflicting harm on the corpse one day, but the victim
had already died before they could save her. Although the accused had stab wounds in his
abdomen, he was prevented from killing himself. The High Court found no evidence on the
record that the deceased gave his free and voluntary consent. Later, the case reached the
Supreme Court, where justices emphasised facts such as the fact that the deceased did not
raise an alarm, that the accused was injured, and that he did not have a weapon when he
entered the residence. Taking into account these facts, the Court found in favour of the
deceased, awarding him benefits under Exception 5.

Difference between culpable homicide and murder

The genus is culpable homicide, and the species is murder. All culpable homicides are murders,
but not all culpable homicides are murders. So the distinction is between culpable homicide
that amounts to murder and culpable homicide that does not amount to murder. The sole
distinction between culpable homicide and murder is the degree of purpose and knowledge
involved. The case would be classified as murder if there was a high level of purpose and
knowledge. The case would be classified as responsible homicide if there was a lesser degree
of purpose or knowledge. As a result, establishing categorical demarcations between culpable
homicide and murder is challenging.

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Intention
Clause (a) of Section 299 and clause (1) of Section 300 are the same. It is culpable homicide
under Section 299 if death is caused by an act done with the goal of causing death (a). Unless
one of the exceptions applies, it also amounts to murder under cl (1) of Section 300.

Intention to cause bodily injury likely to cause death

Both Section 299 clause (b) and Section 300 clauses 2 and 3 deal with the purpose to inflict
physical damage that is likely to result in death. In terms of Section 299(b), it simply states
that if death is caused by an act committed with the goal of causing physical damage likely to
cause death, it is considered a culpable homicide. While clause (2) of Section 300 states that
an act must be done with the goal of inflicting bodily damage that is likely to result in death,
it also states that the deliberate causation of bodily injury must be accompanied by the
knowledge that the bodily injury is likely to result in death.

The term ‘likely’ in Section 299(b) refers to a simple possibility or likelihood that the harm
may result in death. However, the word ‘likely’ in clause (2) of Section 300 conveys, to some
extent, death certainty. This is explained in illustration (b) to Section 300. It implies that the
accused has some unique knowledge of the deceased’s state, such as any ailment he may be
suffering from, and that this information adds certainty to the fact that the bodily damage
would result in death. The sole difference between the meanings of the words ‘likely’ in
Sections 299(b) and 300(2) is the degree of likelihood.

In the case of clause (3) of Section 300, the purpose to inflict bodily damage is accompanied
by the certainty that such physical injury is sufficient to cause death in the regular course of
nature. The word ‘sufficient’ in the regular course of nature to cause death, like the phrase
‘likely’ in Section 299, imputes the certainty of death to a higher extent (b). Thus, the
essential difference between death under Sections 299(b) and 300(2) and (3) is that under
Section 299(b), the bodily injury caused is less likely to result in death, whereas under
Section 300(2) and (3), the bodily injury caused is more likely to result in death.

Knowledge
Sections 299(c) and 300(4) deal with situations in which the accused has information that the
act is likely to result in death. The need for knowledge under Section 300(4) is a very high
degree of risk of death, similar to the preceding Sections. This high probability of death is
indicated in the clause’s final Section, which states that the act must be so immediately
dangerous that it will almost certainly result in death or bodily injury that is likely to result in
death, and that the act must be performed without any justification for taking the risk. Both
clause (c) of Section 299 and clause (4) of 300 apply to circumstances in which the accused
has no intention of causing death or bodily damage but is aware that the act is basically
dangerous. The degree of risk to human life determines whether the conduct is murder or
culpable homicide. It is culpable homicide if death is a potential outcome; it is murder if death
is the most likely outcome.

State of A.P. v. R. Punnayya

In the landmark judgment of State of AP. v. Rayavarappu Punnaya (1977), the Apex Court
created a comparison table to grasp the key differences between them.

49
Section 299 IPC
A person commits culpable homicide if the act
by which the death is caused is done –
Intention
With the intent to cause death; or with the
intention to cause physical damage that is
likely to result in death; or
Knowledge
Knowing that the conduct is likely to result in
death.
Section 300 IPC
Subject to certain exceptions culpable
homicide is murder if the act by which the
death is caused is done –
Intention
With the intention of causing death; or with
the intention of inflicting physical injury that
the offender knows will result in the death of
the person to whom the harm is inflicted; or
with the intention to inflict bodily damage on
any person and the physical injury intended to
be inflicted is sufficient to cause death in
the ordinary course of nature, or
Knowledge
With the knowledge that the conduct is so
immediately harmful that it must almost
certainly result in death or bodily injury that
is likely to result in death and without any
justification or risk of causing death or injury
as described above.

Case laws relevant to culpable homicide and murder

Vasanth v. State of Maharashtra

There existed prior animosity between the accused and the deceased in Vasanth v. State of
Maharashtra (1983). The accused and the dead were observed fighting. The two were
separated by a few people who were present. The accused then rushed to his vehicle, drove it
on the wrong side of the road and straight into the deceased, knocking him down and driving
over him, killing him. The route on which the accident occurred was broad and lonely. The
accused had no cause or requirement to drive the jeep in the incorrect way. The Supreme
Court ruled that the accused intentionally slammed his jeep into the deceased and ran him
over with the purpose to kill him. It’s worth noting that the first clause of Section 300, ‘act
done with the purpose to cause death,’ is the same as the first clause of Section 299, which is
likewise ‘performing an act with the intent to cause death.’ As a result, an act that falls under
clause (1) of Section 300 will also fall under Section 299, and it will constitute culpable
homicide amounting to murder in both cases.

State of Rajasthan v. Dhool Singh

In the case of State of Rajasthan v. Dhool Singh (2003), the Supreme Court found the
accused guilty of murder for inflicting an incised cut with a sword on the deceased’s neck,
resulting in excessive bleeding and organ failure, on the grounds that he knew the bodily
injury he caused would likely result in death.

Pulicherla Nagaraju v. State of Andhra Pradesh (2006)

In Pulicherla Nagaraju v. State of Andhra Pradesh (2006), the Court outlined the facets that
courts should consider when deciding whether an act is punishable as murder, culpable
homicide, or culpable homicide not amounting to murder, and stated that the Court should
50
proceed with caution when deciding whether the case falls under Section 302 or 304 Part I
or 304 Part II. As a result, it is the responsibility of the courts to ensure that instances of
murder punished under Section 302 are not changed into offences punishable under Section
304 Part I/II, or that cases of culpable homicide that do not amount to murder are
considered as murder punishable under Section 302. A combination of a few or many of the
following, among other things, can be used to determine the intent to cause death:
 The weapon’s properties;
 Whether the accused carried the weapon or it was picked up on the spot;
 Whether the strike is directed at a critical bodily part;
 The amount of force used to injure someone;
 Whether the action occurred during a sudden dispute, a sudden fight, or a free-for-all
brawl;
 If the incident happened by coincidence or was it planned in advance;
 Whether there had been any previous animosity or if the deceased was a stranger;
 Whether there was any grave and immediate provocation, and if so, what caused it;
 Whether it was committed in the heat of emotion;
 Whether the person who inflicted the harm acted in a cruel and unusual manner;
 Whether the accused gave a single blow or multiple strokes. Of course, the preceding
list of conditions is not complete, and there may be other particular circumstances in
individual situations that provide light on the question of purpose.

Punishments for culpable homicide and murder

Section 304 IPC : penalty for culpable homicide that does not amount to murder
If the act by which the death is caused is done with the intention of causing death or causing
such bodily injury as is likely to cause death; or with imprisonment of either description for a
term which may extend to ten years, and also be liable to fine; or with imprisonment of either
description for a term which may extend to ten years, and also be liable to fine; or with
imprisonment of either description for a term which may extend to ten years, and also be
liable to fine.

Though the Section itself does not split the Parts in this fashion, the sentence under this
Section is separated into two parts, often referred to as Section 304, Pt I and Section 304,
Pt II. If the conduct is done with the purpose to cause death or physical damage that is likely
to cause death, Section 304, Pt I, specifies a penalty of life imprisonment or imprisonment of
any kind for a term up to ten years and a fine. This sentence refers to Section 299, clauses
(a) and (b).

Section 304, Pt II applies to crimes committed with the knowledge that they are likely to
result in death, but not with the purpose to cause death or bodily damage that is likely to
result in death. This phrase corresponds to Section 299, clause (c). However, if an offence is
committed with the knowledge that it is so dangerous that it must almost certainly result in
death or bodily injury that is likely to result in death, and the act is committed without
justification, the offence is removed from the scope of Section 304, Pt II and brought under
Section 302, as the offence would amount to murder under Section 300(4).

In the case of Vishwanath v. State of Uttar Pradesh (1959), the accused stabbed the dead
with a knife that penetrated his heart as the deceased was attempting to carry away the
51
accused’s wife and sister by force. The Supreme Court ruled that the suit fell under Section
304, paragraph II.

Section 302 : murder

Murder is punishable under Section 302. It specifies a penalty of death or life imprisonment,
as well as a monetary fine. If a court finds an offender guilty of murder under Section 300,
the court must sentence the criminal to death or life imprisonment. No other lesser
punishment can be imposed by the court.

In 1973, the Code of Criminal Procedure was updated again, making life imprisonment the rule.
The judge’s ability to impose a death sentence has been limited by Section 354(3) of the new
Code, which requires the court to establish particular reasons for imposing a death sentence.
When it comes to assigning a penalty for murder, it has now made life imprisonment the rule
and death sentence the exception.

Reddy Sampath Kumar v. State

In Reddy Sampath Kumar v. State (2005), the Apex Court permitted the accused, a doctor,
who was engaged in many murders of his in-laws, to be sentenced to life in jail. The court,
however, barred him from collecting any remissions on auspicious occasions in order to serve
as a deterrent. Similarly, in Lehna case (2002), the Supreme Court declared the death penalty
imposed by the trial court and upheld by the high court on the accused of murdering his
mother, brother, and sister-in-law to be unconstitutional and commuted it to life
imprisonment, reasoning that the multiple murders, while brutal, were not the result of
diabolic and sinister planning.

6. Discuss the essential elements of the offences of Murder and state the
Exceptions if any. (Nov 2012)

Ans: Section 299 and Section 300 of Indian Penal Code deal with murder. All murders are
culpable homicides but all culpable homicides are not murders. Culpable Homicide is genus and
murder is its species, thus, murder is a culpable homicide but all culpable homicide are not
murder.

