HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.

IPC

1) What do you understand by administration of Justice? Explain various kind

of theory of punishment and punishment provision deal with IPC.
Ans-: What is Administration
 Justice Administration of justice is the maintenance of right within a
political community by means of the physical force of the State. It is the
modern and civilised substitute for the primitive practice of private violence
and violent self-help. Without a system administration justice, man tends to
redress his wrongs by his own hands, which is certainly not at all desirable
 Its necessity-: "A herd of wolves is quieter and more at one so many men,
unless they all had one reason in them or have one power over them.
Unfortunately, it is true that human beings, who act in the welter of
conflicting interests, do not have one reason in them. Therefore, one power
over them becomes necessary. As Hobbs pointed out, unless man is under "a
common power to keep them in awe, it is impossible for men to live
together, except in the most primitive forms of society, where life would be
"solitary, poor, nasty, brutish and short.”
 The element of force is always present and operative in every society even
when a society is very orderly and its members appear to be obedient.
 Public opinion may be effective in the case of people who has a civilised
science but in the case of determining evildoers the effect of public opinion
would be most inoperative. Public opinion can hardly influence the unjust
and Tribunal member of society. The influence of public census is least felt
by those who need the most.
 Therefore the administration of justice with the sanction of the physical
force of the state is unavoidable and admits of no substitute.
THE PURPOSE OF CRIMINAL JUSTICE: THEORIES OF
PUNISHMENT
What is punishment
 Punishment, according to the dictionary, involves the infliction of pain or
forfeiture; it is the infliction of a penalty, chastisement or castigation by the
judicial arm of the State.
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 But if the sole purpose of punishment is to cause physical pain to the

wrong-doer, it serves little purpose. However, if punishment is such as
makes the offender realise the gravity of the offence committed by him, and
to repent and atone for it (thus neutralising the effect of his wrongful act), it
may be said to have achieved its desired effect.
 A person is said to be "punished" when some pain or detriment is inflicted
on him. This may range from the death penalty to a token fine.
 Thus, punishment involves the infliction of pain or forfeiture; it is a judicial
visitation with a penalty, chastisement or castigation. In his book entitled
Criminal Behaviour, Walter Reckless describes punishment as "the redress
that the commonwealth takes against an offending member.
 In the words of Westermarck, punishment is "such suffering as is inflicted
upon the offender in a definite way by or in the name of the society of
which he is a permanent or temporary member".

The objects of punishment

The needs of criminal justice are considered to be live, namely
A Deterrent
B. Preventive
C. Reformative
D. Retibutive
A) THE DETERRENT THEORY OF PUNISHMENT
 Punishment is primarily deterrent when its object is to show the futility ain
of crime, and thereby teach a lesson to others. Deterrence acts on the
motive of the offender, whether actual or potential.
 Offences are committed, in most cases, as a result of a conflict between the
so-called interests of the wrong-doer and those of society at large.
 The object of punishment, according to this theory, is to show that, Of in
the final analysis, crime is never profitable to the offender, and as Locke
observed, to make a crime "an ill-bargain to the offender".
 By making it an ill-bargain to the offender, the world at large would learn
that crime is a costly way of achieving an end. The idea behind deterrent
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punishment is that of preventing crime by the infliction of an exemplary

sentence on the offender.
 By this, the State e seeks to create fear in its members, and thus deter them
from committing terror and a warning to the offender and others.
According to the exponents this theory, punishment is meant to of prevent
the person concerned, as well as other persons, committing d similar
offences.
 The advocates for the retention of capital punishment rely on this theory in
support of their contention. They argue that capital 9 punishment, by its
very nature, cannot have either a reformative value or be retributive. Its
only value, if at all, is by way of deterrence However, the deterrent theory
of punishment often fails to achieve its goal. A hardened criminal becomes
accustomed to the severity of the punishment and deterrence does not
always prevent him from committing a crime.
 On the other hand, it also fails to affect an ordinary criminal, as very often, a
crime is committed in a moment of excitement. the crime is pre-mediated,
the offender commits the crime, knowing fully well, the consequences
arising from his act and performs the act because he cannot help but do it.
B. THE PREVENTIVE THEORY OF PUNISHMENT
 If the deterrent theory tries to put an end to the crime by causing fear of the
punishment in the mind of the possible crime-doer, the preventive theory
aims at preventing a crime by disabling the criminal, tor example, by
inflicting the death penalty on the criminal, or by confining him in prison, or
by suspending his driving licence, as the case may be Thus, extreme penalty,
the death sentence, ensures that, once and for all, the offender will be
prevented from repeating the heinous act. In the past, maiming was
considered an effective method of preventing the wrong-doer from
committing the same crime in the future, by dismembering the offending
part of the body. Thus, a thief’s hand would be cut off, a sexual offender
would be castrated and so on.
 Prevention can also be brought about by imprisoning the offender for a
sufficient period of time, so as to prevent him from committing the crime, at
least during that period.
 In the ultimate analysis, the preventive mode of punishment works in three
ways, viz
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(a) by inspiring all prospective wrong-doers with the fear of punishment:

