IPC Units 1 To 11

SUMMARY ON INDIAN PENAL CODE
Krishna Murari Yadav, Assistant Professor, LC-1, FOL, DU
Units 1 to 11
4/1/2022
i
SUMMARY ON
INDIAN PENAL CODE
ii
First Edition ……. June 2020

iii
SUMMARY OF INDIAN PENAL CODE

[As amended by The Criminal Law (Amendment) Act, 2018]
by-
Krishna Murari Yadav

Assistant Professor
LC -1, Faculty of Law, University of Delhi, Delhi
(LL.B. – BHU, LL.M. – DU, UGC – JRF)
(Former Assistant Professor - Puducherry & Varanasi)
iv
DEDICATED TO MY MOTHER
v
FOREWORD
If you are reading this, that means you have something special. The Court is meant to
interpret law, Parliament meant to enact the law, Executive to execute the law, but without a good
teacher, it is not possible to mold good lawyers, judges, politicians, or bureaucrats.
I am mirthful to write in brief about Assistant Prof. Krishna Murari and his marvelous step
for writing this book. For a moment, I want to take you a few years back, when a lawyer we also
know him as the father of nation; Mohandas Karamchand Gandhi was assassinated, but still
today, we remember him because of his thoughts, ―You can kill a man but you can‘t kill a
thought‖. This is why I dazzled by Assistant Prof. Krishna Murari, he has given the most essential
essence of life i.e. ―thought‖.
The Indian Penal Code (IPC) is not just an Act it is a ―Code‖. IPC is the 45 th legislation
passed in the year of 1860. The code was drafted in 1860 on the recommendations of the first law
commission of India established in 1834 under the Charter Act of 1833 under the Chairmanship of
Lord Thomas Babington Macaulay. In the coming months, you will study Code of Criminal
Procedure (CrPC), Indian Evidence Act, etc. but the base will be always IPC (Substantive Law).
This book will not only help you to get through the semester exam but also help you to get
through many judicial examinations.
I was lucky enough to study IPC under Sir Krishna Murari, for me it was unbelievable that
I also got the opportunity to study Indian Evidence Act and CrPC under his guidance. Every
section was explained by him in such a beautiful and organized way that you will get it by heart in
the very moment if you are all ears.
This book not only contains the syllabus of Faculty of Law but also have previous year
semester questions and how to write their answers, if you think this is enough, it‘s inappropriate,
it also covers the previous year questions of judicial service examination, you will get guidance
for how to write there answers. I assure you that, it is nearly possible that you get a multi-
dimensional source in a single place. For Krishna Sir, every student is like his offspring and you
are going to study IPC with such a great thought, you should not take him, as granted.
Rome wasn‘t built in a day, so as trust, but have enough courage to trust your teachers one
more time and always one more time.
I feel blessed that I got a chance to pen my thoughts about this excellent book and hard
work of our esteemed faculty Asst. Prof. Krishna Murari Yadav, a great son, brother, husband,
father, and most loved teacher.
Once again, I congratulate him for his hard work on bringing such a great thought to
reality, change is the salt of life, ―Be the change you want to see in the world‖ – M.K. Gandhi.
Regards Sumit Kumar
LL. B. 3rd Year
2019-2022
Faculty of Law,
University of Delhi,
vivaank12@gmail.com
vi
Preface
As per Article 1 of Indian Constitution, India, that is Bharat, Union of 28 States and 8
Union Territories. To give LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all; FRATERNITY
assuring the dignity of the individual; the state must need a uniform and unbiased law, to impose
Rights, Liabilities, Duties, backed by Sanction.
To achieve such uniformity and unbiased law, many scholars contributed, what we see
today‘s Indian Jurisprudence. Only by the procedure established by law, Rights of individual can
be curtailed or partially restricted followed by imprimatur. Indian Penal Code (IPC), one of such
substantive law plays important role for curtailing or partially restrict the rights of the individual
whenever justice demands. Earlier IPC was not applicable in the territory of Jammu and Kashmir,
instead of IPC, Ranbir Penal Code was applicable. The Code came into force in Jammu and
Kashmir on 31 October 2019, by the Jammu and Kashmir Reorganisation Act, 2019, and replaced
the State‘s Ranbir Penal Code.
It may also be interesting to know that various sections of the IPC are controversial, the
Supreme Court overruled its judgement of Suresh Kumar Koushal v. Naz Foundation, which
criminalised same-sex relations (Section 377, IPC), in case Navtej Singh Johar v. Union of India.
Section 309 of the Indian Penal Code deals with unsuccessful suicides, whereby attempting to
commit suicide was punishable with imprisonment up to one year. The Government of India in
December 2014 decided to decriminalise attempts to commit suicide by dropping Section 309 of
the IPC from the statute book. But on other hand In an August 2015 ruling, the Rajasthan High
Court made the Jain practice of undertaking voluntary death by fasting at the end of a person's
life, known as Santhara, punishable under sections 306 and 309 of the IPC, later SC stayed the
decision of the High Court and lifted the ban on the practice.
Only by knowing the flaws and how the judiciary works, we can be able to amend the law
for better being of society.
To understand what it means to be a successful lawyer; a student must develop the
understanding to read the logic behind any legislation enacted by parliament and to correlate with
each other.
This book is the result of many months of facilitating, researching, hard work. It is
important to teach our students skills that are needed to shape future lawyers in all aspects. This
book places a clear emphasis on teaching skills first but also ensures that those skills are based on
rigorous and current research.
Contrary to what your friends and family might believe the minute you start law school;
nobody knows everything about the law. Whilst you are not expected to know everything, you are
expected to know how to find the information you need with current judgements. Legal research
is therefore key. Resources are increasingly electronic, so good computer skills are a real bonus.
The sections are divided in such an organized way manner you won‘t cope with any
difficulties in understanding the concept behind it.
vii
ACKNOWLEDGEMENT
I would like to pay my gratitude to a great scholar of Criminal Law, Prof. R.K. Murali Sir,
Faculty of Law, Banaras Hindu University. I have learned dedication and honesty from Late Prof.
D.K. Sharma Sir, Former Head & Dean, Faculty of Law BHU, Varanasi.
Special thanks to my guardian in legal field Prof. Chaturbhuj Nath Tewari Sir, Former
Head & Dean, Mahatma Gandhi Kashi Vidyapith, Varanasi, who has always accepted me with all
my flaws and weaknesses. I have learned from them that all the students are equal, and they must
not be discriminated. Thanks to Ravindra Ji, Additional Chief Judicial Magistrate, who has
always given his expert opinion in assisting me with practical knowledge of Court from time to
time. Raghvendra Kumar Chaudhary, Research Scholar, Faculty of Law, BHU, has been a source
of authentic information and has always shared authentic information. Thanks to Manoj
Chaurasiya who shared his practical experiences as a Public Prosecutor.
Over and above all, I owe my deep sense of gratitude to parents, brothers & sisters and
village members for inspiration, encouragement and co-operation during my study. Writing of this
book was not possible without the immense support of my wife and son. They have compromised
and have been deprived from my love and affection on several occasions. I bow my head with
respect in their feet. Thanks to Sharvan for all the support. Writing without monetary and
emotional support is not possible, Thanks to Santosh Bhaiya and Mr. Rana Navneet Roy,
Assistant Professor, HNLU, Raipur who have always supported me economically, physically and
psychologically.
This writing would not have been possible without the support of my students from Dr.
Bhim Rao Ambedkar Law College, Puducherry, Maharaja Balawant Singh P.G. College,
Gangapur, Varanasi and Faculty of Law, University of Delhi. Mentioning the name of all the
students is not possible. But some students played an important role and they must be mentioned.
Some among them are Ankit, Abhishek, Viresh, Vikash, Sachendra, Harsh, Aditya, Anand,
Shahbaz, Shivam, Ishu, Shivani, Kapil, Raja, Aakash, Nani, Dean Danial, Anshul, Kranti, Harsh,
Bhanu, Akhilesh, Bhadresh, Anurag, Aayush Kumar Jayaswal, etc. Students of Campus Law
Centre also supported in this mammoth task. Special thanks to Aditya Nath Sharma, Aanand
Kumar Vaishishta and Vishal Kumar Yadav. Thanks to Sushma Maurya and Palak Jain from LC-
II who helped in making corrections. I‘m very lucky that I got students of Section G (Session
2019 -2022) they have physically & mentally supported me in all the circumstances. They have
highly expressed their interest and have encouraged me in writing and corrections.
Special thanks to Sumit Kumar without whose technical support, making of chart, smart
art etc. were impossible. Thanks to Anant Sing who had corrected spelling and grammer.
Thanks to everyone who has directly or indirectly supported me in this Journey.

viii
CONTENTS
UNITS Name of Units Page

Numbers
UNIT 1 Principle of Mens Rea and Strict Liability
UNIT 2& 3 Sections 299 to Sections 304
UNIT 4 Homicide by Rash or Negligent Act not amounting to
Culpable Homicide
UNIT 5 Right of Private Defence [Sections 96 to 106]
UNIT 6 Kidnapping & Abduction
UNIT 7 Sexual Offences and Rape
UNIT 8 Joint Liability
UNIT 9 Attempt
UNIT 10 Theft, Extortion, Robbery & Dacoity
UNIT 11 Criminal Misaapropriation, Breach of Trust & Cheating
Objective Test
General Exception Sections 76 to 81
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TABLE OF CASES
Case Name
A Page No.
Abhayanand Mishra v. State of Bihar
Akhil Kishor Ram v. Emperor
Alister Anthony Pareira v. State of Maharashtra
Amar Singh v. State of Rajasthan
Amjad Khan v. State
Anda and Ors. v. The State of Rajasthan
Aruna R. Shanbaugh v.UOI
Asgarali Pradhania v. Emperor
Avtar Singh v. State of Punjab
B
Babu Lal v. State.
Bachan Singh v. State of Punjab
Baldeo Prasad Singh v. State
Barendra Kumar Ghosh v. King Emperor
Basdev v. The State of Pepsu
Bhakari v. State of U.P.
Bhupendra Singh Chavdasama v. State of Gujarat
Bilkis Yakub Rasool v. State of Gujarat and Others
Brend v. Wood
Buta Singh v. State of Punjab
C
Chenna agadeeswar and Anr. v. State of Andhra Pradesh
Cherubin Gregory v. State of Bihar
Common Cause (A Regd. Society) v. Union of India and Another
D
Dahyabhai v. State of Gujarat
Dashrath Paswan v. State of Bihar
Deelip Singh @ Deelip Kumar v. State of Bihar
Deepak Gulati v. State of Haryana.
Deo Narain v. State of U.P.
Dhania Daji v Emperor
Director Public Prosecution v. Beard
Durham v. United States
E
Eisenstadt v. Baird
Emperor v. Dhirajia
Emperor v. Vasudeo Balwant Gogte
x
Emporer v. M.S. Murthy

F
Fowler v. Padget
G
Ghapoo Yadav & Ors. v. State of M.P.
Gian Kaur v. State of Punjab
Gopal Naidu And Anr. v. King-Emperor
Gurdatta Mal v. State of U.P.
Gyarsibai w/o Jagannath v. The State
H
Hansa Singh v. State of Punjab
Harla v. State of Rajasthan
Heeralal v. State of Bihar
Hobbes v. Winchester Corporation
I
Independent Thought v. Union of India & Anr.
J
J.M. Desai v. State of Bombay
Jadunandan Singh v. Emperor
Jai Lal v. Delhi Administration
Jaikrishnadas Manohardas Desai (J.M. Desai) and Another v. State of
Bomaby
James Martin v. State of Kerala
Joginder Singh v. State of Punjab
Joseph Shine v. Union of India
Justice K.S. Puttaswami (Retd.) And Anr. v. UOI and Ors.
K N Mehra v. State of Rajasthan
K.M. Nanavati v. State of Maharashtra
Kanwar Singh v. Delhi Administration
Kapur Singh v. State of Pepsu
Kiran Bedi and Jinder Singh v. The Committee of Inquiry
Kishan v. State of M.P.
Lillu v. State of Haryana
M.B. Singh v. Manipur Administration
Mahaboob Shah v. Emperor
Mahadev Prasad v. State of Bengal
Malkiat Singh v. State of Punjab
Maruti Shri Pati Dubal v. State of Maharashtra
Mithu Singh v. State of Punjab
Mizaji and Anr. v. State of Uttar Pradesh
xi
Moti Singh and Anr. v. State of UP

Mouse‘s Case
Mukesh and Anr. v. State for NCT of Delhi
Munah Binti Ali v. Public Prosecuter
N
Nanak Chand v. The State of Punjab
Nathu Lal v. State of M.P.
National Legal Services Authority v. Union of India and others
Navtej Singh Johar v. Union of India
Naz Foundation v. Government of NCT of Delhi and Others
Niharendu Datt Majumdar v. Emperor
O
Om Prakash v. State of Punjab
Oyami Ayatu v. State of M.P.
P
P. Rathinam v. UOI
Palani Goundan v. Emperor
Pandurang v. State of Hyderabad
Pani Bhushan Beheru v. State of Orissa
Poonai Fattemah v. Emperor
Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Others
Pyare Lal Bhargava v. State of Rajasthan
Q
Q. v. Tolson
Queen v. Lakshmi Agradani
Queen-Empress v. Ramakka
R
R v. Daniel Mc Naughten
R v. Govinda
R v. M‘Naghten
R. v. Arnold
R. v. Blue
R. v. Dudley and Stephan
R. v. Hadfield
R. v. Prince
R. v. Shivpuri
R. v. Tolson
Ram Jas v. State of U.P.
Ranga Billa v. Union of India
xii
Ranjit D. Udeshi v. State of Maharashtra

Rattan Lal v. State of Punjab
Rawalpenta Venkalu v. State of Hyderabad
Re Thavamani Case
Reg v. Cruise
Reninger v. Fogossa
Rishi Deo Pandey v. State of U.P.
Rupan Deol Bajaj v. KPS Gill & KPS Gill v. State
S
S. K. Nair v. State of Punjab
S. Varadrajan v. State of Madras.
S.N. Hussain v. State of Andhra Pradesh
Sakshi v. Union of India
Salim Zia v. State of U.P.
Sekar v. Arumugham
Sheralli Wali Mohammed v. State of Guj.
Sherras v. De Rutzen
Shree Kantia v. State of Bombay
Shreekantiah Ramayya Munipalli v. The State of Bombay
Shrikant Anand Rao Bhosale v. State of Maharashtra
Sri Bhagwan S.S.V. V. Maharaj v. State of A.P.
State of A.P. v. R. Punnayya & Another
State of Haryana v. Krishan
State of Haryana v. Raja Ram
State of Karnataka v. Basavegowda
State of M.P. v. Ahmadullah
State of M.P. v. Narayan Singh
State of Maharashtra v. M.H. George
State of Maharashtra v. Mohammad Yakub
State of Orissa v. Bhagaban Barik
State of Orissa v. Ram Bahadur Thapa
State of Punjab v. Gurmit Singh
State of Punjab v. Major Singh
State of Punjab v. Nanak Chand
State of U.P v. Ram Swarup
State of U.P. v. Chottey Lal
State of West Bengal v. Shew Mangal Singh
State Tr. P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda
Sudhir Kumar Mukherjee v. State of West Bengal
Surain Singh v. The State of Punjab
xiii
Suresh and Another v. State of Uttar Pradesh

Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors
T
Tabu Chetia v. State of Assam
Thakorilal D Vadgama v. State of Gujarat
The Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl.
Tukaram v. State of Maharashtra
Tunda v. Rex
Uday v. State of Karnataka
Ulla Mahapatra v. King
V. Rewathi v. Union of India
Virsa Singh v. State of Punjab
Vishwanath v. State of U.P.
W. Kalyani v. State Tr.Insp. of Police & Anr
Yedla Srinivasa Rao v. State of A.P.
Yeshwant Rao v. State of M.P.
Yusuf Abdul Aziz v. The State of Bombay
Zahira Habibulla H. Shiekh & Anr. v. State of Gujarat and Ors.
CHAPTER 1
PRINCIPLE OF MENS REA AND STRICT LIABILITY
(1.1.) INTRODUCTION
Governor-General of India in Council appointed ―The Indian Law Commissioners‖ in 1834 to

recommend co mprehensive penal code1. The Commission consisted of –
1. Lord Sir Thomas James Babington Macaulay [President]

2. Macleod
3. Anderson
4. Millet.
The Report was submitted in 1837. It was revised several times. It was submitted to the
Legislative Council in 1856. Indian Penal Code was enacted after first revolt for independence.
Governor-General in Council assented on October 06, 1860. It came into force on January 01,
1862. Lord Sir Thomas James Babington Macaulay is known as father of Indian Penal Code,
1860. It extends to the whole of India.
Total sections and Chapters are 511 and XXIII respectively. Three Chapters were added later on.
These are
1. VA [Criminal Conspiracy] [Ins. by Act 8 of 1913]

2. IXA [Of Offences Relating to Elections] [Ins.by Act 39 of 1920]
3. XXA [Of Cruelty by Husband or Relatives of Husband] [. Ins. by Act 46 of 1983]
(1.2.) MEANING OF CRIME
Many jurists have defined crime. Some important defintions are -

Jurist Definition
Bentham ―Offences are whatever the legislature has prohibited for good or for bad
reasons ….according to the principles of utility, we give the name of
offence to every act which we think ought to be prohibited by reasons of
some evil which it produces or tends to produce.‖
Henry Maine In ancient time, penal law is not the criminal law, but it is wrong law.
Blackstone ―Crime is an act committed or omitted in violation of public law either
forbidding or commanding it.‖
1
K D Gaur, Textbook on Indian Penal Code 8 (LexisNexis, Gurgaon 16th Edn., 2016).
2
Blackstone ―Crime is violation of public right or duties due to the whole community,
considered as a community, in its social aggregate capacity.‖
Austin ―A wrong which is pursued at the discretion of the injured party and his
representative is a civil injury. A wrong which is pursued by the
sovereign or his subordinate is a crime.‖
Stephan ―Crime is an act forbidden by law and which is at the same time revolting
to the moral sentiments of the society.‖
Kenny ―Crimes are wrongs of which sanction is punitive and is no way remissible
by any private person, but is remissible by crown alone, if remissible at
all.‖ Here sanction means punishment and remissible means pardon by
crown.
Keeton ―A crime would seem to be any undesirable act which the State finds it
most convenient to correct by the institution of proceedings for the
infliction of a penalty, instead of leaving the remedy to the discretion of
some injured party.‖
Millar ―Crime is …to be commission or omission of an act which the law forbids
or commands under pain of a punishment to be imposed by the State by a
proceeding in its own name.‖
Supreme Court ―Crime is a revolt against the whole society and an attack on the
of India civilization of the day‖. Mrs. Harpreet Kaur Harvinder Singh Bedi v. State
of Maharashtra & Anr.2
(1.3.) ELEMENTS OF OFFENCE
There are four elements of crime namely; (1) Human being (2) Mens Rea / Guilty Mind (Guilty
Mind prohibited by law) (3) Actus reus / Prohibited act, (Act prohibited by law) and (4) Injury to
society or human being.3
2
Available at: https://main.sci.gov.in/judgment/judis/12526.pdf (Visited on February 01, 2021).
3
Even four ingredients are present and act is coming under Section 95, that act will not be punished. Section 95 IPC
creates general exception. It means even any act has been done with intention or knowledge, but act is of trifiling
nature, the person will not be punished. His trifiling act is protected under Section 95, IPC.
Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

3
Elements of
Offence
Four
Elements
Mens Rea / Actus reus / Injury to society

Human Being
Guilty Mind Prohibited act or human being
(1.3.1.) Human being

Only Human being can commit crime under IPC. In European Countries animals were also
punished for committing crime during medieval era. In Hindu criminal jurisprudence did not
provide for trail and punishment of animals or inanimate objects. Only a human being under a
legal obligation and capable of being punished can be the proper subject of criminal law. For the
commission of offence activities of human being can be divided into two parts –
(a) offences committed by him directly. Like conspiracy, abetment, attempt and commission
of rape, murder, bigamy etc. These offences need physical body. On this point there is no
controversy. Everyone accepts that these offences can be committed by human body under
IPC.
(b) offences committed by company, firm etc. formed by human being. On this point there are
some controversies. These controversies can be solved with the help of Section 11 IPC,
Anath Bandhu v. Corporation of Calcutta 4 and Iridium India Telecom Ltd v. Motorola
Incorporated & Ors.5
A company has a distinct legal personality. It can sue or be sued, can own and sell assets, or commit
an offence that is of civil or criminal in nature. This notion had been changed through many
decisions.6 Section 11, IPC defines ―Person‖. It says ‗the word ―person‖ includes any Company or
Association or body of persons, whether incorporated or not‘. In Anath Bandhu v. Corporation of
Calcutta (1952) question was that whether ‗Limited Company could be prosecuted under Indian
Criminal Law‘. Section 11 of IPC, General Clauses Act and Bengal General Clauses Act was also
discussed. It was concluded that even limited company could be prosecuted.
Hon‘ble Justice Chunder observed, ―It is quite clear that if there is anything in the definition or
context of a particular section in the Statute which will prevent the application of the section to a
4
Available at: https://indiankanoon.org/doc/1111196/ (Visited on January 12, 2022). AIR 1952 Cal 759.
5
Supreme Court, Date of Judgment: October 20, 2010. Available at:
https://main.sci.gov.in/judgment/judis/37034.pdf ( Visited on January 12, 2022).
6
Criminal liability catches up with companies, The Economic Times, December 03, 2011. Available at:
https://economictimes.indiatimes.com/opinion/et-commentary/criminal-liability-catches-up-with-
companies/articleshow/10964731.cms?from=mdr (Visited on January 14, 2022).

4
limited company certainly a limited company cannot be proceeded against. For example, rape
cannot be committed by a limited company. There are heaps of other sections in which it will be
physically impossible by a limited company to commit the offences. Then again it is quite clear that
a limited company cannot generally be tried when mens rea is essential. Again it cannot be tried
where the only punishment for the offence is imprisonment because it is not possible to send a
limited company to prison by way of a sentence. If we leave these classes of cases aside, it is not
clear why under the Indian law a, limited liability company cannot be proceeded against‖.7 Ratio of
King v. Daily Mirror Newspapers Ltd.8 was rejected and and it was said that ‗Indian Law‘ is
different from ‗English Law‘. So Limited Company can be prosecuted for those offences which are
punishable only with fine.
Standard Chartered Bank v. Directorate of Enforcement9

No immunity to companies from prosecution merely because it is in respect of offences for
which punishment of imprisonment is mandatory - In such cases in lieu of imprisonment fine can
be imposed - Also word ‗person‘ in S.11, Penal Code and S. 3(42), General Clauses Act includes
any company or association or body of persons.10
Iridium India Telecom Ltd v. Motorola Incorporated & Ors.11
(Principle of ‗alter ego‘)
The complaint pertained to allegations of cheating against company under Section 420 read with
Section 120B of the Indian Penal Code, 1860. In this case Supreme Court observed, ―….a
corporation is virtually in the same position as any individual and may be convicted of common
law as well as statutory offences including those requiring mens rea. The criminal liability of a
corporation would arise when an offence is committed in relation to the business of the
corporation by a person or body of persons in control of its affairs. In such circumstances, it
would be necessary to ascertain that the degree and control of the person or body of persons is so
intense that a corporation may be said to think and act through the person or the body of persons.
The position of law on this issue in Canada is almost the same. Mens rea is attributed to
corporations on the principle of ‗alter ego‘12 & 13 of the company‖.
Supreme Court also observed, ―…virtually in all jurisdictions across the world governed by the
rule of law, the companies and corporate houses can no longer claim immunity from criminal
7
Anath Bandhu v. Corporation of Calcutta, AIR 1952 Cal 759.
8
(1922) 2 K. B. 530.
9
AIR 2005 SC 2622.
10
Available at: https://www.aironline.in/legal-judgements/2005+%283%29+CTC+39 (Visited on January 12, 2022).
11
Date of Judgment: October 20, 2010. Available at: https://main.sci.gov.in/judgment/judis/37034.pdf ( Visited on
January 12, 2022).
12
International Aircraft Trading Co. v. Manufacturers Trust Co., 297 N. Y. 285, - N. E. - (1948).
13
India: Corporate Criminal Liability, by Kiran Preet Kaur. Available at:
https://www.mondaq.com/india/crime/882614/corporate-criminal-liability# - Under this doctrine of Alter Ego, it is
described as someone's personality which is not seen by others. The owners and persons who manage the company
are considered as the Alter Ego of the company. The directors and other persons who manage the affairs of the
company can be held liable for the acts committed by or on the behalf of the company under this doctrine since the
corporation has no mind, body or soul so the people are the directing mind and will.

5
prosecution on the ground that they are incapable of possessing the necessary mens rea for the
commission of criminal offences. The legal position in England and the United States has now
crystallized to leave no manner of doubt that a corporation would be liable for crimes of intent‖.
CBI v. M/s. Blue Sky Tie-up Pvt. Ltd. & Others

(2011)
CBI registered case for offences under Sections 120B/409/477A of the Indian Penal Code and
under Section 13(2) read with 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. In this
case, the company was facing criminal prosecution, but it moved the Calcutta high court for
setting aside the prosecution. The High Court quashed the prosecution on the ground that since
the company is only a juristic person it cannot be imprisoned and therefore no punishment can be
imposed on a company. The CBI appealed to the Supreme Court. 14 Supreme Court quashed the
decision of Calcutta High Court on the basis of ratio of Standard Chartered Bank v. Directorate
of Enforcement (2005). The Court concluded that the companies are liable to be prosecuted for
criminal offences and fines may be imposed on the companies.
(1.3.2.) Mens Rea

Mens Rea means guilty mind or an evil/ mala-fide intention to commit illegal act. It can be
identified as intention, knowledge, reason to believe, negligence, recklessness etc.
 Mens Rea means guilty mind. It is denoted with intention, knowledge, negligence,
rashness, wrongful gain or wrongful loss, voluntarily or reason to believe, mala fides etc.
 Rule - Actus non facit reum, nisi mens sit rea means the act itself does not make a man
guilty, unless the mind is also guilty. Section 299, Section 300 and Section 378 are
examples of this maxim. There are some important cases are – Fowler v. Padget, R. v.
Tolson, Sherras v. De Rutzen, Brend v. Wood and Nathu Lal v. State of M.P.
 Exceptions - There are certain cases in which human being can be punished even without
guilty mind. Such types of offences come under the principle of strict liability. For
examples sedition,15 kidnapping,16 bigamy,17 economic offences18 etc. Important cases
are - R. v. Prince, Hobbes v. Winchester Corporation, The Indo-China Steam Navigation
Co. Ltd. v. Jasjit Singh, Addl. and State of Maharashtra v. M.H.George.
(1.3.3.) Actus reus / Prohibited act

Actus reus means physical condition of penal liability. Actus Reus is defined as a result of
voluntary human conduct which law prohibits. It is the doing of some act by the person to be
held liable an ‗act‘ is a willed movement of body.
14
M J Antony, ―Fine, not jail, for companies that break law: Supreme Court‖ Business Standard January 20, 2013
(Visited on January 14, 2022). Available at: https://www.business-standard.com/article/economy-policy/fine-not-
jail-for-companies-that-break-law-supreme-court-111071100105_1.html (Visited on January 14, 2022).
15
Section 121, IPC, 1860.
16
Section 361, IPC
17
Section 494.
18
M.H. George Case.

6
 According to Kenny ‗actus reus‘ is such result of human conduct as the law seeks to
prevent.
 Professor Glanville Williams has given wider meaning of actus reus. According to him
actus reus means the whole definition of crime with the exception of mental elements.
 Actus reus includes negative as well as positive elements.
 According to section 32 of IPC ‗act‘ includes omission. In the case of Suresh v. State of
U.P. (2001) Supreme Court held that either overt or covert act is sufficient.
 According to section 33 act also includes series of acts. Husband locked his wife in a
room. He and his family did not provide food to her. She escaped and reached to hospital.
He was prosecuted for attempt to murder. Supreme Court held that act includes omission
and series of acts. In this case Supreme Court interepreted Section 33, IPC also.19
 Mens rea itself is not sufficient to constitute offence. Guilty mind cannot be identified
unless some overt or covert act is done.
(1.3.4.) Injury
According to section 44 of IPC the word ―injury‖ denotes any harm whatever illegally caused to
any person,
 in body,
 mind,
 reputation or
 property.
In certain situation person is punished even though he had not committed actual injury to another
person. These are the cases of inchoate crime. These are -
 abetment,
 conspiracy and
 attempt.
(1.4.) ACTUS NON FACIT REUM, NISI MENS SIT REA
Actus non facit reum, nisi mens sit rea means the act itself does not make a man guilty, unless
the mind is also guilty. This theory was developed by Common Law Courts. This is ‗Common
Law Doctrine‘. First time concept of Mens Rea was discussed by Justice Coke20. In case of
Fowler v. Padget (1798) Lord Kenyon held that actus reus and mens rea both are essentials for
commission of crime. Section 95 IPC creates exception. It means even any act has been done
with intention or knowledge, but act is of trifling nature, the person will not be punished. His
trifling act is protected under Section 95, IPC.
19
Om Prakash v. State of Punjab, date of judgment: April 24, 1961.
20
Third Institute

7
This maxim denotes that guilty mind and prohibited act both are part and parcel of crime. It is
rule that without guilty mind, crime cannot be committed. There are also certain exceptions of
this maxim which are put in the category of ‗Principle of Strict Liability‘.
Actus non facit reum, nisi mens sit rea
Rule - Exceptions
Two elements There are certain cases in which there
is no need of guilty mind
Prohibited Act Guilty Mind
If maxim applies [Benefit for accused] – In case of application of this maxim, accused person
would be benefited and there would be utmost probability to win the case because prosecutor
would be bound to prove prohibited act and guilty mind. Proving the guilty mind for prosecution
is difficult. For example in case of theft, culpable homicide etc. prosecuter is bound to prove
guilty mind also.
If maxim does not apply [Benefit for victim/prosecutor] - It would be very easy for prosecutor to
win the case because he would be bound to prove only one condition i.e. prohibited act. Proving
of guilty mind is always very difficult. In such cases there would be a lot of harm for accused for
example offences coming under ‗Principle of Strict Liability‘. Few example of this point is rape,
waging war etc.
(1.5.) Principle of Strict Liability
Sometimes offence is constituted even without guilty mind. Such offences come under ‗Principle
of Strict Liability‘. These offences are also known as exceptions of Actus non facit reum, nisi
mens sit rea. Judges apply this principle only when statutory provisions are silent about mens rea
of accused. One of the first cases in which a statute was interpreted as imposing strict criminal
liability was Regina v. Woodrow21.22 Application and non-application of this maxim depends
upon sound logic and reasonable discretion of judges.
How to decide which offence should come under Strict Liability?
If any statute is silent about guilty mind of the accused, question arises whether person should be
convicted even without guilty mind. Any judge can‘t put any offence arbitrarily in the category
21
15 M. & W. 404, 153 Eng. Rep. 907 (1846).
22
Richard A. Wasserstrom, ‗Strict Liability in the Criminal Law‘ 731, Stanford Law Review , Vol. 12, No. 4 (Jul.,
1960).

8
of strict liability. Sound rule had been established by Courts to decide whether any offence
should come under strict liability or not. But still there are many cases in which judges have
different opinion. Enacted law does not say which offence would come under strict liability.
There are some cases in which method to decide strict liability had mentioned -
 In Sherras v. De Rutzen23 (1895) Justice Wright observed, ―There is a presumption that
mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential
ingredient in every offence; but that presumption is liable to be displaced either by the
words of the statute creating the offence or by the subject-matter with which it deals, and
both must be considered.‖
 In Brend v. Wood (1946), Justice Goddard, ―The general rule applicable to criminal case
is actus non facit reum, nisi mens sit rea…It is of the utmost importance for the
protection of the liberty of the subject that a court should always bear in mind that, unless
the statute, either clearly or by necessary implication rules out mens rea as a constituent
part of a crime ….‖.
 ―A statutory crime may or may not contain an express definition of the necessary state of
mind. A statute may require a specific intention, malice, knowledge, wilfulness or
recklessness. On the other hand, it may be silent as to any requirement of mens rea, and
in such a case in order to determine whether or not mens rea is an essential element of the
offence, it is necessary to look at the objects and terms of the statute‖.24
 In M.H. George Case Supreme Court observed, ―Mens rea by necessary implication can
be excluded from a statute only where it is absolutely clear that the implementation of the
object of a statute would otherwise be defeated and its exclusion enables those put under
strict liability by their act or omission to assist the promotion of the law‖.25
From the above discussion, it becomes clear that if law is silent, requirement of mens rea can be
excluded to achieve object and implication of the Act. There are few offences regarding which
arguments have been done whether these offences should come under ‗Principle of Strict
Liability‘. These offences are following -
(1) Waging war26 (2) Sedition27 (3) Selling of obscene books28 (4) Kidnapping29 (5) Sexual
Harassment30 (6) Rape (7) Bigamy31 (8) Offences under FERA (Foreign Exchange and
Regulation Act), 194732 (9) Offences under Essential Commodities Act, 195533 (10) Public
Health (11) Sea Customs Act.34
23
(1895) 1QB 918
24
Halsbury‘s Laws of England, 3rd edn. Vol. 10, in para, 508, at p. 273.
25
State of Maharashtra v. M.H. George
26
Section 121 of IPC
27
Section 124A, IPC, 1860.
28
Ranjit D. Udeshi v. State of Maharashtra (SC 1964).
29
R. v. Prince (1875), Section 361 and 362 of IPC.
30
Section 354A of IPC.
31
Section 494 of IPC. In the Case of R. v. Tolson British Court did not apply strict liability. But we are not bound by
decision of that Court. Application of it depends upon facts and circumstances of the case.
32
State of Maharashtra v. M.H. George (SC 1964)

9
(1.5.1.) Waging War

Section 121, IPC provides, whoever wages war against the Government of India, or attempts to
wage such war, or abets the waging of such war, shall be punished with death, or imprisonment
for life and shall also be liable to fine.
Object of Section 121 is to protect integrity of nation. Waging war affects sovereignty and
integrity of nation. Law is silent on the point of mens rea of accused. In such offence the maxim
should not be applied and accused must be convicted even without guilty mind. It is necessary to
fulfill object of the Section.
(1.5.2.) Sedition
Section 124A, IPC provides, ―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.
 Argument in favour of strict Liability - Sedition is also suitable case for application of
strict liability to protect integrity of nation.
 Argument against strict Liability – Sedition law is threat to Indian Democracy. It is
handy tool to suppress political rivals and voice of public & honest journalist. Hon‘ble
Chief Justice of India Mr. N.V. Ramana, asked why a colonial law used against Mr.
Mahatma Gandhi and Mr. Bal Gangadhar Tilak continued to survive in the law book after
75 years of Independence. He criticized this law. There is misuse of power by executive
agencies.35 The CJI said the sweeping powers of Section 124A gives even a village police
officer carte blanche to trample on the right to liberty and free speech of ordinary
citizens.36
Many persons protesting against CAA was charged for sedition on flimsy ground.
Sedition is an offence which existed in our Indian Penal Code (IPC) before we got
Independence because the colonial master wished to penalise anybody who was trying to
overthrow the state.37 The Congress party manifesto for the 2019 general election
promised to do away with sedition. Arrest of honest journalist Vinod Dua for sedition
33
In the case of Nathu Lal v. State of M.P. (1965)Supreme Court presumed presence of mens rea. To override this
judgment Essential Commodities Act, 1955 were amended in 1967. After this amendment State of M.P. v. Narayan
Singh (1989) were decided and Supreme Court did not apply the maxim because law was very clear.
34
Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs, Calcutta (SC 1964)
35
Krishnadas Rajagopal, ‗Why do you need the ‗colonial law‘ of sedition after 75 years of Independence, CJI asks
govt.‘ The Hindu, July 15, 2021. Available at: https://www.thehindu.com/news/national/is-this-law-necessary-sc-
seeks-centres-response-on-pleas-challening-sedition-law/article35336402.ece (Visited on January 17, 2022).
36
Ibid.
37
Jayant Sriram, Should the sedition law be scrapped? The Hindu, March 06, 2020 . Available at:
https://www.thehindu.com/opinion/op-ed/should-the-sedition-law-be-scrapped/article30993146.ece (Visited on
January 17, 2022).

10
charge clearly shows that political parties are misusing this law. Supreme Court quashed
charges against him.38
My Conclusion – Principle of strict liability should not be applied in this case. With better
argument, your conclusion may be different.
(1.5.3.) Sale, etc., of obscene books

Section 292, IPC deals sale, etc., of obscene books, etc. In the case of Ranjit D.Udeshi v. State of
Maharashtra39 (August 19, 1964) Hon‘ble Supreme Court convicted seller under section 292 for
selling ‗Lady Chatterley‘s Lover‘ book, although he had no knowledge of this book. The Court
held that in section 292 of IPC unlike several other sections did not contain the words
knowingly, or negligently etc. ‗Principle of Strict Liability‘ was applied.
(1.5.4.) Sexual Harassment

‗Sexual Harassment‘ has been provided under section 354A which was inserted by Criminal
Law (Amendment) Act, 2013. In this section nothing has been mentioned about guilty mind of
accused. So in this case principle of strict liability will be applicable. Section 354A deals sexual
harassment. Application of strict liability is sine qua non to fulfill the objects of Section 354A,
IPC.
(1.5.5.) Kidnapping from lawful guardianship

Section 361 IPC deals kidnapping from lawful guardianship. Mental condition of accused is
immaterial. Whether accused is doing in good faith or not is wholly irrelevant.
In the case of Regina (R.) v. Prince40 (1875) Justice Blackburn said that section 55 of the
Offences Against the Persons Act, 1861 had not mentioned about mens rea. He denied applying
the maxim Actus non facit reum, nisi mens sit rea and held that the provision did not require
guilty intention or knowledge so the Court could not insert requirement of intention or
knowledge only on the basis of maxim. So, Prince was convicted even without guilty mind.
Principle of strict liability was followed.
(1.5.6.)) Rape
Section 375 defines rape. There are two parts of definition of rape namely;
(a) Prohibited act committed by accused ( Section 375 (a),(b),(c) and (d), and
(b) mental condition of victim rather than accused (Section 375, Firstly to seventhly).
Rape is more heinous than murder. In State of Punjab v. Gurmit Singh & Ors. 41 Hon‘ble Justice
Anand observed, ―….a rapist not only violates the victim‘s privacy and personal integrity, but
inevitably causes serious psychological as well as physical harm in the process. Rape is not
38
Vinod Dua v. Union of India and Another, Supreme Court, Date of Judgment: June 03, 2021. Available at:
https://main.sci.gov.in/supremecourt/2020/12755/12755_2020_33_1501_28058_Judgement_03-Jun-2021.pdf
(Visited on January 17, 2022). In this Case Supreme Court upheld the constitutional validity of Section 124A, but at
the same time recognized right of freedom of speech and expression.
39
AIR 1965 SC 881.
40
13 Cox Crim. Cas. 138.
41
Date of Judgment: January 16, 1996.
Available at: https://main.sci.gov.in/judgment/judis/16186.pdf (Visited on April 01, 2021).

11
merely a physical assault. It is often destructive of the whole personality of the victim. A
murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless
female.‖
Section 375 is silent on the point of mental condition of accused. So in such cases accused must
be convicted even without guilty mind.
(1.5.7.) Bigamy
Section 494 of IPC, says whoever, having a husband or wife living, marries in any case in which
such marriage is void by reason of its taking place during the life of such husband or wife, shall
be punished with imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine. There are two exceptions of this section. But there are few
English Cases, when women were not convicted because she had married after full inquiry with
family members of her husband. Everyone told that he had died. She was not convicted for
bigamy.42
 Argument in favour – Bigamy must come under strict liability. This section was
enacted to protect family institution.
 Argument against – Marriage is solemnized for enjoyment of life and maintain peace in
society. When the law was enacted in 1860, there were shortage of developed technology
and communication method. At that time there were no equal rights and opportunities for
development. We are living in Constitutional era. Everyone has right to choose his/her
life partner. One spouse should not be compelled to wait for other for seven years.
He/she should be allowed if he or she gets reasonable information that other spouse will
not return within reasonable time. If he/she is getting marriage in good faith, he/she
should not be convicted. R.v. Tolson case also supports this argument.
My Conclusion – In case of bigamy, person must not be convicted under strict liability.
He/she must be convicted by applying Actus non facit reum, nisi mens sit rea.
(1.5.8.) Economic offences

Economic offences affect not only development of nation and life of citizens but also integrity
and sovereignty of nation. In the case of State of Maharashtra v. M. H. George (1964) majority
opinion of Supreme Court observed, ―The Foreign Exchange Regulation Act, 1947 is designed to
safeguard and conserv foreign exchange which is essential to the economic life of a developing
country. The provisions have therefore to be stringent and so framed as to prevent unauthorized
and unregulated transactions which might upset the scheme underlying the controls; and in a
larger context, the penal provisions are aimed at eliminating smuggling which is a concomitant
of controls over the free movement of goods or currencies.‖ The Court further said that the very
object and purpose of the Act and its effectiveness as an instrument for the prevention of
smuggling would be entirely frustrated if a condition of mens rea were to be read into the plain
42
R. v. Tolson

12
reading of the enactment. In this case ―Principle of strict liability was applied and accused was
convicted.
(1.5.9.) Essential Commodities Act, 1955

Essential Commodities Act, 1955 were amended in 1967 to nullify the judgment of Nathulal v.
State of Madhya Pradesh (1965). The words used in section 7 (1) are ―if any person contravenes
whether knowingly, intentionally or otherwise any Order made under section 3‖. The section is
comprehensively worded so that it takes within its fold not only contraventions done knowingly
or intentionally but even otherwise, i.e., done unintentionally. Principle of strict liability was
applied in the case of State of M.P. v. Narayan Singh (July 25, 1989).
(1.5.10.) Public Health

In Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Others43 (1973 ) Supreme Court said
that it is trite law (Trite law means laws that are obvious or common knowledge) that in food
offences strict liability is the rule not merely under the Indian Laws but the entire world. Nothing
more than the actus reus is needed where, regulation of private activity in vulnerable areas like
public health is intended. Social defence reasonably overpowers individual freedom to injure, in
special situations of strict liability. Section 7 of Prevention of Food Adulteration Act, 1954 casts
an absolute obligation regardless of scienter, bad faith and mens rea. If you have sold any article
of food contrary to law, you are guilty. The law denies the right of a dealer to rob the health of a
supari consumer.
Spreading Covid 19 is serious issue for public health and economy of nation. There is no specific
law to deal this matter. This matter is being dealt by general law. If any law is enacted to deal
this, and law is silent on mens rea, that law must be interpreted strictly for Covid containment
zones. If someone is spreading Covid 19 even unknowingly, he or she must be convicted even
without mens rea. But at the same time, few categories of persons must be excluded from
wearing compulsory mask and in their case strict liability should not be applied –
 Sick person (On the prescription of doctors)
 Small boy
 Persons who are not coming in containment zones,
 COVID warriors should not be compelled to wear mask in 24 hours.
American Jurisprudence
Jurisprudence of application of strict liability in adulterated food has been explained in American
Jurisprudence (2d, Vol. 35, p. 864) which are following ―The distribution of impure or
adulterated food for consumption is an act perilous to human life and health, hence, a dangerous
act, and cannot be made innocent and harmless by the want of knowledge or by the good faith of
the seller; it is the act itself, not the intent, that determines the guilt, and the actual harm to the
public is the same in one case as in the other. Thus, the seller of food is under the duty of
43
Date of Judgment: October 31, 1973.

13
ascertaining at his peril whether the article of food conforms to the standard fixed by statute or
ordinance, unless such statutes or ordinances, expressly or by implication, make intent an
element of the offence.‖
(1.5.11) Sea Customs Act
In Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs,
Calcutta44 person of strict liability was applied.
(1.5.12) Criticism
To inflict substantial punishment upon one who is morally entirely innocent, who caused injury
through reasonable mistake or pure accident, would so outrage the feelings of the community as
to nullify its own enforcement.45 It is against Anglo-American, and, indeed, any civilized
jurisprudence.46
(1.5.13) Suggestion
If law is silent regarding mens rea, person must be convicted under strict liability only in those
cases which are necessary to protect sovereignty and integrity of nation, economic condition of
country, health & education of persons and integrity and dignity of women and suppressed class.
In case of law related to family matters, strict liability should not be applied.
(1.6.) SCHOOLS OF MENS REA
There are two schools regarding interpretation of statutes in context of mens rea. These Schools
shall be applicable only when statutory provisions are silent about mens rea.
These Schools are
(1) Presumption of Existence of Mens Rea, and

(2) Presumption of Absence of Mens Rea.
Both presumptions are rebuttable.
44
AIR 1964 SC 1140.
45
Richard A. Wasserstrom, ‗Strict Liability in the Criminal Law‘ 731, Stanford Law Review , Vol. 12, No. 4 (Jul.,
1960).
46
Ibid.

14
Statutes
How to interpret
statute?
Statute is cleary talks about Statute is silent. For example

mens rea. For example Sections Sections 121, 375, 494.
299, 300, 378
How to
interpret such
provisions?
Presumption of Presumption of
existence of absence of
Mens Rea Mens Rea
(1.6.1.) Presumption of existence of Mens Rea

In every Statute mens rea should be treated as part of crime unless contrary is shown. Existence
of Mens Rea is presumed.
 In case of Q. v. Tolson court acquitted lady on the ground of her innocent. She
got marriage after full inquiry. But the Court also accepted that by statute mens
rea may be excluded.
 This theory was led by Justice Wright in case of Sherras v. De Rutzen (1895). In
this case Justice Wright said ―In every statute mens rea is to be implied unless
contrary is shown‖.
 In case of Brend v. Wood (1946), Justice Goddard, ―The general rule applicable
to criminal case is actus non facit reum, nisi mens sit rea…It is of the utmost
importance for the protection of the liberty of the subject that a court should
always bear in mind that, unless the statute, either clearly or by necessary
implication rules out mens rea as a constituent part of a crime, a defendant
should not be found guilty of an offence against the criminal law unless he has got
a guilty mind‖. Principle of mens rea was revived by Justice Goddard.
 In the case of Nathu Lal v. State of M.P.47 (1965) Supreme Court acquitted the
accused on the basis of absence of mens rea.
Rebuttal of presumption
In Halsbury‘s Laws of England, 3rd Edn., Vol. 10, in para 508, at p. 273, the following
passage appears: A statutory crime may or may not contain an express definition of the
47
This case was decided by Supreme Court on March 22, 1965.

15
necessary state of mind. A statute may require a specific intention, malice, knowledge,
willfulness, or recklessness.
On the other hand, it may be silent as to any requirement of mens rea, and in such a case
in order to determine whether or not mens rea, is an essential element of the offence it is
necessary to look at the objects and terms of the statute.
Archbold in his book on ‗Criminal Pleading, Evidence and Practice, says ―There is a
presumption that mens rea, is an essential ingredient in a statutory offence, but this
presumption is liable to be displaced either by the words of the statute creating the
offence or by the subject matter with which it deals.
In the case of Brend v. Wood Justice Goddard said that this presumption can be rebutted
by statute either clearly or by necessary implication.
Cases related to Presumption of existence of Mens Rea

There are following leading cases related to presumption of existence of Mens Rea -
S. No. Name of Cases Justices Years
1 Fowler v. Padget Lord Kenyon 1798
2 R. v. Tolson Justice Wills 1889
3 Sherras v. De Rutzen Justice Wright 1895
4 Brend v. Wood Justice Goddard 1946
5 Nathu Lal v. State of M.P. Justice Subba Rao 1965
(1.6.2.) Presumption of absence of Mens Rea

According to second School, statute must be interpreted in absence of mens rea unless
requirement of mens rea has been specifically mentioned. On the basis of this theory Justice
Blackburn decided the R.v. Prince (1875) and he convicted the accused who had no guilty mind.
Accused believed that the girl was 18 year while real age of girl was 14 year. At that time taking
of girl below the age of 16 years out of keeping of lawful guardian was crime. Appearance of
Girl was age of 18 years. Court denied to accept Actus non facit reum, nisi mens sit rea
(Common Law Doctrine). This theory was led by Justice Kennedy in Hobbes v. Winchester
Corporation (1910). In case Ranjit D.Udeshi v. State of Maharashtra (1964) books seller was
punished under section 292 of IPC.
In the case of State of Maharashtra v. M.H.George48 (1964) Supreme Court convicted the
accused. Justice K.Subba Rao delivered minority opinion.
Cases related to Presumption of absence of Mens Rea
There are following leading cases related to presumption of absence of Mens Rea
S. N. Name of Case Hon‘ble Justice Year

1 R. v. Prince Justice Blackburn 1875
48
This case was decided by Supreme Court on August 24, 1964.

16
2 Hobbes v. Winchester Corporation Kennedy 1910

3 The Indo-China Steam Navigation Co. Ltd. Chief Justice Feb. 3, 1964)
v. Jasjit Singh, Addl. Gajendragadkar
(Constitutional Bench
4 Ranjit D.Udeshi v. State of Maharashtra Hidayatullah Aug. 19, 1964
(Constitutional Bench)
5 State of Maharashtra v. M.H.George K. Ayyangar Aug. 24, 1964
(Full Bench)
(1.7.) INTENTION, KNOWLEDGE, MOTIVE, NEGLIGENCE & RASHNESS
Intention
Intention is the desire and awarness of the consequences. There are two elements of intention
namely:
(1) Desire of consequence, and
(2) Awareness of consequences.
Intention
Two elements
Desire of Awarenss of
consequence consequences
There is no situation when desire is present, and foresight/awareness is absent. Reason of this is
that judgment of courts. In Basdev v. The State of Pepsu, Supreme Court said, ―knowledge is an
awareness of the consequences of the act.‖49 In Emperor v. Mt. Dhirajia, Allahabad High Court
observed, ―Some degree of knowledge must be attributed to every sane person‖.50 Insane person
can‘t form desire.
Knowledge
There is only one element of knowledge namely; awareness of consequences. In knowledge
desire of consequences is missing. It is presumed that every sound person has knowledge.
49
Basdev v. The State of Pepsu ( Date of Judgment: April 17, 1956 S. C.).
Available at: https://indiankanoon.org/doc/504992/ (Visited on January 15, 2021).
50
Emperor v. Mt. Dhirajia (Date of Judgment: June 04, 1940, Allahabad High Court).

17
Knowledge
One element
Awareness of consequences
 Basdev v. The State of Pepsu - Supreme Court said, ―knowledge is an awareness of the
consequences of the act.‖ 51
 Alister Anthony Pareira v. State of Maharashtra52 - Supreme Court observed, ―
Knowledge is awareness on the part of the person concerned of the consequences of his
act of omission or commission indicating his state of mind‖.
 Emperor v. Mt. Dhirajia - Allahabad High Court observed, ―Some degree of knowledge
must be attributed to every sane person‖.53 Insane person can‘t form desire.
Relation between Intention and Knowledge
Both are part of mens rea. If offence is committed either with intention or knowledge, person
will be convicted.54 If an act is done either with intention or knowledge, he can‘t get benefit of
section 80, IPC. But are are following differences between both –
Ground Intention Knowledge
Definition Intention is desire and awareness Knowledg is awareness of
of consequences. consequences.
Gravity (In R. If offence is committed with If offence is committed with
Punnayya Case, intention, punishment will be knowledge, punishment will be less
Hon‘ble Justice more severe. For example if severe. For example if culpable
Sarkaria divided culpable homicide is committed homicide is committed with
culpable homicide intention, person will be punished knowledge person will be punished
on the gravity of under Section 304 Part I for under Section 304 Part II for which
mens rea i.e. which maximum punishment is maximum punishment is ten years.
intention and imprisonment for life.
knowledge).
General If act is done with intention, If act is done even with knowledge,
Exceptions person can‘t take benefit of some person can get benefit of some
general exceptions. For example, general exceptions. For example, if an
if an act is done with intention, he act is done with knowledge and other
can‘t take benefit of Section 81. conditions are being fulfilled, he can
take benefit of Section 81 and Section
51
Basdev v. The State of Pepsu ( Date of Judgment: April 17, 1956 S. C.). Available at:
https://indiankanoon.org/doc/504992/ (Visited on January 15, 2021).
52
Jan. 12, 2012 SC. Available at:
53
Emperor v. Mt. Dhirajia (Date of Judgment: June 04, 1940, Allahabad High Court).
54
Section 299 and Section 300, IPC.

18
92.
Motive
Neither bad motive nor good motive is relevant to constitute offence. It is relevant under section
8 of Indian Evidence Act. Motive prompts a person to do something. Sometimes offence is
committed with motive and sometimes without motive. Intention refers to the immediate object,
while motive refers to the ulterior object which is at the root of intention.
Negligence (Breach of Duty)
Meaning of Criminal negligence - In S.N.Hussain v. State of Andhra Pradesh55 Hon‘ble
Supreme Court observed, ―Criminal negligence on the other hand, is the gross and culpable
neglect or failure to exercise that reasonable and proper care and precaution to guard against
injury either to the public generally or to an individual in particular, which, having regard to all
the circumstances out of which the charge has arisen, it was the imperative duty of the accused
person to have adopted‖.
Negligence is not taking care, where there is a duty to take care. Negligence or Carelessness
indicates a state of mind, viz. absence of a desire to cause a particular consequence. It is your
duty to check brake of car before driving. But you did not. You do not know that your brake is
not doing work. A boy suddenly tried to cross road. You applied your brake. But due to non-
functioning of brake, you killed that boy. This is criminal negligence.
Recklessness / Rashness (Hasty Act)
Meaning of Rashness- In S.N.Hussain v. State of Andhra Pradesh56 Hon‘ble Supreme Court
observed, ―Rashness consists in hazarding a dangerous or wanton act with the knowledge that it
is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing
such an act with recklessness or indifference as to the consequences‖.
Recklessness occurs when the actor does not desire the consequence but foresees the possibility
and consciously takes the risk. You are driving your car. But speed of car is not moderate. There
was high speed. You hit pedestrian and killed. This is case of recklessness. In Cherubin Gregory
v. State of Bihar,57 (July 31, 1963), Supreme Court observed, ―The voltage of the current
passing through the naked wire being high enough to be lethal, there could be no dispute that
charging it with current of that voltage was a ‗rash act‘ done in reckless disregard of the serious
consequences to people coming in contact with it‖.
Question - A underage person is driving a car with speed (150 km/hour) above prescribed limit
of 100 km/hour in evening. Two persons on two separate two wheelers are hit by this car and
after being dragged to about 500 - 600 m persons died in accident. How can we separate
knowedlge, intention, motive, negligence or wreklessness from this case?
55
AIR 1972 SC 685. Date of judgment: Jan. 5, 1972.
56
AIR 1972 SC 685. Date of judgment: Jan. 5, 1972.
57
AIR 1964SC 205.

19
Answer – In this Case, there is neither motive nor intention. In this problem, there is knowledge,
negligence and rashness. In many case Supreme Court and High Court observed that knowledge
is awareness of commission or omission of act. Omission of duty to take care is part of
negligence. Rashness is hasty manner. In Alister Anthony Pareira v. State of Maharashtra (Date
of Judgment – January 12, 2012) Supreme Court observed, ―A person, responsible for a reckless
or rash or negligent act that causes death which he had knowledge as a reasonable man that such
act was dangerous enough to lead to some untoward thing and the death was likely to be caused,
may be attributed with the knowledge of the consequence and may be fastened with culpability
of homicide not amounting to murder and punishable under Section 304 Part II IPC‖.
This problem will come under Section 299 r/w Section 304 Second Part. Here negligence has
been committed with knowledge.
Differences between Rashness and Negligence

There is distinction of between rashness and the negligence. When one does not an act with utter
indifference to be consequences of the which the doer may be conscious and which he hopes
may not take place, one is said to the rash, while criminal negligence is neglect to take the that
precaution of which a reasonable and the prudent person is expected to the taken under the
circumstances obtaining to given case. In the order or negligence of the part of the accused, all
relevant fact s must be considered.58
Relation between Intention, Knowledge, Negligence and Rashness

This pyramid denotes that negligence is lowest mens rea and intention is the highest mens rea.
Punishment for causing of culpable homicide depends upon gravity of mens rea. Punishment
mentioned under Section 304 and Section 304A support this argument.
Intention
Knowledge
Rashness
Negligence
DISTINCTION AMONGST ‗MOTIVE‘, ‗INTENTION‘ AND ‗KNOWLEDGE‘
58
State v. Bhalchandra Waman Pethe, Bombay High Court, date of Judgment: 11 March, 1965. Available at:
https://indiankanoon.org/doc/629734/ (Visited on January 12, 2022).

20
According to Stephen ―Intention is an operation of the will directing an overt act; motive is the
feeling which prompts the operation of the will, the ulterior object of the person willing, e.g., if a
person kills another, the intention directs the act which causes death, the motive is object which
the person had in view, i,e., the satisfaction of some desire, such as revenge etc.‖
According to Austin ―The intention is the aim of the act, of which the motive is the spring.‖
Basdev v. The State of Pepsu (17 April, 1956 S. C)59
In this case Supreme Court said, ―Motive is something which prompts a man to form an intention
and knowledge is an awareness of the consequences of the act.‖60
Neither bad motive nor good motive is relevant to constitute offence. It is relevant under section
8 of Indian Evidence Act. Motive prompts a person to do something. Sometime offence is
committed with motive and sometimes without motive. Intention refers to the immediate object,
while motive refers to the ulterior object which is at the root of intention.
There are following differences among motive, intention and knowledge –
Grounds Motive Intention Knowledge

(1) Motive is the feeling Intention is an operation of Knowledge is only
Definition which prompts the the will directing an overt foresight of
operation of the will. act. Intention is the consequences. Here
combination of desire and desire is missing.
foresight of consequences.
Illustration if a person kills another, A with desire to kill B threw A without desire to
the intention directs the from fourth floor to ground. kill B and for saving
act which causes death, He foresighted that life threw from
the motive is object throwing from fourth floor fourth floor to
which the person had in was likely to cause death. ground. He
view, i,e., the satisfaction So in this case in presence foresighted that
of some desire, such as of desire and foresight, there throwing from fourth
revenge, profit etc. is intention. floor was likely to
cause death. So in
this case, in absence
of desire and
presence of foresight
is involved. So it is
knowledge.
2 It is the ulterior object It is immediate object. It is the awareness
about the
consequences.
59
The accused was prosecuted for a kill a boy in marriage ceremony during dispute for seat.
60

21
3 Motive is not part of Presence or absence of It is also relevant.

crime. So either good intention is very relevant.
motive or bad motive Rule is that ―Actus non facit
shall not be relevant for reum, nisi mens sit rea‖
commission of offence. It
means presence or
absence of motive is not
relevant to constitute
offence. It is relevant to
decide quantum of
punishment. It is relevant
under section 8 of Indian
Evidence Act.
Example ‗A‘ moves a cow A is in a house which is on
belonging to B to save her fire, with Z, a child. People
from being slaughtered. A below hold out a blanket. A
will be liable for theft if drops the child from the
other condition of theft house-top, knowing it to be
are being fulfilled. His likely that the fall may kill
good motive cannot save the child, but not intending
him. to kill the child, and
intending, in good faith, the
child‘s benefit. Here, even
if the child is killed by the
fall, A has committed no
offence.61
4 A crime committed with A crime committed
Gravity intention is more serious. with knowledge is
Example sec. 304 Part One less serious in
comparison to
intention.
Example sec. 304
Part Two.
Motive v. Intention62
61
Section 92 (d), IPC
62
DU LL.B 2016

22
There are following differences between motive and intention –
Grounds Motive Intention

(1) Motive is the feeling which prompts the Intention is an operation of the
Definition operation of the will. will directing an overt act.
Intention is the combination of
desire and foresight of
consequences.
Illustration if a person kills another, the intention directs A with desire to kill B threw
the act which causes death, the motive is from fourth floor to ground. He
object which the person had in view, i,e., the foresighted that throwing from
satisfaction of some desire, such as revenge fourth floor was likely to cause
etc. death. So in this case in
presence of desire and
foresight there is intention.
(2) It is the ulterior object It is immediate object.
(3) Motive is not part of crime. So either good Presence or absence of
motive or bad motive shall not be relevant for intention is very relevant. Rule
commission of offence. It means presence or is that ―Actus non facit reum,
absence of motive is not relevant to constitute nisi mens sit rea‖
offence. It is relevant to decide quantum of
punishment. It is relevant under section 8 of
Indian Evidence Act.
Example A removes a cow belonging to B to save her A is in a house which is on
from being slaughtered. A will be liable for fire, with Z, a child. People
theft if other condition of theft are being below hold out a blanket. A
fulfilled. His good motive cannot save him. drops the child from the
house-top, knowing it to be
likely that the fall may kill the
child, but not intending to kill
the child, and intending, in
good faith, the child‘s benefit.
Here, even if the child is killed
by the fall, A has committed
no offence.
(1.8.) STAGES OF CRIME

23
In State of Madhya Pradesh v. Narayan Singh & Ors63 Supreme Court observed, ―In the
commission of an offence there are four stages viz. intention, preparation, attempt and execution.
The first two stages would not attract culpability but the third and fourth stages would certainly
attract culpability‖. Four stages of crime are -
(1). Intention (Formation in mind)

(2). Preparation
(3). Attempt; and
(4). Execution.
(1) Formation in mind/ Intention (Generally it is denoted by intention) – Intention/

knowledge/ reason to believe etc. is the first stage of the commission of offence. There
must be something in mind for commission of an offence. This intention must be taken in
regard to thinking of mind. For e.g. any person is in the stage of preparation, here it
should be highlighted that before preparing he must had something in mind i.e, what he is
preparing for. No matter good or bad. There is always something before preparation and
that should come under the category of intention. If person is unable to form design for
commission of an offence, no question arises for commission of an offence. For example
child below the age of 7 years64 or Person of unsound mind65 can‘t commit an offence. If
first stage is missing, no question arises for application of second stage. Intention is
mental status, which cannot be traced, so mere intention is not punishable.
(2) Preparation – Preparation is the second stage. Generally preparation is also not
punishable. But there are some exceptional cases when at the stage of preparation,
offence is punishable, namely:
I. Preparation to wage war against the Government (Section 122)
II. Anyone commits damages to the property and destruction of property within the
territories of our country and the country which is with peace with our
government (Sec. 126)
III. Preparation for counterfeiting of coins or Government Stamps (Sections 233 to
235, 255 and 257) .
IV. Possessing counterfeit coins, false weights or measurements and forged
documents (Section 242, 243, 259, 266 and 474)
V. Making preparation to commit dacoity (Section 399).
(3) Attempt – Attempt is the third stage of any offence. Attempt is called inchoate crime
(incomplete crime). A person commits the offence of ‗attempt to commit a particular offence‘
when -
I. he intends to commit that particular offence; and
63
AIR 1989 SC 1789.
64
Section 82, IPC.
65
Section 84, IPC.

24
II. he, having made preparations and with the intention to commit the offence,
III. does an act towards its commission; such an act need not be the penultimate act towards
the commission of that offence but must be an act during the course of committing that
offence.66
Attempt is punishable.67
(4) Execution of Offence – When an offender achieved his desired goal i.e. called execution of
an offence. It is last stage. It is always punishable unless it comes under ‗General Exception‘ or
in any other exception.68
(1.9.) THREE LEADING CASES IN DETAIL
Three leading cases have been discussed in detail. At the time of discussion of these cases, some
other cases have been discussed which have been argued on both side of parties. These three
cases are -
I. State of Maharashtra v. M.H. George
II. Nathu Lal v. State of M.P.
III. State of M.P. v. Narayan Singh
(I) State of Maharashtra v. M.H. George

The majority opinion of Supreme Court did not hold mens rea to be an essential
ingredient of an offence under section 23(1-A) of the FERA, 1947. Whereas Justice
Subba Rao in his dissenting opinion held so.
State of Maharashtra v. M.H. George69 was decided by Full Bench of Supreme Court comprises
of Hon‘ble Justice N. Rajagopala Ayyangar Hon‘ble Justice J.R.Mudholkar and Hon‘ble Justice
K. Subbarao on August 24, 1964. Majority opinion was written by Hon‘ble Justice N.
Rajagopala Ayyangar and Hon‘ble Justice J.R.Mudholkar. Minority opinion was written by
Hon‘ble Justice K. Subbarao. Mr. H. N. Sanyal, Solicitor-General and other for the State of
Maharashtra. Mr. Soli Soharabji and other appeared for M.H.George.
Facts - Mayer Hans George, a German Smuggler, left Zurich (Famous city of Switzerland) by
plane on 27th November 1962 with 34 kilos of gold concealed on his person to be delivered in
Manila (Capital of Philippines). The plane arrived in Bombay on the 28th November but he did
not come out of the plane. The customs authorities examined the manifest of the aircraft to see if
any gold was consigned by any passenger, and not finding any entry they entered the plane,
searched the respondent, recovered the gold and charged him with an offence under ss. 8(1) and
23(1-A) of the Foreign Exchange Regulation Act, 1947 read with a notification dated 8th
66
Abhayanand Mishra v. State of Bihar (Date of Judgment: April 24, 1961).
67
For example Sections 307, 308 and Section 511.
68
Section 302, Section 304, Section 376, Section 379 etc.
69
AIR 1965 SC 722. Available at: https://main.sci.gov.in/judgment/judis/3190.pdf (Visited on February 1, 2021).

25
November 1962 of the Reserve Bank of India which was published in the Gazette of India on 24th
November. He was also prosecuted under Section 167 (8) (1) of the Sea Customs Act.
 Foreign Exchange Regulation Act, 1947

 RBI issued Notification dated 8th November 1962 which was published in the Gazette of
India on 24th November, 1962.
 Section 167 (8) (1) of the Sea Customs Act.
Important Places
Germany Smuggler was citizen of Germany
Zurich George left Zurich to Manila
Bombay He was arrested in Bombay airport
Manila His final destination was Manila
Important Dates
Nov. 24, 1962 RBI published notification

Nov.27, 1962 George left Zurich to Manila
Nov.28, 1962 George was arrested at 6.05 a.m.
August 24, 1964 George was convicted by Supreme Court
Objects of Act
1 To prevent smuggling of gold

2 To converse foreign exchange
3 To protect national economy of country
Section 8 –
Section 8. (1) The Central Government may, by notification in the Official Gazette, order that
subject to such exemptions, if any, as may be contained in the notification, no person shall,
except with the general or special permission of the Reserve Bank and on payment of the fee, if
any prescribed, bring or send into India any gold............
Explanation.-The bringing or sending into any port or place in India of any such article as
aforesaid intended to be taken out of India without being removed from the ship or conveyance

26
in which it is being carried shall nonetheless be deemed to be bringing, or, as the case may be,
sending into India of that article for the purpose of this section.
Section 23 (1 A)70 - Whoever contravenes-
(a) any of the provisions of this Act or of any rule, direction or order made thereunder, other than
those referred to in sub-section(1) of this section and section 19 shall, upon conviction by a
Court, be punishable with imprisonment for a term which may extend to two years, or with fine,
or with both.
Section 24. (1) Where any person is prosecuted or proceeded against for contravening any
provisions of this Act or of any rule, direction or order made thereunder which prohibits him
from doing an act without permission, the burden of proving that he had the requisite permission
shall be on him.
Notification issued on 8th November – The Reserve Bank of India published a notification
giving general permission to the bringing or sending of gold, gold-coin etc. "into any port or
place in India when such article is on through transit to a place which is outside the territory of
India :
Provided that such articles if not removed from the ship or conveyance in which it is being
carried except for the purpose of transhipment:
Provided further that it is declared in the manifest for transit as same bottom cargo or
transhipment cargo‖.
This notification was published in the Gazette of India on November 24, 1962.
Issues – In this case several issues were involved. But for our purposes only following issues are
relevant -
 Can strict liability be applied in such case? Can a person be convicted even without guilty
mind?
Answer - Yes
 Can George be convicted even without guilty mind?
Answer - Yes
 Whether ‗Ignorantia facti excusat, Ignorantia juris (legis) non (neminem) execusat‘
(Ignorance of fact is excusable, but ignorance of law is not excusable) is applicable?
Answer – Yes.
Decision – There are following decisions of Courts -
 Magistrate convicted M. H. George
 High Court acquitted M. H. George
 Supreme Court convicted M. H. George.
ARGUMENTS
In State of Maharashtra v. M.H. George71several cases were argued on both sides.
70
Sub-s. (1-A)of Section 23 which is residuary and is directly relevant in the present context.
71
AIR 1965 SC 722

27
Argument
Statute was silent

about mens rea
Appellant Respondent
Actus non facit...is not Actus non facit...is

applied applied
There was no proper

There was proper publication
publication of
of notification
notification
34 kg Gold is not 34 kg Gold is not proper

proper laguage laguage
Ignorantia facit.....maixim is Ignorantia facit.....maixim

applicable here is not applicable here
Argument of Appellant –
(a) Mens Rea (Actus non facit reum…) is not applicable here- The Act was enacted to
prevent smuggling of gold in the interests of the economic stability of the country and, therefore,
in construing the relevant provisions of such an Act there is no scope for applying the
presumption of common law that mens rea is a necessary ingredient of the offence. The object of
the statute and the mandatory terms of the relevant provisions, the argument proceeds, rebut any
such presumption and indicate that mens rea is not a necessary ingredient of the offence.
(b) Proper publication – There was proper publication of the notification.
(c) 34 Kg Gold – This amount of gold was not for publication.
(d) Ignorantia Facit….- ‗Ignorantia facti excusat, Ignorantia juris (legis) non (neminem)
execusat‘ is applicable here.
Argument of Respondent -
There are following three arguments of the respondent -
1. Mens Rea (Actus non facit reum…) is not applicable here - Mens rea was an essential
ingredient of the offence charged and as it was not disputed by other party that he was
not aware of the notification of the Reserve Bank, he could not be found guilty,
2. No Proper publication - the notification being merely subordinate or delegated
legislation could be deemed to be in force only when it was brought to the notice of
persons affected by it and,
3. ‗Personal Luggage‘ - the second proviso in the notification requiring disclosure in the
manifest was not applicable to gold carried on the person of a passenger.

28
But, I am going to discuss only first issue. I am discussing only those cases which were argued
regarding mens rea. In Nathulal v. State of Madhya Pradesh (March 22, 1965) Hon‘ble Supreme
Court observed that most of the relevant English decisions on mens rea were referred in State of
Maharashtra v. Mayer Hans George (August 24, 1964).
Case in favour of Appellant
In these cases, Courts held that if statutes are silent, court must not insert mens rea as essential
ingredients -
S. N. Name of Case Hon‘ble Justice Year
1 R. v. Prince Justice Blackburn 1875
2 Hobbes v. Winchester Corporation Kennedy 1910
3 The Indo-China Steam Navigation Chief Justice Gajendragadkar Feb. 3,
Co. Ltd. v. Jasjit Singh, Addl. (Constitutional Bench) 1964)
4 Ranjit D. Udeshi v. State of Hidayatullah (Constitutional Aug. 19,
Maharashtra Bench) 1964
R. v. Prince72 (1875) (Blackburn)
Facts - Henry Prince was charged under section 5573 of the Offences Against the Persons Act,
1861.74 This section was related to abduction. There was no any category of offence like
kidnapping under this Act. At that time unlawfully taking of a girl below the age of sixteen years
without permission of lawful guardian was an offence. It was proved that the prisoner took the
girl whose age was below the age of sixteen years from out of possession of lawful guardians
without their permission.75 Real age of girl was 14 years. Actus reus was present but mens rea
was absent. Accused proved that he took the girl who was looking age of 18 years and he took
with consent and after her replying that her age was 18 years. He did in good faith.
Actual Age of Girl 14 Years
Abduction Under the age of 16 years
She appears/ Accused thought Near about 18 years
Decision - Court denied these defences. This section had no mention about mens rea i.e.
intention, knowledge, reason to believe etc. Justice Blackburn denied applying the maxim Actus
non facit reum, nisi mens sit rea and held that the provision did not require guilty intention or
knowledge so Court could not insert requirement of intention or knowledge only on the basis of
maxim. So Prince was convicted even without guilty mind. Principle of strict liability was
followed.
72
(1875) L.R. 2 C.C.R. 154
73
Section 55 of Offences Against the Persons Act, 1861 - Abduction of a girl under sixteen years of age -
Whosoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out
of the possession and against the will of her father or mother, or of any other person having the lawful care or charge
of her, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to
be imprisoned for any term not exceeding two years, with or without hard labour.
74
Offences Against the Persons Act, 1861 is available at:
http://www.legislation.gov.uk/ukpga/1861/100/pdfs/ukpga_18610100_en.pdf (Visited on August 31, 2018.
75
S.N. Mishra, Indian Penal Code …(Central Law Publications, Allahabad, 20th edn, 2017).