The word homicide is derived from Latin where homo means man while the meaning of cide is I
cut. Thus, the killing of a man by a man is the meaning of homicide. Culpable homicide is
punishable by law. Homicide can be lawful or unlawful. Culpable homicide is further divided
into two categories:
 Culpable homicide amounting to murder.
 Culpable homicide not amounting to murder.

Murder (Section 300)

Murder is defined under Section 300 of the Indian Penal Code. According to this Act,
culpable homicide is considered as murder if:
 The act is committed with an intention to cause death.
 The act is done with the intention of causing such bodily injury which the offender has
knowledge that it would result in death.
 The person has the knowledge that his act is dangerous and would cause death or
bodily injury but still commits the act, this would amount to murder.
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Ingredients of Murder
 Causing death: There should be an intention of causing death,
 Doing an act: There should be an intention to cause such bodily injury that is likely to
cause death, or
 The act must be done: with the knowledge that the act is likely to cause the death of
another.
Illustrations
 A shoots W with an intention of killing him. As a result, W dies in that consequence,
murder is committed by A.
 D intentionally gives a sword-cut to R that was sufficient to cause the death of anyone
in the ordinary course of nature. As a consequence, R dies. Here, D is guilty of murder
though he didn’t intend to cause R’s death.

Culpable homicide (Section 299)

Culpable homicide is covered under Section 299 of the Indian Penal Code. Culpable homicide
means the act done by a person which causes the death of another with an intention of
causing death or causing such bodily injury that is likely to cause death, or he has knowledge
that the act committed by him is likely to cause death, is said to commit the offence of
Culpable homicide.
Illustration
 X induces Y to put the fire at the place having the knowledge that Z was sitting behind
a covered area. Here, X is liable for the offence of culpable homicide, as he had prior
knowledge that Z was present in that area and his actions will lead to Z’s death. Here,
intention makes X liable to culpable homicide.
 Y is diagnosed with a terminal illness and to live from day to day he needs certain
drugs. Z confines Y in a room and prevents him from taking his medication. Here, Z is
guilty of culpable homicide.

Cases
In the case of Reg. v. Govinda, 1876 the accused had knocked down his wife, kept a knee on
her chest and gave two to three violent blows with the closed fist on her face. This act
produced extraversion of blood on her brain and afterwards, the wife died due to this. The
act was not committed with the intention of causing death and the bodily injury was not
sufficient to cause death in the ordinary course of nature. The accused was liable to culpable
homicide not amounting to murder.

The difference between murder and culpable homicide is intention. If the intention is present
the crime is said to be committed under Section 300 of IPC. If the intention is absent, then
the crime is dealt under section 300 of IPC.

Exceptions to Section 300 of IPC where culpable homicide is not considered as murder
Sudden and grave provocation
If the offender is deprived of the power of self-control due to sudden and grave provocation,
and his act causes the death of the person who provoked or death of any other person by
accident or mistake.

53
This exception is subject to a certain proviso, that is:
 That the provocation is not sought or is voluntarily provoked by the offender to be
used as an excuse for killing or causing any harm to the person.
 That the provocation is not given by anything that is done in obedience to the law, or
by a public servant while exercising the powers lawfully of a public servant.
 That the provocation is not done while doing any lawful exercise of the right of private
defence.
Illustration
A is given grave and sudden provocation by C. A fires at C as a result of this provocation. A
didn’t intend or have knowledge that his act is likely to kill C, who was out of A’s sight. A kills
C. A is not liable to murder but is liable to culpable homicide.

Cases
K.M. Nanavati v. State of Maharashtra, 1961
In this case, the Supreme Court had extensively explained the law relating to provocation in
India. It was observed by the Court:
 The test of “sudden and grave provocation” is whether a reasonable man, who belongs
to the same society as the accused, is placed in the situation in which the accused was
placed would have been so provoked as to lose his self-control.
 Under certain circumstances, words and gestures may also lead to sudden and grave
provocation to an accused, so as to bring his act under an exception.
 The mental background of the victim can be taken into consideration, taking account of
his previous act to ascertain whether the subsequent act leads to sudden and grave
provocation for committing the offence.
 The fatal blow clearly should trace the influence of passion that arises from the
sudden and grave provocation. It should not be after the provocation has been cooled
down due to lapse of time, otherwise, it will give room and scope to the accused for
altering the evidence.

Muthu v. state of Tamil Nadu, 2007

ln this case, it was held by the Supreme Court that constant harassment might deprive the
power of self-control, amounting to sudden and grave provocation.

When the person exceeds his right to private defence

Where the act is committed to defend them from further harm. If the accused intentionally
exceeds his right to private defence, then he is liable to murder. If it is unintentional, then
the accused will be liable to culpable homicide not amounting to murder.
Illustration
X attempts to flog Y, not in a manner to cause grievous hurt to Y. A pistol is drawn out by Y, X
persists the assault. Y believes that he had no way to prevent himself from being flogged by
X, Y fires at X. X is liable to culpable homicide not amounting to murder.

Case
Nathan v. State of Madras, 1972
In this case, the landlord was trying forcefully to evict the accused. The accused killed the
landlord while exercising his right to private defence. There was no fear of death to the
accused as the deceased was not holding any deadly weapon that could have caused grievous
54
hurt or death of the accused. The deceased had no intention to kill the accused, thus, the
accused exceeded his right of private defence. The accused was liable to culpable homicide
not amounting to murder.

Culpable homicide in case of Public Servant

The act is done by a public servant who is acting to promote public justice. If the public
servant commits an act which is necessary to discharge his duty as is done in good faith and
he believes it to be lawful.
Illustration
If the police officer goes to arrest a person, the person tries to run away and during that
incident, if the police officer shoots the person, the police officer will not be guilty of
murder.

Case
Dakhi Singh v. State, 1955
In this case, the appellant was the constable of Railway Protection Force, while he was on
duty he killed a fireman unintentionally, while he was firing bullet shots to catch the thief.
The constable was entitled to benefit under this section section’s benefit.

Sudden Fight
The sudden fight is when the fight is unexpected or premeditated. Both the parties don’t
have any intention to kill or cause the death of another. The fact that which party had
assaulted or offered a provocation first is not important.

Case
Radhey Shyam and Anr. v. State of Uttar Pradesh, 2018
In this case, the appellant was extremely angry when he got to know that his calf had come to
the deceased place. The appellant started abusing the deceased, when it was tried to stop
him, the appellant fired at the deceased. The deceased was unarmed at that time, thus the
appellant had an intention to kill the deceased, hence, he was held liable to murder.

Consent
If the act is committed with the consent of the victim. The consent should be unconditional,
unequivocal and without any sort of reservation.
Illustration
 A instigated F who was under 18 years of age, to commit suicide. F was incapable of
giving consent to his own death. Therefore, A is guilty of murder.
 X killed his stepfather Y, who was old and infirm. X killed Y with his consent. This was
punishable under Section 304.

Culpable Homicide in the exercise of good faith

Culpable homicide does not amount to murder if it is done in exercise of good faith in order to
protect the private or public property. If the act committed by a person exceeds its power
provided by law and kills someone in order to save someone or something, then the act does
not amount to murder.

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Illustration
Y attempts to horsewhip Z, not to cause grievous hurt to Z. Z takes out a pistol, Y persists to
the assault. Z in good faith in order to prevent himself from being horsewhipped, shoots at Y,
such that he dies because of that. Z is guilty of culpable homicide and not murder.

The act is punishable under Section 302 of IPC if it does not fall under the exception of
Section 300 of IPC.

7. Explain the law related to Cheating. (Sept2012) (Sept 2016)

Ans: Cheating is considered as a criminal offence under the Indian Penal Code. It is done in
order to gain profit or an advantage from another person by using some deceitful means. The
person who deceives another knows for the fact that it would place the other person in an
unfair situation. Cheating as an offence can be made punishable under Section 420 of the IPC.

Scope of Section 415

Cheating is defined under Section 415 of the Indian Penal Code as whoever fraudulently or
dishonestly deceives a person in order to induce that person to deliver a property to any
person or to consent to retain any property. If a person intentionally induces a person to do or
omit to do any act which he would not have done if he was not deceived to do so and the act
has caused harm to that person in body, mind, reputation or property, then the person who
fraudulently, dishonestly or intentionally induced the other person is said to cheat. Any
dishonest concealment of facts which can deceive a person to do an act which he would not
have done otherwise is also cheating within the meaning of this section.

Essential Ingredients of Cheating

The Section requires:
 deception of any person.
 fraudulently or dishonestly inducing that person to deliver any property to any person
or to consent that any person shall retain any property; or
 intentionally inducing a person to do or omit to do anything which he would not do or
omit if he were not so deceived, and the act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or property.

Important Ingredients of Deception and Inducement

Deception
One of the important ingredients which constitute the offence of cheating is deception.
Deception can be done to induce the other person to either deliver or retain the property or
to commit an act or omission. Deceiving means to make a person believe what is false to be
true or to make a person disbelieve what is true to be false by using words or by conduct.

In the case of K R Kumaran vs State of Kerala, a person who was admitted in the hospital
was checked by the doctor and the doctor knew that the person was in a condition that he
won’t be able to survive. The doctor conspired with other accused to issue a life insurance
policy for the person was going to die and in order to do so, he certified to be fit and healthy.
This was done by accused in order to get the amount from the insurance company after the
patient dies. The court held the accused liable for the offence of cheating and deceiving the

56
insurance company in order to earn benefits. The accused was held guilty of cheating under
IPC.

Wilful Representation and Cheating

In deception, a fraudulent representation or wilful misrepresentation of a fact is made
directly or indirectly with an intent to commit the offence of cheating. In order to prove the
offence, it is not only important to prove that a false representation was made by the accused
but also that the accused had the knowledge that the representation was false and wilfully
made it in order to deceive the prosecutor. If the accused knowingly makes a representation
which is false then the accused can be held liable for the offence of cheating under IPC.

Cheating and Misappropriation

Cheating and misappropriation are closely related. In cheating, the act of misrepresentation
starts from the beginning of the act, whereas, in case of misappropriation it is not important
that the offence of cheating will start from the beginning. The accused may obtain a property
in good faith and then further misappropriate it in order to sell it for an advantage. It may be
done against the will or without the consent of the owner.

It is seen that misappropriation is generally done by a person who is a relative, friend or a

known person. The offence of misappropriation is defined under Section 403 of the IPC. It
deals only with immovable properties and not with body, mind, reputation, or immovable
property.