(b) by disabling the wrang-doer from immediately committing any crime; and
(c) by transforming the offender, by a process of reformation and re- education, so
that he would not commit crime again.
REFORMATIVE THEORY OF PUNISHMENT
 According to the reformative theory, a crime is committed as a result of the
conflict between the character and the motive of the criminal. One may
commit a crime either because the temptation of the motive is stronger or
because the restraint imposed by character is weaker. The deterrent theory,
by showing that crime never pays.
 seeks to act on the motive of the person, while the reformative theory aims at
strengthening the character of the man, so that he may not become an easy
victim to his own temptation.
 This theory would consider punishment to be curative or to perform the
function of a medicine. According to this theory, crime a disease. The theory
maintains that "you cannot cure by killing”
 The exponents of the reformative theory believe that a wrong-doer's stay in
prison should save to re-educate him and to re-shape his personality in a new
world. They believe that though punishment may be stay in prison should
serve to re-educate him and to re-shape his every, it should never be
degrading.
 To the followers of this theory execution, solitary confinement and maiming
are relics of the past and enemies of reformation. Thus, the ultimate aim of
the reformists is to try to bring about a change in the personality and
character of the offended so as to make him a useful member of the society
The reformists argue that if criminals are to sent to prison in order to be
transformed into law-abiding citizens, prisons must be turned into
comfortable dwelling houses.
 True it is that the reformative element had long been neglected in the past.
 However, the present tendency to lay heavy stress on this asper seems to be
only a reaction against the older tendency to neglect altogether, and has
therefore, the danger at leaning to the other extreme Whereas reformation is
an important element of punishment, it cannot be made the sole end in itself.
 It must not be overlooked; but at the same time, it must not be allowed to
assume undue importance. In the case of young offenders and first offenders,
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the chances of long lasting reformation are greater than in the case of
habitual offenders.
 Again, some crimes, such as sexual offences, are more amenable to
reformative treatment than others. Further, reformative treatment is more
likely to succeed in educated and orderly societies than in turbulent or under
developed communities.
D. THE RETRIBUTIVE THEORY OF PUNISHMENT
 While discussing the history of the administration of justice, it was that
punishment by the State is a substitute for private vengeance.
 In all healthy communities, any crime or injustice stirs up the retributive
indignation of the people at large. Retribution basically means the that the
wrong-doer pays for his wrongdoing.
 Since a person who is wronged would like to avenge himself, the State
considers it necessary to inflict some pain or injury on the wrong-doer in
order to otherwise prevent private vengeance. Whereas other theories regard
punishment as a means to some other end, the retributive theory looks on it
as an end in itself.
 It regards it as perfectly legitimate that evil should be returned for evil, and
that a man should be dealt with in the manner in which he deals with others
An eye for an eye and a tooth for a tooth is deemed to be the rule of natural
justice. Though the system of private revenge has been suppressed, the
instincts and emotions that lay at the root of these feelings are yet present in
human nature.
 Therefore, according to this theory, the moral satisfaction that society
obtains from punishment cannot be ignored. On the other hand if the
criminal is treated very leniently, or even in the midst of luxury, as the
reformative theory would have it (and as actually happens in some prisons of
the world, which are equipped with air-conditioning, private toilets, radio
and TV sets, etc.), the spirit of vengeance would not be satisfied, and it
might find its way through private vengeance.
 Therefore, punishment, instead of preventing a crime, might indirectly
promote it.
 Unfortunately, the retributive theory ignores the causes of the crime, and it
does not strike at the removal of the causes. A mere moral indignation can
hardly prevent crime.
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 It is quite possible that the criminal is as much a victim of circumstances as

the victim himself might have be It is also unfortunate that this theory
overlooks the fact that two wrongs do not really make a right. The theory
also seems to ignore that if vengeance is the spirit of punishment, violence
will be a way of prison life. Retribution as expiation. There is yet another
interpretation of the retributive theory, which considers punishment as a
form of expiation.
 To suffer punishment is to pay a debt due to the law that has been violated.
As per the formula guilt plus punishment is equal to innocence. According to
this view of retributive theory, the penalty is a debt which the offender owes
to his victim, and when the punishment has been endured, the debt is paid,
and the legal bond forged by the crime is dissolved.
 Therefore, the object of the true punishment must be substitute justice for
injustice, to compel the wrong-doer to restore to the injured person that
which is his own, and by such restoration and repentance, the spirit of
vengeance of the victim is to be satisfied.

What are the Different Kinds of Punishment Practiced in India

Death:
The punishment of death may be imposed on the following offences:

(a) Waging or attempting to wage war or abetting the waging of war against the
Government of India -Section 121 I.PC.;

(b) Abetment of mutiny actually committed – Sec. 132 of I.P.C.;

(c) Giving or fabricating false evidence upon which an innocent person suffers
death – Sec. 194

(d) Murder – Section 302; We

(e) Punishment for murder by a life-convict – Sec. 303 [This Section was struck
down by the Supreme Court holding that it was unconstitutional, while disposing
the case Mithu v. State of Punjab, AIR 1983 SC 4731;
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(g) Attempt to murder by a person under sentence of imprisonment for life, if hurt
is caused – Sec. 3071.PC;

(h) Dacoity with murder – Sec. 396 I.P.C.

 The Courts have a high range of discretionary powers in passing death

sentences. The death punishment is also called “Capital Punishment”. The
word “capital” means “the head or top of the column”. Thus the capital
punishment means “removal of head”, “death penalty” or “beheading”.

 It is the maximum punishment possible to be imposed on a criminal. This

punishment occupies topmost position among the grades of punishments.
This punishment can be imposed in extreme cases and rarely that too in
extremely grave crimes.

 The capital punishment can be imposed on a criminal who commits a pre-

planned and premeditated murder in cold blood. The offences with sections
in which the death penalty can be imposed are explained above.

 Most of the developed countries have removed death sentences from their
respective penal code due toagitations caused by the suggestions of
sociologists, reformists, criminologists, etc.

2. Imprisonment for Life:

Before 1955, the words “transportation for life” was used. The Code of Criminal
Procedure Amendment Act, 1955 (Act No. 26 of 1955) substituted the words
“Imprisonment for life” in place of “transportation for life”.

The general public thinks that imprisonment for life means only 14 years
imprisonment, and the convict shall be released as soon as the 14 years period is
lapsed. It is wrong presumption.

Actually, the punishment under the Imprisonment for Life means imprisonment for
the whole of the remaining period of the convicted person’s natural life. During the
British Rule, the convicts under “transportation for life” was used to be deported to
the Andamans and other Colonies and were taken for ever from the society of all
who were acquainted with him.
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After independence, such system was stopped. Now the convicts under
imprisonment for life are imprisoned in the Prisons of the States concerned. The
life convict is not entitled to automatic release on completion of fourteen years’
imprisonment, unless on special occasions, the Government may pass an order
considering the good behaviour and conduct of the convict remitting the balance of
imprisonment for life.

3. Penal Servitude:
“Servitude” means “slavery”. “Penal Servitude” means “the convict becomes a
slave of the State” The British Courts used to impose ‘Penal Servitude” as a severe
punishment next to the Death Sentence. Generally, this punishment was imposed
on Indians, who revolt against the then British Rule.

“Penal Servitude” is coupled with the punishment of “Transportation” i.e., the

convicts under these two punishments were sent to uninhibited lands and areas,
such as Andaman and Nicobar, South Africa, etc., or to any other British territories
or dominions to work in their factories, plantations, mines, etc.

These punishments were also called “Extermination” or “Exterminating” Before

the independence, such punishments were called as “Kala Pani”. A cinema “Kala
Pani” was also picturised showing heinous circumstances in those days.

Several thousands of freedom fighters were punished under these punishments

before the independence. As soon as India got independence, our Indian
Government abolished “Penal Servitude” punishment, by the Criminal Justice Act,
1948 (Act No. 58 of 1948).

4. Imprisonment:
The Fourth kind of punishment is “Imprisonment”. It is of two descriptions, viz.—

(i) Rigorous, i.e., with hard labour; and

(ii) Simple.