29
Hobbs v. Winchester Corp. (1910) Justice Kennedy

Justice Kennedy in Hobbs v. Winchester Corp. (1910) said, ―You ought to construe the statute
literally unless there is something to show that mens rea is required.‖
The Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. (February 3, 1964)
In Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs,
Calcutta76 principle of strict liability was applied. This case is related smuggling of gold bar.
Indo-China Steam Navigation Co. Ltd was carrying business of carriage of goods and passengers
by sea and owns a fleet of ships for that purpose. One of its ships named Eastern Saga arrived at
Calcutta and was rummaged by the Calcutta Customs Officers. In the sailors‘ accommodation, a
hole measuring 2 1/2 x 5 1/2 was found in the wall panelling behind the back batton of a wooden
seat which had been screwed to the wall. The hole was covered with a piece of wood and over-
painted. The hole opened into a space and in that space, Customs Officers found 1,458 bars of
gold valued at more than Rs. 23 lacs. After hearing the present appellant, custom officer passed
an order for confiscation of ship. But he gave the owners thereof an option to pay a fine of Rs. 25
lacs in lieu of confiscation. Appellant took the defence of mens rea. But Supreme Court rejected
and said that such smuggling affects economy of the country.
Chief Justice Gajendragadkar said, ―The intention of the legislature in providing for the
prohibition prescribed by section 52 A of the Sea Customs Act, 1878 is, inter alia, to put an end
to illegal smuggling which has the effect of disturbing very rudely the national economy of the
country. It is well-known, for example, that smuggling of gold has become a serious problem in
this country and operations of smuggling are conducted by operators who work on an
international basis. The persons who actually carry out the physical part of smuggling gold by
one means or another are generally no more than agents and presumably, behind them stands a
well- knit organisation which, for motives of profit making, undertakes this activity.‖
Ranjit D. Udeshi v. State of Maharashtra (August 19, 1964)

Selling of ‗Lady Chatterley‘s Lover‘ book was prohibited in India. Seller was convicted under
section 292 of IPC for selling this book, although he had no knowledge of this book. Strict
liability was imposed.
Cases in favour of Respondent [M.H. George]

In these cases, Courts held that if statutes are silent, court must insert mens rea as essential
ingredients -
S. No. Name of Cases Justices Years

1 Fowler v. Padget Lord Kenyon 1798
2 R. v. Tolson Justice Wills 1889
3 Sherras v. De Rutzen Justice Wright 1895
4 Brend v. Wood Justice Goddard 1946
76
A.I.R. 1964 S.C. 1140. Available at: https://main.sci.gov.in/judgment/judis/3351.pdf (Visited on January 20,
2022). Date of Judgment: February 03, 1964.

30
There are some leading cases related to elements of crime –
Fowler v. Padget77 (1798) (Lord Kenyon)

Actus reus (prohibited act) and mens rea (guilty mind) both are essentials for commission of
crime. Lord Kenyon said, ―It is a principle of natural justice, and of our law, that actus non facit
reum nisi mens sit rea. The intent and the act must both concur to constitute the crime‖. 78 This
case was related to bankruptcy.
R. v. Tolson79 (1889) (Wills) (Koi Mere Dil Se Puchhe – Hindi Movie)

Facts – Mrs. Tolson married in Sept 1880. Her husband went missing in December 1881. She
was told that he had been on a ship that was lost at sea. She also inquired from elder brother of
her husband. Six years later, believing her husband to be dead, she married another. All the
circumstances were well known to second husband. Her husband returned after 11 months from
the date of marriage. She was charged with the offence of bigamy under section 57 of ‗Offences
Against the Persons Act, 1861‘.80 Reason was that she had got second marriage within 7 years.
She did in good faith. This section was silent regarding guilty mind.
Held: She was afforded the defence of mistake as it was reasonable in the circumstances to
believe that her husband was dead. She was acquitted.
Reason- Honest and reasonable mistake stands in fact of the same footing as absence of the
reasoning faculty, as in infancy; preservation of that faculty, as in lunacy. These exceptions
apply equally in case of statutory offences unless they are excluded expressly or be necessary
implication. The Court applied the Actus non facit reum, nisi mens sit rea.
Justice Wills, said ―Although, prima facie and as a general rule, there must be a mind at fault
before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-
matter and may be so framed as to make an act criminal whether there has been any intention to
break the law or otherwise to do wrong or not‖.
Sherras v. De Rutzen81 (1895) (Wright )

Fact-Section 16(2) of the Licensing Act, 1872, prohibited a licensed victualler (victualler means
supplier of foods fit for human being) from supplying liquor to a police constable while on duty.
It was held that section did not apply where a licensed victualler bona fide believed that the
police officer was off duty.
77
(1798)7 TLR 509(514):101 ER 1103
78
K D Gaur, Textbook on Indian Penal Code, 107 (LexisNexis, Gurgaon, 6th edn., 2016).
79
(1889) 23 QBD 168: (1886-1890)All ER Rep 26.
80
Offences Against the Persons Act, 1861 is available at:
http://www.legislation.gov.uk/ukpga/1861/100/pdfs/ukpga_18610100_en.pdf (Visited on August 31, 2018.
81
(1895) 1QB 918

31
Justice Wright said –

(1) ―There is a presumption that mens rea, an evil intention, or knowledge of the
wrongfulness of the act, is an essential ingredient in every offence.‖
(2) ―In every statute mens rea is to be implied unless contrary is shown‖
(3) ―There is a presumption that mens rea, an evil intention, or a knowledge of the
wrongfulness of the act, is an essential ingredient in every offence; but that presumption
is liable to be displaced either by the words of the statute creating the offence or by the
subject-matter with which it deals, and both must be considered.‖
Brend v. Wood (1946) (Goddard) - Revival of Mens rea

Goddard C. J. ―It is…............. of the utmost importance for the protection of the liberty of the
subject that a court should always bear in mind that, unless the statute, either clearly or by
necessary implication rules out mens rea as a constituent part of a crime, a defendant should not
be found guilty of an offence against the criminal law unless he has got a guilty mind‖.
Involved provisions in leading Cases

This table summarizes important provisions -
R. v. Prince Section 55, Offences Against Person Act, 1861 Abduction
R.v. Tolson Section 57, Offences Against Person Act, 1861 Bigamy
Sherras v. Section 16(2), The Licensing Act, 1872, Selling of liquor to
De Rutzen prohibited buyer
DECISION OF M.H. GEORGE CASE
Supreme Court examined several British and Indian Cases. All the cases have been discussed
above. Purpose of FERA, 1947 was to prevent smuggling. This case is related to economic
condition of country. So Supreme Court did not apply the maxim and applied the strict liability
principle.
Majority Opinion - N. Ayyangar and J.R. Rajagopala Mudholkar convicted the accused.
1. Burden on accused - On the language of section 8(1) read with s. 24(1) of the Act, which
throws on the accused the burden of proving that he had the requisite permission to bring
gold into India,.
2. Mens Rea - Section 23(1-A) is silent about mens rea. Majority opinion rejected
requirement of mens rea. The Court observed, ―There was no scope for the invocation of
the rule that besides the mere act of voluntarily bringing gold into India any further
mental condition or mens rea is postulated as necessary to constitute an offence referred
to in s. 23(1-A)‖.
3. Object and purpose of the Act - The very object and purpose of the Act and its
effectiveness as an instrument for the prevention of smuggling would be entirely
frustrated if a condition were to be read into the sections qualifying the plains words of

32
the enactment, that the accused should be proved to have knowledge that he was
contravening the law before he could be held to have contravened the provision.
4. Publication of Sub-ordinate Legislation - The notification was ―published‖ and made
known in India by publication in the Gazette and the ignorance of it by the respondent
who is a foreigner was wholly irrelevant and made no difference to his liability. In the
absence of any statutory requirement the rule is that subordinate or delegated legislation
should be published in the usual form, that is, by publication within the country by such
media as are generally adopted to notify to all persons concerned and publication in the
Official Gazette is the ordinary method of bringing a notification or rule to the notice of
persons concerned.
5. Definition of ‗Personal Luggage‘ - The term ―cargo‖ in the notification is used in
contradistinction to ―personal luggage‖ in the law relating to the carriage of goods. The
latter has been defined as whatever a passenger takes with him for his personal use or
convenience either with reference to his immediate necessities or for his personal needs
at the end of the journey. Gold of the quantity and in the form and manner in which it was
carried by the respondent would certainly not be ―personal luggage‖.
Minority Opinion - Justice K. Subba Rao said that M.H. George had no intention to commit
crime in India. So he was not guilty.
 No knowledge regarding Notification - The respondent should not be held guilty of
contravening the provisions of Section 8 of the Act read with the notification issued by
the Reserve Bank, as it was not proved he had knowingly brought gold into India in
contravention of the terms of the notification.
 It is not suitable case for excluding Mens Rea - There is a presumption that mens rea is
an essential ingredient of a statutory offence; but this may be rebutted by the express
words of a statute creating the offence or by necessary implication. But the mere fact that
the object of a statute is to promote welfare activities or to eradicate grave social evils is
in itself not decisive of the question whether the element of guilty mind is excluded from
the ingredients of the offence. Mens rea by necessary implication can be excluded from a
statute only where it is absolutely clear that the implementation of the object of a statute
would otherwise be defeated and its exclusion enables those put under strict liability by
their act or omission to assist the promotion of the law. The nature of mens rea that will
be implied in a statute creating an offence depends upon the object of the Act and the
provisions there of.
 ‗Ignorantia facti excusat, Ignorantia juris (legis) non (neminem) execusat‘ is not
applicable - The fact that it was published in the Official Gazette does not affect the
question. In such cases the maxim that ignorance of law is not an excuse cannot be
invoked and the prosecution has to bring home to the accused that he had knowledge or
could have had knowledge if he was not negligent or had made proper enquiries.
Conclusion
In our opinion, the very object and purpose of the Act and, its effectiveness as an instrument for
the prevention of smuggling would be entirely frustrated if a condition were to be read into
Section 8 (1) of Section 23 (1-A) of the Act qualifying the plain words of the enactment, that the

33
accused should be proved to have knowledge that he was contravening the law before he could
be held to have contravened the provision.
Important Provisions
The Indo-China Steam Navigation Co. Section 52A, Sea Smuggling of gold
Ltd. v. Jasjit Singh Customs Act, 1878
Ranjit D. Udeshi v. State of Section 292, IPC Selling of obscene
Maharashtra book
State of Maharashtra v. M.H.George FERA, 1947 Smuggling of gold
Remarks – In the M.H. George Case all abovementioned cases have been discussed. So at the
time writing of answer related to M.H. George case all cases must also be discussed.
The Essential Commodities Act, 1955

There are two leading cases on this point. In Nathu Lal Case person was acquitted on the ground
that there was no mens rea. After this Case, the Act was amended in 1967. In Narayan Singh
Case person was convicted even without guilty mind.
The Essential Commodities Act, 1955
Leading Cases &

Amendment
Nathu Lal v. State of Amendment State of M.P. v. Narayan

M.P. [1965] in 1967 Singh & Ors. [1989]
Person will be convicted even

Acquittal
without intention or knowledge Conviction
1 Nathu Lal v. Section 7, The Acquitted Unauthorized

State of M.P. Essential Commodities store of food
(1965) Act, 1955 grains (Wheat)
2 Amendment, Amendment in Section It was provided that Principle of
1967 7, The Essential person will be ‗Strict Liability‘
Commodities Act, 1955 convicted even without
guilty mind.
3 State of M.P. v. Section 7, The Convicted Carrying
Narayan Singh Essential Commodities fertiliser bags in
(1989) Act, 1955 (as amended trucks without
in 1967). permission

34
(II) Nathu Lal v. State of M.P.
Stock of Wheat
Nathu Lal v. State of M.P.82 was decided by Supreme Court on March 22, 1965. Hon‘ble
Justice Subba Rao wrote this judgment.
Facts – Nathu Lal is a dealer of food grains at Dhar in Madhya Pradesh. He was prosecuted in
the Court of the Additional District Magistrate, Dhar, for having in stock 885 maunds and 21/4
seers of wheat for the purpose of sale without a licence and for having thereby committed an
offence under section 7 of the Essential Commodities Act, 1955. He pleaded that he did not
intentionally contravene the provisions of the said section on the ground that he stored the said
grains after applying for a licence and was in the belief that it would be issued to him.
Argument of appellant - The appellant (Nathu Lal) pleaded that he did not intentionally
contravene the provisions of the section 7 on the ground that he stored the said grains after
applying for a licence and was in the belief that it would be issued to him.
Additional District Magistrate, Dhar – Nathu Lal was acquitted on the ground that he had not
stored grain with guilty mind.
High Court - Nathu Lal was convicted by High Court.
Supreme Court – Appeal was filed in Supreme Court by Nathu Lal.
Issue before Supreme Court – Can a person be convicted without guilty mind? The question is
whether under Section 7 of the Essentail Commodities Act, 1955 a factual non-compliance of the
Order by a dealer will amount to an offence thereunder even if there is no mens rea on his part.
Answer – No. Person can‘t be convicted without guilty mind.
Reason –
(1) Method of inclusion and exclusion of mens rea. In this case law was stated regarding
inclusion and exclusion of mens rea. Hon‘ble Justice Subba Rao83 said, ―Mens rea is an essential
ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea, but it
is a sound rule of construction adopted in England and also accepted in India to construe a
statutory provision creating an offence in conformity with the common law rather than against it
unless the statute expressly or by necessary implication excluded mens rea.
82
AIR 1966 SC 43. Available at: https://indiankanoon.org/doc/1834977/ (Visited on January 21, 2022).
83
Hon‘ble Justice Subba Rao had also written minority opinion in State of Maharashtra v. M.H.George. In Nathulal
Case he has written the judgment which was accepted by other judges.

35
The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave
social evil is by itself not decisive of the question whether the element of guilty mind is excluded
from the ingredients of an offence. Mens rea by necessary implication may be excluded from a
statute only where it is absolutely clear that the implementation of the object of the statute would
otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an
offence depends on the object of the Act and the provisions thereof.‖84
(2) This case is not suitable for exclusion of mens rea - Hon‘ble Justice Subba Rao said,
―Having regard to the object of the Act, namely, to control in general public interest, among
others, trade in certain commodities, it cannot be said that the object of the Act would be
defeated if mens rea is read as an ingredient of the offence. The provisions of the Act do not lead
to any such exclusion. Indeed, it could not have been the intention of the Legislature to impose
heavy penalties like imprisonment for a period upto 3 years and to impose heavy fines on an
innocent person who carries on business in an honest belief that he is doing the business in terms
of the law. Having regard to the scope of the Act it would be legitimate to hold that a person
commits an offence under Section 7 of the Act if he intentionally contravenes any order made
under Section 3 of the Act. So construed the object of the Act will be best served and innocent
persons will also be protected from harassment‖.
Decision - He was acquitted because he had done without any guilty mind.85 Unless statute
expressly exclude, law should be construed as including mens rea.
Effect of Decision - After this case section 7 of Essential Commodities Act was amended in
1967 and mens rea was excluded. ―whether knowingly, intentionally or otherwise‖ were inserted.
(2) Essential Commodities (Amendment) Act, 1967
After the decision of Nathu Lal v. State of M.P. big problem arose before country. At that time
India was facing acute shortage of food grains. There were several reasons of this namely; Indo-
China War, famine, increasing tension & war on Indo-Pak border and denial of USA to export
grains. USA was creating pressure in favour of Pakistan.
In the Nathu Lal Case Supreme Court held person would not be punished without guilty mind.
So this Act was amended. After amendment statute is very clear. Person will be punished even
without guilty mind.
84
S.N. Mishra, Indian Penal Code 21 (Central Law Publications, Allahabad, … edn, 2006).
85
S.N. Mishra, Indian Penal Code 22 (Central Law Publications, Allahabad, … edn, 2006).

36
(III) State of M.P. v. Narayan Singh & Ors.
Fertiliser bags in truck
State of M.P. v. Narayan Singh & Ors.86 was decided by Division Bench of Supreme Court
consisted of Justice S. Natrajan and Justice A. M. Ahmadi on July 25, 1989.
Facts – Essential Commodities Act, 1955 were amended in 1967. Narayan Singh & Ors. who
were lorry drivers, cleaners and coolie were carrying fertiliser bags in trucks from Indore
(Madhya Pradesh) to Maharashtra. They were intercepted at a Sales Tax Barrier near the border
of Maharashtra State. The documents were seized from the lorry drivers contained the invoices
and other records but did not include permits issued under the Fertilisers (Movement Control)
Order, 1973. Consequently, they were prosecuted under the Fertiliser (Movement Control)
Order, 1973 read with section 3 and 7 of the Essential Commodities Act, 1955 for exporting
fertilisers from Madhya Pradesh to Maharashtra without a valid permit. They were charged under
section 511, IPC.
The Fertiliser (Movement Control) Order, 1973 was framed in exercise of the powers conferred
under Section 3 of the Essential Commodities Act, 1955.
Impugned Statutory Provisions –

 Essential Commodities Act, 1955, Section 3 & Section 7.
 The Fertiliser (Movement Control) Order, 1973
 Indian Penal Code, 1860, Section 511.
Trial Court –
The Trial Court acquitted Narayan Singh & Ors holding that:
(i) No mens Rea - the prosecution had failed to prove mens rea on the part of the respondents,
and
86
AIR 1989 SC 1789. Available at: https://main.sci.gov.in/judgment/judis/7884.pdf (Visited on January 21, 2022).

37
(ii) Only preparation - the act of transportation of the fertiliser bags in trucks by the respondents
constituted merely preparation and not attempted commission of the offence.
High Court - Appeals were filed by the State against the acquittal under section 378(3) of the
Cr. P.C. 1973 but the High Court declined to grant leave.
Supreme Court – Appeal was filed in Supreme Court.
Issues – There were following issues in this case before Supreme Court-
1. Whether the prosecution must prove mens rea on the part of the accused in exporting the
fertiliser bags without a valid permit for securing their conviction?
Answer – No. Essential Commodities Act, 1955 after Amendment in 1967 does not
require mens rea. The words used in Section 7(1) are ―if any person contravenes whether
knowingly, intentionally or otherwise any order made under Section 3‖.
2. Whether the evidence on record established only preparation by the accused for effecting
export of fertiliser bags from one State to another without a permit therefor and not an
attempt to export fertiliser bags.
Answer – No. They have crossed the stage of preparation. They had committed offence
3. Whether ratio of Nathu Lal v. State of Madhya Pradesh [March 22, 1965] should be
applied?
Answer – No.
Decision of Supreme Court
There are following decisions of Supreme Court on following points -
(1) Mens Rea -The words used in section 7 (1) are ―if any person contravenes whether
knowingly, intentionally or otherwise any Order made under section 3‖. The section is
comprehensively worded so that it takes within its fold not only contraventions done
knowingly or intentionally but even otherwise, i.e., done unintentionally. The element of
mens rea in export of fertiliser bags without a valid permit is therefore not a necessary
ingredient for convicting a person for contravention of an order made under Sec. 3 if the
factum of export or attempt to export is established by the evidence on record.
(2) Attempt – This was case of attempt. Whatever has been done was beyond preparation.
The respondents in each case were actually caught in the act of exporting fertiliser bags
without a permit therefore from Madhya Pradesh to Maharashtra. If the interception had
not taken place at the Sales Tax Barrier the export would have become a completed act
and the fertilizer bags would have been successfully taken to Maharashtra State in
contravention of the Fertiliser (Movement Control) Order, 1973.
(3) Ratio of Nathu Lal v. State of Madhya Pradesh - In Nathu Lal v. State of Madhya
Pradesh Supreme Court held that section 7 requires mens rea. Person can‘t be convicted
without guilty mind. This Case was decided on March 22, 1965. To nullify ratio of this
judgment, section 7 was amended in 1967. In Section 7, it has been clearly mentioned
that person can be convicted without guilty mind or knowledge. So ratio of this case is
not applicable in this case.

38
(4) Override decision of Trial Court and High Court - The Trial Court and the High
Court committed an error in taking the view that the respondents in each of the appeals
were not liable for conviction for contravention of the Fertiliser (Movement Control)
Order, 1973 read with sections 3 and 7 of the Essential Commodities Act, 1955 because
the prosecution had failed to prove mens rea on their part in transporting fertiliser bags
from Madhya Pradesh to Maharashtra.
(5) Stages of Crime - In the commission of an offence there are four stages viz. intention,
preparation, attempt and execution. The first two stages would not attract culpability but
the third and fourth stages would certainly attract culpability. In this case, their matter
come under third stage i.e. attempt.
(6) Only conviction but not punishment -Supreme Court set aside the order of acquittal by
Trial Court and High Court and convicted the accused. But did not pass any order of
punishment. Reason was that more than fifteen years have gone by since they were
acquitted by the Trial Magistrate. The learned counsel for the appellant ‗State‘ was more
interested in having the correct position of law set out than in securing punishment
orders for the respondents in the two appeals for the offence committed by them.
(1.10.) IMPORTANT MAXIMS RELATED TO CRIMINAL LAW
Pro Reo
Whenever any penal law is applied or construed, and that law is giving two interpretation, one
lenient to the offender and one strict to the offender, that interpretation which is lenient or
favorable to the offender will be adopted.
Nullum Crimen Sine Lege, Nulla Poena Sine Lege87
(No crime without law, no punishment without law)
According to this maxim there must be no crime or punishment, except in accordance with fixed
predetermined law. This maxim conveys four different rules, namely,
(1) Non retroactivity of penal laws: It means penal laws which are against the interest of
accused will not be applied from retrospective effect. But it does not prohibit accused
from taking benefit of retrospective laws. In the case of Rattan Lal v. State of Punjab
(1965) Supreme Court also interpreted article 20 (1) and said that ―Ex post facto laws
which are beneficial to the accused is not prohibited by Art. 20(1) of the Constitution. In
this case Justice Subba Rao said, ―The object of criminal law is more to reform the
individual offender than to punish him.
(2) Penal statutes must be construed strictly: Penal statutes must be construed strictly. It
directly affects Fundamental Rights. So, it must be construed strictly.
87
UGC NET Nov. 2017.

39
(3) Certainty in legislation: It should not be construed in such a way as to cover every act.
(4) Accessibility of the laws: Laws are binding over every people. So, it must be published in
proper way so that every person may know it. Harla v. State of Rajasthan (1952)
Supreme Court said, ―It would be against the Principle of natural justice to permit the
subjects of a State to be penalized by laws of which they had no knowledge and of which
they could not even with the exercise of due diligence have acquired any knowledge .
Natural justice required that before a law can be operative it must be promulgated and
published.‖
Conclusion
Principle of ‗Strict liability‘ was applied and accused were convicted.
(1.11.) PREVIOUS YEARS QUESTION PAPERS
(1.11.1.) Problem
Explain the common law principle of ―actus non facit reum, nisi mens sit rea‖ with the help of
decided case. What are the exceptions, if any, to this principle?
Solution
the mind is also guilty. This theory was developed by Common Law Courts. First time concept
of Mens Rea was discussed by Justice Coke. In case of Fowler v. Padget (1798) Lord Kenyon
held that actus reus and mens rea both are essentials for commission of crime. There are four
essential ingredients of crime, namely,(1) Human Being (2) Guilty Mind (3) Prohibited act, and
(4) An injury to human being or society. This maxim denotes that guilty mind and prohibited act
both are part and parcel of crime. In the case of Nathulal v. State of Madhya Pradesh (1965)
Justice Subba Rao observed, ―Mens rea is an essential ingredient of a criminal offence.
Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction
adopted in England and also accepted in India to construe a statutory provision creating an
offence in conformity with the common law rather than against it unless the statute expressly or
by necessary implication excluded mens rea.‖ Justice Subba Rao also delivered same view in
minority opinion of M.H.George Case (1964).
It is rule that without guilty mind, crime cannot be committed. There are also certain exceptions.
If maxim applies – In case of application of this maxim, accused person would be benefited and
there would be utmost probability of to win the case because prosecutor would be bound to prove
prohibited act and guilty mind.
In the case of Brend v. Wood (1946) Chief Justice Goddard observed the benefit of application of
this maxim and said that application of this maxim is of the utmost importance for the protection
of the liberty of the subjects (citizens).

40
If maxim does not apply - It would be very easy for prosecutor to win the case because he would
be bound to prove only one condition i.e. prohibited act. To prove guilt mind always very
difficult. In such cases there would be a lot of harm for accused.
Schools of Mens Rea (Interpretation of statutes)

There are two schools regarding interpretation of statutes in context of mens rea. These Schools
are (1) Presumption of existence of Mens Rea, and (2) Presumption of absence of Mens Rea.
Both presumptions are rebuttable.
(1) Presumption of Requirement of Mens Rea- In every Statute mens rea should be treated as
part of crime unless contrary is shown. Existence of Mens Rea is presumed. In case of Q. v.
Tolson court acquitted lady on the ground of her innocent. She got marriage after full inquiry.
But Court also accepted that by statute mens rea may be excluded. This theory was led by Justice
Wright in case of Sherras v. De Rutzen (1895). In case of Sherras v. De Rutzen (1895) Justice
Wright said ―In every statute mens rea is to be implied unless contrary is shown‖. In case of
Brend v. Wood (1946), Justice Goddard, ―The general rule applicable to criminal case is actus
non facit reum nisi mens sit rea…It is of the utmost importance for the protection of the liberty
of the subject that a court should always bear in mind that, unless the statute, either clearly or by
necessary implication rules out mens rea as a constituent part of a crime, a defendant should not
be found guilty of an offence against the criminal law unless he has got a guilty mind‖. Principle
of mens rea was revived by Justice Goddard. In the case of Nathu Lal v. State of M.P. (1965)
Supreme Court acquitted the accused on the basis of absence of mens rea.
(2) Presumption of Non-requirement of Mens Rea- According to second School, statute must
be interpreted in absence of mens rea unless requirement of mens rea has been specifically
mentioned. On the basis of this theory Justice Blackburn decided the R. v. Prince (1875) and he
convicted the accused who had no guilty mind. Accused believed that the girl was 18 year while
real age of girl was 14 year. At that time taking of girl below the age of 16 years out of keeping
of lawful guardian was crime. Appearance of Girl was age of 18 years. Court denied to accept
Actus non facit reum , nisi mens sit rea (Common Law Doctrine). This theory was led by Justice
Kennedy in Hobbes v. Winchester Corporation (1910). In the case of State of Maharashtra v.
M.H.George (1964) Supreme Court convicted the accused. Justice K.Subba Rao delivered
minority opinion.
(1.11.2.) Problem88
―The nature of mens rea that will be implied in a statute creating an offence depends upon the
object of the Act and provisions thereof.‖ Discuss with the help of decided cases.
88
DU LL.B. Question1 (2013) & Question1 (2015).

41
Solution
Actus non facit reum, nisi mens sit rea is accepted all over the world subject to statutory
provisions. Question arises when statute is silent about guilty mind of accused whether mens rea
should be treated part of statute or not. It has been observed that in certain cases Judges has
incorporated it as a part of statute and in certain cases not. For example in the case of
M.H.George majority opinion did not borrow this maxim. Justification was given by majority
opinion was that object of FERA was to protect economic condition of country.
Lord Simonds (Halsbury‘s Laws of England)
In Halsbury‘s Laws of England written by Lord Simonds (3rd edn. Vol. 10, in para, 508, at p.
273,) the following passage appears: ―A statutory crime may or may not contain an express
definition of the necessary state of mind. A statute may require a specific intention, malice,
knowledge, willfulness or recklessness. On the other hand, it may be silent as to any requirement
of mens rea, and in such a case in order to determine whether or not mens rea is an essential
element of the offence, it is necessary to look at the objects and terms of the statute.‖
Archbold (Criminal Pleading, Evidence and Practice)

Archbold in his book on ―Criminal Pleading, Evidence and Practice‖, 35th edn., says much to the
same effect at p. 24 thus: ―It has always been a principle of the common law that mens rea is an
essential element in the commission of any criminal offence against the common law In the case
of statutory offences it depends on the effect of the statute...... There is a presumption that mens
rea is an essential ingredient in a statutory offence, but this presumption is liable to be displaced
either by the works of the statute creating the offence or by the subject matter with which it
deals.‖
Sherras v. De Rutzen (1895)
Wright J., observed ―There is a presumption that mens rea, an evil intention, or a knowledge of
the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is
liable to be displaced either by the words of the statute creating the offence or by the subject-
matter with which it deals, and both must be considered.‖
The Indo-China Steam Navigation Co. Ltd., v. Jasjit Singh (Feb. 03, 1964 Supreme Court)
The Indo-China Steam Navigation Co. Ltd., which carries on the business of carriage of goods
and passengers by sea, owns a fleet of ships, and has been carrying on its business for over 80
years. One of he routes plied by its ships in the Calcutta - Japan-Calcutta route. 'Me vessel
―Eastern Saga‖ arrived at Calcutta on October 29, 1957. On a search it was found that a hole was
covered with a piece of wood and over painted and when the hole was opened a large quantity of
gold in bars was discovered. Gold was confiscated.
This Court in construing the scheme and object of the Sea Customs Act came to the conclusion
that mens rea was not a necessary ingredient of the offence, as, if that was so, the statute would
become a dead-letter. That decision was given on the basis of the clear object of the statute and
on a construction of the provisions of that statute which implemented the said object.

42
Supreme Court said, ―The intention of the legislature in providing for the prohibition prescribed
by Section 52A of Sea Custom Act, 1878, is, inter alia, to put an end of illegal smuggling which
has the effect of disturbing very rudely the national economy of the country. It is well-known, for
example, that smuggling of gold has become a serious problem in this country and operations of
smuggling are conducted by operators who work on an international basis. The persons who
actually carry out the physical part of smuggling gold by one means or another are generally no
more than agents and presumably, behind them stands a well-knit organisation which for motives
of profit-making, undertakes this activity.‖
State of Maharashtra v. M.H. George (1964 SC)
Supreme Court observed that the very object and purpose of the Act and, its effectiveness as an
instrument for the prevention of smuggling would be entirely frustrated if a condition of mens
rea were to be read into section 8 (1) or section 23(1-A) of the Act qualifying the plain words of
the enactment, that the accused should be proved to have knowledge that he was contravening
the law before he could be held to have contravened the provision.
Language of the enactment, the object and subject-matter of the statute and the nature and
character of the act ought to be considered.
Nathulal v. State of Madhya Pradesh (1965)

Justice Subba Rao observed, ―Mens rea by necessary implication may be excluded from a statute
only where it is absolutely clear that the implementation of the object of the statute would
otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an
offence depends on the object of the Act and the provisions thereof.‖
(1.11.3.) Problem89
Explain the rational behind punishing a person guilty of strict liability offence in the absence of
guilty mind.
Solution
Rationality behind application of strict liability
Answer of this question is based on conflict between individual rights v. interest of public at
large. Strict liability is imposed that other person must, in certain cases, take extra care.
Selling of obscene books is dangerous for development of children and nation. It creates lust and
lust creates environment for commission of crime. In case of Ranjit D.Udeshi v. State of
Maharashtra section 292 was interpreted and mens rea was ignored.
For protection of right of guardian application of mens rea is not necessary. For example R. v.
Prince (1875) and section 361 of IPC.
It is necessary for protection of institution of family and health of family. For example in case of
bigamy mens rea is not necessary
89
DU LL.B. Question1 (a) (Dec. 2015).

43
Economic offences affect not only development of nation and life of citizens but also integrity
and sovereignty of nation. In the case of State of Maharashtra v. M.H.George (1964) majority
opinion of Supreme Court observed, ―The Foreign Exchange Regulation Act, 1947 is designed to
safeguard and conserve foreign exchange which is essential to the economic life of a developing
country. The provisions have therefore to be stringent and so framed as to prevent unauthorized
and unregulated transactions which might upset the scheme underlying the controls; and in a
larger context, the penal provisions are aimed at eliminating smuggling which is a concomitant
of controls over the free movement of goods or currencies.‖ It is necessary for the prevention of
smuggling would be entirely frustrated if a condition of mens rea were to be read into the plain
reading of the enactment.
In the case of Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Others (1973) Supreme
Court said nothing more than that actus reus is needed where, regulation of private activity in
vulnerable areas like public health is intended. Social defence reasonably overpowers individual
freedom to injure, in special situations of strict liability. If you have sold any article of food
contrary to law, you are guilty. The law denies the right of a dealer to rob the health of other.
Jurisprudence of application of strict liability in adulterated food has been explained in American
Jurisprudence which are following ―The distribution of impure or adulterated food for
consumption is an act perilous to human life and health, hence, a dangerous act, and cannot be
made innocent and harmless by the want of knowledge or by the good faith of the seller; it is the
act itself, not the intent, that determines the guilt, and the actual harm to the public is the same in
one case as in the other. Thus, the seller of food is under the duty of ascertaining at his peril
whether the article of food conforms to the standard fixed by statute or ordinance, unless such
statutes or ordinances, expressly or by implication, make intent an element of the offence.‖
(1.12.) OBJECTIVE QUESTIONS
Questions 1. Who is known as father of IPC?
Options – (a) Sir James Fitzjames Stephen

(b) Lord Sir Babington Thomas James Macaulay
(c) Lord Sir James Thomas Babington Macaulay
(d)Lord Sir Thomas James Babington Macaulay
Answer –(d)
Questions 2. IPC, 1860 came into force on –
Options – (a) October 6, 1860
(b) October 6, 1862
(c) January 1, 1860
(d) January 1, 1862
Answer – (d).

44
Questions 3.Who is known as father of IPC? What is the date of enforcement of IPC?
Options –
(a) Sir James Fitzjames Stephen & January 1, 1862
(b) Sir James Fitzjames Stephen & October 6, 1860
(c) Lord Sir Thomas James Babington Macaulay & October 6, 1860
(d) Lord Sir Thomas James Babington Macaulay & January 1, 1862
Answer – (d)
Question – 4 ―In every statute mens rea is to be implied unless contrary is shown‖ was said in
(a) Fowler v. Padget (Lord Kenyon)
(b) Sherras v. De Rutzen (Justice Wright)
(c) Brend v. Wood (Justice Goddard)
(d) R.v. Prince (Blackburn)
Answer – (b).
Question 5. ―In every statute, mens rea is to be implied unless the contrary is shown.‖:
This view was expressed in-
(a) Sherras v. De Rutzen

(b) R. v. Dudley & Stephen
(c) Harding v. Price
(d) R. v. Prince.
Answer. (a).
Question 6.Denotion of mens rea is inferred through
(a) Reason to believe

(b) Voluntarily
(c) Dishonestly
(d) All the above
Answer-(d) All the above
Question 7 –Match List-I with List-II and give the correct answer by using the code given
below:
List - I List-II
(a) Man (i) Section 8

45
(b) Gender (ii) Section 10

(c) Person (iii) Section 9
(d Number (iv) Section 11
Code :
(1) (2) (3) (4)
(a) (i) (ii) (iii) (iv)
(b) (ii) (iv) (i) (iii)
(c) (iii) (i) (ii) (iv)
(d) (ii) (i) (iv) (iii)
Answer – d
below:
List - I List-II
(a) ―Court of Justice‖. (i) Section 18

(b) ―Judge‖ (ii) Section 19
(c) ―India‖. (iii) Section 20
(d) ―Public servant‖. (iv) Section 21
Code :
(1) (2) (3) (4)
(a) (i) (ii) (iii) (iv)
(b) (iii) (ii) (i) (iv)
(c) (iii) (i) (ii) (iv)
(d) (ii) (i) (iv) (iii)
Answer – b
Questions 9.Which of the following combination is wrong?
(a) Section 17 – India

(b) Section 19 – Judge
(c) Section 39 –Voluntarily
(d) Section 40 – Offence

46
Answer –A
below:
List - I List-II
(a) ―Dishonestly‖ (i) Section 22

(b) ―Wrongful gain‖ (ii) Section 23
(c) ―Fraudulently‖ (iii) Section 24
(d) ―Movable property‖ (iv) Section 25
Code :
(1) (2) (3) (4)
(a) (iii) (ii) (iv) (i)
(b) (iii) (ii) (i) (iv)
(c) (iii) (i) (ii) (iv)
(d) (ii) (i) (iv) (iii)
Answer - A
below:
List - I List-II
(a) ―Voluntarily‖ (i) Section 28
(b) ―Counterfeit‖ (ii) Section 39
(c) ―Good faith‖ (iii) Section 40
(d) ―Offence‖ (iv) Section 52
Code : (1) (2) (3) (4)

(a) (iii) (ii) (iv) (i)
(b) (iii) (ii) (i) (iv)
(c) (iii) (i) (ii) (iv)
(d) (ii) (i) (iv) (iii)
Answer – D
Question 12 – Who has given the following definition of crime ―Crime is an act committed or
omitted in violation of public law either forbidding or commanding it.‖

47
(a) Stephan
(b) Blackstone
(c) Kenny
(d) Austin
Answer – b
Question 13 – What are not essential ingredient of ―Nullum Crimen Sine Lege, Nulla Poena
Sine Lege‖-
(a) Retroactivity of penal laws.
(b) Penal statutes must be construed strictly
(c) Certainty in legislation.
(d) Accessibility of the laws.
Answer –A
Question 14 – For the purpose of calculation of life imprisonment, according to section 57 life
imprisonment means –
(a) 10 Years
(b) 20 Years
(c) 30 years
(d) Period of life imprisonment cannot be calculated. A person may survive for 10 years
or 15 years or 50 Years.
Answer - B
Question 15 - Which definition is not correctly match –
(a) Kenny ―Crimes are wrongs which sanction is punitive and is no way remissible
crown.
(b) Stephan ―Crime is an act forbidden by law and which is at the same time
revolting to the moral sentiments of the society.‖
(C) Blackstone ―Crime is an act committed or omitted in violation of public law either
(d) Austin ―Crime is …to be commission or omission of an act which the law
forbids or commands under pain of a punishment to be imposed by the
State by a proceeding in its own name.‖
Answer – (D)
Question 16 - Who will be benefited in case of application of ‗Actus non facitreum, nisi mens sit
rea‘ ?
(a) Accused
(b) Victim
(c) Accused & Victim

48
(d) None of them
Answer- (a) Accused

Question 17 -Which of the following is not example of strict liability?
(a) Rape
(b) Waging war
(c) Selling of obscene books
(d) Culpable Homicide
Answer- (d) Culpable Homicide

Question 18–Who said, ―The general rule applicable to criminal case is actus non facit reum,
nisi mens sit rea…It is of the utmost importance for the protection of the liberty of the
subject…‖
S. No. Name of Case Justice Year

(a) Fowler v. Padget Lord Kenyon 1798
(b) R. v.Tolson Justice Wills 1889
(c) Sherrasv. De Rutzen Justice Wright 1895
(d) Brendv. Wood Justice Goddard 1946
Answer-D
Question 19– Who is known for ‗Revival of Mens rea‘?
a. Lord Kenyon
b. Justice Wright
c. Justice Goddard
d. Justice Wills
Answer - Justice Goddard

Question 20 - Which of the following is wrong?
(a) The Indo-China Steam Section 52A, Sea Smuggling of gold

Navigation Co. Ltd. v. Customs Act, 1878
Jasjit Singh
(b) RanjitD.Udeshi v. State of Section 292, IPC Selling of obscene book
Maharashtra
(c) State of Maharashtra v. FERA, 1947 Smuggling of gold
M.H.George
(d) R.v. Tolson Section 57, Offences Kidnapping

49
Against Person Act, 1861

Answer - (d)
Question 21-Who had written majority opinion of State of Maharashtra v. M.H.George?
(a) Justice Ayyangar,

(b) Justice Subbarao
(c) Justice Mudholkar
(d) JusticeHidayatullah
Answer- (a) Justice Ayyangar

Question 22– Which of the following statements correctly reflects the cardinal principle, ‗actus
non facit reum, nisi mens sit rea‘?
(a) Mensrea is essential element of crime and there cannot be crime without mensrea
(b) Criminal liability under Indian law always implies mensrea
(c) To constitute crime there must be actus reus, mensrea
(d) actus reus is not always necessary to constitute crime.
Answer - (c) To constitute crime there must be actus reus and mens rea.
Question 23 – Which section of Indian Penal Code deals solitary confinement?
(a) Section 73
(b) Section 72
(c) Section 71
(d) Section 70
Answer - (a) Section 73
Question 24 – Which of the following pair is incorrect-
(a) Section 52- Good Faith

(b) Section 38 - ―Voluntarily‖
(c) Section 40 – Offence
(d) Section 44- Injury
Answer- Section 38 - ―Voluntarily‖

Question 25. Match List-I (Jurists) with List-II (Assumptions) and select the correct answer
using the codes given below:
List-I List-II
a. Lord Macauley i. Preparation of Indian Penal Code

50
b. Jeremy Bentham ii. Unwritten jurisprudence on penal principles

c. Kelson iii. Substantive law on crimes
d. Sir Barnes Peacock iv. Revision on Penal law
Code:
a b c d
A. i ii iii iv
B. ii iii iv i
C. iii iv i ii
D. ii iii iv i
Answer. A
Question 26. Match the items of List-I(IPC section) with List-II and choose the correct answer
from the code given below:
List-I List-II
a. Section 44 i. Life
b. Section 45 ii. Death
c. Section 46 iii. Animal
d. Section 47 iv. Injury
Code:
a b c d
A. iv ii iii i
B. ii iii iv i
C. iv i ii iii
D. ii i iii iv
Answer. C
Question 27. How many types of punishments have been prescribed under the Indian Penal
Code:
A. three
B. six
C. five
D. four.
Answer. C
Question 28. Under section 65 of IPC sentence of imprisonment for non-payment of fine shall
be limited to:
a. one-third of the maximum term of imprisonment fixed for the offence

b. one-fourth of the maximum term of imprisonment fixed for the offence

51
c. one-half of the maximum term of imprisonment fixed for the offence

d. equal to the maximum term of imprisonment fixed for the offence
Answer. B.
(1.13.) Previous Years Question Papers in Judiciary Exams
 RJS (1971) –Distinguish between Knowledge, Intention and Motive giving appropriate
illustrations.
 RJS (1971) –Distinguish between Intention and Motive.
 HJS (1988) - Discuss the Doctrine of Mens Rea. How has it been diluted in the case of
‗Strict Liability offences?
 HJS (1988) - What is meant by Mens Rea? Explain the dictum ―Actus Non Facit Reum
Nisi Mens Sit Rea‖. How for motive necessary for determining a crime? Are these any
exceptions to the dictum of Mens Rea? Illustrate your answer.
 HJS (2013) - Write short notes on differences between Knowledge, Intention and
Motive.
 Jharkhand Judicial Exams (2014) - ‗Mens Rea is an essential elements in every crime‘.
Explain this rule and state to what extent it is applicable to the offences under the IPC,
1860.
 DJS (2014) –Write short note on distinguish between Knowledge, Intention and
Motive.
 MPJS (1982) - Write short note on Mens Rea
UP (J)
 UPJS (1982) - Write short note on Mens Rea
 UPJS (1992) – ―Crime is a revolt against the whole society and an attack on the
civilization of the day‖. Elucidate and discuss the essential elements of crime.
Answer - Mrs. Harpreet Kaur Harvinder Singh Bedi v. State of Maharashtra & Anr.
Date of Judgment - 21/01/1992
Supreme Court observed, ―Crime is a revolt against the whole society and an attack on
the civilization of the day…..‖
 UPJS (1992) - Distinguish between Knowledge, Intention and Motive. Indicate the
importance of motive in law of crimes.
 UPJS (2000) – Explain ‗Mens Rea‘ as an element of criminal liability. Is Mens rea
relevant in crime of ‗Strict Liability‘?
 UPJS (2012) – Critically examine the maxim ―Actus Non Facit Reum Nisi Mens Sit
Rea‖ and its exceptions.
 UPJS (2012) – What do you understand by mens rea? What is importance of mens rea
under IPC, 1860? Discuss.

52
DU LL.B Previous Years Question Papers

DU LL.B. (2010) - Question 1 - Explain the essential elements of crime.
DU LL.B. (2011) Question1 - Explain the common law principle of ―actus non facit reum, nisi
mens sit rea‖ with the help of decided case. What are the exceptions, if any, to this principle?
DU LL.B. (2013) Question 1. Write short notes on any two of the followings:
(a) Explain and illustrate distinction amongst ‗motive‘, ‗intention‘ and ‗knowledge‘.
DU LL.B. (2013 & 2015) Question 1. ―The nature of mens rea that will be implied in a statute
creating an offence depends upon the object of the Act and provisions thereof.‖ Discuss with the
help of decided cases.
DU LL.B. (2015) Question1 (a) Explain the rationale behind punishing a person guilty of strict
liability offence in the absence of guilty mind.
DU LL.B. (2016) Question1 (a) - Mens Rea is the very cornerstone of criminal jurisprudence.
DU LL.B. (2016) – Discuss the differences among motive, intention and knowledge.
DU LL.B. (2017) Question 1 - In State of Maharashtra v. M.H. George, AIR 1965 SC 722 the
majority did not hold mens rea to be an essential ingredient of an offence under section 23(1-A)
of the FERA, 1947. Whereas Justice Subba Rao in his dissenting opinion held so. Discuss and
State the reasons for their difference of opinion. Which opinion do you agree with and why?
DU LL.B. (2018) Question (1) (a)
Is mens rea necessary for all crimes? If not, discuss the circumstances when mens rea may be
excluded in fixing criminal liability.
DU LL.B. (2019)
Question (1) (a) - ―Mens Rea by necessary implication can be excluded from a statute only,
where it is absolutely clear that the implementation of the object of statute would otherwise be
defeated.‖ Elaborate this statement with the help of decided cases.
Question (6) (a) – Differentiate between motive, knowledge and intention.
CHAPTER 2

53
Section 299 to Section 300
(2.1.) INTRODUCTION
Homicide is combination of two words i.e. Homo and Cide. Homo means human being and cide
means cutting. In this way homicide means cutting of human being. Homicide is the killing of a
human being by another.90 But all homicide is not punishable. For example, if A kills B in
exercise of his right of private defence which comes under Section 100, he will not be punished.
In this way, homicide can be divided into two parts – (i) justifiable homicide (killing of human
being by another human being is not punishable)91 and (ii) unjustifiable homicide (killing of
human being by another human being is punishable)92.
Homicide
Homo means Human Cide means Cutting
Justified/Excusable Homicide Unjustified/Unexcusable Homicide
General Exception (Ch. IV) Sections 299, 300, 304A and 304B etc.
In State of A.P. v. R. Punnayya & Another93 & 94 Hon‘ble Justice Justice Ranjit Singh Sarkaria
observed, ―In the scheme of the Indian Penal Code, ‗culpable homicide‘ is genus and ‗murder‘
its specie. All ‗murder‘ is ‗culpable homicide‘ but not vice versa. Speaking generally, ‗culpable
homicide‘ sans (sans means without) ‗special characteristics of murder‘, is ‗culpable homicide
not amounting to murder‘. ‗Culpable homicide‘ with ‗special characteristics of murder‘, is
‗culpable homicide amounting to murder‘.‖
90
K.M.Nanavati v. State of Maharashtra AIR 1962 SC 605.
91
If acts come under Chapter IV (General Exceptions – Sections 76 to 106), IPC, that will not be punishable. Such
acts come under either justifiable or excusable category.
92
If any act comes under Sections 299, 300, 304A and 304B etc., such act is punishable by law. Law Commission of
India in its 202 Report (2007) at para 1.5. observed that there are many types of homicide like murder (culpable
homicide amounting to murder) culpable homicide not amounting to murder, causing death by rash and negligence
and death as a result of causing grievous hurt. The Report is available at:
https://lawcommissionofindia.nic.in/reports/report202.pdf (Visited on February 08, 2022).
93
AIR 1977 SC 45.
94
Date of Judgment: September 15, 1976, S.C.

54
Culpable Homicide
Section 299, Section

300 & Section 300
Five Exceptions
Culpable Homicide not Culpable Homicide

amounting to murder amounting to murder
Section 300
Five Exceptions of
Section 299
Section 300
Punishment -
Intention Knowledge Intention Knowledge Section 302
Section 304, Section 304, Section 304, Section 304,

Part 1 Part -2 Part 1 Part -2
(2.2) SECTION 299
There are three parts of Section 299. These are – (1) Main body, (2) Illustrations, and (3)
Explanations. Main body of the Section can further be divided into two parts i.e. actus reus and
mens rea. Section 299 can be understood properly with the help of following SmartArt -

55
Section 299 [Culpable Homicide]
Three Parts
Main Body Illustrations Explanations [Three

[Two Parts] [Three Illustrations] Explanations]
A lays sticks and turf Labouring under a

Actus Reus over a pit disorder, disease or
bodily infirmity
Mens Rea A knows Z to be Resorting to proper

behind a bush. B remedies and skilful
does not know it treatment
Shooting at a fowl with Death of a child in

intent to kill and steal it the mother's womb
There are two ingredients of Section 299 which are following -

(i) Cause-effect relationship (Actus Reus)
―Whoever causes death (Section 4695) by doing an act (Sections 3296 &3397)
(ii) Guilty Mind -
a. Intention to cause death - with the intention (Intention means desire and
foresight of consequences) of causing death, or
b. Intention to cause bodily injury - with the intention of causing such bodily
injury as is likely to cause death (there is no intention to cause death, only
intention is to cause bodily injury) or
c. Knowledge -with the knowledge (knowledge means foresight of consequences)
that he is likely by such act to cause death, commits the offence of culpable
homicide.‖
95
Section 46. ―Death‖ - The word ―death‖ denotes the death of a human being unless the contrary appears from
the context.
96
Section 32. Words referring to acts include illegal omissions.—In every part of this Code, except where a
contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.
97
Section 33. ―Act‖. ―Omission‖. - The word ―act‖ denotes as well as series of acts as a single act: the word
―omission‖ denotes as well a series of omissions as a single omission.

56
The guilty intention in the first two conditions contemplates the intended death of the person
harmed or the intentional causing of an injury likely to cause his death. The knowledge in the
third condition contemplates knowledge of the likelihood of the death of the person.98
Illustrations
There are three illustrations. Illustration (a) is related to sticks and turf over a pit. It is not
intended to kill particular person.99 Illustration (b) is related with knowledge of criminal and
innocent person. In this illustration A knows Z to be behind a bush but B does not know it. This
illustration denies role of innocent person and victim.100 Contribution of third party without mens
rea has been rejected. Third illustration is related to shooting at fowl with intent to kill and steal
it. He was doing without intention or knowledge to kill human being. He was not guilty of
culpable homicide.
Explanations
There are three explanations clarifies the culpable homicide. First Explanation is related
to bodily injury, disorder & disease (BIDIDI) and acceleration of death, second Explanation is
related to proper remedies and skilful treatment and third Explanation is related to child who
has been brought forth even though he has not taken breath.
These explanations are clarifying that merely acceleration of death, resorting of proper remedies
and skilful treatment and child not born completely cannot be taken in defence. Even in these
circumstances persons shall be liable for culpable homicide.
(2.3.) INGREDIENTS OF SECTION 299

There are two ingredients must be fulfilled namely:
(1) Actus Reus - There must be cause-effect relationship, and

(2) Guilty Mind. ―Actus non facit reum, nisi mens sit rea‖ is applicable in case of culpable
homicide and murder.
98
Anda and Ors. v. The State of Rajasthan, March 9, 1965 SC
99
Emporer v. M.S.Murthy (Halva Case) (1912) 22 MLJR 333 (Mad.).
100
Emporer v. M.S.Murthy (Halva Case) (1912) 22 MLJR 333 (Mad.).

57
Section 299
Actus Reus
Mens Rea
[Causa causans ]
Causing Death by doing an act Intention Knowledge
Intention to
knowledge to cause
Intention to cause death cause bodily
bodily injury
injury
Likely to Likely to
cause death cause death
Differences between
Death & Injury
Death Injury
Intention to cause Intention to cause knowledge.....to bodily

death bodily injury injury
Section 299
[ Main Body]
Death [Four Comma Or [Two Intention Likely to Knowledge

Times] [Three Times] Times] [Two Times] [Two Times] [One Time]

58
(2.3.1.) First Condition

First condition of section 299 is related to actus reus. Actus reus involves meany things -
1. There must be death. If there is no death, no further question arises.

2. If there is death, next question is by whose act death had been caused.
3. If it is established that death has been caused by act of the person, next question arises
whether there is proximate relationship or remote relationship. It means Causa causans
must be proved. Causa causans means immediate cause. There must be cause and effect
relationship. This is the based on ‗Proximity Rule‘.
There are following leading cases on this topic -

(1) Stephenson v. State101 - In this case Stephenson was plotical leader of Ku Klux Klan in
Indiana. He was in relationship with Madge Oberholtze. Later on relation of both became
strange. He called him in pretext. He raped many times. He brutely injured. Victim in her
dying declaration said, ―he chewed her all over her body; bit her neck and face; chewed
her tongue; chewed her breasts until they bled and chewed her back, her legs, and her
ankles, and mutilated her all over her body.‖102 She consumed poison. Her omitted blood
many times in hotel. He was saing that he would call doctor when she would get marry.
After some time she became unconscious. He orderd his associate to drop her home in
believe that after few hours she would die. They informed their parents that she was
injured in accident. She became conscious. She narrated whole accident. After few days,
she died. Indiana Supreme Court observed, ―if a defendant engaged in the commission of
a felony such as rape... inflicts upon his victim both physical and mental injuries, the
natural and probable result of which would render the deceased mentally irresponsible
and suicide followed, we think he would be guilty of murder‖.
(2) Moti Singh and Anr. v. State of U.P.103 & 104 ( Jan. 23, 1963). Primary cause and the
death should not be too remote. You have to prove that by act of accused, death of victim
has occurred.
Facts
Deceased had been injured during the occurrence and had been taken to the hospital
where his dying declaration was recorded. He left the hospital and died 20 days later.
Before any postmortem examination could be held, his body was cremated.
Decision
Prosecutor could not prove what the reason of cause of death of victim was whether it
was injury caused by accused or negligence in taking medicine after discharge of
hospital.
101
(Md. 1932) 179 N.E. 633.
102
G. C. T., ‗Criminal Law and Procedure: Homicide: Causal Relation between Defendant‘s Unlawful Actand the
Death‘ Michigan Law Review, Vol. 31, No. 5 pp. 659 (Mar., 1933).
103
AIR 1964 SC 900
104

59
Moti Singh and Jagdamba were acquitted.

(3) Joginder Singh v. State of Punjab105 (1979)
The deceased Rupinder Singh had teased the sister of accused. In retaliation accused
reached at the house of deceased. Seeing these things deceased started to run away.
Accused tried to hold deceased. Accused was about 15 to 20 feet away from victim when
victim jumped into well. There was no cause & effect relationship. Here cause and effect
means, there must be death of victim by act of accused.
If this condition is not being fulfilled, no further question regarding intention or knowledge.
(2.3.2.) Second Condition

Section 299 is based on Actus non facit reum, nisi mens sit rea. Second condition for application
of Section 299 is ‗Guilty Mind‘/ Mens Rea. Act must be done with guilty mind. Reg v.
Govinda106 on
There are three degrees of mens rea-
(i) Intention to cause death, or

(ii) Intention to cause such bodily injury as is likely to cause death, or
(iii)With the knowledge that he is likely by such act to cause death. Here ‗likely‘ word
denotes probability. By aiding some special words, this probability would be converted
into certainty. Then culpable homicide would be converted into murder.
Section 299 -Mens Rea

(a) Intention to cause Death First Degree
(b) Intention to cause Bodily Injury Likely to Death Second Degree
(c) Knowledge Bodily Injury Likely to Death Third Degree
In absence of guilty mind, person would not be liable for Culpable Homicide. For example,
dispute was going on between husband and wife. Wife was along with baby. Husband struck
a blow on her body rather than vital part of her body. Accidently that blow struck baby and
baby died.
 Husband was not doing lawful work. So he would not get benefit of section 80.
 He had no intention to cause death of his wife or his blow was not sufficient to cause
death of her wife. So, neither Section 299 nor Section 300, IPC is applicable. So,
Section 301 IPC which deals transfer of malice is also not applicable.
 If B knew that the woman was carrying the child in her arms and his blows might hit
the child, he will be liable under Section 304-A.
 If he did not know about child, he will be liable only for causing voluntarily hurt.
105
AIR 1979 SC 1876.
106
(1877) ILR 1 Bom 342. Date of Judgment July 18, 1876.July, 1876

60
Emperor v. Mushnooru Suryanarayana Murthy
Figure: 1.4 (Halva and Insurance)

Emperor v. Mushnooru Suryanarayana Murthy107 was decided by Madras High Court in 1912.
This case is known as ‗Halva Case‘.
Facts - M.S. Murthy was not intended to kill Rajalakshmi. He was intended to kill Appala
Narasimhulu, (on whose life he had effected large insurances without Appala Narasimhulu‘s
knowledge, and in order to obtain the sums for which he was insured), gave him some sweetmeat
(halva) in which a poison containing arsenic and mercury in soluble form had been mixed.
Appala after eating some poisonous sweetmeat (halva) threw the remaining halva.Without
knowledge of M.S. Murthy (accused), the girl (Rajalakshmi) took the halva and shared with
friends. They ate and died subsequently.
Crux of Fact –
 There was intention to cause death of Appala Narasimhulu.
 Motive to cause death of Appala Narasimhulu was to receive insurance money.
 There was neither intention nor knowledge to cause death of Rajalakshmi.
107
(1912) 22 MLJR 333 (Mad.)

61
M.S. Murthy
[Accused]
It haapened at
the house of
Brother-in-law
Targated Victim Real Victim
Appala
Narasimhulu Death
Appala Daughter of Death of one more children

Narasimhulu brother-in-law with whom Rajalakshmi
survived [Rajalakshmi] shared halva.
SmartArt: 9
Issues –
1. Whether M.S. Murthy is guilty of the murder of Rajalakshmi?
Answer - Yes
2. Whether causing death of particular person is necessary to make liable him for culpable
homicide or murder?
Answer – No. It becomes clear from Section 299, Illustration (a).
3. Whether contributory action of victim provides exemption to accused from liability of
culpable homicide or murder?
Answer- No. Section 299, Illustration (a).
4. Whether contributory action of third person provides exemption to accused from liability
of culpable homicide or murder?
Answer – No. Section 299, Illustration (b).
5. Is Section 301 [Transfer of Malice] applicable in the facts of this case?
Answer - Yes.
He was liable for murder under section 302. But in this case section 299 was also discussed very
thoroughly.
Majority Opinion was written by Hon‘ble Justice Benson & Hon‘ble Justice Rahim . In this case
Madras High Court discussed following important points –
(1) Intention to cause particular person is not necessary
(2) Contributory action of victim does not resolve the accused from his liability.
(3) Contributory action of third person does not resolve the accused from his liability.
(4) Contributory action of third party is also not relevant.

62
(1) Death of Particular person - Intention to cause death of particular person is not necessary. It
becomes very clear after cumulative readings of Sections 299 to 301 and illustrations of these
sections.
Section 299 of the Indian Penal Code says: ―Whoever causes death by doing an act with the
intention of causing death or with the intention of causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.‖
It is to be observed that the section does not require that the offender should intend to kill (or
know himself to be likely to kill) any particular person. It is enough if he ―causes the death‖ of
any one, whether the person intended to be killed or anyone else.
Section 299, Illustration (a) – This is clear from illustration (a) of Section 299 which is
following– ―
 A lays sticks and turf over a pit, with the intention of thereby causing death, or with the
knowledge that death is likely to be thereby caused.
 Z, believing the ground to be firm, treads on it, falls in and is killed. A has committed the
offence of culpable homicide.‖
(2) Contributory action of victim – Contributory action of victim is also not relevant. In
illustration (a), Z went and fell into the pit. He died. A was liable for culpable homicide.
(3) Contributory action of third party-

Nor is it necessary that the death should be caused directly by the action of the offender, without
contributory action by the person whose death is caused or by some other person. That
contributory action by the person whose death is caused will not necessarily prevent the act of
the offender from being culpable homicide, even if the death could not have occurred without
such contributory action, is clear from the illustration (b), and that contributory action by a third
person will not necessarily prevent the act of the offender from being culpable homicide, even if
the death could not have occurred without such contributory action, is clear from the second
illustration of Section 299.
Section 299, Illustration (b) –
 A knows Z to be behind a bush.
 B does not know it.
 A, intending to cause, or knowing it to be likely to cause, Z‘s death, induces B to fire at
the bush.
 B fires and kills Z.
 Here B may be guilty of no offence;
 but A has committed the offence of culpable homicide.
(4) Transfer of Malice (Section 301) - Accused in the present case is guilty of murder, and this
is rendered still more clearly by Section 301 of the Code. The cases in which culpable homicide
is murder under Section 301 are not confined to cases in which the act by which the death is

63
caused is done with the intention of causing death. Section 301 specifies other degrees of
intention or knowledge which may cause the act amount to murder;
The language of section 299, Section 300, Section 301 and illustrations show that neither the
contributory action of Appala Narasimhulu in throwing away part of the sweetmeat, nor the
contributory action of the girl in picking it up and eating it prevent holding that it was the
accused that caused the girl‘s death.
Conclusion –
 M.S. Murthy was convicted for causing murder of Rajalakshmi.
 He had not challenged his conviction for attempt to murder of Appala.
The Empress v. Gonesh Dooley and Gopi Dooley108

This case was decided by Calcutta High Courton July 28, 1879. Author of judgment was Justice
Mcdonell.
A snake charmer exhibited in public a venomous snake whose fangs he knew had not been
extracted and to show his own skill but without intention to cause harm to anyone, placed the
snake on the head of the one of the spectators. The spectator in trying to push off the snake was
bitten and died in consequence. The snake charmer was held guilty of culpable homicide not
amounting to murder. Gopi who abetted Ganesh was punished under Sections 114 and 304 IPC.
Ratio of The Queen v. Poonai Fattemah (Snake Charmenr Case)109 was not applied in this case.
The Court observed, ― In Poonai Fattemah Case the prisoner actually caused the snake to bite
the person who was killed. It differs materially from the present case, because then there was
clearly the knowledge of imminent danger that must in all probability cause death.
(2.4.) Relation between ‗Mens Rea‘ and ‗Actus Reus‘
108
(1880) ILR 5 Cal 351. Available at: https://indiankanoon.org/doc/144177/ (Visited on February 8, 2022).
109
(12 W.R., Crim. Rul., 7). In this case the accused, professing to be a snake charmer, persuaded the deceased to
allow himself to be bitten by a poisonous snake under the impression of a belief that he possessed the powers to
protect him from the bite which he could not subsequently. It was held that the deceased‘s consent did not excuse
the accused from criminal liability. Here consent was given under misconception of fact. It was not free consent.

64
Relation between ‗Mens Rea‘ and ‗Actus Reus‘110has been discussed through many cases.
Section 299 does not cover under ‗Principle of Strict Liability‘. So both i.e. atus reas and mens
rea should be present in each case. If either is missing, person can‘t be punished for culpable
homicide. With the help of some leading cases, realtion between both ingredients can be
discussed. On this point Palani Goundan v. Emperor and In Re Thavamani Case are leading
cases. These are are following -
(1) Palani Goundan v. Emperor
Palani Goundan v. Emperor111 was decided by Madras High Court on April 07, 1919.
110
Previous Years Question Papers
LL.B. –DU 2016
Question 1(a) –
 A, B, and C assaulted their junior and fresher X in their hostel room while ragging him. They punched and
kicked him on non-vital parts of his body as he refused to dance on a song played by them on their mobile
phone. X fell down and became unconscious.
 Presuming him to be dead they hanged him from the ceiling fan by a rope, so as to create an impression
that X had committed suicide.
 The post-mortem examination showed that death was due to asphyxiation. Decide culpability of A, B and C
with the help of decided case.
Answer:
In this problem sections 201, 299, 321 & 323 and ratio of Palani Goundan v. Emperor (1919, Mad. H.C.) are
involved.
LL.B. – DU 2018
Question (5) (a) –
 ‗A‘ was in the habit of beating up his wife over trivial issues.
 One day, during such fight, ‗A‘ picked up a lathi lying nearby and hit his wife on her head. Consequent to
the lathi blow, the woman fell unconscious.
 Believing her to be dead he hung her body by a rope in order to create an appearance that the wife
committed suicide. However, postmortem examination showed that death was due to hanging.
 With the help of decided cases determine the culpability of A.
Answer – Palani Goundan v. Emperor [1919, Mad. H.C.] ‗A‘ has not committed culpable homicide. He has
committed voluntarily grievous hurt.
Remarks – Answer depends upon your arguments. If you are able to give reasonable arguments, matter may come
under Section 300, thirdly.
111
1919 ILR 547 (Mad)

65
Division Bench - Hon‘ble Justice Napier and Hon‘ble Justice Sadasiva Ayyar.
For Opinion – There was contradictory opinion of Justice Napier and Justice Ayyar. Matter was
referred to Hon‘ble Justice Wills.
Total Three Judges –
1. Hon‘ble Justice Napier
2. Hon‘ble Justice Sadasiva Ayyar
3. Hon‘ble Justice Wills.
FACTS
 Palani Goundan [Husband] struck a violent blow on the head of his wife (Ramayee) with
ploughshare on October 23, 1918.
 She became senseless.
 He believed her to be dead and in order to lay the foundation for a false defence of
suicide by hanging, which he afterwards set up, proceeded to hang her on a beam by a
rope.
 In fact the first blow was not a fatal one and the cause of death was asphyxiation by
hanging which was the act of the accused.
 The accused did not intend to cause death. He intended to cause bodily injury. It was not
shown that the blow was likely to cause death.
ISSUES –
1. Was Palani Goundan [Husband] had caused death of his wife (Ramayee) with
ploughshare?
Answer – No. She died when he hanged her with beam. She died of asphyxiation.
2. Was Palani Goundan [Husband] convicted for culpable homicide/murder for causing
death of his wife (Ramayee)?
Answer – Palani was neither convicted for culpable homicide nor murder.
3. Had Palani committed offence of grievous hurt and offence of concealing evidence?
Answer – Yes. Palani had committed offence under Section 326 112 and Section 201113,
IPC, 1860.
Session Court -
The accused was convicted for murder of his wife by the Sessions Judge of Coimbatore.
Madras High Court – Appeal was preferred by Palani to Madras High Court. Matter was
decided by Hon‘ble Justice Napier and Hon‘ble Justice Sadasiva Ayyar. Opinion of both judges
112
Section 326. Voluntarily causing grievous hurt by dangerous weapons or means.
113
Section 201: Causing disappearance of evidence of offence

66
was contradictory. The Division Bench referred the matter to Hon‘ble Chief Justice Wallis for
his opinion.
Opinion of Chief Justice Wallis
There are following important points were discussed and observed by Hon‘ble Justice Wallis -
Ratio – The conclusion is irresistible that the intention of the accused must be judged, not in the
light of the actual circumstances, but in the light of what he supposed to be the circumstances.
It follows that a man is not guilty of culpable homicide if his intention was directed only to what
he believed to be a lifeless body.
Conclusion of Justice Wallis -
1. The accused cannot be convicted either for murder or culpable homicide.
2. He can, of course, be punished both for his original assault on his wife and for his attempt
to create false evidence by hanging her.
3. With the above, the matter was returned to the referring to Division Bench. It was said
that the Bench will decide punishment.
Chief Justice Wallis [Accused had not

committed CH or murder]
Justice Sadasiva Ayyar

Justice Napier [Accused [Accused has not committed
has committed murder] murder]
Remarks - When the case came on again for hearing before the Division Bench, the court
convicted the accused of grievous hurt under section 326, IPC and concealing for evidence.
Conclusion
[Final Decision]
 He was not liable either for culpable homicide or murder.
 He was liable for causing of grievous hurt under section 326, IPC.
 He was liable for concealing evidence.
 Reason - He had neither intention nor knowledge to kill his wife.
(2) IN RE THAVAMANI CASE

67
In Re Thavamani Case114 was decided by Madras High Court March 29, 1943. Author of
Judgment was Justice King.
FACTS
There were two accused that were tried for causing murder. There are following crux of facts -
1. First accused was gardener employed in the garden by Meenakshi (Deceased).
2. Second accused [Thavamani] was friend of first accused. He was in need of money at the
time.
3. Motive – To take chain and other ornaments and gain property. Chain was sold to P.W.
15. Proceeds of the sale of this portion of the chain were divided between the two
accused.
4. Intention – There was intention to cause death.
5. Method of killing & Confession – Method and manner of killing were narrated by
second accused in his confession. He narrated, ―After the first attack had been made upon
the deceased he (second accused) prevented her leaving the garden and then seized her
legs and held her tight while, according to the confession, the murder was completed.
After she had died the first and second accused threw the body into the well‖.
Issue – Was Thevamani [Second accused] had caused murder?
Answer - Yes. Decision of Session Court was confirmed and Thevamani [Second accused] was
convicted for murder. Reason was that from the very beginning they had intention to cause
death.
Evidence –
 There is no direct evidence of the offence and there is no direct evidence from the post
mortem certificate or the testimony of the doctor as to the cause of death.
 The body when found had marks of three punctured wounds upon the head; but those
wounds by themselves according to the doctor would not be sufficient to cause death.
114
AIR 1943 Mad. 571.

68
 P.W. 15 & P.W. 16 confirmed story narrated by accused second. Conduct and
confession of second accused were also relevant for his conviction.
 Ratio of Palani Goundan v. Emperor (1919) was not applied in this case.
Decision of Session Court –

 First accused was acquitted.
 Second accused was convicted.
High Court
There are two stages of the facts of the case.
(1) First stage - In the first stage there was intention to cause death. They hit the woman
(Meenakshi Achi) when she was in her flower garden. They thought that she had died. In
reality she was merely unconscious.
(2) Second stage - After believing her death they threw into well to conceal evidence. She
died in well.
Second stage was continuation of first stage. So he was guilty of murder.
Differences
There are following differences between Palani Goundan Case and In Re Thavamani Case -
S. No. Palani Goundan Case In Re Thavamani Case
1 This case was decided in 1919. This case was decided in 1943.
2 From the very beginning there was From the very beginning there was
intention to cause bodily injury. intention to cause death.
3 Public Prosecutor failed to prove that Everything was proved properly.
causing injury by ploughshare was likely to
cause death.
4 Liable for causing of grievous hurt and Liable for causing murder
concealing evidence.
Problem115 1(a) - A, B, and C assaulted their junior and fresher X in their hostel room while
ragging him. They punched and kicked him on non-vital parts of his body as he refused to dance
on a song played by them on their mobile phone. X fell down and became unconscious.
Presuming him to be dead they hanged him from the ceiling fan by a rope, so as to create an
impression that X had committed suicide. The post-mortem examination showed that death was
due to asphyxiation. Decide culpability of A, B and C with the help of decided case.
Solution:
In this problem sections 201, 299, 321& 323 and ratio of judgment of Palani Goundan v.
Emperor (1919, Mad. H.C.) are involved. Actus non facit reum, nisi mens sit rea means the act
itself does not make a man guilty, unless the mind is also guilty.
115
LL.B. –DU 2016.