Deception and Cheating in Connection with False Promise of Marriage

In the case of Deception and cheating with a false promise of marriage, there can be no
action for a breach of a promise under IPC unless there is a contract made by parties to
marry each other. There are no specific requirements regarding the formation of the
contract. It need not necessarily be in writing and there isn’t a particular set of words which
needs to be used for the contract of marriage. A promise by one person to marry another will
not be a binding promise unless and until that other person also reciprocates and promises to
marry the first person. Mutual promises to marry between two parties may be implied from
the conduct of the parties. A declaration of intention to marry another person made to a
third person will not constitute a proper promise and an offer to marry unless his proposal is
communicated to that person whom he intends to marry. It is not necessary that the mutual
promises between the parties to be concurrent, it should be made within a reasonable time
after the offer is made by a party to another. An action for breach of promise to marry may
be taken under deception and cheating.

Inducement
When one person uses deceitful practices to convince the other person to agree on anything
which is harmful to that person, it is known as Inducement. It generally occurs when two
parties enter into a contract and a party uses fraudulent inducement to gain advantage on the
other party. The fraudulent inducement can be done when a person persuades another by
giving false information about a thing to be beneficial for that person but in reality, it is not.
Fraudulent inducement differs from fraud as inducement needs a person to convince the
other person for the object which he wants to achieve and the latter needs the person to
commit a deceitful conduct by himself for the object which he wants to achieve.

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Effect of Absence of Dishonest Inducement
The offence of cheating does not necessarily need the person who is being deceived is
induced to do any act which could cause harm to him. In case there is an absence of dishonest
inducement, it is enough to constitute the offence of cheating that the person deceived is
induced to an act which is likely to cause harm to him.

Critical Aspects Relating to the Offence of Cheating

Dishonest Intention Should be Present at the Time of Making the Promise
Deception and dishonest intention are important elements to constitute the offence of
cheating under IPC. The presence of dishonest intention is important to hold a person guilty
of the offence. The fact that dishonest intention was present at the time of making the
promise is to be proved in order to hold the accused guilty for the offence of cheating.
Dishonest intention at the time of making the promise cannot be inferred by subsequent non-
fulfilment of promise.

Absence of Intention to Honour the Promise at the Time of False Representation

The offence of cheating has an element of fraudulent or dishonest intention from the very
beginning. When a party makes a false representation to another party in order to gain some
profit, the intention to honour the promise at the time of false representation is presumed to
be absent.

Dishonesty is Causing Either Wrongful Gain or Wrongful Loss

Acting dishonestly is defined under Section 24 of IPC as doing an act or omitting to do any
act which causes a wrongful gain to one person or a wrongful loss of a property to a particular
person. The act done in order to gain a property wrongfully or cause a loss to another person
wrongfully is said to be done dishonestly.

False Pretence to be Inferred From Circumstances

False statements and representations made with fraudulent intent in order to gain a profit by
cheating are known as a false pretence. It is not necessary that every pretence will be a false
one, it has to be inferred from the circumstances. For instance, a person may have induced
the credit or delivery of property but still, it might not be sufficient as it can be a false
pretence and the credit or delivery would not have been given or delivered. A false pretence
can be used where the party wants to come in a contract with the other party. There should
be an intention to cheat, deceive or commit fraud on the part of a person. Intention to commit
cheating plays an important part. False pretence must be inferred from the circumstances of
the case.

Mens Rea as Essential Ingredients of the Offence of Cheating

Mens rea refers to the mental state or intention of a person in committing a crime. It is a
mental state of the accused which is taken into consideration while deciding the liability for a
crime. Mens rea has to be proved as it an essential ingredient for the offence of cheating. It
has to be proved that the accused deliberately committed the offence of cheating with a
prearranged plan. If mens rea for the offence is proved then the accused can be held liable
for the offence of cheating under IPC.

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 8. Explain the scope of the maxim “Actus non Tacit reum mini mens sit rea”. (Nov
2012) ((Sept 2019)

Ans: The Latin expression ‘actus non facit reum nisi mens sit rea’, loosely translated as “an
act does not render a man guilty of a crime unless his mind is equally guilty,” expresses a
foundational concept in criminal law. This means that proving criminal culpability necessitates
not only the presence of the actus reus and the mens rea, but also the coincidence or
concurrence of the mens rea with the conduct that creates the actus reus. This article aims
to explore the concerned maxim with respect to the criminal laws in India.

Actus non facit reum nisi mens sit rea

The Supreme Court of India while deciding on the case of C.K. Jaffer Sharief vs State (Thr
C.B.I.) (2012) had observed that an individual’s criminal culpability would be attached if they
broke the law. The norm, however, is not absolute, and it is subject to the constraints set out
in the Latin maxim actus non facit reum nisi mens sit rea. It means that there can’t be a crime
without a criminal mind. To hold someone criminally responsible, it must be proven that their
actions resulted in an illegal act and that their actions were accompanied by a legally
blameworthy mental attitude. As a result, every crime has two components, a physical element
and a mental aspect, i.e. actus reus and mens rea respectively.

Mens rea is the source of the Latin maxim actus non facit reum nisi mens sit rea. Actus non
facit reum nisi mens sit rea clarifies the application of mens rea in criminal law. It asserts
that a person is only guilty of committing a crime if the conduct is done with the purpose to
commit a crime. This maxim is used to judge whether certain conduct is illegal or not. Crimes
done with a particular intent, rather than unforeseen or inadvertent acts, are subject to
harsher penalties. However, no violation of the law may go unpunished.

The origins of this adage are yet unknown. Pollock and Maitland tracked the earliest and most
distant reference to this maxim to St. Augustine, but they were unable to provide a
sufficient context for the maxim discovered. This principle was later acquired from
contemporary theology by Lord Edward Coke, and it is now universally used in the common law.
He traced the origins of this aphorism back to St. Augustine’s Sermon 180. In the sermon’s
body, St. Augustine discusses an instance of perjury. In one instance, he talks of a man who
was asked if it rained in a certain location. The man believed it did not rain but had further
believed it was in his best interests to testify that it did. It did, in fact, rain there, but the
man was unaware of this and believes it did not. The man, according to Augustine, was,
therefore, a liar.

Actus non facit reum nisi mens sit rea under the Indian Penal Code, 1860
The maxim actus non facit reum nisi mens sit rea has been integrated into the Indian Penal
Code, 1860 in two basic ways:
1. Through express inclusion of the required state of mind (mens rea) in the definition of
an offence.
2. Through ‘General Exceptions’ enumerated in Chapter 5 of the Code, some of which,
such as mistake of fact, accident, infancy, and insanity, deny the existence of mens
rea.

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Exceptions of actus non facit reum nisi mens sit rea
In certain situations, the law can create offences based only on the physical act, disregarding
‘the state of mind’ of the person committing the crime. These situations are likewise punished
and are considered exceptions to the general rule of actus non facit reum nisi mens sit rea. In
basic terms, a crime for which mens rea is not a necessary criterion is an exception to this
rule.

While hearing the case of Ranjit D. Udeshi v. the State of Maharashtra (1964), the Supreme
Court of India observed “We do not accept the notion that the prosecution must establish
that the person who sells or holds for sale any obscene object knows that it is obscene before
he can be declared guilty”. As a result, mens rea is less significant than the act committed. If
obscene material is discovered in a person’s possession, he will be prosecuted under Section
292 of the Indian Penal Code, 1860. It is not necessary to show his purpose or awareness of
the obscene material.

Ignorance of law
Because every citizen and non-citizen is expected to know the laws of the nation they are in
or visiting, ignorance of the law cannot be used as a justification to commit a crime. As a
result, in such circumstances, the existence or lack of purpose is not taken into account,
making it an exception to the rule.

In the case of the State of Maharashtra v. Mayer Hans George (1964), the Indian
Government had issued an order on November 24th, banning gold transportation outside of
India in order to save foreign exchange and combat smuggling. The appellant, M.H George, a
German national, boarded an aircraft in Zurich on November 27th to travel to Manila. On the
28th of November, the plane made a stopover in Bombay, where he was apprehended by a
customs official with 34 kg of gold. He was held liable under Sections 8 and 23 of the Foreign
Exchange Regulation Act, 1947. Later, the matter went to the Bombay High Court, where he
was acquitted since he had been exposed to the law recently and, as a German national, he was
unaware of the Indian legislation and had no intention of smuggling the gold. However, when
the matter went to the Supreme Court, he was found guilty since ignorance of the law could
not be used as an excuse, even though he had no intention of smuggling the gold.

Public nuisances
A public nuisance is a criminal offence in which an act or omission obstructs, harms, or causes
trouble to the general public’s right. It may also be described as conduct that jeopardises the
broad public’s interest or comfort. In such circumstances, strict responsibility is applied since
the public’s interest is jeopardised. As a result, these offences are penalised whether or not
there is a mental purpose.

Petty offences
Petty offences are the least serious kind of offences. When it comes to minor offences like
running a red light, proving the mens rea behind such an act might be challenging. As a result,
in such instances, acts such as that of jumping the red light may be considered criminal. As a
result, it is an exception to the general rule of actus non facit reum nisi mens sit rea.

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Strict liability
Strict liability offences are those in which the prosecution does not need to show that the
defendant behaved with a guilty mental state since the conduct is sufficient to establish the
crime. The activities that fall under these categories are damaging to society or the State.
For example, under Section 375 of the Indian Penal Code, 1860, rape is defined as an act of
sexual intercourse without consent. In this situation, even if mens rea is not required, the
physical act alone is sufficient to convict a person under this provision.

Insanity
A criminal purpose cannot be attributed to a person who, due to a mental illness or
immaturity, is unable to comprehend the nature of the conduct he has performed or to
discern between good and evil. As a result, the defence of insanity is an exception to the rule
of actus non facit reum nisi mens sit rea. The essential precept of criminal law, actus non
facit reum nisi mens sit rea, is embodied in Section 84 of the Indian Penal Code, 1860.
While discussing the case of Hari Singh Gond v. the State of M.P. (2008), the Supreme Court
of India had viewed that in circumstances of suspected insanity, Section 84 of the Indian
Penal Code, 1860 establishes the legal standard for determining culpability. In the
aforementioned Code, there is no definition of ‘unsoundness of mind.’ The courts have largely
equated this term with insanity. However, there is no clear meaning of the term ‘insanity.’ It
is a phrase that is used to characterise various levels of mental illness. As a result, a mentally
ill individual is not automatically free from criminal liability. It’s important to distinguish
between legal and medical insanity. A court of law is concerned only with legal insanity and not
medical insanity. The burden of proof is on the accused to show his insanity, which arises
under Section 105 of the Indian Evidence Act, 1872, and is less onerous than the
prosecution’s burden of proof to prove that the accused did the act for which he is charged.
The Madhya Pradesh High Court while deciding the case of Ram Bahadur Thapa v. the State
Of M.P. (2021) had viewed that under Section 84 of the Indian Penal Code, 1860, a person is
immune from culpability for an act committed due to insanity if, at the time of the act, he is
either incapable of understanding;
1. The nature of the conduct, or
2. That he is doing something that is either improper or illegal.