(i) Rigorous Imprisonment i.e. with Hard Labour:

There are certain offences defined in the Indian Penal Code, for which rigorous
imprisonment may be imposed by the Courts. Examples: House- trespass under
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Section 449 of IPC; fabricating false evidence with intent to procure conviction of
an offence which is capital by the Code (Sec. 194); etc.

For such offences, rigorous imprisonment may be imposed. In rigorous

imprisonment, the convicted person is put to do hard labour such as digging earth,
cutting stones, agriculture, grinding corn, drawing water, carpentry, etc. The
Supreme Court suggested that the offenders imposed hard labour should be paid
minimum wages.

The trial Court, while disposing Bombay Blast Case (2007), sentenced Sanjay Putt,
a Bollywood Hero, for rigorous imprisonment for a period of six years. Until the
Supreme Court gave the Bail, Sanjay Dutt did carpentry work for 30 days and
earned Rs. 39/- during that period.

While disposing the case Sunil Batra v. Delhi Administration (AIR 1980 SC 1675),
the Supreme Court observed: “Hard labour in Sec. 53 has to receive a humane
meaning.

A girl student or a male weakling sentenced to rigorous imprisonment may not be

forced to break stones for nine hours a day. The prisoner cannot demand soft jobs
but may reasonably be assigned congenial jobs. Sense and sympathy are not
enemies of penal asylums.”

(ii) Simple imprisonment:

This punishment is imposed for the lighter offences. Examples: public servant
unlawfully engaging in trade or unlawfully buying or bidding for property
(Sections 168-169); absconding to avoid service of summons or other proceedings,
or not attending in obedience to an order from a public servant (Sections 172-174);
to obstruct traffic or cause public nuisance; eve- teasing, drunken brawls, etc.;
refusing oath when duly required to take oath by a public servant (Section 178);
wrongful restraint (Sec. 341); defamation (Sec. 500) etc.
Solitary Confinement:
Section 73 of the Code empowers the Courts to impose solitary confinement to
certain persons and in relation to certain offences. This punishment is also part of
the imprisonment.
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A harsh and hardened convict may be confined in a separate cell to correct his
conduct. He is put separately without intercourse with other prisoners. All
connections are severed with other world.

The object of this punishment is to reform the hardened and habitual offender and
in order to experience him with loneliness. There are certain restrictions in
imposing solitary confinement. They are:—

(a) Solitary confinement should not exceed three months of the whole term of
imprisonment.

(b) . It cannot be awarded where imprisonment is not part of the substantive

sentence.

(c) It cannot be awarded where imprisonment is in lieu of fine.

(d) It cannot also be awarded for the whole term of imprisonment. Further
according to Section 73, the following scale shall be adhered,—

(i) Time not exceeding one month if the term of imprisonment shall not exceed six
months;

(ii) A time not exceeding two months if the term of imprisonment shall exceed six
months and shall not exceed one year;

(iii) A time not exceeding three months if the term of imprisonment shall exceed
one year.

In several European countries, including Great Britain, this punishment was

repealed.

Section 74 limits the solitary confinement. If it is imposed for a long time, it

adversely affects on human beings and creates mental derangement.

This Section says that solitary confinement shall in no case exceed fourteen days at
a time with intervals between the periods of solitary confinement of not less
duration than such periods, and when the imprisonment awarded shall exceed three
months, such confinement shall not exceed seven days in any one month of the
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whole imprisonment awarded, with intervals between the periods of solitary

confinement of not less duration than such periods.

5. Forfeiture of Property:
“Forfeiture” is the divestiture of specific property without compensation in
consequence of some default or act of forbidden by law. The Courts may order for
forfeiture of property of the accused in certain occasions.

In white collar crimes, and where a Government employee or any private person
accumulates black money and black assets, and there is no genuine answer and
proof for such money and properties with such person, the Court may award for
forfeiture of property.

In cases of smugglers, goondas, anti-national personalities, etc., the Government or

the Courts are empowered to forfeiture of property of such anti-social elements.

6. Fine:
The Courts may impose fine along with or without imprisonment. The Indian Penal
Code mentions the punishment of fine for several offences, generally with or
without imprisonment.

Amount of fine:
According to Section 63, where no sum is expressed to which a fine may extend,
the amount of fine to which the offender is liable is unlimited, but shall not be
excessive.

Sentence of imprisonment for non-payment of fine:

According to Section 64, in every case of an offence punishable with imprisonment
as well as fine, in which the offender is sentenced to a fine, whether with or
without imprisonment, and in every case of an offence punishable with
imprisonment or fine, or with fine only, in which the offender is sentenced to a
fine, it shall be competent to the Court which sentences such offender to direct by
the sentence that, in default of payment of the fine, the offender shall suffer
imprisonment for a certain term, which imprisonment shall be in excess of any
other imprisonment to which he may have been sentenced or to which he may be
liable under a commutation of a sentence.
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Limit to imprisonment if fine imposed is not paid:

Section 65 lays down that the term for which the Court directs the offender to be
imprisoned in default of payment of a fine shall not exceed one- fourth of the term
of imprisonment which is the maximum fixed for the offence, if the offence be
punishable with imprisonment as well as fine.

Description of imprisonment for non-payment of fine:

Section 66 lies down that the imprisonment which the Court imposes in default of
payment of a fine may be of any description to which the offender might have been
sentenced for the offence.

Imprisonment for non-payment of fine when offence punishable with fine

only:
According to Section 67, if the offence be punishable with fine only, the
imprisonment which the Court imposes in default of payment of the fine shall be
simple, and the term for which the Court directs the offender to be imprisoned, in
default of payment of fine, shall not exceed the following scale,—

When the fine shall not exceed fifty rupees – the term of imprisonment shall not
exceed two months;

Termination of imprisonment on payment of fine:

According to Section 68, whenever the fine is paid the imprisonment shall be
terminated forthwith.

According to Section 69, if, before the expiration of the term of imprisonment
fixed in default of payment, such a proportion of the fine be paid or levied that the
term of imprisonment suffered in default of payment is not less than proportional
to the part of the fine still unpaid, the imprisonment shall terminate.

E) THE COMPENSATION THEORY OF PUNISHMENT

 According to this theory, the object of punishment must not be merely to
prevent further crimes, but also to compensate the victim of the crime.
 This theory further believes that the main-spring of criminality is greed, and
if the offender is made to return the ill-gotten benefits of the crime, the
spring of criminality would be dried up.
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 Though there is considerable truth in this theory, it must be pointed out that
this theory tends to over-simplify the motives of a crime. The motive of a
crime is not always economic.
 Offences against the state, against justice, against religion, against marriage,
and even against persons, may not always be actuated by economic motives.
There may be other complicated motives involved. In such cases, the theory
of compensation may be neither workable nor effective.
 Quite often, even in the case of offences actuated by such motives, the
economic condition of the offender may be such that compensation may not
be available. Therefore, this theory can at best, play a subordinate role in the
framing of a Penal Code.