69
Section 321 related to voluntarily causing hurt and its punishment has been provided under
section 323. Section 299 deals culpable homicide.
Section 299 Culpable Homicide - Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily injury as is likely to cause death, or
with the knowledge that he is likely by such act to cause death, commits the offence of culpable
homicide.
There are two parts of section 299. First part i.e. ―Whoever causes death by doing an act‖ is an
actus reus i.e prohibited act. There must be cause effect relationship. Second part deals mens rea
i.e. guilty mind. Second part may be divided into three parts namely (a) Intention to cause death
or (b) Intention to cause bodily injury or (c) Knowledge. If either condition is missing, section
299 shall not be applicable.
Palani Goundan v. Emperor (1919, Mad. H.C.)

Husband struck a violent blow on the head with ploughshare. She became unconscious. It was
not shown to be a blow likely to cause death. He thought that she had died. So for concealment
of evidence, he hanged her. She died due to hanging. He was not liable either for culpable
homicide or murder. He was liable only for causing of grievous hurt and concealing evidence.
He had neither intention nor knowledge to kill his wife.
Evaluation of problem
Section 299
(i) Cause – effect relationship
Here cause-effect relationship means death must be occurred by act of accused. If reason
of death is not act of accused then no further question arises regarding application of
guilty mind. In the Moti Singh v. State of U.P., Supreme Court said that there must be
connection between the primary cause and the death which should not be too remote.
In this problem Z died due to hanging him by all accused from the ceiling fan by a rope.
So in this case first condition of section 299 is being fulfilled.
(ii) Guilty Mind – Without guilty mind homicide is possible but culpable homicide is not
possible. In this problem there was no intention to cause death. Although there was
intention to cause bodily injury but bodily injury was on non-vital part by which there
was no probability to cause death. Here knowledge was that they were inflicting the
injury on non-vital part. But by that injury there was no probability to cause death.
So in this problem guilty mind as required under section 299 is missing.
So conclusion is that they will not be liable to culpable homicide. Here death occurred
due to hanging. At the time of hanging mere intention was to conceal the evidence rather
than to cause death.
Palani Goundan Case

70
In this case it was held, ―The conclusion is irresistible that the intention of the accused must be
judged, not in the light of the actual circumstances, but in the light of what he supposed to be the
circumstances. It follows that a man is not guilty of culpable homicide, if his intention was
directed only to what he believed to be a lifeless body.‖
In this problem they presumed him to be dead. So they hanged him from the ceiling fan by a
rope, so as to create an impression that X had committed suicide.
So we can say that they had not committed culpable homicide.
Voluntarily Causing Hurt
According to section 319 a person who causes bodily pain, disease or infirmity to any
person is said to cause hurt. Hurt is not punishable because here guilty mind is missing. Only
voluntarily causing hurt is punishable. According to section 321 if hurt is caused with the
intention or knowledge then it is called voluntarily causing hurt which is punishable under
section 323.
In this problem A, B, and C had caused hurt voluntarily. This hurt is not coming under the
category of grievous hurt as mentioned in section 320. So they will be liable for voluntarily
causing hurt.
Disappearance of evidence (section 201)
impression that X had committed suicide. So they will be punished under section 201.
Conclusion
From the above discussion it becomes clear that A, B, and C had not committed culpable
homicide. They had committed offences under section 323 (voluntarily causing hurt) and section
201(Disappearance of evidence) of IPC, 1860.
Emperor v. Dhirajia (1940)

She jumped into the well along with her baby and her baby died. She jumped into the well with
excuse. Excuse was that she did due to fear of her husband who was running behind her.
Allahabad High Court held that every sane person shall be presumed to have knowledge about
his/ her own conduct. She had done with excuse. So she was liable only for culpable homicide
rather than murder.

71
(2.5.) RELATION BETWEEN HOMICIDE, CULPABLE HOMICIDE & MURDEER
‗Culpable Homicide‘ and ‗Murder‘ is the weakest part of the Code

because in both cases death of a person is involved as well as intention
and knowledge.
Sir James Fitzjames Stephen116
The distinction lies between a bodily injury likely to cause death and a
bodily injury sufficient in the ordinary course of nature to cause death.
The distinction is fine but real, and, if overlooked, may result in
miscarriage of justice.117
Hon‘ble Justice Ranjit Singh Sarkaria118
SECTION 299
Section 299
Original According to Justice Melvill
It has not been divided Justice Melvill divided it among

among (a), (b) & (c) (a), (b) & (c)
116
He is known as ‗Father of Indian Evidence Act, 1872‘.
117
This statement was made to draw differences between Section 299 (b) & Section 300, Thirdly.
118
State of Andhra Pradesh v. Rayavarapu Punnayya & Another. Date of judgment: September 15, 1976.

72
Section 299 (Original) Section 299 (According to Justice Melvill)

Section 299. Culpable homicide. Section 299. Culpable homicide. - Whoever causes
- Whoever causes death by doing death by doing an act
an act with the intention of
(a) with the intention of causing death, or
causing death, or with the
(b) with the intention of causing such bodily
intention of causing such bodily
injury as is likely to cause death, or
injury as is likely to cause death,
(c) with the knowledge that he is likely by such
or with the knowledge that he is
act to cause death,
likely by such act to cause death,
commits the offence of culpable homicide.
commits the offence of culpable
homicide.
SECTION 300
Section 300
Original According to Justice Melvill
It has been divided among Justice Melvill divided it among

2ndly, 3rdly, 4thly. 1stly 1stly, 2ndly, 3rdly, 4thly.
word had not been used
Section 300
Section 300 [Original] Section 300 (According to Justice Melvill)

73
Section 300. Murder. Except in the cases Section 300. Murder. Except in the cases
hereinafter excepted, culpable homicide is hereinafter excepted, culpable homicide is
murder, if the act by which the death is murder, if the act by which the death is
caused is done with the intention of causing caused is done
death, or - 1stly119 -with the intention of causing death,
2ndly. - If it is done with the intention of or
causing such bodily injury as the offender 2ndly. - If it is done with the intention of
knows to be likely to cause the death of the causing such bodily injury as the offender
person to whom the harm is caused, or - knows to be likely to cause the death of the
3rdly. - If it is done with the intention of person to whom the harm is caused, or -
causing bodily injury to any person and the 3rdly. - If it is done with the intention of
bodily injury intended to be inflicted is causing bodily injury to any person and the
sufficient in the ordinary course of nature to bodily injury intended to be inflicted is
cause death, or - sufficient in the ordinary course of nature to
4thly. - If the person committing the act cause death, or -
knows that it is so imminently dangerous 4thly. - If the person committing the act
that it must, in all probability, cause death, knows that it is so imminently dangerous
or such bodily injury as is likely to cause that it must, in all probability, cause death,
death, and commits such act without any or such bodily injury as is likely to cause
excuse for incurring the risk of causing death, and commits such act without any
death or such injury as aforesaid. excuse for incurring the risk of causing
death or such injury as aforesaid.
Murder
There are two

limb of Murder
Culpable Four Conditions

Homicide [Anyone is sufficient]
INTRODUCTION
There are two types of homicide namely; lawful homicide (Sections 76 to 106) and unlawful
homicide (299, 300, 301, 304A, 304B, 305, 306,307 and 308). All homicide is not culpable
homicide (unlawful homicide). But all culpable homicide is homicide. All culpable homicide is
not murders, but all murders are culpable homicide.
Example – Suppose there are three culpable children namely A, B and C. Age of all is 18 years
(Homicide). But at the sharp age of 18 years A died but B and C completed age of 60 Years
119
Justice Melvill used number (1) rather than 1stly.

74
(Culpable Homicide). But at the sharp age of 60 years B died, but C still surviving and
completed age of 90 years (Murder).
Age of 18 years is equal to - Homicide.
Age of 60 years is equal to - Culpable Homicide.
Age of 90 years is equal to - Murder.
C is person who completed age of 90 years. But before completing age of 90 years, he had to
complete age of 18 years (Homicide). He had also completed age of 60 years (Culpable
Homicide). After completing age of 60 years, he also completed age of 90 years. So all murder is
culpable homicide but all culpable homicide is not murder. All culpable homicide is homicide
but all homicide is not culpable homicide.
Introduction of Section 300
Homicide
Justified Homicide Unjustified Homicide
Culpable Homicide
C. H. which could not CH which could enter

enter into Section 300 into Section 300
[CH + Four parts of
Mens Rea = Murder]
Murder - Five Exceptions = These are murder but due to

Culpable Homicide not exceptional circumstances have
amounting to murder been excluded from murder and
(Murder). come under Culpable Homicide
COUNTING FROM HOMICIDE

Murder (Sub-Species)
Culpable Homicide (Species)
Homicide (Genus)
COUNTING FROM CULPABLE HOMICIDE

75
Hon‘ble Justice Justice Ranjit Singh Sarkaria observed, ―In the scheme of the Indian Penal
Code, ‗culpable homicide‘ is genus and ‗murder‘ its specie. All ‗murder‘ is ‗culpable homicide‘
but not vice versa.120
Murder (Species)
Culpable Homicide (Genus)
(I) All homicides are not Culpable Homicide (II) All Culpable Homicides are not murder.
Three babies A, B & C were born at same time. A died before attaining 18 years. B died before
attaining 60 years. C died after attaining 90 years. This can be applied to understand relation
between all these three.
Homicide Culpable Homicide Murder
(I) All murders are Culpable Homicide (II) All Culpable Homicides are homicide.
Homicide Culpable Homicide Murder
HOMICIDE-(1st Stage)
Homicide means killing of human being. All homicides are not punishable, for example, any
homicide which comes under chapter IV (Sections 76-106) of IPC. Here, there is a relation
between cause and death but guilty mind is absent. Actus non facit reum, nisi mens sit rea. It
means, the act itself does not make a man guilty, unless his intention was so.
When a homicide is committed with guilty mind, that homicide would be either culpable
homicide or murder. So, it is said that all homicide is not culpable homicide, but all culpable
homicide is homicide. Preparation to commit murder is not punishable offence.121
CULPABLE HOMICIDE – (2nd Stage)
When homicide is done with guilty intention or knowledge and degree of intention or knowledge
is higher, then it is culpable homicide.
MURDER-3rd Stage
120
State of A.P. v. R. Punnayya & Another
121
U.P.H.J.S. Pre. 2009

76
When homicide is done with guilty intention or knowledge and degree of intention or knowledge
is highest, then it is murder.
Difference between Culpable Homicide and Murder depends upon degree of intention and
knowledge.
Difference among Homicide, Culpable Homicide and Murder depends upon mental condition of
human being. If person is doing without intention to commit wrong that will amount only
Homicide. For example death caused by person under section 100 or 103 is merely homicide.
If homicide is caused with guilty mind that will amount to culpable homicide. If there is higher
degree of guilty mind that culpable homicide amount murder. There are five exceptions of
murder. All exceptions are murder but they have been put under categories of culpable homicide
because of special reasons.
DIVISION OF CULPABLE HOMICIDE AND MURDER

It may be divided on the basis of two grounds mental condition and nature of injury.
Differences between Culpable Homicide & Murder
Two grounds
Gravity of mens rea Nature of injury
Mental condition - Culpable Homicide and murder may be divided into two parts on the ground
of mental condition namely;
(1) Culpable Homicide and murder caused with intention and
(2) Culpable Homicide and murder caused with knowledge.
Nature of Injury - Culpable Homicide and murder may be divided into two parts on the ground
of nature of injury namely;
(1) Intention to cause death or
(2) Intention to cause bodily injury, and
(3) Knowledge of act.
(2.6.) Leading Cases regarding differences between Culpable Homicide and Murder
There are two leading cases in which differences between culpable homicide and murder were
discussed thoroughly. These are –
1. R v. Govinda, July 18, 1876, Bombay High Court
2. State of A.P. v. R. Punnayya, September 15, 1976, Supreme Court.

77
R v. Govinda was decided by Hon‘ble Justice Melvill. State of A.P. v. R. Punnayya was decided
by Hon‘ble Justice Ranjit Singh Sarkaria.
S. No. R v. Govinda State of A.P. v. R. Punnayya
1 Bombay High Court Supreme Court
2 July 18, 1876 September 15, 1976
3 Hon‘ble Justice Melvill Hon‘ble Justice Ranjit Singh Sarkaria
4 Causing death of wife Causing death under political vendetta
R v. Govinda,
(Justice Melvill, Bombay High Court, July 18, 1876)
Facts –
 Govinda, a young man of 18, appears to have kicked his wife, (a girl of 15) and to have
struck her several times with his fist on the back. These blows seem to have caused her
no serious injury. She, however, fell on the ground.
 He then put one knee on her chest, and struck her two or three times on the face. One or
two of these blows were violent and were delivered with the closed fist, took effect on the
girl‘s left eye, producing contusion122 and discoloration. The skull was not fractured, but
the blow caused an extravasation (disculpable homicidearge) of blood on the brain, and
the girl died in consequence either on the spot, or very shortly afterwards.‖
Session Court – Govinda was convicted for murder by Session Court.

Decision - Prisoner was convicted of culpable homicide not amounting to murder, and he was
sentenced to transportation for seven years.
Ratio-
(1) Justice Melvill made differences between culpable homicide and murder. For convenience he
divided guilty mind for culpable homicide under three categories namely; (a), (b) and (c). He
made three categories to make difference namely;
(1) Intention to cause death, [Section 299 (a) and Section 300 Firstly]
(2) Intention to cause bodily injury, [Section 299 (b), and Section 300, Secondly & Thirdly]
(3) Knowledge of act. [Section 299 (c) and Section 300, Fourthly]
(2) Intention to cause death, [Section 299 (a) and Section 300 Firstly] - There is no difference
between culpable homicide and murder on the point of intention to cause death.
(3) Intention to cause bodily injury, [Section 299 (b), and Section 300, Secondly] - The
offence is murder [Section 300 secondly], if the offender knows that the particular person injured
is likely, either from peculiarity of constitution, or immature age, or other special circumstance,
122
Contusion means a wound in which the skin is not broken; often having broken blood vessels and discolouration.

78
to be killed by an injury which would not ordinarily cause death. Illustration (b) of section 300
clarifies this points.
(4) Intention to cause bodily injury, [Section 299 (b), and Section 300, Thirdly] The offence is
culpable homicide, if the bodily injury intended to be inflicted is likely to cause death; it is
murder, if such injury is sufficient in the, ordinary course of nature to cause death.
Practically, it will generally resolve itself into a consideration of the nature of the weapon used.
A blow from the fist or a stick on a vital part may be likely to cause death; a wound from a sword
in a vital part is sufficient in the ordinary course of nature to cause death.
(5) Section 299(c) and Section 300 (4) intended to apply to cases in which there is no intention to
cause death or bodily injury.
(6) Degree of risk to human life is ground to make difference - Whether the offence is
culpable homicide or murder, depends upon the degree of risk to human life. If death is a likely
result, it is culpable homicide; if it is the most probable result, it is murder.
Application of Law in this fact –
1. There was death of wife. It was homicide.
2. Death was unjustified homicide. It was not coming under General Exceptions.
3. It was not caused with intention of causing death. So Section 299 (a) is not applicable.
4. There was intention to cause bodily injury. So it is culpable homicide under Section 299
(b). There was no particular knowledge. So it will not come under section 300, secondly.
5. It was not sufficient in ordinary course of nature of death. So section 300 thirdly will not
be applicable.
Conclusion – There was culpable homicide under section 299 (b). It was punishable under
Section 304 Part 1. He was sentenced to transportation for seven years.
(2.6.1.) Intention to Cause death

[Section 299 (a) and Section 300 Firstly]
In R. v. Govinda Justice Melvil observed that that there is no difference between Section299 (a)
and Section 300 Firstly on the point of intention to cause death.
Rawalpenta Venkalu & Anr. v. State of Hyderabad123
Date of Judgment – October 07, 1955 [The judgment is not available on website of SC]
123
AIR 1956 SC 171

79
Bench –Full Bench
 Hon‘ble Justice Vivian Bose

 Hon‘ble Justice B. Jagannadhas
 Hon‘ble Justice B.P. Sinha.
Author of Judgment: Justice B.P. Sinha.
Summary –
Facts
Victim & His Party Accused & His Party
Md. Moinuddin Four Two Three

[Deceased] employees accused accused
Both were convicted Three were

for death sentence acquitted
Rawalpenta Bodla Ram

Venkalu Narsiah
Facts –
 On the night between the 18th and 19th February, 1953 Rawalpenta Venkalu and Bodla
Ram Narsaih along with the three others (acquitted by the learned trial Judge) in
pursuance of a conspiracy to commit the murder of Md. Moinuddin had set fire to the
single room hut in which he was sleeping, after locking the door of the room from
outside. An old servant (PW 8), who was sleeping in front of the cottage outside the room
occupied by the deceased, was awakened by the noise of the locking of the door from
outside. Just at that time Moinuddin also called out for him from inside and asked him to
open the door. The servant replied that he could not do so as he found the door locked
from outside. Three other employees of Moinuddin, who were watching his harvest about
fifty paces away, were also called out by him. When they came near the cottage, they
were assaulted by the culprits. Kasim Khan was beaten severely. The two appellants then
set fire to the cottage and the employees of Moinuddin were kept at bay by the superior
force of the accused and their associates. Those employees naturally, therefore, went
towards the main habitation in the village shouting for help. When the villagers came, the
appellants and others prevented them from going to the rescue of the helpless inmate of
the cottage by throwing dust in their eyes, literally speaking, and by the free use of their
sticks. Finally deceased died.
 Confession of Venkalu – He said that there was tension between the deceased and Bodla
Ram Narsiah (the 2nd appellant). After they had been served with toddy and wine they
went to the house of the deceased and locked the house with his lock and the second

80
appellant set fire to the house with a match stick. The fire was extinguished by wind.
Then the second appellant beat Kasim Khan (one of the employees of the deceased) who
was approaching the cottage and again set fire to the house. It is noteworthy that in the
second incident of setting fire to the house he gives a part to himself, as also to the
second appellant. He also admits having thrown dust in the eyes of people who were
rushing from the village side for putting out the fire.
 Confession of Bodla Ram Narsiah - The second appellant Bodla Ram Narsiah also
spoke about himself and the first appellant drinking wine and after that the first appellant
locking the door of the house of the deceased.
 Motive of Crime - It has been found by the courts below that there was longstanding
dispute between the deceased and the family of Bodla Ram Narsiah over land which
belonged to the deceased but which was in cultivating possession of Bodla Ram
Narsiah‘s family.
 Evidence and Conviction of accused -The prosecution has examined as many as 19
witnesses, of whom PWs 4, 7 and 8 saw the occurrence from the beginning to the end.
There were also confessional statements of both accused.
Session Judge – Session Judge acquitted three accused and Convicted two accused for causing
murder of Md. Moinuddin on 18-1-1954.
Division Bench of High Court – High Court confirmed death sentence of both accused on 15-4-
1954.
Supreme Court –Two appeals were filed before Supreme Court. These two appeals by special
leave arise out of the same judgment and order of a Division Bench of the Hyderabad High
Court.
Two appellants -
 Rawalpenta Venkalu [First appellant]
 Bodla Ram Narsiah [Second appellant]
Issues –
 Were appellants had caused murder of Moinuddin?
Answer – Yes. Intention to cause death was clear.
 Were error in framing of charge was sufficient to misled accused?
Answer – No. They had sufficient notice and they defended properly.
 What was value of confession and retracted confession in this case?
Answer - In this case, they retracted very late. Their convictions were based on several
independent witnesses also.
Arguments of Appellants –
 Confession was not voluntarily.

81
 It was contradictory.
 No offence under Section 302, Indian Penal Code had been proved against the appellants,
firstly, because they only set fire to the cottage and secondly, because there was no
charge against either of them under Section 302 read with Section 34, Indian Penal Code.
Judgment –
 Error in framing of charge is not relevant here - ―You are charged of the offence that
you with the assistance of other present accused, with common intention, on 18-2-53 at
Mohiuddinpur village, committed murder, by causing the death of Md.
Moinuddin….‖
It is clear therefore that though Section 34 is not added to Section 302, the accused had
clear notice that they were being charged with the offence of committing murder in
pursuance of their common intention to put an end to the life of Moinuddin. Hence the
omission to mention Section 34 in the charge has only an academic significance, and has
not in any way misled the accused.
 Confession – Supreme Court observed that there was sufficient evidence. High Court had
not relied much more on the confessions. So relevancy of confession was not discussed.
 Intention to cause death – In this case, from the facts, it becomes very clear that there
were intention to cause death. These facts are -
 Locking door
 Burning hut
 Preventing servants and villagers etc.
 Conclusion – Supreme Court convicted both of them for causing death. Judgment of
High Court was approved.
Crux of Facts and Decision - There was long dispute between the deceased and the family of
the second appellant (Bodla Ram Narsiah) regarding land. Rawalpenta Venkalu is the first
appellant. After taking toddy and wine, they went to the house of the deceased (Md. Moinuddin)
to burn alive him and locked the house and second appellant set the fire to the house with a
matchstick. Md. Moinuddin was crying for help. His servants tried to save him. They were
assaulted by the accused. Servants went towards village for help. When villagers came for help
they were also beaten indiscriminately. So they returned back.
Supreme Court found that there was clear intention to cause death. So appeal was dismissed. It
means death sentence of appellant was confirmed.
Remarks - This is not good case regarding Section 299 and Section 300, IPC. In this case, legal
points regarding in intention to cause death in context of Section 299 (a) and Section 300 Firstly
was not discusses. This is leading case on the point of error in framing of charge. In this case,
facts of the case were discussed thoroughly rather than law.
(2.6.2.) INTENTION TO CAUSE BODILY INJURY

(S.299 (B) & S.300– (SECONDLY) & (THIRDLY)

82
In section 299 only (b) category talks about intention to cause bodily injury while S.300–
Secondly & Thirdly deals intention to cause bodily injury. In section 300– Secondly & Thirdly
certain specific words have been which increase the gravity of guilty mind.
2 (b) Secondly
(b)Intention to cause bodily injury + (Secondly)Intention to cause bodily injury +
by such bodily injury, it is likely to Offender knows that by such bodily injury, it is
cause death likely to cause death.( Intention + knowledge+
(Intention +Likely). likely).
Here knowledge is missing. Here knowledge of offender has enhanced
probability of death.
(b) Thirdly
(b) Intention to cause bodily injury + Thirdly- With the intention of causing bodily
by such bodily injury, it is likely to injury to any person, and the bodily injury
cause death. (Intention + Likely). intended to be inflicted is sufficient in the
(The distinction lies between a bodily ordinary course of nature to cause death. By
injury likely to cause death and a using the words sufficient in the ordinary course
bodily injury sufficient in the of nature, enhanced the gravity of probability.
ordinary course of nature to cause (1)State of A.P. v. R.Punnayya.
death.) Justice Ranjit Singh Sarkaria.
R. v. Govinda (2)Virsa Singh v. The State of Punjab,
Justice Melvil Justice Vivian Bose.
(3) Knowledge of act. (S.299 –(c), S. 300 – Fourthly)
Existence of imminently dangerous (ID Card) and all probability to cause death enhance the
gravity of knowledge.
3 Knowledge (c) Knowledge(Fourthly)
No Knowledge + Knowledge+ Imminently Dangerous (ID) + all
intention, Likely to cause probability to cause death + without excuse. For example-
only death Terrorist attack
knowledge
With any excuse - Emperor v. Dhirajia. Dhirajia has done
with excuse. So she was liable only for culpable homicide.
Without any excuse - Gyarsibai w/o Jagannath v. The
State. Gyarsibai has done without excuse. So She was
liable for murder.
Conclusion – There are following stages -

Homicide - (1) There must be death, and (2) That death must be caused by act of accused.
(Cause -effect relationship).

83
Culpable Homicide- Cause-effect relationship must be result of guilty mind as mentioned in

299. Murder – Culpable homicide may come under the category of murder if conditions
mentioned under section 300 are being fulfilled. Murder may convert into culpable homicide
only in five exceptional circumstances mentioned in section 300.
Differences between Section 299 and Section 300

Grounds Culpable Homicide Murder
[Section 299] [Section 300]
1 Intention to cause death rather Intention to cause death rather than

than bodily injury bodily injury
Intention To (a)Intention to cause death (J. (Firstly) Intention to cause death. Justice
Cause Death Melvill, On this point , there is Melvill-R v. Govinda (1876)
no difference-. It means ―(a) and (1) show that where there is an
homicide is committed with intention to kill, the offence is always
intention to cause death, that murder.‖
homicide is always murder.
2 Intention to cause bodily Intention to cause bodily injury
injury
(b) Secondly & Thirdly
Intention to (b)Intention to cause bodily (Secondly)Intention to cause bodily
cause bodily injury + by such bodily injury, it injury + Offender knows that by such
injury rather is likely to cause death bodily injury, it is likely to cause death.
than death (Intention +Likely). (Intention + knowledge+ likely). Here
Here knowledge is missing. knowledge of offender has enhanced
(b) Intention to cause bodily Thirdly- With the intention of causing
injury + by such bodily injury, it bodily injury to any person, and the bodily
is likely to cause death. injury intended to be inflicted is sufficient
(Intention + Likely). in the ordinary course of nature to cause
(The distinction lies between a death; By using the words sufficient in the
bodily injury likely to cause ordinary course of nature, enhanced the
death and a bodily injury gravity of probability.
sufficient in the ordinary course State of A.P. v. R.Punnayya.
of nature to cause death). J Ranjit Singh Sarkaria.
In Virsa Singh v. The State of Punjab,
Justice Vivian Bose.
3 Knowledge (c) Knowledge(Fourthly)
No intention, Knowledge + Likely to cause Knowledge+ Imminently Dangerous +
only death all probability to cause death + without

84
knowledge excuse. For example-Terrorist attack

With excuse
(1) Emperor v. Dhirajia
Without any excuse,
(2) Gyarsibai W/O Jagannath v. The State
Difference Bet. Sec.299 & 300 Regarding Sentences
1st Degree (Highest Degree) 2nd Degree (Middle Degree) 3rd Degree (Lowest Degree)
Murder C H (Intention) C H (Knowledge)
Section 302 Section 304 (Part 1) Section 304 (Part 2)
Death or LI and fine LI or Ten years Ten years of either description or
imprisonment and fine fine or both. No L I.
Section 299 (b) & Section 300 (3)124

Summary
 R.v. Govinda, 1876

 Kapur Singh v. State of Pepsu - September 15, 1954
 Virsa Singh v. State of Punjab - March 11, 1958
 Anda and Ors. v. The State of Rajasthan, March 9, 1965 SC
 State of A.P. v. R. Punnayya & Another, September 15, 1976
 The State of Uttarakhand v. Sachendra Singh Rawat, February 04, 2022.
(1) R.v. Govinda, 1876
I had already discussed this case. In this case Culpable homicide [Section 299 (b)] could not
convert into murder [Section 300, Thirdly].
(2) Kapur Singh v. State of Pepsu125
124
DU LL.B. Question 2 (2013) - Critically explain the test laid down by the Supreme Court in Virsa Singh v. State
of Punjab AIR 1958 SC 465 for invoking the charge of murder under section 300(3) read with section 302 IPC.
Comment on principles in Kapur Singh v. State of Pepsu AIR 1956 SC 654 and of Virsa Singh the latter case.
DU LL.B. 2018 Question (3)
Tej had scolded Teena, daughter of Shan, for misbehaving with his daughter. Shan did not like this and was looking
for an opportunity to give good thrashing to Tej. One day Shan saw that Tej was passing through his place and
seizing this opportunity; Shan caught hold of a stick lying nearby and gave nineteen blows with the stick on the legs
and arms of Tej. Tej was taken to a nearby hospital and died after two days. The post-mortem report attributed
death to multiple fractures on arms and legs and internal bleeding. Shan is tried for the offence of murder under
section 300 (3) IPC. Decide with the help of decided cases.
Answer: In this case Kapur Singh, Virsa Singh, Anda and Punnayya cases must also be quoted.
DU LL.B. (2019) Question 2- Elucidate the essential ingredients of Section 300 (iii) IPC in the light of R. Punnayya
and Virsa Singh Case.
125
AIR 1956 SC 654

85
Figures: Gandasa [Axe]

Date of Judgment – September 15, 1954.
Bench – Division Bench
 Hon‘ble Justice Bhagwati
 Hon‘ble Justice V. Ayyar
Author of Judgment - Hon‘ble Justice Bhagwati
Facts –
 About a year before the date of the occurrence, Bachan Singh s /o the deceased caused a
severe injury on the leg of Pritam Singh s/o Kapur Singh resulting in the amputation of
his leg.
 Kapur Singh f/o Pritam Singh with the help of Chand Singh took revenge on September
30, 1952. Chand Singh gripped the father of Bachan Singh by the head and Kapur Singh
inflicted as many as 18 injuries on the arms and legs of the deceased with a gandasa.
 It is significant that out of all the injuries which were inflicted none was inflicted on a
vital part of the body.
Chand Singh –Kapur Singh absconded and Chand Singh, his companion, was in the meantime
convicted of an offence tinder Section 302 and a sentence of transportation for life was imposed
on him, which was confirmed by the High Court.
Kapur Singh –Kapur Singh was arrested thereafter and his trial was conducted.
Issue
 Had Kapur Singh caused Murder?

Answer –
 Session Court – Yes.
 High Court – Yes.
 Supreme Court – No. He had not caused murder. He had caused only culpable
homicide with intention of causing bodily injury.
Sessions Judge - Sessions Judge convicted Kapur Singh for causing murder and awarded him a
sentence of death under Section 302.
High Court - The High Court confirmed the death sentence of Kapur Singh. He went to
Supreme Court in appeal.

86
Supreme Court - Supreme Court observed that
 Kapur Singh had no intention to cause death.126 The fact that no injury was inflicted on any
vital part of the body of the deceased goes to show in the circumstances of this case that the
intention of the appellant was not to kill the deceased outright
 But by such bodily injury it was likely to cause death.127 He inflicted the injuries not with
the intention of causing death of the deceased, but caused such bodily injuries as, he must
have known, would likely cause death having regard to the number and nature of the
injuries.
 He was convicted under section 304(1) of IPC. The Court rejected to apply section 302.
Drawback of Judgment – Nothing was discussed about section 300, thirdly.

Brief of Facts and Decision
There are following brief facts and decision of the case –
Bachan Singh s /o the Bachan Singh caused a severe injury Result- amputation of his
deceased on the leg of Pritam Singh s/o leg.
Kapur Singh
Kapur Singh f/o Pritam Kapur Singh f/o Pritam Singh Result – Death.
Singh inflicted as many as 18 injuries on There was only intention to
the arms and legs of the deceased cause bodily injury. Injury
with a gandasa. There was no injury was caused to take revenge.
on vital part.
Conviction Section 299(b) Section 304 1st Part
Defect of judgment Section 300, Thirdly was not
discussed.
Medical Report There was no medical report
126
It means Section 299 (a) is not applicable.
127
It means Section 299 (b) is applicable.

87
Virsa Singh v. State of Punjab128

[Interpretation of Section 300, Thirdly]
Date of Judgment - March 11, 1958

Bench – Full Bench
 Hon‘ble Justice Vivian Bose,

 Hon‘ble Justice Syed Jaffer Imam,
 Hon‘ble Justice P.B. Gajendragadkar
Author of Judgment – Hon‘ble Justice Vivian Bose
Facts –
 Spear into the abdomen - Virsa Singh (21 or 22 Years Old) thrust a spear into the
abdomen of Khem Singh (Deceased). Three coils of intestines came out of the wound.
 Single injury - There was only one injury on the body of Khem Singh.
 Death of Khem Singh - The incident occurred about 8 p. m. on July 13, 1955. Khem
Singh died about 5 p. m. on July 14, 1955.
 Medical Report - In the opinion of the doctor the injury was sufficient to cause death in
the ordinary course of nature.
 Virsa Singh was tried with five others under Sections 302/149, 324/149 and 323/149
Indian Penal Code. He was also charged individually under Section 302.
 Session Court - The others were acquitted of the murder charge by the Session Court but
were convicted under Sections 326, 324 and 323 read with Section 149, Indian Penal
Code. Virsa Singh was convicted by Session Court under Section 302.
128
AIR 1958 SC 465.

88
 High Court –
 On appeal to the High Court all were all acquitted except Virsa Singh.
 Virsa Singh was convicted by Session Court under Section 302 and his conviction
and sentence were upheld by the High Court.
Supreme Court
Virsa Singh appealed to Supreme Court. He challenged decision of High Court. In this case
Virsa argued that his matters did not come under Section 300 thirdly. It means he accepted
culpable homicide [Section 299 (b)], but he challenged murder [Section 300, Thirdly].
Section 300, thirdly
1. If it is done with the intention of causing bodily injury to any person and
2. the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to
cause death.‖
Contentions of Appellant – There were following arguments -

(1) Main contention of the appellant was that there are two parts of section 300 thirdly and in
both parts intention is necessary. It means
(1) there must be intention to cause bodily injury and

(2) there must be intention to cause such bodily injury as is sufficient in the ordinary course
of nature to cause death.
(2) According to contention in both cases subjective test must be followed.
Decision of Supreme Court – Supreme Court rejected this contention. Supreme Court observed
following important points –
(1) Two parts of Section 300, thirdly are disjunctive and separate – Supreme Court held that
there are two parts of section 300 thirdly. The Court said that these two parts are disjunctive and
separate. These parts are namely;
Part 1-If it is done with the intention of causing bodily injury to any person (Subjective
test129) and
Part 2- the bodily injury intended to be inflicted (It is description of part 1) is sufficient
in the ordinary course of nature to cause death (Objective Test130).
Part 1 & Intention – Intention is necessary only for part one. It must be proved that bodily
injury was caused with intention. It must not be accidental or unintentional. It must be decided
according to subjective test. Personal intention is necessary.
129
Subjective Test is decided according to person to person.
130
Objective Test is decided according to reasonable man.

89
Part 2 & Intention – In the second part intention is not necessary. To decide whether bodily
injury is sufficient or not, objective test must be followed.
Section 300,
Thirdly
There are two limbs of Sec. 300 (3)
The bodily injury intended to be inflicted

Intention of causing bodily
is sufficient in the ordinary course of
injury
nature to cause death
Intention to cause sufficient

Intention to cause bodilly
bodily injury for death is not
injury is necessary
necessary
Objective Test to decide

Subjective Test to decide
whether injury was
intention i.e. mens rea
sufficient or not
(2) Four Steps should be followed for Section 300, Thirdly- To put it shortly, the prosecution
must prove the following facts before it can bring a case under section 300 thirdly-
(1) First Step - it must establish, quite objectively, that a bodily injury is present;
(2) Secondly Steps- the nature of the injury must be proved. This is purely objective
investigations.
(3) Thirdly Steps- it must be proved that there was an intention to inflict that particular
bodily injury, that is to say, that it was not accidental or unintentional, or that some other
kind of injury was intended- Subjective Test.
Once these three elements are proved to be present, the enquiry proceeds further and,
(4) Fourthly Steps - it must be proved that the injury of the type just described made up of
the three elements set out above is sufficient to cause death in the ordinary course of
nature. This part of the enquiry is purely objective and inferential and has nothing to do
with the intention of the offender.
First Step Bodily injury is present Objective Test
Secondly Steps Nature of Injury Objective Test
Thirdly Steps Intention to inflict that particular bodily injury Subjective Test
Fourthly Steps Such bodily injury is sufficient to cause death in Objective Test
the ordinary course of nature
Once these four elements are established by the prosecution (and, of course, the burden is on the
prosecution throughout) the offence is murder under section 300 thirdly.

90
Medical Report - The doctor said that the injury was sufficient to cause death in the ordinary
course of nature.
Decision – Supreme Court dismissed appeal and upheld conviction of Virsa Singh for murder
under Section 300, thirdly which is punishable under Section 302, IPC.
Remarks – In Virsa Singh Case Supreme Court had explained the meaning and scope of section
300(3).131 Guidelines were laid down to attract section 300(3).
Thus according to the rule laid down in Virsa Singh Case even if the intention of accused was
limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of
nature and did not extend to the intention of causing death, the offence would be murder.
Comparison between Kapur Singh Case and Virsa Singh Case
Ground Kapur Singh [1954] Virsa Singh[1958]

Injury 18 injuries on arms & legs One injury in abdomen
Weapon Gandasa Spear
Mens Rea Intention to cause bodily injury Intention to cause bodily injury
Medical There was no medical report According to Medical Report, the
Report bodily injury was sufficient to cause
death
Sec. 300 Sec. 300 Thirdly was not discussed Sec. 300 Thirdly was discussed
Thirdly minutely.
Offence Causing of death by Kapur Singh was Causing of death by Virsa Singh was
covered under Section 299 (b). covered under Section 300 Thirdly
Punishment There was causing of Culpable Homicide Causing of murder with intention for
with intention which is punishable under which punishment is under Section
Section 304, First Part. 302.
Importance – Ratios of this case was discussed in many subsequent judgments including R.
Punnayya Case and The State of Uttarakhand v. Sachendra Singh Rawat132
131
M.P.H.J.S. (Pre) 2010.
132
Date of Judgment: February 04, 2022.

91
Anda and Ors. v. The State of Rajasthan,133

[March 9, 1965]
[In this case Lathi and Stick words have been used. But lathi is appropriate word for this case.
Stick will confuse. In DU semester exam, stick word was used in problem. Both answer was
accepted. Marks was given to those students who was in favour of Section299 (b) and also those
who was in favour of Section 300, thirdly. Everything depends upon your sound logic]
Author of Judgment: Justice M. Hidayatullah
Facts -
The incident took place on June 29, 1961, at about 5 or 5-30 a.m. at a village called Hindas. One
Bherun son of Girdhari Jat was assaulted by a number of persons and received numerous
injuries. He died as a result on the same day. Bherun and his father Girdhari were on inimical
terms with the appellants and that certain criminal proceedings were going on between them.
Bherun had gone to Hindas with a servant to attend to his fields there. He was on his way to the
fields, when he passed the house of Bhagu (one of the original accused but since acquitted) and
was caught hold of by Anda (appellant No. 1) and Roopla (appellant No. 2) and was assaulted.
They and the other accused, dragged him inside the house and beat him severely. Bherun tried
hard to avoid being dragged inside the house and clung desperately to the door jamb but Anda
and Roopla struck him on his hands with their sticks to make him release his hold. His cries
attracted the neighbours and one of them Moda (P. W. 8) attempted a rescue but was beaten off.
The evidence, proving the presence and participation of these appellants in the assault has been
concurrently accepted by the Sessions Judge and the High Court and the findings on this part was
considered as established by Supreme Court.
Crux of Facts – Many persons caused death of Bherun. Seven persons were convicted under
Section 302 read with Section 149, IPC by Session Court. Some of them were acquitted by High
Court. Remaining approached to Supreme Court through SLP. The appellants before Supreme
Court, who were four in number, had been convicted by the Rajasthan High Court under Section
302 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life.
Medical Report – There were thirty wounds and injuries on arms and legs. There were fractures
of the right and left ulnas, second and third metacarpal bones of the right hand and second
metacarpal bone of the left hand, compound fractures of the right tibia and right fibula, the tibia
being fractured at two places and fracture of the left fibula. These fractures lay under large
bruises and lacerated wounds. There were as many as sixteen lacerated wounds on the arms and
legs and a hematoma on the right forehead and a big bruise on the middle of the chest. When
Bherun was admitted in the hospital he was bleeding profusely from his injuries. At the autopsy
the lungs were pale and the heart empty which showed that enormous quantity of blood must
have been lost. The opinion of Dr. Sablok on the cause of death was:
―In my opinion the cause of death is shock and Syncope due to multiple injuries. ….
133
AIR 1966 SC 148. This judgment is not available at website of Supreme Court. Available at:
https://indiankanoon.org/doc/1210886/ (Visited on February 11, 2022).

92
 All these injuries collectively can be sufficient to cause death in the ordinary course of
nature.
 But individually no injury was sufficient in the ordinary course of nature to cause
death.‖
Issue -
Whether in such a case when no significant injury had been inflicted on a vital part of the body,
and the weapons used were ordinary lathis, and the accused could not be said to have the
intention of causing death, the offence would be ‗murder‘ or merely ‗culpable homicide not
amounting to murder‘.134
Ratio of Supreme Court
In this case Supreme Court observed following important points –―
(1) Murder is an aggravated form of culpable homicide.

(2) The existence of one of four conditions turns culpable homicide into murder while the
special exceptions reduce the offence of murder again to culpable homicide not
amounting to murder.
Section 300
Murder Culpable homicide not amounting to

murder
(Section 300 Firstly, Secondly,

Thirdly & Fourthly) (Section 300, Five Exceptions)
Section 302 With intention (Section With knowledge (Section

304, 1st Part) 304, 2nd Part)
(3) Taking the four clauses one by one it can be said that under the first clause of Section 300
culpable homicide is murder when the act by which death is caused is done with the
134
It was written in the form of issue in State of A.P. v. R. Punnayya & Another.

93
intention of causing death. This clause reproduces the first part of Section 299. An
intentional killing is always murder unless it comes within one of the special
exceptions in Section 300. If an exception applies, it is culpable homicide not amounting
to murder.
(4) The word ‗act‘ in all the clauses of Section 299 or Section 300 denotes not only a single
act but also a series of acts taken as a single act. Act includes illegal omission also‖
Decision of Supreme Court – All of them were convicted for murder under Section 300,
thirdly.
Reason of Decision –
(1) No intention of causing death [Section 300, Firstly]-
 No vital part of body - The injuries were not on a vital part of the body
 Use of Lathis - No weapon was used which can be described as specially dangerous.
Only lathis were used.
There was no intention to cause the death of Bherun within the first clause of Section 300.
(2) Sufficient in the ordinary course of nature to cause death [Section 300, Thirdly] -At the
same time, it is obvious that his hands and legs were smashed and numerous braises and
lacerated wounds were caused. The number of injuries shows that every one joined in beating
him. It it also quite clear that the assailants aimed at breaking his arms and legs. Looking at the
injuries caused to Bherun in furtherance of the common intention of all it is clear that the injuries
intended to be caused were sufficient to cause his death in the ordinary course of nature even if it
cannot be said that his death was intended. This is sufficient to bring the case within 3rdly of
Section 300.
Importance – Facts, medical reports and Ratios of this case was discussed and applied in many
cases including State of A.P. v. R. Punnayya & Another. 135
In R. Punnayya Case 136 Supreme Court said, ―The ratio of Anda v. State of Rajasthan applies in
full force to the facts of the present case….‖
135
AIR 1977 SC 45.
136
AIR 1977 SC 45. Second last para of the judgment.

94
State of A.P. v. R. Punnayya & Another 137 & 138
Date of Judgment - Sept. 15, 1976,

Court –
Division Bench –
 Hon‘ble Justice Ranjit Singh Sarkaria
 Hon‘ble Justice Syed Murtaza Fazalali
Author of Judgment - Hon‘ble Justice Ranjit Singh Sarkaria.
Facts -In Rompicherla village, there were factions belonging to three major communities‘
viz., Kammas, Reddys, and Bhatrajus.
Three Factions
Kammas Reddys Bhatrajus
Chopparapu
Rayavarapu Punnayya Sarikonda Kotamraju
Subbareddi
Accused Deceased
(1) Rayavarapu was the leader of Kamma faction. Kammas were supporters of Swatantra
Party.
(2) Chopparapu Subbareddi was the leader of the Reddys. The Reddys were supporting the
Congress Party.
Several times disputes had occurred between both groups during elections.
(3) Sarikonda Kotamraju, the deceased person in the instant case, was the leader of
Bhatrajus. In order to devise protective measures against the onslaughts of their
opponents, the Bhatrajus held a meeting at the house of the deceased, wherein they
resolved to defend themselves against the aggressive actions of the respondents and their
party men. PW 1, a member of Bhatrajus faction has a cattle shed. The passage to this
cattle-shed was blocked by the other party. The deceased took PW 1 to Police Station
Nekarikal and got a report lodged there. On July 22, 1968 Sub-Inspector visited the place
and directed to come at police station for compromise. There were some disputes pending
in Court before a Magistrate at Narasaraopet.
July 23, 1968 - On the morning of July 23, 1968, at about 6.30 a.m., the deceased with two other
person boarded bus for going to Nekarikal. Some minutes later, accused 1 to 5 also got into the
same bus. When the bus was stopped at Nekarikal Crossroads, at about 7-30 a.m. July 23, 1968,
the deceased and his companions alighted for going to the Police Station. The five accused also
got down. The deceased and one companion went towards a Choultry while third companion
137
AIR 1977 SC 45.
138
Available at: https://main.sci.gov.in/judgment/judis/5531.pdf (Visited on March 8, 2021).

95
went to the roadside to ease himself. Two accused picked up heavy sticks and went after the
deceased into the Choultry. On seeing the accused the companion ran away towards a hut
nearby. The deceased stood up.
He was an old man of 55 years. He was not allowed to run. Despite the entreaties made by the
deceased with folded hands, both accused indiscriminately pounded the legs and arms of the
deceased. One of the by-standers, asked the assailants as to why they were mercilessly beating a
human being, as if he were a buffalo. The assailants angrily retorted that the witness was nobody
to question them and continued the beating till the deceased became unconscious. The accused
then threw their sticks at the spot, boarded another vehicle, and went away. The victim was
removed to Narasaraopet Hospital. There, at about 8.45 a.m., Doctor Konda Reddy examined
him and found 19 injuries, out of which, no less than 9 were (internally) found to be grievous.
The deceased, however, succumbed to his injuries at about 4.40 a.m. on July 24, 1968, despite
medical aid.
Autopsy Report - The autopsy was conducted by Dr. P.S. Sarojini in whose opinion, the injuries
found on the deceased were cumulatively sufficient to cause death in the ordinary course of
nature. The cause of death, according to the Doctor, was shock and haemorrhage resulting from
multiple injuries.
Supreme Court laid down several important points –
(1) Genus and Species
Hon‘ble Justice Justice Ranjit Singh Sarkaria observed, ―In the scheme of the Indian Penal
Code, ‗culpable homicide‘ is genus and ‗murder‘ its specie. All ‗murder‘ is ‗culpable homicide‘
but not vice versa.
Murder (Species)
Culpable Homicide (Genus)
(2) Kind of Culpable Homicide –

 ‗Culpable homicide‘ sans (sans means without) ‗special characteristics of
murder‘, is ‗culpable homicide not amounting to murder‘.
 ‗Culpable homicide‘ with ‗special characteristics of murder‘, is ‗culpable
homicide amounting to murder‘.
(3) Three Stages to decide

Whenever a court is confronted with the question whether the offence is ‘murder‘ or ‘culpable
homicide not amounting to murder‘, on the facts of a case, it will be convenient for it to approach
the problem in three stages.

96
(i) First Stage: Connection between act of accused and death of accused [Causa Causans ] –
The question to be considered at the first stage would be, whether the accused has done an act by
doing which he has caused the death of victim. Proof of such casual connection between the act
of the accused and the death leads to the second stage.
(ii) Second Step: Culpable Homicide under Section 299 - Second stage for, considering
whether that act of the accused amounts to culpable homicide as defined in Section 299. If the
answer to this question is prima facie found in the affirmative, third stage for considering the
operation of s. 300, Penal Code, is reached.
(iii) Third Stage: Positive (Murder), Positive but u/exceptions (Culpable Homicide)
Negative (Culpable Homicide) –
This is the stage at which the Court should determine whether the facts proved by the
prosecution bring the case within the ambit of any of the four clauses of the definition of
‘murder‘ contained in Section 300.
 If the answer to this question is in the negative the offence would be ‘culpable homicide
not amounting to murder‘, punishable under the first or the second part of s. 304,
depending, respectively, on whether the second or the third clause of s. 299 is applicable.
 If this question is found in the positive, but the case comes within any of the
Exceptions enumerated in Section 300, the offence would still be ‗culpable homicide not
mounting to murder‘, punishable under the First Part of s. 304, Penal Code.
The above are only broad guidelines and not cast-iron imperatives.
Culpable Homicide
Section 299, Section 300 &

Section 300 Five Exceptions
Culpable Homicide not Culpable Homicide

amounting to murder amounting to murder
Section 300
Section 299 Five Exceptions of
Section 300
Punishment - Punishment -
Section 304 Punishment - Section 302
Section 304

97
(4) Degrees of Culpable Homicide

For the purpose of fixing punishment, proportionate to the gravity of this generic
offence, IPC practically recognizes three degrees of culpable homicide.
(a) 1st Degree -The first is, what may be called, culpable homicide of the first degree. This is
the gravest form of culpable homicide which is defined in section 300 as ‗murder‘.
(b) 2nd Degree -The second may be termed as ‗culpable homicide of the second degree‘. This
is punishable under the 1st part of section 304. Culpable homicide committed with
intention
(c) 3rd Degree - . Culpable homicide committed with knowledge will come under third
degree. This is the lowest type of culpable homicide and the punishment provided for it
is, also, the lowest among the punishments provided for the three grades. Culpable
homicide of this degree is punishable under the second Part of Section 304.
Degrees of Culpable
Homicide
1st Degree 2nd Degree 3rd Degree

[Gravest Form] [Middle Degree] [Lowest Degree]
Culpable
Culpable Homicide
Murder Homicide with
with knowledge
intention
(5) Difference between Sections 299 & 300 Regarding Sentences
Difference between Sections 299 & 300 regarding sentences can be summarized through the
following table -
1st Degree 2nd Degree (Middle Degree) 3rd Degree (Lowest Degree)
(Highest Degree) Murder Culpable Homicide Culpable Homicide
(Intention/knowledge (Intention) (Knowledge)
Section 302 Section 304 (Part 1) Section 304 (Part 2)
Death or Life Life imprisonment or Ten Ten years of either description or
Imprisonment and fine years imprisonment and fine fine or both. No Life
Imprisonment.
(6) Differences between Culpable Homicide and Murder

98
The safest way of approach to the interpretation and application of these provisions seems to be
to keep in focus the key words used in the various clauses of Sections 299 and 300. With the
help of comparative table, distinction was discussed.
(i) Clause (a) of s. 299 corresponds with cl. (a) of s. 300 – There is no difference between
culpable homicide and murder if it is done with intention of causing death.
(ii) Clause (b) of s. 299 corresponds with cl. (2) of s. 300.
The distinguishing feature of the mens rea requisite under cl. (2) is the knowledge
possessed by the offender regarding the particular victim being in such a peculiar
condition or state of health that the intentional harm caused to him is likely to be fatal,
notwithstanding the fact that‘ such harm would not in the ordinary way of nature be
sufficient to cause death of a person in normal health or condition. It is noteworthy that
the ‗intention to cause death‘ is not an essential requirement of cl. (2). Only the intention
of causing the bodily injury coupled with the offender‘s knowledge of the likelihood of
such injury causing the death of the particular victim, is sufficient to bring the killing
within the ambit of this clause. This aspect of cl. (2) is borne out by illustration (b)
appended to s. 300.
Section 300, Illustration (b) - A, knowing that Z is labouring under such a disease that a blow is
likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in
consequence of the blow. A is guilty of murder, although the blow might not have been sufficient
in the ordinary course of nature to cause the death of a person in a sound state of health.
Instances of cases failing under clause (2) of s. 300 can be where the assailant causes death by a
first blow intentionally given knowing that the victim is suffering from an
 enlarged liver, or
 enlarged spleen or
 diseased heart
and such blow is likely to cause death of that particular person as a result of the rupture of the
liver, or spleen or the failure of the heart, as the case may be.
(iii) Clause (b) of s. 299 corresponds with cl. (3) of s. 300.
In clause (3) of s. 300, instead of the words ‗likely to cause death‘ occurring in the
corresponding cl. (b) of s. 299, the words ―sufficient in the ordinary course of nature‖ has been
used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily
injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real,
and, if over-looked, may result in miscarriage of justice. The difference between cl. (b) of
Section 299 and cl. (3) of Section 300 is one of the degrees of probability of death resulting from
the intended bodily injury.
To put it more broadly, it is the degree of probability of death which determines whether
a culpable homicide is of the gravest, medium or the lowest degree. The word ―likely‖ in

99
cl. (b) of s. 299 conveys the sense of ‘probable‘ as distinguished from a mere possibility.
The words ―bodily injury... sufficient in the ordinary course of nature to cause death‖
means that death will be the ―most probable‖ result of the injury having regard to the
ordinary course of nature.
Difference bet. Section 299(b)….likely Section 300, Thirdly… sufficient in the

299(b) & Section to ordinary course of nature to cause
300, Thirdly death
Probable Most Probable
(iv) Section 299 (c) and Section 300 (4)

Both require knowledge of the probability of the causing death. It is not necessary for the
purpose of this case to dilate much on the distinction between these corresponding
clauses. It will be sufficient to say that cl. (4) of s. 300 would be applicable where the
knowledge of the offender as to the probability of death of a person or persons in general
as distinguished from a particular person or persons being caused from his imminently
dangerous act, approximates to a practical certainty. Such knowledge on the part of the
offender must be of the highest degree of probability, the act having been committed by
the offender without any excuse for incurring the risk of causing death or such injury as
aforesaid.
(7) Bodily Injury (Singular) v. Bodily Injuries (Plural)

The mere fact that the beating was designedly confined by the assailants to the legs and arms, or
that none of the multiple injuries inflicted was individually sufficient in the ordinary course of
nature to cause death, will not exclude the application of Clause 3rdly of Section 300. The
expression ―bodily injury‖ in Clause 3rdly includes also its plural, so that the clause would
cover a case where all the injuries intentionally, caused by the accused are cumulatively
sufficient to cause the death in the ordinary course of nature, even if none of those injuries
individually measures up to such sufficiency. The sufficiency spoken of in this clause is the high
probability of death in the ordinary course of nature, and if such sufficiency exists and death is
caused and the injury causing it is intentional, the case would fall under Clause 3rdly of section
300.
(8)Acceptance of Ratio of Virsa Singh v. State of Punjam (1958)
Ruling of Virsa Singh Case was accepted. According to the rule laid down in Virsa Singh‘s case
even if the intention of accused was limited to the infliction of a bodily injury and did not extend
to the intention of causing death, the offence would be murder. Illustration (c) appended to
Section 300 clearly brings out this point.

100
Section 300, Illustration (c) - A intentionally gives Z a sword-cut or club-wound sufficient to

cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty
of murder, although he may not have intended to cause Z‘s death.
(9) Acceptance of Ratio of Anda and Ors. v. State of Rajasthan

Facts, medical reports and ratios of Anda and Ors. v. State of Rajasthan was discussed and
applied in State of A.P. v. R. Punnayya & Another. 139 In this case Supreme Court said, ―The
ratio of Anda v. State of Rajasthan applies in full force to the facts of the present case….‖
(10) CONCLUSION
All the conditions which are a pre-requisite for the applicability of Section 300, thirdly have been
established and the offence committed by the accused in the instant case was ‗murder‘.
The State of Uttarakhand v. Sachendra Singh Rawat
The State of Uttarakhand v. Sachendra Singh Rawat140 is leading cases on Section 300 thirdly.
In this Case, Supreme Court said that High Court was wrong. High Court had decided that matter
was coming under section 300 Exception 4. Supreme Court held that the Case was coming under
section 300 thirdly and fourthly.
In this case Supreme Court applied ratio of Virsa Singh Case (1958) and Pulicherla Nagaraju v.
State of AP (2006). With the help of these cases Supreme Court concluded what should be
considered at the time deciding intention and knowledge.
(2.6.3.) Knowledge of Act

[Section 299 (c) & Section 300, Fourthly)
Existence of imminently dangerous (ID Card) and all probability to cause death enhance the
gravity of knowledge.
S.299(c) Section 300 – Fourthly
Knowledge (c) Knowledge(Fourthly)
No intention, Knowledge + Knowledge+ Imminently Dangerous (ID) + all
only Likely to cause probability to cause death + without excuse. For
knowledge death example-Terrorist attack
With any excuse - Emperor v. Dhirajia. Dhirajia has
done with excuse. So she was liable only for culpable
homicide.
Without any excuse - Gyarsibai w/o Jagannath v. The
State. Gyarsibai has done without excuse. So She was
liable for murder.
Emperor v. Mt. Dhirajia141

139
AIR 1977 SC 45.
140
Available at: https://main.sci.gov.in/supremecourt/2019/14148/14148_2019_42_1501_33144_Judgement_04-
Feb-2022.pdf (Visited on February 27, 2022).

101
Date of Judgment - June 4, 1940

Court – Allahabad High Court
Author of Judgment - Justice Braund
Impugned provisions –
 Section 309
 Section 299 (c).
 Section 300, Fourthly
 Section 302
 Section 304
Facts
 This is the case of Varanasi.
 There were dispute between Mt. Dhirajia and her husband Jhagga. Husband was
continuously beating her.
 They had a six month old baby.
 The wife desired to go to visit her parents while Jhagga was opposing. One day she woke
up and started to move with her baby along with railway track. Late that night Jhagga
woke up and found his wife and the baby missing. He went out in pursuit of them and
when he reached a point close to the railway line he saw her making her way along the
path.
 When she heard him coming after her, she turned round in a panic, ran a little distance
with the baby girl in her arms and jumped into an open well which was at some little
distance from the path on August 09, 1939.
 Baby died and she eventually survived.
 She was charged for committing murder of baby [Section 302] and attempt of suicide
[Section 309].
Decision of Jury &
Session Court
Jury Session Court
Not guilty of attempt to suicide Guilty of Murder

Against this judgment, Session Court Dhirajia went to

referred the matter to High Court appeal
141
AIR 1940 All. H.C. 486

102
Decision of Session Court – Session Court tried for offence under Section 302. Session Court
convicted Dhirajia for causing murder. She filed appeal before High Court.
Jury – Jury tried her for attempt to suicide (Section 309). Jury acquitted for attempt to suicide.
Session Court referred the matter to High Court to reconsider the decision of Jury.
Decision of High Court
Attempt to Culpable
suicide Homicide Murder
She was She was liable for She was not liable
acquitted Culpable Homicide for murder [Section
[Section 309] [Section 299 (c)] 300, Fourthly]
Reason -She jumped to Reason - There Reason - She did

save her life from Jhagga was knowledge. with excuse
Issues – There were following issues before Allahabad High Court –

Section 299 & Section 300
1. First Stage - Was Dhirajia committed homicide without any justification?
Answer- Yes. She had committed homicide without any excuse/justification. Her matter
did not come under any General Exceptions (Sections 76 to 106).
2. Second Stage - Was Dhirajia committed culpable homicide with the intention of causing
death?
Answer- No. Mother was not intended to cause death of her baby.
3. Third Stage - Was Dhirajia committed culpable homicide with the intention of causing
bodily injury which was likely to cause death?
Answer- No. Mother was not intended to cause bodily injury of her baby.
4. Fourth Stage - Was Dhirajia committed culpable homicide with the knowledge of
causing bodily injury which was likely to cause death?
Answer- Yes. Dhirajia had committed culpable homicide with the knowledge of causing
bodily injury which was likely to cause death. Every sound person shall be presumed that
he or she has knowledge up to some extent.
5. Fifth Stage - Was Dhirajia committed murder with knowledge without any excuse?
Answer – No. Dhirajia had not committed murder. She had caused death with an excuse.
So she is liable only for culpable homicide not amounting to murder.
Section 309
6. Was Dhirajia committed attempt to suicide punishable under Section 309, IPC?
Answer - Dhirajia had not committed attempt to suicide.

103
Decision –
Important point of this case –
(1) First step CH and Second step Murder – According to the scheme of IPC, ‗murder‘ is
merely a particular form of culpable homicide, and one has to look first to see in every
murder case whether there was culpable homicide at all. If culpable homicide is present
then the next thing to consider is whether it is of that type which under section 300 is
designated ‗murder‘ or whether it falls within that residue of cases which are covered
by Section 304 (Punishment for CH) and are designated ‗culpable homicide not
amounting to murder‘.
(2) Intention v. Knowledge – In this case the Court accepted that Dhirajia had neither
intention to cause death nor intention to cause bodily injury. But she was sane. So she had
knowledge.
The Court said, ― ‗Intention‘ appears to us to be one thing and ‗knowledge‘ appears to us
to be a different thing.
In order to possess and to form an intention there must be a capacity for reason. And
when by some extraneous force the capacity for reason has been ousted, it seems to us
that the capacity to form an intention must have been unseated too.
But to our minds, knowledge stands upon a different footing. Some degree of knowledge
must be attributed to every sane person. Obviously, the degree of knowledge which any
particular person can be assumed to possess must vary. For instance, we cannot attribute
the same degree of knowledge to an uneducated as to an educated person. But we think
that to some extent knowledge must be attributed to everyone who is sane.‖
(3) ..such act…. must be ―without any excuse for incurring the risk of causing death....‖ –
She feared her husband and she had reason to fear her husband. She was endeavouring to
escape from him at dawn and in the panic into which she was thrown when she saw him
behind her she jumped into the well. She had excuse and that excuse was panic or fright.
For these reasons Mt. Dhirajia was not guilty of murder.
(4) Attempt to suicide – She was acquitted. She did not take conscious effort to take own life.
She did so in an effort to escape from her husband.
(5) Conviction for Killing of baby – She was convicted under section 304 because she had
done with knowledge under excusable circumstances.
(6) Punishment – She was sentenced for six months with rigorous imprisonment. She had
already been in prison for a period of eight months. So she was released at once.
Gyarsibai w/o Jagannath v. The State142
Date of Judgment – October 23, 1952.

Court - M. P. High Court
142
M.P.Civil Judge, 1989.

104
Author of Judgment - Hon‘ble Justice Dixit

Impugned provisions –
 Section 309
 Section 299 (c).
 Section 300, Fourthly
 Section 302
 Section 304
Leading Case –
 Emperor v. Mt. Dhirajia
Facts - Gyarsibai, her children, her husband Jagannath and her sister-in-law Kaisar Bai used to
reside together. There were constant quarrels between the appellant and her sister-in-law and
very often Jagannath used to slap the appellant for picking up a quarrel with her sister-in-law
Kaisar Bai. It is alleged that one such quarrel took place on the morning of 14.8.1951 when
Jagannath was away from his home. In this quarrel Kaisar Bai asked the appellant to leave the
house. Thereupon, the appellant left the house, taking her three children aged 7 years, 5 years
and 1½ years and saying that on account of her sister-in-law she would jump into a well. Soon
after, the appellant went to a well in the village and threw herself into the well along with her
three children. A few hours after, some inhabitants of the village found Gyarasibai supporting
herself on an edge of the well and the three children dead in the well. The appellant admitted
before the Committing Magistrate as well as before the Sessions Judge that she jumped into the
well together with her children on account of her sister-in-law Kaisar Bai‘s harassment.
Session Court - The appellant has been convicted by the Sessions Judge of an offence under
Section 302, Penal Code, for the murder of her three children and also of an offence under
Section 309, Penal Code, for an attempt to commit suicide. She has been sentenced to
transportation for life under Section 302 Penal Code, and to six months simple imprisonment
under Section 309, Penal Code. Both these sentences have been directed to run concurrently. She
has now preferred this appeal from Jail against the convictions and sentences.
Decision of Session Court
Attempt to Suicide Murder

She was convicted She was convicted

105
Madhya Pradesh High Court

Issues – There were following issues before High Court -
1. Whether Gyarsibai is guilty of the offence of murder of the three children under Section
302?
Answer - Yes
2. Whether Gyarsibai is guilty of attempted suicide under Section 309?
Answer – Yes
Observation of High Court

There are following observation of High Court –
1. Omission in Judgment of Session Court and its correction - The learned Sessions
Judge has found her guilty under Section 302, Penal Code, but he has not stated under
which clause of Section 300, Penal Code, the act of the appellant in jumping down into a
well together with her three children is murder.
This act of the appellant clearly falls under the 4th clause of Section 300, Penal Code,
which defines murder.
2. No intention to cause death or bodily injury - On the facts it is clear that the appellant
Gyarasi Bai had no intention to cause the death of any of her children and she jumped
into the well not with the intention of killing her children but with the intention of
committing suicide. That being so, Clauses 1, 2 and 3 of Section 300, Penal Code, which
apply to cases in which death is caused by an act done with the intention of causing death
or causing such bodily injury as is likely to cause the death of person or sufficient in the
ordinary course of nature to cause death cannot be applied to the present case.
The only clause of Section 300, Penal Code, which then remains for consideration is the
4th clause.
3. Without any excuse – There are four ingredients of Section 300, fourthly –
 Knowledge
 imminently dangerous
 All probabilities
 Without any excuse
4. It will be seen from clause fourthly that if death is caused merely by doing an act with
the knowledge that it is so imminently dangerous that it must, in all probability, cause
death, then the act is not murder as is defined in Clause 4, but is mere culpable homicide
not amounting to murder. In order that an act done with such knowledge should
constitute murder, it is essential that it should have been committed ―without any excuse
for incurring the risk of causing death or such bodily injury‖.
5. Meaning of Knowledge - Every sane person is presumed to have some knowledge of the
nature of his act. This knowledge is not negatived by any mental condition short of
insanity.
Decision - Gyarsibai was sane.

106
6. ―Without any excuse for incurring the risk of causing death or such injury as
aforesaid‖ - These words indicate that the imminently dangerous act is not murder if it is
done to prevent a greater evil. If the evil can be avoided without doing the act, then there
can be no valid justification for doing the act which is so imminently dangerous that it
must, in all probability, cause death or such injury as is likely to cause death.
Decision - Here there is no material, whatsoever, to come to the conclusion that the
appellant could not have escaped the harassment at the hands of her sister-in-law except
by jumping herself into a well with her three children.
7. Comparison with Dhirajia Case – This case was compared with Dhirajia Case. In
Dhirajia Case, the fear of her husband and the panic into which she was thrown could be
an excuse for incurring the risk of causing death. The Allahabad High Court said, ―In
assessing what is excuse or is not excuse, we must consider the state of mind in which the
accused person was‖.
Here there is no question of any panic or fright of the Gyarsibai. M.P. High Court
observed, ―I think in considering the question we must take into account the state of mind
of a reasonable and legally sane person and then determine whether the risk of causing
death could have been avoided.
Conclusion
Appeal was dismissed. There are following decision with reasons
(1) Attempt to suicide - She jumped into the well in consciousness. So she was liable for
attempt to suicide.
(2) Murder - She was liable for causing murder of three children because she had jumped
into the well without any excuse. She did this only for satisfaction of self-ego. There was
no any imminent danger.
Decision of High Court
Attempt to Suicide Murder

[Section 309] [Section 300, Fourthly]
She was convicted She was convicted
Comparison between Dhirajia Case & Gyarsibai Case

There are following comparison between both cases -
S.No. Emperor v. Mt. Dhirajia Gyarsibai v. The State

107
1 W/O Jhagga W/O Jagannath

2 One baby Three Babies
3 Dispute was husband & wife Dispute was between sisters-in law
(Wife and sister of Jagannath)
4 4 June , 1940 23 Oct., 1952
5 Justice Braund Justice Dixit
6 Allahabad High Court MP High Court

Similarities Matter came under Culpable homicide Matter came under Culpable
[Section 299 (c)] homicide [Section 299 (c)]
7 Culpable homicide [Section 299 (c)] Culpable homicide [Section 299 (c)]
could not come under Section 300, converted into Section 300, Fourthly.
Fourthly.
8 Punishment under section 304 2nd Part She was convicted for murder
(Reason – She had jumped with excuse. (Reason – There was no excuse. She
Excuse was that her husband was jumped into the well for her ego
following him). satisfaction).
9 She was not liable for attempt to She was liable for attempt to suicide.
suicide.

108
Chapter 3
SECTION 300: FIVE EXCEPTIONS
(3.1.) Introduction
There are five exceptions of Section 300, IPC namely; (i) Grave and sudden Provocation, (ii)
Private Defence, (iii) Acts of Public Servants, (iv) Sudden Fight, and (v) Consent.
Origin of these exceptions is starting words of section 300. These are ―Except in the cases
hereinafter excepted….‖. Meaning of these words is that even offence is coming either firstly,
secondly, thirdly or fourthly of Section 300, if fact is falling under any exception of Section 300,
in that circumstances murder will convert into homicide. In the technical sense, it is called
―Culpable Homicide not amounting to murder‖.
Following stages must be followed -
 If there is no unjustified homicide, no question of application of Section 299.

 If there is no Culpable Homicide under Section 299, no question of application of Section
300.
 If there is no murder under Section 300, no question arises application of any exception
of Section 300.
Section 299 Section 300 Five

Section 300 Exceptions
Culpable
Homicide Homicide Murder Culpable Homicide
[Unjustifi [Culpable
[ Culpable Homicide [ Culpable
ed] Homicide not Homicide not
amounting to
amounting to murder] amounting to
murder] murder]
SmartArt 11: Stages of Homicide to Exceptions of S. 300
(3.2.) Burden of Proof
According to Section 101 of the Indian Evidence Act, 1872, prosecutor shall prove homicide,
culpable homicide and murder. According to Section 105 of the Indian Evidence Act, burden of
proof lies over accused if he wants to take benefit of any exception of Section 300 or benefit of
general exceptions i.e. Section 76 to Section 106.

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Burden of Proof
Sections 299 Sections 300 Section 300 , Five

Homicide [Culpbale Exceptions [Culpable
Homicide] [Murder] Homicide]
Prosecutor Prosecutor Accused

Prosecutor
[Section 101, [Section 101, [Defence Lawyer]
Section 101 IEA]
IEA] IEA]
[Section 105, IEA]
Beyond Beyond Beyond

Reasonable Reasonable Reasonable Preponderance
Doubts Doubts Doubts of Probabilities
SmartArt 11: Burden of proof
Section 300: Exception 1

[Grave and Sudden Provocation]
Synopsis
1. Section 300: Exception 1
2. K.M.Nanavati v. State of Maharashtra
 Cooling down period
 Reasonable Man‘s Test
 Objective Test
3. Babu Lal v. State [AIR 1960 All. 233, 226]
Section 300, Exception 1 - Culpable homicide is not murder if the offender,

 whilst deprived of the power of self-control
 by grave and sudden provocation,
 causes the death of the person who gave the provocation or causes the death of any other
person by mistake or accident.
The above exception is subject to the following provisos: -
First. - That the provocation is not sought or voluntarily provoked by the offender as an
excuse for killing or doing harm to any person.
Secondly. - That the provocation is not given by anything done in obedience to the law, or by a
public servant in the lawful exercise of the powers of such public servant.
Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right
of private defence.
Explanation. - Whether the provocation was grave and sudden enough to prevent the offence
from amounting to murder is a question of fact.

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Section 300,
Exception 1
How? Effect?
What?
by Death
deprived of the the death of the causes the death

power of self- Grave , & Sudden person who gave of any other
control the provocation person by
Mistake or Accident
There are many illustrations143 of Section 300, exception 1.
K.M.Nanavati v. State of Maharashtra144 & 145

Date of Judgmnt - Nov. 24, 1961
Court – Supreme Court
1. Hon‘ble Justice K. Subbarao
2. Hon‘ble Justice S.K. Das
3. Hon‘ble Justice Raghubar Dayal
Author of Judgment - Hon‘ble Justice K. Subbarao

143
Illustrations
(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is
murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by
accident or misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor
knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed
murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is
murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that
A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.
(e)A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from
doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the
provocation was giving by a thing done in the exercise of the right of private defence.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's
rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may
have committed only culpable homicide, but A is guilty of murder.
144
AIR 1962 SC 605. Question - whether Nanavati shot Ahuja in the ―heat of the moment‖ or whether it was a
premeditated murder.
145

111
Facts
Facts of the case can be understood with the help of triangle -
Prem Bhagwandas Ahuja [Sindhi] Paramour of Sylvia & Friend of Nanavati
Sylvia [English born lady] K.M. Nanavati (Parsi) [Commander in Indian Navy]
Prosecutor and defence lawyer narrated facts in different way. Some common facts are following
-
1. Marriage & Family of K.M. Nanavati - The accused, at the time of the alleged murder,
was second in command of the Indian Naval Ship ―Mysore‖. He married Sylvia in 1949
in the registry office at Portsmouth, England. They have three children by the marriage; a
boy aged 9½ years, a girl aged 5½ years and another boy aged 3 years.
2. Prem Bhagwandas Ahuja, a businessmen of Bombay, was unmarried and was about 34
years of age at the time of his death.
3. April 27, 1959 – At noon on April 27, 1959, when they were sitting in the sitting-room
for the lunch to be served, the accused put his arm round his wife affectionately, when
she seemed to go tense and unresponsive. After lunch, when he questioned her about her
fidelity, she shook her head to indicate that she was unfaithful to him.