The accused is protected not only when, on account of insanity, he was incapable of knowing
the nature of the act, but also when he did not know either that the act was wrong or that it
was contrary to law, although he might know the nature of the act itself. He is, however, not
protected if he knew that what he was doing was wrong, even if he did not know that it was
contrary to law, and also if he knew that what he was doing was contrary to the law even
though he did not know that it was wrong. The onus of proving unsoundness of mind is on the
accused.

Vicarious liability
The term “vicarious liability” refers to a situation in which the master is held liable for the
actions of his servant while on the job. If the servant has committed a criminal offence
without the master’s knowledge, this general norm becomes an exception under the
maxim actus non facit reum nisi mens sit rea. The servant’s condition of mind shall not be
blamed on the master in such a circumstance. This was the finding in the notable case
of Chisholm v. Doulton (1889).
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 9. Write critical essay on offences relating to marriage. (Nov 2012)
Explain the offences of causing Cruelty to Wife by Husband and relatives of
husband. (Sept 2014)
Explain briefly the law relating to Section 498 A of IPC. (Sept 2016)
What are the offences relating to Women under IPC? Explain. (Oct 2017)
Explain the various offences relating to marriage. ( Dec 2020)

Ans: A generally accepted definition of marriage is that of matrimony or wedlock, which is a

culturally recognised social sanction of union between two people. This union helps in
establishing rights and obligations between two people coming together in this union, along
with their children, and the in-laws.

However, the sacrosanct institution of marriage has been existing through generations and
has consumed in itself various distorted versions of the same. To correct them, and
subsequently, make sure that no innocent life suffers. Different laws and precedents have
been brought in by various courts, with the most illuminating ones being from the Hon’ble
Apex Court. Such misbehaviours, namely: adultery, desertion, or cruelty, amongst others, are
known to be offences against marriage or matrimonial offences.

Offences relating to Marriage

Offences pertaining to marriage are provided in Sections 493 to 498, of the Indian Penal
Code, 1860 (IPC). These laws deal with the various aspects of a marriage, and their
subsequent felonies. The most illuminated of these is Section 498-A, otherwise known as The
Cruelty Law. This law, along with The Domestic Violence Act (Passed in 2005), aims to provide
substantial protection to female victims of cruelty and domestic violence. With the
incrementally increasing cases of such nature, it was observed that such legislation was
necessary to ensure that the Fundamental Right to Life and Dignity, entrusted upon each
citizen by the Constitution of India, is complied with. Furthermore, cruelty was also made to
be a substantial ground for the dissolution of a marriage, too.

Other sections of chapter XX include:

 Mock marriages (Section 493);
 Bigamy (Section 494 and 495);
 Fraud Marriage (Section 496)
 Adultery (Section 497);
 Criminal elopement (Section 498);

Cohabitation after deceitfully inducing a belief of marriage

Section 493 is for every man who deceives a woman into having carnal intercourse with him
under the pretext that she is married to him. For this, the Indian Penal Code provides for a
ten-year jail term, with a fine. This section has been a topic of heated debate amongst
lawmakers for a considerable amount of time.

Marrying again during lifetime of husband or wife

Section 494 states that marrying again during the lifetime of the spouse is bigamy (read
with) Sec 50 of the Evidence Act and Section 198 (1)(c) of CrPC.
However, the section provides for exceptions to Section 494 of IPC, viz:

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(a) If the first marriage has been declared void by the following:
 by a court,
 holding competent jurisdiction
(b) If the previous spouse has been continuously absent for a period of seven years and
 not heard of as being alive
 provided that the facts are disclosed to the person with whom the second marriage is
contracted.
The aforementioned offence is termed as bigamy. It can be afflicted by either of the
spouses on to one another.

For a better understanding of the aforementioned provision, Section 17 of the Hindu

Marriage Act and Section 108 of the Evidence Act along with the judgment of the Supreme
Court in the landmark judgement of Smt. Sarla Mudgal vs Union Of India & Ors (1995) must
be referred to. This case laid down the principles against the practice of solemnizing second
marriage by conversion to Islam, with first marriage not being dissolved. The verdict
discusses the issue of bigamy, the conflict between the personal laws existing on matters of
marriage and invokes Article 44 of the Indian Constitution. It is considered a landmark
decision that highlighted the need for a Uniform Civil Code.

Concealing the previous marriage before subsequently getting wed

Section 495 talks about a ten year incarceration period, with fine, for a person who hides
their former marriage with someone they are getting married to. It is a non-cognizable,
bailable offence, with the trial being carried out by first class Magistrate.

Fraudulent conduction of wedding ceremony without a lawful, genuine marriage

Section 496 provides for a jail term extending up to as long as seven years, along with a fine,
for anyone who dishonestly, clubbed with a fraudulent intention, goes through the wedding
ceremony, despite knowing that he is not thereby lawfully married.

Adultery
Earlier, Section 497 gave way for a jail term up to five years, with or without a fine, to a
person who had sexual intercourse with the wife of another man without the consent or
connivance of that man. If it was not rape, the man would be guilty of the offence of
adultery. Meanwhile, in such a case, the wife would not be punishable as an abettor.
It is important to note that this law has since been decriminalised but continues to be strong
grounds for divorce.

Enticing a married woman for illicit sexual relations

Section 498 of the IPC provides for a two-year jail term, with or without a fine, for anyone
who takes, or conceals, or detains, or entices away, any woman who is and whom he knows or
has reason to believe to be- the wife of any other man, with the intent that she may have
illicit intercourse with any person.
The deceit and fraudulent intention should exist at the time of the marriage.

The essential ingredients of Sections 493 and 496 are as follows:

1. the accused must have deceived the woman,
2. as a consequence of which she is led to believe that she is lawfully married to him,
though in reality, she is not.
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Thereby, mens rea an essential component of both these sections. The words ‘deceit’,
‘dishonestly’ and ‘fraudulent intention’ have been used in Sections 493 and 496 respectively.
This means that in both the sections while the man remains aware that they are not married,
the woman is cheated on by the man into believing the same to be true.

Landmark Judgments
In a landmark case of Subhransu Sekhar Samantray v. The State (2002), the Orissa High
Court contended that the statement of the prosecutrix that she had resisted the
establishment of sexual relations with the accused, but when he put vermillion on her head
and declared her as his wife, and alleged that he would accept her status in his life publicly
after getting a job she submitted herself to his advances, is sufficient to constitute an
offence under Section 493 of the IPC.

In Kashuri v. Ramaswamy (1978), the court said, “the proof of sexual intercourse has to be
inferred from the facts and circumstances of a case as direct evidence can rarely be
proved”.

When the question about Section 498 arises, a landmark decision is taken to be that
of Alamgir v. State of Bihar (1958), wherein the court said that “if a man knowingly goes away
with the wife of another in such a way to deprive the husband of his control over her, with
the intent to have illicit intercourse, then it would constitute an offence within the meaning
of Section 498”.

The Apex Court, in the case of Mohd. Hoshan vs. State of A.P (2002) concluded that the issue
of cruelty, by one upon the other is essentially a question of fact, and is quite subjective in
nature. The impact of complaints, accusation or taunts on a person amounting to cruelty
depends on various factors of the victim, viz: sensitivity, socio-economic background,
education etc.

The court further elaborated that mental cruelty varies from person to person- depending on:
 the intensity of the sensitivity,
 degree of courage, and,
 endurance to withstand such cruelty, and that each case has to be dealt with on an
instant case basis.

However, as these reforms have made their way into the legislation over the course of the
past two decades, a common criticism witnessed against laws relating to matrimonial offences
in India has been that women misuse these laws. This allegation has often been made by
various sectors including the police, politicians and even judges of the High Courts and the
Supreme Court.

The allegation of misuse is made particularly against Section 498A and also against the
offence of dowry death in Section 304B. The Supreme Court less than a decade ago, in the
landmark case of Sushil Kumar Sharma vs. Union of India and others (2005), observed that
the object of the provision was to prevent the dowry menace. But many instances have since
come to light where the complaints are not in good faith and have been filed with perverse
motive.

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Sometimes unfavoured, unwanted media coverage adds to the misery. However, the 243rd
Law Commission’s Report, which came out in August 2012, observed that the misuse of law is
not a ground to remove the provision from its efficacy since what is involved is a larger
societal interest.

The question, thus involved is which remedial measures must be taken to prevent such abuse
of well-intentioned legislation. The constitutionality and intra vires nature of the law
definitely isn’t a licence for people to harass others for personal vendetta. It thus becomes
necessary for the lawmakers to find out methods of how frivolous complaints or allegations
can be appropriately dealt with.

Less than a decade ago in another case of Arnesh Kumar v. the State of Bihar and Anr
(2014) the Supreme Court declared with particular reference to Section 498A, that no arrest
should be made immediately in the offences which are allegedly committed by the accused and
the offence is cognizable and non-bailable, and went on to lay down crisp guidelines for the
police officers to follow relating to the arrests made under the section, due to increase in a
number of seemingly false complaints.

10. Discuss the law relating to “Private Defence”. (Jan 2012) (Jan 2014)
Explain briefly the law relating to “Private Defence” under IPC with the help of
decided cases. (July 2012)
Explain the law relating to “Private Defence” with suitable examples. (Sept 2015)

Ans: It is a right available to every citizen of India to protect themselves from any external
force that can result into any harm or injury. In layman’s language it is basically a right of self
defence. It is mentioned in the sections 96 to 106 of Indian Penal Code 1860.’Nothing is an
offence which is done in exercise of the right of private defence’- It implies any harm done
or injury caused to any person in the course of protecting himself from the external force or
harm is not an offence as per Indian Penal Code 1860.