2) Explain various element of crime. discuss the doctrine of Mens Rea what are
the exceptions of it?
Ans-: Various. Fundamental Elements Of Crime: There are four elements which go
to constitute a crime, these are:-
· Human being
· Mens rea or guilty intention
· Actus reus or illegal act or omission
· Injury to another human being

Human Being- The first element requires that the wrongful act must be committed
by a human being. In ancient times, when criminal law was largely dominated by
the idea of retribution, punishments were inflicted on animals also for the injury
caused by them, for example, a pig was burnt in Paris for having devoured a child,
a horse was killed for having kicked a man. But now, if an animal causes an injury
we hold not the animal liable but its owner liable for such injury.

So the first element of crime is a human being who- must be under the legal
obligation to act in a particular manner and should be a fit subject for awarding
appropriate punishment.
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Section 11 of the Indian Penal Code provides that word ‘person’ includes a
company or association or body of persons whether incorporated or not. The word
‘person’ includes artificial or juridical persons.

Mens Rea- 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
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.

Actus Reus [Guilty Act Or Omission] - The third essential element of a crime is
actus reus. In other words, some overt 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”.

Injury- The fourth requirement of a crime is injury to another person or to the

society at large. The injury should be illegally caused to any person in body, mind,
reputation or property as according to Section 44 of IPC, 1860 the injury denotes
any harm whatever illegally caused to any person in body, mind, reputation or
property.

V. Stages Of A Crime If a person commits a crime voluntarily or after preparation

the doing of it involves four different stages. In every crime, there is first intention
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to commit it, secondly, preparation to commit it, thirdly, attempt to commit it and
fourthly the accomplishment. The stages can be explained as under-

1. Intention- 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.

2. Preparation- 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.

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.

What is men’s rea

Mens rea is a cardinal principle of law. It means "Mental element or Evil intent or
Guilty mind". It may be defined as the mental element is necessary to constitute a
criminal liability. Mere commitment of offense is not enough but it has to be
proved that the offense was committed with "guilty mind".

Example - If a while playing cricket a person is hit by a ball and dies, a person
hitting the ball cannot be charged with murder as there was no mens rea.

In criminal offenses generally, Mens rea has to be proved by prosecution and

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quality of proof required is heavy i.E. It should be proved beyond reasonable

doubt. Thus in criminal offences heavy burden is cast on government authorities
regarding proof and hence many people are released by the court as a proof of
mens rea (culpable mental state) " is not enough.

Exceptions to the Doctrine Mens Rea are as follows -

a) Strict Liability -

Even though there is no guilty mind the person is held responsible for the act.
Only some special statute creates those liabilities. Act passed by parliament. These
offences are against Public Health for which such strict or absolute liability is
imposed, for example-Essential Commodities Act, Food and Drug Act, Consumer
Protection Act etc.

b) When it is difficult to prove Mens Rea -

Another exception to the doctrine Mens rea is where it is difficult to prove

mens rea and penalties are petty fines A statute may do away with the necessity of
Mens rea on the basis of expediency. In such petty cases, speedy disposal of cases
is necessary and the proving of mens rea is not easy. An accused or may be fined
even without any proof of Mens Rea.

c) Public Nuisance -

Another exception to the doctrine of mens rea is in case of public nuisance. In

the interest of public safety, strict liability must be imposed. Whether a person
causes public nuisance with guilty mind or without guilty mind, he must be
punishable.

d) Ignorance of Law no excuse -

Ignorance of law is no excuse. It is presumed that everybody knows the law of

land. The principle of ignorantia juris non excusat is followed in almost all legal
systems. This is an irrebuttable presumption that every person knows the law of the
land.
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Conclusion -

Mens rea is a technical term, generally taken to mean some blameworthy

mental condition whether constituted by intention or knowledge or otherwise the
absence of which on any particular occasion negatives and intentions of a crime.
There are many exceptional cases where mens rea is not required in criminal law
some exceptions to the doctrine mens rea are mentioned above.

3) Explain prevention relating to right to right of private defence in protection

of body and property
OR
What is right of private defence? Analyse elaborately the provision under
which the right of private defence of body is available to the extent of
causing death of the assailant.
Ans-: Every person has a right, subject to the restrictions contained in section 99,
to defend :
1. First : His own body, and the body of any other person, against any offence
affecting the human body.
2. 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 ana attempt to commit
theft, robbery, mischief or criminal trespass.
RIGHT OF PRIVATE DEFENCE OF BODY
Section 97 lays down that every person has a right subject to restrictions contained
in section 99, to defend his own body, and the body of any other person, against
any offence affecting the human body. Section 102 of IPC provides that the right
of private defence of the body commences as soon as a reasonable apprehension of
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

danger to the body arises from an attempt or threat to commit the offence though
the offence may not have been committed, and it continues as long as such
apprehension of danger to the body continues.
It is clear from the wording of the section that the right commences and
continues as long as danger to body lasts. The extent to which the exercise of the
right will be justified will depend not on the actual danger but on whether there
was reasonable apprehension of such danger. There must be an attempt or threat,
and consequent thereon an apprehension of danger, but it should not be a mere ide
threat. There must be reasonable ground for the apprehension.
The right of private defence of the body extends to the voluntary causing of
death or any other harm to the assailant if the offence occasioning the exercise of
the right be of any of the following descriptions, viz :
1. An assault causing reasonable apprehension of death.
2. Even injury to innocent persons in the right of private defence against an
assault is excusable.
3. Assault with the intention of committing rape, gratifying unnatural lust,
kidnapping or abducting or wrongfully confining a person causing reasonable
apprehension that he will not be able to have recourse to the public authorities for
his release.
For the purpose of exercising he right of private defence physical or mental
incapacity of he person against whom the right is exercised is no bar.
There is however no right of private defence :
1. Against an act which does not reasonable cause the apprehension of death or
of grievous hurt, if done, or attempted to be done, by a public servant or by the
direction of a public servant acting in good faith under colour of his office though
that direction may not be strictly justifiable by law.
2. In cases in which there is time to have recourse to the protection of the
public authorities.
3. Nor does the right of private defence extend to the inflicting of more harm
than it is necessary to inflict for the purpose of defence(Sec.99)
The measure of defence must bear proportion to the quantum of force used by
the attacker and which it is necessary to repel. Thus where the accused who was
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

attacked by another with a kirpan succeeded in disarming his opponent by taking

away his weapon and showered blows after blows including the serious once on
the chest. It was held that he must be held to have exceeded the right of self
defence and was guilty under section 304 Part I of IPC.
The right of private defence provided by section 97 IPC is a right of protection
and not of vengeance or aggression. An act done in exercise of a right of private
defence does not give rise to any right of private defence in return. Case : Mukhtiar
Singh v. State of Punjab 1973.