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4. Confession of Sylvia - Sylvia confessed to Nanavati of her illicit intimacy with Prem
Ahuja.
5. Cinema Theatre - He drove his wife and children to a cinema where he dropped them
promising to pick them up when the show ended at 6 p.m.
6. Killing of Ahuja - The accused went to his ship, took from its stores a revolver and
cartridges on a false pretext, loaded the same, went to Ahuja‘s flat, entered his bed room
and shot him dead.
7. Surrender before Police - After the shooting the accused went back to his car and drove
it to the police station where he surrendered himself.
Summary of Decision of Courts

There are following summary of decision of Courts -
Decision
Session Judge with aid of

Special Jury [8:1]
High Court Supreme Court Governor
Murder Murder Pardon

No offence
[Section 302] [Section 302] [Article 161]
Session Judge with aid of Jury – Session Court held that accused has not committed any
offence. Jury decided this case on the basis of sentiment.
High Court [March 11, 1960] - Bombay High Court sentenced Nanavati to life imprisonment
for the murder of Prem Bhagwandas Ahuja.
Supreme Court
K. M. Nanavati challenged decision of High Court in Supreme Court. Arguments of K. M.
Nanavati was that he shot the deceased while deprived of the power of self-control by sudden
and grave provocation and, therefore, the offence would fall under Exception 1 to Section 300 of
the Indian Penal Code. There were following issues in this case -
Issues -
1. Was Nanavati entitled for the benefit of Section 80, IPC?

Answer – No. Nanavati tried to prove that the death of Ahuja was accident i.e. without
intention or knowledge of death of Ahuja. But he could not prove. He did not get benefit
of Section 80, IPC.
2. Who had given provocation?

 A person who convey i.e. Sylvia or

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 A person who had committed wrong i.e. Ahuja

Answer – Unfortunately Supreme Court did not reply. Supreme Court said, ― It is not
necessary to express our opinion on the said question, for we are satisfied that, for
other reasons, the case is not covered by Exception 1 to section 300 of the Indian
Penal Code.146
3. Whether a reasonable person placed in the same position as the accused was, would
have reacted to the confession of adultery by his wife in the manner in which the accused
did?
Answer – It was not replied in general.
4. Whether confession of adultery by the wife of accused to him amounts to grave
provocation?
Answer – Yes.
5. Whether Mr. Nanavati caused death of Mr. Prem under sudden provocation?
Answer – No.
Supreme Court observed following important points –

1. Intention to cause death - The prosecution had proved beyond any reasonable doubt
that the accused had intentionally shot the deceased and killed him.
2. Meaning of Homicide - Homicide is the killing of a human being by another.
3. Essential Ingredient of Exception 1 - Under exception 1 of Section 300, culpable
homicide is not murder if the following conditions are complied with:
(1) The deceased must have given provocation to the accused.
(2) The provocation must be grave.
(3) The provocation must be sudden.
(4) The offender, by reason of the said provocation, shall have been deprived of his
power of self-control.
(5) He should have killed the deceased during the continuance of the deprivation of
the power of self-control.
(6) The offender must have caused the death of the person who gave the provocation
or that of any other person by mistake or accident.
4. Doctrine of Provocation - In Mancini v. Director of Public Prosecutions, Viscount

Simon, L. C., states the scope of the doctrine of provocation thus: ―It is not all
provocation that will reduce the crime of murder to manslaughter. Provocation, to have
that result, must be such as temporarily deprives the person provoked of the power of
self-control as the result of which he commits the unlawful act which causes death.......
The test to be applied is that of the effect of the provocation on a reasonable man, as
was laid down by the Court of Criminal Appeal in Rex v. Lesbini, so that an unusually
excitable or pugnacious individual is not entitled to rely on provocation which would not
146
Page no. 69 of the Original judgment available at official website of Supreme Court.

114
have led an ordinary person to act as he did. In applying the text, it is of particular
importance to consider
(a) whether a sufficient interval has elapsed since the provocation to allow a reasonable
man time to cool, and
(b) to take into account the instrument with which the homicide was effected, for to
retort, in the heat of passion induced by provocation, by a simple blow, is a very
different thing from making use of a deadly instrument like a concealed dagger. In short,
the mode of resentment must bear a reasonable relationship to the provocation if the
offence is to be reduced to manslaughter.‖
5. Test of Grave and Sudden Provocation –

There are following important points must be considered -
(1) Objective Test -The test of ―grave and sudden‖ provocation is whether a reasonable
man, belonging to the same class of society as the accused, placed in the situation
in which the accused was placed would be so provoked as to lose his self-control.
(2) Words and gestures are sufficient - In India, words and gestures may also, under
certain circumstances, cause grave and sudden provocation to an accused so as to
bring his act within the first Exception to section 300 of the Indian Penal Code.
(3) The mental background created by the previous act of the victim may be taken into
consideration in ascertaining whether the subsequent act caused grave and sudden
provocation for committing the offence.
(4) Blow during influence of passion -The fatal blow should be clearly traced to the
influence of passion arising from that provocation and not after the passion had
cooled down by lapse of time, or otherwise giving room and scope for premeditation
and calculation.
6. Reasonable Man‘s Test147 In the case of K.M. Nanavati v. State of Maharashtra
‗reasonable man‘ test was laid down to decide ―What is grave & Sudden Provocation?‖
Question is that on what basis a man can be said a reasonable man.
In this case Supreme Court said, ―No abstract standard of reasonableness can be laid
down. What a reasonable man will do in certain circumstances depends upon the
 customs,
 manners,
 way of life,
 traditional values etc.;
 in short, the cultural, social and emotional background of the society to which
an accused belongs.
147
DU LL.B. Question 4 (b)
Explain with the help of decided cases the legal fiction of ‗reasonable man‘ for determining the ‗grave‘ and
‗sudden‘ provocation and the concept of ‗cooling down period‘ for reducing the criminality of an accused for
murder to culpable homicide not amounting to murder under Exception I to section 300 IPC.

115
 In our vast country there are social groups ranging from the lowest to the highest
state of civilization. It is neither possible nor desirable to lay down any standard
with precision: it is for the court to decide in each case, having regard to the
relevant circumstances.
( 7) Ratio of Previous Judgment – In this case two more cases were also discussed i.e.
Emperor v. Balku148 and Babu Lal v. State.149
Emperor v. Balku150
A division bench of the Allahabad High Court in Emperor v. Balku [1938] invoked the
exception in a case where the accused and the deceased, who was his wife‘s sister‘s husband,
were sleeping on the same cot, and in the night the accused saw the deceased getting up from the
cot and going to another room and having sexual intercourse with his (accused‘s) wife, and the
accused allowed the deceased to return to the cot, but after the deceased fell asleep, he stabbed
him to death.
The learned Judges held:
―When Budhu (the deceased) came into intimate contact with the accused by lying beside him on
the charpai this must have worked further on the mind of the accused and he must have reflected
that this man now lying beside me had been dishonouring me a few minutes ago. Under these
circumstances the provocation would be both grave and sudden‖.
Babu Lal v. State.151
The Allahabad High Court in a recent decision, viz., Babu Lal v. State [1960] applied the
exception to a case where the husband who saw his wife in a compromising position with the
deceased killed the latter subsequently when the deceased came, in his absence, to his house in
another village to which he had moved. The learned Judges observed:
The appellant when he came to reside in the Government House Orchard felt that he had
removed his wife from the influence of the deceased and there was no more any contact between
them. He had lulled himself into a false security. This belief was shattered when he found the
deceased at his hut when he was absent. This could certainly give him a mental jolt and as this
knowledge will come all of a sudden it should be deemed to have given him a grave and sudden
provocation. The fact that he had suspected this illicit intimacy on an earlier occasion also will
not alter the nature of the provocation and make it any less sudden.
Decision - He was liable for murder under section 302. He could not get benefit of section 300
Exception 1. In this case fact was grave (keeping of sexual intercourse without consent of
husband is grave) but death caused by Nanavati was not sudden. Grave and sudden must be
decided according to fact and circumstances of the case.
148
AIR 1938 All 532, 533-534.
149
AIR 1960 All. 233, 226.
150
AIR 1938 All 532, 533-534.
151
AIR 1960 All. 233, 226.

116
Application of Law into facts
Supreme Court observed, ―When Sylvia confessed to her husband that she had illicit intimacy
with Ahuja, the latter was not present. We will assume that he had momentarily lost his self-
control. But if his version is true-for the purpose of this argument we shall accept that what he
has said is true-it shows that he was only thinking of the future of his wife and children and also
of asking for an explanation from Ahuja for his conduct. This attitude of the accused clearly
indicates that he had not only regained his self-control, but on the other hand, was planning for
the future. Then he drove his wife and children to a cinema, left them there, went to his ship,
took a revolver on a false pretext, loaded it with six rounds, did some official business there, and
drove his car to the office of Ahuja and then to his flat, went straight to the bed-room of Ahuja
and shot him dead. Between 1-30 P.M., when he left his house, and 4-20 P.M., when the
murder took place, three hours had elapsed, and therefore there was sufficient time for him to
regain his self-control, even if he had not regained it earlier. On the other hand, his conduct
clearly shows that the murder was a deliberate and calculated one. Even if any conversation
took place between the accused and the deceased in the manner described by the accused-though
we do not believe that-it does not affect the question, for the accused entered the bed-room of the
deceased to shoot him. The mere fact that before the shooting the accused abused the deceased
and the abuse provoked an equally abusive reply could not conceivably be a provocation for the
murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1
to s. 300 of the Indian Penal Code‖.
CONCLUSION
Nanavati was convicted for murder. He was not given benefit of Exception 1 of Section 300.
Murder could not convert into culpable homicide not amounting to murder.
CRUX
Cooling Time - It is not necessary in this case to ascertain whether a reasonable man placed in
the position of the accused would have lost his self- control momentarily or even temporarily
when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the
evidence that the accused regained his self-control and killed Ahuja deliberately. K.M. Nanavati
case accused got sufficient time to cool his mind. So he was convicted for murder. His matter did
not come under Exception 1 of Section 300. In case of Babu Lal v. State (1960 All. H.C.) there
was no cooling time. If there is cooling time then Exception 1 cannot be invoked.
Hansa Singh v. State of Punjab152
In the case of Hansa Singh v. State of Punjab (1976 SC) the deceased saw the accused
committing an act of sodomy on his son, which enraged him and killed the deceased. It was held
that it amounted to a grave and sudden provocation. The conviction under section 302 was set
aside. He was convicted under section 304, Part II of IPC.
152
AIR 1977 SC 1801. Date of Judgment: August 20, 1976.

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Section 300: Exception 4

Ghapoo Yadav & Ors. v. State of M.P.
[Exception (1) and Exception (4) of Section 300]
Date of Judgment – February 17, 2003.

Bench – Division Bench
 Hon‘ble Justice Shivaraj V. Patil,

 Hon‘ble Justice Arijit Pasayat
Author of Judgment - Hon‘ble Justice Arijit Pasayat
Facts
There was land dispute. On the request of Ramlal, measurement was done by Revenue
Authority. After measurement of the land, possession of berry tree was transferred from Ramlal
to Ghapoo Yadav. It was cut down by family member of Rampal. On this point altercation and
scuffle started. Without premeditation fight started. During this Gopal seriously injured and fell
down on earth. After this no injury was caused to Gopal. He was not beaten cruelly. His dying
declaration was recorded. He died. Charges were framed under Sections 148 and 302 read with
Section 149 IPC.
Party
Ghapoo Yadav
Ramlal (Victim)
(Accused)
Gopal (S) Kewal Mangal Sunder
Lekhram (S) Janku (S)
Deceased (S) (S) (N)
Session Court – They convicted for murder.

High Court – High Court approved the decision of Session Court and convicted them for
murder.
Supreme Court – They were given the benefit of Exception 4 and they were convicted for
culpable homicide under section 304(1st Part).

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Decision
Session Court High Court Supreme Court
Murder Murder Culpable Homicide

[Exception 4, S. 300]
Issues
(1) Was causing death of Gopal amount to murder?
Answer - No
(2) Were Ghapoo and Other entitle to get benefit of Exception 4 of Section 300?
Answer - Yes
Ratio of the Case

There are following important points which were discussed in this case by Supreme Court –
(1) Ingredients of Exception 4 – The help of Exception 4 can be invoked if death is caused
(a) without premeditation,
(b) in a sudden fight;
(c) without the offender‘s having taken undue advantage or acted in a cruel or unusual
manner; and
(d) the fight must have been with the person killed.
To bring a case within Exception 4 all the ingredients mentioned in it must be found.
(2) Difference between Exception 1 and Exception 4-
a. Principle is same. Both depend upon without premeditation. But, while in the case
of Exception 1 there is total deprivation of self-control, in case of Exception 4,
there is only that heat of passion which clouds men‘s sober reason and urges
them to deeds which they would not otherwise do.
b. There is provocation in Exception 4 as in Exception 1; but the injury done is not
the direct consequence of that provocation. In fact Exception 4 deals with cases in
which notwithstanding that a blow may have been struck, or some provocation
given in the origin of the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties puts them in respect of
guilt upon equal footing.
(3) Meaning of Sudden Fight - A ‗sudden fight‘ implies mutual provocation and blows on
each side. The homicide committed is then clearly not traceable to unilateral provocation,
nor in such cases could the whole blame be placed on one side.
(4) Mutual Provocation and aggravation - There is no previous deliberation or
determination to fight. A fight suddenly takes place, for which both parties are more or

119
less to be blamed. It may be that one of them starts it, but if the other had not aggravated
it by his own conduct it would not have taken the serious turn it did. There is then mutual
provocation and aggravation, and it is difficult to apportion the share of blame which
attaches to each fighter.
(5) No undue advantage or cruel manner - During this Gopal seriously injured and felt
down on earth. After this no injury was caused to Gopal. He was not beaten cruelly.
Conclusion
Ghapoo and Other got benefit of Exception 4. In this case, Supreme Court differentiated
Exception 1 and Exception 4.
………………………………………………………………………………………………………
DU LL.B. Question no. 4 (a)

Bring out clearly the distinction between the requirements of the partial defence contained in
Exception I and IV to section 300 IPC with the help of decided cases and also the similarity in
some of the essentials, if any, of two exceptions.
Answer
Leading Cases
 K.M. Nanavati Case
 Ghapoo Yadav & Ors. v. State of M.P.
 Surain Singh v. The State of Punjab
INTRODUCTION
Once it is proved that homicide is culpable homicide, then next question arises whether that
culpable homicide is murder or not. Once it is proved that culpable homicide is murder then
accused is entitled to argue that the murder comes under any of the five exceptions of section
300. If murder comes under any of the exceptions of section 300 then murder converts into
culpable homicide. So culpable homicide has been divided into two parts namely;
(1) culpable homicide not amounting to murder – Sections 299 and five exceptions of section
300
(2) culpable homicide amounting to murder – Section 300.
Exception 1 and Exception 4
Exception 1, Section 300 Exception 4 , Section 300

Culpable homicide is not murder if the Culpable homicide is not murder if it is
offender, committed
 whilst deprived of the power of self-  without premeditation

control  in a sudden fight
 by grave and sudden provocation,  in the heat of passion

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 causes the death of the person who  upon a sudden quarrel and
gave the provocation or causes the  without the offender having taken
death of any other person by undue advantage or acted in a cruel
mistake or accident. or unusual manner.
Differences between Exception 1 and Exception 4
In the K.M. Nanavati Case Supreme Court discussed Exception 1 of Section 300. Ghapoo Yadav
& Ors. v. State of M.P. ( Feb. 2003) and Surain Singh v. The State of Punjab (DOJ-10 April
2017) are leading cases in which Supreme Court thoroughly discussed relations between
Exception 1 and Exception 4 of section 300 which are following -
Exception 1 -Grave and Sudden Exception 4 - Sudden Fighting
Provocation
Similarity Similarity
(1) Both are based on same principle (2) Provocation is involved in both the cases.
i.e. both depend upon without (3) In both the cases murder will convert into
premeditation. culpable homicide.
Differences Differences
1 Here one party is to be blamed. He A fight suddenly takes place, for which both
has created grave and sudden parties are more or less to be blamed.
provocation. A ―sudden fight‖ implies mutual provocation
and blows on each side. The homicide
committed is then clearly not traceable to
unilateral provocation, nor could in such cases
the whole blame be placed on one side.
2 It covers matters of grave and sudden This covers matters of sudden fight.
provocation.
3 There is total deprivation of self- There is only that heat of passion which
control clouds men‘s sober reason and urges them to
deeds which they would not otherwise do.
4 Act is done in direct consequences of The injury done is not the direct consequence
that provocation. of that provocation.
Question 8 – Write short notes on ‗Grave and Sudden Provocation‘.

Answer - To get the benefit of Exception 1 of section 300 is that there must be provocation and
provocation must not only be grave but also sudden. Every provocation will not reduce the crime
of murder to homicide. The provocation, to have that result, must be such as temporarily

121
deprives the person provoked of the power of self- control, as a result of which he commits the
unlawful act which causes death.
(1) There must be provocation

(2) That provocation must be grave and
(3) That provocation must be sudden and
(4) effect of grave and sudden provocation must be so powerful that person deprived from
self- control.
To decide grave and sudden provocation ―Reasonable Man‘s Test‘ is applied. It means
objective test is followed. In the case of K.M.Nanavati case this test was thoroughly discussed. In
this case Supreme Court said ―No abstract standard of reasonableness can be laid down. What a
reasonable man will do in certain circumstances depends upon the customs, manners, way of
life, traditional values etc.; in short, the cultural, social and emotional background of the
society to which an accused belongs. In our vast country there are social groups ranging from
the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any
standard with precision : it is for the court to decide in each case, having regard to the relevant
circumstances.
The test of ―grave and sudden‖ provocation is whether a reasonable man, belonging to the same
class of society as the accused, placed in the situation in which the accused was placed would be
so provoked as to loose his self-control.
For example certain abusive words are common in Haryana State. If one person of Haryana says
it to another person is not grave for him but same words for Bihari person is offensive. At the
time of deciding ‗grave and sudden provocation‖ Bihari people must be treated in different
categories because there culture are different.‖ A thing which is grave for one person may not be
grave for another person.
In the case of K.M. Nanavati v. State of Maharashtra (1961SC) it was accepted that
keeping sexual intercourse with wife of any person was grave for provocation but action was not
sufficient. There was sufficient time to cool the mind. After listening confession of wife he
dropped his wife and children at a cinema, went to the ship, collected revolver, did some official
business there, and drove his car to the office of the deceased and later to his house. Three hours
had lapsed by then and therefore, there was sufficient time for him to regain his self -control. The
Court held that provisions of section 300 Exception 1 would not be applicable in this case. The
accused was convicted for murder and sentenced to the life imprisonment.
In the case of Hansa Singh v. State of Punjab (1976 SC) the deceased saw the accused
committing an act of sodomy on his son, which enraged him and killed the deceased. It was held
that it amounted to a grave and sudden provocation. The conviction under section 302 was set
aside. He was convicted under section 304 of IPC.

122
Exception -5 of Section 300 and Section 90 (Consent)
Section 300, Exception 5 - Culpable homicide is not murder when the person whose death is
caused, being above the age of eighteen years, suffers death or takes the risk of death with his
own consent.
Exception -5- The points to be proved are:
(1) The death was caused with the consent of the deceased;
(2) The deceased was then above 18years of age;
(3) That such consent was free and voluntarily and not given through fear or misconception
of facts.
Dashrath Paswan v. State of Bihar153

(Nov. 14, 1957) (Patna High Court)
Dashrath Paswan was a student of class X. He had failed at the annual examination for 3
years in succession. The deceased, his wife, was aged about 19 years. It appears that she was a
literate woman. The appellant was very much upset at these failures. He told his wife that he had
decided to end his life.
His wife told him in reply that he should first kill her and then kill himself. This talk took
place at about 8 a.m. on 13-6-55. That morning the parents of the appellant had gone out early in
the morning to work in the fields and there was nobody else in the house besides the appellant
and his wife. In accordance with the pact, about an hour later, the wife spread a mat on the floor
in one of the rooms in the house and lay down quietly. The appellant at first struck her with a
bhala causing a minor injury on her chest. Then he took up a sharp-cutting hasuli and gave her
three violent blows on the neck killing her on the spot.
He then ran out of the house with his bloodstained clothes in order to end his own life. He was
arrested.
Reason -It is undisputed that the deceased was above the age of 18 years and that she had
suffered death with her own free consent.
Decision - He was punished under section 304, Part –I.
Narendra v. State of Rajasthan154

[September 2, 2014]
Facts - deceased Nathi after leaving her matrimonial house, while she was residing at her
maternal home, she has developed love and intense relationship with the accused Narendra.
There is adequate evidence which clearly show the love affair between the deceased and the
accused. Since the deceased and the accused were of the same gotra, their relationship was not
153
AIR 1958 Pat. 190.
154
(2014) 10 SCC 248. Available at: https://main.sci.gov.in/judgment/judis/41860.pdf (Visited on February 08,
2022).

123
accepted by the villagers. PW-3 admits that Nathi and accused were in love and that Nathi and
the accused eloped and lived together for about 10-15 days. A panchayat was convened after
Nathi returned home. In his evidence PW 3 stated that Nathi having left her previous husband,
wanted to marry the accused; but to Gotra of both being one the marriage could not be held. As
their desire of marriage was not accepted by the villagers, perhaps accused and the deceased
were dejected.
Both decided to commit suicide. Acting on the consent of Nathi, appellant inflicted sword
injuries on Nathi and Nathi died but before however the appellant could kill himself, there was
intervention. accused had also sustained stab injuries. Due to intervention he could not kill
himself.
Supreme Court observed that act of the accused causing death of Nathi falls under Exception 5 of
Section 300 IPC. Death was caused with intention. So accused was punished under Section 304
Part I IPC.
Reason of Decision -
(a) Deceased Nathi and the accused were in love and they were intending to get married.
Since they belonged to the same gotra, their relationship was not accepted by the
villagers and they objected to the same;
(b) About three months prior to the incident, Nathi and accused left the village and lived
together for about 10-15 days and thereafter Nathi returned to her matrimonial house;
(c) On 19.3.2003, the parents of the deceased went for work and PW-3 was also engaged in
some events pertaining to Holi festival and Nathi was alone in the house;
(d) When the accused came to the house of the deceased, he was not armed; he had taken the
sword from inside the room of the house;
(e) PW-3, nowhere stated that at the time of the incident his sister quarrelled with the
accused. When the accused inflicted sword blows, deceased Nathi had not raised any
alarm nor shouted for help;
(f) the accused was also having the stab injuries on his person.
Kinds and Meaning of Euthanasia

In Aruna Ramachandra Shanbaug v. Union of India and others155 Supreme Court discussed
kinds of euthanasia in detail which are following –
155
(2011) 4 SCC 454. Date of Judgment: March 07, 2011. Available at:
https://main.sci.gov.in/judgment/judis/37709.pdf (Visited on February 09, 2022).

124
Kind of Euthanasia
Active Passive
Euthanasia Euthanasia
Voluntary passive Non-voluntary passive

euthanasia euthanasia
I. Active euthanasia - Active euthanasia entails the use of lethal substances or forces to kill
a person e.g. a lethal injection given to a person with terminal cancer who is in terrible
agony. Active euthanasia is taking specific steps to cause the patient‘s death, such as
injecting the patient with some lethal substance, e.g. sodium pentothal which causes a
person deep sleep in a few seconds, and the person instantaneously and painlessly dies in
this deep sleep.
II. Passive Euthanasia - Dealing with passive euthanasia, the two-Judge Bench in Aruna
Ramachandra Shanbaug v. Union of India and others156 at para 51 opined that passive
euthanasia is usually defined as withdrawing medical treatment with a deliberate
intention of causing the patient‗s death. An example was cited by stating that if a patient
requires kidney dialysis to survive, not giving dialysis although the machine is available
is passive euthanasia and similarly, withdrawing the machine where a patient is in coma
or on heart-lung machine support will ordinarily result in passive euthanasia. Similarly
not giving life-saving medicines like antibiotics in certain situations may result in passive
euthanasia. Denying food to a person in coma or PVS may also amount to passive
euthanasia.
(a) Voluntary passive euthanasia - In voluntary passive euthanasia a person who is
capable of deciding for himself decides that he would prefer to die (which may be for
various reasons e.g., that he is in great pain or that the money being spent on his
treatment should instead be given to his family who are in greater need, etc.), and for this
purpose he consciously and of his own free will refuses to take life saving medicines. In
India, if a person consciously and voluntarily refuses to take life saving medical treatment
it is not a crime.
(b) Non-voluntary passive euthanasia - Non-voluntary passive euthanasia implies that the
person is not in a position to decide for himself e.g., if he is in coma or ‗persistent
vegetative state (PVS)..157
(3) Difference between Euthanasia and physician assisted dying/ suicide
156
(2011) 4 SCC 454. Date of Judgment: March 07, 2011.
157
In Aruna Ramachandra Shanbaug v. Union of India and others Non-voluntary passive euthanasia was involved.
Victim was not able to express her desire.

125
Supreme Court in Aruna Ramachandra Shanbaug Case observed, ―A distinction is sometimes

drawn between euthanasia and physician assisted dying, the difference being in who administers
the lethal medication. In euthanasia, a physician or third party administers it, while in physician
assisted suicide it is the patient himself who does it, though on the advice of the doctor. In many
countries/States the latter is legal while the former is not‖.
Legal Position of Euthanasia
Active euthanasia
Active euthanasia is not legal in India.158 Active Euthanasia is culpable homicide if consent by
competent person had been given. Otherwise it will be murder. Following stages must be
followed before concluding active euthanasia is culpable homicide where consent has been given
-
(1). Homicide
(2). Culpable Homicide [Section 299 (c )]
(3). Murder [Section 300, fourthly]
(4). Culpable Homicide [Section 300, Exception 5].
The Constitution Bench of the Supreme Court in Gina Kaur V. State of Punjab159 held that both
euthanasia and assisted suicide are not lawful in India.
In Aruna Ramachandra Shanbaug v. Union of India and others160 Hon‘ble Justice Markandey
Katju observed, ―Active euthanasia is a crime all over the world except where permitted by
legislation. In India active euthanasia is illegal and a crime under section 302 or at least section
304 IPC.
In Common Cause (A Regd. Society) v. Union of India161 Supreme Court observed, ―Active
euthanasia involves an intention to cause the death of the patient. Mens rea requires a guilty
mind; essentially an intent to cause harm or injury‖. So active euthanasia is an offence under
IPC, 1860.
Passive Euthanasia
Law Commission of India in its report observed that euthanasia is legal in India. In 162Aruna
Ramachandra Shanbaug v. Union of India and others163 and Common Cause v. Union of
India164 Hon‘ble Supreme Court observed that passive euthanasia is legal in India. It is not –
I. Culpable homicide, [Reason – There is no causa- causans] or
158
Gina Kaur v. State of Punjab (1996), Aruna Ramachandra Shanbaug v. Union of India and others (2011) and
Common Cause (A Regd. Society) v. Union of India (2018).
159
1996(2) SCC 648.
160
161
Date of Decision: March 09, 2018.
162
196th Report, 2006.
163
164

126
II. Abetment of Suicide, [ Dr. is not abetting patient] or

III. Attempt to Suicide [No one can be compelled to take medicine. He may not be able to
purchase or he is not ready to leave his home. He is allowing his natural death].
In Common Cause v. Union of India165 Supreme Court observed, ―

(a) Voluntary passive euthanasia – Voluntary Passive euthanasia does not embody an intent to
cause death. A doctor may withhold life support to ensure that the life of a patient who is in the
terminal stage of an incurable illness or in a permanent vegetative state, is not prolonged
artificially. The decision to do so is not founded upon an intent to cause death but to allow the
life of the patient to continue till and cease at the end of its natural term. Placing such a person
on life support would have been an intervention in the natural process of death. A decision not to
prolong life by artificial means does not carry an intention to cause death.
The crucial element in Section 299 is provided by the expression ―causes death‖. In a case
involving passive euthanasia, the affliction of the patient is not brought about either by an act or
omission of the doctor. There is neither an animus nor an intent to cause death. Moreover, the
doctor does not inflict a bodily injury. He has not done with knowledge to cause bodily injury.
If active euthanasia is done with consent, matter will be covered under Section 300, Fifth
exception.
(b) Non- voluntary passive euthanasia - In a situation where passive euthanasia is non-
voluntary, there is an additional protection which is also available in circumstances which give
rise to the application of Section 92. Where an act is done for the benefit of another in good faith,
the law protects the individual. It does so even in the absence of the consent of the other, if the
other individual is in a situation where it is impossible to signify consent or is incapable of
giving consent. Section 92 also recognises that there may be no guardian or other person in
lawful charge from whom it is possible to obtain consent. However, the proviso to Section 92
stipulates that this exception shall not extend to intentionally causing death or attempting to
cause death. The intent in passive euthanasia is not to cause death.
(c) Attempt to Suicide – It is not attempt to suicide. The decision of a patient to allow nature to
take its course over the human body and, in consequence, not to be subjected to medical
intervention, does not amount to a deliberate termination of physical existence. Allowing nature
to take its course and a decision to not receive medical treatment does not constitute an attempt
to commit suicide within the meaning of Section 309 of the Penal Code;
WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN PERMANENT VEGETATIVE

STATE (PVS)
165

127
There is no statutory provision in our country as to the legal procedure for withdrawing life
support to a person in PVS or who is otherwise incompetent to take a decision in this connection.
Passive euthanasia should be permitted in our country in certain situations.166
In Aruna Ramachandra Shanbaug v. Union of India and others167 at para 126 Hon‘ble Justice
Markandey Katju observed, ―We are laying down the law in this connection which will continue
to be the law until Parliament makes a law on the subject. A decision has to be taken to
discontinue life support either by the parents or the spouse or other close relatives, or in the
absence of any of them, such a decision can be taken even by a person or a body of persons
acting as a next friend. It can also be taken by the doctors attending the patient. However, the
decision should be taken bona fide in the best interest of the patient‖.
Physician assisted suicide (PAS) is a crime under section 306 IPC (abetment to suicide).168
Section 301
The English doctrine of Transfer of Malice/Transmigration of motive has been embodied in

section 301.169 Example –A intends to kill B but kills C whose death he neither intends nor
knows to be likely to cause, the intention to kill C is by law attributed to him. A has committed
an offence under section 301.170
Section 302
Punishment for murder- Whoever commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to fine.
There are two types of punishment for death namely;
(1) Deat h Sentence/ Capital punishment and fine, or
(2) Imprisonment for life, and fine.
If a Court of Session awards rigorous imprisonment for ten years to a person whose age
was 70 years and he was also disabled, such punishment is unlawful because punishment
for murder can be either Capital punishment or imprisonment for life. There is no
provision for awarding punishment for ten years.171
Bachan Singh v. State of Punjab (9 May, 1980) –
166
Aruna Ramachandra Shanbaug v. Union of India and others
167
168
Para 41, Aruna Ramachandra Shanbaug v. Union of India and others
169
Uttarakhand (J) (Pre) 2011.
170
U.P.A.P.O 2002. M.P. Civil Judge, 2010. DU: Question 8(a) (2014) - Write short notes on the following -
Illustrate and explain the concept of transfer of malice under common law and its place under the Indian Penal Code.
171
M.P.Civil Judge, 1986.

128
In this case Supreme Court said that death sentence can be imposed only in the ‗rarest of
the rare‘ cases.172 Capital punishment from Indian Society cannot be abolished. Life
imprisonment is rule while death sentence is an exception.173
Section 303
Punishment for murder by life-convict -Whoever, being under sentence of imprisonment

for life, commits murder, shall be punished with death.
This section provides mandatory death sentence for murder committed by convict serving a
sentence of life imprisonment.
Since 1860- 1983 – Section 303 was valid during 1860- 1983.
After 1983 – Mithu Singh v. State of Punjab (April 7, 1983) – In this case Constitutional bench
comprises by five judges struck down section 303 on the basis of violation of article 14 and 21 of
the Constitution of India.174
Section 304
Punishment for culpable homicide not amounting to murder –

Part I (Intention) -Whoever commits culpable homicide not amounting to murder shall
be punished with imprisonment for life, or imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is
done with the intention of causing death, or of causing such bodily injury as is likely to cause
death,
or
Part II (Knowledge) -with imprisonment of either description for a term which may
extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is
likely to cause death, but without any intention to cause death, or to cause such bodily injury as
is likely to cause death.
Division of Culpable Homicide

Culpable homicide may be divided into two parts –
(1) Culpable homicide not amounting to murder – Section 299, Exceptions of section 300
and punishment therefore section 304.
(2) Culpable homicide amounting to murder – Section 300 and punishment therefore 302.
172
U.P.A.P.O 2005 & 2007. M.P.APO 2009.
173
Uttarakhand (J) (Pre) 2011.
174
Uttarakhand PCS(J), 2002, 2005, 2009, UPHJS 2009, MPAPO 2008, UPAPO 2002, UPPCS J 2006

129
1st Degree (Highest 2nd Degree (Middle Degree) 3rd Degree (Lowest Degree)
Degree) Culpable Homicide (Intention) Culpable Homicide (Knowledge)
Murder
Sec. 299 (a) & (b)and Sec. 299 (c) and
Exceptions of 300 (If it is related to Exceptions of 300 (If it is
Intention) related to knowledge)
Section 302 Section 304 ( Part 1) Section 304 (Part 2)
Death or Life Life Imprisonment or Ten years Ten years of either description
Imprisonment and imprisonment and fine or fine or both. No Life
fine Imprisonment.
Example - If the offender has the intention to cause bodily injury accompanied with the
knowledge that such injury is likely to cause the death of the person injured as defined in s. 300,
cl.(2), then the offence will come under section 302 and not section 304, Part I, unless it falls
under any of the five exceptions u/s 300 of IPC.175
M.B.Singh v. Manipur Administration,176 it was held that the appellant was guilty of the
offence under Part I to section 304 of IPC, when he exceeded his right of private defence by
brutally killing the deceased who was an old person.
Question 3. (a) Bring out clearly the distinction in the degree of rashness required under section
304A IPC and that under section 304 part II, IPC for conviction of offenders with the help of
decided cases and illustrations.
Answer – Once it is proved that homicide is culpable homicide, then next question arises
whether that culpable homicide is murder or not. Once it is proved that culpable homicide is
murder then accused is entitled to argue that the murder comes under any of the five exceptions
of section 300. If murder comes under any of the exceptions section 300 then murder converts
into culpable homicide. So culpable homicide has been divided into two parts namely;
(i) culpable homicide not amounting to murder – Sections 299 and five exception of section 300
(ii) culpable homicide amounting to murder – Section 300.
Previous Years Question Papers of Chapters 2 and 3
DU LL.B. 2016
Question 1(a) - A, B, and C assaulted their junior and fresher X in their hostel room while
ragging him. They punched and kicked him on non-vital parts of his body as he refused to dance
on a song played by them on their mobile phone. X fell down and became unconscious.
175
V Suresh & D Nagasila, PSA Pillai‘s Criminal Law 648 ( LexixNexis, New Delhi, Edn., 9 th, Fourth Reprint,
2007).
176
AIR 1967 Manipur 41

130
impression that X had committed suicide. The post-mortem examination showed that death was
due to asphyxiation. Decide culpability of A, B and C with the help of decided case.
Answer
In this problem sections 201, 299, 321& 323 and ratio of judgment of Palani Goundan v.
Emperor (1919, Mad. H.C.) are involved. Actus non facit reum, nisi mens sit rea means the act
itself does not make a man guilty, unless the mind is also guilty.
Section 321 related to voluntarily causing hurt and its punishment has been provided under
section 323. Section 299 deals culpable homicide.
Section 299 Culpable Homicide - Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily injury as is likely to cause death, or
with the knowledge that he is likely by such act to cause death, commits the offence of culpable
homicide.
or (b) Intention to cause bodily injury or (c) Knowledge. If either condition is missing, section
299 shall not be applicable.
Palani Goundan v. Emperor (1919, Mad. H.C.)
Husband struck a violent blow on the head with ploughshare. She became unconscious. It was
not shown to be a blow likely to cause death. He thought that she had died. So for concealment
of evidence, he hanged her. She died due to hanging. He was not liable either for culpable
homicide or murder. He was liable only for causing of grievous hurt and concealing evidence.
He had neither intention nor knowledge to kill his wife.
(1) Section 299
(i) Cause – effect relationship
Here cause-effect relationship means death must be occurred by act of accused. If
reason of death is not act of accused then no further question arises regarding
application of guilty mind. In the Moti Singh v. State of UP, Supreme Court said that
there must be connection between the primary cause and the death which should not
be too remote.
In this problem Z died due to hanging him by all accused from the ceiling fan by a
rope. So in this case first condition of section 299 is being fulfilled.
(ii) Guilty Mind – Without guilty mind homicide is possible but culpable homicide is not
possible. In this problem there was no intention to cause death. Although there was
intention to cause bodily injury but bodily injury was on non-vital part by which there
was no probability to cause death. Here knowledge was that they were inflicting the
injury on non-vital part. But by that injury there was no probability to cause death.

131
So in this problem guilty mind as required under section 299 is missing.

So conclusion is that they will not be liable to culpable homicide. Here death
occurred due to hanging. At the time of hanging mere intention was to conceal the
evidence rather than to cause death.
(2) Palani Goundan Case

In this case it was held, ―The conclusion is irresistible that the intention of the accused
must be judged, not in the light of the actual circumstances, but in the light of what he
supposed to be the circumstances. It follows that a man is not guilty of culpable
homicide, if his intention was directed only to what he believed to be a lifeless body.‖
In this problem they presumed him to be dead. So they hanged him from the ceiling fan
by a rope, so as to create an impression that X had committed suicide.
So we can say that they had not committed culpable homicide.
(3) Voluntarily Causing Hurt

According to section 319 a person who causes bodily pain, disease or infirmity to any
person is said to cause hurt. Hurt is not punishable because here guilty mind is missing.
Only voluntarily causing hurt is punishable. According to section 321 if hurt is caused
with the intention or knowledge then it is called voluntarily causing hurt which is
punishable under section 323.
In this problem A, B, and C had caused hurt voluntarily. This hurt is not coming under
the category of grievous hurt as mentioned in section 320. So they will be liable for
voluntarily causing hurt.
(4) Disappearance of evidence (section 201)

Presuming him to be dead they hanged him from the ceiling fan by a rope, so as to create
an impression that X had committed suicide. So they will be punished under section 201.
Conclusion
From the above discussion it becomes clear that A, B, and C had not committed culpable
homicide. They had committed offences under section 323 (voluntarily causing hurt) and section
201(Disappearance of evidence) of IPC, 1860.
Question 1(b) Ajay and Vijay got into an argument while playing cricket match. Ajay suddenly
struck Vijay with his cricket bat and vijay retaliated by forcefully hitting him on the head by the
cricket ball which he was holding. The injury so inflicted caused brain haemorrhage in Ajay and
he died soon afterwards. The doctor stated that the injury was sufficient in the ordinary course of

132
nature to cause death. A case was registered against Vijay under section 302IPC. Discuss the
criminal liability of Vijay citing relevant case law.
Answer
This problem is based on Section 300 thirdly and Exception 4 of section 300. Relevant cases for
this problem are Virsa Singh v. State of Punjab(1958 SC), Ghapoo Yadav & Ors. v. State of M.P.
( Feb. 2003) and Surain Singh v. The State of Punjab (April, 2017)
(1) Homicide
Death of Ajay is homicide committed by Vijay. Reason is that Ajay died due to injury caused by
Vijay.
(2) Culpable Homicide
There are two types of homicide namely; (1) Justified Homicide and (2) Unjustified Homicide.
Culpable Homicide is unjustified homicide which is committed with guilty mind.
Homicide is culpable homicide only when both the conditions of section 299 are being fulfilled
namely; (1) Actus reus. There must proximate connection between death of victim and act of
accused. In this problem death of Ajay occurred due to act of Vijay. (2) Mens Rea (Guilty mind).
Guilty mind under section 299 can be divide three parts namely;(1) Intention to cause death or
(2) intention of causing such bodily injury as is likely to cause death, or (3) with the knowledge
that he is likely by such act to cause death. In this problem there was neither intention to cause
death nor knowledge that by his act it was likely to cause death.
But in this problem there was intention to cause bodily injury and by such bodily injury there
was possibility to cause death. So Vijay had committed culpable homicide which comes under
section 299 (b).
(3) Murder
Murder is at the third stage. First of all homicide have to be proved. If there is homicide then
next question arises whether it is culpable homicide. Once it is proved that there is homicide.
Next question arises whether that culpable homicide amounts to murder or not. In this problem it
has already been proved that there was homicide. Section 300 defines murder.
Section 300 Thirdly -Except in the cases hereinafter excepted, culpable homicide is murder, if
the act by which the death is caused is done
Thirdly -with the intention of causing bodily injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of nature to cause death. In the Virsa Singh v.
State of Punjab (SC 1958) Case it was said that there are two clauses of ―Thirdly‖ and both
clauses are disjunctive and separate. Only intention is necessary for first part. For the first part
‗subjective test‘ will be applied and for second part ‗objective test‘ will be applied.
In this problem there was intention to cause bodily injury. According to medical report that the
injury was sufficient in the ordinary course of nature to cause death.
So it becomes clear that this is the murder which comes under section 300,thirdly.

133
(4) Section 300 Exception 4

Once it is proved that there is murder. Accused can claim that although that is murder but it
comes under exceptions of section 300. So it is only culpable homicide. According to section
105 of Indian Evidence Act in such cases burden of proof shall lies over accused.
Section 300 Exception 4 -Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel or unusual manner.
Ghapoo Yadav & Ors. v. State of M.P. ( Feb. 2003) and Surain Singh v. The State of Punjab
In these cases it was said that this section is based on act without premeditation. A fight suddenly
takes place, for which both parties are more or less to be blamed. A ―sudden fight‖ implies
mutual provocation and blows on each side. The homicide committed is then clearly not
traceable to unilateral provocation, nor could in such cases the whole blame be placed on one
side. There is only that heat of passion which clouds men‘s sober reason and urges them to deeds
which they would not otherwise do. The accused should not have taken undue advantage or
acted in a cruel or unusual manner.
Evaluation of Problem
(1) Without premeditation - In this problem Ajay and Vijay were playing cricket. There
was bonhomie between both. Suddenly argument started. For this there no pre-planning.
It occurred without premeditation.
(2) Sudden quarrel & fight - Ajay suddenly struck Vijay with his cricket bat and vijay
retaliated by forcefully hitting him on the head by the cricket ball which he was holding.
In the case of Ghapoo Yadav Case and Surain Singh Case Supreme Court held that a
―sudden fight‖ implies mutual provocation and blows on each side. So in this case there
was sudden fight.
(3) Heat of passion – After striking of Ajay by cricket bat, passion of Vijay became heat. In
the case of Ghapoo Yadav Case and Surain Singh Case Supreme Court held that ―There
is only that heat of passion which clouds men‘s sober reason and urges them to deeds
which they would not otherwise do.‖. This heat clouded Vijay‘s sober reason. So he did.
(4) Without taking undue advantage or acted in a cruel or unusual manner. In this
problem Vijay retaliated by the cricket ball which he was holding. After this he did
nothing. He did not committed more injury.
Conclusion
From the above discussion it becomes clear that in this problem Vijay would be entitled to get
benefit of Exception 4 of Section 300. So he will be punished under Section 304 Part 1.
Question 2(a) –
Omprakash, a farmer was very depressed because of recurrent crop failure and economic
hardship caused thereby. He was hard pressed for money. To end his suffering once and for all
times to come he gave poison to his wife and two children. He planned to poison himself too but

134
panicked at last moment. The wife and children died of poisoning. Omprakash pleaded
depression and poverty as an excuse for killing his family. Will he succeed? Discuss.
Answer –
In this problem motive and intention are involved. Section 299(a) and section 300 firstly are also
involved.
Motive v. Intention
Motive and intention both are different. There are following differences -
Motive Intention
1 Motive is the feeling which prompts the Intention is an operation of the will
operation of the will. directing an overt act.
Intention is the combination of desire and
foresight of consequences.
2 It is the ulterior object. It is immediate object.
3 Motive is not part of crime. So either good Presence or absence of intention is very
motive or bad motive shall not be relevant relevant. Rule is that ―Actus non facit
for commission of offence. It means reum, nisi mens sit rea‖
presence or absence of motive is not relevant
to constitute offence. It is relevant to decide
quantum of punishment. It is relevant under
section 8 of Indian Evidence Act.
Motive – Motive is not relevant factor to decide crime. Either good motive or bad motive is not
relevant to decide offence. Motive is relevant only at the time of deciding punishment. In this
problem motive is to end his suffering from poverty. It might be good motive for him. But it is
not relevant. He wanted to permanently get rid of poverty.
Intention – Presence or absence of intention is very relevant to decide the commission of
offence. He gave poison to his wife and two children. Intention was to kill family members.
Omprakash pleaded depression and poverty as an excuse for killing his family. He did not plead
that there was no intention to kill.
Culpable Homicide
He had caused culpable homicide with the intention of causing death. Justice Melvill (R v.
Govinda, July 18, 1876, Bombay High Court), to make differences between sections 299 and
300, divided section 299 into three parts namely;(1) Sec. 299(a) (2) Sec. 299 (b) & (3) Sec.
299(c) and Justice Ranjit Singh Sarkaria (State of A.P. v. R.Punnayya, September 15, 1976,
Supreme Court) also discussed differences and accepted the differences made by justice Melvill.
Omprakash had caused death with the intention of causing death. So this is culpable homicide
under section 299(a).
Murder (Section 300 Firstly)

Section 300 defines murder which is following -

135
Section 300 Firstly -Except in the cases hereinafter excepted, culpable homicide is murder, if the
act by which the death is caused is done with the intention of causing death.
Justice Melvill said that if there is intention to cause death then culpable homicide is always
murder unless it comes under exceptions of section 300.
So Omprakash has committed murder under section 300, firstly.
Conclusion
Motive is immaterial. There was intention to cause death. So Omprakash has committed murder
as defined under section 300, firstly. So he will be punished under section 302 of IPC, 1860.
Question 2(b)
Bring out the differences and similarities between grave and sudden provocation and sudden
fight.
Answer –
I have already discussed at pp.4-5 of Annexure I. So no need to repeat here.
Question (3) (a) 2014 OC

Due to rivalry arising out of landed property between A and B. A caused multiple injuries to B
and various parts of body to teach him a lesson. B was admitted to the hospital, where he was
treated and discharged. When B was on his way to recovery, he became negligent about his
medicines. He, therefore, developed fever and septic of two wounds. B died a week later. State
the liability of A. Cite relevant legal provisions and decided cases.
Answer
Statutory Provisions and Cases

In this problem Actus non facit reum, nisi mens sit rea, section 299 and ratio of Moti Singh and
Anr. v. State of U.P., (Jan. 23, 1963 SC) and Joginder Singh v. State of Punjab (1979 SC) are
involved.

Actus non facit reum, nisi mens sit rea which means the act itself does not make a man guilty,
unless the mind is also guilty. Section 299 is based on this maxim.
Section 299
Section 299 - ―Whoever causes death (Section 46) by doing an act (Sections 32 &33) with the
intention (Desire and foresight of consequences) of causing death, or with the intention of
causing such bodily injury as is likely to cause death (there is no intention to cause death, only

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intention is to cause bodily injury) or with the knowledge (foresight of consequences) that he is
likely by such act to cause death, commits the offence of culpable homicide.‖
There are two conditions must be fulfilled to apply section 299 namely; (1) Actus reus
(Prohibited Act). There must be cause and effect relationship. It means Causa causans
(Immediate or operating cause) is sine qua non and (2) Mens Rea (Guilty Mind).
First Condition
(1) There must be cause and effect relationship/ Causa causans (Immediate or operating
cause) – Primary cause and the death should not be too remote. Prosecutor has to prove that by
act of accused, death of victim has occurred. Here cause and effect means, there must be death of
victim by act of accused rather than act of third person. On this topic there are following leading
cases -
(i) Moti Singh and Anr. v. State of U.P.

Deceased had been injured during the occurrence and had been taken to the hospital
where his dying declaration was recorded. He left the hospital and died 20 days later.
Before any postmortem examination could be held, his body was cremated. Prosecutor
could not prove what the reason of cause of death of victim was whether it was injury
caused by accused or negligence in taking medicine after discharge of hospital.
Prosecutor failed to prove cause- effect relationship.
Moti Singh and Jagdamba were acquitted.
(ii) Joginder Singh v. State of Punjab (1979 SC)
The deceased Rupinder Singh had teased the sister of accused. In retaliation accused
reached at the house of deceased. Seeing these things deceased started to run away.
Accused tried to hold deceased. Accused were about 15 to 20 feet from victim when he
jumped into well. There was no cause & effect relationship.
If this condition is not fulfilled, no further question regarding intention or knowledge arose.
Second Condition
There must be Guilty Mind. There are three degrees of mens rea- (i) Intention to cause death, or
(ii) Intention to cause such bodily injury as is likely to cause death, or (iii) With the knowledge
that he is likely by such act to cause death.
Application of Law with the problem

A caused multiple injuries to B. B was admitted to the hospital, where he was treated and
discharged. In this problem B developed fever and septic of two wounds due to his negligence
and he died a week later. Reason of death is not injuries caused by A. So there is no relationship

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between death of B and act of A. So A will not be liable for causing death of B. Causa causans
(Immediate or operating cause) is missing in this problem. First condition of section 299 is not
being fulfilled.
Conclusion
On the basis of above discussion it can be concluded that A has not committed culpable
homicide. He will be liable only for voluntarily causing hurt.
Question 1 (2014)
Ravi suffered serious injuries on his right leg at the hands of Kavi resulting in the amputation of
his leg. Rajinder, father of Ravi, harboured a grudge against Kavi since that time and was out
to take revenge. One day he caught hold of Kavi while he was coming back from work and
indiscriminately pounded legs and arms of Kavi with a heavy stick which he was carrying. In all
there were 18 injuries on the body of Kavi who suffered multiple fractures on arms and legs and
died after two days. The medical report suggested that the cause of death was shock and
haemorrhage resulting from multiple injuries. The trial court held that in the circumstances of
the case since Rajinder could not be attributed with intention to kill, he was guilty of only
culpable homicide not amounting to murder under section 304 Part-I, although the charge was
under section 302 IPC. The high court concurred with the view of the trial court. The state wants
to file special leave to appeal in the Supreme Court against the concurrent judgments of the
courts below for seeking his conviction under section 302 IPC. But before doing so, it seeks your
legal opinion whether a case under s. 302 IPC is made out.
Draw a legal opinion in the matter as required.
Answer
Statutory Provisions and Cases
In this problem sections 299, 300, ratio of R v. Govinda (1876), State of A.P. v. R.Punnayya
(1976) and Virsa Singh v. The State of Punjab are involved.
Difference between Culpable Homicide (CH) and Murder

In this problem Rajinder caused 18 injuries to take revenge. There was intention to cause
multiple injuries. He had been convicted under section 304 Part I. State wants to go in appeal for
conviction under section 302. So problem requires making differences between section 299 and
section 300 on the issue of intention to cause bodily injuries.
There are two leading cases one was decided by Justice Melvill (R v. Govinda, July 18, 1876,
Bombay High Court) and another decided by Justice Ranjit Singh Sarkaria (State of A.P. v.
R.Punnayya, September 15, 1976, Supreme Court) in which differences between section 299 and
section 300 were discussed thoroughly.

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Justice Melvill made differences between culpable homicide and murder. For convenience he
divided guilty mind for culpable homicide under three categories namely; section 299(a), section
299 (b) and section 299(c).
Intention to cause bodily injury - (S.299 (b) & S.300– (Secondly) & (Thirdly)
In section 299 only (b) category talks about intention to cause bodily injury while S.300–
Secondly & Thirdly both deal intention to cause bodily injury. In section 300– Secondly &
Thirdly certain specific words have been added which increase the gravity of guilty mind.
Section 299 (b) Section 300, Secondly

(b)Intention to cause bodily injury + (Secondly)Intention to cause bodily injury +
by such bodily injury, it is likely to offender knows that by such bodily injury, it is
cause death likely to cause death. (Intention + knowledge+
(Intention +Likely). likely).
Here knowledge is missing. Here knowledge of offender has enhanced
(b) Thirdly
(b) Intention to cause bodily injury + Thirdly- With the intention of causing bodily
by such bodily injury, it is likely to injury to any person, and the bodily injury intended
cause to death. (Intention + Likely). to be inflicted is sufficient in the ordinary course
(The distinction lies between a bodily of nature to cause death. By using the words
injury likely to cause death and a sufficient in the ordinary course of nature,
bodily injury sufficient in the ordinary enhanced the gravity of probability of death.
course of nature to cause death.)
In this problem Rajinder caused injuries only on arms and legs. He did not knowing that by
those injuries shock and haemorrhage might be occurred and finally death would be caused. So
section 300 secondly is not applicable.
Next question is whether 300 thirdly will be applicable.
Virsa Singh v. State of Punjab (1958 SC, Justice Vivian Bose).

In Virsa Singh v. State of Punjab Supreme Court held that there are two parts of section 300
thirdly. The Court said that these two parts are disjunctive and separate. These parts are namely;
Part1-If it is done with the intention of causing bodily injury to any person (Subjective test),
and Part 2- the bodily injury intended to be inflicted (It is descriptive of part 1) is sufficient in
the ordinary course of nature to cause death (Objective Test).
Only for first part intention of accused is necessary. For second part intention of accused is not
necessary. For first part subjective test is applied while for second part objective test is applied.

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Main difference between section 299 (b) which contains ‗likely to‘ while section 300 contains
‗sufficient in the ordinary course of nature‘ which increases probability of death.
State of A.P. v. R.Punnayya,

(Sept. 15, 1976, Supreme Court, Justice Ranjit Singh Sarkaria)
In this case several accused pounded legs and arms of deceased by lathis and caused 19 injuries.
No injuries were caused on vital parts. Intention was only to cause bodily injuries. The autopsy
was conducted by Dr. P.S. Sarojini in whose opinion, the injuries found on the deceased were
cumulatively sufficient to cause death in the ordinary course of nature. The cause of death,
according to the Doctor, was shock and haemorrhage resulting from multiple injuries. Supreme
Court held that they confined to legs and arms. So it can be inferred that there was no intention to
cause death as contemplated under section 299(a) and section 300firstly.Cumulatively injuries
are sufficient- In this case Supreme Court said, ―The expression ―bodily injury‖ in Clause 3rdly
includes also its plural, so that the clause would cover a case where all the injuries intentionally,
caused by the accused are cumulatively sufficient to cause the death in the ordinary course of
nature, even if none of those injuries individually measures up-to such sufficiency. The
sufficiency spoken of in this clause as already noticed, is the high probability of death in the
ordinary course of nature, and if such sufficiency exists and death is caused and the injury
causing it is intentional, the case would fail under Clause 3rdly of section 300.‖ Accused were
convicted under section 302.
Evaluation of problem with law
In this problem the medical report suggested that the cause of death was shock and haemorrhage
resulting from multiple injuries. Supreme Court in the case of R.Punnayya which contains
similar facts convicted accused on the basis of cumulative effect of injuries under section 302.
Cumulative effect of such injuries is sufficient in the ordinary course of nature to cause death. So
it comes under section 300 thirdly.
Conclusion
After observing above discussed laws and cases my legal opinion is that State should file a
petition for special leave. This matter comes under section 300 thirdly. Trial Court and High
Court had ignored the decision of Supreme Court. State can use cases of Virsa Singh Case, Anda
and Ors. v. The State of Rajasthan (1965 SC) and R.Punnayya Case as a precedent. State will
win the case.
Question 2 (2013)
Critically explain the test laid-down by the Supreme Court in Virsa Singh v. State of Punjab AIR
1958 SC 465 for invoking the charge of murder under section 300(3) read with section 302 IPC.
Comment on principles in Kapur Singh v. State of Pepsu AIR 1956 SC 654 and of Virsa Singh
the latter case.

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Answer
Statutory Provisions and Cases -In this problem sections 299, 300, Virsa Singh v. The State of
Punjab and Kapur Singh v. State of Pepsu are involved.

Culpable homicide is murder ―If it is done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature
to cause death.‖
Test in Virsa Singh v. State of Punjab (March 11, 1958) (Justice Vivian Bose)
Four test were laid down in this case for application of section 300 (3) read with section 302 IPC.
which are following –
First Test (Bodily injury) - Prosecution must establish, quite objectively, that a bodily injury is
present,
Second Test (Nature of Bodily injury) - the nature of the injury must be proved. These are
purely objective investigations.
Third Test (Intention to inflict bodily injury) - it must be proved that there was an intention to
inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or
that some other kind of injury was intended- Subjective Test.
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourth Test (the injury sufficient….) - it must be proved that the injury of the type just
described made up of the three elements set out above is sufficient to cause death in the ordinary
course of nature. This part of the enquiry is purely objective and inferential and has nothing to
do with the intention of the offender.
Subjective and objective test – First, second and fourth tests are related to objective test while
third is related to subjective test.
Comment on principles
Both the cases have been decided by Supreme Court. In Kapur Singh case Supreme Court
converted section 302 into section 304 Part I. In Virsa Singh Case Supreme Court dismissed
appeal of Virsa Singh.
Kapur Singh v. State of Pepsu (1956 SC)

Facts - About a year before the date of the occurrence, Bachan Singh s /o the deceased caused a
severe injury on the leg of Pritam Singh s/o Kapur Singh resulting in the amputation of his leg.
Kapur Singh with the help of Chand Singh took revenge. Chand Singh held the father of Bachan
Singh by the head and Kapur Singh inflicted as many as 18 injuries on the arms and legs of the
deceased with a gandasa. It is significant that out of all the injuries which were thus inflicted
none was inflicted on a vital part of the body.

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Decision - Appellant had no intention to cause death. But by such bodily injury it was likely to
cause death. He was convicted under section 304(1) of IPC. The Court rejected to apply section
302. The Court did not say anything about section 300 thirdly.
Criticism – On section 300 thirdly this judgment is silent. Its reason might be that on this point
no argument was done by respondent party or argument was done but it was not written in
judgment.
Virsa Singh v. State of Punjab (March 11, 1958) (Justice Vivian Bose)
Facts – There was only one injury on Khem Singh. Virsa Singh thrust a spear into the abdomen
of the deceased. This injury caused his death. In the opinion of the doctor the injury was
sufficient to cause death in the ordinary course of nature.
―If it is done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death.‖
Contentions of Appellant – Main contention of the appellant was that there are two parts of
section 300 thirdly and in both parts intention is necessary. It means (1) there must be intention
to cause bodily injury and (2) there must be intention to cause such bodily injury as is sufficient
in the ordinary course of nature to cause death. According to contention in both cases subjective
test must be followed.
Decision of Court – Supreme Court rejected this contention. Supreme Court held that there are
two parts of section 300 thirdly. The Court said that these two parts are disjunctive and separate.
These parts are namely;
Part1-If it is done with the intention of causing bodily injury to any person and
(Subjective test)
Part 2- the bodily injury intended to be inflicted (It is descriptive of part 1) is sufficient
in the ordinary course of nature to cause death (Objective Test).
Part 1 & Intention – Intention is necessary only for part one. It must be proved that
bodily injury was caused with intention. It must not be accidental or unintentional. It
must be decided according to subjective test. Personal intention is necessary.
Part 2 & Intention – In the second part intention is not necessary. To decide whether
bodily injury is sufficient or not, objective test must be followed.
Four Test
I have already discussed above. Once these four tests are established by the prosecution the
offence is murder under section 300 thirdly.
Decision – Virsa Singh was convicted by the first court under section 302 and his conviction and
sentence were upheld by the High Court. Appeal was dismissed by the Supreme Court.
Remarks – In Virsa Singh case Supreme Court has explained the meaning and scope of Section
300(3). Guidelines were laid down to attract section 300(3).

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Thus according to the rule laid down in Virsa Singh case even if the intention of accused was
limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of
nature and did not extend to the intention of causing death, the offence would be murder.
Question (2) (a) 2014

Arguments between X (husband) and W (wife) on repayment of loan to the Bank, turned ugly.
Husband slapped his wife and not satisfied with this threw a burning stove (kerosene oil) on her.
The oil with flame resulted into fire in which the wife was engulfed. Husband tried dose it off.
However, the burn injuries were beyond 70% which resulted into death of wife four days after in
the hospital. Determine the liability of the husband X in the case.
Answer
In this problem section 300 (3) and ratio of Virsa Case is involved. I have already discussed
these things.
In this problem there was no intention to cause death. It can be inferred from the facts that
Husband tried dose fire off.
There was intention to cause bodily injury (Section 300 thirdly, First Part). Dispute was going
on. Husband slapped his wife and not satisfied with this threw a burning stove (kerosene oil) on
her. By these facts it can be inferred that there was desire and foresight of consequences. Burning
of 70% is sufficient in the ordinary course of nature to cause death (Section 300 thirdly, Second
Part). So X (husband) has committed murder which comes under Section 300 thirdly. He shall
be punished under section 302.
Question (2) (2014)

Rajesh, a liquor baron, with intent to make quick money, adulterated country liquor with methyl
alcohol and water and sold the same in the market through his outlets on holi festival. As a
consequence, the festival day of holi brought disaster to many families inasmuch as 40 person
died and 14 lost eye sight permanently after consuming liquor bought from his outlets Rajesh is
being prosecuted for the offences under sections 302 and 326 IPC. He pleads that he neither had
intention to kill nor knowledge of such imminent disaster. Will the prosecution succeed? Decide
with the help of legal provisions and judicial decisions.
Answer
Statutory Provisions and Cases – In this problem section 299 (c) section 300 fourthly, section
302, section 326 and ratio of State of Haryana v. Krishan (June 9, 2017 SC) are involved.
Section 300 fourthly

Culpable homicide is murder if the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause

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death, and commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.
Knowledge of act. (S.299 (c), S. 300 Fourthly)

Existence of ID (Card) and all probability to cause death enhance the gravity of knowledge.
Knowledge Sec. 299(c) Section 300, Knowledge(Fourthly)

No Knowledge + Knowledge+ Imminently Dangerous(ID) + all
intention, Likely to cause death probability to cause death + without excuse. For
only example-Terrorist attack
knowledge
Section 326
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by
means of any poison or any corrosive substance, or by means of any substance which it is
deleterious to the human body to inhale, to swallow, or to receive into the blood 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.
State of Haryana v. Krishan (June 9, 2017 SC)

In December, 1980, a very brazen, bizarre and outlandish incident took place, commonly known
as ‗hooch tragedy‘. The deleterious consequence was that 36 persons who had purchased liquor
from a licensed vend in Village Kalanwali, District Sirsa, Haryana lost their lives after
consuming the same. Another 44 persons who too had purchased the liquor from the same shop
and consumed that liquor lost their eye-sight permanently. Accused adulterated liquor with
methyl alcohol. They were convicted under section 302 and section 328. It was held that that had
knowledge that they were mixing methyl. So this matter comes under section 300 fourthly. It
was imminently dangerous.
Application of law with problem

In Dhirajia Case Supreme Court said that some degree of knowledge must be attributed to every
sane person. Rajesh was liquor-baron. He was well aware about effect of methyl. After knowing
these effect he adulterated country liquor with methyl alcohol and water and sold the same in the
market through his outlets on holi festival. He took the risk of life and health of other persons.
He adulterated without any excuse. His act was imminently dangerous and all probability to
cause death. So he committed murder of 40 persons who consumed his liquor. He also
committed voluntarily grievous hurt under section 326 to 14 persons who lost eye sight
permanently after consuming liquor bought from his outlets.
Conclusion

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From the above discussion it becomes clear that Rajesh had committed an offence punishable
under section 302 and section 326 of IPC. Prosecution will get success.
Question 5 (a) (2016)

Discuss the criminal liability of Raghu in the following case -
Raghu stabs Rinku who is five years old son of Ram in his leg, due to which there is significant
blood loss. Doctor advises blood transfusion but Ram refuses to get it done since his religious
belief does not allow the same. Rinku dies three days later due to extreme loss of blood.
Answer
Eggshell Skull Rule
[‗You take your victims as you find them‘]
Eggshell skull means skull of human is as much fragile as eggshell. Here skull represents fragile
condition of human. Some human are delicate. If you cause harm you can‘t take defence that you
are not liable for his fragile condition. You will be liable even you were not expected for that.
‗Eggshell Skull/ Thin Skull‘ Rule is very popular in law of Torts especially in case of nuisance
and negligence. It is also called ―eggshell plaintiff‖. ―Eggshell plaintiff‖ means ―defendant
takes the victim as found‖ - protects the rights of individuals whose preexisting fragility makes
them particularly susceptible to injury. This rule provides that when a defendant's tortious
conduct causes harm that, due to the person's preexisting physical or mental condition is of a
greater magnitude or different type than might reasonably be expected, the defendant is liable for
all harm caused by the tortious conduct. Plaintiffs must demonstrate that the defendant's alleged
conduct was the cause of, or at least a substantial contributing factor to, the harm.177
177
Mark I. Levy and Saul E. Rosenberg, ‗The "Eggshell Plaintiff" Revisited: Causation of Mental Damages in Civil
Litigation‘ Mental and Physical Disability Law Reporter , Vol. 27, No. 2 (March April 2003), pp. 204-206.

145
In this problem ‗Eggshell Skull Rule‘, R. v. Blue (1975), Explanation 2 of section 299 and
section 300 thirdly of IPC are involved.
‗Eggshell Skull Rule‘ (You take your victim as you find them)
The eggshell skull rule, also known as the thin skull rule, is a principle which says that the
frailty, weakness, sensitivity, or feebleness of a victim cannot be used as a defence in a tort or
criminal cases. The Egg-Shell Rule can be recognized in Section 299 and illustration of Section
300 of Indian Penal Code. The Egg-Shell Rule acts as an exception to the reasonability test
which is commonly used to determine causal responsibility.178 It is immaterial that the unusual
sensitive condition of victim was unforeseeable by the ordinary person. Section 299 of IPC is
based on this rule.
R v. Hayward179 (1908)
Fact - A husband and wife had an argument that led to the husband chasing his wife out into the
street. The wife collapsed during this altercation and died. Whist the husband did not physically
touch her, he did shout threats at her. The wife was found to have been suffering from an
abnormality of the thyroid gland that neither was aware of that meant that fright or shock could
cause death if combined with physical exertion. The husband was charged with manslaughter.180
Issue
Did the wife‘s medical condition mean that the husband‘s action caused the wife‘s death or did
the the wife‘s condition break the chain of causation.
Decision - Husband was liable for manslaughter.
Treason of Decision - No actual proof of violence was necessary as long as the defendant‘s
unlawful act, which was the threat of violence, caused her fright leading to her death. The
criminal law acknowledges that an assailant must take their victim as they find them. The
victim‘s state of health did not affect the question of whether or not the defendant‘s unlawful act
accelerated the victim‘s death.181
R. v. Blaue182 (1975)
Ronald Blaue entered the home of Jacolyn Woodhead, 18-year-old woman, and asked for sex.
The woman belonged to Jehovah‘s Witness.183 When she declined his advances, he stabbed her
178
http://www.droitpenaleiljcc.in/PDF/V1I2/8.pdf
179
(1908) 21 Cox CC 692.
180
Available at: https://www.lawteacher.net/cases/r-v-hayward.php (Visited on February 2022).
181
Available at: https://www.lawteacher.net/cases/r-v-hayward.php (Visited on February 2022).
182
(1975) 61 Cr App R 271. [1975] 1 WLR 1411
183
Jehovah's Witnesses believe that the Bible prohibits Christians from accepting blood transfusions.

146
four times; the wound penetrated her lung which necessitated both a blood transfusion and
surgery in order to save her life.
Woodhead refused to have one, explaining that it was contrary to her religious beliefs as a
Jehovah‘s Witness. She died. Medical evidence showed that she would not have died if she had
received treatment. The prosecution accepted that, had the victim had a blood transfusion, she
would have survived.
Argument of accused - Accused argued that she would not have died if she had received
treatment. The defence argued that the victim‘s refusal to accept medical treatment broke the
chain of causation between the stabbing and her death.
Decision - Justice Lawton invoking the ‗Eggshell Skull Rule‘/ Thin Skull Rule said that as a
matter of policy that those who use violence on others must take their victims as they find them.
The accused was held liable for manslaughter.
Comments - This case is typically used as the leading authority on the ‗thin skull‘ rule, as it is
commonly known—that is, that the defendants must take victims as they find them and cannot
complain about the victim‘s unusual physical, or religious, or psychological states nor about the
failure of the victim to receive treatment. This case develops this principle in two ways: first, it is
clear that the principle is not limited to physical vulnerabilities of the victim, but extends to the
‗whole person‘, including their religious beliefs; and second, there is no room to claim that the
victim making decisions in accordance with their religion or personality is acting unreasonably
or unforeseeably. The defendant must take the victim as they are, however unusual or
unreasonable other people may find the victim to be.184
Malette v. Shulman185
Ontario Court of Appeal
[Date of Judgment: March 30, 1990]
Dr. Shulman administers blood transfusions to save her life, despite being aware of Malette ‘s
religious objections to blood transfusions as a Jehovah‘s Witness.
The plaintiff was severely injured in an automobile accident and was taken unconscious to the
defendant hospital where she was examined by the defendant physician in the emergency
department. He concluded that a blood transfusion was indicated but a nurse discovered a card in
the plaintiff's purse identifying her as a Jehovah's Witness and requesting on the basis of her
religious convictions that she be given no blood transfusion under any circumstances. Having
formed the opinion that the plaintiff's condition made a blood transfusion necessary to preserve
her life and health, the defendant physician personally administered transfusions to her and later
refused to follow the instructions of the plaintiff's daughter who sought to terminate the
184
Jonathan Herring, R v Blaue [1975] 1 WLR 1411, Court of Appeal. Available at:
https://www.oxfordlawtrove.com/view/10.1093/he/9780191926419.001.0001/he-9780191926419-chapter-8 (Visited
on February 12, 2022].
185
https://www.canlii.org/en/on/onca/doc/1990/1990canlii6868/1990canlii6868.html

147
transfusions. The physician believed that it was his professional responsibility to give his patient
a transfusion and he was not satisfied that the card expressed her current view. The plaintiff
recovered and brought an action against the physician, the hospital, its executive director and
four nurses, alleging that the administration of blood constituted negligence and assault and
battery. The trial judge awarded the plaintiff $20,000 by way of damages for battery. The
defendants appealed to the Court of Appeal.
The Court held, the appeal should be dismissed

Ratio of The Case - Ontario Court of Appeal observed, ―The plaintiff had a right to control her
own body. The tort of battery protects the interest in bodily security from unwanted physical
interference. Any non-consensual touching which is harmful or offensive to a person's
reasonable sense of dignity is actionable. A competent adult is generally entitled to reject a
specific treatment or all treatment or to select an alternate form of treatment even if the decision
may entail risks as serious as death and may appear mistaken in the eyes of the medical
profession or of the community. Regardless of the doctor's opinion it is the patient who has the
final say on whether to undergo the treatment. While in an emergency the doctrine of necessity
may protect the physician who acts without consent, the doctor is not free to disregard a patient's
advance instructions. The plaintiff had conveyed her wishes in the only way possible‖.
Comment – In 1990 there was need to protect religion. But now position has been changed.
Time has come to make law and save life of citizens.
They carry ―No blood transfusion‖ Card. It must be interpreted in new directions. It does not
give free consent. Many times it is signed in presence of elder. If he or she does not sign, he/she
will be dis-fellowshipped. You lose all your family, all your friends, all your neighbours. They
won't speak to you, so it's coercive.186 People are also lied to about the health consequences of a
blood transfusion. So it is misinformation and coercion.
186

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Figure: Eloise Dupuis [Jehovah Witness, She refused for blood transfusion during delivery. She
died on October 12, 2016. Baby was saved.]
Explanation 2 of Section 299

―Where death is caused by bodily injury, the person who causes such bodily injury shall be
deemed to have caused the death, although by resorting to proper remedies and skilful treatment
the death might have been prevented.‖
If all conditions of section 299 are being fulfilled then accused cannot take defence that by
resorting proper remedies and skillful treatment the death might have been prevented. This is
based on ‗Eggshell Skull Rule‘.
Section 300 Thirdly

For application of this provision two conditions must be fulfilled namely; (1) There must be
intention to cause bodily injury, and (2) the bodily injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death.