The right of Private defence has evolved in modern India but initially it was proposed by an
ebullient Macaulay 150 years ago in his draft code with the aspiring task of empowering a
“manly spirit among the natives or locals. An ideal Indian in case of any risk or danger would
persevere and not be reluctant to protect his own body or property, or that of another. He
would react with cautious power to avoid certain harms and injuries even to the degree of
causing death of someone.

In most common language it implies the use of generally or otherwise unlawful actions in order
to protect oneself or any other individual, to protect property or to prevent any other crime.
Simply it can be termed as any action done in the course of self protection. According to
Article 51(a)(i) of Indian Constitution the State is having a fundamental duty of the state to
protect public property and abjure violence. It implies that it is the fundamental duty of the
state to protect its citizens and their property from any harm, and in case the aid or help of
state is not available and the danger is overhanging and is unavoidable at the moment then the
person is authorized to use his force to protect himself from any harm or injury. The term
private defence is not properly defined anywhere in penal code, it has generally developed and
evolved over the years by the judgments of the various courts. The main motive behind
65
providing this right to every citizen was to remove their hesitation in taking any action
(generally illegal) to protect themselves due to the fear of prosecution.

Nature
Self help is the first principle i.e. it is the first duty of a person to help himself. Citizens of
every free country should be provided with the right of private defence in order to protect
themselves from any imminent danger at the time when the state aid is not available or
possible. This right should be read with the duty of the state to protect its citizens as well as
their property. But no state, no matter how much rich it is or how large are its resources can
afford to deploy a policemen for each and every citizen to protect themselves from any
external harm or injury. So in order to fulfil its fundamental duty it has given this power to
the citizens itself, that they are authorized by the state to take the law in their own hands if
it’s the matter of their self defence. While exercising this right one thing should be taken
into consideration that the right of private defence can only be exercised if there is no time
to call the police or no help can be provided by the state authorities in the given time i.e. aid
from the state is not available. Any unlawful act committed by any person in course of self
defence is not considered as an offence and does not, therefore, give rise to any right of
private defence in return. The right is not dependent on the actual criminality of the person
resisted. It depends solely on the wrongful or apparently wrongful character of the act
attempted, if the apprehension is real and reasonable, it makes no difference that it is
mistaken.

Scope of Private Defence

Sec 97 of IPC states that every citizen is having this right subject to certain restrictions
(mentioned in sec 99) to defend his own body or body of any other person, against; any
offence affecting to the human body; the property whether immovable or movable, of himself
or of any other person, against any act, which is an offence falling under the definition of
robbery, theft, mischief, criminal trespass or which is an attempt to commit theft, robbery,
mischief or criminal trespass.

This implies that Self help is the first principle i.e. it is the duty of a person to help himself
and then arises a social duty to help other members of the society. The social duty arises out
of the Human sympathy to protect others and their property.

As per sec 98 of IPC when an act which would otherwise be a certain offence, is not that
offence, by reason of the youth, the want of maturity of understanding, the unsoundness of
mind or the intoxication of the person doing that act, or by reason of any misconception on
the part of that person, every person has the same right of private defence against that act
which he would have if the act was that offence

And according to sec 106 of penal code If, in the exercise of the right of private defence
against an assault which reasonably causes the apprehension of death, the defender be so
situated that he cannot effectually exercise that right without risk or harm to an innocent
person, his right of private defence extends to the running of that risk.
The extent of the right of private defence and the limitations in the exercise of this right
may be summarized as below: —

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 1. There is no right of private defence against an act which is not in itself an offence
under this Code. This does not cover the case of exceptions.
2. The right commences as soon as and not before a reasonable apprehension of danger
to the body arises from an attempt or threat to commit some offence. The right is
availed of only against a danger imminent, present and real.
3. It is defensive and not a punitive or retributive right. In no case the right extends to
the inflicting of more harm than it is necessary to inflict for the purpose of defence,
though reasonable allowance should be made for bona fide defender.
4. The right extends to the killing of actual assailant when there is a reasonable and
imminent danger of the atrocious crimes enumerated in the six clause s of Section
100.
5. There must be no safe or reasonable mode of escape by retreat, for the person
confronted with an impending peril to life or of grave bodily harm except by inflicting
death on the assailant.
6. The right being, in essence, a defensive right, does not accrue and avail where there
is time to have recourse to the protection of public authorities.

Misuse
It was granted as a right for self protection to every citizen of India but it is often misused
by many people by treating it as an excuse of committing any crime or offence. It is a right
granted for defence and not for vengeance and may not be used as a measure of taking
revenge. This right of private defence is not available against any lawful action i.e. when the
actions of a person are lawful and not resulting into any offence the right of private defence
can’t be utilized. Sometimes some people provoke others to act in aggression and use it as an
excuse for the harm caused and even murder. But this can’t be used in a situation where the
aggression was shown by the accused only. It is treated as license to kill by many people as
the IPC is not in clear on the situation where an attack may be provoked as pretence of killing.
But the court has asserted that the private defence is available only to the persons who act
in good faith and don’t misuse it as an excuse to justify their unlawful act or act of
aggression. it was further stated by the court “while providing for the right of private
defence, the penal code has surely not devised a mechanism whereby an attack may be
provoked as a pretence for killing”.

Judicial Perspective and leading cases

The framers of Indian penal code left this concept of Private defence in a ‘imperfect state’
i.e. the term private defence is not properly defined in the provisions of penal code , it
usually developed or evolved over the years with judgments and decisions of the courts. The
provisions were framed by the framers of the code in a way that such provisions can be
interpreted and analyzed by the judiciary and can be modified according to different
situations and cases to maintain the principle of fairness while providing justice to the people
of our country i.e. they left it in a flexible state. They followed the Rawls principle of justice
that it is the moral obligation of the court to act on the basis of fair adjudication between
competing claims. As such it is linked to fairness, entitlement and equality. And also justice
can’t be sacrificed on account of cost, speed and expediency. But their intention was only
partly fulfilled as the local judiciary acts in a bit strict manner in comparison to higher
judiciary while interpreting this term private defence and this inconsistency between the

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judicial interpretation and the intention is mentioned in the sections 100 and 102 of penal
code(explained under the head of ‘reasonable apprehension’). The Court interpreted and
analyzed the right of private defence in various landmark cases.

Munshi ram and others vs. Delhi administration

Though the appellants in their statement under Section 342 Cr.P.C denied having been
present at the scene of occurrence or having caused injuries to anyone, the plea taken on
their behalf at all stages was one of private defence. Their case is that their relation Jamuna
(DW3) was the tenant in the land for over thirty years. His tenancy was never terminated. He
had raised crops in the field in question. There was no delivery on June 22, 1962. If there was
any delivery as alleged by the prosecution, the same was without the authority of law and such
was no effect. Hence, jamuna continued to be in possession of the property even on July 1,
1962. On the day prior to occurrence, PWs 17 and 19 tried to intimidate jamuna to come to
terms with them and to peacefully deliver the possession of property to them. But he put off
the question of compromise by pleading that he was going out of station and the question of
compromise could be considered after his return. With a view to forcibly assert their right to
the property, the complainant-party came to the field in a body on July 1, 1962with a tractor.
At that time PW 19 was armed with an unlicensed pistol. It is at this stage that the appellants
who are near relations of Jamuna went on the field and asked the complainant party to clear
out of the field. When they refused to do so, they pushed them and thereafter used minimum
force to throw them out of the field. On the basis of the above facts, it was urged on behalf
of the appellants that they were not guilty of any offence.

The law relating to defence of property is, set out in Section 97 IPC, which says that every
person has a right, subject to the restrictions contained in Section 99, to defend-First-his
own body, and the body of any other person, against any offence affecting the human body;
Secondly- the property, whether movable or immovable, of himself or of any other person,
against any act which is an offence falling under the definition of theft, robbery, mischief or
criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal
trespass. Section 99 of the code lays down that there is time to have recourse to the
protection of public authorities. It further lays down that the right of private defence in no
case extends to the inflicting of more harm than it is necessary to inflict for the purpose of
defence.

It was urged on behalf of the prosecution that even assuming that Jamuna was in possession
of the field in view of the delivery that had taken place on June 22, 1962, he and his relations
had enough time to have recourse to the protection of public authorities and therefore the
appellants could not claim the right of private defence. The case of Jamuna and the appellants
was that they were unaware of the alleged delivery on June 22, 1962. Admittedly neither
jamuna nor any of the appellants were present at the time of delivery. Nor is there any
evidence on record to show that they were aware of: the same. Further, as seen earlier, the
conversation that PWs 17 and 19 had with jamuna on the day prior to the occurrence,
proceeded on the basis that Jamuna was still in possession of the field. Under these
circumstances when the complainant party invaded the field on July 1 1962, Jamuna’s relations
must have been naturally taken by surprise. Law does not require a person whose property is
forcibly tried to be occupied by the trespassers to run away and seek the protection of the

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authorities. The right of private defence serves as a social purpose and that right should be
liberally construed. Such a right not only will be restraining influence on bad characters but it
will encourage the right spirit in a free citizen. There is nothing more degrading to the human
spirit to run away in the face of peril.

State of UP vs. Ram Swarup

Facts- On 7th June 1970 at about 7 a.m. one Ganga Ram went to the market to purchase a
basket of melons in subzi mandi Badauin, Uttar Pradesh. A person called Sahib Datta Mal alias
Munimji who was the melons vendor refused to sell it saying that it was already marked for
another customer. This led to the exchange of hot words and Munimji asserting his authority
said that he was the thekedar of the market and his words were final. Ganga Ram could not
take the challenge and left in huff.

“The Supreme Court Held that the right of private defence is a right of defence, not
retribution. It is available in face of imminent peril to those who act in good faith and in no
case can the right to be conceded to a person who stage-manages a situation where in the
right can be used as a shield to justify an act of aggression.”

An hour later Ganga ram along with his three sons Ram Swarup, Somi and Subhash went back
to the market. Ganga ram had a knife, Ram Swarup had a gun and two others carried lathis.
They advanced aggressively to the car of Munimji who, taken by surprise rushed to take
shelter in the neighboring kothi. But before he could retreat Ram Swarup shot him dead at
point black range.