4) Define criminal conspiracy and its ingredients given in Section 120A of

IPC. How it punishable.?
INTRODUCTION: The original Indian Penal Code did not have an offence by the
name of criminal conspiracy. However the need to have this offence was felt later
on and this chapter V-A relating to criminal conspiracy with only two sections in it
i.e. section: 120-A which provides definition of criminal conspiracy and Sec. 120-
B providing its punishment was added in IPC by the Criminal Law Amendment act
1913.
Definition of Criminal conspiracy under Sec.120-A
When two or more persons agree to do or cause to be done
I) An illegal Act
II) An act which is not illegal but when it is done by illegal means.
Such an agreement is designated/made a criminal conspiracy.
INGREDIENTS:-
1.There shall be minimum two or more person.
2. Agree for illegal act. The expression ‘ illegal’ has been defined in Sec.43 of the
code. According to this section, the word illegal is applicable to everything :
i) Which is an offence
ii) Which is prohibited by law
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

iii) Which is furnishes ground for a civil action

iv) Act is done by illegal means.
Further provided that no agreement except an agreement to commit an offence,
shall amount to a criminal conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in pursuance thereof.
Explanation : It is immaterial whether he illegal act is the ultimate object of such
agreement or is merely incidental to that object. In other words, the conspirator is
guilty of criminal conspiracy; whether the illegal act is the ultimate object of the
agreement or it is merely incidental to the object of the agreement. The law does
not treat these cases differently.
Case : Mohd. Usman v/s State 1981 : In this case the accused persons were selling
explosive substances without valid license for a very long time. The SC held that
they were guilty of criminal conspiracy, as they had been doing this for a very long
time, which could not have been possible without an agreement between then, and
this agreement was proved by necessary implication.
ILLUSTRATION: ‘A’ the wife of ‘B’ had illicit connection with ‘C’, who
wanted to murder ‘B’. Instead of telling B that C waned to murder him, told C that
B would go to lonely place on a particular day & time. C murdered B at that
particular place, date and time. Thus A and C both are guilty of the offence of
criminal conspiracy. C is also guilty of adultery and murder.
CONVICTION OF A SINGLE PERSON FOR CRIMINAL CONSPIRACY:- An
important question arises whether a single individual can be held guilty of this
offence. For criminal conspiracy, there ‘must’ be at-least two persons. Thus the
section only says that agreement must be between two or more persons and not that
the connection must be of at-least two persons.
ILLUSTRATION :- Where the prosecution case is that, four : persons had entered
into an agreement to commit murder of ‘Z’ and out of these four one is ‘D’ without
a shadow of doubt. The other three might be A,B and C or might not be A,B and C
because the evidence against them is doubtly. In such case, since two things are
certain the member of conspirators was four and one of these four was definitely
“D’ thus D alone is guilty of criminal conspiracy.
Case : B.H. Narasimha Rao V/s Govt. Of A.P 1995 The accused was charged for
committing an offence in conspiracy with seven other who were al acquitted. It
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

was held that the accused could not be convicted under section 120-B on the mere
ground that he was head of a section of he branch where the fraud was alleged to
have been committed.
Section 120-B : Punishment of criminal conspiracy: Whoever is a party to a
criminal conspiracy to commit an offence punishable with death, imprisonment for
life or rigorous imprisonment for a term of two years of upwards shall, where were
no express provision is made in this code for punishment of such conspiracy, be
punished in he same manner as if he had abetted of such offence.
# Whoever is a party to a criminal conspiracy other than a criminal conspiracy to
commit an offence punishable with imprisonment for a term not exceeding six
month or with fine or with both.

5 ) Explain in detail the concept of Abetment.

Answer :- INTRODUCTION :- A crime may be committed by one or more
persons involved in crime then their liability depends upon the extent of their
participation. Thus this rule of joint liability comes into existence. But there is an
important fact which is that the law has a knowledge about the abettor, who has
given help to another in crime. This rule is very ancient and was applied in Hindu
Law also. In English Law, criminals are divided in four categories, but in India
there is only one distinction between the doer and his helper who is known as
abettor. The crime of abetment come under section 107 to 120 of the IPC. Section
107 defines ‘abetment of a things’ and section l08 defines about the abettor.
SECTION 107 IPC ‘ABETMENT OF THING’:
A person abets the doing of a thing by instigation :-
1. Instigate any person to do that things
2. By conspiracy.
3. By aids.
BY INSTIGATION ANY PERSON TO DO THAT THINGS :- According to the
first clause of section 107 a person abets of thing that instigates any person to do
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

that thing. A person is said to instigate another when he incites, urges, encourages,
provokes, counsels, procures or command him to do something.
EXPLANATION :- A person who by wilful misrepresentations or by wilful
concealment of a material fact, which he is bound to disclose, voluntary causes or
procures or attempts to cause or procures a thing to be done, is said to instigate the
doing of that things.
ILLUSTRATION :-
A Police Officer is authorised by a warrant from a court of justice to apprehend
Z. B knowing that fact and also that C is not Z, wilfully represents to A that C is Z
and thereby intentionally causes A to apprehend C. Here B abets by instigation the
apprehension of C.
Case : Gurbachan Singh v/s Sat Pal Singh, AIR- 1990
A newly wedded girl died of burns. The father of deceased had stated in FIR that
the deceased committed suicide because of harassment and constant taunt for
insufficient dowry. It was held by the SC that the deceased had committed suicide
at the instigation of her husband and in laws and it was not a case of accidental
death.
2. ABETMENT BY CONSPIRACY
The second clause of this section states that a person abets the doing of a thing who
engages with one or more other persons in conspiracy for the doing of that
thing. If an act or illegal omission takes place in pursuance of that conspiracy and
in order to doing of that thing then it is called abetment by conspiracy. If an act or
illegal omission takes place in prurience of that conspiracy.
ILLUSTRATION :-
A concerts with B a plans for poisoning Z. It is agreed that A shall administer the
poison. B then explains the plan to C mentioning that a third person is to
administer the poison, but without mentioning A’s name. C agrees to procure the
poison and deliver it to B for the purpose explained ‘A’ administers the poison and
Z dies. Here A and C have not conspired together, yet C has therefore committed
the offence and is liable for punishment.
A case : Rup Devi v/s State : 1955.
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

The deceased & his wife had strained relationship. The wife had illicit intimacy
with the accused. The deceased was scheduled to go to ‘Sadhu” on a particular
day. The wife told the accused about this programme even though she knew that
the accused was waiting for the opportunity to kill her husband and taking the
opportunity he killed him. It was held that the wife was not guilty of abetment by
conspiracy, even though her conduct was open to censure.