By application of ‗Eggshell Skull Rule‘ refusal of Ram for blood transfusion is immaterial. It is
subsequent act. It is independent act from act of accused. Cases are decided according to act of
accused. Explanation 2 of section 299 clarifies that accused cannot take defence for resorting of
proper remedies and skillful treatment.

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Section 299 Explanation 2 - Where death is caused by bodily injury, the person who causes such
bodily injury shall be deemed to have caused the death, although by resorting to proper remedies
and skilful treatment the death might have been prevented.
Cause–effect relationship - Raghu stabs Rinku his leg, due to which there is significant blood
loss. Rinku dies three days later due to extreme loss of blood. It fulfills first condition of section
299.
Mens Rea- On the point of mens rea, problem is silent. If there is no mens rea Raghu is not
liable for any offence. Raghu has caused injury in leg and that injury is serious. He has not
caused injury on vital parts. So it can be supposed that he had intention to cause bodily injury.
So Raghu has caused culpable homicide. If child was normal (not suffering from any types of
disease) Raghu shall be liable for causing death. It was sufficient in the ordinary course of nature
to cause death (section 300 thirdly). Raghu will be liable for causing death.
By application of section
Conclusion
From the above discussion it becomes clear that Raghu has committed murder punishable under
section 302 of IPC.
Question 5 (b)(2016)
Discuss the criminal liability of Raghu in the following case -
Raghu is learning shooting. Despite being cautioned against practicing in crowded places, he
practices shooting on a dummy target after placing it in a marketplace during daytime. A shot
from his gun hits a person due to which that person dies.
Answer
In this problem section 300 fourthly and illustration (d) are involved.
Section 300 fourthly

Culpable homicide is murder if the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.
Illustration (d) of section 300

A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is
guilty of murder, although he may not have had a premeditated design to kill any particular
individual.

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Raghu was, despite being cautioned against, practicing in crowded places. He knew activity of
his act. He was doing at crowded place. It was in all probability to cause death or such bodily
injury as it was likely to cause death. He was doing without any excuse. He was practicing
shooting. It was imminently dangerous. So he has committed murder under section 300(4) which
is punishable under section 302. Illustration (d) of section 300 also suggests such inference.
Conclusion
On the basis of above discussion it can be concluded that Raghu has committed murder.
Question 8(b) (2016)

Discuss the criminal liability of Raja in the following case: Raja hits Ramu, his servant with a
stick in his stomach as he suspects him of stealing. As a result of that injury his intestine got
ruptured as it was inflamed due to appendicitis. This causes the death of Ramu.
Answer
In this problem section 299 Explanation 1 and section 304A are involved.
According to Explanation 1 of section 299, accused shall not be allowed to take defence that he
has merely accelerated the death of the person who was already suffering from disorder, disease
or bodily injury. To bring homicide under section 304A following conditions must be fulfilled-
(1) There must be homicide (2) The accused must cause such death ( Cause-effect Relationship)
(3) Such death must be caused by rash or negligent act (4) Such death must not fall under
sections 299 and 300.
In this problem there was no intention to cause death because Raja hits wih stick. There was
intention to cause bodily injury but by that bodily injury it was not likely to cause death. So no
question arose regarding application of Explanation 1. For application of this Explanation all
condition of section 299 must be fulfilled. Raja negligently hits Ramu, his servant with a stick in
his stomach as he suspects him of stealing. If he had doubt he should have taken recourse of
public servants. No one should be allowed to take laws in his own hands.
Raja has committed offence under section 304A.
Conclusion
From the above discussion it becomes clear that Raja has committed offence under section 304A
of IPC.
Question Paper of 2018. LLB-DU)

Question (3)
Tej had scolded Teena, daughter of Shan, for misbehaving with his daughter. Shan did not like
this and was looking for an opportunity to give good thrashing to Tej. One day Shan saw that Tej

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was passing through his place and seizing this opportunity, Shan caught hold of a stick lying
nearby and gave nineteen blows with the stick on the legs and arms of Tej. Tej was taken to a
nearby hospital and died after two days. The post-mortem report attributed death due to multiple
fractures on arms and legs and internal bleeding. Shan is tried for the offence of murder under
section 300 (3) IPC. Decide with the help of decided cases.
Answer. Anda Case and Kapur Singh Case and some other cases.
Question (5) (a)
‗A‘ was in the habit of beating up his wife over trivial issues. One day, during such fight, ‗A‘
picked up a lathi lying nearby and hit his wife on her head. Consequent to the lathi blow, the
woman fell unconscious. Believing her to be dead he hung her body by a rope in order to create
an appearance that the wife committed suicide. However, postmortem examination showed that
death was due to hanging. With the help of decided cases determine the culpability of A.
Answer – Palani Goundan v. Emperor 1919, Mad. H.C. ‗A‘ has not committed culpable
homicide. He has committed voluntarily hurt.
Question (5) (b)
A, a driver of double-decker bus was driving the bus. A pedestrian suddenly crosses the road
without taking note of the approaching bus. The pedestrian was hit by the bus. Although the
driver was driving the bus very slowly, but he could not apply the brakes so quickly as to save
the pedestrian. The driver was prosecuted and punished under section 304-A IPC for negligent
driving. Has he been rightly convicted?
Answer – A has wrongly been convicted under section 304-A. He was drivingly double-decker
bus negligently. S.N.Hussain v. State of Andhra Pradesh (DOJ Jan. 5, 1972) is relevant case.
Question (6)
‗A‘ and ‗B‘ agreed to rob the owner of a Liquor Store. The plan was that just before the Store
closes, they would enter the store, and while ‗A‘ would threaten the owner with a knife, ‗B‘
would empty the cash box. ‗A‘ asked ‗B‘ what happens if the owner puts up a fight. ‗B‘ replied
―Use your knife‖.
On the appointed day and time they went to the shop. ‗A‘ threatened the owner with the knife.
The owner of the store offered no resistance. ‗B‘ emptied the cash box and then both of them
walked towards the door. At that moment ‗X‘ a customer walked in and realized at once what
was happening. He tried to seize the cash bag from ‗B‘. ‗A‘ stabbed ‗X‘ several times in the neck
and back. The owner also tried to assist ‗X‘. ‗B‘ punched him in his stomach causing him to fall
and hit his head on the counter. ‗X‘ died as a result of the injuries and the owner suffered a deep
cut on his forehead which required a few stiches. Later on, both were convicted for the murder of
‗X‘ under section 302 IPC. Discuss.
Also consider ‗A‘s liability for the injuries caused to the owner.
Answer – Both have committed murder.
First approach - Here section 34 r/w section 302 will be applicable. Common intention may
develop on the spur. Suresh and Another v. State of Uttar Pradesh - Common intention can be
formed previously or in the course of occurrence and on a spur of moment.

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Second approach – section 302 r/w section 301.
Question (8) (a)

Karim, a Police Inspector, invited his subordinate Shyam to his room and they started discussing
some political issues. Suddenly, Shyam made a sarcastic (taunt) remark indicating that Karim
favoured certain accused due to his political associations. Karim got annoyed and started abusing
Shyam in filthy language to which Shyam objected. This further infuriated Karim and a fight
ensued between the two. Shyam punched him in his stomach. Karim picked up his service
revolver which was kept nearby and fired a shot at Shyam causing his death. Karim has been
charged with murder. Prepare arguments in his defence.
Answer – Offence has been committed under Section 300 Exception 4. Relations between
Exception 1 and Exception 4 of section 300, K.M. Nanavati Case, Ghapoo Yadav & Ors. v.
State of M.P. ( Feb. 2003) and Surain Singh v. The State of Punjab (DOJ-10 April 2017) are
relevant for this question.
OBJECTIVE QUESTIONS [Chapter 2 and 3]
SECTION 299
Question 1 – ―The causing of death of child in the mother‘s womb is not homicide‖ has been
discussed under
(a) Section 299 Explanation 1
(a) Section 300 Exception 1
Answer – c
Question 2. A person who causes bodily injury to another who is labouring under a disorder,
disease or bodily infirmity and thereby accelerates the death of the person. Under which it shall
be deemed to have caused his death ?
(a) Explanation I to Section 299

(b) Explanation I to Section 300

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(c) Explanation II to Section 299

(d) Explanation II to Section 300
Answer- A
Question 3– Tej had scolded Teena, daughter of Shan, for misbehaving with his daughter. Shan
did not like this and was looking for an opportunity to give good thrashing to Tej. One day Shan
saw that Tej was passing through his place and seizing this opportunity, Shan caught hold of a
stick lying nearby and gave nineteen blows with the stick on the legs and arms of Tej. Tej was
taken to a nearby hospital and died after two days. The post-mortem report attributed death to
multiple fractures on arms and legs and internal bleeding. Which offence Shan has committed?
(a) Culpable Homicide – Section 299 (b)

(b) Culpable Homicide – Section 299 (c)
(c) Murder – Section 300Thirdly
(d) Murder – Section 300 Fourthly
Answer- C
Question 4 – In which of the following case it was clearly said that combined reading of section
299 read with its illustration (a) denotes that section 299 does not require intention to cause death
of particular person…..Contributory action of victim or third party is immaterial…‖
(a) Virsa Singh v. State of Punjab

(b) Emperor v. M.S.Murthy (Halva Case)
(c) State of A.P. v. R.Punnayya
(d) Anda and Ors. v. The State of Rajasthan
Answer- B
(e) Section 52- Good Faith

(f) Section 38 - ―Voluntarily‖
(g) Section 40 – Offence
(h) Section 44- Injury
Question 46- Which Explanation deals ―Where death is caused by bodily injury, the person
who causes such bodily injury shall be deemed to have caused the death, although by resorting to
proper remedies and skilful treatment the death might have been prevented‖

(b) Section 299 Explanation 2

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(c) Section 299 Explanation 3

(d) Section 300 Exception 3
Answer- (a) Section 299 Explanation
Question 7- Causing death of a child in mother‘s womb:
A. Is always homicide
B. With intent to cause miscarriage is homicide
C. Is culpable homicide
D. Is culpable homicide if any part of such child has been brought forth, though the child may
not have breathed or been completely born
Answer- D
Question 8. ‗A‘ digs a pit and leaves four deadly and poisonous snakes into it with the intention
of causing death to others. ‗B‘ falls in the pit and is bitten by a snake and dies. ‗A‘ is guilty, if
any, of
A. Culpable homicide not amounting to murder under section 299 IPC

B. Voluntarily causing grievous hurt under section 326 IPC
C. Murder under section 300
D. No offence
Answer- A
Question – 9 - Match the items of List I with the items of List II and choose the correct answer
from the code given below –
(a) Ex turpi causa non oriture (i) Immediate cause
(b) de minimis non curat lex (ii) From an immoral cause no action arises
(c) Causa causans (iii) From day to day
(d) de die in diem (iv) Law does not concern with trifles
Answer –
(a) Ex turpi causa non oriture (ii) From an immoral cause no action arises
(b) De minimis non curat lex (iv) Law does not concern with trifles (Section 95)
(c) Causa causans (i) Immediate cause (Section 299
(d) De die in diem (iii) From day to day
Question 10-
A, B, and C assaulted their junior and fresher X in their hostel room while ragging him. They
punched and kicked him on non-vital parts of his body as he refused to dance on a song played
by them on their mobile phone. X fell down and became unconscious. Presuming him to be dead
they hanged him from the ceiling fan by a rope, so as to create an impression that X had
committed suicide. The post-mortem examination showed that death was due to asphyxiation.

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What offence has been committed by A, B and C?
(a) Culpable homicide

(b) Murder
(c) Death by negligence
(d) Voluntarily causing hurt
Answer- (d) Voluntarily causing hurt –Palani Goundan Case
SECTION 300
Question 11-Which of the following is correct
(a) Grave and sudden provocation (i) Exception II of section 300

(b) Death caused in sudden fight (ii) Exception III of section 300
(c) Death caused by consent (iii) Exception V of section 300
(d) Exceeding right of private defence (iv) Exception IV of section 300
Answer- C
Question 12 – First time Supreme Court has discussed in detail differences between murder and
culpable homicide –
(a) R v. Govinda, July 18, 1876 Justice Melvill.
(b) Virsa Singh v. State of Punjab -1958 SC, Justice Vivian Bose.
(c) State of A.P. v. R.Punnayya Sept. 15, 1976, Justice Ranjit Singh Sarkaria
(d) Alister Anthony Pareira V. State of Maharashtra ( Jan. 12, 2012 Justice R.M. Lodha
Answer – C
Question 13 – First time Court has discussed in detail differences between murder and culpable
homicide –
(a) State of A.P. v. R.Punnayya - Justice Ranjit Singh Sarkaria

(b) Virsa Singh v. State of Punjab -Justice Vivian Bose.
(c) R v. Govinda- Justice Melvill.
(d) Alister Anthony Pareira V. State of Maharashtra - Justice R.M. Lodha
Answer – C
Question 14- Which of the following case is not related to section 300
(b) Cherubin Gregory v. State of Bihar
Answer – B

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Question 15 – To determine ‗Grave & Sudden Provocation‘ ‗Doctrine of Reasonable Man‘ must
be considered.
Which of the following statement is not relevant to decide ‗Doctrine of Reasonable Man‘?
(a) customs, manners, way of life, traditional values etc.

(b) the cultural, social and emotional background of the society to which an accused belongs
(c) there are social groups ranging from the lowest to the highest state of civilization. Level
of civilization
(d) In India, words and gestures may not cause grave and sudden provocation
Answer- (d In India, words and gestures may not cause grave and sudden provocation
Question 15 - What is not the true difference between Exception 1 and Exception 4 of Section
300, IPC?
Exception 1 Exception 4
(a) Here one party is to be blamed. He has A fight suddenly takes place, for which both
created grave and sudden provocation. parties are more or less to be blamed.
(b) It depends upon without premeditation. It depends upon premeditation.
(c) It covers matters of grave and sudden This covers matters of sudden fight.
provocation.
(d) There is total deprivation of self-control There is only that heat of passion which
clouds men‘s sober reason and urges them to
Answer- B
Question 16. ‗X‘ gives grave and sudden provocation to ‗Y‘. ‗Y‘ on this provocation, fires a
pistol at ‗X‘, neither intending nor knowing himself to be likely to kill ‗Z‘, who is near him, but
out of sight. ‗Y‘ kills ‗Z‘. Here ‗Y‘ has committed:
(1) Death by negligence (2) Murder (3) Culpable homicide not amounting to murder (4) No
offence.
Answer - (3) Culpable homicide not amounting to murder. Section 300, Exception 1, Illustration
(b).
Question 17-Which of the following case is not related to section 300 thirdly

(b) Emperor v. Dhirajia
Answer – B

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Question 18- ‗A‘ a foreigner stabbed ‗B‘ another foreigner in a foreign vessel on the high seas.
Both were brought to Bombay for treatment where ‗B‘ died. ‗A‘ is also available in Bombay.
Which one of the following proposition is correct in respect of applicability of IPC to the trial of
‗A‘?
(a) As both the deceased and accused belong to foreign countries and the occurrence of
offence has taken place on the high seas, IPC is not applicable to A and hence he cannot
be prosecuted in India.
(b) IPC is not absolutely applicable to a foreigner and hence ‗A‘ cannot be tried in India.
(c) As the offence is completed in India and accused ‗A‘ is available in India. IPC is
applicable and he should be tried in at Bombay
(d) As IPC is applicable to Indians as well as foreigners ‗A‘ must be tried in India.
Answer -(a) As both the deceased and accused belong to foreign countries and the occurrence of
offence has taken place on the high seas, IPC is not applicable to A and hence he cannot be
prosecuted in India.
Question 19-‗X‘knows that ‗Y‘ is suffering from enlarged liver. Being a doctor, ‗X‘ knows that
if he gives a fist blow to ‗Y‘ in the region with moderate force, it would result in rupture of Y‘s
liver and is likely to cause his death. Knowing this, Xgives Y a fist blow which ruptures Y‘s liver
and causes his death, ‗X‘ is liable for murder under
(a) Section 300 First

(b) Section 300 Secondly
(c) Section 300 Thirdly
(d) Section 300 Fourthly
Answer-(b) Section 300 Secondly (State of Andhra Pradesh v. R. Punnaya).

Question 20-In which cases it was observed, ―culpable homicide‘ is genus and ‗murder‘ is its
species. All ‗murder‘ is ‗culpable homicide‘ but not vice-versa. There are three kinds of
‗Culpable Homicide‘ namely –1st Degree (Highest Degree-Murder),2nd Degree (Middle Degree-
Culpable Homicide caused with Intention and 3rd Degree (Lowest Degree)- Culpable Homicide
caused with Knowledge. For making the difference between murder and Culpable Homicide
‗keywords‘ must be focused.‖

(c) R v. Govinda- Justice Melvill.
(d) Emperor v. MushnooruSuryanarayana Murthy – Justice Benson
Answer- (a) State of A.P. v. R.Punnayya - Justice Ranjit Singh Sarkaria

158
Question 21-Which are the cases in which difference between Exception 1 and Exceptions 4
were discussed?
(a) K.M. Nanavati v. State of Maharashtra (1961SC)

(b) Ghapoo Yadav&Ors. v. State of M.P. ( Feb. 2003)
(c) Surain Singh v. The State of Punjab (DOJ-10 April 2017)
(d) Both -Ghapoo Yadav&Ors. v. State of M.P. and Surain Singh v. The State of Punjab
Answer- (d) Both

Question 22 -‗A‘ enters into the house of ‗B‘ with the intention to commit theft. ‗B‘ along with
other members of the family surrounded and attack ‗A‘ with wooden sticks. ‗A‘ finding his life
in danger fires with pistol causing death to ‗B‘. Here ‗A‘ has committed:
Option –
(a) Culpable homicide not amounting to murder

(b) Murder
(c) Theft
(d) No offence as he acted in self –defence.
Answer – (b) Murder.

Section 303
Question 23 -In which case Supreme Court declared 303 of IPC unconstitutional on the basis of
violation of article 14 and 21 of the Constitution of India?
(a) Cherubin Gregory v. State of Bihar (July 31, 1963)

(b) Bachan Singh v. State of Punjab (9 May, 1980)
(c) Mithu Singh v. State of Punjab (April 7, 1983)
(d) Independent Thought v. Union Of India &Anr. 11Oct.2017.
Answer-(c) Mithu Singh v. State of Punjab (April 7, 1983)

Previous Year Question Papers
DU LL.B. (2013)
Question 2 - Critically explain the test laid down by the Supreme Court in Virsa Singh v. State
of Punjab AIR 1958 SC 465 for invoking the charge of murder under section 300(3) read with
section 302 IPC. Comment on principles in Kapur Singh v. State of Pepsu AIR 1956 SC 654 and
of Virsa Singh the latter case.
Question 3 (a) - Bring out clearly the distinction in the degree of rashness required under
section 304A IPC and that under section 304 part II, IPC for conviction of offenders with the
help of decided cases and illustrations.
Question no. 4 (a) - Bring out clearly the distinction between the requirements of the partial
defence contained in Exception I and IV to section 300 IPC with the help of decided cases and
also the similarity in some of the essentials, if any, of two exceptions.

159
Question no. 4 (b) - Explain with the help of decided cases the legal fiction of ‗reasonable man‘
for determining the ‗grave‘ and ‗sudden‘ provocation and the concept of ‗cooling down period‘
for reducing the criminality of an accused for murder to culpable homicide not amounting to
murder under Exception I to section 300 IPC.
DU LL.B. (2014)
Question 2 (a) - Arguments between X ((husband) and W (wife) on repayment of loan to the
Bank, turned ugly. Husband slapped his wife and not satisfied with this threw a burning stove
(kerosene oil) on her. The oil with flame resulted into fire in which the wife was engulfed.
Husband tried to dose it off. However, the burn injuries were beyond 70% which resulted into
death of the wife four days later in the hospital. Determine the liability of the Husband X in the
case.
Question (2) (Year is not certain)
Rajesh, a liquor baron, with intent to make quick money, adulterated country liquor with methyl
alcohol and water and sold the same in the market through his outlets on holi festival. As a
consequence, the festival day of holi brought disaster to many families inasmuch as 40 person
died and 14 lost eye sight permanently after consuming liquor bought from his outlets Rajesh is
being prosecuted for the offences under sections 302 and 326 IPC. He pleads that he neither had
intention to kill nor knowledge of such imminent disaster. Will the prosecution succeed? Decide
with the help of legal provisions and judicial decisions.
Question 3 (a). Due to rivalry arising out of landed property between A and B, A caused
multiple injuries to B and various parts of body to teach him a lesson. B was admitted to the
hospital, where he was treated and discharged. When B was on his way to recovery, he became
negligent about his medicines. He, therefore, developed fever and septic of two wounds. B died a
week later. State the liability of A. Cite relevant legal provisions and decided cases.
Question - Accused X was running a bus at a high speed on a dusty and damaged road. While
negotiating a curve with the same speed, without applying brakes, the bus over turned, killing a
pedestrian and injuring some of the passengers. Prosecution is interested to prosecute X under
Section 304-A of IPC. Can they do so and will they succeed? Give reasons.
Question 8 Write notes on the following:
(a) Grave and Sudden Provocation
DU LL.B. (2015)
Question 3 (a) - A, a police sub-inspector, in exercise of his lawful powers goes to the house of
a murder suspect, B, to arrest him. The sub-inspector behaves in an unusually high-handed
manner that provokes B. Due to this, B picks up a kitchen knife lying nearby and thrusts it into
the abdomen of A resulting in grievous injury and ultimately death of A. During trial B pleads
the defence of grave and sudden provocation. Decide.
Question 8 -

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Discuss the liability of X in the following. Attempt any two out of the three.
(a) X stabs B who is five year old son of A in his leg due to which there is significant blood loss.
Doctors advise blood transfusion. A refuses to get it done since his religious belief doesn‘t allow
the same. B dies after three days due to extreme blood loss.
(b) X is learning shooting. Despite being cautioned against practicing in crowded places, he fires
shots at his dummy target after placing it in a crowded street. A shot from his gun hits a person
thereby causing his death.
(C) X and B are sworn enemies. One day, finding B alone, X gives him a deep wound in his
chest with the help of a sharp dagger that pierces his heart and causes his death.
DU LL.B. (2016)
Question 5 (a) - Discuss the criminal liability of Raghu in the following case -
Raghu stabs Rinku who is five years old son of Ram in his leg, due to which there is significant
blood loss. Doctor advises blood transfusion but Ram refuses to get it done since his religious
belief does not allow the same. Rinku dies three days later due to extreme loss of blood.
DU LL.B. (2017)
Question 2 (a) – Anil, Ajeet & VIkram, were good friends and decided to celebrate Vikram‘s
birthday at Anil‘s house. During the course of celebration they started arguing about Anil‘s
pairing up with Sonali, who was Vikram‘s girlfriend for the dance competition in their college.
In the heat of the moment Vikram hit Anil on the head with the beer bottle which was lying on
the table. Anil collapsed and became unconscious. Thinking him to be dead Vikram and Ajeet
threw him from the balcony of his 5th floor house. Anil died because of injuries sustained on
falling face down. The doctor opined that the blow given by the beer bottle on the head was only
likely to cause death, but the death actually resulted from the impact of the fall/
Decide the criminal liability of Ajeet & Vikram in this case. Are they guilty of murder of Anil?
Decide citing relevant case law.
DU LL.B. (2018)
Question (3) - Tej had scolded Teena, daughter of Shan, for misbehaving with his daughter.
Shan did not like this and was looking for an opportunity to give good thrashing to Tej. One day
Shan saw that Tej was passing through his place and seizing this opportunity, Shan caught hold
of a stick lying nearby and gave nineteen blows with the stick on the legs and arms of Tej. Tej
was removed to a nearby hospital and died after two days. The post-mortem report attributed
death to multiple fractures on arms and legs and internal bleeding. Shan is tried for the offence of
murder under section 300 (3) IPC. Decide with the help of decided cases.
Question (5) (a) - ‗A‘ was in the habit of beating up his wife over trivial issues. One day, during
such fight, ‗A‘ picked up a lathi lying nearby and hit his wife on her head. Consequent to the
lathi blow, the woman fell unconscious. Believing her to be dead he hung her body by a rope in
order to create an appearance that the wife committed suicide. However, postmortem
examination showed that death was due to hanging. With the help of decided cases determine the
culpability of A.

161
DU LL.B. (2019)
Question 2- Elucidate the essential ingredients of Section 300 (iii) IPC in the light of R.
Punnayya and Virsa Singh Case.
Question 7 - Amit went to his wife‘s parental house to bring her back to their matrimonial house
after Radha had spent her holidays over there. During his night stay Amit found Radha missing
from room in which they were sleeping. He went outside the room to find her whereabouts and
found Radha in compromising position with her brother in law (Jija) Suresh in the drawing room.
Amit returned to his room and after 15 minutes when Radha came back and fell asleep, Amit
stabbed her several times with a kitchen knife. Radha died of stab wounds, Medical evidence
showed that the injuries inflicted by Amit were sufficient in the ordinary course of nature to
cause death. Amit is prosecuted for murder. He pleads grave and sudden provocation. Will he
succeed?
Previous Years Questions Papers of Judicial Service Exams
 HJS [1996] - What is Culpable Homicide? When does it amount to murder and when it
does not amount to murder?
 HJS [2001] - A knows Z to be behind a bush. B does not know it. A, intending to cause,
or knowing it to be likely to cause Z's death, induces B to fire at the bush. B fires and
kills Z. What offence, if any, is committed by A?
 RJS [2014] – All murders are culpable homicide but all culpable homicide are not
murder. Explain and illustrate with the help of decided cases.
 HJS [2006] - ―The distinction between ‗Murder‘ and ‗Culpable Homicide‘ not
amounting to murder is very fine but real‖. Discuss.
 HJS [2009] – ―Even without a murderous intention, a person may be guilty of murder‖.
Elucidate.
 HJS [2010] – Examine as to whether a person who causes death of a pregnant woman is
guilty of committing one homicide or two.
 RJS 1991 – Define murder. Is there any offence which is punishable by death penalty?
 RJS 1994 – Define murder
 UPJS [2012] – ‗X‘ gave a kick to ‗Y‘ who had enlarged spleen, As a result of the kick,
the spleen was ruptured and ‗Y‘ died. Giving reasons, state what offences has been
committed?
 Distinction between culpable homicide and murder has been asked many times.

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CHAPTER 4: Homicide by Rash or Negligent Act not amounting to Culpable Homicide

Krishna Murari Yadav,
Assistant Professor,
Law Centre- 1, FOL, DU
(4.1.) Introduction
Macaulay‘s Draft Penal Code contained causing death by negligent or rashness. It was as follow
- ―Section 304. Whoever causes the death of any person by any act or illegal omission, which act
or omission was so rash or negligent as to indicate a want of due regard for human life, shall be
punished with imprisonment of either description for a term which may extend to two years or
fine, or both‖.
In the final drafting it was ignored. At the later stage on the recommendation of Law Member,
Sir James Stephan, Section 304A was inserted in 1870.187 He was opinion that whatever was
known as manslaughter by negligence under English law was missing in Indian Penal Code,
1860.
Section 304A, Indian Penal Code, 1860 appears in both the Malaysian and Singapore Penal
Codes and reads as follows: "Whoever causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be punished with imprisonment for a
term which may extend to two years, or with fine, or with both‖.188
Section 304A was inserted in 1870 to cover those cases which were caused by either rash or
negligent act and not covered by Section 299 and Section 300.189 Law Commission of India in its
42nd Report on ―Indian Penal Code‖ (1971) recommended increasing punishment up to five
years.190 But recommendation of the Commission had not been implemented till now.
(4.2.) Differences between Negligence under Civil law and Criminal Law
Causing of death by negligence may come under civil dispute and criminal matter both. 191 But
there are basic differences between both –
187
Para 16.22, Law Commission of India, ―Indian Penal Code‖, Forty-Second Report (1971). Available at:
https://lawcommissionofindia.nic.in/1-50/Report42.pdf (Visited on February 18, 2022).
188
Stanley Yeo Meng Heong, ―Rashness under section 304a of The Penal Code: Ramlan bin Salleh v. Public
Prosecutor‖ 30 Malaya Law Review 172 (1988). Available at: https://www.jstor.org/stable/24865482 (Visited on
February 20, 2022).
189
Empress v. Idu Beg (1881) 3 All. 776
190
191

163
 Meaning –Negligence is short of standard reasonable care.192 In Civil Cases, Courts

insist on maximum standard of care, while Criminal Courts require minimum care. If the
minimum care is taken, the Criminal Courts will acquit the accused. In civil cases
liability is decided not on the basis of degree of negligence, but on the amount of
damages. On the contrary under criminal law, liability is decided on the basis of amount
and degree of negligence193
 Nature of Proceeding – Under Civil Cases, Civil Suit is filled. Here dispute is treated
between two citizens or persons. Under criminal proceeding, offence is treated against
State.
 Standard of proof - In P.G. Institute of Medical Education v. Jaspal Singh & Ors194
Hon‘ble Supreme Court observed, ―…. there is a marked difference as to the effect of
evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a
mere preponderance of probability is sufficient, and the defendant is not necessarily
entitled to the benefit of every reasonable doubt; but in criminal proceedings, the
persuasion of guilt must amount to such a moral certainty as convinces the mind of the
Court, as a reasonable man, beyond all reasonable doubt‖.
 Remedy - Under civil law, the term negligence is used for the purpose of fastening the
defendant with liability of the amount of damages195 and under Criminal law accused is
punished and fine is imposed.
(4.3.) Ingredients of Section 304A
Section 304 A. Causing death by negligence- Whoever causes the death of any person by doing
any rash or negligent act not amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.
In The State of Arunachal Pradesh and Anr. v. Ramchandra Rabidas @ Ratan Rabidas & Anr.196
(2019) Supreme Court said that there are three ingredients of Section 304-A, which are required
to be proved are: (1) the death of a human being; (2) the accused caused the death; and (3) the
death was caused by the doing of a rash or negligent act, though it did not amount to culpable
homicide of either description.197
192
R. v. Bateman, (1925) 19, Cr. App. Rep. 8 , 10.
193
R. v. Bateman, (1925) 19, Cr. App. Rep. 8 , 10 and Para 16.23, Law Commission of India, ―Indian Penal Code‖,
Forty-Second Report (1971). Available at: https://lawcommissionofindia.nic.in/1-50/Report42.pdf (Visited on
February 18, 2022).
194
(2009) 7 SCC 330. Date of Judgment: May 29, 2009. Available at: https://indiankanoon.org/doc/824047/ (Visited
on February 14, 2022).
195
P.G. Institute of Medical Education v. Jaspal Singh & Ors (2009) 7 SCC 330. Date of Judgment: May 29, 2009.
Available at: https://indiankanoon.org/doc/824047/ (Visited on February 14, 2022).
196
Supreme Court, Date of Judgment: October 4, 2019.
https://main.sci.gov.in/supremecourt/2009/19259/19259_2009_15_1501_17299_Judgement_04-Oct-2019.pdf
197
Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 : (2012) 1 SCC (Civ) 848 : (2012) 1 SCC
(Cri) 953

164
To bring homicide under section 304A following conditions must be fulfilled-
(1) There must be homicide

(2) The accused must cause such death (Cause-effect Relationship)
(3) Such death must be caused by rash or negligent act
(4) Such death must not fall under sections 299 and 300.
Where the rash or negligent driving, results in the death of a person, without the knowledge that
the said act will cause death, Section 304A IPC would be applicable. In other words, Section
304A applies to cases where there is no intention to cause death, and no knowledge that the
act done in all probability will cause death.198
There are three categories of culpable homicide.199 These are –
1. Culpable Homicide amounting to murder, [ Section 300]
2. Culpable homicide not amounting to murder, [Section 299 and Exceptions of Section
300] and
3. Causing death by rash or negligence not amounting to culpable homicide [Section 304A]
(4.4.) Meaning of Rashness and Negligence
Rashness and Negligence have not been defined by Indian, Malaysian and Singapore Penal
Codes. Many times judges ignored differences between rashness and negligence and treated both
interchangeably.200 Indian Courts differentiated between both words in many judgments.
Many definitions of rashness emphasis element of knowledge or consciousness. Knowledge or
consciousness is the distinguishing feature which marks rashness from negligence.201
(4.4.1.) Meaning of Rashness

 In Re, Nidamarti Nagabhushanam202 (1872) where Holloway J stated: ―Culpable
rashness is acting with the consciousness that the mischievous and illegal consequences
may follow, but with the hope that they will not, and often with the belief that the actor
198
Para 5.12, The State of Arunachal Pradesh and Anr. v. Ramchandra Rabidas @ Ratan Rabidas & Anr. (2019)
and Empress of India v. Idu Beg (1881) 3 All. 776.
199
Empress of India v. Idu Beg (1881) 3 All. 776. Available at:
http://14.139.60.116:8080/jspui/bitstream/123456789/30528/1/182_Empress%20of%20India%20%28776-
780%29.pdf (Visited on February 20, 2022).
200
February 20, 2022).
201
February 20, 2022).
202
(1872) 7 MHC 119.

165
has taken sufficient precaution to prevent their happening. The imputability arises from
acting despite the consciousness (luxuria)‖.203
 In Empress of India v. Idu Beg204 (1881) Hon‘ble Justice Straight observed, ―…criminal
rashness is hazarding a dangerous or wanton act with the knowledge that it so, and that it
may cause injury, but without intention to cause injury, or knowledge that it will probably
be caused. The criminality lies in running the risk of doing such an act with recklessness
or indifference as to the consequences.
 In S.N.Hussain v. State of Andhra Pradesh205 (1972) Supreme Court observed,
―Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is
so, and that it may cause injury. The criminality lies in such a case in running the risk of
doing such an act with recklessness or indifference as to the consequences.
 In The State of Arunachal Pradesh v. Ramchandra Rabidas @ Ratan Rabidas & Anr.
(2019) Supreme Court observed, ―Criminal or culpable rashness means hazarding a
dangerous or wanton act with the knowledge that it is dangerous or wanton, and
the further knowledge that it may cause injury, but done without any intention to cause
injury or knowledge that the act would probably cause.
Rashness involves degree of knowledge. Section 299 (c), Section 300 fourthly and Section 304A
deals degree of knowledge. In State of Andhra Pradesh v. R. Punnayya, Hon‘ble Supreme Court
observed that Section 299 (c) creates probability and Section 300 fourthly creates most
Lowest degree of risk is under Section 304A. Given that s. 304A is by far the least serious of the
three types of offences under consideration, it should follow that degree of the risk under s. 304A
should be lower than that required for Section 299 (c) and Section 300, thirdly.206
203
Toh Yung Cheong, ―Inadvertence As Rashness‖ (2007) 19 SAcLJ. Available at:
https://academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal/e-
Archive/ctl/eFirstSALPDFJournalView/mid/495/ArticleId/682/Citation/JournalsOnlinePDF (Visited on February
20, 2022).
204
(1881) 3 All. 776. Available at:
205
AIR 1972 SC 685.
206
February 20, 2022).

166
Rashness
Knowledge is
integral part
Most Least
Probable
Probable Probable
Section 300, Section 299 Section 304A [...not amounting

Fourthly (c) to culpable homicide..]
(4.4.2.) Meaning of Negligence

In law of torts, there are three ingredients of Negligence. These are – (1) Duty to take care, (2)
You have omitted that duty, and (3) thereby you have caused death.
 In Re, Nidamarti Nagabhushanam207 (1872) where Holloway J stated: ―Culpable
negligence is acting without the consciousness that the illegal and mischievous effect will
follow, but in circumstances which show that the actor has not exercised the caution
incumbent upon him, and that if he had he would have had the consciousness. The
imputability arises from the neglect of the civic duty of circumspection‖.
 In Empress of India v. Idu Beg208 (1881) Hon‘ble Justice Straight observed, ―…Criminal
negligence is the gross and culpable neglect or failure to exercise that reasonable and
proper care and precaution to guard against injury either to the public generally or to an
individual in particular, which, having regard to all the circumstances out of which the
charge has arisen, it was the imperative duty of the accused person to have adopted.
 In S. N. Hussain v. State of Andhra Pradesh209 (1972) Supreme Court observed,
―Criminal negligence on the other hand, is the gross and culpable neglect or failure to
exercise that reasonable and proper care and precaution to guard against injury either to
the public generally or to an individual in particular, which, having regard to all the
circumstances out of which the charge has arisen, it was the imperative duty of the
accused person to have adopted‖.
(4.5.) Leading Cases
There are some leading cases on this point which are following -
 Empress of India v. Idu Beg (1881) 3 All. 776

 Cherubin Gregory v. State of Bihar [1963]
207
(1872) 7 MHC 119.
208
209
AIR 1972 SC 685.

167
 S.N.Hussain v. State of Andhra Pradesh210 (DOJ Jan. 5, 1972)

 Alister Anthony Pareira v. State of Maharashtra ( Jan. 12, 2012 SC)
 State Tr. P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda (BMW Case) (August 3, 2012)
 The State of Arunachal Pradesh and Anr. v. Ramchandra Rabidas @ Ratan Rabidas &
Anr. (2019) [Relation Between Motor Vehicles Act, 1988 and IPC (Negligence).
(1) Empress of India v. Idu Beg

Empress of India v. Idu Beg211 was decided by Allahabad High Court on August 12, 1881. Mr.
Justice Straight wrote the judgment. In this case Sections 299, 300, 302, 304A, 325, IPC, 1860
were involved.
Facts – Idu Beg while engaged in a verbal wrangle with his wife, struck her a blow on the left
side with great force, the result of which was that she vomited and bled from the nose, and within
little more than an hour, she died.
Post mortem Report - Upon the post mortem examination it was found that her ―spleen was
badly ruptured, almost torn across; death was caused by rupture of the spleen, there were no
signs of disease of the spleen, though it was a little enlarged.
Judgment:
(1) Categories of Death - There are three categories of culpable homicide.212 These are –
I. Culpable Homicide amounting to murder, [ Section 300]
II. Culpable homicide not amounting to murder, [Section 299 and Exceptions of Section
300] and
III. Causing death by rash or negligence not amounting to culpable homicide [Section 304A]
(2) Meaning of Rashness and Negligence

It appears to me impossible to hold that cases of direct violence willfully inflicted, can be
regarded as either rash or negligent acts.
 Criminal Rashness – ―…criminal rashness is hazarding a dangerous or wanton act with
the knowledge that it so, and that it may cause injury, but without intention to cause
injury, or knowledge that it will probably be caused. The criminality lies in running the
risk of doing such an act with recklessness or indifference as to the consequences.
 Criminal negligence - Criminal negligence is the gross and culpable neglect or failure to
exercise that reasonable and proper care and precaution to guard against injury either to
the public generally or to an individual in particular, which, having regard to all the
210
AIR 1972 SC 685
211
212
Empress of India v. Idu Beg (1881) 3 All. 776. Available at:

168
circumstances out of which the charge has arisen, it was the imperative duty of the
accused person to have adopted.
Conviction – Where husband struck his wife a blow which caused death, without any intention
of causing death, or of causing such bodily injury as was likely to cause death, or the knowledge
that he was likely by such act to cause death, but with the intention of causing grievous hurt, the
Court held that the offence of which such person was guilty was not the offence of causing death
by a rash act, but the offence of voluntarily causing grievous hurt.
He was not convicted under Section 304A. He was convicted under Section 325, IPC, 1860.
(2) Cherubin Gregory v. State of Bihar
Cherubin Gregory v. State of Bihar213 was decided by Full Bench of Supreme Court on July 31,
1963. Judgment was written by Hon‘ble Mr. Justice N. Rajagopala Ayyangar. This case is
related to ‗Rashness‘. In this case Sections 99, 103 and 304A, IPC, 1860 were involved.
Facts - Cherubin Gregory was charged under section 304A of Indian Penal Code for causing the
death of Mst. Madilen. The deceased was residing near the house of the accused. The wall of the
latrine of the house of the deceased had fallen down about a week prior to the day of occurrence
and so the deceased along with others started using the latrine of the accused. The accused
protested against their coming there. The oral warnings however, proved ineffective and so he
fixed up a naked copper wire across the passage leading up to his latrine and that wire carried
current from the electrical wiring of his home to which it was connected. There was no warning
that the wire was live. The deceased managed to pass into the latrine without contacting the wire
but that as she came out her hand happened to touch it and she got a shock as a result of which
she died soon after on July 16, 1959.
Sessions Judge, Champaran - Sessions Judge, Champaran convicted and sentenced Cherubin
Gregory under Section 304A of the Indian Penal Code.
Patna High Court – Patna High Court dismissed appeal and convicted Cherubin Gregory under
Section 304A and passed its judgment and order on September 20, 1961.
Supreme Court - Cherubin Gregory filled appeal through SLP in Supreme Court.
Argument of the Cherubin Gregory - Cherubin Gregory argued that there was sufficient
notice. There are his pints –
1. that at the time of the accident it was past day break and there was therefore enough light,
2. that an electric light was burning some distance away,
3. [Alternative Argument] that accused was trespasser. He caused his death in the exercise
of right of private defence.
4. That it is not tort. So it is also not come under category of offence.
Rejection of Argument - Supreme Court rejected these grounds and observed that it is manifest
that neither of these could constitute warning as the conditions of the wire being charged with
213
AIR 1964SC 205. Available at: https://main.sci.gov.in/judgment/judis/3477.pdf (Visited on February 19, 2022).

169
electric current could not obviously be detected merely by the place being properly lit. His matter
does not cover under Section 103.
Decision –
(1) Right of Private Defence – Although she was trespasser. But mere trespass has not been
mentioned under section 103214 in which death of person may be caused. So he was not
coming under Section 103 read with Section 99. Supreme Court observed, ―The right of
private defence of property which is set out in Section 97 of the Indian Penal Code is, as
that section itself provides, subject to the provisions of Section 99 of the Code. It is
obvious that the type of injury caused by the trap laid by the accused cannot be brought
within the scope of Section 99, nor of course of Section 103 of the Code.‖
(2) Culpable Homicide- Accused had no intention to cause death. So he was not liable for
culpable homicide. In this case knowledge to cause death was not discussed.
(3) Duty towards trespasser -It is, no doubt true that the trespasser enters the property at his
own risk and the occupier owes no duty to take any reasonable care for his protection, but
at the same time the occupier is not entitled to do willfully acts such as set a trap or set a
naked live wire with the deliberate intention of causing harm to trespassers or in reckless
disregard of the presence of the trespassers.
(4) Rashness - The voltage of the current passing through the naked wire being high enough
to be lethal, there could be no dispute that charging it with current of that voltage was a
‗rash act‘ done in reckless disregard of the serious consequences to people coming in
contact with it.
(5) Law of torts and Crime – The contention was that the deceased was a trespasser and that
there was no duty owed by an occupier like the accused towards the trespasser and
therefore the latter would have had no cause of action for damages for the injury inflicted
and that if the act of the accused was not a tort, it could not also be a crime.
Supreme Court rejected this argument and said that there was no substance in this line of
argument. India has codified law like IPC, 1860 and it would not be proper or justifiable
to permit the invocation of some Common Law principle outside that Code for the
purpose of treating what on the words of the statute is a crime into a permissible or other
than unlawful act.
214
Indian Penal Code, 1860, Section 103. When the right of private defence of property extends to causing death -
The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary
causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting
to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter
enumerated, namely: -
First - Robbery;
Secondly - House-breaking by night;
Thirdly - Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a
human dwelling, or as a place for the custody of property;
Fourthly - Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that
death or grievous hurt will be the consequence, if such right of private defence is not exercised.

170
(6) Law Reform Committee of the United Kingdom – The position as to the obligation of
occupiers towards trespassers has been neatly summarised by the Law Reform
Committee of the United Kingdom in the following words: ―The trespasser enters
entirely at his own risk, but the occupier must not set traps designed to do him bodily
harm or to do any act calculated to do bodily harm to the trespasser whom he knows to
be or who to his knowledge is likely to be on his premises. For example, he must not set
man-traps or spring guns. This is no more than ordinary civilised behaviour.‖
Decision - Cherubin Gregory was liable under section 304A. His appeal was dismissed by
Supreme Court.
Remarks –
(i) In this case meaning of negligence and rashness was not discussed.
(ii) Section 299 (c) i.e. causing of death by knowledge was also not discussed.
(3) S. N. Hussain v. State of Andhra Pradesh

S. N. Hussain v. State of Andhra Pradesh215 was decided by Division Bench of Supreme Court
consisted of Hon‘ble Justice D. G. Palekar & Hon‘ble Justice P. J. Reddy on January 5, 1972.
Hon‘ble Justice D. G. Palekar wrote this judgment.
Fact- S.N. Hussain was bus driver. Accident occurred at the time of crossing railway gate at
about 6.30 or 7.00 a.m. on January 01, 1966. Gate was open and he was driving in slow speed
and due to cold freeze there was less visibility. Goods train dashed against bus on the rear side
with the result that the bus was thrown off causing serious injuries to the passengers. There were
about 43 passengers in the bus. Out of these, one died on the spot, three died later in the Hospital
and about 21 other passengers received more or less severe injuries.
Charge - The charge against S. N. Hussain was that he was rash or negligent in crossing the
railway track when a Goods train was about to pass the gate. He was charged under Sections
304A, 338 and 337, IPC.
Arguments of S. N. Hussain –
There are following arguments of S.N. Hussain -
 he was neither rash nor negligent and the accident was unavoidable.
 he did not realize at all that a Goods train was passing at the time,
 since the gate was open he crossed the railway crossing
 There was cold breeze. There was less visibility.
215
AIR 1972 SC 685. Date of Judgment: January 5, 1972.
Available at: https://indiankanoon.org/doc/1881874/ (Visited on February 20, 2022).

171
Munsif Magistrate, Alampur – Munsif Magistrate, Alampur accepted arguments of S.N.

Hussain and he acquitted S.N.Hussain.
High Court - The State Government appealed against the acquittal to the High Court and the
High Court had convicted him under all these Sections and sentenced him to suffer rigorous
imprisonment for two years under Section 304A IPC and made the other sentences to run
concurrently with the same. Appellant was both rash and negligent,
Supreme Court – S.N. Hussain appealed to Supreme Court.
Issue - Whether the appellant was caused death either by rash or negligent.
Important Points –
In this cases supreme Court observed following important points -
 Meaning of Rashness- Rashness consists in hazarding a dangerous or wanton act with

the knowledge that it is so, and that it may cause injury. The criminality lies in such a
case in running the risk of doing such an act with recklessness or indifference as to the
consequences.
 Meaning of Criminal negligence -Criminal negligence on the other hand, is the gross
and culpable neglect or failure to exercise that reasonable and proper care and
precaution to guard against injury either to the public generally or to an individual in
particular, which, having regard to all the circumstances out of which the charge has
arisen, it was the imperative duty of the accused person to have adopted.
Decision – Appellant was acquitted

Important Facts of this case –
(1) The bus was not driven and could not have been driven fast.
(2) That the gate of the level crossing which is a manned gate, was open, indicating thereby
that no train was expected to come at the time and inviting vehicles to pass.
(3) The railway track was at a higher level and the road was lined by babbool trees and,
therefore, a passing train coming from a distance was not visible from the bus.
(4) The bus was making a huge noise because it was not fitted with the silencer.
(5) As a cold breeze was blowing some of the window screens of the bus were lowered for
the comfort of the passengers in the bus.
(6) There is no evidence that the train while approaching the level crossing gave any whistle
or whistles. In any case there is no evidence that any whistle was heard by any of the
occupants of the bus.
(4.6.) PREVIOUS YEAR QUESTION PAPERS

Discuss the criminal liability of Raja in the following case:
Raja, while driving his car in a drunken state at night, kills a man and injures three others who
were sleeping on a pavement.

172
Answer
In this case sections 299, 304 Part II, and ratio of Alister Anthony Pareira v. State of
Maharashtra ( Jan. 12, 2012 SC) and State Tr. P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda
(BMW Case) (DOJ August 3, 2012) are involved.
Section 299 and 304 Part II.

or (b) Intention to cause bodily injury as is likely to cause death or (c) knowledge that he is
likely by such act to cause death. If either condition is missing, section 299 shall not be
applicable. Section 304 Part II deals for punishment of culpable homicide caused with
knowledge.
Alister Anthony Pareira v. State of Maharashtra

Alister Anthony Pareira v. State of Maharashtra was decided by Supreme Court on January 12,
2012.
Facts - In the night of November 11 -12, 2006, the labourers were asleep in front of their huts on
the pavement. Between 3.45 to 4.00 a.m., that night, Alister Anthony Pareira while driving the
car rashly and negligently with knowledge that people were asleep on footpath rammed the car
over the pavement; caused death of seven persons and injuries to eight persons. At the time of
incident, the appellant was found to have consumed alcohol. A liquor bottle was recovered from
the appellant‘s car.
Meaning of Knowledge -Knowledge is awareness on the part of the person concerned of the
consequences of his act of omission or commission indicating his state of mind.
Conviction under section 304A - A person, responsible for a reckless or rash or negligent act
that causes death which he had knowledge as a reasonable man that such act was dangerous
enough to lead to some untoward thing and the death was likely to be caused, may be attributed
with the knowledge of the consequence and may be fastened with culpability of homicide not
amounting to murder and punishable under section 304 Part II IPC.
Supreme Court observed, ―Drunken driving has become a menace to our society. Everyday
drunken driving results in accidents and several human lives are lost, pedestrians in many of our
cities are not safe. Late night parties among urban elite have now become a way of life followed
by drunken driving. Alcohol leads to loss of coordination, poor judgment, slowing down of
reflexes and distortion of vision.‖
State Tr. P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda (BMW Case) (August 3, 2012, SC)
In this case Sanjeev Nanda who had drunk was driving BMW. Two more persons were in that
car. Just at the corner from where Lodhi Road starts, seven persons including three police men
were standing on the road at about 4.00 a.m. In the meantime, BMW car driven rashly and

173
negligently came from Nizamuddin side at a high speed and dashed violently against them. The
impact was so great and severe, that they flew in the air and fell on the bonnet and wind screen
of the car. Some of them rolled down and came beneath the car. Some of them started to cry for
help. But three people without helping ran away. Six of them died and one survived. They
managed the Court. Again trial started. Session Court convicted them for section 304 Part II.
High Court converted the punishment into section 304A. Supreme Court held that although there
was no intention to cause death but there was knowledge that driving in unusual speed after
taking drink was possibility to hit someone or something. Supreme Court held that Sanjeev
Nanda had committed offence under section 304 Part II of the IPC.
In this problem Raja drank. Raja, while driving his car in a drunken state at night. He knew that
alcohol leads to loss of coordination, poor judgment, slowing down of reflexes and distortion of
vision. He kills a man and injures three others who were sleeping on a pavement.
Conclusion
After observing the ratio of Alister Anthony Pareira v. State of Maharashtra ( Jan. 12, 2012 SC)
and State Tr. P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda (BMW Case) (August 3, 2012), it
can be concluded that Supreme Court is taking stern action in drunken driving cases. Drunken
driving has become a menace to our society. Everyday drunken driving results in accidents and
several human lives are lost; pedestrians in many of our cities are not safe. From the above
discussion it can be concluded that Raja will be liable for committing culpable homicide with
knowledge (section 299 (c)) which is punishable under section 304 Part II of Indian Penal Code.

In order to prevent the ingress of intruders into his washroom which had been exposed to public
due to the fall of the wall of the washroom in his house and to make such ingress dangerous
enough, Rani fixed up a copper wire across the passage to the washroom. This wire was naked
and uninsulated and carried current from the electric wiring of his house to which it was
connected. Reshma, her neighbour who wanted to take advantage of the situation, came to use
the washroom of Rani, managed to pass into the washroom without contacting the wire but as
she came out her hand happened to touch the live wire. She got a shock as a result of which she
died soon after. The Session Judge before whom Rani was charge sheeted under section 304 IPC
held her guilty only of the offence under section 304A and not section 304 IPC which decision
was upheld by the high court in appeal preferred by the State. The State wants to prefer an appeal
to the Supreme Court seeking her conviction under section 304 IPC. You are required to advice
the State as to whether it has a case on merits to support its stand. Discuss.
Answer

174
This problem is based on section 304A and Cherubin Gregory v. State of Bihar (1963.)
Section 304A
According to Section 304A ―Whoever causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.‖
Section 304A was inserted in 1870 to cover those cases which were caused by either rash or
negligent and not covered by section 299 and 300. Law Commission of India in its 42nd Report
(1971) recommended increasing punishment up to five years. Negligent or rashness driving is
main concern.
Cherubin Gregory v. State of Bihar (July 31, 1963)

Facts - Cherubin Gregory was charged under section 304A of Indian Penal Code for causing the
death of Mst. Madilen . The deceased was residing near the house of the accused. The wall of the
latrine of the house of the deceased had fallen down about a week prior to the day of occurrence
and so the deceased along with others started using the latrine of the accused. The accused
protested against their coming there. The oral warnings however, proved ineffective and so he
fixed up a naked copper wire across the passage leading up to his latrine and that wire carried
current from the electrical wiring of his home to which it was connected. There was no warning
that the wire was live. The deceased managed to pass into the latrine without contacting the wire
but that as she came out her hand happened to touch it and she got a shock as a result of which
she died soon after.
Decision – Supreme Court laid down following important points -

(1) Right of Private Defence – Although he was trespasser. But mere trespass has not been
mentioned under section 103 in which death of person may be caused.
(2) Culpable Homicide- Accused had no intention to cause death. So he was not liable for
culpable homicide.
(3) Duty towards trespasser -It is, no doubt true that the trespasser enters the property at his own
risk and the occupier owes no duty to take any reasonable care for his protection, but at the same
time the occupier is not entitled to do willfully acts such as set a trap or set a naked live wire
with the deliberate intention of causing harm to trespassers or in reckless disregard of the
presence of the trespassers.
(4) Rashness - The voltage of the current passing through the naked wire being high enough to
be lethal, there could be no dispute that charging it with current of that voltage was a ‗rash act‘
done in reckless disregard of the serious consequences to people coming in contact with it.

175
Cherubin Gregory was liable under section 304A. Appeal was dismissed.
Evaluation of problem and Conclusion-

This problem is similar to Cherubin Gregory v. State of Bihar. In this problem Rani fixed up a
copper wire across the passage to the washroom. This wire was naked and un-insulated and
carried current from the electric wiring of his house to which it was connected. Rani had neither
intention nor knowledge to cause death. So she had not committed offence of culpable homicide
(section 299 and section 300). She had committed death by her rash act.
Rani fixed up a copper wire across the passage to the washroom. This wire was naked and
uninsulated and carried current from the electric wiring of his house to which it was connected. It
was lethal. It was rash act of Rani. It was done in reckless disregard of the serious consequences
to people coming in contact with it. So she will be liable under section 304A of IPC.
Conclusion
Ratio of decision of Supreme Court in Cherubin Gregory v. State of Bihar is good. So it can be
suggested the State that no need to go in appeal. Her punishment under section 304A is good. It
needs only to implement the 42nd Report of Law Commission of India (1971) in which it was
recommended for increasing punishment up to five years.
Question (3) (b) 2014 (OC)

Accused X was running a bus at a high speed on a dusty and damaged road. While negotiating a
curve with the same speed, without applying breaks, the bus over turned, killing a pedestrian and
injuring some of the passengers. Prosecution is interested to prosecute X under Section 304-A of
IPC. Can they do so and will they succeed? Give reasons.
Answer
This problem needs elaboration of section 304A and S.N.Hussain v. State of Andhra Pradesh
(Jan. 5, 1972, S C).
Section 304A
S.N.Hussain v. State of Andhra Pradesh216 (DOJ Jan. 5, 1972)
S.N.Hussain was bus driver. Accident occurred at the time of crossing railway gate. Gate was
open and he was driving in slow speed and due to cold freeze there was less visibility. Goods
216
AIR 1972 SC 685

176
train dashed against bus. Some passenger died and others severally injured. He was charged
under section 304A. He was acquitted.
Supreme Court laid down some important points -
Meaning of Rashness- Rashness consists in hazarding a dangerous or wanton act with the
knowledge that it is so, and that it may cause injury. The criminality lies in such a case in
running the risk of doing such an act with recklessness or indifference as to the consequences.
Meaning of Criminal negligence -Criminal negligence on the other hand, is the gross and
culpable neglect or failure to exercise that reasonable and proper care and precaution to guard
against injury either to the public generally or to an individual in particular, which, having regard
to all the circumstances out of which the charge has arisen, it was the imperative duty of the
accused person to have adopted.
Decision – He was acquitted. There were following reasons of his acquittal -
Reason of Acquittal (1) The bus was not driven and could not have been driven fast. (2) That the
gate of the level crossing which is a manned gate, was open, indicating thereby that no train was
expected to come at the time and inviting vehicles to pass. (3) The railway track was at a higher
level and the road was lined by babbool trees and, therefore, a passing train coming from a
distance was not visible from the bus. (4) The bus was making a huge noise because it was not
fitted with the silencer. (5) As a cold breeze was blowing some of the window screens of the bus
were lowered for the comfort of the passengers in the bus.(6) There is no evidence that the train
while approaching the level crossing gave any whistle or whistles. In any case there is no
evidence that any whistle was heard by any of the occupants of the bus.
Facts of this case is totally different from S.N.Hussain v. State of Andhra Pradesh (Jan. 5, 1972).
In the case of S.N.Hussain, he was driving in moderate speed and due to fog and open gate he
could not know about coming train. In this problem X was running a bus at a high speed on a
dusty and damaged road. He curved the bus in same speed without applying breaks. He was duly
bound by duty to take care to his passengers and pedestrians. He had committed negligence. He
was well aware about condition of Road. He had killed a pedestrian. He had neither intention nor
knowledge to commit death of pedestrian. So death of pedestrian will not come either under
section 299 or section 300. It will come under section 304A of IPC.
Conclusion
From the above discussion it becomes clear that X had committed an offence punishable under
section 304A. Prosecution will succeed.
Question 1 B (2015)
Raghav Ram, a film actor was returning from a party past midnight when he dozed off and the
car that he was driving ran over two persons sleeping on the pavement killing them and
thereafter rammed into a pole. He was jolted out of sleep by the impact of the accident when his

177
car hit the pole. Tests confirmed high dosage of alcohol in his blood. Discuss his liability for the
death of those two persons.
Answer
In this problem sections 299, 304 Part II and ratio of Emporer v. Dhirajia, Alister Anthony
Pareira v. State of Maharashtra (Jan. 12, 2012 SC) State Tr. P.S.Lodhi Colony, New Delhi v.
Sanjeev Nanda (BMW Case) (August 3, 2012, SC) are involved.
Introduction - In the Alister Anthony Pareira Case Supreme Court observed, ―Drunken driving
has become a menace to our society. Everyday drunken driving results in accidents and several
human lives are lost, pedestrians in many of our cities are not safe. Late night parties among
urban elite have now become a way of life followed by drunken driving. Alcohol leads to loss of
coordination, poor judgment, slowing down of reflexes and distortion of vision.‖ Now time has
come to apply stricter law in such cases when lives of other persons are in danger. At the time
enactment of 304 A, during the British era there was no concept of fundamental rights of victims.
Section 299 and Section 304 Part II.

or (b) Intention to cause bodily injury as is likely to cause death or (c) knowledge that he is
likely by such act to cause death. If either condition is missing, section 299 shall not be
applicable. Section 304 Part II deals for punishment of culpable homicide caused with
knowledge.
Section 304A applies only when homicide is not culpable homicide i.e. section 299 and Section
300.
Emperor v. Dhirajia (1940)

Allahabad High Court held that every sane person shall be presumed to have knowledge about
his/ her own conduct.
Alister Anthony Pareira v. State of Maharashtra ( Jan. 12, 2012 SC)

Knowledge is awareness on the part of the person concerned of the consequences of his act of
omission or commission indicating his state of mind.
Alister Anthony Pareira and Sanjeev Nanda Case

I have discussed both the cases earlier. Both the cases are related to drunken driving and killing
pedestrian. In both the cases Supreme Court took stern action against convicted them under
section 304 Part II. Supreme Court held that although there was no intention to cause death but
there was knowledge that driving in unusual speed after taking drink was possibility to hit
someone or something.

178
After observing the ratio of Alister Anthony Pareira v. State of Maharashtra and State Tr.
P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda (BMW Case), it can be concluded that Supreme
Court is taking stern action in drunken driving cases.

Raghav Ram was film actor. He knew consequences of his act even though he took high dosage
of alcohol. After this he was driving on highway. He was well aware of his conduct. The car that
he was driving ran over two persons sleeping on the pavement killing them. He caused death of
pavement knowingly. Knowledge means awareness of consequences. He has committed culpable
homicide punishable under section 304 Part II.
Conclusion
After observing above discussed provisions and ratio of cases, it can be inferred that Raghav
Ram had committed culpable homicide punishable under section 304 Pat II of IPC.

179
CHAPTER 5: RIGHTS OF PRIVATE DEFENCE
―The right of defence is absolutely necessary. The vigilance of Magistrates can never make up
for the vigilance of each individual on his own behalf. The fear of the law can never restrain bad
man as the fear of the sum total of individual resistance. Take away this right and you become in
so doing the accomplice of all bad men.‖
Bentham
―....a man is justified in resisting by force anyone who manifestly intends and endeavours by
violence or surprise to commit a known felony against either his person, habitation or property.
In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands
but may indeed pursue his adversary until the danger is ended and if in a conflict between them
he happens to kill his attacker, such killing is justifiable.‖
Russel217 (Raghbir Singh and Ors. v. State of Haryana)218
(5.1.) INTRODUCTION
Right of self defence is basic human instinct. This right has been recognised all over world in
municipal and international law. Article 51 of the Charter of the United Nations says that right of
self defence is inherent right and recognizes individual and collective rights of nations. Article
itself imposes limitation of this right and says that as soon as Security Council of United Nations
takes necessary action, self-defence right of nation ceased. Reason of this is that primary duty of
Security Council is to maintain peace and security.219
Chapter IV, Indian Penal Code, 1860 deals ‗General Exceptions‘. It contains Sections 76 to 106.
Sections 96 to 106 deals right of private defence. It means ‗Right of Private Defense‘ (RPD) is
part of ‗General Exceptions‘.
The right of private defence has come to be recognized by all civilized societies as a preventive
and protective right where the state protection is not available. This right is essentially protective
and preventive and never punitive. There are limitations on the exercise of this right both in
relation to offences against human body and specific offences against property. The extent of this
right, against whom it can be exercised, when this right commences and how long it lasts are
dealt with elaborately in IPC.220
Right of private defence is only for defence rather than for aggression. This right is available for
own body as well as body of another person.221 In case of property this right is available in
limited cases. This right is also available against a person who cannot commit offence for
217
Russel, Russel on Crime, 11th Edition Volume I at page 49. This statement was cited at para 13 in Raghbir Singh
and Ors. v. State of Haryana, November 12, 2008. Available at: https://main.sci.gov.in/jonew/judis/33058.pdf
(Visited on January 23, 2022).
218
Para 13, Date of Judgment: November 12, 2008. Available at: https://main.sci.gov.in/judgment/judis/33058.pdf
219
Article 24, UN Charter.
220
Case Material of FOL, DU, ‗Law of Crimes‘ July 2020.
221
Section 97, IPC

180
example person of unsound mind or person doing act in mistake of fact.222 But this right is
subject to certain limitations.223 It may be used even there is risk for innocent person.224
In exercise of right of private defence in certain cases either harm or death may be caused
(Sections 100 and 103). In other case only harm can be caused and causing of death is not
allowed (Sections 101 and 104).
Right of private defence of body and property commences from the reasonable apprehension of
danger of body or property as the case may be arises (Sections 102 and 105).
(5.2.) NEED OF RIGHTS OF PRIVATE DEFENCE
Self-help is the first rule of criminal law.225 State has limited resources and it cannot protect
every person in every circumstances. At the same time, it cannot be expected when offence is
going to be committed. In a room husband and wife is sleeping. For example, it might be that
sudden struggle starts on the issue of extra-matrimonial relation of either party and husband
starts to beat his wife. In this circumstances wife has right of private defence. Bentham in his
book ‗Principle of Penal Laws‘ elaborated need of right of private defence and said, ―The right
of defence is absolutely necessary. The vigilance of Magistrates can never make up for the
vigilance of each individual on his own behalf. The fear of the law can never restrain bad man as
the fear of the sum total of individual resistance. Take away this right and you become in so
doing the accomplice of all bad men.‖226 So it has been provided under section 96 of IPC that if
an act is done in exercise of right of private defence that act would not be an offence.
In the case of Munshi Ram and Others v. Delhi Administration227 Justice K.S. Hegde said, ―The
right of private defence serves a social purpose and that right should be liberally construed.
Such a right not only will be a 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 than to run
away in the face of peril.‖
In Darshan Singh v. State of Punjab & Anr.228 Supreme Court observed, ―When enacting
sections 96 to 106 of the Indian Penal Code, excepting from its penal provisions, certain classes
of acts, done in good faith for the purpose of repelling unlawful aggressions, the Legislature
clearly intended to arouse and encourage the manly spirit of self-defence 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. The
222
Section 98, IPC
223
Section 99, IPC
224
Section 106, IPC
225
K D Gaur, Textbook on Indian Penal Code 254 (LexisNexis,Gurgaon, 6th edn., 2016).
226
V Suresh and D Nagasila, PSA Pillai‘s Criminal Law 151, (LexisNexis, New Delhi, 9th edn. Fourth reprint 2007).
227
AIR 1978 SC 702. This case was decided on November 27, 1967.
228
(2010) 2 SCC 333. AIR 2010 SC 1212.

181
right of private defence is thus designed to serve a social purpose and deserves to be fostered
within the prescribed limits‖.229
(5.3.) NATURE OF RIGHT OF PRIVATE DEFENCE
In the case of Deo Narain v. State of U.P.230 (1972) nature of right of private defence was
discussed. Supreme Court said, ―This right rests on the principle that where a crime is
endeavored to be committed by force, it is lawful to repel that force in self- defence. The right of
private defence is available for protection against apprehended unlawful aggression and not for
punishing the aggressor for the offence committed by him. It is a preventive and not a punitive
right. In case of excitement or disturbed mental equilibrium it is difficult to expect parties facing
grave aggression to coolly weigh, as if in golden scales, and calmly determine with a composed
mind as to what precise kind and severity of blow would be legally sufficient for effectively
meeting the unlawful aggression.‖
In Darshan Singh v. State of Punjab & Anr.231 Supreme Court observed, ―The Indian Penal Code
defines homicide in self-defence as a form of substantive right. Right of private defence of
person and property is recognized in all free, civilized, democratic societies within certain
reasonable limits‖.
In Raghbir Singh and Ors. v. State of Haryana, Supreme Court observed, ―The right of private
defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC,
available only when the circumstances clearly justify it. It should not be allowed to be pleaded or
availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of
defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure.
While providing for exercise of the right, care has been taken in IPC not to provide and has not
devised a mechanism whereby an attack may be pretence for killing. A right to defend does not
include a right to launch an offensive, particularly when the need to defend no longer
survived‖.232
(5.4.) SCHEME OF RIGHT OF PRIVATE DEFENCE IN IPC
Right of private defence has been provided under Sections 96 to 106. Sections 96 to 106 may be
divided into three categories namely;
(1) Common sections - Sections 96, 97, 98, 99, & 106
(2) Sections related to body - Sections 100,101&102
(3) Sections related to property - Sections 103,104 &105.
229
At para 24 of Darshan Singh v. State of Punjab & Anr. (2010) 2 SCC 333.
230
AIR 1973 SC 473. This case was decided on December 11, 1972.
231
(2010) 2 SCC 333. AIR 2010 SC 1212.
232
Raghbir Singh and Ors. v. State of Haryana, Para 14, Date of Judgment - November 12, 2008. Available at:
https://main.sci.gov.in/judgment/judis/33058.pdf (Visited on January 25, 2022).

182
RPD is available in case of body & property
Common
[Sections 96,97, 98,99 & 106]
Body Property
[Sections 100,101&102] [Sections 103,104 &105.]
Common sections are applicable to right of private defence either related to body or property.
Compare between sections of body and property
There are following comparison between both -
(1) Section100 (Body)-103(Property) -Circumstances in which death or any harm may be

caused
(2) Section 101 (Body)-104(Property) - Circumstances in which only harm may be caused &
(3) Section102 (Body)-105 (Property) - Commencement and continuance of right of private
defence.
General
Exceptions
[Sections 76 -106]
Right of Private RPD is available

Defence [Sections to own and other
96 to 106] also
Body Property
Causing harm is Causing harm is

Causing harm and Causing harm and
allowed. But allowed. But
death both are death both are
causing death is causing death is
allowed allowed
not allowed. not allowed.
Sections 100 r/w Sections 103 r/w

106 Section 101 106 Section 104
Common sections - Sections 96, 97, 98, 99, & 106

183
(5.4.1.) Section 96
Section 96 says ―Nothing is an offence which is done in the exercise of the right of private
defence.‖ This section is declaratory nature. It says that if any act is done in the exercise of the
right of private defence, that act is excusable by law. A tried to commit rape of B. B with
intention of causing death fired gun and killed A. In absence of right of private defence, B will
be liable for murder which is punishable under Section 302. But in presence of Sections 6, 96,
100 read with section 300, B had not committed any offence.
If anyone exceeds his right of private defence and causes death. Causing of such death will come
under exception 2 of section 300 and it will amount to culpable homicide.
In Darshan Singh v. State of Punjab & Anr.233 Supreme Court observed that right of private
defence is substantive rights.
(5.4.2.) Section 97
Section 97234 is genus. This section contains two clauses. First clause deals with right of private
defence against any offence affecting the human body (Sections 299-377). Second clause deals
with right of private defence in respect of property (movable or immovable) when offence is
related to TRMC (Trinmool Congress)235 (T-Theft, R-Robbery, M-Mischief, C-Criminal
Trespass) or attempt to commit these offences. There are only four offences wherein rights of
private defence are available in case of property. If any offence which derives from these
offences even in that case right of private defence would be available. In case of criminal
misappropriation or breach of trust right of private defence is not available because these are not
covered under section 97(2). These rights are not absolute. These are subject to section 99 of the
Code, 1860. Body or property may be of own or of other.
233
(2010) 2 SCC 333. AIR 2010 SC 1212.
234
Section 97- Right of private defence of the body and of property - 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.
235
Only for the purpose of remembering provisions.

184
Right of Private Defence

[Section 97]
There are two These are subject to

categories Section 99.
Body [Sec. 97 (1)] Property [Section 97 (1)]
Own body Body of other Own Property Property of other
TRMC TRMC
Against offences Against offences [Theft, Robbery,
affecting bodies affecting bodies Mischief & Criminal
[Theft, Robbery, Mischief
Tresspass & Criminal Tresspass
(5.4.3.) Section 98
Section 98236 IPC provides wider protection.

Section 98. Right of private defence against the act of a person of unsound mind, etc. -
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 were that
offence.
Illustrations
(a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the
same right of private defence which he would have if Z were sane.
(b) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a
house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence.
But A has the same right of private defence against Z, which he would have if Z were not acting
under that misconception.
COMMENT
There are following exceptional cases when right of private defence is available against acts –
Section 98 - When an act, which would otherwise be a certain offence, is not that offence,
236
DU LL.B. 2015 [Question 3(b) - A is attacked by Z, a person of unsound mind, who has a spear in his hand. In
order to protect himself, A strikes Z with a stick on his head, resulting in his death. During trial A pleads the right of
private defence. Decide, with the help of relevant legislative provision.
MP JS 2006 - Question - A enters by night a house which he is legally entitled to enter. B, in good faith, taking A
for a house-breaker, attacks A. Whether A has right to private defence against B?