All four accomplices were tried under Sec 302 of Indian penal Code for murder of Munimji.
Ram Swarup was convicted to life imprisonment by the session’s court. However, Somi and
subhash were acquitted. The High Court of Allahabad acquitted Ganga Ram and Ram Swarup in
an appeal filed by them and dismissed the appeal filed by the state against the acquittal of
Somi and Subhash. The defence taken by the accused was that when at 8 a.m. they reached
the market, there was a scuffle between the deceased Munimji and Ganga ram, and Ganga
Ram was being assaulted by lathis by the servants of the deceased and seeing his father’s life
in danger Ram Swarup fired shots from the gun he was carrying in the right of private
defence.
And this case 2 most important questions were answered by the court:
 What constitutes Private defence?
 Whether the accused herein is having the right of private defence in the given set of
circumstances?

“Sec 100 of IPC providing right of private defence of the body, extends to the voluntary
causing of the death, if the offence which occasions the exercise of the right is of such
nature as may, to the extent material, reasonably cause the apprehension that the death or
grievous hurt will otherwise be the consequence of the assault”.

According to Supreme court the IPC doesn’t provide the right of private defence as a causing
of death, if the offence which occasions the exercise of the right is of such nature as may, to
the extent material, reasonably cause the apprehension that the death or grievous hurt will
otherwise be the consequence of assault. It was held that in the present case the
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circumstances were not such that Ram Swarup would have been held compelled to kill the
deceased by firing. The mere possibility of the scuffle, cannot justify the killing of the
deceased. Therefore, the plea of Right of Private defence taken Swarup was dismissed.
The principles laid down by the Supreme Court are very relevant and the same has become
precedent to for a plea of right of private defence.

Darshan Singh v. State of Punjab

The Supreme Court laid down Guidelines for Right Of Private Defence for Citizens. It
observed that a person cannot be expected to act in a cowardly manner when confronted with
an imminent threat to life and has got every right to kill the aggressor in self defense. A
bench comprising Justices Dalveer Bhandari and Asok Kumar Ganguly, while acquitting a
person of murder, said that when enacting Section 96 to 106 of the IPC, the Legislature
clearly intended to arouse and encourage the spirit of self-defense amongst the citizens,
when faced with grave danger.“ The law does not require a law-abiding citizen to behave like a
coward when confronted with an imminent unlawful aggression. As repeatedly observed by this
court, there is nothing more degrading to the human spirit than to run away in face of danger.
Right of private defense is thus designed to serve a social purpose and deserves to be
fostered within the prescribed limit.”

The court laid down ten guidelines where right of self-defence is available to a citizen, but
also warned that in the disguise of self-defence, one cannot be allowed to endanger or
threaten the lives and properties of others or for the purpose of taking personal revenge.
The apex court concluded by saying that a person who is under imminent threat is not
expected to use force exactly required to repel the attack and his behaviour cannot be
weighed on “golden scales.”
The Court declared their legal position under the following 10 guidelines:
 Self-preservation is a basic human instinct and is duly recognized by the criminal
jurisprudence of all civilized countries. All free, democratic and civilized countries
recognize the right of private defense within certain reasonable limits.
 The right of private defense is available only to one who is suddenly confronted with
the necessity of averting an impending danger and not of self-creation.
 A mere reasonable apprehension is enough to put the right of self-defense into
operation. In other words, it is not necessary that there should be an actual
commission of the offence in order to give rise to the right of private defense. It is
enough if the accused apprehended that such an offence is contemplated and it is
likely to be committed if the right of private defense is not exercised.
 The right of private defense commences as soon as a reasonable apprehension arises
and it is co-terminus with the duration of such apprehension.
 It is unrealistic to expect a person under assault to modulate his defense step by step
with any arithmetical exactitude.
 In private defense the force used by the accused ought not to be wholly
disproportionate or much greater than necessary for protection of the person or
property.
 It is well settled that even if the accused does not plead self-defense, it is open to
consider such a plea if the same arises from the material on record.

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  The accused need not prove the existence of the right of private defense beyond
reasonable doubt.
 The Indian Penal Code confers the right of private defense only when the unlawful or
wrongful act is an offence.
 A person who is in imminent and reasonable danger of losing his life or limb may, in
exercise of self defense, inflict any harm (even extending to death) on his assailant
either when the assault is attempted or directly threatened.

11. Explain the law relating to “Criminal Trespass” (Sept 2015)

Write brief Note on “Criminal Trespass” (Oct 2017)
Ans: According to Section 441 of The Indian Penal Code, whoever enters into property in the
possession of another with the intent to commit an offence or to intimidate, insult or annoy
any person in possession of such property, or having lawfully entered into such property, but
remains there with intent thereby to intimidate, insult or any such person, or with an intent to
commit an offence, is said to commit ‘criminal trespass’. Thus it can be deduced that criminal
trespass occurs when a person unlawfully without any right or an express or implied license
enters into the private property of another person or remains into such property with a
criminal intention. The object of making criminal trespass an offence is to ensure that people
can enjoy their private property without any kind of interruption from outsiders. Punishment
for criminal trespass, as prescribed in Section 447 of IPC is either imprisonment which may
extend to three months, or fine which may extend to INR 500 or both.

Ingredients of Criminal Trespass

Criminal trespass has two limbs, firstly, entering into the property of another with criminal
intent and secondly, entering lawfully but remaining in the property with a criminal intent to
harm or cause annoyance. Thus the essential ingredients for committing Criminal trespass are:

‘Whoever enters’
To commit the offence of criminal trespass, there must be an actual entry into the property
of another by the accused person. No trespass can occur if there is no physical instrument by
the accused into the private property of the victim. In the State of Calcutta vs Abdul Sukar,
the court held that constructive entry by a servant does not amount to entry, under this
Section as even though there was no possession in law, there was possession in fact. For
instance, X throws garbage outside Y’s house on a daily basis, in this case, X may be liable for
nuisance but he has not committed criminal trespass as there is no entry by X into Y’s
property.

Property
The term property under this Section includes both movable and immovable property.
Wrongful entry into one’s car or other movable property would have similar liability as
wrongful entry into one’s house. In Dhannonjoy v Provat Chandra Biswas, the accused drove
away from the boat of the possessor after attacking him. The court held that this would
amount to criminal trespass even though it was a movable property. But the term property
does not include incorporeal property or something which cannot be touched, such as patent
rights.

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Possession of another
The possession of the property should be in the possession of the victim and not the
trespasser. Having the ownership of the property is not necessary, mere possession is
sufficient to claim criminal trespass against the trespasser. However, it is not necessary for
the person having possession or the owner of the property to be present at the time when the
trespassing occurred, no presence of owner or possessor would also amount to trespassing as
long as the premises are entered into by the trespasser to annoy. For instance, writing love
letters and delivering them to a girl’s house against her will would also amount to criminal
trespass, even if at the time of delivering such letters, the girl was not at home.

Intention
If it is proved that the intention of the accused parties was not to insult, harm or annoy the
owners or possessors of the property, then it would not amount to criminal trespass. The
Intention is the essence of this crime, and if there is no dominant motive to commit the
crime, no criminal trespass. The test for determining whether the entry was done with an
intent to cause annoyance or any kind of harm is to determine the aim of a trespasser at the
time of such entry.

In Punjab National Bank Ltd v All India Punjab National Bank Employees’ Federation, the court
held that as the employees who were on strike entered the bank with the intention to only put
pressure on the management to concede their demands, and there was no intent to insult,
harm or annoy any of the superior officers, their entrance into the bank cannot amount to
criminal trespass. However, if in the given circumstances, the strikers would have stormed
into the private cubicles or offices of the superior staff with the aim of causing annoyance to
such members, then it would amount to criminal trespass.

Further, it is to be proved that the intention of the accused was not probable but an actual
one, this principle was laid down in Ramjan Misrty v Emperor. It is not sufficient to show that
the person entering into the property of another had the knowledge that his entrance would
cause annoyance, it is to be proved that there was an intention to commit an offence, or
intimidate, insult or annoy any such person for an offence of criminal trespass to take place.
Aggravated forms of criminal trespass

The offence of criminal trespass may be committed at different occasions having different
magnitudes and penalties. Depending upon the time of the trespass, its purpose and nature of
the property trespassed, the offence may be aggravated and specific punishments are
prescribed for those specific cases. Further, a crime may be aggravated by the way it is
committed and the end for which it is committed.

Trespassing into the property where a man resides and stores his belonging is an aggravated
form of criminal trespassing as the greatest safeguard is required against the habitation of
people. Trespassing against such property is known as house trespass and is governed
by Section 442 of IPC.

House trespass may be further aggravated if it is done in a way to avoid attention, known as
lurking house-trespass and is governed by Section 443 of IPC. House trespass is also

72
aggravated when it is done violently, knowns as house-breaking and governed by Section
445 of IPC.

House trespass of any form may be aggravated based on the time when it is committed, an
offence taking place at night is more serious than an offence that took place during the day
time. Housebreaking by night is governed by Section 446 of IPC.

House-trespass
Section 442 of IPC, defines house-trespass as committing criminal trespass by entering into
or remaining in any building, tent or vessel used as a human dwelling, place of worship or as a
place for the custody of the property. A place of human dwelling does not always have to be a
permanent resident of the defendant, temporary residents like school or railway platforms
also count as a human dwelling. However for a building to be a human dwelling it must have
some walls or some kind of security and a mere fence cannot amount to a human dwelling. This
offence is an aggravated form of criminal trespass, thus every house-trespass is criminal
trespassing but not vice versa. As house-trespass is against the possession of a property, it
cannot take place if the defendant is not in actual possession of the property.
As per Section 448 of IPC, the defendant guilty of house-trespass may be imprisoned for a
term not exceeding 1 year, fined for INR 1,000 or less or both.

Lurking house-trespass
Section 443 of IPC, deals with a further aggravation of house-trespass, known as lurking
house-trespass. The section defines this offence as committing house trespass and taking
precautions to conceal the offence of house-trespassing from any person who has a right to
exclude or eject the trespasser from the building which is the subject of the trespass.
In Prem Bahadur Rai v State, the court held that unless active steps are taken by the accused
to conceal his presence, no charge under Section 443 can be made. Thus the ingredients of
lurking house-trespass would include:
1. Trespass;
2. House-trespass;
3. Concealing the house-trespass from someone who has the right to exclude to the
trespasser.
Therefore hiding in a porch behind a tree would fall within this section and the trespasser,
under Section 453 of IPC, would be liable to imprisonment for a maximum of 2 years and fine
as may be prescribed by the court.

Lurking house-trespass by night

Section 444 of IPC, talks about an aggravated form of lurking house-trespass, i.e trespass
committed at night. Any lurking house-trespass committed after sunset and before sunrise
fall within the ambit of this section. This offence is punishable with imprisonment not
exceeding three years and fine, according to Section 456 of IPC.