6) What is an attempt to commit offences. Discuss in the light of section 511 of

IPC. OR
How far are attempts to commit offences punishable under section 511 of IPC?
What must be proved in order to support the conviction of an attempt under this
section.? OR
What are the different stages of the commission of an offence and how far each of
them is punishable? (b) Distinguish between ”preparation to commit an offence”
and “attempt to commit an offence.”
Answer: INTRODUCTION:-

ATTEMPTS TO COMMIT OFFENCES : Section 511 lays down that,” whoever

attempts to commit an offence punishable by this code with imprisonment for life
or imprisonment, or to cause such an offence to be committed, and in such attempt
does any act towards the commission of the offence, shall, where no express
provision is made by this code for the punishment of such attempt, be punished
with imprisonment of any description provided for the offence.
The points which require proof under the above section they are as follows :-
1. That the accused attempted to commit some offence punishable with
imprisonment for life or imprisonment or he attempted to cause such and offence
to be committed.
2. That in attempting to do the above act he did some act towards the
commission of the offence.
ILLUSTRATION :-
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a) A makes an attempt to steal some jewels by breaking open a box, and finds
after so opening the box that there is no jewel in it. He had done an act towards the
commission of theft, and therefore is guilty under this section.
b) A makes an attempt to pick pocket of Z by thrusting his hand into Z’s Pocket
and fails to pick the pocket with the result A found nothing in the pocket of Z and
was held guilty of an offence under this section.
DIFFERENT STAGES OF THE COMMISSION OF AN OFFENCE
There are three stages for the commission of a crime in the section number 511 of
IPC, which are as under :-
i) Intention to commit a crime.
ii) Preparation to commit it and attempt to commit it. The crime is when
complete is successful.
INTENTION TO COMMIT THE CRIME :
It consists the evil intention or design to commit the crime. Mere intention or evil
design not followed by an act, does not constitute an offence. The will cannot be
taken for the deed, unless there has been some external act showing the progress
made towards maturing the crime. The judges cannot look into the breast of the
criminals.

PREPARATION TO COMMIT IT AND ATTEMPT TO COMMIT IT:-

As clear from the above heading that preparation to commit a crime, It is devising
or arranging the means or measures necessary for commission of an offence. Mere
preparation to commit an offence is punishable only in three cases :-
a) Preparation to wage war against the Govt of India u/s 122.
b) Preparation to commit depredation on territories of any power at peace with
the govt. Of India u/s 126.
c) Preparation to commit dacoity under section 399.
Preparation widely differs from attempts. Attempt is therefore, preparation plus
something more. Attempt begins where preparation ends. A preparation is
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

generally not punished while every attempt is the reason being that a preparation
apart from its motives would generally be a harmless act.
It is impossible to show in most cases that the preparation was
directed to a wrongful end or was done with an evil motive or intention. An
attempt is however made punishable because every attempt, although it fails to
achieve the result, must create alarms which of itself is an injury and the moral
guilt of the offender is the same as if he had succeeded.
There are however some exceptional cases where the contemplated
offence may be so grave that it must be nipped in the bud at its earlier stage. Such
as :-
1. Preparation to wage war against Govt., of India, preparation to commit
depredation on territories of any power at place with the government of India and
preparation to commit dacoity.
2. There are also a few cases where even mere preparation is made punishable
because they cannot by the very nature of things be meant for innocent
purposes e.g. provision against making mending buying or selling or being in
possession of instruments for counterfeiting coins, or making the dies or other
instruments used in the manufacture of coin.
3. There are also a few acts which although in reality are mere preparation have
been regarded as substantive offence, viz., possession of counterfeit coins, false
weights and forged documents.

7) historical background of Indian penal code.

Ans-:
Historical evolution of Indian penal code
 The existence of the penal law in India is from Vedic period. But at that
time the penal law was not so advance as now it is.
 There were 3 major books on the penal law
Criminal law in Hinduism

Arthshastra Manu Smriti Yajnavalkya

HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

 Arthshastra
 The book on the money related matter
 The book Arthshastra was written by the “Kautilya” also known as
“chanakya”.
 In this book things discuss about the duty of king and the economy of the
state.
 This book can not applicable for the common people.
 This book is mainly about how to rule over the kingdom.
 In this there were some punishment related to some of the offence.
 Manu Smriti
 Manu Smriti was written by the lord Manu, and it is also known as code of
Manu.
 This book has make lasting impact of the human behaviour of India.
 It contains ordinances related to the law.
 It is a complete digest of the then prevailing religion, philosophy, custom
and usage observed by the people of India.
 It listed the duty of the kings and rule based on Dharma, of Administration
of Justice by them.
 In this there were 18 type of offence decided and this 18 subject cover both
civil as well as criminal branch.
 The offences subject to punishment such as censure, rebuke, fine,
forfeiture of property and corporal punishment including imprisonment,
banishment, mutilation and death.
 The quantification of these punishments by the king was regulated by a set
of principle laid down and the factors indicated in the code itself. Manu
Smriti practiced the distinction between the high caste and lower caste in
the matter of given punishment.
 Brahmins, persons belonging to highest caste of the Indian society and
women were exempt from the death sentence.
 Instead of capital punishment Brahman was to be banishedas. It was
considered a greater punishment for him then even the death penalty.
 Hence, Manu Smriti was criticised 48 unequal punishment and treating
Brahmanism above the law. However are scholar of criminal law,
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

appreciating the scientific basis of these unequal punishment and its

underlying basic justifies search as an equal punishment treating Brahmins
above the law.