185
(1) by reason of the youth, (Section 82)

(2) the want of maturity of understanding, (Section 83)
(3) the unsoundness of mind, (Section 84)
(4) the intoxication of the person doing that act, (Sections 85 & 86)
(5) by reason of any misconception of facts, (Section 76 and 79)237
every person has the same right of private defence against that act which he would have if the act
were that offence.
Illustrations- There are two illustrations. First illustration is based on section 84 and second
illustration is based on section 76. These illustrations are -
(a) Person of Unsound mind [Section 84] - Z, under the influence of madness, attempts to
kill A; Z is guilty of no offence. But A has the same right of private defence which he
would have if Z were sane.
(b) Misconception of Facts [Section 76] - A enters by night a house which he is legally
entitled to enter Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by
attacking A under this misconception, commits no offence. But A has the same right of
private defence against Z, which he would have if Z were not acting under that
misconception.
Section 98 is extension of section 97. Section 98 makes right of private defence very wider. This
section is applicable in all circumstances either right of private defence is related to person or
property of his own or other. Rule is that right of private defence is available only against
offences. But section 98 declares that even in certain cases right of private defence would be
available against acts. For example, person of unsound mind cannot commit an offence due to
under section 84 but his act might cause reasonable apprehension of death of another person. So
against such act of person of unsound mind, another person has right of private defence.
Section 97 (Offence) Section 98 (Act)

Right of private defence is available against Right of private defence is available against
offence act
237
K D Gaur, Textbook on Indian Penal Code 262 (LexisNexis,Gurgaon,6th edn., 2016).

186
Differences between Sections 97 & 98
Section 97 [ RPD is available Section 98 [ RPD is available

against 'Offence'] against 'Act']
Section 98 makes scope of RPD much wider. Due to this

section, RPD is also available against those persons who
are not competent to commit offence.
(5.4.4.) SECTION 99
SEC. 99 - ACTS AGAINST WHICH THERE IS NO RIGHT OF PRIVATE DEFENCE

Section 97
Section 99
Public On direction of Time to

Servants public servants recourse No more
protection of harm than it
public is necessary
Exceptions Exceptions authorities.
Grievous Grievous
Death Death
Hurt Hurt
Section 99 may be divided into four parts.

(1) First part deals that when right of private defence is not available against public servant.
According to this part if conditions mentioned in this part are not being fulfilled then
right of private defence is also available even against public servant. For example, if there
is reasonable apprehension that police is about to kill, other person has right to kill that
person. But this right is not available for stage manager. If you have created such
circumstances in which police is about to kill you in his self defence and in counter, you
kill him then right to private defence is not available for you.
(2) Second part covers those matters which had been done on the direction of public servant.
(3) Third part covers those matters in which person has time to recourse protection of public
authorities.

187
(4) Fourth part deals that this right must not be used to take revenge. It must be used only
for the purpose of protection.
(1) Public Servant: There is no right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to
be done, by a public servant acting in good faith under colour of his office, though that
act, may not be strictly justifiable by law.
Explanation 1 - A person is not deprived of the right of private defence against an act
done, or attempted to be done, by a public servant, as such, unless he knows or has
reason to believe, that the person doing the act is such public servant.
Kanwar Singh v. Delhi Administration238
A raiding party possessing authority u/s 418, Delhi Municipal Corporation Act seized the
stray cattle belonging to the accused. Kanwar Singh resisted the seizure of the cattle and
inflicted injuries on the raiding party. Since the raiding party was public servants
discharging their lawful duties, they were justified in law to seize the cattle, no right of
private defence was available to the accused. He was convicted.
(2) Person acting on the direction of public servant: There is no right of private defence
against an act which does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, 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.
Explanation 2 — A person is not deprived of the right of private defence against an act
done, or attempted to be done, by the direction of a public servant, unless he knows, or
has reason to believe, that the person doing the act is acting by such direction, or unless
such person states the authority under which he acts, or if he has authority in writing,
unless he produces such authority, if demanded.
(3) Time for recourse to the protection of the public authorities: There is no right of
private defence in cases in which there is time to have recourse to the protection of the
public authorities.
Gurdatta Mal v. State of U.P.239
There was a land dispute between the accused and the deceased. There was prolonged
civil litigation wherein the deceased had established his right of title and physical
possession of the property. He went along with his men to harvest the crop with police
protection. In such a situation, it was held that the accused had ample time to have
recourse to authorities and had no right to assault the deceased to claim possession of the
238
AIR 1965 SC 871.
239
AIR 1965 SC 257. UGC NET -2008.

188
properties. Hence, they had no right of private defence. Right of self defence of either
body or property can only be at the time when there is imminent danger or harm.240
(4) Extent to which the right may be exercised: 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.
Deo Narain v. State of U.P.241 (1972)
In Deo Narain v. State of U.P.242 Supreme Court said, ―If a blow with a lathi is aimed at a
vulnerable part like the head it cannot be laid down as a sound proposition of law that in such
cases the victim is not justified in using his spear in defending himself. In such moments of
excitement or disturbed mental equilibrium it is difficult to expect parties facing grave
aggression to coolly weigh, as if in golden scales, and calmly determine with a composed mind
as to what precise kind and severity of blow would be legally sufficient for effectively meeting
the unlawful aggression.‖
In Raghbir Singh and Ors. v. State of Haryana243 Supreme Court observed, ―….A person who is
apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in
the heat of circumstances, the number of injuries required to disarm the assailants who were
armed with weapons. In moments of excitement and disturbed mental equilibrium it is often
difficult to expect the parties to preserve composure and use exactly only so much force in
retaliation commensurate with the danger apprehended to him where assault is imminent by use
of force, it would be lawful to repel the force in self-defence and the right of private-defence
commences, as soon as the threat becomes so imminent. Such situations have to be
pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or
even marginal overstepping. Due weightage has to be given to, and hyper technical approach has
to be avoided in considering what happens on the spur of the moment on the spot and keeping in
view normal human reaction and conduct, where self-preservation is the paramount
consideration. But, if the fact situation shows that in the guise of self-preservation, what really
has been done is to assault the original aggressor, even after the cause of reasonable
apprehension has disappeared, the plea of right of private-defence can legitimately be negatived.
The Court dealing with the plea has to weigh the material to conclude whether the plea is
acceptable. It is essentially, as noted above, a finding of fact‖.
240
V Suresh and D Nagasila, PSA Pillai‘s Criminal Law 151,(LexisNexis, New Delhi, 9th edn. Fourth reprint 2007).
241
242
243
Para 11, Date of Judgment: November 12, 2008. Available at: https://main.sci.gov.in/judgment/judis/33058.pdf

189
(5.4.5.) SECTION 100
100244 provides seven circumstances when death and hurt is allowed.

Section 100- When the right of private defence of the body extends to causing death.—The
right of private defence of the body extends, under the restrictions mentioned in the last
preceding section, to the voluntary causing of death or of any other harm to the assailant, if the
offence which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely:—
(1) First (Death) -Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault.
(2) Secondly (Grievous hurt) -Such an assault as may reasonably cause the apprehension
that grievous hurt will otherwise be the consequence of such assault.
(3) Thirdly (Rape) -An assault with the intention of committing rape.
(4) Fourthly (Unnatural lust) - An assault with the intention of gratifying unnatural lust.
(5) Fifthly (Kidnapping or abducting) -An assault with the intention of kidnapping or
abducting.
(6) Sixthly (Wrongfully confinement) - An assault with the intention of wrongfully confining
a person, under circumstances which may reasonably cause him to apprehend that he
will be unable to have recourse to the public authorities for his release.‖
(7) Seventhly (Acid attack) (Ins. in 2013) - An act of throwing or administering acid or an
attempt to throw or administer acid which may reasonably cause the apprehension that
grievous hurt will otherwise be the consequences of such act.
(1) First [Causing of death in exercise of right of private defence]

―Such an assault as may reasonably cause the apprehension that death will otherwise be
the consequence of such assault‖
There are following ingredients –
(a) There must be an assault245. Gesture or preparation is sufficient. Actual commission is not
necessary.
244
DU LL.B. 2013 Question 8(a) - A‘s car hit B‘s scooter while taking a turn negligently. An argument ensued
between A and B. A slapped B. B left the place immediately and came back after 10 minutes along with his 10
friends and hit A with lathis and hockey sticks. A died on the spot. B pleaded ‗right of private defence‘. Will he
succeed in availing this defence? Give your answer citing relevant legal provisions and case law
Answer – B has committed murder. Here Melon Case is relevant. Section 100 and Section 102 is applicable. There
was no reasonable apprehension of death. There was no continuation of right of private defence.
DU LL.B. 2019 - Question 5 - A, an enemy of B, pointed a toy pistol looking like real one, at B to scare him. B,
treating the pistol as real one, finds his life in danger and draws out a loaded pistol from his pocket and fires at B.
Consequently B dies on the spot. B is prosecuted for murder of A. B takes the defence that he killed A in exercise
of RPD as he did not know that the pistol of A was not real one but a toy. Will B succeed in his defence? Decide
with reference to relevant provisions and case laws.
Answer – Yes. There was reasonable apprehension of death. B will get benefit of Section 100.

190
(b) There must be reasonable apprehension of causing death. Every apprehension is not
sufficient. For causing of death in exercise of right of private defence, apprehension must be
based on reason.
(c) There must be only one conclusion and that conclusion must be death.
Death may be caused by a person who is not competent to commit an offence, for example,
person coming under sections 82, 83, 84 and 85. Even death of incompetent person may be
caused in private defence. Death may also come under sections 299, 300, 304A and 304 B. Even
the public servant is about to cause death, death of public servant or person acting on the
direction of public servant may also be caused.246
Death
By act which comes

By act
under 'Offence'
By incompetent person or By competent person and

justified act [Section 98] not justified
Amjad Khan v. State247 (1952) (Golden Scales) (Reasonable apprehension) - A communal

riot broke out at Katni on the 5th of March 1950, between some Sindhi refugees resident in
the town and the local Muslims. It was enough that the mob had actually broken into another
part of the house and looted it, that the woman and children of his family fled to the appellant
(Amjad Khan) for protection in terror of their lives and that the mob was actually beating at
his own doors with their lathis and that Muslim shops had already been looted and Muslims
killed in the adjoining locality. These things cannot be weighed in too fine a set of scales or
in golden scales.
Accused was justified to use right to private defence because there reasonable
apprehension of his death and death of his family.
(2) Secondly (Grievous hurt) (Section 320)

―Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be
the consequence of such assault‖
According to Section 7, IPC, ‗Every expression which is explained in any part of this Code, is
used in every part of this Code in conformity with the explanation. Grievous hurt has been
defined under Section 320. If any person causes reasonable apprehension of grievous death,
245
Section 351. Assault. - Whoever makes any gesture, or any preparation intending or knowing it to be likely that
such gesture or preparation will cause any person present to apprehend that he who makes that gesture or
preparation is about to use criminal force to that person, is said to commit an assault.
246
Section 99, IPC.
247
AIR 1952 SC 165

191
person may cause death. Assault as defined under Section 351 denotes that there is no need to
wait for actual causing of grievous hurt.
(3) Thirdly (Rape) (Ss. 375 & 376)
―An assault with the intention of committing rape‖
Yeshwant Rao v. State of M.P.248 (1992) Minor daughter of the accused had gone to the
toilet on the rear side of the house. The deceased gripped her and had sexual intercourse with
her. The accused seeing his minor girl being raped by the deceased hit the deceased with a
spade. Daughter was minor so her consent was immaterial and act of the deceased would
amount to committing rape under section 376 and hence the father in defence of the body of
his daughter was justified in exercising his right of private defence.
(4) Fourthly (Unnatural lust) (Section 377)

―An assault with the intention of gratifying unnatural lust.‖
(5) Fifthly (Kidnapping or abducting) (Sections 359 and 362)
―An assault with the intention of kidnapping or abducting‖
Vishwa Nath v. State of U.P.249 (1959)
[Right of Private Defence in case of abduction rather than kidnapping]
The accused‘s sister was staying with her father and brother (accused) because she did not
want to live with her husband. Husband, with three others, went to the quarter of wife‘s father
and he went inside and came out dragging his reluctant wife behind him. She caught hold of
the door and husband started pulling her. At this brother shouted to his father that sister‘s
husband was adamant and thereupon his father replied that he should be beaten. The appellant
took out a knife from his pocket and stabbed once. The knife penetrated the heart of sister‘s
husband and he died.
The Court held that appellant had the right of private defence of person under the fifth clause
of s. 100 and did not cause more harm than was necessary. Supreme Court acquitted accused.
(6) Sixthly (Wrongfully confinement) (Section 340)

―An assault with the intention of wrongfully confining a person, under circumstances which
may reasonably cause him to apprehend that he will be unable to have recourse to the public
authorities for his release.‖
(7) Seventhly (Acid attack) (Ins. In 2013) (Ss. 326A and 326 B)
―An act of throwing or administering acid or an attempt to throw or administer acid
which may reasonably cause the apprehension that grievous hurt will otherwise be the
consequences of such act.‖
248
AIR 1992 SC 1683.
249
AIR 1960 SC 67. This case was decided on September 3, 1959.

192
Causing death or harm is allowed in RPD

Total 12 Circumstances
7 Circumstances in Section 100 [Body] 4

Circumstances 1 [Sec. 106]
Death in Section 103 Common
Grievous [Property]
Hurt
Theft
Rape
Unnatural Lust Robbery
Kidnapping/ Mischief
Abduction Criminal Tresspass
Wrongful confinement
Acid Attack
Balbir Singh Balwant Singh v. The State
Date of Judgment – March 20, 1959
Court - Punjab-Haryana High Court
Punjab-Haryana High Court observed -
There are four cardinal conditions must have existed before the taking of the life of a person is
justified on the plea of self- defence:
1. the accused must be free from fault in bringing about the encounter;
2. there must be present an impending peril to life or of great bodily harm, either real or so
apparent as to create honest belief of an existing necessity;
3. there must be no safe or reasonable ‗mode of escape by retreat‘ and
4. there must have been a necessity for taking life.
In this case doctrine ‗retreat to wall‘ was also discussed.
(5.4.6.) Section 101
Section 101 - When such right extends to causing any harm other than death. - If the offence
be not of any of the descriptions enumerated in the last preceding section, the right of private
defence of the body does not extend to the voluntary causing of death to the assailant, but does
extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant
of any harm other than death.
Combined reading of sections 100 and 101 denotes that in seven circumstances as mentioned in
section 100 either harm or death may be caused and in other cases only harm can be caused in
exercise of right of private defence. For example in the presence of reasonable apprehension of

193
rape, in exercise of right of private defence either harm or death may be caused. But in case of
reasonable apprehension of hurt, only harm can be caused. Causing death is not allowed because
offence of voluntary causing harm has not been mentioned in section 100.
Differences
1 Section 100 and 103 You can cause either death or any other harm
2 Section 101 and 104 Only harm can be caused. Causing death is not
allowed. If death is caused it will amount culpable
homicide under Section 300 Exception 2.
(5.4.7.) Section 102
Section 102 - Commencement and continuance of the right of private defence of the body -
The right of private defence of the body commences as soon as a reasonable apprehension of
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.
Section 102
Reasonable apprehension
Commencement Continuance
Golden Scales
In these following cases ‗Golden Scales‘ words were used -
1 March 20, 1952 Amjad Khan v. State

2 Dec. 11, 1972 Deo Narain v. State of U.P.
3 March 26, 1991 Buta Singh v. State of Punjab
4 Dec. 16, 2003 James Martin v. State of Kerala
In the case of Amjad Khan v. State (March 20, 1952) Supreme Court said that these things
cannot be weighed in too fine a set of scales or in golden scales.

194
In the case of Deo Narain v. State of U.P. (1972 SC) Supreme Court said, ―…In such moments
of excitement or disturbed mental equilibrium it is difficult to expect parties facing grave
In the case of Buta Singh v. State of Punjab (1991 SC) he could not have weighed in golden
scales in the heat of the moment the number of injuries required to disarm his assailants who
were armed with lethal weapons.
In the case of James Martin v. State of Kerala (2003) Supreme Court observed, ―a person who
is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and
in the heat of circumstances, the number of injuries required to disarm the assailants who were
armed with weapons. In moments of excitement and disturbed mental equilibrium it is often
difficult to expect the parties to preserve composure and use exactly only so much force in
retaliation commensurate with the danger apprehended to him where assault is imminent by use
of force, it would be lawful to repel the force in self-defence and the right of private-defence
commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically
viewed and not with high- powered spectacles or microscopes to detect slight or even marginal
overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided
in considering what happens on the spur of the moment on the spot and keeping in view normal
human reaction and conduct, where self-preservation is the paramount consideration.
But, if the fact situation shows that in the guise of self-preservation, what really has been done is
to assault the original aggressor, even after the cause of reasonable apprehension has
disappeared, the plea of right of private-defence can legitimately be negative‖.
(5.4.8.) Section 103
Section 103 -When the right of private defence of property extends to causing death.
The right of private defence of property extends, under the restrictions mentioned in section 99,
to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the
committing of which, or the attempting to commit which, occasions the exercise of the right, be
an offence of any of the descriptions hereinafter enumerated, namely:—
(1) First. - Robbery;
(2) Secondly. - House-breaking by night;
(3) Thirdly. - Mischief by fire committed on any building, tent or vessel, which building, tent
or vessel is used as a human dwelling, or as a place for the custody of property;
(4) Fourthly. - Theft, mischief, or house-trespass, under such circumstances as may
reasonably cause apprehension that death or grievous hurt will be the consequence, if
such right of private defence is not exercised.

195
Problem - ‗A‘ a man whose crop was frequently stolen, found ‗B‘ committing theft and gave
him some blows with a Lathi which resulted in his death. Is he justified in killing ‗B‘ in exercise
of right of private defence of property?
Solution – This matter will not covered under section 95 of IPC because he was frequently
stealing crops. There was no reasonable apprehension of death or grievous hurt. So matter will
not fall under section 103, Fourthly. He exceeded his right of private defence by casing death in
case of theft without reasonable apprehension of death or grievous hurt. This matter will come
under section 300 Exception 2 which deals exceeding of right of private defence. So he will be
liable for causing culpable homicide not amounting to murder. He will be punished under section
304, IPC.
Problem250 - ‗A‘ enters into the house of ‗B‘ with the intention to commit theft. ‗B‘ along with
Option –
(1) Culpable homicide not amounting to murder
(2) Murder
(3) Theft
(4) No offence as he acted in self –defence.
Solution - Murder. Right of private defence is not available against right of private defence. It is
also not available for stage manager.
This problem can be solved with the help of State of U.P. v. Ram Swarup which is known as
Melon Case decided by Supreme Court in 1974. In this case Supreme Court observed, ―The right
of private defence is a right of defence, not of retribution. It is available in face of imminent peril
to those who act in good faith and in no case the right be conceded to a person who stage-
manages a situation wherein the right can be used as a shield to justify an act of aggression. For
example if a person goes with a gun to kill another, the intended victim is entitled to act in self-
defence and if be so acts there is no right in the former to kill him in order to prevent him from
acting in self-defence.‖
From the ratio of Ram Swarup case, it can be concluded that ‗A‘ has committed murder.
(5.4.9.) Section 104
Section 104. When such right extends to causing any harm other than death-
If the offence, the committing of which, or the attempting to commit which occasions the
exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the
descriptions enumerated in the last preceding section, that right does not extend to the voluntary
250
UGC NET 2018 Dec. and UP J (Mains) 2019.

196
causing of death, but does extend, subject to the restrictions mentioned in section 99, to the
voluntary causing to the wrong-doer of any harm other than death.
Differences – There are following similarities between Sections 100 & 103, and Sections 101
and 104 -
1 Sections 100 and 103 You can cause ether death or any other harm
2 Sections 101 and 104 Only harm can be caused. Causing death is not
allowed. If death is caused it will amount to culpable
homicide under section 300 Exception 2.
(5.4.10.) Section 105
Section 105251 - Commencement and continuance of the right of private defence of

property-
I. First Para – Commencement- The right of private defence of property commences
when a reasonable apprehension of danger to the property commences.
II. Second Para – RPD in case of Theft- The right of private defence of property against
theft continues till the offender has effected his retreat with the property or either the
assistance of the public authorities is obtained, or the property has been recovered.
III. Third Para – RPD in case of robbery - The right of private defence of property against
robbery continues as long as the offender causes or attempts to cause to any person death
or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of
instant personal restraint continues.
IV. Fourth Para – RPD in case of criminal trespass or mischief - The right of private
defence of property against criminal trespass or mischief continues as long as the
offender continues in the commission of criminal trespass or mischief.
V. Fifth Para – RPD in case of house-breaking by night- The right of private defence of
property against house-breaking by night continues as long as the house-trespass which
has been begun by such house-breaking continues.
Continuance of RPD in case of TRMC
1 RPD in case of Theft (i) till the offender has effected his retreat with the property
(ii) till the assistance of the public authorities is obtained
(iii) till the property has been recovered.
2 RPD in case of Causes or attempts to cause death , hurt or criminal trespass
robbery instant death or of instant hurt or of instant personal restraint
3 RPD in case of Till the continuation of commission of criminal trespass or
251
UK (J) Mains 2016 , ( Regarding year I have some confusion. I appeared in this mains exam. It may be 2015).

197
criminal trespass or mischief

mischief
4 RPD in case of house- Till the continuation of house trespass
breaking by night
(5.4.11.) Section 106
Section 106. Right of private defence against deadly assault when there is risk of harm to
innocent person.—
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 of harm to an innocent person, his right of private defence extends to the running of
that risk.
Illustration
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his
right of private defence without firing on the mob, and he cannot fire without risk of harming
young children who are mingled with the mob. A commits no offence if by so firing he harms
any of the children.
TABLE OF CASES
S. No. Date of Judgments Name of Cases Remarks

1 March 20, 1952 Amjad Khan v. State
2 Sept. 3, 1959 Vishwa Nath v. State of U.P.
February 05, 1964 Gurdatta Mal v. State of U.P.
3 August 05, 1964 Kanwar Singh v. Delhi
Administration
4 Nov. 27, 1967 Munshi Ram and Others v. Delhi Need of right of
Administration private defence.
5 Dec. 11, 1972 Deo Narain v. State of U.P.
6 Nov. 19, 1973 Kishan v. State of M.P.252
7 May 2, 1974 State of U.P. v. Ram Swarup
8 March 26, 1991 Buta Singh v. State of Punjab
9 Dec. 16, 2003 James Martin v. State of Kerala
10 January 15, 2010 Darshan Singh v. State of Punjab Guidelines
252
AIR 1974 SC 244.

198
& Anr.
11 March 07, 2019 Sukumaran v. State Rep. By The He was acquitted
Inspector of Police
Deo Narain v. State of U.P.

Deo Narain v. State of U.P.253 was decided by Full Bench of Supreme Court consisted of
Hon‘ble Justice I.D. Dua, Hon‘ble Justice A. Alagiriswami and Hon‘ble Justice
C.A.Vaidyialingam on December 11, 1972. The Judgment of the Court was delivered by
Hon‘ble Justice I.D. Dua. Case approached through ‗Special Leave Petition‘. Following
statutory provisions were involved -
 Section 99 [Fourth Part -No more harm than it is necessary]
 Section 100 [First – Reasonable apprehension of causing death]
 Section 102 [Commencement & Continuance of RPD]
 Section 300, Exception 2 [Exceeding of RPD]
 Sections 302 r/w 149
Facts – There was some dispute with respect to the possession of certain plots of land in village
Baruara, Police Station Dildarnagar, District Ghazipur. There were several legal proceedings
between the rival parties with respect to both title and possession of the said plots. On September
17th, 1965 after 12 noon there was a clash between the party of the accused (Deo Narain) and the
party of the deceased (Chanderama). In this clash lathis and spear were used from both sides.
The blow of lathi was aimed at a vulnerable part like the head of Deo Narain. In consequence of
this, Deo Narain in exercise of his right of private defence inflicted a fatal spear injury on the
chest of the deceased causing death of Chanderama. All these things were going on in
excitement.
Deo Narain and Others were charged for offence committed under Section 302 r/w 149.
253
AIR 1973 SC473. Available at: https://main.sci.gov.in/judgment/judis/6644.pdf (Visited on February 8, 2021).

199
PIC OF SPEARS
Decision
Deo was Deo was

convicted Deo was acquitted
acquitted
Session Judge, Ghazipur

 The Sessions Judge came to the conclusion that the possession of the disputed plots of
land was undoubtedly with the accused persons.
 According to the trial court the deceased‘s party had actually gone to the plots in question
for the purpose of preventing the accused persons from cultivating and ploughing the said
land.
 Dev has exercised his right of private defence under Section 100 IPC
 Trial Court concluded that Dev Narain had not exceeded his RPD as limitation mentioned
under Section 99.
 Trial Court acquitted five accused including Deo Narayan of various charges including
the charge under ss. 302/149, I.P.C.
High Court, Allahabad

State of Uttar Pradesh filed appeal to the High Court against the judgment of Session Court.
Allahabad High Court observed following important points
 Deo Narain had exceeded his right of private defence. He had inflicted more harms than
it was necessary. He had violated limitations mentioned under Section 99, part fourth.
 He had committed offence under Section 300, Exception 2.
 Deo Narain was convicted for exceeding the right of private defence under Section 304.
 Reason of conviction - High Court observed that merely using of lathi did not justify for
using the spear. Right had been exceeded by Deo Narain in inflicting the spear injury on
the chest of Chandrama, deceased.
Supreme Court

200
Special Leave Petition [SLP] was filed before Supreme Court by Deo against judgment of
Allahabad High Court.
Issues –
 Who was an aggressor?
Answer – Deceased and his party members were aggressor. They went and tried to
dispossess Dev. This point was not discussed before Supreme Court. This fact was
accepted by Session Court and High Court.
 Had Deo Narayan exceeded his right of private defence?
Answer – No.
Supreme Court - Supreme Court said that High Court did not understand sections 100 and 102.
Supreme Court acquitted the accused on the ground that he had not exceeded his right and there
was reasonable apprehension of death.
Decision of Supreme Court – There are following points were observed by Supreme Court –
(1) Philosophy of Right of Private Defence - This right rests on the general principle that
where a crime is endeavored to be committed by force, it is lawful to repel that force in
self-defense.
(2) Imminent danger -The threat must reasonably give rise to the present and imminent and
not remote or distant danger. This right rests on the general principle that where a crime
is endeavored to be committed by force, it is lawful to repel that force in self defence.
Deo had used spear in self defence. Use of lathi at head was imminent danger.
(3) Golden Scales - ―….In such moments of excitement of disturbed mental equilibrium it is
somewhat difficult to expect parties facing grave aggression to coolly weigh, as if in
golden scales, and calmly determine with a composed mind as to what precise kind and
severity of blow would be legally sufficient for effectively meeting the unlawful
aggression.‖ At the time of fighting anyone cannot be expected to be calm and decide
how much force have to be used in self defence.
(4) Preventive Right - The right of private defence is available for protection against
apprehended unlawful aggression and not for punishing the aggressor for the offence
committed by him. It is a preventive and not punitive right. The right to punish for the
commission of offences vests in the State (which has a duty to maintain law and order)
and not in private individuals. Whatever Deo had done, he had done only to defend
himself.
(5) Section 102 & Imminent Danger - According to section 102, the right of private defence
of the body commences as soon as a reasonable apprehension of danger to the body arises
from an attempt or threat to commit the offence, though the offence may not have been
committed, and such right continues so long as such apprehension of danger to the body
continues. The threat, however, must reasonably give rise to the present and imminent,
and not remote or distant danger.

201
(6) Error of High Court regarding Section 102 - What the High Court really seems to have
missed is the provision of law embodied in Section 102, I.P.C. To say that the appellant
could only claim the right to use force after he had sustained a serious injury by an
aggressive wrongful assault is wrong interpretation of section 102.
(7) Section 99 [more harm than it is necessary] - 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.
Supreme Court said, ―If a blow with a lathi is aimed at a vulnerable part like the head it
cannot be laid down as a sound proposition of law that in such cases the victim is not
justified in using his spear in defending himself. In such moments of excitement or
disturbed mental equilibrium it is difficult to expect parties facing grave aggression to
coolly weigh, as if in golden scales, and calmly determine with a composed mind as to
what precise kind and severity of blow would be legally sufficient for effectively meeting
Ratios of this Case

1. The right of private defence is a preventive and not a punitive right.
2. Extent of RPD can‘t be measured with ‗Golden Scales‘ with composed mind.
3. The threat, however, must reasonably give rise to the present and imminent, and not
remote or distant danger.
4. Right of Private Defence rests on the general principle that where a crime is endeavored
to be committed by force, it is lawful to repel that force in self-defense.
Conclusion
 Deo has exercised his right of private defence.
 He had not exceeded his right of private defence.
 He was acquitted.
Kishan v. State of M.P.254 & 255

[Nov. 19, 1973]
Facts – There was dispute regarding use of bricks. There were four brothers- (1) Kishan (2)
Damrulal (3) Ganesh & (4) Har Charan.
254
AIR 1974 SC 244.
255
Available at: https://indiankanoon.org/doc/174989/ (Visited on February 14, 2021)

202
Four Brothers
Kishan Damrulal Ganesh Har Charan
He gave blow
on the head of He hold He hold He died
Bucha Bucha Bucha
Facts can be divided into four stages.

First stage of Facts - On May 4, 1968, Damrulal went to the house of Bucha. Bucha was
supervising foundation-digging near his house. Damrulal warned Bucha to abstain from using
bricks belonging to him. Bucha replied that he was using his own bricks. Then, there was an
exchange of hot words between them. Thereafter Damrulal left the place angrily after giving a
warning to Bucha that he would soon settle the score. The work was stopped at about 9 a.m. and
the labourers left the place.
Second Stage of Facts - Four brothers reached at the home of Bucha. Bucha was dragged out of
his house up to a nearly neem tree. There he was given a beating by fists and kicks by Kishan
and his three brothers.
Third Stage of Facts - Bucha contrived to extricate himself from their grip and picked up a
Khutai lying nearby. He gave three blows on the head of Har Charan with the Khutai. Har
Charan fell down on the ground and became unconscious.
Fourth Stage of Facts- Thereafter Kishan and his remaining two brothers, Ganesh and
Damrulal, caught hold of Bucha. The appellant snatched the Khutai from the hand of Bucha and
gave two or three blows on his head. Bucha fell down on the ground and became unconscious.
Later on Har Charan and Bucha died. Kishan, Damarula and Ganesh were prosecuted for causing
murder of Bucha.
Crux of Decision -
Decision
Kishan was convicted Kishan was convicted

Kishan was acquitted u/s 302 u/s 302
Session Court – Session Court acquitted Kishan and his brothers on the basis of exercise of right
of private defence.
High Court – High Court convicted them under Section 302, IPC. High Court held that they
were aggressor. High Court convicted
1. Kishan under Section 302 [Punishment for murder]

203
2. Ganesh under Section 323 [Punishment for voluntarily causing hurt]

3. Damrulal under Section 323 [Punishment for voluntarily causing hurt]
Supreme Court – Only Kishan went to Supreme Court. Supreme Court upheld decision of High
Court.
Supreme Court
There were following issues before Supreme Court –
1. Whether Kishan caused death of Bucha in the exercise of ‗Right of Private Defence‘?
Answer- No. From the very beginning, Kishan and his brothers were aggressors. Bucha
was exercising right of private defence. RPD is not available for aggressor. It is
preventive right rather than punitive right.256
2. Whether Kishan had exceeded his right of private defence?
Answer – No. This was not a matter of exceeding of RPD. From the very beginning, he
had no right of private defence. So, no question arises regarding exceeding of right of
private defence.
3. Whether Kishan had caused murder of Bucha?
Answer – Yes. Causing of death of Bucha by Kishan falls under Section 300 Thirdly.
Contentions of Appellant - Arguments of Kishan were that
1. He did in exercise of right of private defence.

2. [Alternative argument] His act of causing injury to Bucha falls not within Section 302 but
within Section 304 Part II, I.P.C.
Rejection of RPD – The Court rejected this argument on the basis that appellant along with his
three brothers, Ganesh, Damrulal and Har Charan went to the house of Bucha, pulled him out of
his house up to the neem tree and there subjected him to punching and kicking. So they were
aggressors. They took the law in their own hands.
Bucha contrived to escape from their grip, caught hold of the khutai and struck three blows on
the head of Har Charan. Bucha was then acting in exercise of the right of self-defence.
Therefore, he was not an aggressor. The appellant could not claim to have beaten Bucha in
exercise of the right of self-defence.
Rejection of Section 304 - Dr. S. N. Banerji, who did the autopsy on the dead body of Bucha
has deposed: With these injuries death was inevitable. This medical opinion clearly brings the
case of the appellant within the purview of Section 300, third clause. So the High Court is right
in convicting him under Section 302 I.P.C. The appeal is accordingly dismissed.
Crux of Decision –
 RPD was rejected.
 His act was covered under Section 300, thirdly.
256
Ratio of Deo Narain Case.

204
 He was convicted for murder under Section 302.
Conclusion - Right of Private defence is not available for aggressor.
State of U.P. v. Ram Swarup & Anr.257&258

[Melon Case]
Date of Judgment – May 2, 1974.

 Hon‘ble Justice Y.V. Chandrachud
 Hon‘ble Justice M. Hameedullah Beg
 Hon‘ble Justice V.R. Krishnaiyer
Author of Judgment - Hon‘ble Justice Y.V. Chandrachud [Yeshwant Vishnu Chandrachud259]
FACTS
First Stage of Facts [7.00 a.m.]- This is a case related to Subzi Mandi at Badaun, U.P. At about
7 a.m. on June 7, 1970 Ganga Ram is alleged to have gone to the market to purchase a basket of
melons. Sahib Datta Mal alias Munimji (Deceased) declined to sell it saying that it was already
marked for another customer.
257
AIR 1974 SC 1570.
258
259
Hon‘ble Justice Dhananjaya Yeshwant Chandrachud is son of Former CJI Yeshwant Vishnu Chandrachud.

205
Hot words followed during which Sahib Datta Mal alias Munimji (Deceased), asserting his
authority, said that he was the Thekedar of the market and his word was final. Offended by this
show of authority, Ganga Ram is alleged to have left in a huff.
Second Stage of Facts [8.00 a.m.]- An hour later Ganga Ram went back to the market with his
three sons, Ram Swarup, Somi and Subhash. Ganga Ram had a knife, Ram Swarup had a gun
and the two others carried lathis. They threw a challenge saying that they wanted to know whose
authority prevailed in the market. They advanced aggressively to the gaddi of the deceased who,
taken by surprise, attempted to rush in a neighbouring kothari. But that was much too late for
before he could retreat, Ram Swarup shot him dead at point-blank range.
Ganga Ram
[Knife]
Three sons
Subhash
Ram Swarup [Gun] Somi [Lathi]
[Lathi]
Prosecution of accused. Ganga Ram and his three sons, Ram Swarup, Somi and Subhash were
prosecuted in connection with that incident.
Session Court – The Learned Sessions Judge convicted Ram Swarup under section 302 and
sentenced him to death. Ganga Ram was convicted under section 302 read with section 34 and
was sentenced to imprisonment for life. The other two sons [Somi & Subhash] were acquitted of
all the charges.
High Court [October 13, 1971] - On appeal, the High Court of Allahabad acquitted Ram
Swarup and Ganga Ram and confirmed the acquittal of the other sons.
Supreme Court [May 2, 1974] – Ganga Ram was acquitted for murder. Ram Swarup was
convicted for murder. But his punishment from death sentence (Convicted by Session Court) was
converted into life imprisonment.
Conviction
There were four accused
Ram Swarup [D.S.] & Ganga Acquittal of Ram Ganga Ram was acquitted.
Ram [LI] were convicted u/s Swarup & Ganga Ram Swarup was convicted
302 Ram u/s 302. Punishment was LI.

206
Supreme Court
Special Leave Petition under Article 136 was filed by State Government to Supreme Court.
Issues before Supreme Court – There were following issues before Supreme Court –
1. Had Ram Swarup caused death of Munimji in exercise of RPD?
Answer – No. There was no right of private defence.
2. Had Ram Swarup exceeded RPD by causing of death of Munimji in exercise of RPD?
Answer - There was no right of private defence. So, no question arises regarding
exceeding of RPD.
3. Whether existence of RPD must be proved beyond reasonable doubts?
Answer – No. There is no need to prove beyond reasonable doubts. Preponderance of
probabilities in favour of existence of RPD will be sufficient.
4. Whether State of Uttar Pradesh had locus standi in such types of cases.
Answer – Yes.
RATIOS OF THE CASE
The Court observed following important points -
(1) No right for stage manager -―The right of private defence is a right of defence, not of
retribution. It is available in face of imminent peril to those who act in good faith and in
no case the right be conceded to a person who stage-manages a situation wherein the
right can be used as a shield to justify an act of aggression. For example if a person goes
with a gun to kill another, the intended victim is entitled to act in self-defence and if he so
acts there is no right in the former to kill him in order to prevent him from acting in self-
defence.‖
Evidently the accused went to the market with a preconceived design to pick up a quarrel.
(2) Burden of Prove over Prosecution - The burden which rests on the prosecution to
establish its case beyond reasonable doubt is neither neutralised nor shifted because the
accused pleads the right of private defence. The prosecution must discharge its initial
traditional burden to establish the complicity of the accused and until it does so, the
question whether the accused has acted in self defence or not does not arise.
(3) Burden of prove over accused - Section 105 of Indian Evidence Act is relevant for this.
In this case Supreme Court said that the right of private defence constitutes a general
exception to the offences defined in the Penal Code. The burden which rests on the
accused to prove the exception is not of the same rigour as the burden of the prosecution
to prove the charge beyond a reasonable doubt. It is enough for accused to show as in a
civil case that the preponderance of probabilities is in favour of his plea. It is
responsibility of the accused to prove that his act come under general exception of which
right of private defence is part.
Section 105, Indian Evidence Act
Section 105. Burden of proving that case of accused comes within exceptions - When a
person is accused of any offence, the burden of proving the existence of circumstances

207
bringing the case within any of the General Exceptions260 in the Indian Penal Code (45 of
1860), or within any special exception or proviso contained in any other part of the same
Code, or in any law defining the offence, is upon him, and the Court shall presume the
absence of such circumstances.
Burden of Prove
Civil Cases Criminal Cases
Exception
Rule [ It was also observed by Y.V.
Chandrachud in State v. Sanjay
Gandhi, 1978.
Beyond Preponderance of
Burden of Prove
Reasonable Burden of Prove probabilities in
over Prosecution
doubts over Accused case of Section
105, IEA, 1872
(4) Only for defence - The right of private defence is a right of defence, not of retribution.
(5) Retreat to wall – In this Case, Supreme Court observed, ―They themselves were the
lawless authors of the situation in which they found themselves and though the Common
Law doctrine of ―retreat to the wall‖ or ―retreat to the ditch‖ as expounded by Blackstone
has undergone modification and is not to be applied to cases where a victim, being in a
place where he has a right to be, is in face of a grave uninvited danger, yet, at least those
in fault must attempt to retreat unless the severity of the attack renders such a course
impossible. The exemption from retreat is generally available to the faultless alone‖.
(6) State Governments has locus standi - The locus standi of State Governments to file
appeals in this Court against judgments or orders rendered in criminal matters has been
recognised over the years for a valid reason namely, all crimes raise problems of law and
order and some raise issues of public disorder. The State Governments are entrusted with
the enforcement and execution of laws directed against prevention and punishment of
crimes. They have, therefore a vital stake in criminal matters. The objection that the State
Government has no locus standi to file the appeal must be rejected.
Reasons of Decisions
There were following reasons on the basis of which Ram Swarup was convicted for murder –
1. Ram Swarup and his father & brothers were aggressor.
2. Ram Swarup killed when Munimji was running away.
3. Ram Swarup shot him dead at point-blank range.
260
General Exception – Chapter IV [Sections 76 to 106].

208
4. Ram Swarup was not able to prove that his matters were covered under ‗General
Exceptions.
5. Right of Private Defence is not available for ‗stage manager‘.
Decision
Ram Swarup was convicted for murder under section 302. But his punishment from death
sentence (Convicted by Session Court) was converted into life imprisonment.
James Martin v. State of Kerala261
[Section 99 is Lakshman Rekha for RPD]
Date of Judgment – December 16, 2003

Division Bench –
 Hon‘ble Justice Doraiswamy Raju &
 Hon‘ble Justice Arijit Pasayat
Author of Judgment - Hon‘ble Justice Arijit Pasayat

Facts of Case
First Stage of Facts - There was Bharat Bandh on 15.3.1988 sponsored by some political
parties. James and his father Xavier had their residence, besides a bread factory and a flour mill
in the same compound in suburb of Kochi.
It was, however, said that their success in business was a matter of envy for Thomas Francis,
their neighbour, particularly who filed complaints to the local authorities against the conduct of
the mill and the factory and also filed a writ petition to get them closed down, but without
success.
It was alleged by Martin that he was the kingpin and that the incident was brought by him out of
hatred and deep animosity towards James and Xavier.
Second Stage of Facts –
261
2021).

209
The incident involved in this case took place at about 2.30 p.m. on 15.3.1988 when five young
men, the two deceased in this case, namely, Mohan and Basheer (deceased), and PW-1, PW-2
and PW-4, who were activists of the bandh, as followers of the political parties which organized
that bandh on that day, got into the flour mill of the Xavier. They unlawfully entered into
residence and pressurized for closing the operation of flour mill. Bandh activists who got into the
place by scaling over the locked gate and that their entry was unlawful too, besides intimidating
and assaulting worker (PW -15) and making them flee without shutting down the machines.
James on the instigation of his father Xavier fired at the bandh activists. Two activists died.
TRIAL - James Martin faced trial along with his father Xavier for alleged commission of
offences punishable under
 Sections 302, 307, 326 read with Section 34 and

 Section 326 read with Section 114 IPC and
 Sections 25(B) (1) of the Arms Act, 1959 and Sections 27 and 30 thereof.
Decisions
James and Xavier were James was convicted.

convicted James was acquitted.
Xavier was acquitted.
Session Court - Learned Sessions Judge found
 James Martin guilty of offences punishable under Sections 304 Part I, 326 and 324 IPC,
 while Xavier, father of James Martin, was found guilty of the offences punishable under
Section 304 Part I read with Section 34, 302 read with Sections 24, 324 IPC.
 They have exceeded right of private defence.
High Court –
 High Court approved the decision of Session Court regarding conviction of James
Martin. He had exceeded his right of private defence.
 Father of James Martin was given benefit of doubts and he was acquitted.
Supreme Court
Issue –
Whether James Martin killed two persons in the exercise of right of private defence?
Answer - Yes. He killed in the exercise of right of private defence. There was imminent threat to
body and property.
Decision regarding facts

210
 The threat to life and property of the accused was not only imminent but did not cease,
and it continued unabated.
 Not only there were acts of vandalism, but also destruction of property. The High
Court noticed that explosive substances were used to destroy the properties of the
accused, but did not specifically answer the question as to whether destruction was prior
or subsequent to the shooting by the accused.
 The trial Court found that an unruly situation prevailed in the compound of the accused
as a result of the violence perpetrated by the bandh activists who got into the place by
scaling over the locked gate and that their entry was unlawful too, besides intimidating
and assaulting PW-15 (employee of accused) and making them flee without shutting
down the machines. The circumstances were also found to have necessitated a right of
private defence.
 Even the High Court, candidly found that tense situation was caused by the deceased and
his friends, that employee of deceased suffered violence and obviously there was the
threat of more violence to the person and properties, that the events taking place
generated a sort of frenzy and excitement rendering the situation explosive and beyond
compromise. Despite all these to expect the accused to remain calm or to observe greater
restraint in the teeth of the further facts found that the accused had only PW-15 who was
already manhandled though they were outnumbered by their opponents (the bandh
activists) and whose attitude was anything but peaceful would be not only too much to be
desired but being unreasonably harsh and uncharitable, merely carried away only by
considerations of sympathy for the lives lost, on taking a final account of what happened
ultimately after everything was over. In the circumstances, the inevitable conclusion is
that the acts done by the accused were in the reasonable limits of exercise of his right of
private defence and he was entitled to the protection afforded in law under Section 96
IPC.
Ratio of the Judgment

In this case Supreme Court observed following important points -
(1) Scheme of Right of Private Defence –

 Sections 96 and 98 give a right of private defence against certain offences and acts.
 Section 97 deals with the subject matter of right of private defence. The plea of right
comprises the body or property (i) of the person exercising the right; or (ii) of any other
person; and the right may be exercised in the case of any offence against the body, and in
the case of offences of theft, robbery, mischief or criminal trespass, and attempts of such
offences in relation to property.
 Section 99 lays down the limits of the right of private defence. The right given under
Sections 96 to 98 and 100 to 106 is controlled by Section 99.
 Sections 100 and 101, IPC define the limit and extent of right of private defence.

211
 Sections 102 and 105, IPC deal with commencement and continuance of the right of
private defence of body and property respectively.
(2) Self-preservation is prime instinct - Self-preservation is the prime instinct of every
human being. The right of private defence is a recognized right in every criminal law.
Section 96 of IPC also recognize this right.
(3) Lakshman Rekha –Section 99, IPC denotes ‗Lakshman Rekha‘. Here ‗Lakshman Rekha‘
means boundary beyond which you cannot go. It means right of private defence is not
absolute right. It is subject to restrictions mentioned under section 99, IPC.
(4) Number of Injuries -The number of injuries is not always a safe criterion for determining
who the aggressor was.
(5) Consideration of entire facts - In order to find whether the right of private defence is
available to an accused, the entire incident must be examined with care and viewed in its
proper setting.
(6) Social purpose –The right of self-defence is a very valuable right, serving a social
purpose and should not be construed narrowly.
(7) Criteria to determine availability of right of Private Defence - In order to find whether
right of private defence is available or not, (i) the injuries received by the accused, (ii) the
imminence of threat to his safety, (iii) the injuries caused by the accused and (iv) the
circumstances whether the accused had time to have recourse to public authorities are all
relevant factors to be considered.
(8) Defensive right -The right of private defence is essentially a defensive right
circumscribed by the governing statute i.e. the IPC, available only when the
circumstances clearly justify it. It should not be allowed to be pleaded or availed as a
pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of
defense, not of retribution, expected to repel unlawful aggression and not as retaliatory
measure. While providing for exercise of the right, care has been taken in IPC not to
provide and has not devised a mechanism whereby an attack may be a pretence for
killing. A right to defend does not include a right to launch an offensive, particularly
when the need to defend no longer survived.
(9) Golden Scales and high- powered spectacles or microscopes – It is not possible to weigh
with golden scales whether circumstances exist to exercise right of private defence or not.
Such circumstances must not be viewed with high- powered spectacles or microscopes.
(10) Burden of prove –
 The accused need not prove the existence of the right of private defence beyond
reasonable doubt. It is enough for him to show as in a civil case that the preponderance
of probabilities is in favour of his plea.
 If the circumstances show that the right of private defence was legitimately exercised, it
is open to the Court to consider such a plea. In a given case the Court can consider it even
if the accused has not taken it, if the same is available to be considered from the material
on record.

212
 Under Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the
accused, who sets up the plea of self-defence, and, in the absence of proof, it is not
possible for the Court to presume the truth of the plea of self-defence. The Court shall
presume the absence of such circumstances. It is for the accused to place necessary
material on record either by him adducing positive evidence or by eliciting necessary
facts from the witnesses examined for the prosecution.
 An accused taking the plea of the right of private defence is not necessarily required to
call evidence; he can establish his plea by reference to circumstances transpiring from the
prosecution evidence itself.
(11) Hartal or Bandh do not authorize to violate the right of other person – Supreme
Court said, ―We part with the case it needs to be noted that in the name of Hartal or
Bandh or strike no person has any right to cause inconvenience to any other person or to
cause in any manner a threat or apprehension of risk to life, liberty, property of any
citizen or destruction of life and property, and the least any government or public
property‖.
(12) Advice to Government – Supreme Court said, ―It is high time that the authorities
concerned take serious note of this requirement while dealing with those who destroy
public property in the name of strike, hartal or bandh. Those who at times may have even
genuine demands to make should not lose sight of the overall situation eluding control
and reaching unmanageable bounds endangering life, liberty and property of citizens and
public, enabling anti-social forces to gain control resulting in all around destruction with
counterproductive results at the expense of public order and public peace. No person has
any right to destroy another‘s property in the guise of bandh or hartal or strike,
irrespective of the proclaimed reasonableness of the cause or the question whether there
is or was any legal sanction for the same‖.
Final Decision – The case at hand is one which led to the destruction of property and loss of
lives, because of irresponsible and illegal acts of some in the name of bandh or hartal or strike.
Unless those who organize can be confident of enforcing effective control over any possible turn
of events, they should think twice to hazard themselves into such risk prone ventures
endangering public peace and public order. The question whether bandh or hartal or strike has
any legal sanctity is of little consequence in such matters. All the more so when the days are
such where even law-enforcing authorities/those in power also precipitate to gain political
advantage at the risk and cost of their opponents. Unless such acts are controlled with iron
hands, innocent citizens are bound to suffer and they shall be the victims of the highhanded acts
of some fanatics with queer notions of democracy and freedom of speech or association. That
provides for no license to take law into their own hands. Any soft or lenient approach for such
offenders would be an affront to rule of law and challenge to public order and peace.‖
Supreme Court set aside the conviction and sentence.
Conclusion

213
There was reasonable apprehension of causing death. In the circumstances, the inevitable
conclusion is that the acts done by the accused were in the reasonable limits of exercise of his
right of private defence and he was entitled to the protection afforded in law under Section 96.
Supreme Court acquitted.
Amjad Khan v. The State262
Pic263
Date of Judgment: 20/03/1952

Bench: Division Bench
 Hon‘ble Justice Vivian Bose

 Hon‘ble Justice Saiyid Fazal Ali
Author of Judgment - Hon‘ble Justice Vivian Bose.
Facts
Facts of the case can be divided into three parts –
First Part -
 A communal riot broke out at Katni on the 5th of March, 1950, between some Sindhi
refugees resident in the town and the local Muslims.
 Muslim shops had already been looted and Muslims killed in the adjoining locality.
 A mob looted his brother‘s shop.
Second Part -
 The mob had actually broken into another part of the house and looted it, that the woman
and children of his family fled to Amjad Khan (the appellant) for protection in terror of
their lives and that the mob was actually beating at his own doors with their lathis.
262
AIR 1952 SC 165.
263
It is not real pic. It is only for understanding. This pic is from Pakistan.

214
Third Part -
 Amjad Khan fired two shots from his gun which caused the death of one Sindhi and
injured three other Sindhis.
Issue -
Whether Amzad Khan caused death and injuries in the exercise of right of private defence?
Answer – Yes. There was reasonable apprehension of causing of his death and his family
members.
High Court
High Court convicted Amjad Khan.
Supreme Court
Supreme Court observed following important points -
1. Supreme Court said that these things cannot be weighed in too fine a set of scales or in
golden scales. Accused was justified to use right to private defence because there
reasonable apprehension of his death and death of his family.
2. Actual injury is not necessary. Reasonable apprehension is sufficient.
3. It is evident that the appellant had no time to have recourse to the authorities. The
mob or crowd had already broken into one part of the building and was actually beating
on the doors of the other part.
4. Muslim shops had already been broken into and looted and Muslims killed in the rioting
at Zanda Chowk which preceded this, in our opinion, the High Court was wrong in
thinking that the appellant had to wait until the mob actually broke into his shop and
entered it.
5. Reasonable apprehension death and grievous hurt was sufficient.
6. High Court did not observe section 102 properly. Reasonable apprehension was
sufficient. Actual commission of death or grievous hurt was not necessary.
Remarks - Section 106 and Section 103 were not discussed. Supreme Court clearly accepted
that this case was also involved to Section 103, but it was confined itself to right to private
defence in case of body.
Supreme Court said, ―We have confined our attention to the right of private defence of the
person though in this case the question about the defence of property happens to be bound up
with it‖.
Conclusion
Amjad Khan was acquitted.
Darshan Singh v. State of Punjab & Anr. 264

[Date of Judgment: January 15, 2010]
264
(2010) 2 SCC 333. AIR 2010 SC 1212. Available at: https://indiankanoon.org/doc/1748156/ (Visited on January
23, 2022).

215
Fact and Decision - The facts were rather typical of cases where private defence was pleaded in
answer to a murder charge. The appellant‘s father and the deceased were brothers who had a
dispute over rights to land. In the course of a confrontation involving weapons, the appellant shot
and killed the deceased, claiming that he had done so because the deceased was advancing
towards him with a gandasa which he had just used to strike the appellant‘s father on the head.
The trial court had acquitted the appellant on the basis of Section 100 of the IPC which
exculpates an accused for causing death to an assailant who had caused the accused to
reasonably apprehend that death or grievous hurt would otherwise be the consequence of such
assault. The High Court on appeal reversed the judgment of acquittal, which was reinstated by
the Court upon finding that the High Court had not properly comprehended the entire evidence
on record.
Ratio -
In Darshan Singh v. State of Punjab & Anr. Supreme Court discussed many landmark judgments
and many important point. The Court also laid down ten principles. These important points and
principles are following –
(1) Rejection of ‗Retreat to the Wall‘ Doctrine – In this case Supreme Court cited Russel.
Russel observed ―….. a man is justified in resisting by force anyone who manifestly intends and
endeavours by violence or surprise to commit a known felony against either his person,
habitation or property. In these cases he is not obliged to retreat, and may not merely resist the
attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a
conflict between them he happens to kill his attacker, such killing is justifiable.‖265 & 266
In Darshan Singh v. State of Punjab & Anr.267 Supreme Court observed, ―When enacting
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. The
right of private defence is thus designed to serve a social purpose and deserves to be fostered
within the prescribed limits‖.268
The Indian Penal Code defines homicide in self-defence as a form of substantive right, and
therefore, save and except the restrictions imposed on the right of the Code itself, it seems that
the special rule of English Law as to the duty of retreating wall have no application to this
country where there is a real need for defending oneself against deadly assaults.269
(2) RPD is substantive right - The Indian Penal Code defines homicide in self-defence as a
form of substantive right. Right of private defence of person and property is recognized in all
free, civilized, democratic societies within certain reasonable limits.
265
J. Russell, Russell on Crime, vol.-I 491 (J.W.C. Turner ed., 1958).
266
This statement was cited on Darshan Singh v. State of Punjab & Anr. (2010) 2 SCC 333. AIR 2010 SC 1212.
267
(2010) 2 SCC 333. AIR 2010 SC 1212.
268
269
Para 28 of the Judgment.

216
(3) Right to protect other‘s body and property - The duty of protecting the person and
property of others is a duty which man owes to society of which he is a member and the
preservation of which is both his interest and duty. It is, indeed, a duty which flows from human
sympathy.
As Bentham said: ―It is a noble movement of the heart, that indignation which kindles at the sight
of the feeble injured by the strong. It is noble movement which makes us forget our danger at the
first cry of distress….. It concerns the public safety that every honest man should consider
himself as the natural protector of every other.‖ But such protection must not be extended
beyond the necessities of the case, otherwise it will encourage a spirit or lawlessness and
disorder. The right has, therefore, been restricted to offences against the human body and those
relating to aggression on property.
(4) Ten Principles -

Ten Principles were laid down in this case. These principles were cited in subsequent cases. 270
Supreme Court laid down the following principles after analyzing Sections 96 to 106 IPC which
read as under:
I. Human instinct and Recognised by all civilized countries - Self-preservation is the
basic human instinct and is duly recognised by the criminal jurisprudence of all civilized
countries. All free, democratic and civilized countries recognise the right of private
defence within certain reasonable limits.
II. Available for sudden confrontation, not available for self-creation- The right of
private defence is available only to one who is suddenly confronted with the necessity
of averting an impending danger and not of self-creation.
III. Reasonable apprehension is enough - A mere reasonable apprehension is enough to put
the right of self-defence 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
defence. 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 defence is not exercised.
IV. Commencement – The right of private defence commences as soon as a reasonable
apprehension arises and it is coterminous with the duration of such apprehension.
V. Arithmetical exactitude - It is unrealistic to expect a person under assault to modulate
his defence step by step with any arithmetical exactitude.
VI. disproportionate force is not allowed -In private defence the force used by the accused
ought not to be wholly disproportionate or much greater than necessary for
protection of the person or property.
VII. Plea of Self-defence - It is well settled that even if the accused does not plead
self-defence, it is open to consider such a plea if the same arises from the material on
record.
VIII. No need of beyond reasonable doubt - The accused need not prove the existence of the
right of private defence beyond reasonable doubt.
IX. It is available only case of offence [Please also read Section 98]- The Penal Code
confers the right of private defence only when that unlawful or wrongful act is an
offence.
270
Sukumaran v. State Rep. By The Inspector of Police [March 07, 2019].

217
X. Causing Death - A person who is in imminent and reasonable danger of losing his life or
limb may in exercise of self-defence inflict any harm even extending to death on his
assailant either when the assault is attempted or directly threatened.
Criticism of Darshan Singh Judgment271 -
Sukumaran v. State Rep. By The Inspector of Police

[March 07, 2019]
In this case, accused was acquitted. Supreme Court applied test laid down Darshan Singh v.
State of Punjab & Anr.
(5.6) BURDEN OF PROOF
Accused can get benefit of right of private defence by merely proving facts by ‗Preponderance of
probabilities‘.
May 2, 1974 State of U.P v. Ram Swarup272
Nov. 24, 1978 Salim Zia v. State of U.P.
Dec. 16, 2003 James Martin v. State of Kerala
Section 105 of Indian Evidence Act, 1872 is relevant for this. In State of U.P. v. Ram Swarup273
victim had started to run away. He was shot dead. In this case Supreme Court said that the right
of private defence constitutes a general exception to the offences defined in the Penal Code. The
burden which rests on the accused to prove the exception is not of the same rigour as the burden
of the prosecution to prove the charge beyond a reasonable doubt. It is enough for accused to
show as in a civil case that the preponderance of probabilities is in favour of his plea.
In Salim Zia v. State of U.P. (1978) Supreme Court observed, ―It is true that the burden on all
accused person to establish the plea of self defence is not as onerous as the one which lies on the
prosecution and that while the prosecution is required to prove its case beyond reasonable doubt,
the accused need not establish the plea to the hilt and may discharge his onus by establishing a
mere preponderance of probabilities either by laying a basis for that plea in the cross-
examination of prosecution witnesses or by adducing defence evidence‖.
Same view was expressed by Supreme Court in the case of James Martin v. State of Kerala
(2003).
(5.7.) Doctrine of ―Retreat To The Wall‖ & ―Stand Your Ground‖
271
Available at: https://docs.manupatra.in/newsline/articles/Upload/F8554227-6F78-41E7-AAFC-
09BC410EE4EA.pdf (Visited on January 24, 2022).
272
273
AIR 1974 SC 1570.

218
Common Law doctrine of ―retreat to the wall‖ or ―retreat to the ditch‖ was expounded by
Blackstone.
Doctrines ‗Retreat to the wall‘ or ―Stand Your Ground‖ [No Retreat
related to RPD ‗Retreat to the ditch‘ Doctrine]274
Problem -1275 - A was under attack from B. A had ample opportunity to save himself by fleeing
away but instead ‗A‘ defended himself and thereby caused harm to B. Is it a valid exercise of the
right of private defence?
Solution 1– Answer of this depends upon application of doctrines. If different doctrine will be
applicable, different answer will come.
 If ‗Retreat to the wall‘ is applied A is not entitled for RPD. A had committed an offence.
 If ―Stand Your Ground‖ is applied, A is entitled for RPD. A had not committed any
offence
‗Retreat to the wall‘ ―Stand Your Ground‖
A is not entitled for RPD. A A is entitled for RPD. A

has committed an offence has not committed any
offence
Problem -2276 - Discuss the relevance or otherwise of the concept of ‗retreat to the wall‘ in the
exercise of right of private defence. Someone is threatening you with imminent and deadly force.
You could safely retreat from the threat but you choose, instead, to stand your ground and meet
force with force. In doing so, you kill the aggressor. Are you guilty of murder?
Solution - In most of the States of United States of America, ―Stand Your Ground‖ doctrine is
followed. By statute, court rulings, or a combination of both, more than thirty states have
adopted a ―Stand Your Ground‖ (No Retreat) rule which bars the prosecution of people who use
deadly force against a deadly aggressor without first attempting to retreat, or offers such persons
a valid self-defense claim against a charge of criminal homicide. According to this doctrine, I am
not guilty of murder.
By contrast, a minority of states enforce a ―Retreat‖ requirement, or ―Duty to Retreat,‖ under
which a defendant may not successfully claim self-defense if the defendant could have safely
274
Available at: https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2841&context=facpubs (Visited on
February 9, 2021)
275
HJS 1999.
276
DJS 2014.

219
retreated, but did not, before using deadly force against a deadly attacker. According to this
doctrine, I am guilty of murder.
Balbir Singh Balwant Singh v. The State

Date of Judgment – March 20, 1959
Court - Punjab-Haryana High Court
In this Case, Punjab-Haryana High Court observed following important points –
1. Doctrine of ―Retreat to the Wall‖ - Life of an antagonist may not be taken if it can be
avoided by retreating, and if retreat is practicable consistently with one‘s safety. Where
there are two courses equally feasible, open to a person one leading to and the other from
the difficulty he must take the latter in order to rely on the right of self-defence, if he can
do so without adding to his peril. But where such a course is not possible because of
suddenness or fierceness of the attack, he is not obliged to retreat and in such a case he
might stand his ground and inflict counter blows.
2. Blackstone - The strict common law doctrine of ―Retreat to the Wall‖ or ―Retreat to the
Ditch‖ was thus expressed in the words of Blackstone - ―The party assaulted must,
therefore, flee as far as he conveniently can either by reason of some wall, ditch, or some
other impediment; or as far as the fierceness of the assault will permit him for it may be
so fierce as not to yield a step, without manifest danger of his life, or enormous bodily
harm; and then in his defence he may kill his assailant instantaneously. And, this is the
doctrine of universal justice, as well as of the municipal law.‖
3. Modification of Doctrine - This doctrine has undergone modification. A person attacked
in his own premises or where he has a legal right to be, is not bound to retreat. The
exemption from retreating is available to the fault less, but those in fault must retreat if
able to do so, there being a safe avenue of escape unless prevented by fierceness of the
attack.
State of U.P. v. Ram Swarup277

They themselves were the lawless authors of the situation in which they found themselves and
though the Common Law doctrine of ―retreat to the wall‖ or retreat to the ditch" as expounded
by Blackstone has undergone modification and is not to be applied to cases where a victim, being
in a place where he has a right to be, is in face of a grave uninvited danger, yet, at least those in
fault must attempt to retreat unless the severity of the attack renders such a course impossible.
The exemption from retreat is generally available to the faultless alone.
NO Retreat to wall
(1) Russel ―….. a man is justified in resisting by force anyone who manifestly intends and
endeavours by violence or surprise to commit a known felony against either his person,
habitation or property. In these cases he is not obliged to retreat, and may not merely resist the
277

220
attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a
conflict between them he happens to kill his attacker, such killing is justifiable.‖278 & 279
(2) In Darshan Singh v. State of Punjab & Anr.280 Supreme Court observed, ―When enacting
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. The right of private defence is thus designed to serve a social purpose and deserves to be
fostered within the prescribed limits‖.281
(3) Rejection of Doctrine ―Retreat to Wall‘ in express words (Para 28 of the Judgment) –
The Indian Penal Code defines homicide in self-defence as a form of substantive right, and
therefore, save and except the restrictions imposed on the right of the Code itself, it seems that
the special rule of English Law as to the duty of retreating wall have no application to this
country where there is a real need for defending oneself against deadly assaults.
------------------------------------------------------------------------------------------------------------
(5.8) Previous Year Question Paper
LL.B DU 2014. Question 4. (a) Due to breaking of communal riots between Community A and B.
Members of Community A caused loot, plunder and fire of the property belonging to members of
Community B. X, who was a member of Community B was also targeted. He tried to remain
within closed door, to save himself and his family. However, the mob reached and started
knocking at his door. Before the mob could enter, X fired from his licensed revolver and killed a
member out of the mob. Mr. X is charged of murder, however he pleads his right of Pvt. defence
against his charge. Can he do so? Give reasons.
Answer – This problem is based on sections 100, 102, 103, 105 & 106 and Amjad Khan v. State
(AIR 1952 SC 165). According to section 96 ―Nothing is an offence which is done in the
exercise of the right of private defence.‖ According to section 97 Firstly, every person has a
right, subject to the restrictions contained in section 99, to defend his own body, and the body of
any other person, against any offence affecting the human body. According to Section 102 the
right of private defence of the body commences as soon as a reasonable apprehension of danger
278
J. Russell, Russell on Crime, vol.-I 491 (J.W.C. Turner ed., 1958).
279
This statement was cited on Darshan Singh v. State of Punjab & Anr. (2010) 2 SCC 333. AIR 2010 SC 1212.
280
(2010) 2 SCC 333. AIR 2010 SC 1212.
281

221
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. Under section 100, there are seven circumstances when a person may either cause
death or any other harm. According to section 100 Firstly if there is an assault which reasonably
cause the apprehension that death will otherwise be the consequence of such assault then victim
may cause death.
Amjad Khan v. State (Golden Scales) (Reasonable apprehension) - A communal riot broke out
at Katni on the 5th of March, 1950, between some Sindhi refugees resident in the town and the
local Muslims. It was enough that the mob had actually broken into another part of the house and
looted it, that the woman and children of his family fled to the appellant (Amjad Khan) for
protection in terror of their lives and that the mob was actually beating at his own doors with
their lathis and that Muslim shops had already been looted and Muslims killed in the adjoining
locality. Supreme Court said that these things cannot be weighed in too fine a set of scales or in
golden scales. Accused was justified to use right to private defence because there was reasonable
apprehension of his death and death of his family.
Co-relation between Law and problem – In these problem rioters had already caused loot,
plunder and fire of the property belonging to members of Community B. X was also member of
community B. X was also targeted. He tried to remain within closed door, to save himself and his
family. However, the mob reached and started knocking at his door. It was reasonable
apprehension of death of X and his family (Section 100 Firstly). After reasonable apprehension
of danger to the body arises from an attempt or threat to commit the offence though the offence
may not have been committed. X was justified to use right of private defence (Section 102).
Although mob had not entered into the house but knocking the door was sufficient for
commencement of right to private defence. In the Amjad Khan Case Supreme Court said that it is
not possible to weight reasonable apprehension with golden scales.
Conclusion - Killing of member of mob by X is justified on the basis of sections 100 and 102
and Amjad Khan Case. According to section 96 nothing is an offence which is done in the
exercise of the right of private defence. So X has not committed any offence. X will succeed to
defend himself on the basis of right to private defence.
Question 4 (b)
Discuss statutory limitations on the exercise of Right of Pvt. defence as laid down in Indian
Penal Code.
Answer – If there is right then question arises about limitations on the right. In absence of right
no question arises any types of limitation. According to section 97 right to private defence can be
exercised subject to restrictions mentioned in section 99.
Section 99 (Acts against which there is no right of private defence)
Section 99 may be divided into four parts.
First part deals that when right of private defence is not available against public servant.
According to this parts if conditions mentioned in this part are not being fulfilled then right of

222
private defence is also available even against public servant. For example if there is reasonable
apprehension that police is about to kill then other person has right to kill that person. But this
right is not available for stage manager. If you have created such circumstances in which police
is about to kill you in his self defence and in counter you kill him then right to private defence is
not available for you. Second part covers those matters which had been done on the direction of
public servant. Third part covers those matters in which person has time to recourse protection
of public authorities. Fourth part deals that this right must not be used to take revenge. It must
be used only for the purpose of protection.
(1) Public Servant

There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by a public
servant acting in good faith under colour of his office, though that act, may not be
strictly justifiable by law.
Explanation 1 - A person is not deprived of the right of private defence against an act
done, or attempted to be done, by a public servant, as such, unless he knows or has
reason to believe, that the person doing the act is such public servant.
Kanwar Singh v. Delhi Administration (1965 SC)- A raiding party possessing authority
u/s 418, Delhi Municipal Corporation Act seized the stray cattle belonging to the
accused. The accused resisted the seizure of the cattle and inflicted injuries on the raiding
party. Since the raiding party were public servants discharging their lawful duties, they
were justified in law to seize the cattle, no right of private defence was available to the
accused. He was convicted.
(2) Person acting on the direction of public servant
There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, 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.
Explanation 2 — A person is not deprived of the right of private defence against an act
done, or attempted to be done, by the direction of a public servant, unless he knows, or
has reason to believe, that the person doing the act is acting by such direction, or unless
such person states the authority under which he acts, or if he has authority in writing,
unless he produces such authority, if demanded.
(3) Time for recourse to the protection of the public authorities
There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities.
Gurdatta Mal v. State of U.P. (1965 SC)- There was a land dispute between the accused
and the deceased. There was prolonged civil litigation wherein the deceased had
established his right of title and physical possession of the property. He went along with
his men to harvest the crop with police protection. In such a situation, it was held that the

223
accused had ample time to have recourse to authorities and had no right to assault the
deceased to claim possession of the properties. Hence they had no right of private
defence.
Right of self defence of either body or property can only be at the time when there is
imminent danger or harm.
(4) Extent to which the right may be exercised.
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.
Deo Narain v. State of U.P. (1972 SC)
Supreme Court said, ―If a blow with a lathi is aimed at a vulnerable part like the head it
cannot be laid down as a sound proposition of law that in such cases the victim is not
justified in using his spear in defending himself. In such moments of excitement or
disturbed mental equilibrium it is difficult to expect parties facing grave aggression to
coolly weigh, as if in golden scales, and calmly determine with a composed mind as to
what precise kind and severity of blow would be legally sufficient for effectively meeting
DU LLB 2018
Question (1) (b)
‗A‘ a man whose crop was frequently stolen, found ‗B‘ committing theft and gave him some
blows with a Lathi which resulted in his death. Is he justified in killing ‗B‘ in exercise of right of
private defence of property?
Answer – He exceeded his right of private defence. Section 103, sections 300 Exception 2.
Question 1- General exceptions are laid down in the Indian Penal Code in
a. Chapter VI
b. Chapter VIII
c. Chapter IV
d. Chapter IV and VI
Answer – c. Chapter IV
Question 2- Chapter IV covers –
(1) Sections 76 to 106

(3) Section 95 to 106
Answer – (1)

224
Question 3 - Which provisions deals rights of private defence –

(3) Section 95 to 106
Answer – (4)
Question 4- No right of private defence is available against the offence of
i. Criminal breach of trust

ii. Theft
iii. Robbery
iv. Criminal Trespass.
Answer -(i) Criminal breach of trust. Explanation- Section 97 Secondly.
Question 5 – Match the items of List I (Name of Cases) with the items of List II (Offence) and
choose the correct answer from the code given below –
List I List II
(a) Vishwanath v. State of U.P. (i) Kidnapping
(b) State of Punjab v. Major Singh (ii) Private defence
(c) S.Varadarajan v. State of Madras (iii) Modesty of women
(d) Amar Singh v. State of Rajasthan (iv) Dowry Death
Options
(1) (a)ii (b) iii (c) iv (d) i

(2) (a) iv(b) ii (c) i (d) iii
(3) (a) ii(b) iii (c) i (d)iv
(4) (a)iv (b) ii (c) iii (d) i
Answer – (3) (a) ii(b) iii (c) i (d)iv

List I List II
(a) Vishwanath v. State of U.P. (ii) Private defence
(b) State of Punjab v. Major Singh (iii) Modesty of women
(c) S.Varadarajan v. State of Madras (i) Kidnapping
Question 6 – ―The right of private defence of the body commences as soon as a reasonable
apprehension of danger to the body arises and continues so long as such apprehension of danger
continues.‖ This observation was made by the Supreme Court in:
Option

225
(1) Ranga Billa v. Union of India

(2) State of Punjab v. Nanak Chand
(3) Deo Narain v. State of U.P.
(4) Ram Swarup v. State of U.P.
Answer – (3) Deo Narain v. State of U.P. 1972.

