THE INDIAN PENAL CODE (ACT XLV OF 1860) GENERAL INTRODUCTION Origi priming —TI = Be ee eae here was.no criminal law in uncivilized society. one. ‘The person attacked ante ed in his person or property at any ume by any tooth for a tooth, an eve ft cither succumbed or over-powered his opponent. “A nal justice. A 1, an eye for an eye, a life for a life” was the forerunner of crimi- nal justice. As time advanced, the injured person agreed to accept compensation, instead of killing his adversary. Subsequently, a sliding scale came into existence for satisfying ordinary offences. Such a system gave birth to archaic criminal law. For a long time, the application of these principles remained with the parties themselves, but gradually this function came to be performed by the State. istence in India from the time The germs of criminal jurisprudence came into e: of Manu. In the category of crimes Manu has recognized assault, theft, robbery. false evidence, slander, criminal breach of trust, cheating, adultery and rape. The king protected his subjects and the subjects in return owed him allegiance and paid him revenue. The kin; administered justice himself, and, if busy, the matter was entrusted to a Judge. If a criminal was fined, the fine went to the king’s treasury. and was not iven as compensation to the injured party. In Western jurisprudence, the real notion of crime percolated from the Roman Jaw. In modern times, crimes have multiplied in an extraordinary degree. It has revolutionised the concept of criminal law. Various statutes have been enacted imposing different kinds of duties, liabilities, and restr ctions, on individuals. Development of modern criminal law in India.—Vasco De Gama, a subject of India around the Cape of Good Hope, the Portugal, first discovered the passage to southernmost point of Africa. Thereafter, the Portuguese began to carry on trade with India. The Portuguese were followed by the Dutch. Subsequently, the Engl came on the scene and began to carry on trade with India. As they were very s! ). a Charter which incorporated the East cessful Queen Elizabeth granted, in 1600, India Company. The Charter gave the Company exclusive right of trading to all vate of Asta. Aftica and America, beyond the Cape of Good Hope. eastward to the Straits of Magellan. It also gave the Company power to make law In 1609, JAMES I renewed the Charter, and i arles II gave simi 160953 {ren and in 1661 Charles II gave similar The Charter of 1668 transferred Bombay ia Comp: id di- 1 1668 trans iy to the East India any, i rected that proceedings in Court should be like unto those ihahwereie tablished i ablished in=w IDE wi THE INDIAN PENAL jecti i Pr « “AML offences under the Indian jective Inw. Section 5 of the lntier Code ¢ay reender Ave dv Jee ee set ive investigated, inquired into, tied and otherwise dealt with acconting te the provisions hereinafter cant ined” Mental clements in € —Inte Tistake of fact, mistake of haw, are al Laws jon, motive, mens rea, knowedge. inne, came of the mental elements that play cence a Signifieant part in crim Intentio: Criminal intention” an act forbidden by the erimi simply means the purpose or design Of doing rout just cause oF excuse. The intention Of the accused to produce a particular consequenc shows his intention ie do tha act, An act is intentional if it exists in idea before it exists in fact, the idea realiz, ine incall in the fact because of the desire by which it is accompanied. The werg ent dees not mean ultimate aim and object. Nor is it used as & SYnONYs for ste Where the Legislature makes an offence dependent 08 prow Of inten. sete Chuat must have proof of facts sufficient to justify it in coming 10 the son eeeon that the intention existed, No doubt one has usually to infer intention Fern conduct. and one matter that has to be taken into account 1s the probable effect of the conduct. But that is never conclusive. As a general rule, every sane man is presumed t intend the necessary or the natural and probable consequences of his acts. and this presumption of law will prevail unless from a consideration of all the evidence ihe Court entertains a reasonable doubt whether such intention existed. This pre- Sumption, however, is not conclusive nor alone sufficient to justify a contictio Sad should be supplemented by other testimony. An accused must be judged t have the imention that is indicated by his proved acts. The burden of proving guilty intention lies upon the prosecution where the intent is expressly stated 2 Dart of the definition of the crime. Criminal intent asa psychological fact has to be proved even in regard to offences under the Special Acts unless it is specifi cally ruled out or ruled out by necessary implication’. Motive.