 Yajnavalkya
 Following Manu, laid down that the kings should inflict punishment upon
those who deserve it after taking into consideration the nature of the
offence, and the strength, age, avocation, and wealth of the accused. As in
above ancient communities, the practice of paying money compensation
was also prevalent in ancient India.
 However the Hindu law of punishment accepted more prominent place
then compensation.
 Muslim Rule
Hadis Ijmmas Kiyas

(Saying of prophets) ( Analogical Reductions (Views/ opinions of

of Quran) Learned scholars)
 Three type of punishments-:
1) Kisas
2) Hud
3) Tazeer/ syasa
Criticisms
 No weightage given to non believer.
 Offence committed against women produce four Oye (Male) witness
should be reputed person.
 Harsh and cruel
 Notations of crime and punishment was fixed

 Development of criminal law in India under British rule

 Before the advent of the British, as stated above the penal law
prevailing in India for most part was the Mohammedan law.
HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

 With the necessary modification is continued to governed the people of

the India for considerable Period of the East India Company
administration as the letter did not interfere with the thitherto-
prevailing penal law of the country.
 The first major attempt to Reform the criminal justice was made after
passing of the regulating act 1773, underweight new Court was set up.
In each district, a criminal court faujdari Adalat was set up.
 It composed the Mohammedan officer Kazi a mufti and two moulvis.
 To try criminal case in prescence of collector a European supervisor
who's duty to see that the trial was fairly according to law.
 Lord Cornwallis judicial regulation in 1793 mate court in a district known
as Sarddar nizamat Adalat.
 All the court was subject to saddar Nizamat Adalat or Supreme criminal
court at Calcutta, which constitutes of the governor general and his
Council, with principal native law officer.
 Thus this was the first Criminal Court presided over by English judge
established under authority of the company administration of criminal
justice in India.
 However subsequently the constitution of the Sarddar nizamat Adalat
was completely changed. Instead of consisting of the governor general
in Council, it was composed of Civil and judges and the district or Zilla
judge was empowered to act as a criminal court.
 During the same time, magistrate who were also collector was
authorised to hear and determine petty offence such as assault and to
punish them with imprisonment upto 15 days or 15 stroke of rattan,
subject or not to an appeal to the sessions judge.
 Thus the final form of the Criminal Court of East India Company was
Sardar Nizamat Adalat the session judge and magistrates.
 The regulating act of 1773 authorise the Crown to establish of Supreme
Court at Calcutta.
 The court was to have power to hear and determine all the complainant
against any British subject resisting in Bengal Bihar and Orissa for any
crimes, misdemeanours or oppressions committed by them.
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

 A new Supreme Court was established which was similar in all respect to
the supreme court of Calcutta was established in Madras in 1800 and in
Bombay 1823.
 This reform in the administration of criminal Justice League tour
problem. The British on this quote begin gradually to refer to and rely
upon, the English law of crime, while the criminal court in presidency
towns were obliged to follow they are on system of law. Search of
tractors obviously result into a non-uniform law of crime.
 The Bombay province was first province in India to enact in 1727 of brief
Penal Code, the Bombay Regulation of 1827, for the mofussil.
 The Bombay Regulation incorporating almost all the penal law of the
Bombay Presidency, issued by mountstuart Elphinstone, the mofussil.
 The Bombay Regulation incorporating almost all the penal law of the
Bombay Presidency, issue by Mountstuart Elphinstone, the then
governor of Bombay superseded Mohammedan penal law. The Bombay
code, which was extremely simple short and return more in style of
treatise then in that of law, remained in force until it was superseded by
the IPC 1860.
Charter act of 1883
 Held it directed all Law Commission to be set up.
 The first law commission was setup in 1834.
 The first member was Thomas Babington Macaulay.
 There were other also name Sir John Macpherson’s, Anderson and F. miller
drafted or prepared Indian penal code submitted to governed general in
1837.
 1th January 1826 ( divided in 23 chapters and 511 sections)

8) short notes
A) Judge',
The word "Judge" denotes –
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

1) every person who is officially designated as a Judge

2) every person who is employed by law to give
(a) a definitive judgment in any legal proceeding, civil or criminal,
(b) a judgment which, if not appealed against would be definitive, (c) a
judgment which, if confirmed by some other authority, would
3) every person who is one of a body of persons, which body of persons is
employees by law to give such judgement.
 The word judge denotes not only every person who is officially designated
as a Judge, but also every person who is empowered by law to give, in any
legal proceeding, civil or criminal, a definitive judgment, or a judgment
which, if not appealed against, would be definitive, or a judgment which, if
confirmed by some other authority, would be definitive, or who is one of a
body of persons, which body of persons is empowered by law to give such a
judgment.
 ‘Judge’ in popular parlance, the what does means only a judge of the
supreme court or a high court.
 But the section has no restricted the meaning of a such as supreme court,
high court, district court, Assistant sessions Judge.
 It include all those persons authorised under the provisions of plot to
exercise jurisdiction in a suit of proceedings weather civil criminal of Quasi
judicial nature.

llus. () A Collector exercising jurisdiction in a suit under Act X of or or be

definitive; persons is empowered by law to give such a judgment S. 19. 1859, is a
Judge.
(i) A Magistrate exercising jurisdiction in respect of a charge on which he
has power to sentence to fine or imprisonment, with or without appeal. is
a Judge. suits, is a Judge. which he has power to commit
(ii) A member of a panchayat which has power to try and determine
(iii) A Magistrate exercising jurisdiction in respect of a charge on a trial to
another Court, is not a Judge. The expression "Court of Justice" denotes a
Judge who is empowered by law to act judicially alone, or a body of
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

Judges which is empowered by law to act judicially as a body, when such

a judge or body of Judges is acting judicially.

B) Good faith
 Section 52 gives the important definition of good faith, as follows: Nothing
is said to be done or delivered in good faith is done or believed without due
care and attention"
DUE CARE AND ATTENTION.-
 The crucial words in this section are due care' and attention. These words
clearly indicate that mere good aith in this sense of actual belief, with any
grounds for believing is not suffcient, the belief must be a reasonable, and
not an absurd belief, that is, there must be some reasonable ground for it.
Good faith thus requires due care and attention to the matter in hand. The
words "due care and attention imply a genuine effort to reach the truth, and
not the ready acceptance of any ill-natured belief.

 The degree of care and attention required for demonstrating good faith with
vary the degree of danger which may result from the want of attention.
Where the peril is the greatest, the greatest caution is necessary Further, the
law does not expect the same degree of care and attention from all persons,
irrespective of the position which they occupy.

 A person named, Sukaroo Kabiraj, operated on a man for internal piles by

cutting them out with an ordinary knife. The man died from haemorrhage.
Kabiraj was charged and convicted under sec. 304-A of the Penal Code for
causing death by doing rash and negligent act. It was held that as the person
was admittedly uneducated in matters of surgery, his undertaking to perform
the dangerous operation was not an act done in good faith, i.e. done with due
care and attention, although he had performed similar operations on previous
occasions.
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

GOOD FAITH, HOW FAR A DEFENCE.