(1) Criminal breach of trust
(2) Theft
(3) Robbery
(4) Criminal Trespass.
Answer – (1)
Question 8- ―The right of private defence is a preventive and not a punitive right. In case of
the unlawful aggression.‖ This was said in case of
(1) Amjad Khan v. State

(2) Vishwa Nath v. State of U.P.
(3) Deo Narain v. State of U.P.
(4) State of U.P. v. Ram Swarup
Answer – (3)
Question 9 The right to private defence against an act done by a public servant is available:
(1) When it is discharged in good faith

(2) When it is attempted to be done by him
(3) When it was done while he was not in colour of his office
(4) When it is strictly to be justifiable by law
Answer – (3)
Questions 10.In which of the following offence right of private defence is available?
(a) Criminal breach of trust Robbery, Mischief & Criminal Trespass

(b) Theft, Robbery, Mischief & Criminal Trespass
(c) Cheating, Theft, Robbery & Mischief
(d) Criminal Misappropriation, Criminal Trespass, Theft & Robbery,
Answer – (b)
Question 11-―The right of private defence is a preventive and not a punitive right. In case of

226
(a) Amjad Khan v. State

(b) VishwaNath v. State of U.P.
(c) DeoNarain v. State of U.P.
(d) State of U.P. v. Ram Swarup
Answer – (c)
Question 12 - In which case it was observed, ―Self-preservation is the prime instinct of every
human being..…Section 99, IPC denotes ‗Lakshman Rekha….. The right of self-defence is a
very valuable right, serving a social purpose and should not be construed narrowly…It is not
possible to weigh with golden scales whether circumstances exist to exercise right of private
defence or not. Such circumstances must not be viewed with high- powered spectacles or
microscopes‘‖
a) DeoNarain v. State of U.P.

b) James Martin v. State of Kerala
c) State of U.P. v. Ram Swarup
d) Amjad Khan v. State
Answer- (b)
Question 13 –There are 12 circumstances when death may be caused in exercise of right of
private defence. Which of the following pair is correct?
(a) Section 100 (6 circumstances), Sec. 103 (4 circumstances) and Sec. 106 (One)
(b) Section 100 (7 circumstances) and Sec.103 (4 circumstances) and Sec. 106 (One)
(c) Section 100 (7 circumstances) and 104 (4 circumstances) and Sec. 106 (One)
(d) Section 99 (7 circumstances) and 103 (4 circumstances) and Sec. 106 (One)
Answer- (b)
Question 14–When right of private defence is not available against public servant?
(a) Anact reasonably causes the apprehension of death

(b) Anact reasonably causes the apprehension of grievous hurt
(c) He is not acting in good faith
(d) He is acting under colour of his office
Answer- d.

227
Question 15-Nephews of ‗A‘ was illegally arrested. A went to police Station and asked why
have you arrested my nephews? Police asked, ―Who are you‖? He replied that he was uncle of
these and also student of Faculty of Law, University of Delhi. After listening this, they started to
beat brutally and they tried to gratify unnatural lust.
A in exercise of right of private defence
(a) had right to cause death

(b) had right either to cause death or other harm
(c) had no right either to cause death or other harm
(d) had right either to cause death or other harm under section 103, IPC
Answer- (b) had right either to cause death or other harm

Question 16 - Which of the following case is not related to right of private defence?
(a) Vishwanath v. State of U.P.

(b) YeshwantRao v. State of M.P.
(c) Amjad Khan v. State
(d) Fowler v. Padget
Answer-(d) Fowler v. Padget

Question 17 – A attempts to pull Z‘s nose. Z, in the exercise of the right of private defence, lays
hold of A to prevent him from doing so. A is moved to sudden and violent passion in
consequence, and kills Z.
(a) This is culpable homicide. A killed Z under grave and sudden and provocation.
(b) This is murder, inasmuch as the provocation was giving by a thing done in the exercise
of the right of private defence.
(c) This is culpable homicide because A cause death in sudden fight
(d) None of the above.
Answer –(b)
Question 18. Right to private defence is:
(1) available under all circumstances

(2) available where there is time to have the recourse to the protection of public authorities
(3) available where there is no time to have recourse to the protection of public authorities
(4) all of the above.
Answer. (3).
UGC NET 2018 Dec. and UP J (Mains) 2019

228
Question 13 (NET)
‗A‘ enters into the house of ‗B‘ with the intention to commit theft. ‗B‘ along with other members
of the family surrounded and attack ‗A‘ with wooden sticks. ‗A‘ finding his life in danger fires
with pistol causing death to ‗B‘. Here ‗A‘ has committed:
Option - (1) Culpable homicide not amounting to murder (2) Murder (3) Theft (4) No offence as
he acted in self –defence.
Answer - Murder. Right of private defence is not available against right of private defence. It is
also not available for stage manager.
Question no. 10 (b) (UP J, 2019)
This problem can be solved with the help of State of U.P. v. Ram Swarup which is known as
Melon Case decided by Supreme Court in 1974. In this case Supreme Court observed, ―The right
of private defence is a right of defence, not of retribution. It is available in face of imminent peril
to those who act in good faith and in no case the right be conceded to a person who stage-
manages a situation wherein the right can be used as a shield to justify an act of aggression. For
example if a person goes with a gun to kill another, the intended victim is entitled to act in self-
defence and if be so acts there is no right in the former to kill him in order to prevent him from
acting in self-defence.‖
From the ratio of Ram Swarup case, it can be concluded that ‗A‘ has committed murder.
Question 1 - ‗A‘ enters into the house of ‗B‘ with the intention to commit theft. ‗B‘ along with
Option –
(1) Culpable homicide not amounting to murder
(2) Murder
(3) Theft
(4) No offence as he acted in self –defence.
Answer – (2) Murder. Right of private defence is not available against right of private defence. It
is also not available for stage manager.
UGC NET (Nov. 2017)
Question 5. The right to private defence against an act done by a public servant is not available:
(1) When it is discharged in good faith

(2) When it is attempted to be done by him
(3) When it was done while he was not in his office
(4) When it is strictly to be justifiable by law
Answer (1) When it is discharged in good faith. Explanation – Section 99 of IPC.

229
Section 99 (Part 1) -There is no right of private defence against an act which does not reasonably
cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public
servant acting in good faith under colour of his office, though that act, may not be strictly
justifiable by law.
Question UPSC 2009

To whom, among the following, is the right of private defence, under Chapter IV of IPC is
available?
(1) Only to the defender being a preventive right.

(2) An aggressor, while facing action on the part of the defender which is excessive?
Select the correct answer using the code given below.

(a)1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2
Answer – (a)
Question UPSC 2008 –
What is the prime object of Criminal Law?
(a) To punish the forbidden conduct

(b) To protect public property
(c) To protect public and private property
(d) To protect public by maintenance of law and order
Answer- (d).
Previous Year Question Papers282
DU LL.B. 2011
Question 4 (a) – Explain the concept of right of private defence. State the circumstances in
which right of private defence of property extends to the causing of death of assailants.
Question 4 (b) – During a football match fight took place between members of two team. Mr. X
the member of team (A) received number of injuries. X shot at the assailant of opposite team (B),
however bullet hit an innocent person (T) a bystander killing her. In the prosecution case X took
right of private defence. Can he succeed?
DU LL.B. 2013
Question 8(a) - A‘s car hit B‘s scooter while taking a turn negligently. An argument ensued
between A and B. A slapped B. B left the place immediately and came back after 10 minutes
282
Question Papers of DU LL.B. Semester exams are available at: https://academichour.com/delhi-university-
faculty-of-law-llb-previous-year-questions.php (Visited on February 6, 2021).

230
along with his 10 friends and hit A with lathis and hockey sticks. A died on the spot. B pleaded
‗right of private defence‘. Will he succeed in availing this defence? Give your answer citing
relevant legal provisions and case law.
DU LL.B. 2014
Question 4 (a) - Due to breaking of communal riots between community A and B, members of
community A caused loot, plunder and fire of the property belonging to members of community
B. X, who was a member of community B was also targeted. He tried to remain within closed
door, to save himself and his family. However, the mob reached and started knocking at his door.
Before the mob could enter, X fired from his licensed revolver and killed a member out of the
mob. Mr. X is charged of murder, however he pleads his right of private defence against his
charge. Can he do so? Give reasons.
Question 4 (b) - Discuss statutory limitations on the exercise of right of private defence as laid
down in the Indian Penal Code.
DU LL.B. 2015
Question 2. (a)What are the circumstances wherein right of private defence of body extends to
voluntarily causing death?
Question 3(b) - A is attacked by Z, a person of unsound mind, who has a spear in his hand. In
order to protect himself, A strikes Z with a stick on his head, resulting in his death. During trial
A pleads the right of private defence. Decide, with the help of relevant legislative provision.
DU LL.B. 2018
Question (1) (b) - ‗A‘ a man whose crop was frequently stolen, found ‗B‘ committing theft and
gave him some blows with a Lathi which resulted in his death. Is he justified in killing ‗B‘ in
exercise of right of private defence of property?
Answer – A had right of private defence under Section 97 Secondly. But he had exceeded his
right of private defence. His acts came under section 99 Part 4. His act does not fall under
Section 103, Fourthly. He had exceeded his right of private defence. Matter comes under Section
300, Exception 2. He will be punished under Section 304, IPC.
This matter will also not come under Section 95. His crop was frequently stolen.
DU LL.B. 2019
Question 5 - A, an enemy of B, pointed a toy pistol looking like real one, at B to scare him. B,
the treating the pistol as real one, finds his life in danger and draws out a loaded pistol from his
pocket and fires at B. Consequently B dies on the spot. B is prosecuted for murder of A.
B takes the defence that he killed A in exercise of RPD as he did not know that the pistol of A
was not real one but a toy. Will B succeed in his defence? Decide with reference to relevant
provisions and case laws.
Answer – Yes. B is entitled for right of private defence.
QUESTION PAPERS OF JUDICIARY EXAMS

231
 HJS 1984 – Discuss fully the right of private defence of body.

 HJS 1999 –
 Mention the limits within which the right of private defence should be exercised.
 When does the right of private defence of property extends to the causing of
death?
 Does the right of private defence extends to risk of harm to innocent person?
Illustrate your answer.
 Question [JJS 2001] -- What is meant by the right of private defence and under what
circumstances this right to the body extends to causing death? Explain.
 HJS 1999 - The right of private defence is said to be a limited right. Explain the
limitations of the right of private defence.
 A was under attack from B. A had ample opportunity to save himself by fleeing away but
instead ‗A‘ defended himself and thereby caused harm to B. Is it a valid exercise of the
right of private defence?
DJS 2014
 Discuss the relevance or otherwise of the concept of ‗retreat to the wall‘ in the exercise of
right of private defence.
MP JS 2006
 A enters by night a house which he is legally entitled to enter. B, in good faith, taking A
for a house-breaker, attacks A. Whether A has right to private defence against B?
Uttar Pradesh {J}

1984
 The right of private defence extends under some circumstances the causing of death.
Explain the above statement with illustrations.
 A entered the house of B with the intention of committing theft. B and other members of
his family surrounded and attacked ‗A‘ with lathis. Finding his life in danger, A whipped
out a revolver and fired causing the death of B. Is a guilty of murder under Section 302 of
the IPC?
1987
 Explain the right of private defence in respect of body stating the circumstances when it
extends to causing to death of the aggressor.
1991
 Explain the right of private defence of body. Under what circumstances does it extend to
cause death?
1997
 Explain and illustrate the provisions of the right of private defence as embodied in the
IPC.

232
1999
 The right of private defence is not available for retaliation but for averting am impending
danger not of his creation.‖ Discuss and also state under what circumstances, a man can
go to the extent to killing in defence of his person.
2003
 Under what circumstances will causing of death be justified in the exercise of right of
private defence?
2012
 A entered the house of B with the intention of committing theft. B and other members of
his family surrounded and attacked ‗A‘ with lathis. Finding his life in danger, A whipped
out a revolver and fired causing the death of B. Explain what offence A has committed.
2013
 Discuss the limits within which the right of private defence may be exercised.
UGC NET 2018 Dec. and UP J (Mains) 2019

 ‗A‘ enters into the house of ‗B‘ with the intention to commit theft. ‗B‘ along with other
members of the family surrounded and attack ‗A‘ with wooden sticks. ‗A‘ finding his life
in danger fires with pistol causing death to ‗B‘. Here has ‗A‘ committed any offence?
Answer – Murder

233
UNIT: 6
KIDNAPPING & ABDUCTION

Krishna Murari Yadav
Law Centre -1, FOL,
University of Delhi, Delhi.
(6.1.) Introduction
‗Kidnapping‘ is combination of two words namely; kid and napping. Napping is American
word.283 Kid means child and napping means stealing.284 Kidnapping means stealing of child.
According to Section 359, there are two types of kidnapping.285 These are – (I) Kidnapping from
India: Section 360, and (II) Kidnapping from Lawful Guardianship: Section 361. Kidnapping
from lawful guardianship is possible only of those persons who are not competent to form
rational mind. For this purpose age of minor in case of male under 16 years of age and in case of
female under 18 years of age has been fixed.286 Age of person of unsound mind has not been
fixed. He can‘t give valid consent at any age. In this way kidnapping of minor and person of
unsound mind is possible. Law Commission of India in its 42nd Report [1971] suggested omitting
Section 359 and Section 360. It also suggested making equal age of male and female for the
purpose of kidnapping. According to suggestion of the Commission age for the purpose of
kidnapping must be age of 18 years for both. Section 363 deals punishment for kidnapping.
Section 361 is silent on the point of mens rea of the accused. Kidnapping comes under category
of strict liability. Intention of accused is immaterial. Intention of accused is not essential
ingredient of kidnapping.287 In R. v. Prince,288 accused was convicted even without guilty mind.
Kidnapping is substantive offence. But it is not continuing offence.
(6.2.) Section 359 & Section 360
Section 359 Kidnapping. - Kidnapping is of two kinds: kidnapping from India289, and
kidnapping from lawful guardianship.
283
Law Commission of India, 42nd Report, Para No.16.91 available at: http://lawcommissionofindia.nic.in/1-
50/Report42.pdf (Visited on October 3, 2018).
284
Law Commission of India, 42nd Report, Para No.16.91 (June 1971) available at:
http://lawcommissionofindia.nic.in/1-50/Report42.pdf (Visited on March 19, 2021).
285
Section 359. MP Civil Judge, 2002
286
MP Civil Judge, 1999
287
UPAPO 2002
288
L.R. 2 C.C.R. 154 (1875).
289
Section 18 r/w Section 1.

234
Kidnapping
Two types
[Section 359]
Kidnapping from Lawful

Kidnapping from
guardianship [Sections 361
India [Section 360]
& 363]
Section 360- Kidnapping from India.—
 Whoever conveys any person (Section11 r/w Section 7)
 beyond the limits of India (Sec. 18 r/w Section 1)
 without the consent (Section 90) of that person, or of some person legally authorised to
consent on behalf of that person,
is said to kidnap that person from India.
Comments
Law Commission of India suggested that there is slight difference between kidnapping from
India and abduction under Section 362. Law Commission suggested that Section 359 and Section
360 must be omitted.290 Reasoning of this was that kidnapping from India is not possible without
compulsion or inducement. This can be easily covered under kidnapping.
(6.3.) Section 361
Offence of Kidnapping for lawful guardianship is defined under Section 361 and Section 363
provides for punishment for kidnapping.291 In State of Haryana v. Raja Ram292 Supreme Court
observed that the object of section 361 seems as much to protect the minor children from being
seduced for improper purposes as to protect the rights and privileges of guardians having the
lawful charge or custody of their minor wards.
290
Law Commission of India, 42nd Report, Para No.16.91 (June 1971) available at:
http://lawcommissionofindia.nic.in/1-50/Report42.pdf (Visited on March 19, 2021).
291
Shaik Ahmed v. State of Telangana, Division Bench, Supreme Court, Date of Judgment: June 28, 2021.
Available at: https://main.sci.gov.in/supremecourt/2020/8048/8048_2020_36_1501_28087_Judgement_28-Jun-
2021.pdf (Visited on February 23, 2021). This is the landmark judgment on Section 364A, IPC, 1860.
292
(1973) 1 SCC 544. Date of Judgment: October 27, 1972.

235
Section 361 deals kidnapping from lawful guardianship. This Section can be divided into three
parts –
 Main part
 Explanation
 Exception
Section 361
Main Part Explanation Exception
Meaning of Meaning of Lawful Father doing act

kidnapping guardian in good faith
Section 361 - Kidnapping from lawful guardianship – Whoever takes or entices any minor
under sixteen years of age if a male, or under eighteen years of age if a female, or any person of
unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to kidnap such minor or person from lawful
guardianship.
Kidnapping
[Tea]
Without
Tea Person
consent
Person of of lawful
Takes Entices Minor
Unsound mind guardian
Male Female
[u/ 16 Yrs] [u/ 18 Yrs]
Explanation -The words ―lawful guardian‖ in this section include any person lawfully
entrusted with the care or custody (CC) of such minor or other person.
Exception –

236
Illegitimate Child - This section does not extend to the act of any person who in good faith
(Section 52) believes himself to be the father of an illegitimate child, or who in good faith
believes himself to be entitled to lawful custody of such child, unless such act is committed for
an immoral or unlawful purpose (I. U.P.).
Essential ingredients of Section 361

293
In State of Haryana v. Raja Ram Supreme Court observed, ―The gravamen of kidnapping
from lawful guardian lies in the taking or enticing of a minor under the ages specified in this
section, out of the keeping of the lawful guardian without the consent of such guardian. The
words ―takes or entices any minor out of the keeping of the lawful, guardian of such minor‖ in
Section 361, are significant‖.
There are following ingredients of Section 361 –
(1) There must be either taking or enticing.

(2) Kidnapping of subject matter is either minor or person of unsound mind.
(3) Such taking or enticing must be out of the keeping of the lawful guardian of such minor
or person of unsound mind,
(4) Such taking or enticing must be without the consent of such lawful guardian.
(1) Taking or enticing

Taking or enticing denotes actus reus of accused. Kidnapping may be committed either by taking
or enticing. In Thakorlal D. Vadgama v. State of Gujarat294 and Parkash v. State of Haryana295
Hon‘ble Supreme Court observed that the two words ―takes‖ and ―entices‖, as used in Section
361, I.P.C. are intended to be read together so that each takes to some extent its colour and
content from the other.
(i) Taking - In S. Varadarajan v. State of Madras296 Hon‘ble Supreme Court observed that the
mental attitude of the minor is not of relevance in the case of taking and that the word ―take‖
means to cause to go, to escort or to get into possession. But these observations have to be
understood in the context of the facts found in that case. It was further observed that there is a
distinction between ―taking‖ and allowing a minor to accompany a person.‖ In this case there
was no taking.
In Thakorlal D. Vadgama v. State of Gujarat297 Hon‘ble Supreme Court observed that the word
‗takes‘ in Section 361 I.P.C. does not necessarily connote taking by force and it is not confined
only to use of force, actual or constructive. This word merely means ―to cause to go‖, ―to escort‖
or ―to get into possession‖.
293
294
AIR 1973 SC 2313.
295
Date of Judgment: December 02, 2003. Available at: https://main.sci.gov.in/jonew/judis/25600.pdf (Visited on
February 22, 2022.
296 AIR 1965 SC 942.
297
AIR 1973 SC 2313.

237
In State of Haryana v. Raja Ram298 Supreme Court observed, ―It is not necessary that the taking
or enticing must be shown to have been by means of force or fraud. Persuasion by the accused
person which creates willingness on the part of the minor to be taken out of the keeping of the
lawful guardian would be sufficient to attract the section‖.
Difference between Taking and Allowing
In Biseswar Misra v. The King299 Orissa High Court observed, ―mere passive consent on the part
of person in giving shelter to the minor does not amount to taking or enticing of the minor...
but... actively bringing about of her stay in the house by playing upon her weak and hesitating
mind ...amounts to his taking the girl within the meaning of section 361, Penal Code.‖300
In S. Varadarajan v. State of Madras301 Hon‘ble Supreme Court observed that ‗taking‘ and
‗allowing a minor to accompany a person‘ are not synonymous. There are differences
between both. In this case ratio of Biseswar Misra v. The King302 was accepted. In this case
Supreme Court observed that there was no taking by S. Varadarajan. There was merely
allowing a minor to accompany a person.
(ii) Enticing - In Thakorilal D Vadgama v. State of Gujarat303 (Parker Pen Case) Supreme Court
observed that the word ―entice‖ means to involve the idea of inducement or allurement (IIIA) by
giving rise to hope or desire (HD)in the other. If the minor leaves her parental home, influenced
by any promise, offer or inducement emanating from the guilty party then the latter will be guilty
of an offence as defined in section 361 I.P.C, 1860.
(2) Minor or person of unsound mind
Kidnapping of subject matter is either minor or person of unsound mind. Here minor means
person under sixteen years of age if a male, or under eighteen years of age if a female. Meaning
of Person of unsound mind can be derived from Section 7 read with Section 84.
Law Commission of India in its 42nd Report suggested making equal age of male and female and
changing in Explanation of Section 361. It suggested 18 years of age for male and female both.
(3) Out of the keeping of lawful guardianship.
In State of Haryana v. Raja Ram304 (1972) Supreme Court observed, ―The use of the word
‗keeping‘ connotes the idea of charge, protection, maintenance and control; further, the
298
299
A.I.R. 1949 Or. 22.
300
P. Seshadri, ―The Concept of ―Taking‖ in Relation to the Offence of Kidnapping‖ 7 JILI 401 (October -
December 1965). Available at: https://www-jstor-org.du.remotlog.com/stable/pdf/43949856.pdf?refreqid=fastly-
default%3Aecc92e8ee162ba9da4fdfee17dcc5799&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=searc
h-results (Visited on February 22, 2022).
301
AIR 1965 SC 942.
302
A.I.R. 1949 Or. 22.
303
AIR 1973 SC 2313. Available at: https://indiankanoon.org/doc/934266/ (Visited on March 23, 2021).
304

238
guardian‘s charge and control are compatible with the independence of action and movement in
the minor, the guardian‘s protection and control of the minor being available, whenever necessity
arises. Ratio of State of Haryana v. Raja Ram305 was followed by Parkash v. State of
Haryana.306 Kidnapping of orphan is not possible. If he is in orphan home, kidnapping is
possible.
(4) Without consent of Lawful guardianship.
Explanation of Section 361 says ―The words ‗lawful guardian‘ in this section include any person
lawfully entrusted with the care or custody (CC) of such minor or other person. In State of
Haryana v. Raja Ram307 Supreme Court observed, ―The consent of the minor who is taken or
enticed is wholly immaterial; it is only the guardian‘s consent that would take a case out of the
purview of the section‖. In Anversinh @ Kiransinh Fatesinh Zala v. State of Gujarat308 Hon‘ble
Supreme Court observed that consent of the minor is immaterial for purposes of Section 361,
IPC. In this case the Court observed that minor is incapable to give valid consent. Consensual
love affair cannot by itself a defence against criminal charge of kidnapping minor girl. 309
Section 90. Consent known to be given under fear or misconception - A consent is not such a
consent as is intended by any section of this Code, if the consent is given by a person under fear
of injury, or under a misconception of fact, and if the person doing the act knows, or has reason
to believe, that the consent was given in consequence of such fear or misconception; or
Consent of insane person - if the consent is given by a person who, from unsoundness of mind,
or intoxication, is unable to understand the nature and consequence of that to which he gives his
consent; or
Consent of child. - unless the contrary appears from the context, if the consent is given by a
person who is under twelve years of age.

305
306
Date of Judgment: December 02, 2003. Available at: https://main.sci.gov.in/jonew/judis/25600.pdf (Visited on
February 22, 2022.
307
308
Date of Judgment: January 12, 2021. Available at:
https://main.sci.gov.in/supremecourt/2010/17003/17003_2010_32_1501_25373_Judgement_12-Jan-2021.pdf
(Visited on February 23, 2022).
309
Krishnadas Rajagopal, ‗Consensual love affair not a defence against criminal charge of kidnapping minor girl:
SC‘ The Hindu, January 15, 2021. Available at: https://www.thehindu.com/news/national/consensual-love-affair-
not-a-defence-against-criminal-charge-of-kidnapping-minor-girl-sc/article33582012.ece (Visited on February 22,
2022).

239
(6.4.) Differences between Kidnapping from India and Kidnapping from Lawful
Guardianship
There are following differences between kidnapping from India and kidnapping from lawful
guardianship -
S. No. Kidnapping from India Kidnapping from Lawful Guardianship
1. It requires ‗Conveys‘ It requires ‗Taking‘ or ‗Enticing‘
2. Any Person can be subject matter Only minor or person of unsound mind can be
of kidnapping from India. Here age subject matter of kidnapping from lawful
is immaterial. guardianship. Here minor means male under age
of 16 years and female under age of 18 years.
3. This kidnapping must be beyond This kidnapping must be out of lawful
the limits of India. guardianship
4. It must be without consent of Consent of subject matter is immaterial. But if it
subject matter. is done with consent of lawful guardian, there
will be no kidnapping from lawful guardianship.
5. Out of keeping of lawful Out of keeping of lawful guardianship has been
guardianship has not been mentioned. Kidnapping of orphan is not possible.
mentioned here. Kidnapping of If he is in orphan home, kidnapping is possible.
orphan from India is possible.
6. Law Commission of India in its Law Commission of India in its 42nd Report
42nd Report suggested deleting suggested keeping Section 361. But it was
Section 359 and Section 360. suggested that there must be 18 years of age for
male and female for both.
(6.5.) Differences between Kidnapping and Abduction
Kidnapping from lawful guardian and abduction have been defined under Section 361 and
Section 362310 respectively.
There are certain differences between abduction for the purpose of right of private defence and
abduction for the purpose of conviction. Vishwanath v. State of U.P.311 is landmark judgment on
the point of right of private defence as prescribed under Section 100 fifthly. In Vishwanath v.
State of U.P.312 Hon‘ble Supreme Court observed that for section 100 simple abduction is
310
Section 362 - Abduction–
(1) -Whoever by force compels, or by any deceitful means induces, (FCDI)
(2) any person
(3) to go from any place, is said to abduct that person.
311
AIR 1960 SC 67. Date of Judgment: September 03, 1959. Available at: https://indiankanoon.org/doc/1516689/
312
AIR 1960 SC 67

240
sufficient. No need of further object. Abduction per se is not an offence. Abduction pure and
simple is not an offence under IPC. Only abduction with certain intent is punishable as an
offence. Abduction is an offence only if it is done with intent to murder (S. 364), secretly and
wrongfully confine person (S. 365), induce women to compel her marriage (S. 366), Grievous
hurt, slavery etc. (S. 367) and steal from a person under 10 Years (S. 369).
Abduction is not substantive offence. It is continuing offence. There are following differences
between kidnapping and abduction –
S. N. Kidnapping from lawful Abduction

guardianship
1. Substantive Kidnapping is substantive Abduction is not a substantive offence.
offence offence. It is an offence under It is an offence only when it is done with
section 363. some other intent as given in sections
363A, 364,364A to 369. In Vishwanath
v. State of U.P.313 Hon‘ble Supreme
Court observed that abduction pure and
simple is not an offence under IPC. Only
abduction with certain object is
punishable as an offence.
2. Continuing Kidnapping is not continuing Abduction is a continuing offence and
offence offence. It is complete as soon as continues so long as the abducted person
the minor or person of unsound is moved from one place to another
mind is removed from lawful person.
guardianship.
3. Subject Kidnapping of Minor (Male -16 Abduction of any person is possible.
matter Years, Female -18 Years) or Abduction of minor, major or person of
Person of unsound mind is unsound mind is possible. Here age of
possible. subject matter is immaterial.
4. Means It requires TEA. [takes or entices It requires FCDI. [by force compels, or
employed any minor] by any deceitful means induces]
5. Consent of This kidnapping is possible only Abduction is possible only without
guardian without consent of lawful consent.
guardian. If consent had been
given by such lawful guardian,
such kidnapping is not possible.
6. Consent of Consent of minor or person of Free and voluntarily consent of the
subject matter unsound mind is immaterial. He person abducted condones abduction.
or she is not capable to give
consent.
313
AIR 1960 SC 67

241
7. Intention of Intention of the kidnapper is Intention of the abductor is an important

criminal immaterial for the offence. factor in determining guilt of the
accused.
8. Strict law It is part of Strict law. In the Indian context, it is not part of
When R. v. Prince was decided in strict liability. When R. v. Prince was
UK, at that time there was no decided in UK, at that time there was no
division of offences like division of offences like kidnapping and
kidnapping and abduction. There abduction. There was only abduction.
was only abduction.
9. Orphan It requires out of keeping of Abduction of orphan is possible.
Lawful Guardianship.
Kidnapping of orphan is not
possible.
There are following leading cases related to kidnapping -

(1) R. v. Prince [1875]
(2) S. Varadrajan v. State of Madras [1964]
(3) State of Haryana v. Raja Ram [1972]
(4) Thakorilal D Vadgama v. State of Gujarat [1973]
(5) Anversinh @ Kiransinh Fatesinh Zala v. State of Gujarat314 (2021)
(6.6.1.) R. v. Prince
315
R. v. Prince is landmark judgment on the point of abduction in England and kidnapping in
India. This case was decided by Justice Blackburn.
1861. This section was related to abduction. There was no any category of offence like
314
315
(1875) L.R. 2 C.C.R. 154
316

242
without permission of lawful guardian was an offence as abduction. ‗Kidnapping‘ was missing
from statutory provisions of British Law. It was proved that the prisoner took the girl whose age
was below the age of sixteen years from out of possession of lawful guardians without their
permission. Real age of girl was 14 years. Actus reus was present but mens rea was absent.
Accused proved that he took the girl who was looking like at age of 18 years and he took with
consent and after her replying that her age was 18 years. He did in good faith.
followed.
Remark – In the Indian context, it will come under the category of kidnapping.
(6.6.2.) S. Varadrajan v. State of Madras
S. Varadrajan v. State of Madras317 is leading case on the topic of kidnapping from lawful
guardianship decided by Full Bench of Hon‘ble Supreme Court on September 09, 1964. This
Bench was consisted of Hon‘ble Justices J.R. Mudholkar, K. Subbarao and M. Hidayatullah. The
judgment was written by Hon‘ble Justice J.R. Mudholkar. S. Varadrajan was acquitted. There
was neither taking nor enticing.
Facts - Savitri had fallen in love of neighboring person S. Varadrajan. There are five persons
are involved in this love story namely;
1. S. Varadrajan – Lover and Later on Husband. He was prosecuted for kidnapping
2. Savitri – Beloved and Later on Wife
3. Rama – Sister of Savitri who informed her father about love story.
317

243
4. S.Natarajan – Father of Savitri. He opposed this love story.

5. K. Natarajan – Relative of S. Natarajan where Savitri was sent by her father.
Facts in details are following -

 S. Natarajan was living on 6th Street, Lake Area, Nungumbakkam, along with his wife
and two daughters, Rama and Savitri. The former is older than the latter and was studying
in the Madras Medical College while the latter was a student of the second year B.Sc.
class in Ethiraj College.
 A few months before September 30, 1960 Savitri became friendly with S. Varadarajan
who was residing in a house next door to that of S. Natarajan. S. Varadarajan and Savitri
used to carry on conversation with each other from their respective houses.
 On September 30, 1960 Rama found them talking to each other in this manner at about
9.00 a.m. and had also seen her talking like this on some previous occasions. That day
she asked Savitri why she was talking S. Varadarajan. Savitri replied saying that she
wanted to marry with S. Varadarajan. Savitri‘s intention was communicated by Rama to
their father when he returned home at about 11.00 A.M. on that day. Thereupon
Natarajan questioned her. Upon being questioned Savitiri started weeping but did not
utter a word. The same day Natarajan took Savitri to Kodambakkam and left her at the
house of a relative of his. K. Natarajan, the idea being that she should be kept as far away
from S. Varadarajan as possible for some time.
 On the next day, i.e., on October 1, 1960 Savitri left the house of K. Natarajan at about
10.00 A.M. and telephoned to the appellant asking him to meet her on a certain road in
that area and then went to that road herself. By the time she got there S. Varadarajan had
arrived there in his car. She got into it and both of them then went to the house of one P.
T. Sami at Mylapore with a view to take that person along with them to the Registrar‘s
office to witness their marriage.
 After picking up Sami they went to the shop of Govindarajulu Naidu in Netaji Subhas
Chandra Bose Road and S. Varadarajan purchased two gundus and Tirumangalyam
which were selected by Savitri and then proceeded to the Registrar‘s office. Thereafter
the agreement to marry entered into between S. Varadarajan and Savitri, which was
apparently written there, was got registered.
 Later on S. Varadarajan was arrested for kidnapping of Savitri.
Important days
S. No. Facts Date
1 Date of Birth 13/11/1942
2 Narration about love affairs by Rama to Her father 30/09/1960
and sending Savitri at home of relative.
3 Savaitri leaved home of relative and telephoned her 01/10/1960
lover. Both got marriage

244
4 Differences between date of Birth & Leaving of One Month, twelve days
home
5 Date of Decision of Supreme Court 09/09/ 1964
Presidency Magistrate, Egmore, Madras - Presidency Magistrate also convicted for
kidnapping.
High Court [March 22, 1963]– High Court convicted S. Varadrajan for kidnapping.
Supreme Court – Supreme Court acquitted S. Varadrajan. Reason of decision was that there
was neither taking nor enticing. It was merely allowing going with him.
Arguments of Appellant – There were two arguments of appellant-
 Minor had left the guardianship.

 There was no taking. There was merely allowing going with appellant.
Arguments of the respondent -

Arguments of the respondent were just opposite to the appellant. These are –
 Minor had not left the guardianship.
 There was taking.
Issue – Had S. Varadrajan committed kidnapping of Savitri?

Answer- No. Supreme Court replied in negative.
Observation of Supreme Court
(1) Abandonment of Guardianship - Whether a minor can abandon the guardianship of his or
her own guardian? Supreme Court did not reply this question. It was observed by the court that it
was not necessary to decide this question. The Court said that other condition i.e. ‗taking‘ is
missing. So the Court discussed ‗taking‘.
(2) Ingredients of Section 361 and its Application - There are four conditions must be proved
to make any person liable for kidnapping –
(i).Taking or enticing – In this case there was neither taking nor enticing. There was merely
allowing. This case was discussed on the point of taking. It was not discussed on the point of
enticement.
(ii). Minor (In case of female, under the age of 18 Yrs) – Savitri was minor.
(iii). Out of lawful guardian - Though Savitri had been left by S. Natarajan at the house of his
relative K. Natarajan, she still continued to be in the lawful keeping of the former.
(iv). Without consent - S. Natarajan had not given consent.
Conclusion - In this case condition numbers (ii), (iii) & (iv) were being fulfilled but first
condition (i) was missing. There was neither taking nor enticing.
(3) Meaning of Taking - The mental attitude of the minor is not of relevance in the case of
taking and that the word ―take‖ means to cause to go, to escort or to get into possession. But
these observations have to be understood in the context of the facts found in that case.

245
(4) Differences between ‗taking‘ and ‗allowing‘ – The two expressions are not synonymous.
There are differences between both.
In this case the accused have not taken her away from the keeping of her lawful guardian.
Something more has to be shown in a case of this kind and that is some kind of inducement held
out by the accused person or an active participation by him in the formation of the intention of
the minor to leave the house of the guardian either immediately prior to the minor leaving her
father‘s protection or at some earlier stage.
No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the
intention of the girl. That part falls short of an inducement to the minor to slip out of the keeping
of her lawful guardian and is, therefore, not tantamount to ―taking‖.
(5) There was no taking. There was only allowing – In this case Savitri was at the verge of
attaining the age of maturity. She was well educated. She was student of second year of B.Sc.
She was living in urban area. She was capable to know what is right and what is wrong. She
called lover and she chose meeting point. There was no pre-planning. S. Varadarajan had neither
administered threat nor blandishment. So he had only acted to fulfill her desire.
(6) Giving shelter with passive consent – Ratio of Biseswar Misra v. The King318 was accepted.
Mere passive consent on the part of a person in giving shelter to the minor does not amount to
taking or enticing of the minor but the active bringing about of the stay of the minor in the house
of a person by playing upon the weak and hesitating mind of the minor would amount to
―taking‖ within the meaning of s. 361.
(7) It is not duty to return- She willingly accompanied him and the law did not cast upon him
the duty of taking her back to her father‘s house or even of telling her not to accompany him.
(8) Burden of prove - It would, however, be sufficient if the prosecution establishes that though
immediately prior to the minor leaving the father‘s protection no active part was played by the
accused, he had at some earlier stage solicited or persuaded the minor to do so.
Supreme Court observed, ―In our, opinion if evidence to establish one of those things is
lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of
the keeping of the lawful guardian merely because after she has actually left her guardian's
house or a house where her guardian had kept her, joined the accused and the accused helped
her in her design not to return to her guardian's house by taking her along with him from
place to place‖.
(9) Ratio of Some Important Judgments –

In Rex v. James Jarvis, Justice Jelf observed, ―Although there must be a taking, yet it is quite
clear that an actual physical taking away of the girl is not necessary to render the prisoner liable
to conviction; it is sufficient if he persuaded her to leave her home or go away with him by
persuasion or blandishments…‖
318
A.I.R. 1949 Or. 22.

246
In Biseswar Misra v. The King319 Orissa High Court observed, ―mere passive consent on the part
of person in giving shelter to the minor does not amount to taking or enticing of the minor...
but... actively bringing about of her stay in the house by playing upon her weak and hesitating
mind ...amounts to his taking the girl within the meaning of Section 361, Penal Code.‖320
(10) Conviction or acquittal - In this case, there was no taking. S. Varadrajan was acquitted.
There was no offence under section 363, IPC.
Remarks – In this case Supreme Court denied expressly discussing two important points on the
basis that these were not relevant to decide this case –
(1) Whether a minor can left guardianship.
(2) What is the meaning of enticement?
Importance of this judgment – Ratio of this case was discussed in many cases. Supreme Court
recently discussed ratio of this case in Anversinh @ Kiransinh Fatesinh Zala v.
State of Gujarat321 (2021).
(6.6.3.) State of Haryana v. Raja Ram
Crux - State of Haryana v. Raja Ram322 was decided by Full Bench of Supreme Court on
October 27, 1972. Judgment was written by Hon‘ble Justice I.D. Dua. In this case Sections 361
and 366323 were discussed. This judgment is known for defining word ‗keeping‘. It was
observed that ‗keeping‘ means charge, protection, control and maintenance. It was further
observed that force or fraud is not necessary. Taking or enticing by persuasion is sufficient.
There is no need of force or fraud. Consent of minor is irrelevant. Only consent of guardian is
relevant. Raja Ram was convicted for kidnapping.
Facts in brief-
(1) Santosh Rani-14Years D/O Narain Das, District – Karnal
319
A.I.R. 1949 Or. 22.
320
P. Seshadri, ―The Concept of ―Taking‖ in Relation to the Offence of Kidnapping‖ 7 JILI 401 (October -
December 1965). Available at: https://www-jstor-org.du.remotlog.com/stable/pdf/43949856.pdf?refreqid=fastly-
default%3Aecc92e8ee162ba9da4fdfee17dcc5799&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=searc
h-results (Visited on February 22, 2022).
321
322
323
Section 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or
abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to
marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it
to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of
criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces
any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or
seduced to illicit intercourse with another person shall also be punishable as aforesaid.

247
(2) Jai Narain (32Years) visited the house of Narain Das for treatment of his sons and he
had fallen in love of Santosh Rani. Love started to culminate slowly and slowly. Narain
Das opposed and prohibited entry of Jai Narain in his house.
(3) Raja Ram (Messenger of Jai Narain) - Raja ram was giving message of Jai Narain. In
persuasion of Raja Ram, Santosh Rani leaved her house on the night between April 4 and
5 and went along with raja Ram to meet Jai Narain. Finally she met with Jai Narain and
both enjoyed their life.
Facts in detail –
 Santosh Rani, the prosecutrix, aged about 14 years, daughter of Narain Dass, a resident
of village Jor Majra, in the district of Karnal was the victim of the offence.
 Jai Narain, a resident of village Muradgarh, close to the village Jor Majra, once visited
the house of Narain Das for treating his ailing sons, Subhas Chander and Jagjit Singh.
 When the two boys were cured by Jai Narain, Narain Dass began to have great faith in
him and indeed started treating him as his Guru. Jai Narain started paying frequent visits
to Narain Das‘s house and apparently began to cast an evil eye on the prosecutrix. He
persuaded her to accompany him by inducing her to believe that though she was made to
work in her parents‘ house she was not even given proper food and clothes by her parents
who were poor. He promised to keep her like a queen, having nice clothes to wear, good
food to eat and also a servant at her disposal.
 On one occasion Narain Das happened to see Jai Narain talking to the prosecutrix and felt
suspicious with the result that he requested Jai Narain not to visit his house any more. He
also reprimanded his daughter and directed her not to be free with Jai Narain.
 Having been prohibited from visiting Narain Das‘s house, Jai Narain started sending
messages to the prosecutrix through Raja Ram, respondent, who is a jheewar and has his
house about 5 or 6 km away from that of Narain Das.
 As desired by Jai Narain, Raja Ram persuaded the prosecutrix to go with him to the
house of Jai Narain.
 On April 4, 1968 Raja Ram contacted the prosecutrix for the purpose of accompanying
him to Jai Narain‘s house. Raja Ram‘s daughter Sona by name, who apparently was
somewhat friendly with the prosecutrix went to the latter‘s house and conveyed a
message that she (prosecutrix) should come to the house of Raja Ram at midnight.
 The prosecutrix as desired, went to Raja Ram‘s house on the night between April 4 and 5,
1968, when Raja Ram took her to Bhishamwala well. Jai Narain was not present at the
well at that time. Leaving the prosecutrix there, Raja Ram went to bring Jai Narain,
whom he brought after some time, and handing over the prosecutrix to Jai Narain, Raja
Ram returned to his own house.
 On the fateful night it appears that Narain Das was not in the village, having gone to
Karnal and his wife was sleeping in the kitchen. The prosecutrix, along with her two
younger sisters was sleeping in the court-yard, her elder brother (who was the eldest

248
child) was in the field. It was in these circumstances that the prosecutrix had gone to the
house of Raja Ram from where she was taken to Bhishamwala well.
 Arrest of Jai Narain - On April 13, 1968 at about 7 a.m. Ram Shah, S.H.O. along with
three other persons and Narain Das, saw Jai Narain and Santosh Rani coming from the
side of Dera Waswa Ram. As they reached near Dera Ganga Singh, Narain Das identified
his daughter and Jai Narain, accused, was taken into custody. The prosecutrix had a jhola
which contained one suit and a shawl and two chunis which were taken into possession.
The salwar of the prosecutrix appeared to have on it stains of semen.
 Raja Ram – He was also prosecuted for offence under Section 366.
Issue – Conviction of Jai Narain was not challenged before Supreme Court. So, I am framing
issue only related to Raja Ram.
 Whether Raja Ram could be held to be guilty of offence under section 366, Indian
Penal Code.
Answer – Yes.
Session Court –Session Judge convicted Raja Ram and Jai Narain. Raja Ram was convicted
under Section 361 r/w Section 363, IPC`.
High Court - Both the convicts appealed to the High Court of Punjab & Haryana. A learned
single Judge of that Court
 dismissed the appeal of Jai Narain maintaining his conviction and sentence but
 acquitted Raja Ram of the charge under Section 366 IPC.
It is against the order of the Raja Ram‘s acquittals that the State of Haryana has appealed
to Supreme Court.
Supreme Court – Supreme Court convicted Raja Ram.
Decision
[Raja Ram]
Conviction Acquittal Conviction
Supreme Court –
Supreme Court laid down following important points-
(1) Object of Section 361- The object of this section seems as much to protect the minor
children from being seduced for improper purposes as to protect the rights and privileges
of guardians having the lawful charge or custody of their minor wards.
(2) Ingredients - The gravamen of kidnapping from lawful guardian lies in the
 taking or enticing
 of a minor under the ages specified in this section,
 out of the keeping of the lawful guardian

249
 without the consent of such guardian.

(3) Meaning of Keeping (CPC-M)-The use of the word ―keeping‖ in the context connotes
the idea of
 charge,
 protection,
 control and
 maintenance.
 The guardian‘s charge and control-appears to be compatible with the
independence of action and movement in the minor, the guardian‘s protection and
control of the minor being available, whenever necessity arises.
(4) Consent of Minor - The consent of the minor who is taken or enticed is wholly
immaterial.
(5) Consent of Guardian - It is only the guardian‘s consent which takes the case out of its
purview.
(6) Persuasion is sufficient - It is not necessary that the taking or enticing must be shown to
have been by means of force, or fraud. Persuasion by the accused person which creates
willingness on the part of the minor to be taken out of the keeping of the lawful guardian
would be sufficient to attract the section.
(7) Difference between ‗Taking‘ and ‗allowing‘ -There is a distinction between taking and
allowing a minor to accompany a person. But this case is not one of the prosecutrix
herself leaving her father‘s house without any inducement by the respondent who merely
allowed her to accompany him.
(8) Active participation in the formation of the intention – Raja Ram actively participated
in the formation of the intention of Santosh Rani to leave her father‘s house, and the facts
that the respondent did not go to her house to bring her and that she was easily
persuaded to go with him would not prevent the respondent from being guilty of the
offence. Her consent or willingness to accompany the respondent would be immaterial
and it would be equally so even if the proposal to go with the respondent had emanated
from her.
Decision – Decision of High Court was overruled. Raja Ram was convicted for kidnapping.
Decision of ‗Additional Sessions Judge‘ was affirmed on both the conviction and sentence.
Importance – This is very popular judgment. Ratio of this case was discussed in many cases
including Thakorilal D Vadgama v. State of Gujarat324. It was also discussed in
324

250
Anversinh @ Kiransinh Fatesinh Zala v. State of Gujarat325 for deciding the quantum of
punishment. It was observed that Anversinh Case is different from Raja Ram Case. Raja Ram
case was a case of misuse of power, wealth, status and age.
(6.6.4.) Thakorilal D Vadgama v. State of Gujarat
Pics – Parker Pen and Couple in Mount Abu, Rajasthan.

Thakorilal D Vadgama v. State of Gujarat326 is known as ‗Parker Pen Case‘. This Case was
decided by Division Bench of Supreme Court on May 02, 1973. Judgment was written Hon‘ble
Justice I.D. Dua. He had also written State of Haryana v. Raja Ram.327 He had applied ration of
Raja Ram Case in T.D. Vadgama Case at large scale. In this case ‗entice‘ word was defined
along with other words. In this case, Section 361 and Section 366 were discussed thoroughly.
Thakorilal D Vadgama was convicted kidnapping of Mohini for the purpose of seducing sexual
intercourse.
Facts of the Case

Thakorilal D Vadgama, an industrialist, had a factory at Bunder Road for manufacturing oil
engines and adjoining the factory was his residential bungalow. During the bombardment by
Pakistan in 1965, Mohini‘s parents came to reside temporarily at Dhrol near Jamnagar. He came
in contact with the family of Mohini in about November 1965. The appellant cultivated
relationship with them to such an extent that he took Mohini, and her parents out on trips in his
car spending lavishly by staying in hotels in Ahmedabad, Bombay, Mahabaleshwar and
Mount Abu. He also presented Mohini with a parker pen on 18th December, 1965. Within a
325
326
327

251
few days thereafter he purchased by way of gift to Mohini skirt, silver waist-band. He was
actually found by the side of Mohini in Mohini‘s bed by Mohini‘s mother at Mount Abu. His
connection with Mohini was suspected and in spite of that as the letters of Mohini show he was
in correspondence with her without the knowledge of her parents. Mohini was a school girl of
immature understanding having entered her 16th year less than a month before the incident.
Out of emotion she wrote letters to the appellant exaggerating incidents of rebuking by her
mother and beating. She however was quite normal from 1st January, 1967. The appellant having
come to know about the frame of her mind disclosed from the letters of November and
December 1966, took chance to take away this girl from her parents. With that view he told
Mohini about 4 days before 16th January, 1967 to come to his house and added that he will
keep her with him permanently. This possibly caught the imagination of the girl and the result
was that on 16th January she left her father‘s house with bare clothes on her body and with
school books and went straight to the appellant. The appellant in order to see that her view to
his factory during day time may not arouse suspicion of others invented the story of giving Rs.
250/- to Mohini and also got written 3 letters by Mohini addressed to himself the District
Superintendent of Police Jamnagar and Mohini's father. He kept her in the garage of his
bungalow for 2 days, tried to hide her from police and her parents and had already made attempt
on 16th to put police and parents of Mohini on wrong track. There is no scope for an inference
other than the inference that Mohini was kidnapped from lawful guardianship, with an intention
to seduce her to illicit inter-course. The intention contemplated by section 366 of the Indian
Penal Code is amply borne out by these circumstances.
Session Court - The accused was convicted by the trial court under Ss. 366 and 376 I.P.C.
High Court - On appeal, the High Court acquitted him of the offence under Section 376 I.P.C.;
but upheld the conviction and sentence under Section 366 IPC on the ground that the appellant
had taken out a minor girl out of the keeping of her parents (her lawful guardian) with an
intention that she may be seduced to illicit intercourse.
Supreme Court – Supreme Court upheld decision of High Court.
Arguments of Appellant before Supreme Court - The appellant contended that since the girl
left her parents‘ house out of her own accord due to the harsh treatment of her parents and as the
appellant kept her in his house out of compassion and sympathy for the helpless girl, the charge
under Section 366 I.P.C. was unsustainable.
Reply of Supreme Court – Supreme Court rejected this argument. He was convicted under
Section 366.
Ratios of Judgement
There are following ratios of judgment -

252
(1) Together reading of Taking and Enticing - The two words "takes" and "entices", as used
in Section 361, I.P.C. are in our opinion, intended to be read together so that each takes to
some extent its colour and content from the other.
(2) Meaning of Taking –Taking means ―to cause to go‖, ―to escort‖ or ―to get into
possession‖. Taking means physical taking, but not necessarily by use of force or fraud.
It is not confined only to use of force, actual or constructive.
(3) Meaning of Entice (IIIA)- The word ―entice‖ means to involve the idea of inducement
or allurement (IIIA)by giving rise to hope or desire (HD)in the other.
(4) Enticement may not immediate cause - Enticement can take many forms, difficult to
visualise and describe exhaustively; some of them may be quite subtle, depending for
their success on the mental state of the person at the time when the inducement is
intended to operate. This may work immediately or it may create continuous and
gradual but imperceptible impression culminating after some time, in achieving its
ultimate purposes of successful inducement. If the minor leaves her parental home,
influenced by any promise, offer or inducement emanating from the guilty party then the
latter will be guilty of an offence as defined in section 361I.P.C. even though enticement
was not immediate prior.
(5) Allurement – He has created allurement in the mind of Mohini.
(6) When person is not liable for kidnapping - The statutory language suggests that if the
minor leaves her parental home completely uninfluenced by any promise, offer or
inducement emanating from the guilty party, then the latter cannot be considered to have
committed the offence as defined in Section 361, I.P.C.
(7) Ratio of Raja Ram Case – Hon‘ble Supreme Court cited the ratio of Raja Ram Case
regarding object and ingredients of Section 361 and quoted, ―
 The object of this section seems as much to protect the minor children from being
seduced for improper purposes as to protect the rights and privileges of guardians
having the lawful charge or custody of their minor wards.
 The gravamen of this offence lies in the taking or enticing of a minor under the
ages specified in this Section, out of the keeping of the lawful guardian without
the consent of such guardian.
 The words ―takes or entices any minor... out of the keeping of the lawful guardian
of such minor‖ in s. 361, are significant.
 The use of the word ―keeping‖ in the context connotes the idea of charge,
protection, maintenance and control. Further the guardian‘s charge and control
appears to be compatible with the independence of action and movement in the
minor, the guardian‘s protection and control of the minor being available,
whenever necessity arises.
 On plain reading of this section the consent of the minor who is taken or enticed is
wholly immaterial. It is only the guardian‘s consent which takes the case out of its
purview.

253
 Nor is it necessary that the taking or enticing must be shown to have been by
means of force or fraud. Persuasion by the accused person which creates
willingness on the part of the minor to be taken out of the keeping of the lawful
guardian would be sufficient to attract the section‖.
Decision- Appeal was dismissed. It means decision of High Court was upheld. He was convicted
under Section 366, IPC.
(6.6.5.) Anversinh @ Kiransinh Fatesinh Zala v. State of Gujarat

Anversinh @ Kiransinh Fatesinh Zala v. State of Gujarat328 was decided by Full Bench of
Supreme Court consisted of Hon‘ble Justices N.V. Ramana, S. Abdul Nazeer and Surya Kant.
This Judgment was written by Hon‘ble Justice Surya Kant. Judgment was delivered on January
12, 2021. There was love affair. Supreme Court found that this case was different from S.
Varadarajan v. State of Madras.329 Anversinh was convicted for kidnapping under Section
363 and Section 366, IPC, 1860. His defence that this was consensual was repelled by Supreme
Court. At the time of deciding quantum of punishment the Court imposed lenient punished. The
Court found that this case was different from State of Haryana v. Raja Ram330 and
Thakorlal D. Vadgama v. State of Gujarat331. In these both cases there was misuse of power,
wealth, age and other resources.
Fact - ―Prosecutrix‖ was educated till Class VII. Her age was 16 years, three months and 6
days.. The prosecutrix worked as a maid; sweeping and mopping a few hours every noon and
evening. Anversinh was age of 23 years. He was a labourer. Prosecutrix and Anversinh had
many times physical relationship in a damaged bungalow near her place of work prior to the
date of occurrence. One day ―Prosecutrix‖ went with Anversinh without informing family
members. FIR was registered on May 16, 1998. Police got them on May 21, 1998. He was
prosecuted for committing rape and kidnapping for the purpose of sexual intercourse etc.
Additional Session Judge – Three or four times sexual relationship was established. Her age
was below the age of 18 years. So her consent was immaterial for the purpose of rape [Section
375, sixthly] and kidnapping [Section 361]. All conditions of Section 361 were being fulfilled.
Trial Court convicted him under Section 376, Section 363 and Section 366. The Court awarded
following punishment –
(i) Section 363 - Sentence of one year rigorous imprisonment and fine of Rs 1,000,
(ii) Section 366 - Sentence of five years rigorous imprisonment and fine of Rs 5,000, and
(iii) Section 376 - Sentence of ten years rigorous imprisonment and fine of Rs 10,000.
328
329
(1965) 1 SCR 243.
330
(1973) 1 SCC 544.
331
(1973) 2 SCC 413.

254
High Court – He challenged decision of Additional Session Judge in High Court. High Court
acquitted him from the charge of rape on the ground of consensual relationship and convicted
him only for kidnapping under Sections 363 and 366. Judgment of High Court may be critised
here regarding acquittal from the charge of rape. Consent of minor for the purpose of rape is
immaterial even she was in love with accused.
Supreme Court – Accused challenged decision of High Court against his conviction for the
charge of kidnapping in Supreme Court. Supreme Court approved decision of High Court and
convicted accused for kidnapping. But Supreme Court reduced quantum of punishment.
Argument of Appellant – There are following arguments of appellant -
 Consensual Relationship - Both appellant and the prosecutrix were allegedly in
love and had consensual physical relations since long before the date of the incident.
 Neither taking nor enticing - It was claimed that the prosecutrix had run away solely
andcompletely on her own accord; and had wished to marry the appellant without any
enticement on his side.
 She never raised alarm - She never raised any protest or alarm despite numerous
opportunities to do so.
 S. Varadarajan v. State of Madras. – Ratio of S. Varadarajan Case332 must be applied
here.
Issue - Whether a consensual affair can be a defence against the charge of kidnapping a
minor?
Answer – No. If other conditions of section 361 are being fulfilled, accused will be
convicted.
Ratio of Decision of Supreme Court –
(1) No application Ratio of S. Varadarajan Case – There was no active involvement of S.
Varadarajan in formation of mind for leaving keeping of lawful guardian. There was neither
taking nor enticing. Girl was educated and mature. The case was restricted to ‗taking‘.
Enticement was not discussed.
Supreme Court in S. Varadarajan Case explicitly held that a charge of kidnapping would not be
made out only in a case where a minor, with the knowledge and capacity to know the full import
of her actions, voluntarily abandons the care of her guardian without any assistance or
inducement on part of the accused.
This judgment, therefore, cannot be of any assistance without establishing:
(1). first, knowledge and capacity with the minor of her actions;
(2). second, voluntary abandonment on part of the minor; and
(3). third, lack of inducement by the accused.
332
(1965) 1 SCR 243.

255
In this case, he had played active role in inducement. She was not aware of the full purport of her
actions or that she did not possess the mental acuities and maturity to take care of herself. The
prosecutrix was not much educated.
(2) Application of Thakorlal D Vadgama Case333 - In this case Supreme Court followed the
ratio of T.D. Vadgama Case and observed, ―Such ‗enticement‘ need not be direct or immediate
in time and can also be through subtle actions like winning over the affection of a minor girl‖.
The testimonies of numerous witnesses make out a clear case of enticement. The
evidence on record further unequivocally suggests that the appellant induced the prosecutrix to
reach at a designated place to accompany him.
(3) Admission of culpability - The appellant had unintentionally admitted his culpability.
Besides the victim being recovered from his custody, the appellant admits to having
established sexual intercourse and of having an intention to marry her.
Mere recovery of prosecutrix from the possession of accused will not be sufficient for
kidnapping. Some more facts have to be proved. In this case, some more facts were proved.
(4) Failure of Defence Lawyer - the appellant has failed to propound how the elements of
kidnapping have not been made out.
(5) Rejection of Core Contention - His core contention appears to be that in view of consensual
affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion,
cannot be acceded to given the unambiguous language of the statute as the prosecutrix was
admittedly below 18 years of age. Consent of the minor is immaterial for purposes of Section
361 of IPC.
(6) Only sympathy, but no change in law - It is apparent that instead of being a valid
defence, the appellant‘s vociferous arguments are merely a justification which although
evokes our sympathy, but can‘t change the law. Since the relevant provisions of the IPC
cannot be construed in any other manner and a plain and literal meaning thereof leaves no
escape route for the appellant.
(7) Change of Quantum of Punishment - Unlike in the cases of State of Haryana v. Raja Ram
and Thakorlal D. Vadgama v. State of Gujarat, there is no grotesque misuse of power, wealth,
status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged
to a similar social class and lived in geographical and cultural vicinity to each other. Far from
there being an imbalance of power; if not for the age of the prosecutrix, the two could have
been happily married and cohabiting today. Indeed, the present instance is an offence: mala
prohibita, and not mala in se334. Accordingly, a more equitable sentence ought to be awarded.
333
Thakorlal D Vadgama v. State of Gujarat, (1973) 2 SCC 413.
334
Malum in se (plural mala in se) is a Latin phrase meaning wrong or evil in itself. The phrase is used to refer to
conduct assessed as sinful or inherently wrong by nature, independent of regulations governing the conduct. It is
distinguished from malum prohibitum, which is wrong only because it is prohibited. Available at:
https://en.wikipedia.org/wiki/Malum_in_se (Visited on February 27, 2022).

256
The sentence of five years‘ rigorous imprisonment awarded by the Courts below, is
disproportionate to the facts of this case. The concerns of both the society and the victim can be
respected, and the twin principles of deterrence and correction would be served by reducing
the appellant‘s sentence to the period of incarceration already undergone by him.
Conclusion - Prosecution has established the appellant‘s guilt beyond reasonable doubt and that
no case of acquittal under Sections 363 and 366 of the IPC is made out. However, the quantum
of sentence is reduced to the period of imprisonment already undergone.The appellant is
consequently set free. The bail bonds are discharged.
(6.7.) Prevoius Year Question Papers
Question 7(b) (2013)

Rakhi, a female, aged about 15 years, and Raj, a male, aged about 15 years, were good friends in
the school. One day Rakhi proposed to marry Raj but Raj did not heed because he was afraid of
his step mother who would ill-treat him. Rakhi visited Raj‘s home in his absence and came to
know from the servants that he was being ill-treated by his step- mother and his father could do
nothing as he was forced by his parents to remarry after he had lost his first wife i.e. Raj‘s
mother. Rakhi went home and told her mother about this whole story and sought her help in
arranging for permanent stay of Raj in their out house where he could concentrate on his studies.
Rakhi‘s mother expressed no objection should Raj agree to this arrangement. Rakhi gave this
offer to Raj and told him that only after he settled down in his life that she would again propose
marriage with him. Raj thought over the matter and finally decided to shift to the outhouse
offered to him by Rakhi without discussing with his father anything about this matter. When Raj
did not return home his father filed an FIR alleging that his son has been kidnapped by Rakhi and
his mother. Decide if Rakhi can be held guilty of kidnapping Raj with the help of judicial
decisions and decided cases.
Answer
In this case sections 361,363 and 34 are involved. Leading cases on these points are Thakorilal D
Vadgama v. State of Gujarat (Parker Pen Case) (1973), State of Haryana v. Raja Ram (1972)
and Suresh v. State of U.P. (2001).
The object of section 361 is to protect the rights and privileges of guardians having the lawful
charge or custody of their minor wards. Section 361 defines kidnapping from lawful
guardianship which is following -
Section 361 - Kidnapping from lawful guardianship

―Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen
years of age if a female, or any person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind, without the consent of such guardian, is said
to kidnap such minor or person from lawful guardianship‖.

257
There are following ingredients of section 361 which are following-
(1) Age and Sex – ‗Whoever‘ denotes any person either male or female. Age and sex of
accused are immaterial. Only age of victim or his mental condition is deciding factor.
Victim may be minor or person of unsound mind. In case of male victim must be below
the age of 16 years.
(2) Meaning of Taking or enticing – In the case of Thakorilal D Vadgama v. State of
Gujarat (Parker Pen Case) (1973) Supreme Court defined the words ‗taking‘ and
‗enticing‘. These meanings are following -
The word ‗takes‘ in s. 361I.P.C. does not necessarily connote taking by force and it is not
confined only to use of force, actual or constructive. This word merely means ―to cause
to go‖, ―to escort‖ or ―to get into possession‖.
The word ―entice‖ means to involve the idea of inducement or allurement (IIIA)by
giving rise to hope or desire (HD)in the other.
In this case Supreme Court said, ―If the minor leaves her parental home, influenced by
any promise, offer or inducement emanating from the guilty party then the latter will be
guilty of an offence as defined in section 361Indian Penal Code.‖
In the case of State of Haryana v. Raja Ram (1972) Supreme Court held that persuasion
is sufficient. It is not necessary that the taking or enticing must be shown to have, been by
means of force, or fraud. Persuasion by the accused person which creates willingness on
the part of the minor to be taken out of the keeping of the lawful guardian would be
sufficient to attract the section.
(3) Consent of Minor/Guardian - In the case of State of Haryana v. Raja Ram (1972)
Supreme Court held on plain reading of this section the consent of the minor who is taken
or enticed is wholly immaterial. It is only the guardian‘s consent which takes the case out
of its purview.
(4) Out of Keeping of Lawful guardianship - In the case of State of Haryana v. Raja Ram
(1972) Supreme Court said the use of the word ―keeping‖ in the context connotes the idea
of charge, protection, control and maintenance (CPC-M)-, further the guardian‘s charge
and control-appears to be compatible with the independence of action and movement in
the minor, the guardian's protection and control of the minor being available, whenever
necessity arises.
Rakhi is accused. Her age is immaterial. Raj age is about 15 years i.e. below the age of 16 years.
Motive of Rakhi is good to support Raj in his studying. But for kidnapping motive, intention or
knowledge are immaterial. Kidnapping comes under the category of strict liability where mens
rea of accused is immaterial.
Rakhi enticed Raj. Rakhi induced and created hope and desire in the mind of Raj for better life
and comfortable environment for studying. Raj leaved his home in pursuance of offer given by

258
Rakhi. In this process Rakhi did not take consent of father of Raj. Father of Raj was guardian of
Raj. So Raj was kept out of keeping of lawful guardianship.
All the conditions of section 361 are being fulfilled. So Rakhi has kidnapped Raj.
Responsibilities of mother
Section 34 –―Acts done by several persons in furtherance of common intention - 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.‖ In the case
of Suresh v. State of U.P. (2001) Supreme Court held that either overt or covert act is sufficient.
Presence on the spot is not necessary in all case.
Mother and sister are several persons. There was common intention to bring Raj out of lawful
guardianship of father of Raj. Mother after knowing all the facts permitted her daughter to entice
Raj. So liability of Rakhi and her mother will be same. Both will be liable for kidnapping under
sections 34 r/w363.
Conclusion
From the above discussion it becomes clear that Rakhi and her mother had committed
kidnapping from lawful guardianship which is punishable under section 363.
Sorry Rakhi and your Mother. At the anvil of law I could not save. Both of you have won
my heart
Question and I realized my old days. I am always with you. HAHAHAHAHAHAHH
6 (2014)
A young girl was left to live with his maternal grandfather, as the relationship between her
mother and father were strained. One day the father (F) visited him where she was kept and took
her with him for a picnic. Mother (M) on reaching home (the place where she was living, found
that minor daughter has been taken away without her or maternal grandfathers consent. She files
and FIR, where she alleges that her daughter has been kidnapped. Advise her about the success
of her case.
Answer
I have already discussed section 361. In the case of State of Haryana v. Raja Ram (1972)
Supreme Court said the use of the word ―keeping‖ in the context connotes the idea of charge,
protection, control and maintenance (CPC-M). Here lawful guardianship was in the hand of
mother. Relationship between husband and mother was strained. So it was also implied that
lawful guardianship was in the hand of mother. Girl was minor i.e. below the age of 18 years.
Father took without consent of mother of minor.
So father has kidnapped his daughter. So he will be liable under section 363.
Question 6 (b) (2014)

Bring out clearly the distinction between kidnapping and abduction under the IPC. Discuss
kidnapping from lawful guardianship as a strict liability offence.
Answer
I have already discussed distinction between kidnapping and abduction under the IPC.
Kidnapping from lawful guardianship as a strict liability offence

259
the mind is also guilty. This theory was developed by Common Law Courts. First time concept
of Mens Rea was discussed by Justice Coke. In case of Fowler v. Padget (1798) Lord Kenyon
held that actus reus and mens rea both are essentials for commission of crime. There are four
essential ingredients of crime, namely, (1) Human Being (2) Guilty Mind (3) Prohibited act, (4)
An injury to human being or society. This maxim denotes that guilty mind and prohibited act
both are part and parcel of crime. It is rule that without guilty mind, crime cannot be committed.
Sometimes offence is constituted even without guilty mind it is called strict liability. There are
certain exceptions of Actus non facit reum, nisi mens sit rea. These exceptions are following -
(1) Public Nuisance (2) Criminal Libel (3) Contempt of Court (4) Statutory Offences (Offences
under Motor Vehicles Act, FERA, ―the Prevention of the Food Adulteration Act, 1954 (Now
the Food Safety and Standards Act, 2006) etc. (5) Waging war (6) Sedition (7) Kidnapping (8)
Abduction (9) Rape (10) Bigamy
There are two schools to interpret statutory provisions namely;
(1) Presumption of Requirement of Mens Rea- In every Statute mens rea should be treated as
part of crime unless contrary is shown. Existence of Mens Rea is presumed.
(2) Presumption of Non-requirement of Mens Rea- According to second School, statute must
be interpreted in absence of mens rea unless requirement of mens rea has been specifically
mentioned.
R. v. Prince335 (1875) (Blackburn)
1861. This section was related to abduction. There was no any category of offence like
without permission of lawful guardian was an offence as abduction. ‗Kidnapping‘ was missing
from statutory provisions of British Law. It was proved that the prisoner took the girl whose age
was below the age of sixteen years from out of possession of lawful guardians without their
permission. Real age of girl was 14 years. Actus reus was present but mens rea was absent.
Accused proved that he took the girl who was looking like at age of 18 years and he took with
consent and after her replying that her age was 18 years. He did in good faith.
followed.
335
(1875) L.R. 2 C.C.R. 154
336

260
Section 361 - Kidnapping from lawful guardianship

―Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen
years of age if a female, or any person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind, without the consent of such guardian, is said
to kidnap such minor or person from lawful guardianship‖.
In section 361 intention or knowledge of offender is missing. For application of section 361
guilty mind of offender is missing. So Section 361 is an offence which comes under the category
of strict liability offence. Purpose of law is to secure the rights of guardian and interest of minor.
So keeping these things condition of mens rea was not made.
Krishna Maharana v. The King Emperor (1929) Patna High Court

The defence that the accused did not know that the girl was under statutory age or that from her
appearance the girl looked quite older than that age and that the accused took her to have attained
the age of consent could not be accepted.
Question 6 (2016)
Namita, a fifteen year old girl is devastated when her father remarries immediately upon her
mother‘s death. She runs away from the house and seek shelter under Rakesh. Rakesh is her
teacher in school. He persuades Nitibha to return back but she refuses to go back and volunteers
to cook and clean for him if he allows her to stay with him. After a week police recover Nitibha
from Rakesh‘s house. He is charged under section 363 IPC for kidnapping Nitibha from lawful
guardianship. Discuss the liability of Rakesh.
Answer
In this case sections 361 & 363 and ration of S. Varadrajan v. State of Madras (1964) are
involved. I have already discussed section 361 and section 363. So no need to discuss again.
In the case of S. Varadrajan v. State of Madras (1964) Supreme Court made distinction between
taking and allowing a minor. The Court said that merely playing role for facilitating the
fulfillment of the intention of the girl will not amount taking. That part falls short of an
inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not
tantamount to ―taking‖.
The two expressions are not synonymous. There are differences between both.
In this case the accused have not taken her away from the keeping of her lawful guardian.
Something more has to be shown in a case of this kind and that is some kind of inducement held
out by the accused person or an active participation by him in the formation of the intention of
the minor to leave the house of the guardian. She willingly accompanied him and the law did not
cast upon him the duty of taking her back to her father's house or even of telling her not to
accompany him. In this case, there was no taking. S. Varadrajan was acquitted.

261
In this problem Rakesh had neither taken nor enticed Namita. Although he was her teacher. But
there is no evidence that he had either earlier or immediately enticed her. Even he persuades
Namita to return back but she refuses to go back and volunteers to cook and clean for him if he
allows her to stay with him. He merely allowed her to stay along with him. It was not his duty to
return back.
Conclusion
From the above discussion it becomes clear that there was neither taking nor enticing. So Rakesh
had not kidnapped Nitibha from her lawful guardian.
Question (4) 2014

Savitri, aged 15 years, became friendly with Varadarajan, a boy aged 19 years, who was residing
in a house next door to that of Savitri‘s father, Mr. Natrajan. They would often talk to each other
from their respective roof tops. Varadarajan was keen to marry Savitri. The intimacy between the
two came to the knowledge of Mr. Natrajan. Parents of Savitri took her to a distant place and
kept her in the house of a close relative, Mr. Rangarajan, the idea being that she should be kept
as far away from Varadaraj as possible for some time. On the next day Savitri informed
Varadarajan about her whereabouts and also how she missed him. Varadarajan arrived in the
house of Rangrajan next day and explained to him that his liking for Savitri was banafide and
gained his confidence. He persuaded Rangrajan to permit him to take Savitri for a cinema show
and an outing with the promise that they will return in the evening. They returned in the evening
as promised. After a few days Savitri sought permission from Rangrajan to join Varadarajan for
an outing to which he did not object. Having gone out to meet Varadarajan whom she met at
Railway station, they both decided not to return and got married in a temple and left for
honeymoon. The father of the girl on coming to know of these developments filed an FIR against
the boy, Varadarajan, under section 363 IPC for which he is facing trial. He pleads the following
in his defence: (i) It is Savitri who summoned him to Rangrajan‘s place; (ii) She had voluntarily
come out of the keeping of her lawful guardians and he only allowed her to accompany; (iii) She
joined him after seeking permission of Rangrajan which amounted to consent within the meaning
of section 363 IPC. Varadarajan submits that in view of the aforesaid reasons, no case is made
out against him and he is entitled to be acquitted of the charge. Decide.
Answer
This problem is based on S. Varadrajan v. State of Madras Case.