—Motive is not to be confused with intention, Tf a man knows thet 2 certain consequence will follow from his act, it must be presumed in law that be intended that consequence to take place although he may have had some quite different ulterior motive for performing the act. The motive for an act is note Sufficient test to determine its criminal charseter. By motive is meant anything that can contribute to, give birth lo, or even to prevent, any kind of action. Moti may serve as a clue to the intention: but although the motive be pure. the act done under it may be criminal. Purity of motive does not purge an act of its crimin! character. An act which is unlawful cannot, in law, be excused on the ground thet ood motive. it was committed from a Motive. though not a sine gua non for bringing the offence home to the & cused. is relevant and important on the question of intention. Though the prosecution is not bound to prove motive for the crime. absence of any motive is a factor which may be considered in determining the ‘guilt of the accused, Thus, if there is really no motive and the crime is completely motiveless then that circumstance can be taken into consideration along with the evidence t prior insanity. But if the actual evidence as to the commission of the crime F believed. then no question of motive remains to be established. It is not ee 3. State of Maharashtra, v. M.H. George, 1965(1) Cr LJ 641: AIR 1965 SC 7, under sub head “Mens Rea” under s. 81 (infra), See also discusGENE ERAL INTRODUCTION vii bound len duty of been commie! (Me Proseenti mmit ‘cution te ; dence Tenitted. His sufficient if ee motive with which a certain offence has Schick, Ml certain persone comn the prosecution prave by clear and reliable ove Heb induced them te comme ed the offence, whatever the motives may be iN the Special now faye Nit that offence. Ror, mative is a fact very often edre of the person doing the act and thus it becomes extremely dif} that the © aiticun to ascer a he offence w case but that does not mean Main the motive i I jotive in a piv AS NOL Committed. ; Phe que! ee uehon of 1 of motive Hive iS NOL Material where there is direct evidence of the Het of the accu accused and the ac the actor, Bur int’ acts themselves are sufficient to disclose the intention of favour at the acenege OF ceumstantial evidence, absence of motive is a factor ID Mens rez d | cof rr i acri eit caine is one of the principles of the English criminal law that a crime led if the mind of the person doing the act in question be innocent. act must both [tis said tha said that aci i ‘ " : Mt actus non facit rewm, nisi mens sit rea (he intent and cone ° oncur to constitute the crime), Although prima facic and as a general rule there "inflexible rule, and must be a ae i Me must be a mind at fault before there can be a erime. Wis nota le i¢ may relate to such a subject-matter and may be so framed as to make an < « the law or otherwise to act crimina ether i i ct criminal whether there has been any intention to breal do wrong or not. The full definition of every crime contains expressly or by implication a prefie sition as to the state of mind, Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition It, therefore, appears that the above maxim has not so wide an application as it is sometimes Contidered to have. It has undergone a modification owing to the greater precision of modern statutes. It impossible to apply it generally to all Statutes. and the substance of all the reported a is that it is necessary to look at the object of each Act that is under consideration to see whether and how far knowledge is of the essence of the offence created. Crimes are at the present day much more accurately defined by statutes or otherwise than they formerly were. But Sherras v. De Rurzen® seems very like un emphatic re-assertion of the doc- trine that mons rea is an essential ingredient of every offence except in three cases (1) cases not criminal in any real sense but which in the public interest are prohib- ited under a penalty, e.g., Revenue Acts: (2) public nuisance: (3) cases criminal in form but which are really only a summary mode of enforcing a civil right. a has, however, no application The maxim actus non facit reum, nisi mens sit r to the offences under the Penal Code in its purely technical sense because the definitions of various offences contain expressly propositions as lo the state of mind of the accused. The definitions state whether the act must have been done ‘intentionally’, ‘voluntarily’, ‘knowingly’, ‘dishonest!y” or “fraudulently”, or the like. Every ingredient of the offence is Stated in the definitions. So mens rea will mean one thing or another according to the particular offence. The guilty mind may thus be a fraudulent mind, or a dishonest mind, or a negligent or rash mind Every offence under the Code virtually imports the idea of criminal intent or mens rea in some form or other. If, in any case, the Indian Legislature has omit-vii ‘THE INDIAN PENAL CODE ondition, the presumption is that the omig, sion is imentional, In such a case the dactrine ‘af mens rea is not applicable. nee of offences cat be committed withogy milly mind. The Cont chontd always bear in Inind that unless the statute, either Clearly or by necessary implication, les out mens fed as a oan rent part Of 4 crime, an accused should not he found guilty ofan offence Mbt he ecient lay ntless he has got a guilty mind, Absolute fiability is not to be lightly presumes but has to be clearly established Knowledge.