 The plea of good faith,f once established, will be a good defence in the
following cases:
1) Act done in good faith pursuant to a judgment or order of Court S. 78
2) Act done by a person believing himself, in good faith, to be justified by
law in doing it S. 79
3) Act done in good faith for benefit of another : S. 92
4) Communication made in good faith Sec. 93
5) A person, believing himself in good faith to have a lawful right to
obstruct a private way over land or water obstructing it, does not commit
the offence of wrongful restraint: S. 339, Exception.

C) Act of Child
 A child can commit no wrong

(i) if he is below 7 years of age as he is at such age presumed to be not

endowed with a sufficient maturity of understanding to be able to distinguish
right from wrong, or

(ii) if he is above 7 and below 12 but too weak in intellect to judge what is
right or wrong.

 The principle of the law may be expressed in tabular form as follows:

 Section 82 says nothing is an offence which is done by a child under seven

years of age and Section 83 says nothing is an offence which is done by a
child above seven years of age and under twelve, who has not attained
HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

sufficient maturity of understanding to judge of the nature and consequences

of his conduct on that occasion.

 Law of exemption from criminal liability in the case of minors

 These two sections lay down a rule which owing to its origin in the civil law,
had long since become established in the criminal systems of all civilized
countries. In English Common Law, a child below seven years of age cannot
be guilty of any criminal offence whatever may be evidence as to its
possessing a guilty state of mind in the ordinary course of nature.

 A person of such age is absolutely incapable of distinguishing between right

and wrong. He is absolutely doli incapax. Indian law on this point is the
same. If a child is accused of an offence under the Code, proof of the fact
that he was at the time below 7 years of age is ipso facto an answer to the
prosecution.

 The circumstances of a case may disclose such a degree of malice as to

justify the maxim miltia supplet actatem (Malice supplied defect of years).

 The privilege of a child aged between 10 to 14, is absolute under English

law, while it is qualified in India. According to the English law an infant
between the age of ten and fourteen years is presumed to be doli incapax.

 But under this Code, if the accused is above seven years of age and under
twelve, the incapacity to commit an offence only arises when the child has
not attained sufficient maturity of understanding to judge the nature and
consequences of his conduct and such non-attainment would have
apparently, to be specially pleaded and pursued, like the incapacity of a
person who at the time of doing an act charged as an offence, was alleged to
have been of unsound mind whether really the child in question possesses
sufficient maturity of understanding is a matter to be inferred by the Court
from the facts and circumstances of the case.
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

D). Insanity
 The law relating to insanity is laid down under Section 84, I.P.C., which
runs as “Nothing is an offence which is done by a person who, at the time of
doing it, by reason of unsoundness of mind, is incapable of knowing the
nature of his act, or that he is doing what is either wrong or contrary to law”

 Insanity means and includes both mental derangement and imbecility.

Insanity is a defence to criminal responsibility. The basis therefore is that
such a person is not of sound mind is non compos mentis. That is to say, he
does not know the nature of the act he is doing or what is either wrong or
contrary to law.

 This section deals with a deficiency of will due to weak intellect, and lays
down the legal taste of responsibility in cases of alleged unsoundness of
mind. Insanity can be defence only when an accused is in such a State of
mind arising from the disease as to be incapable of deciding between the
right and wrong.

 Test of Insanity in Law:

 Unsoundness of mind non-compos mentis covers a wide range and is
synonymous with insanity, lunacy, madness, mental derangement, mental
disorder and mental aberration or alienation. The insane persons may be
divided into four kinds: —

 (i) a lunatic; (ii) an idiot; (iii) one non compos mentis by sickness, or (iv) by
drink:

 A lunatic and an idiot, may be permanently so, or they may be subject to

only temporary and occasional fits of malady. A person suffering from a
total alienation of the mind is called ‘insane’ or ‘mad’, the term ‘lunatic’
being reserved for one whose disorder is intermittent with lucid intervals.

 An idiot is one who is of non-sane memory from his birth of perpetual

infirmity, without lucid intervals. A person made non compos mentis by
illness is excused in criminal cases for such acts as are committed while
under the influence of his disorder.
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

 ‘Unsoundness of mind’ naturally impairs the cognitive faculties of the mind

and exempts a person from criminal responsibility. ‘Whether a person, who,
under an insane delusion as to the existing facts, commits an offence in
consequence thereof is, therefore, to be excused, depends upon the nature of
the delusion.

 If he is labouring under a partial delusion, and it is not in other respects

insane he must be considered in the same situation as to the responsibility as
if the facts, with respect to which the delusion exists, were real.

 If a person afflicted with insane delusion, in respect of one or more

particular subjects or persons, commits a crime, knowing that he was acting
contrary to law, but did the act complained of with a view, under the
influence of insane delusion, of redressing or revenging some supposed
grievance or injury or of producing some public benefit, he is nevertheless
punishable according to the nature of the crime committed.what

 Section 84 lays down the legal test of responsibility in cases of alleged

unsoundness of mind, and it is by that test, as distinguished from medical
test, that the criminality of an act is to be determined.

Test:
 There are various degrees of insanity known to medical men or psychiarists;
but law does not recognise all kinds of insanity. Legal insanity as
contemplated by Section 84 is that unsoundness of mind, in which a person
completely loses his cognitive faculties and is incapable of knowing the
nature of his act or that what he was doing was either wrong or contrary to
law.

 The facts were that after injuring a person with an axe, the accused wanted
to assault another person who snatched away the axe from the accused. The
accused then fled away. This conduct of the accused rules out that he did
not know the nature of the act; on the contrary it is shown that he
apprehended that those present would catch and punish him. In the
circumstances, the plea of insanity fails.1
 The test for exemption from conviction and punishment on the ground of
insanity is the legal test laid down in this section and not the medical test of
 HARSH RAMANI 2ND YEAR B.A.LL.B (HONS.)

insanity. On an analysis of Section 84, one gets three classes of legal

insanity: —

(1) A person is incapable of knowing the nature of the act, i.e., the physical
acts he is doing.

(2) A person is incapable of knowing that he is doing wrong.

(3) A person is incapable of knowing that what he is doing is contrary to

law.

Other important topics

a) unlawful assembly
b) Public servant
c) Sedition
d) Rioting
e) Affray
*for this topic you can refer K.D. GAUR, R&D*
NOTE: For revision purpose only. Contains solution of past paper questions. Students are advised
to refer complete syllabus. Prepared from K.D. GAUR or R&D or other sources.

ALL THE BEST.