House-breaking
Housebreaking is also an aggravated form of house-trespass and implies forceful entry into
one’s house. Section 445 of IPC lays down 6 ways in which housebreaking can occur, namely:
1. Through passage made by the house breaker himself;
2. Through any passage not used by any person other than the intruder;

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 3. Through any passage opened for committing an offence of housebreaking which was
not intended by the house occupier to be open;
4. By opening any lock;
5. By using criminal force at either entrance or departure;
6. By entering or quitting any passage fastened against such entrance or exit. The word
‘fasteners’ implies something more than being closed, merely pushing of door shutters
would not amount to house-breaking.

The first three ways are the one in which entry is effected by using passage which is not the
ordinary means of entry or exit and the last three ways are the ones in which entry is
effected by use of force. The entry of any part of the human body is sufficient to constitute
housebreaking under Section 445 of IPC if the following ingredients are present:
1. Trespass;
2. House-trespass;
3. The entrance by the trespasser must be done in any of the 6 ways prescribed above.

In Pullabhotla Chinniah case, the court held that the breaking open of a cattle-shed in which
agricultural implements are kept would also amount to house-breaking. Further, making a hole
in the wall to enter a house, using a window to enter a house, assaulting the guard or
doorkeeper to enter a house, all amount to housebreaking and the accused will be liable for
imprisonment not exceeding 2 years and fine under Section 453 of IPC.

Housebreaking by night
When housebreaking is committed after sunset and before sunrise, it is considered an
aggravated form of house-breaking and is governed by Section 446 of IPC. This offence is
punishable with imprisonment not exceeding three years and fine, according to Section 456 of
IPC.

Dishonestly breaking open receptacle containing property

Meaning and punishment for dishonestly breaking open receptacle containing property are
defined under Section 461 of IPC. The said section punishes whoever dishonestly or with the
intent of committing mischief, breaks or open any receptacle or container used as storing
place. The offence is cognizable, non-bailable and triable by any magistrate and the
punishment for the same may extend up to 2 years, fine, or both. The ingredients of this
offence would be:
1. There was a closed container or receptacle;
2. It contained property or the accused believed it contained property;
3. The accused intentionally broke opened the receptacle;
4. The accused did so dishonestly;
5. The accused did so with the intent to cause mischief.

The term ‘receptacle’ signifies all kinds of vessels and not only includes a safe box, chest or
closed package but also includes a room or a part of a room such as a warehouse, or godown.
The only condition is that such a vessel must be closed by means of chain or bolt or fastened
in any manner. The offence is said to be completed as soon as the receptacle is broken or
unfastened with dishonest attention to steal or cause any other kind of mischief.

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 12. Define Theft and differentiate between Robbery and Dacoity. (Sept 2012)
Define Theft and distinguish between Extortion, Robbery and Dacoity. (Oct 2017)
“In all robbery is either theft or extortion”. Explain. (July 2012)
“In all robbery is either theft or extortion”. Elucidate. Distinguish between
Robbery and Dacoity. (Aug 2014)

Ans: Theft, Extortion, Robbery and Dacoity are offences in criminal law affecting the
property of a person, defined in Sections 378 to 402 of the Indian Penal Code. On a prima
facie basis they seem to be very much similar to each other, but on a closer look it may be
found that there are slight differences which distinguish one from another. Hence, the
present article focuses upon the differences between these four offences which seems to be
similar to each other.

Each of these offences is distinguished from another on the basis of small pivotal
differences.
Theft:-
Theft is defined in S. 378 of Indian Penal Code. The essential ingredients of the offence of
theft is well-explained by the SC in K. N. Mehra v State of Rajasthan, where the SC held
that proof of intention to cause permanent deprivation of property to the owner, or to
obtain a personal gain is not necessary for the purpose of establishing dishonest intention.
The Court analysed the offence of theft under S. 378 thus: “Commission of theft….. consists
in (1) moving a movable property of a person out of his possession without his consent; (2) the
moving being in order to taking property with a dishonest intention. Thus: (1) the absence of
the person’s consent at the time of moving , and (2) the presence of dishonest intention in so
taking and at the time are the essential ingredients of the offence of theft. Thus, it is
essential that theft may be committed only of movable property as against extortion,
robbery, dacoity, movable property may include animals, fish, human corpses, electricity,
water, cattle etc. However, in case of wild animals or ferae naturae, there can be no absolute
property. But when killed upon the soil, they become the absolute property of the owner of
the soil. Similarly fish in running waters, such as rivers, and canals and in the lakes and seas
are ferae naturae and cannot be the subject of theft. So also fish in open irrigation tanks, or
in tanks not enclosed on all sides. The general rule with respect to human corpses is that
there can be no larceny with regard to a corpse, but anatomical remains and the like could be
personal property and hence capable of theft.
The main right of the individual that is sought to be protected under Sections 378 and 379 is
undoubtedly his right of possession of the movables.

Extortion:-
Extortion is defined in Section 383 as appropriation of property by coercion. The essential
ingredients of the offence of extortion are: (1) intentionally putting a person in fear of
injury; (2) the purpose of which is to dishonestly induce the person put in fear and (3) to
deliver property or valuable security. In Romesh Chandra Arora v State, the accused had
written letters to one X enclosing photograph of his daughter in the nude and demanded hush
money from X and threatened X that he would circulate them to the relatives of X if the
money was not paid. He was convicted for extortion and criminal intimidation.

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Robbery:-
Section 390 says, “In all robbery, there is either theft or extortion” and goes on to define
when theft is robbery and when extortion is robbery. Thus, a theft becomes a robbery when
the following two additional conditions are satisfied:-
1. when someone voluntarily causes or attempts to cause,
(i) death , hurt , or wrongful restraint , or
(ii) fear of instant death , instant hurt , or instant wrongful restraint
2. the above act is done
a. in order to the committing of theft ,or
b. committing theft , or
c. carrying away or attempting to carry away property obtained by theft.

An extortion becomes a robbery when the following three additional conditions are
satisfied:-
1. when a person commits extortion by putting another person in fear of instant death,
hurt, or wrongful restraint, and
2. such a person induces the person put in such fear to deliver the property then and
there and
3. the offender is in the presence of the person put in such fear at the time of
extortion.

In Shikandar v State, 1984, the accused attacked his victim by knife many times and
succeeded in acquiring the earrings and key from her salwar. He was held guilty of robbery.

Thus, robbery is the aggravated form of theft or extortion. It is different from theft and
extortion as there is the element of instant harm is involved in robbery, which is not an
ingredient of simple theft or extortion.

Dacoity:-
The essential ingredients of Dacoity are:
i. five or more persons must act in association;
ii. such act must be robbery or attempt to commit robbery; and
iii. the five persons must consists of those who themselves commit or attempt to commit
robbery or those who are present and aid the principal actors in the commission or
attempt of such robbery.

The essential ingredient that differentiates dacoity from the above the number of persons
involved in association. In fact, however, dacoity may be called ‘robbery with five or more
persons’.

Difference between Theft, Extortion, Robbery and Dacoity:-

Therefore, we may distinguish between theft, extortion, robbery and extortion on the basis
of their definitions provided in the Indian Penal Code.

In case of theft, movable property is taken away without owner’s consent; in case of
extortion, consent of the person is obtained wrongfully by coercion; in case of robbery, the
offender takes property without consent, robbery being the aggravated form of theft or
extortion and in the case of dacoity also, there is no consent or it is obtained wrongfully.
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Theft may occur only of movable property whereas, extortion may occur of movable or
immovable property, and in the case of both robbery and dacoity, it may be committed with
respect to immovable property, where it is in the form of extortion and not otherwise. There
is no element of force or compulsion, in case of theft; force or compulsion exist in extortion,
the person being put in fear of injury to himself or to any other persons.

There is no delivery of property by the victim, in theft; whereas there is delivery in

extortion; in case of robbery and dacoity, there is no delivery if theft occurs during the
course of robbery or dacoity.

Punishment for theft is imprisonment of either description for a term which may extend to
three years, or with fine or with both (Section 379). Punishment for extortion is
imprisonment of either description for a term which may extend to three years, or with fine,
or with both (Section 384). Punishment for robbery is rigorous imprisonment for a term which
may extend to ten years, and shall also be liable to fine; and if the robbery be committed on
the highway between sunset and sunrise it may be extended to fourteen years (Section 392).
Punishment for dacoity imprisonment for life, or with rigorous imprisonment for a term which
may extend to ten years, and shall also be liable to fine (Section 395).

13. Define “Kidnapping” and differentiate between “Kidnapping” and “Abduction”.

(July 2012)
Explain “Kidnapping” and “Abduction” (Sept 2014)
Define “Kidnapping” and distinguish it from “Abduction”. (Sept 2019)

Ans: Kidnapping
Section 359 of the Indian Penal Code deals with what is ‘Kidnapping’. According to this
section, kidnapping can be classified as ‘Kidnapping from India’ or ‘Kidnapping from Lawful
Guardianship’.

Section 360 of the Code says that when a person is conveyed beyond the limits of India
without that person’s consent, the person who takes such person is said to kidnap that person
from India.

Section 361 of the Code provides that when a person entices a minor (16 years for male and
18 years for female) or a person of unsound mind, person so enticing will be held liable for
kidnapping such minor or person from lawful guardianship.

In the case of State of Haryana v Raja Ram, the accused induced the prosecutrix who was
14 years of age away from her lawful guardianship. The Supreme Court held that the
persuasion by the accused created a willing on the part of minor which kept her away from
her lawful guardianship and therefore it amounted to ‘kidnapping’.

Abduction
‘Abduction’ has been defined in Section 362 of the Indian Penal Code which says that if a
person either by force compels a person or induces another person to go from any place is
said to abduct such person.

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In the case of Bahadur Ali v King Emperor, the accused misrepresented himself as a police
constable and kept a girl in his house for a ransom of Rs 600. The court held that his act
amounted to abduction.

Difference between abduction and kidnapping

Age of the Aggrieved Person
In case of Kidnapping, the age of the aggrieved person as according to Section 361 of the IPC
is 16 in case of males and 18 in case of females (as seen in the case of State of Haryana v
Raja Ram).

In case of Abduction, there is no such thing as age. Any person either by force has compelled
or induced any other person to go from any place irrespective of the age, shall be booked with
abduction (as in the case of Bahadur Ali v King Emperor).