—Where knowledge, of fence it mist be distinetly proved, There are © ALavho commits those offen ‘or not. Where prmaterial. ted to prescribe a particular mental Only limited and exceptional cl a fact is an essential ingredient of an of. certain offences in the Penal Cog, where the accuse os is punished irrespective Of the fact Nether he had knowledge an particular act is forbidden the question of knowledge becomes im ‘presumes innocence until guilt is proved. The onus of proving everything essential to the establishment of the charge against the ac. Pied lies upon the prosecution, Every man fs to be regarded as legally innocent cassine comrary be proved. Criminality is therefore never to be presumed. The evidence must be stich as t exclude, t0 a moral certainly, every reasonable dout, Fesarding the guilt of the accused. If there be any reasonable doubt about the guilt Of the accused, he is entitled as of right to be acquitted. The more heinous and improbable a crime is, the greater is the force of the evi- dence required to overcome the presumption of innocence. Where the facts found proved in a case are perfectly consistent either with the innocence or guilt of the peeused the presumption of innocence should prevail. The presumption of inno- cence in criminal cases signifies no more than tnat if the commission of a crimeis Girectly in issue, it must be proved beyond reasonable doubt. The proof of guilt must depend on positive affirmation, and cannot be inferred from mere absence of explanation. The prosecution cannot be permitted to take advantage of the weakness of the defence case. The case for the prosecution has to be proved be yond all shadow of reasonable doubt de hors this weakness. Further, suspicien jowever strong is not proof’. In other words, the persuasion of guilt ought t@ amount to a moral certainty. Innocence.—The Where facts are as consistent with the prisoner's innocence as well as with hi guilt, innocence must be presumed; and criminal intent or knowledge is not nec essarily imputable to every man who acts contrary to the provisions of the law. Culpable possession, knowledge, or motive, may overthrow the presumption of innocence and raise in its pkice # presumption of guilt, Mistake of fact.—Mistake, as the term is used in jurisprudence, is an error ous mental condition, conception or conviction induced by ignorance, misApee hension, or misunderstanding of the truth, and resulting in some act or comission done or suffered erroneously by one or both of the parties to a transaction, Without its erroneous character being intended or known at the time. It may CF cern cither the law or the facts involved. i i = State of Maharashtra v. M. H. George, 1965(1) Cr L641 : AIR 1965 SC 722. 6. Brij Bhusan Singh v. Emp, > i Fig inca Singh x. Emp, AIR 1946 P C 38; Habu Singh v. Stave of Punjab, }964(1) Cr FGENERAL INTRODUCTION b ix A mistake of fact consists a fact, past or ee rest existence of a th . aan Nan unconsi 5 rial to the Taciousne ignorance, or forgetfulness of ‘nsaction, or in the belief of the present c ing material oO e ast exis oa al to the transacti ic! i i Pi tence of a thing whieh hee aa mello which does not exist, or in th Under the PX ‘enal Code the mis the mis rouge a mistake, a man, intend ul, the deed and the will ake must be one of fact and not of law. Where, Hel ee 10 lo a lawful act; does that which is unlaw- them which i mals to Separately; there is not that conjunction between Wrong in itself, and apore fot & criminal act. But where an aet is clearly render it criminal man son, under am staken impression as to the facts which a burglar cath Commits that act, he will be guilty of a criminal offence. Thus through mistake, 1 Seape punishment by saying that he entered a wrong house intended victim, see can a murderer be heard to say that the deceased was not his ctim. In either case the mistake of fact is no excuse. od sake. oo faw—A mistake of law happens when a party having full know!- take i © “acts comes to an erroneous conclusion as to their legal effect. Mis- € in point of law in criminal cases is no defence. Mistake of law ordinarily means mistake as to the existence or otherwise of any law on a relevant subject as well as mistake as to what the law is. Ignorance of the municipal law of the State does not exclude any person of the age of discretion from the penalty for the breach of it, because’ every person of the age of discretion is bound to know the law, and is presumed so to do. If any individual should infringe the statute law of the country through igno- rance or carelessness, he must abide by the consequences of his error: it is not open to him to aver in a Court of Justice that he was ignorant of the criminal law of the land, and no Court of justice is at liberty to entertain such a plea. The maxim ignorantia juris non excusat, (ignorance of law excuses no one), in its application to criminal offences, admits of no exception, not even in the case of a foreigner who cannot reasonably be supposed in fact to know the law of the land. It is indeed a legal fiction to suppose that everyone knows the lav of the land, but it is a fiction which is so basic that without it the administration of criminal justice would come to a standstill. Public policy requires it: expediency demands it to ci cumvent unsurmountable difficulties which the Courts will otherwise face, Without fc there will be no end to which such an excuse would be pressed into service’. Although a person commits an act which is made an offence for the first time by a statute so recently passed as to render it impossible that any notice of the assing of the statute could have reached the place where the offence has been committed, yet his ignorance of the statute will not save the accused from pun- ishment. 7. Bailey, (1800) Russ & Ry 1. 8. Sate of Maharashira v. M, + George, 1965(1) CrLJ 641 : AIR 1965 $0722