Removal from Lawful Guardianship

Here the lawful guardianship shall include any person who has been authorized by law to take
care of the person who has yet not attained the age of majority. A lawful guardian may be the
parents, in-laws, etc.

As Kidnapping takes into consideration the age of the person being kidnapped, the crime
involves the taking away from the guardianship of a lawful person who has been authorized by
law to take care of such minor.

Since Abduction considers only the person who has been abducted, lawful guardianship does
not come into the picture.

Means
Kidnapping involves taking away or enticement by the kidnapper. The means used for such
purpose is irrelevant.

The means used in case of abduction may be force, compulsion, or deceitful means.

Consent
In case of Kidnapping, the consent of the person kidnapped is immaterial as the person being
kidnapped is a minor and according to law, such person is unable to provide for free consent.
The consent obtained from the person shall be a tainted one (as seen in the case of State of
Haryana v Raja Ram).

In case of Abduction, the consent of the person abducted condones the accused from the
offence so charged against him/her.

The intention of the Accused

In case of Kidnapping, the intention of the person kidnapping a minor is immaterial so as to
the crime committed by the accused (as in the case of Queen v Prince).

In case of Abduction, the intention of the person abducting is a very important factor in
determining the guilt of the accused person.

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Punishment
Kidnapping is a substantive offence. Section 363 of the IPC provides for a punishment for
kidnapping for a descriptive term which may extend to seven years and he/she shall also be
liable for fine.

Abduction is only an auxiliary act and is not punishable in itself. Therefore, there is no general
punishment for abduction in the Indian Penal Code.

Continuity of the Crime

Kidnapping is not a continuing offence. The offence is done as soon as the person accused
removes the person from his/her lawful guardianship.

Abduction is a continuing process and it this the person so abducted is removed from one
place to another.

14. Write about the Exceptions to “Defamation”. (Sept 2012)

Essential ingredients of the offence of “Defamation”. (Sept 2018)
Write a note on “Defamation” with exceptions if any. (Sept 2021)

Ans: Essentials of Defamation

A. The statement must be defamatory
The very first essential of the offense of defamation is that the statement must be
defamatory i.e. which tends to lower the reputation of the plaintiff. The test to check if a
particular statement is defamatory or not will depend upon how the right thinking
members of society are likely to take it. Further, a person cannot take a defense that the
statement was not intended to be defamatory, although it caused a feeling of hatred,
contempt or dislike.

In the Case of Ram Jethmalani v. Subramanian Swamy court held Dr. Swamy to be liable for
defaming Mr. Jethmalani by saying that he received money from a banned organization to
protect the then CM of Tamil Nadu in the case of the assassination of Rajiv Gandhi. In
another recent case of Arun Jaitley v Arvind Kejriwal, the court held the statement said by
Arvind Kejriwal and his 5 other leaders to be defamatory. However, the matter was finally
disclosed after all the defendants apologized for their actions.

Illustration
A publishes an advertisement in a local newspaper stating false information that the company
of B has committed fraud of Rs 20,00,000. Now, this statement will amount to defamation as
this newspaper will be read by many readers and will surely injure the reputation of B’s
company.

However, it is to be noted that mere hasty expression spoken in anger, or vulgar abuse
to which no hearer would attribute any set purpose to injure the character would not
amount to defaming a person.

Illustration
If A an employer scolds his employee B for not coming on time in front of the whole staff,
then B cannot take the plea that A has injured the reputation of B.

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B. The statement must refer to the plaintiff
In an action for defamation, the plaintiff has to prove that the statement of which he
Complains referred to him, it will be immaterial that the defendant did not intend to defame
the plaintiff. If the person to whom the statement was published could reasonably infer that
the statement referred to him, the defendant will then be liable

Illustration- If A, a bank publishes a notice to all its branches to not give the loan to any
person from xyz as the people of xyz are more often repeated defaulters. Now due to this B,
a resident of xyz has suffered a huge loss. Now B can hold A liable for defaming him although
the bank did not directly focus on him.

In the case of T.V., Ramasubha Iyer v. A.M.A Mohindeen Court held the defendants liable for
publishing a statement without any intention to defame the defendants. The statement
mentioned that a particular person carrying business of Agarbathis to Ceylon has been
arrested for the offense of smuggling. The plaintiff was also one of the person carrying on a
similar business, and as a result of this statement his reputation also severely damaged.

C. The statement must be published

Publication of defamatory statement to some person other than the person defamed is a most
important aspect for making any person liable, and unless that is done, no action for
defamation will lie.

However, if a third person wrongfully reads a letter meant for the plaintiff, then the
defendant likely to be liable. But if the defamatory letter sent to the plaintiff is likely to be
read by somebody else, there will be a valid publication.

In the case of Mahendra Ram v. Harnandan prasad the defendant was held liable for sending a
defamatory letter to plaintiff written in Urdu knowing that the plaintiff did not knew Urdu
and the letter will very likely be read over by another person.

Forms of Defamation
1. Slander– It is the publication of a defamatory statement in a transient form.
For example- Defaming a person by way of words or gestures.
2. Libel– It is the representation made in some permanent form.
For example- Defaming a person through a representation made in some
permanent form like writing, printing etc.

English law on libel and slander

Under English criminal law, libel is treated as a crime but slander is not. Slander is only a civil
wrong. This distinction between libel and slander is mainly on two reasons-
1. Under Criminal law, only libel has been recognized as an offense. Slander is no offense.
2. Under the law of torts, slander is actionable, except in few cases where special
damage has to be proved. Libel is always actionable i.e. without any proof. However,
slander is also actionable in the following 4 cases:
 Imputation of a criminal offense to the plaintiff.
 Imputation of an infectious disease to the plaintiff which has the effect of
preventing others from associating with the plaintiff. Example A makes a statement in

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 his office that his colleague is suffering from AIDS. He can here be liable for
defaming his colleague.
 The imputation that a person is incompetent, dishonest or unfit in regard to the office,
profession, trade or business carried on by him.
 Imputation of unchastity or adultery to any woman or girl.

Indian law on Libel and Slander

Unlike English law, Indian law does not make any distinction between libel and slander and
both are treated as criminal offenses under section 499 IPC. In the case of Hirabai Jehangir
v. Dinshawdulji the Bombay and Madras high court both held that no distinction needs to be
made between treating libel and slander as criminal offenses.

Innuendo
A statement is prima facie defamatory when its natural and obvious meaning leads to that
conclusion. Sometimes it may happen that the statement was prima facie innocent but because
of some secondary meaning, it may be considered to be defamatory. For this secondary
instance plaintiff must prove the secondary meaning i.e. innuendo which makes the statement
defamatory.

Illustrations
Z makes a statement that X is an honest man and he never stole my watch. Now this
statement is at first instance may be innocent, but it can be defamatory if the person to
whom it was made, interprets from this that X is a dishonest man having stolen the watch.

Defamation of class of persons

When particular words spoken are referred to a group of individuals or a class of persons,
then no single person of that group or class can sue unless he proves that the words could
reasonably be considered to referring him.

Illustration- If a person wrote that all doctors were thieves, then no particular doctor could
sue him unless there was something that pointed out that the person actually intended to
defame him individually.

This situation will be different if the person wrote that all doctors of Ganga ram hospital are
thieves and then doctors of Ganga ram hospital can sue him for defaming them.

Communication between husband and wife

In the eyes of law, both husband and wife are one person and the communication of a
defamatory matter from the husband to the wife or vice versa is no publication and will not
come within the purview of section 499. Section 122 of the Indian Evidence Act 1872 deals
with privileged communications between husband and wife and makes them out of the scope of
section 499 except in suits between married persons, or in a proceeding in which one
married person is prosecuted for any crime committed against the other.

In a leading case of T.J. Ponnen v. M.C Verghese the court held that the letter from husband
to his wife containing defamatory matter concerning the father-in-law will not amount to
defamation. It will very much be covered within the scope of privileged communications
between husband and wife as laid in section 122 of the Indian Evidence Act 1872.

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Defenses defamation
The defenses to an action for defamation are
1. Justification of truth
2. Fair comment
3. Privilege

Justification of truth
In a civil action for defamation, the truth of the defamatory matter is a complete defense
and the reason for this is that “ Law will not permit a man to recover damages for something
being true about him “.

Under criminal law on the other hand merely proving that the statement was true is not a
good defense and besides this, the defendant has to show that it was made for public good
also.

If the defendant is not able to prove the truth of the facts, the defense cannot be availed.
In the case of Radheyshyam Tiwari v. Eknath court held the defendants for publishing
defamatory matter against the defendants. Later the defendants were not able to prove that
the facts published by him were true and, therefore he was held liable.

Fair comment
Making a fair comment on matters public interest is a valid defense to an action for
defamation. For this, the following must be proved

It must be a comment i.e, an expression of opinion rather than an assertion of fact

For example, If X says that A has been guilty of breach of trust and therefore he is a
dishonest man. Here the latter words are a comment on the former. But if A did not commit
any breach of trust and X still says to him as a dishonest man. Then it will not be a comment
and will amount to an assertion of fact.

The comment must be fair

The comment should be fair i.e. should not be based upon untrue facts.
For example, X publishes serious allegations of bribery against Y in a newspaper. Later X is
not able to prove the truthness of these allegations and therefore his comment will not
amount to fair comment.

The matter commented upon must be of public interest-

The matter on which the defendant has commented must be of public interest. Matters like
administration of government departments, courts, ministers, public meetings, textbooks, etc
are considered to be matters of public interest.

Privilege
As the word suggests itself i.e. giving special status. These special occasions when the law
recognizes that the right of free speech outweighs the plaintiffs right to defamation and a
defamatory statement made on such occasion is not actionable. Privileges are of two types.

1. Absolute privileges– In matters of these complete immunity is given to person speaking and
no action for defamation can lie against him. It includes 3 aspects

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Parliamentary proceedings– Article 105(2) of the Indian constitution gives immunity to
parliamentarians to speak anything during the course of business of parliament and no action
would lie against them.

Judicial proceedings– This protection has been given to judges under judicial officers
protection act of 1850. It also extends to counsels, witnesses, and parties to a suit.

Qualified privilege– This privilege is also available and under this, it is necessary that the
statement must have been made without a malice i.e a wrongful intention.
For example, A, a shopkeeper, says to B, who manages his business, “ Sell nothing to Z unless
he pays you ready money, as I am doubtful of his honesty. Now A will fall under this exception
if he has made his imputation on Z in good faith for the protection of his own

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