262
DU LL.B. 2018
Question (2) (b)
Mira, a girl of 16 years, was living with her aged father and step mother who used to ill-treat her.
She would often narrate her woes to Gopal, her 22 year old neighbor. One day Gopal suggested
that they go to Mumbai and start their lives afresh. He also promised to marry her. Mira agreed
and as planned they boarded the train to Mumbai. What offence, if any, has been committed by
Gopal?
Answer – Gopal has committed kidnapping. He has enticed a minor girl. Meaning of enticing
must be discussed.
(6.9) Objective Question Papers
Question 1 – Match the items of List I (Name of Cases) with the items of List II (Offence) and
choose the correct answer from the code given below –
List I List II
(a) Vishwanath v. State of U.P. (i) Kidnapping
(b) State of Punjab v. Major Singh (ii) Private defence
(c) S.Varadarajan v. State of Madras (iii) Modesty of women
Options
(1) (a)ii (b) iii (c) iv (d) i
(2) (a) iv(b) ii (c) i (d) iii
(3) (a) ii(b) iii (c) i (d)iv
(4) (a)iv (b) ii (c) iii (d) i
Answer – (3) (a) ii(b) iii (c) i (d)iv

List I List II
(a) Vishwanath v. State of U.P. (ii) Private defence
(b) State of Punjab v. Major Singh (iii) Modesty of women
(c) S.Varadarajan v. State of Madras (i) Kidnapping
Question 2– Which of the following case is not related to kidnapping –

(a) State of Haryana v. Raja Ram
(b) S. Varadrajan v. State of Madras.
(c) Thakorilal D Vadgama v. State of Gujarat
(d) Tukaram v. State Of Maharashtra
Answer – D.
UNIT 7: SEXUAL OFFENCES

263

Law Centre-1,
University of Delhi, Delhi
(7.1.) Introduction
―Denial of a fair trial is as much injustice to the

accused as is to the victim and the society. Concept
of fair trial is triangulation‖
Supreme Court337
Section 354 was from the very beginning. Sections 354A to 354D were inserted in 2013. These
Sections deals along with Section 375 to Section 377 deal sexual offences. These sexual offences
laws are part of offences against body i.e. part of Chapter XVI, IPC. IPC provides general laws
for conviction of sexual offences culprit. Section 509 also deals insulting the modesty of women.
It does not provide compensation and rehabilitation program. Some laws were from the inception
of IPC. Some of them were either modified or inserted in the Tsunami of public movement.
Major amendment came after Mathura Rape Case (Tuka Ram and Anr. v. State of
Maharashtra338), Delhi, Gang Rape Case and Kathua and Unnav Rape Case in 1983, 2013 and
2018 respectively.
POCSO is special law which has been enacted for protection of interest of children. In Attorney
General for India and Ors. v. Satish and Another339 Supreme Court observed that since the
sexual offences against women were not adequately addressed by the existing laws, the The
Protection of Children from Sexual Offences Act, 2012340 (POCSO Act, 2012) was specifically
enacted to protect the children from the offences of sexual assault, sexual harassment and
pornography.
According to Section 5 of the IPC, IPC will not affect special law. It further provides that in case
of inconsistency between general law (IPC) and special law (POCSO), special law will prevail
over general law. Section 41 of the Code defines special law. There are many differences
between IPC and POCSO. Major difference on the point of subject, burden of proof, standard of
337
Zahira Habibulla H. Shiekh & Anr. v. State of Gujarat and Ors. (12/04/2004, SC) which is known as ‗Best
Bakery Case‘.
338
Date of Judgment: September 15, 1978. Available at: https://main.sci.gov.in/judgment/judis/4992.pdf (Visited on
March 28, 2021).
339
Nov. 18. 2021.
Available at: https://main.sci.gov.in/supremecourt/2021/2286/2286_2021_32_1501_31537_Judgement_18-Nov-
2021.pdf (Visited on February 2, 2022).
340
Available at: https://www.indiacode.nic.in/bitstream/123456789/2079/1/AAA2012____32.pdf#search=POCSO
(Visited on March 1, 2022).

264
proof and punishment. IPC is applicable over women while POCSO is applicable over Children.
In State of Punjab v. Major Singh341 Justice Bachawat interpreted women in the light of Section
7 read with Section 10 in context of Section 354. It can be concluded that every female comes
under definition of women irrespective of her age. Children for the purpose of POCSO is below
the age of 18 years irrespective of their sex.342 Prosecutor is bound to prove beyond reasonable
doubts commission of offence under IPC by accused, while in case of POCSO, accused is bound
to prove his innocence beyond reasonable doubts.343
Sexual offences are direct attack on fundamental rights enshrined in Article 19 and Article 21. It
is contrary to right to life including right to privacy & right to personal liberty. Right to life
includes right to dignified life.344 Some laws are gender based for protection of women.
According to Article 15 (3) States are authorized to enact special laws for the protection of
women and children. Sexual offences have physical as well as psychological effect. It has long
effect on thought process and social behavior of accused. These offences denote patriarchal
thought. It must be stopped at any cast. In State of Punjab v. Gurmit Singh & Ors. 345 Hon‘ble
Justice Anand observed, ―….a rapist not only violates the victim‘s privacy and personal
integrity, but inevitably causes serious psychological as well as physical harm in the process.
Rape is not merely a physical assault. It is often destructive of the whole personality of the
victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of
the helpless female.‖
Women are not to be treated flower. They are fire. State has recognised this since inception of its
origin. They have right of private defence not only to protect her body, but also body of other. If
they do anything in the exercise of right of private defence as enshrined in Sections 96 to 102
and 106, they will not be liable for any offence. If ‗A‘ assaults over ‗B‘ and ‗B‘ has reasonable
apprehension of causing rape. B has no option to save from such person and killed him. If ‗A‘
assaults over ‗B‘ and ‗B‘ has reasonable apprehension of causing outrage of modesty, ‗B‘ causes
harm. In both examples, ‗B‘ will not be liable for murder and voluntary causing harm under
Section 302 and Section 323 respectively. She will get benefit of right of private defence.
Section 6 is the bridge between right of private defence which is part of ‗General Exception‘ and
other offences like murder. She has committed murder, but she is entitled for right of private
defence under Section 100 read with Section 6. In this way, she will be treated as innocence in
light of Section 96, IPC.
341
Date of Judgment: April 28, 1966. AIR 1967 SC 63. Available at: https://main.sci.gov.in/jonew/judis/2651.pdf
342
Section 2 (d), POCSO Act, 2012.
343
Attorney General for India and Ors. v. Satish and Another and Section 30, POCSO, Act, 2012.
344
Maneka Gandhi v. Union of India, Date of Judgment : January 25, 1978.
345

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(7.2.) Section 354
Section 354 - Assault or criminal force to woman with intent to outrage her modesty
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be
likely that he will there by outrage her modesty, shall be punished with imprisonment of either
description for a term which shall not be less than one year but which may extend to five years,
and shall also be liable to fine.
Comments
Section 354 requires intention or knowledge. Section 354 is based on ‗Actus non facit reum, nisi
mens sit rea‘. There is no question of application of ‗Strict Liability‘. Person could not be liable
without guilty mind under section 354, IPC. This Section was amended in 2013 and punishment
was enhanced.
In Pandurang Mahale v. State of Maharashtra and Anr.346 (2004) and Ramkripal S/o Shyamlal
Charmakar v. State of Madhya Pradesh347 (2007) Supreme Court observed, ―The essential
ingredients of offence under Section 354 IPC are: (a) That the assault must be on a woman. (b)
That the accused must have used criminal force on her. (c) That the criminal force must have
been used on the woman intending thereby to outrage her modesty‖. In these cases ratio of State
of Punjab v. Major Singh348 and Rupan Deol Bajaj v. KPS Gill349 were discussed.
(1). Method – There must be use of assault or criminal force. Meaning of ‗Assault‘ and
‗Criminal Force‘ in context of Section 354 must be read with Section 7 and 351 & 350
respectively.
(2). Mens Rea – Offence under Section 354 can be caused either with intention or
knowledge. Intention is desire and foresight of consequences. Knowledge is awareness of
consequences. In Basdev v. The State of Pepsu, Supreme Court said, ―knowledge is an
awareness of the consequences of the act.‖350 In Emperor v. Mt. Dhirajia,351 Allahabad
High Court observed, ―Some degree of knowledge must be attributed to every sane
person‖. Insane person can‘t form awareness.
(3). Only Women Victim – Outrage of modesty of women is possible under Section 354.
Outrage of modesty of men is not possible under Section 354. In State of Punjab v. Major
346
2004 (4) SCC 371.
347
Date of Judgment: March 19, 2007.
348
349
AIR 1996 SC 309. Date of Judgment: 12 October, 1995.
350
Basdev v. The State of Pepsu ( Date of Judgment: April 17, 1956 S. C.).
351
AIR 1940 All 486 (Date of Judgment: June 04, 1940, Allahabad High Court).

266
Singh352 Hon‘ble Justice Bachawat interpreted ‗Women‘ in the light of Section 7 read
with Section 10 in context of Section 354. It was concluded that every female comes
under definition of women irrespective of her age. In this case, female baby whose age
was only near about seven months and fifteen days was treated women for the purpose of
Section 354.
(4). Outrage of modesty – If there is no outrage of modesty of women; no question arises
regarding application of Section 354. The essence of a woman‘s modesty is her sex.353
Meaning of modesty was discussed in Rupan Deol Bajaj v. KPS Gill.354 In this case
Supreme Court observed that modesty word has not been defined under IPC while this
word has been used under Section 354 and Section 509, IPC. Help of dictionaries was
taken to define this case. ‗Modesty‘ was defined in following dictionaries -
a. Shorter Oxford English Dictionary (Third Edition) - Modesty is the quality of
being modest and in relation to woman means ―womanly propriety of behaviour;
scrupulous chastity of thought, speech and conduct‖. The word `modest' in
relation to woman is defined in the dictionary as ―decorous in manner and
conduct; not forward or lewd; shamefast‖.
b. Webster‘s Third New International Dictionary - Modesty as ‗freedom from
coarseness, indelicacy or indecency; a regard for propriety in dress, speech or
conduct‘.
c. Oxford English Dictionary (1933 Ed) - The meaning of the word ‗modesty‘ is
given as ‗womanly propriety of behaviour; scrupulous chastity of thought, speech
and conduct (in man or woman); reserve or sense of shame proceeding from
instinctive aversion to impure or coarse suggestions‘.
It was observed that the ultimate test for ascertaining whether modesty has been outraged is, is
the action of the offender such as could be perceived as one which is capable of shocking the
sense of decency of a woman. In this case Supreme Court observed that slapping on posterior
part (Butt) of woman publicly will amount to outrage of modesty of woman. Accused was
convicted under Section 354, IPC. In State of Punjab v. Major Singh355 Justice Bachawat
observed that the essence of a woman‘s modesty is her sex and from her very birth she possesses
the modesty which is the attribute of her sex. It was held that seven and half months baby had
modesty. Inserting fingers in her vagina was outrage of modesty. Accused was convicted under
Section 354, IPC.
352
353
Pandurang Mahale v. State of Maharashtra and Anr. 2004 (4) SCC 371 and Ramkripal S/o Shyamlal Charmakar
v. State of Madhya Pradesh Date of Judgment: March 19, 2007.
354
AIR 1996 SC 309. Date of Judgment: 12 October, 1995.
355

267
In Baldeo Prasad Singh v. State356 victim was cooking food. Baldeo Prasad Singh entered into
house and squeezed her breasts. After this he ran away. He was punished under section 354.
Orissa High Court convicted accused for outraging modesty of the victim.
In Pandurang Mahale v. State of Maharashtra and Anr.357 (2004) Supreme Court observed,
―The act of pulling a women, removing her saree, coupled with a request for sexual intercourse,
is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is
likely to be outraged, is sufficient to constitute the offence without any deliberate intention
having such ourtrage alone for its object‖. It was followed in Ramkripal S/o Shyamlal
Charmakar v. State of Madhya Pradesh.358
(5). Offender – There is neither dispute nor doubt that men can commit offence under
Section 354, IPC. There are some doubts whether a woman can outrage modesty of other
woman. ‗Whoever…‘ word denotes that any person irrespective of age or sex. This word
includes he, she and transgender. ‗… he will there by outrage her modesty…‘ words
have been used. According to Section 8, the pronoun ―he‖ and its derivatives are used of
any person, whether male or female. He includes she. Whoever may be interpreted in the
light of Sections 354A, 354B, 354C, 354D and 375. Section 375 say, ‗a man is said to
commit rape…Section 375 clearly says that only men can commit rape. In contrast of
Section 375, Section 354 uses ‗Whoever‘.
Brother of victim had already been arrested for raping four year girl. All the women accused
assembled together pulled out victim from home in public. They naked her (22yreas) by tearing
her clothes. They compelled her naked parading her in public on June 17, 2010. Session Court
rejected argument that only man can be convicted under Section 354. Session Court interpreted
Section 354 read with sections 7 and 8. 11 women were convicted under Section 354 for
outraging the modesty of woman by Session Court in December, 2015.359
Problem - There was fighting between Salama and Riya in Faculty of Law, University of Delhi.
Riya intentionally or knowingly squeezes boobs of Salama during fight. Salama reached to
Mauris Nagar Police Station and she was making pressure over SHO to register cases under
Sections 323 and 354, IPC. SHO is ready to register the case under Section 323, but he denied
registering FIR under Section 354, IPC. Salama reached to Court and making request to pass an
order for registration of FIR under Section 354 by using power under Section 154 (3), CrPC.
Is Riya can commit offence under Section 354, IPC?
Solution- Riya can commit offence under Section 354. Knowledge means awareness of
consequences. ‗Squeezing‘ word has been used rather than touching or holding. Answer of this
356
1984 Cri. L.J. (NOC) 122 (Orissa).
357
2004 (4) SCC 371.
358
359
Rebecca Samerve, ‗11 women jailed for 'outraging modesty' Times of India, December 30, 1015. Available at:
https://timesofindia.indiatimes.com/city/mumbai/11-women-jailed-for-outraging-
modesty/articleshow/50374229.cms (Visited on March 4, 2022).

268
question is based on meaning of ‗Whoever‘ and ‗he‘ which have been used under Section 354.
‗He‘ must be interpreted in the light of Sections 8 r/w Section 7. Whoever may be interpreted in
the light of Sections 354A, 354B, 354C, 354D and 375. These Sections clearly use ‗Man‘ rather
than whoever. It means legislative body was not ready to allow one woman to outrage modesty
of other women. Meaning of modesty is not gender based.
Women are also loosing morality day by day. During the fight, they may do anything to
humiliate other women publicly. Purpose of Section 354 is to protect modesty of women, rather
than protect and convict offender only on the basis of Sex. FIR must be registered against Riya. I
am not going to discuss here power of Magistrate under Section 154 (3), IPC.
There are two cases which are related to K.P.S. Gill. These are –
1. Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr.360 (1995)
2. Kanwar Pal Singh Gill v. State (Admn., U.T. Chandigarh) and Mrs. Rupan Deol Bajaj v.
Kanwar Pal Singh Gill361 (2005)
(1) Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr.362 (1995)
Anatomy- This part of body is called butt.
Fact - This case is known as ‗Butt Slapping Case‘. There are following facts and decision of
Courts -
(i) Mrs. Rupan Deol Bajaj - On July 29, 1988, Mrs. Rupan Deol Bajaj, an Officer of the Indian
Administrative Service (I.A.S) belonging to the Punjab Cadre and then working as the Special
Secretary, Finance, lodged a complaint with the Inspector General of Police, Chandigarh Union
Territory alleging commission of offences under Sections 341, 342, 352, 354, and 509 of the
Indian Penal Code by Mr. K.P.S. Gill, the Director General of Police, Punjab on July 18, 1988 at
a dinner party. K.P.S.Gill had slapped on her posterior (Butt) part of body during dinner party.
She was in dinner party along with her husband.
360
AIR 1996 SC 309. This case was decided by Hon‘ble Justice M.K. Mukherjee on October 12, 1995. Available at:
https://indiankanoon.org/doc/579822/ (Visited on March 1, 2022).
361
(2005) 6 SCC161. This case was decided by Hon‘ble Justice K.G. Balakrishnan on 27 July, 2005.
362

269
Treating that complaint as the First Information Report (FIR) a case was registered by the
Central Police Station, Sector 17, Chandigarh and investigation was taken up.
(ii) Mr. B.R. Bajaj - Thereafter on November 22, 1988, her husband Mr. B.R. Bajaj, who also
happens to be a senior I.A.S. officer of the Punjab Cadre, lodged a complaint in the Court of the
Chief Judicial Magistrate for the same offences, alleging, inter alia, that Mr. Gill being a high-
ranking Police Officer the Chandigarh Police had neither arrested him in connection with the
case registered by the Police on his wife's complaint nor conducted investigation in a fair and
impartial manner and apprehending that the Police would conclude the investigation by treating
the case as untraced he was filing the complaint.
(iii) Mr. K.P.S. Gill - In the meantime - on December 16, 1988 to be precise - Mr. Gill moved
the High Court by filing a petition under Section 482 Cr. P.C. for quashing the F.I.R. and the
complaint. He got some relief by interim order of High Court.
(iv) High Court - Both the F.I.R. and the complaint were quashed by order of High Court on
May 29, 1989.
High Court quashed the FIR on the following grounds -
1. No Cognizable offence - the allegations made therein do not disclose any cognizable
offence;
2. Application of Section 95 – Section 95 is based on de minimis non curat lex (the law
does not take trifles into account). The nature of harm allegedly caused to Mrs. Bajaj did
not entitle her to complain about the same in view of Section 95 IPC.
3. Fake allegations- the allegations are unnatural and improbable;
4. Investigation contrary to Section 157, CrPC - the Investigating Officer did not apply
his mind to the allegations made in the F.I.R., for had he done so, he would have found
that there was no reason to suspect commission of a cognizable offence, which was the
‗sine qua non' for starting an investigation under Section 157 Cr. P.C.; and
5. Unreasonable delay - there was unreasonable and unexplained delay of 11 days in
lodging the F.I.R.
As regards the complaint of Mr. Bajaj, the High Court observed that the allegations were
almost identical with some improvements made therein.
(v) Supreme Court - Mrs. Rupan Deol Bajaj and Mr. B.R. Bajaj approached Supreme Court
against judgment of High Court. Mrs. Indira Jaisingh appeared in support of the appeals. She
argued on many points. But I am going to discuss only those arguments which are related to
Section 354, IPC. It was contended that the finding of the High Court that the allegations made
in the F.I.R. attracted the provisions of Section 95 IPC was patently wrong as in a case where the
modesty of a woman is involved, the said section cannot have any manner of application. There
are following ration of judgment of Supreme Court –
(1) Section 95 - Court held that section 95 is not applied in case of offences against women.
(2) Meaning of Modesty - Since the word ‗modesty‘ has not been defined in IPC, dictionary
meaning was observed -

270
a. Shorter Oxford English Dictionary (Third Edition) - Modesty is the quality of

being modest and in relation to woman means ―womanly propriety of behaviour;
scrupulous chastity of thought, speech and conduct‖. The word `modest' in
relation to woman is defined in the dictionary as ―decorous in manner and
conduct; not forward or lewd; shamefast‖.
b. Webster‘s Third New International Dictionary - Modesty as ‗freedom from
coarseness, indelicacy or indecency; a regard for propriety in dress, speech or
conduct‘.
c. Oxford English Dictionary (1933 Ed) - The meaning of the word ‗modesty‘ is
given as ‗womanly propriety of behaviour; scrupulous chastity of thought, speech
and conduct (in man or woman); reserve or sense of shame proceeding from
instinctive aversion to impure or coarse suggestions‘.
(3) State of Punjab v. Major Singh - Justice Bachawat observed, ―The essence of a woman‘s
modesty is her sex and from her very birth she possesses the modesty which is the
attribute of her sex.
Conclusion –
 Supreme Court concluded that there were sufficient materials for taking cognizance of
the offences under Sections 354 and 509 I.P.C.
 Supreme Court said, ―We direct the learned Chief Judicial Magistrate, Chandigarh to take
cognizance upon the police report in respect of the offences under Sections 354 and 509
IPC and try the case himself in accordance with law‖.
 Both appeals were allowed. Decision of High Court was overruled.
Consequences of This Judgment –

(1) CJM - On the Order of Supreme Court CJM, Chandigarh took the cognizance for the offence
Section 354 and Section 509, IPC and conducted trial. CJM convicted KPS Gill and awarded
punishment which are following –
(a) Section 354 - Imprisonment for a period of three months and pay a fine of Rs.500 for the
offence under Section 354; and
(b) Section 509 - for the offence under Section 509 IPC, punishment of simple imprisonment for
a period of two months and a fine of Rs. 200/- were imposed on the accused.
(2) Session Judge - In the appeal preferred by the accused, the Sessions Judge confirmed the
conviction, but altered the sentence and the accused was directed to be released on probation in
lieu of custodial sentence. The fine was enhanced to Rs.50,000 with a further direction to pay
half of it to the complainant.
(3) High Court - The accused challenged the same in the revision before the High Court. The
High Court did not interfere with the conviction of the accused under Section 354 and Section
509. However, the fine was enhanced to Rs.2,00,000/- and the entire amount was directed to be
paid to the prosecutrix.

271
(5) Supreme Court – Neither K P S Gill nor Mrs. Rupan Deol Bajaj was satisfied from the
decision of High Court. KPS Gill was not satisfied because he was convicted by High Court.
Mrs. Rupan Deol Bajaj was not satisfied because nominal punishment was awarded. Both
appeals were clubbed together and decided on July 27, 2005.
Name of the case before Supreme Court is Kanwar Pal Singh Gill v. State (Admn., U.T.
Chandigarh) and Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill363 (2005).
(1) KPS Gill v. State - KPS Gill (accused) was found guilty under section 354 and section
509. Although there was no need to go jail. the accused was directed to be released on
probation in lieu of custodial sentence. He was directed to pay Rs.2,00,000/- to victim.
He approached Supreme Court against his conviction.
(2) Rupan Deol Bajaj v. KPS Gill – Rupan Deol Bajaj (Victim) approached Supreme Court
for enhancement of punishment. She was no need of money. She was interested to see
KPS Gill in prison.
 Behavour of top-ranking police officer - It is clear that the behaviour of the accused on
the date of the incident was not consistent with the high standard expected of a top-
ranking police officer.
 Slapping on the posterior under Section 354 - The findings of the various courts is to
the effect that the accused gently slapped on the posterior of the prosecutrix in the
presence of some guests. The accused being a police officer of the highest rank should
have been exceedingly careful and failure to do so and by touching the body of the
complainant with culpable intention he committed the offence punishable under Section
354 and 509 IPC.
 Intention and Knowledge - It is proved that the accused used criminal force with intent
to outrage the modesty of the complainant and that he knew fully well that gently
slapping on the posterior of the prosecutrix in the presence of other guests would
embarrass her. Knowledge can be attributed to the accused that he was fully aware that
touching the body of the prosecutrix at that place and time would amount to outraging her
modesty. Had it been without any culpable intention on the part of the accused, nobody
would have taken notice of the incident. The prosecutrix made such a hue and cry
immediately after the incident and the reaction of the prosecutrix is very much relevant to
take note of the whole incident.
 Concurrent Finding of all Courts -In view of the findings of fact recorded by the two
courts and affirmed by the High Court in revision, the order of the High Court cannot be
set aside on the mere assertion by the accused that the whole incident was falsely foisted
on him with ulterior motives.
 Faith in Judicial System –The incedent happened in 1988. Despite the accused holding
a high positition in the State Police, the various courts found him guilty of the offence
363
(2005) 6 SCC161. This case was decided by Hon‘ble Justice K.G. Balakrishnan on 27 July, 2005.

272
punishable under section 354 and section 509 and that by itself is a setting a model for
others and would enhance the faith in judicial system.
 No need of enhancement of punishment and Dismissal of Appeal of R D Bajaj- The
accused had completed the period of probation. There was no occasion for any complaint
or violation of any of the terms of the bond. At this juncture, we do not think that it is just
and proper to resort to any other punishment. In our view, the criminal appeal No. 430 of
1999 preferred by the complainant against the judgment of the High Court is without any
substance and the same is dismissed accordingly.
 Rejection of money to be paid her - Complainant had no intention of withdrawing Rs.2
lacs ordered to be paid to her by way of compensation. The amount may be lying now in
the court deposit with the High Court of Punjab & Haryana.
 Dismissal of Appeal -The appeal was dismissed accordingly.
 Conclusion – Both appeals were dismissed. Neither punishment was enhanced, nor was
conviction or order of amount to pay money changed. The accused had completed
probation without any breach. There was no occasion to enhance punishment.
(7.3.) SECTION 354A
Article 15 (3), State can make any special law for protection of women. According to Article
51A(e), it is fundamental duty of every citizen of India to renounce practices derogatory to the
dignity of women. Gender justice is pillar of Article 14. Right to privacy and dignified life is sine
qua non part of Article 21. These rights are also available to foreigners including women of
enemies countries. Sexual harassment can be discussed though following points –
(1) Section 354 [1860] – Before insertion of Section 354A in 2013, sexual harassment was
covered under Section 354. Now Sexual harassment is covered under Section 354A. If any act
which is not covered under Section 354A, but that is outrage of modesty, it will be punished
according to Section 354, IPC. Section 354A is specific, while Section 354 is general.
(2) Vishaka Case [1997] - Writ petition was filed for violation of Articles 14, 19 and 21.
Vishaka & Ors v. State of Rajasthan & Ors364 was decided by Supreme Court in which sexual
harassment at workplace was discussed. Gender equality is fundamental right. The right to be
protected from sexual harassment and sexual assault is, therefore, guaranteed by the
Constitution, and is one of the pillars on which the very construct of gender justice stands.
Guidelines were issued for protection of Sexual harassment of women at workplace and it was
directed that these guidelines should be treated as law under Article 141 of the Constitution of
India. Sexual harassment was defined in this case. The Court observed, ―…sexual harassment
includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
364
Date of Judgment: August 13, 2022. Available at: https://main.sci.gov.in/judgment/judis/13856.pdf (Visited on
March 03, 2022).

273
b) a demand or request for sexual favours;

c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature‖.
In Apparel Export Promotion Council v. A.K.Chopra365 the respondent was working as a Private
Secretary to the Chairman of the Apparel Export Promotion Council. It was alleged that on
12.8.1988, he tried to molest a woman employee of the Council, Miss X (name withheld by us)
who was at the relevant time working as a Clerk-cum-Typist. He tried to sit close to her and
touch her despite her objections. According to Miss X, the respondent had tried to molest her
physically in the lift also while coming to the basement but she saved herself by pressing the
emergency button, which made the door of the lift to open. She lodged written complaint in
department and accused was immediately suspended. In this case meaning of Sexual harassment
given in Vishaka Case was discussed. But Section 354, IPC was not discussed.
For the purpose of criminal law, sexual harassment was cover under Section 354 before 2013
amendment. Now specific section has been provided for this. So it will be covered under Section
354A. Section 354A is gender based. Only man can commit offence and only woman can be
victim.
Sexual Harassment (PDS & M.Sc.) has been provided under section 354A which was inserted
by Criminal Law (Amendment) Act, 2013. The Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 was enacted in 2013. Section 2 (n) of the Act
also defines sexual harassment which is following -
Section 2 (n) - ―sexual harassment‖ includes any one or more of the following unwelcome acts
or behavior (whether directly or by implication) namely:—
I. physical contact and advances; or

II. a demand or request for sexual favours; or
III. making sexually coloured remarks; or
IV. showing pornography; or
V. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
Section 354A (1), IPC also defines sexual harassment. According to section 354A (1) –
A man committing any of the following acts-
(i) P -physical contact and advances involving unwelcome and explicit sexual
overtures; or
(ii) D- a demand or request for sexual favours; or
(iii) S- showing pornography against the will of a woman; or
(iv) M.Sc. making sexually coloured remarks, shall be guilty of the offence of sexual
harassment.
365
AIR 1999 SC 625, Date of Judgment: January 20, 1999. Available at:
https://main.sci.gov.in/judgment/judis/17025.pdf (Visited on March 4, 2022).

274
Punishment for sexual harassment - Punishment for sexual harassment may be divided into
two parts –
 Punishment for PDS (i) (ii) and (iii) (Three Years) -Any man who commits the offence
specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with
rigorous imprisonment for a term which may extend to three years, or with fine, or with
both.
 Punishment for M.Sc. (iv) (One Year) -Any man who commits the offence specified in
clause (iv) of sub-section (1) shall be punished with imprisonment of either description
for a term which may extend to one year, or with fine, or with both.
Sexual Harassment Allegation against former CJI
Massive controversy had erupted in 2019 after a Supreme Court staffer [Junior Court Assistant]
alleged sexual harassment by then CJI Ranjan Gogo. She claimed that she was harassed in many
way including suspension of her husband and brother-in-law, both of whom are head constables
in Delhi Police on December 28, 2018, for a criminal case involving a colony dispute dating
back to 2012 that had been mutually resolved. She apologized and rubbed her nose on the feet of
wife of Mr Gogoi on the direction of his wife. Despite the apology, her disabled brother-in-law,
who had been appointed to the Supreme Court on October 9 as a temporary junior court
attendant under the discretionary quota of the Chief Justice of India, was served a termination
letter on January 14. No reasons were given. Police went to Rajasthan at home town and
registered FIR against her. She was arrested and kept in police custody. Her husband was beaten
in police custody.366
She told, ―It is only when the victimisation has reached unbearable proportions when me and my
family were taken into police custody and tortured, and now there is imminent danger to my life
that I am compelled to speak the whole truth, in order to save myself and my family.‖
366
Sruthisagar Yamunan & Supriya Sharma, ―Chief Justice of India sexually harassed me, says former SC staffer in
affidavit to 22 judges‖ Scroll.in, April 20, 2019. Available at: https://scroll.in/article/920678/chief-justice-of-india-
sexually-harassed-me-says-former-sc-staffer-in-affidavit-to-22-judges ( Visited on March 03, 2022).

275
The woman, who worked as a junior court assistant at the Supreme Court, had alleged that Gogoi
made sexual advances (Sexual Harassment) on her at his residence office on October 10 and
October 11, 2018. She had submitted an affidavit to 22 judges of the Supreme Court on April 19,
2019, and called for an inquiry against Gogoi. Victim was under surveillance through the
‗Pegasus‘ after submission of the Affidavit.367
She wrote in affidavit, ―He hugged me around the waist, and touched me all over my body with
his arms and by pressing his body against mine, and did not let go.‖
Supreme Court had closed suo motu proceeding against sexual harassment charge against
Former Chief Justice of India Mr. Ranjan Gogoi who delivered Ayodhya Judgment and now
Member of Rajya Sabha.368 He had played vital role in preparation of NRC. Supreme Court
observed that there was a possibility of a conspiracy behind the case.369
DISROBING OF MAN and WOMAN
(7.4.) SECTION 354B
Assault or Use of Criminal Force to Woman with Intent to Disrobe.

Any man who assaults or uses criminal force to any woman or abets such act with the intention
of disrobing or compelling her to be naked, shall be punished with imprisonment of either
description for a term which shall not be less than three years but which may extend to seven
years, and shall also be liable to fine.
Comments
There are following ingredients of Section 354B –
(1). Only man can commit crime. This is not neutral law.
(2). Only woman can be victim.
(3). It can be caused either by assault or criminal force.
(4). Disrobing must be with intention.
There are two parts of this section namely; (a) actus reus, and (b) mens rea. Even threat for
disrobing is sufficient. Even abetment is also punishable. Attempt to disrobe will cover under
Section 511, IPC. This gender based law. Only man can commit offence. Only disrobing of
women is punishable.
367
Scroll Staff, Pegasus: Woman who accused former CJI Ranjan Gogoi of sexual harassment among potential
targets‘ Scroll.in‘ March 03, 2022. Available at: https://scroll.in/latest/1000586/pegasus-woman-who-accused-
former-cji-ranjan-gogoi-of-sexual-harassment-among-potential-targets ( Visited on March 4, 2022).
368
Reporter, ‗SC closes sexual harassment proceedings against former CJI Ranjan Gogoi, hints at conspiracy behind
charges‘ India Today, February 18, 2021. https://www.indiatoday.in/india/story/sc-closes-sexual-harassment-case-
against-ranjan-gogoi-1770437-2021-02-18 (Visited on March 03, 2022).
369
G. Ananthakrishnan, Supreme Court closes cases against ex-CJI Ranjan Gogoi, says plot against him not ruled
out‘ ‗Indian Express‘, February 19, 2021. Available at: https://indianexpress.com/article/india/ranjan-gogoi-sexual-
harassment-case-supreme-court-conspiracy-7193712/ (Visited on March 3, 2022).

276
Pulling of veil without consent of women is criminal force. Section 350, illustration (f) says, ― A
intentionally pulls up a Woman‘s veil. Here A intentionally uses force to her, and if he does so
without her consent intending or knowing it to be likely that he may thereby injure, frighten or
annoy her, he has used criminal force to her‘. Essential ingredient of Section 354 B is criminal
force.
Group of men recorded their act of forcefully disrobing a woman and more than 20 people were
looking in Uttarakhand in 2016. No one had saved her. There was viral video.370
Disrobing of man by men or women - What would offence be constituted in case of disrobing
of man by man or women?
In case of minor matter will be covered under POCSO, Act 2012 especially under Section 11 (ii).
In case of other, matter will be covered under Section 355. Disrobing a man is dishonor of that
person. Under section person has been used. It means culprit may be of any sex.
Pic: Naked Person.

Pulling of Hijab, Veil or Bikini
Hindu and Muslim are two eyes of mother India. Both have fundamental rights to enjoy their life
as per their wish. It is other thing that any fundamental right is not absolute. They can be
compelled to show their face only for security purposes. But these women cannot be compelled
to wear any particular types of dress. Dress is part of right to life. Pulling hijab, veil and bikini is
violation of dignified life. Disrobing means take off one‘ clothing. There are two types of
disrobing – (1) Partial disrobing, and (2) complete disrobing. Pulling of only hijab, veil or bikini
is partial disrobing.
Pulling of veil without consent of women is criminal force. Section 350, illustration (f) says, ― A
intentionally pulls up a Woman‘s veil. Here A intentionally uses force to her, and if he does so
without her consent intending or knowing it to be likely that he may thereby injure, frighten or
annoy her, he has used criminal force to her‘. One of them essential ingredient of Section 354
and Section 354B is criminal force.
370
Vineet Upadhyay, Group of men record their act of forcefully disrobing a womanwhile more than 20 stood
watching the act, The Times of India, September 25, 2016. Available at:
https://timesofindia.indiatimes.com/city/dehradun/group-of-men-record-their-act-of-forcefully-disrobing-a-woman-
while-more-than-20-stood-watching-the-act/articleshow/54508105.cms (Visited on March 03, 2022).

277
In Pandurang Mahale v. State of Maharashtra and Anr.371 (2004) Supreme Court observed,
―The act of pulling a women, removing her saree, coupled with a request for sexual intercourse,
is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is
likely to be outraged, is sufficient to constitute the offence without any deliberate intention
having such ourtrage alone for its object‖. It was followed in Ramkripal S/o Shyamlal
Charmakar v. State of Madhya Pradesh.372
I had already discussed meaning of modesty with the help of Punjab v. Major Singh373 and Mrs.
Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr.374
Note: We should respect dress of each and every woman.
If anyone pulls hijab, veil or bikini against the consent of woman, question arises what offence
had been committed by him/her? There are following answer –
(1) Disrobing by woman – If one woman disrobes other woman, she will be liable under
Section 354, IPC.
(2) Disrobing by man - If one man disrobes other woman, he will be liable under Section 354 B,
IPC.
371
2004 (4) SCC 371.
372
373
374

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(7.5.) SECTION 354C
Voyeurism has been provided under Section 354C which was inserted by Criminal Law
(Amendment) Act, 2013.
Voyeurism
[Section 354C]
Only Man (Accused) Himself or

Only Woman victim
with help of other
Watch Capture Disseminate
Electronic & Permanent sending picture to other

Not permanent form
Form [MMS] [Circulation of MMS]
Section 354C –
 Any man
 who watches, or captures the image
 of a woman
 engaging in a private act
 in circumstances where she would usually have the expectation of not being observed
 either by the perpetrator or by any other person at the behest of the perpetrator or
disseminates such image
 shall be punished on first conviction with imprisonment of either description for a term
which shall not be less than one year, but which may extend to three years, and shall also
be liable to fine, and be punished on a second or subsequent conviction, with
imprisonment of either description for a term which shall not be less than three years, but
which may extend to seven years, and shall also be liable to fine.
Explanation1- For the purpose of this section, ―private act‖ includes an act of watching carried
out in a place which, in the circumstances, would reasonably be expected to provide privacy and
where the victim‘s genitals, posterior or breasts are exposed or covered only in underwear; or
the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily
done in public.
Explanation 2 - Where the victim consents to the capture of the images or any act, but not to
their dissemination to third persons and where such image or act is disseminated, such
dissemination shall be considered an offence under this section.
There are following ingredient of voyeurism –

279
a. Expectation of woman- There must be expectation of woman that no one must see
her. If she is taking kiss with her boyfriend in public auto rickshaw and another
passenger is seeing rather than gazing it will not amount voyeurism.
b. ―Private Act‖ - The woman must engage in ‗private act‘. According to explanation 2
―private act‖ includes an act of watching carried out in a place which, in the
circumstances, would reasonably be expected to provide privacy and where the
victim‘s genitals, posterior or breasts are exposed or covered only in underwear; or
the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind
ordinarily done in public.
c. Watching, capturing or disseminating – When she is engaging in private act
someone is either watching or capturing the images of woman or he disseminates
such images. According to explanation 2 where the victim consents to the capture of
the images or any act, but not to their dissemination to third persons and where such
image or act is disseminated, such dissemination shall be considered an offence under
this section.
d. Perpetrator or on behalf of perpetrator – Such Watching, capturing or dissemination
may be done either by perpetrator or on behalf of perpetrator.
e. Conviction for first time (1-3Yrs) – He shall be punished on first conviction with
imprisonment of either description for a term which shall not be less than one year,
but which may extend to three years, and shall also be liable to fine.
f. Second or subsequent conviction (3-7Yrs), with imprisonment of either description
for a term which shall not be less than three years, but which may extend to seven
years, and shall also be liable to fine.
(7.6.) SECTION 354D
Stalking is repeated contact that makes you feel afraid or harassed. Someone may stalk you by
following you or calling you often. Stalkers may also use technology to stalk you by sending
unwanted emails or social media messages. About one in six women has experienced stalking in
her lifetime. Women are twice as likely to be stalked as men are. Stalking is a crime.375
Two news portals on Friday made public tapes in which BJP general secretary Amit Shah is
purportedly heard directing police to put a young woman and a senior IAS officer under illegal
surveillance in 2009 when he was Gujarat‘s minister of state for home.376
Stalking has been provided under section 354D377 which was inserted by Criminal Law
(Amendment) Act, 2013. It deals physical and electronic stalking.
375
Available at: https://www.womenshealth.gov/relationships-and-safety/other-types/stalking ( Visited March,
March 4, 2022).
376
HT Correspondent, ‗Amit Shah accused of snooping on woman in 2009‘ Hindustan Times, November 19, 2013.
Available at: https://www.hindustantimes.com/india/amit-shah-accused-of-snooping-on-woman-in-2009/story-
Md1i9PLxPbv9BDNllXpXpL.html (Visited on March 4, 2022).
377
354D. Stalking. - (1) Any man who -

280
Kinds of Stalking -There are two types of stalking namely; (1) Physical and (2) Electronic
i. Physical Stalking - Any man who follows a woman and contacts, or attempts to
contact such woman to foster personal interaction repeatedly despite a clear
indication of disinterest by such woman or
ii. Electronic Stalking- Any man who monitors the use by a woman of the internet,
email or any other form of electronic communication, commits the offence of
stalking. Using ‗Pegasus Spyware‘ against any women will come under this
category. Illegal call intercepting will also come under this category. Repeated
sending of facebook request or comment , whatsapps messages, sending message
through other electronic method and calling etc. will come under this category.
Exceptions -
Three categories of conduct will not amount stalking –
1. Prevention of Crime - It was pursued for the purpose of preventing or detecting crime
and the man accused of stalking had been entrusted with the responsibility of prevention
and detection of crime by the State; or
2. Compliance of Law -It was pursued under any law or to comply with any condition or
requirement imposed by any person under any law; or
(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly
despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication,
commits the offence of stalking:
Provided that such conduct shall not amount to stalking if the man who pursued it proves that—
(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been
entrusted with the responsibility of prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any
law; or
(iii) in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either
description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second
or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and
shall also be liable to fine.

281
3. Reasonable conduct- in the particular circumstances such conduct was reasonable and
justified.
Burden of these three types of conduct will lies on that person who wants to take benefit.
Punishment for Stalking - Punishment for stalking may be divided into two categories namely
(i) First Conviction and (ii) Subsequent Conviction
First Conviction - Whoever commits the offence of stalking shall be punished on first conviction
with imprisonment of either description for a term which may extend to three years, and shall
also be liable to fine;
Subsequent Conviction – He shall be punished on a second or subsequent conviction, with
imprisonment of either description for a term which may extend to five years, and shall also be
liable to fine.

282
(7.7.) Section 375 and Section 376: RAPE
(7.7.1.) INTRODUCTION OF RAPE
The word rape is derived from the Latin word ‗rapio‘ which means to seize. Thus rape literally
means a forcible seizure and that is the essentials characteristic feature of the offence. 378 ‗Rape‘
word has been defined under section 375. Justice J. S. Verma Committee suggested for replacing
definition of section 375.379 The Law Commission of India vide its 172nd Report dated 13th
March, 2000 after considering all aspects had recommended that sexual offences should be made
gender neutral. Bill was introduced in Rajya Sabha on July 12, 2019 to make rape law as neutral
law.380 At present time rape law is gender based.
Rape may be committed by four methods i.e. PIMA (P- Penetrate, I- Insert, M-Manipulate, A-
Applies) in seven circumstances. Only man (section 10) can commit rape of woman (section 10).
One woman cannot commit rape of either man or woman either by inserting sex toy or any part
of her body. One man cannot commit rape of another man. Definition of rape is gender based
rather than neutral. It also covers all aspect of oral sex.381
In our country, rape victim is not considered as a victim. She is divided into caste, religion, race,
residence etc. Forcefully burning of rape victim is gruesome and barbaric activity of Uttar
Pradesh Government. It was vehemently criticized all over world. Other side convicted rape
accused is given Z security only to get political benefit in election. Z security means 55
personnel including NSG Commando who have power to use mobile jammer. Governments are
totally failed to implement the law. Whenever public movement starts, government gives
lollypops. For example after Mathura Rape Case, Delhi Ganga Rape Case and Kathua Rape Case
rape, laws was amended in 1983, 2013 and 2018.
378
V Suresh and D Nagasaila ‗PSA Pillai‘sCriminal Law‘ 719 (Lexis Nexis, New Delhi, 9th Edn. 4th Reprint, 2007).
379
Justice J.S. Verma Committee Report, Page no.439, available at:
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf
(Visited on October 12, 2018).
380
http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/crimnal-E-12719.pdf
381
Basically, oral sex is when you stimulate your partner's genitals with your mouth, lips, or tongue, or they
stimulate your genitals using these body parts. This might involve fellatio (sucking or licking the penis), cunnilingus
(sucking or licking the vagina, vulva, or clitoris, or anilingus (sucking or licking the anus).
Oral sex is often thought of as foreplay, meaning it happens before penetration with a penis or sex toy. It might also
occur after intercourse, or it could replace intercourse entirely. Everyone has their own preferences, and there are no
rules, provided both parties consent to the activity.

283
Pics: Rape Victim was not allowed to be cremated as per her religious norms and other side
convicted ‗Rapist‘ got Z plus security. Is it new India? Is it Ram Rajya?
Definition of Rape: Definition of Rape can be divided into two parts for better understanding of
definition of rape –
(1) Old Definition [Before 2013 Amendment] – There is following relevant part of old
definition -
 Section 375, ―A man is said to commit ―rape‖ who, except in the case hereinafter
excepted, has sexual intercourse with a women under circumstances …‖
 Explanation – Penetration is sufficient to constitute the sexual intercourse necessary to
the offence of rape.
Before the commencement of 2013 definition, there was need of penetration of penis into
vagina. It means there were three conditions namely;
a. Penis - There must be penis. Any object other than penis was not sufficient to constitute
rape. It means insertion of pen, pencil, sex toy, rod, wood, finger and applying mouth to
vagina etc. were not sufficient to constitute rape.
b. Vagina - There must be vagina. It means penetration of penis other than vagina was not
rape. Meaning of vagina was very narrower. It did not cover urethra, labia majora and
labia minora. It means penetration of penis into urethra, labia majora and labia minora,
mouth, anus, navel, between two boobs, between folded hand and fingers was not rape.
c. Penetration – Penetration was sine qua non by penis into vagina. If there was no
penetration, there was no rape. How much penetration of penis was necessary? On this
point, some courts had held that rupture of hymen was necessary. Suppose that there was
penetration of small part of penis, and there was no rupture of hymen. It was not rape.
Such interpretation of rape law was derogatory for women.
(2) New Definition –
Present definition of rape is very wider than earlier definition. This definition can be understood
with the help of following SmartArt -

284
Section 375,IPC
(Strict Liability)
Non registration of FIR is offence Right of Private Defence - S. 100

under s. 166A. Thirdly
Main body Two explanations (Meaning) Two exceptions
Actus Mens rea of Explanation 2 Exception

Explanation 1- Medical Exception 2-
reus accused is - Consent
1 - Vagina intervention Sexual
missing unequivocal
(PIMA) includes or intercourse or
(Strict voluntary
Labia procedure acts with wife
Liability. agreement for
Majora not under 15
specific
sexual act. yrs of age
First to Two Finger
Seventhly Pani Bhushan Test - Lillu v.
deal about Beheru v. State (Mathura State of
of Orissa Independent
mental Rape Case) Haryana Thought v.
condition of (Rupture of
hymen is not Union of
victim rather India
than accused. necessary.
There are two parts of definition of rape. These are – (i) actus reus of accused, and (ii) mental
condition and capacity of victim. Section 375 (a) to (d) deals actus reus. Section 375 firstly to
seventhly deals mental condition and capacity of victim. In Navtej Singh Johar & Ors. v. Union
of India Thr. Secretary Ministry of Law and Justice and Another, Para 206382 Supreme Court
observed, ―A cursory reading of Section 375 IPC divulges that it is a gender specific provision
for the protection of women as only a man can commit the offence of rape. The Section has been
divided into two parts. The former part, comprising of Clauses (a) to (d), simply describes what
acts committed by a man with a woman would amount to rape provided that the said acts are
committed in the circumstances falling under any of the seven descriptions as stipulated by the
latter part of the Section. While Section 375 permits consensual penetrative acts (the definition
of ‗penetration‘ includes oral and anal sex).‖
There is following details of Section 375 -
Section 375. Rape - A man is said to commit ―rape‖ if he -
(a) penetrates
 his penis,
 to any extent,
I. into the vagina, mouth, urethra or anus of a woman or
II. makes her to do so with him or any other person; or
382
Date of Judgment - September 06, 2018.

285
Pic 1: There are many part of penis. Suppose size of penis is five inch. Even insertion of one
inch is sufficient. There is no need to insert whole penis. Reason of this is that ‗to any extent‘
word has been used.
Pic 2 - In this picture, there are two penises. One is in the mouth and other is in anus. But there is
difference between activities regarding penis. These are -
 In case of one penis, accused is inserting, which will come ‗First Part of Section 375(a)‘.
 In another picture woman is taking penis in her mouth. Second situation that penis into
mouth of woman will be covered ‗makes her to do so with him or any other person‘
which has been used in ‗Second Part of Section 375(a)‘.
(b) inserts,
 to any extent,
 any object or a part of the body, not being the penis,
I. into the vagina, the urethra or anus of a woman or
II. makes her to do so with him or any other person; or
(c) manipulates
 any part of the body of a woman
 so as to cause penetration into
I. the vagina, urethra, anus or any part of body of such woman or
II. makes her to do so with him or any other person;

286
Pic 1 – Accused had manipulated two boobs for the penetration of penis. This will cover under
―…any part of body of such woman‘. This will be rape. But suppose he has manipulated two
boobs only for sucking and licking, this will not amount to rape. Such situation will be covered
under Sections 354, 354A (a) and Section 354B.
Pic 2- This pic denotes navel of women. If any person, penetrate his penis into this navel, he will
be liable for rape. This will cover under ―…any part of body of such woman‘. But he is only
licking the navel, this will not amount to rape,
(d) applies
 his mouth383
I. to the vagina, anus, urethra of a woman or
II. makes her to do so with him or any other person,
Pic 1: Man is applying his mouth to the vagina and woman is applying her mouth to penis of
women. There are two provisions will be applicable in this case -
 When man is applying his mouth, matter will come under Section 375 (d).
 Women is applying her mouth, matter will come under Section 375 (a).
383
Lip lock will not amount to rape. Reason is that mouth must be applied vagina, anus, urethra of a woman.

287
Pic 2 – In the second pic, there is no rape. Reason of this is that accused is applying his mouth on
mouth rather than vagina, anus, urethra of a woman. So this will not cover under Section 375 (d).
Woman is applying her moth with mouth of accused rather than with his penis. So matter will
also not be covered under Section 375 (d). It will come under section 354A (a), if other condition
are fulfilled.
Above four activities must be done in following seven circumstances -
First. - Against her will.
Secondly. - Without her consent.
Thirdly. - With her consent, when her consent has been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt.
Fourthly. - With her consent, when the man knows that he is not her husband and that her
consent is given because she believes that he is another man to whom she is or believes herself to
be lawfully married.
Fifthly. - With her consent when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent.
Sixthly.- With or without her consent, when she is under eighteen years of age.
Seventhly. - When she is unable to communicate consent.
Explanation 1. - For the purposes of this section, ―vagina‖ shall also include labia majora.
Extension of meaning of vagina is landmark change for protection of women. labia majora
includes labia minora.
Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by

words, gestures or any form of verbal or non-verbal communication, communicates willingness
to participate in the specific sexual act:

288
Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity384.
Stealthing
Earlier there was no condom, so there was no question of removing of condom during sex.
Stealthing means ‗non-consensual condom removal sex‘ [NCCRS]. It is new practice. Condom is
removed without consent or knowledge of female partner.385
Suppose Juhi had given consent for sexual intercourse with Amogh subject to the condition that
he would make sexual intercourse by using condom. Amogh had made sexual intercourse in
following circumstances –
1. He did not use condom from the very beginning. But she believed that he was making
sexual intercourse with condom, or
2. He was making sexual intercourse by using condom. But he realised that there was no
full entertainment. He removed condom, without her consent and he made sexual
intercourse, or
3. He was making sexual intercourse by using condom. But in his mind, some other thing
was going on. He was interested to make her pregnant. He make small hole in condom
without her consent. After this he made sexual intercourse.
All the case will come under category of ‗Stealthing‘. Amogh was saying that his activities will
not cover under Section 375, secondly. He was arguing that she had given the consent and her
age was above the age of 18 years. Amogh will be liable for rape on the combined reading of
Section 375 (a), Section 375, Secondly, Section 375 Explanation 2 and Section 7 read with 90 of
IPC. There are following relevant provisions and international case law which are relevant to
discuss these points -
384
This proviso has been inserted to nullify judgment of Tuka Ram Case.
385
Ann M. Fefferman and Ushma D. Upadhyay, ‗Hybrid Masculinity and Young Men‘s Circumscribed Engagement
in Contraceptive Management‘ 373 Gender and Society , Vol. 32, No. 3 (June 2018).

289
1. No free consent [Meaning of Consent under Section 90] –If there was actus reaus
under Section 375 (a) to (d) as the case may be. Whether his matter will come under
Section 375, secondly which says without consent. Meaning of consent have been
defined under Section 90. Here for the searching of meaning Sections 7, 90386 and 375
must be read together. She had given consent under misconception of fact. Her consent
was not free consent. Amogh knew that she had given consent subject to condom. It will
treated that Amogh had made sexual consent without free consent. Such situation comes
under rape by deception.
2. Specific consent under Section 375, Explanation 2 - Section 375 explanation specific
consent. It means if she had given consent only for penetration of penis into vagina, but
he penetrated under anus, mouth, boobs, navel etc. it will amount to sex without free
consent. Stealing is similar to these situations. Making sex after removing condom will
amount to rape.
3. Julian Assange v. Swedish Prosecution Authority387 - In August 2010, Mr Julian
Assange, a journalist well known through his operation of Wikileaks, visited Sweden to
give a lecture. Between 13 August 2010 and 18 August 2010, Mr Assange had sexual
relations with two women there, AA and SW. On 20 August 2010 SW, accompanied by
AA, went to the police. Assange, who was aware that it was the expressed wish of the
injured party and a prerequisite of sexual intercourse that a condom be used,
consummated unprotected sexual intercourse with her without her knowledge. Queen‘s
Bench Division, England dismissed the appeal November 02, 2011 and held that it was
not consensual sexual intercourse. It means it was rape.388
4. R. v. Hutchinson389 - This case was decided by Canada Supreme Court on March 07,
2014. This case is related to sabotaged condom. The complainant agreed to sexual
activity with her partner, H, insisting that he use a condom in order to prevent
conception. Unknown to her, H had poked holes in the condom and the complainant
became pregnant. H was charged with aggravated sexual assault. The trial judge found
that the complainant had not consented to unprotected sex and convicted H of sexual
assault. On appeal, the majority upheld the conviction on the basis that condom
protection was an ―essential feature‖ of the sexual activity, and therefore the complainant
386
Section 90. Consent known to be given under fear or misconception.—A consent is not such a consent as is
intended by any section of this Code, if the consent is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception; or
Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is
unable to understand the nature and consequence of that to which he gives his consent; or
Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under
twelve years of age.
387
Available at: https://www.bailii.org/ew/cases/EWHC/Admin/2011/2849.html (Visited on March 6, 2022).
388
Nishtha Garhwal, ‗Stealthing‘ Ipleaders: Indian Legal Solution, November 24, 2021. Available at:
https://blog.ipleaders.in/stealthing-need-well-defined-law-india/ (Visited on March 6, 2022).
389
2014 SCC 19 (CanLII). Available at: https://www.canlii.org/en/ca/scc/doc/2014/2014scc19/2014scc19.html

290
did not consent to the ―sexual activity in question‖. If one is hiding about his positive
HIV condition, this will be fraud. There is no valid consent. In this Case Canadian
Supreme Court at Para 100 observed, ―By any definition, when someone uses a condom,
it is part of the sexual activity. It is therefore part of what is — or is not — consented to.
And if what is consented to is sexual activity with a condom, the condom is expected to
be intact. If it is not intact because of its deliberate sabotaging, the activity that has
been agreed to has been unilaterally changed by the saboteur‖. It was further observed
at Para 101, ―What took place here was sexual intercourse with a sabotaged condom, a
sexual activity to which the complainant did not consent. The fact that she only learned
of the deliberate sabotaging after the sexual activity took place, is of no relevance. What
is relevant is what sexual activity she agreed to engage in with Mr. Hutchinson and
whether he stuck to the bargain. He did not. Since the complainant did not agree at any
time to how she was touched, consent within the meaning of s. 273.1(1) did not exist‖.
Accused was convicted.
5. Sexually Transmitted Disease – Making sex without condom when partner is opposing
without condom will amount to violation of right to life. It is against dignified life. It will
amount to criminal force, fraud and cheating. She is at risk of sexually transmitted
disease including AIDS.390 There is more chance of unwanted pregnancy which will
affect her physically, psychologically and economically. So law must be interpreted for
protection of women.
Conclusion – From the above discussion it becomes clear that Amogh had committed Stealthing
which amount to rape under Section 375 which is punishable under Section 376, IPC on the
ground that there was not free consent.
Exception 1. - A medical procedure or intervention shall not constitute rape.
This exception is very important for protection of doctors. During pregnancy or disease related to
vagina, doctors insert objects or any part of body into vagina are covered under Section 375(b).
But these are not rape due to exception 2 of section 375. Two fingers test is violation of right to
privacy.391 This does not cover either by medical procedure or medical intervention. If any
doctor conduct two finger test, he will be punished for rape.
Exception 2. - Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape.
This exception was discussed in Independent Thought v. Union of India in the light of POCSO
Act, 2012 , Section 375, Sixthly, Section 375 Exception 2 and Article 14 of the Constitution of
390
Alexandra Brodsky, ‗Rape-Adjacent: Imagining Legal Responses to Nonconsensual Condom Removal‖ 183
Columbia Journal of Gender and Law, Vol. 32, No. 2( 2017). Available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2954726 & file:///C:/Users/pc/Downloads/SSRN-
id2954726.pdf (Visited on March 7, 2022).
391
Lillu v. State of Haryana , Supreme Court, 2013.

291
India. Supreme Court held that 15 years of age must be read as 18 years of age otherwise it will
be unconstitutional on the basis of Article 14 of the Constitution of India.
Method to commit rape – There are four methods to constitute the rape. These are actus reus.
These methods are known as PIMA. These were inserted in 2013 to give maximum protection
for women. These actus reus are following –
1. P- Penetrates (Penis)–There must be penetration into four parts
a. Anus
b. Vagina
c. Urethra and
d. Mouth.
2. I-Inserts (Any object or part of body other than penis) –
a. Anus
b. Vagina
c. Urethra
3. M-Manipulates (Any part of the body of woman)-
a. Anus
b. Vagina
c. Urethra or
d. Any part of the body of woman.
4. A-Applies – (Mouth) –
a. Anus
b. Vagina
c. Urethra
There is following table which makes more clear –
Actus Reus Activities of accused Vital organ of women.

[PIMA]
(1)P- Penetration of Penis in (i) Anus (ii) Vagina (iii) Urethra and (iv) Mouth.
Penetrate392 (4)organ of women
(2) I- Insert393 Insertion of Any object (i) Anus (ii) Vagina (iii) Urethra. In Attorney
or part of body other General for India and Ors. v. Satish and
than penis into (3) Another394 (2021) Supreme court said that skin
organ of women. to skin touch is not necessary. This was
392
Section 375(a) penetrates his penis, to any extent, into the vagina, mouth urethra or a=nus of a woman or makes
her to do so with him or any other person;
393
Section 375 (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so with him or any other person;
394
Nov. 18. 2021. Available at:
https://main.sci.gov.in/supremecourt/2021/2286/2286_2021_32_1501_31537_Judgement_18-Nov-2021.pdf (Visited

292
observed during interpretation of POCSO.

Supreme Court observed, ―The use of a spoon,
for instance, to consume food - without touching
it with the hand - in no way diminishes the sense
of touch that is experienced by the lips and the
mouth. Similarly, when a stick, or other object is
pressed onto a person, even when clothed, their
sense of touch is keen enough to feel it‖. In
crowd area like fare, farewell party, bus etc. if
anyone inserts his finger or pen or any other
object into anus of woman, it will be rape. You
cannot take defence that it was not directly
inserted.
Insertion of finger in anus is rape in both
situations -
1. Akhilesh inserted his finger in anus of Gangu
Bai. Due to her salwar, finger went in anus with
salwar. It is rape.
2. Akhilesh inserted his finger in anus of Gangu
Bai. Due to pressure, salwar was torn by finger
and finger went into anus without salwar. It is
rape.
Reasoning of Attorney General for India and
Ors. v. Satish and Another395 will be followed.
Exception 1 Medical Treatment A medical procedure or intervention shall not
constitute rape. But two finger test is not
medical treatment or procedure.
(3) Any part of the body of (i) Anus (ii) Vagina (iii) Urethra or (iv) Any part
M- woman…to cause of the body of woman – For example penetration
Manipulate396 penetration (4) into navel or penetration between two boobs.
(4) A-Applies397 Mouth (3) (i) Anus (ii) Vagina (iii) Urethra. Lip lock will
not be covered under category of rape.
Common in all Sect. 375 (a) to (d) makes her to do so with him or any other
person. It covers third person. For example
395
Nov. 18. 2021.
396
Section 375 (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra,
anus or any part of body of such woman or makes her to do so with him or any other person;
397
Section 375 (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any
other person,

293
making pornography with the help of third man

will constitute rape.
Explanation 1 Extension of Meaning of Vagina includes labia majora. Labia majora
vagina includes labia minora.

294
Rape: Finger in Anus

Law Centre – 1,
FOL, Delhi University
Insertion of finger into anus can be divided into two parts –

(1). Circumstances when it does not amount offence.
(2). Circumstances when it does amount offence.
There are following circumstances in which insertion of finger into anus is and is not an offence
-
 Constipation problem - If you are facing constipation problem, you can use your finger
in your anus. In such situation, there is no offence.
 Man and Man and Woman and woman –
 One major man is inserting his figure in anus of another man with his consent is
not any offence. One major woman is inserting in anus of another woman with
her consent is not any offence.
 One major man is inserting his figure in anus of another man without his consent
is any offence under Section 355 and Section 377. One major woman is inserting
in anus of another woman without her consent is any offence under Section 354,
Section 355 and Section 377.
 In case of minor victim, man or woman accused as the case may be liable for
under POCSO Act, 2012.

295
 Father - If small daughter is facing constipation problem, father insert his finger in anus
of daughter to give her relief, father will not be liable for rape. He will get benefit of
Section 89 which is part of ‗General Exception‘.
 Sexual pleasure with consent - Insertion of finger into anus by man with consent of
woman whose age is above 18 years is not rape. They must be allowed to enjoy their life
as per their wish. They have right to life under Article 21, Constitution of India.
 Doctors –
 Insertion of figure into anus of woman by doctors for the purpose of medical
treatment or procedure will not amount to rape. They will get benefit of Section
375, Exception 1.
 Insertion of figure into anus of woman by doctors for any purpose other than
medical treatment or procedure will amount to rape.
 Wife –
 Insertion of figure by husband into anus of his wife, when age of the wife is above
18 years even without consent will not amount to rape. He will get benefit of
Section 375, Exception 2 read with Independent Thought v. Union of India
(2017).
 But he will be liable for other offences if he had done without her consent. For the
example, he may be liable molestation of modesty (Section 354), Sexual
harassment (Section 354A), causing voluntarily hurt and in some circumstances
causing voluntarily grievous hurt. Even wife is first of all women, after that she is
your wife. Husband should not be allowed to destroy her by treating her as his
property in guise of her wife.
 Anus: Salwar or jeans of woman – In Attorney General for India and Ors. v. Satish and
Another398 (2021) Supreme court said that skin to skin touch is not necessary. This was
observed during interpretation of POCSO. Supreme Court observed, ―The use of a spoon,
for instance, to consume food - without touching it with the hand - in no way diminishes
the sense of touch that is experienced by the lips and the mouth. Similarly, when a stick,
or other object is pressed onto a person, even when clothed, their sense of touch is keen
enough to feel it‖. In crowd area like fare, farewell party, bus etc. if anyone inserts his
finger or pen or any other object into anus of woman, it will be rape. You cannot take
defence that it was not directly inserted. Insertion of finger in anus is rape in both
situations -
 Akhilesh inserted his finger into anus of Gangu Bai. Due to her salwar, finger
went in anus with salwar. It is rape.
398
Nov. 18. 2021.

296
 Akhilesh inserted his finger into anus of Gangu Bai. Due to pressure, salwar was
torn by finger and finger went into anus without salwar. It is rape. Reasoning of
Attorney General for India and Ors. v. Satish and Another399 will be followed.
 Right of Private Defence –
 If a man has reasonable apprehension that other person (Man, woman or
transgender) may cause grievous hurt or hurt by inserting finger, he may cause
death or hurt. In such situation that man will get benefit of Section 100 or Section
101 as the case may be.
 If a woman has reasonable apprehension that another man, woman or transgender
may cause grievous hurt or hurt by inserting finger into anus and she have
reasonable apprehension of grievous hurt or hurt, she may cause death or hurt. In
such situation woman will get benefit of Section 100 or Section 101 as the case
may be.
 If a woman has reasonable apprehension of rape by man, she may cause death.
Rape may be committed by inserting finger into anus under Section 375 (b).
Actual inserting of finger into anus is not necessary. Even in case of reasonable
apprehension of insertion of finger into anus is sufficient is sufficient under
Section 100.
Use of Mouth in Rape
Use of mouth in Rape
Mouth of victim Mouth of accused
Mouth word has been used in two times. Insertion of anything into mouth of woman will not
constitute rape. Only penetration of penis into mouth of woman without her free consent will
constitute rape. Here penis means penis of man rather than penis of animal.
Mouth of (1)Victim &(2) Accused Mouth word has been used in two times
(1)Victim-375(a) Accused-375(d)
Penetration of penis into mouth of woman. A man applies his mouth to vagina, urethra or
Penetration of penis into mouth of man will anus of woman or makes her to do so with him
not constitute rape. It may come under the or with another person.
POCSO, 2012 or if without consent then If a man or woman applies his or her mouth to
under section 377. anus of man it will not constitute rape.
399
Nov. 18. 2021.

297
..…makes her to do so with him or any other person
―…makes her to do so with him or any other person‖ is common in all categories of section
375(a), (b), (c) and (d). These are great significant for protection of interest of women. There are
two parts of this –(1) with him, and (2) with any other person
(1) with him – Sometimes man does not do anything except for giving direction. For example –
suppose he is on bed. He is giving direction a female to rub her vagina with his mouth or with his
penis. The woman is doing so without her free consent as prescribed under seven circumstances
in second part of Section 375. The man will be liable for committing rape.
(2) with any other person - Generally video of pornography is prepared by two or more
persons. One person makes sexual relationship and another person gives direction how to make
sexual relation and takes click and shot of those scene. In this case both persons are liable for
rape.
Rape: Man, Woman and Transgender
Man and woman have been used in Section 375 (a), (b), (c) and (d). Only man can commit rape.
Animal or women can‘t commit rape. Rape of man is not possible.
(a) Man - According to section 10 the word ―man‖ denotes male human being of any age. It
means even a person whose age is below the age of seven years can commit a rape. It is another
thing that he can get benefit of section 82 of IPC. A minor may commits rape. It is another point
that he is treated under special law.
(b) Woman-According to section 10 the word ―woman‖ denotes female human being of any age.
In this way rape can be committed even of child whose age is one month. Rape can also be
committed of a woman whose age is of 90 years or above. Age of woman is immaterial.
(c) Trans-gender –
 In National Legal Services Authority v. Union of India and others,400 Supreme Court
observed, ―person‗s sex is usually assigned at birth, but a relatively small group of
persons may be born with bodies which incorporate both or certain aspects of both male
and female physiology‖. In this case at para 129 Supreme Court observed, ―Hijras,
Eunuchs, apart from binary gender, be treated as ―third gender‖ for the purpose of
safeguarding their rights under Part III of our Constitution and the laws made by the
Parliament and the State Legislature. Transgender persons‘ right to decide their self-
identified gender is also upheld and the Centre and State Governments are directed to
grant legal recognition of their gender identity such as male, female or as third gender.‖
 Now trans-gender has different category only for the purpose of protection. State was
directed to enact laws for the protection. They are still come either male or female as they
400
Date of Judgment: April 15, 2014. Available at: https://main.sci.gov.in/judgment/judis/41411.pdf (Visited on
March 8, 2022).

298
were coming before National Legal Services Authority Case [NALSA] (2014). In this
case they were treated persons under Article 14 for the purpose of equality.
 The Transgender Persons (Protection of Rights) Act, 2019401 was enacted for protection
of transgender. Section 2 (k) of the Act defines transgender which is ‗gender assigned to
that person at birth and includes trans-man or trans-woman (whether or not such person
has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such
other therapy), person with intersex variations, genderqueer and person having such
socio-cultural identities as kinner, hijra, aravani and jogta‘. Section 18 (d) of the Act
says, ― Whoever… harms or injures or endangers the life, safety, health or well-being,
whether mental or physical, of a transgender person or tends to do acts including causing
physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, Functions
of Council. Offences and penalties shall be punishable with imprisonment for a term
which shall not be less than six months but which may extend to two years and with
fine‖.
 IPC and other Criminal Laws have not been amended even after enactment of The
Transgender Persons (Protection of Rights) Act, 2019. Parliamentarians were well aware
about judgment at the time of enactment of The Transgender Persons (Protection of
Rights) Act, 2019.
There is no doubt that matter of transgender will be covered under Section 377. Doubt is
regarding Section 375.
IPC and The Transgender Persons (Protection of Rights) Act, 2019 are silent about rape. There
are three questions which are contradictory to each other. These are –
(1). Whether transgender is not subject matter of Section 375. Section 375 deals man and
woman?
(2). Whether Transgender can commit rape? At present time there is no need of penis.
Objects or any part of the body is sufficient.
(3). Whether Transgender can be victim of rape?
Trans-gender will come either under man or woman as the case may be. They are ‗Third Gender‘
only for the purpose of protection. Thy can commit rape. They can become victim of rape. Their
matters will be covered under Section, 375 & 377 IPC and Section 18 of The Transgender
Persons (Protection of Rights) Act, 2019. Writ petition was filed in Supreme Court. It was
requested either to enhancement punishment for offences under Section 18 of the The
Transgender Persons (Protection of Rights) Act, 2019. The court sought a response to the
petition from India's Ministry of Law and Justice and the Ministry of Social Justice and
Empowerment, but the government is yet to comment.402
401
Available at: https://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf (Visited on March
8, 2022).
402
Available at: https://edition.cnn.com/2020/12/08/india/india-transgender-rape-laws-intl-hnk-dst/index.html

299
According to few persons, Indian Rape Law does not cover transgender under category of
rape.403
Suggestions – It will be better to amend Section 10 and other provisions. It must be provided by
amendment that transgender must be treated ‗Third Gender‘ for all civil and criminal matters.
General Law, Special Law, Local Laws and Military law
According to Section 5404 of Indian Penal Code, IPC shall not affect special or local law or laws
related to mutiny or desertion of soldiers, sailors or airmen etc. For the purpose of applicability
of Indian Penal Code, 1860 laws can be divided into four categories. These are –
1. General Law – ‗General Law‘ is that law which covers many topics and applicable to all
persons within the territory of Country. Indian Penal Code, Transfer of Property Act,
Indian Contract Act, Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872
etc. In Independent Thought v. Union of India & Anr.405 at para 93 Supreme Court
observed that IPC is ‗General Law‘.
2. ―Special law‖ - Section 41 of IPC says, ―A special law is a law applicable to a particular
subject. Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, or the Air
Force Act, Dowry Prohibition Act, 1861, Domestic Violence Act, 2005, POCSO Act,
2012, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013, The Juvenile Justice (Care and Protection of Children) Act, 2015,
The Transgender Persons (Protection of Rights) Act, 2019 etc. are dealing particular
subject. These are special laws.
There was conflict between POCSO Act and Section 375 Exception in Independent
Thought v. Union of India & Anr.406 POCSO Act was enacted under Article 15 (3) for
protection of children in light of Convention on the Rights of the Child, 1989. ‗Unlawful
Sexual activities‘ were controversial. Under IPC making sexual intercourse with his wife
(15 yrs or above) is not ‗Unlawful Sexual activities‘ for the purpose of rape. But under
POCSO Act such activities of husband is offence. Supreme Court at para 93 of the
judgment observed that laws related to children are special laws. Supreme Court
observed that ‗Special Law‘ must prevail over ‗General Law‘ in light of Section 5 read
with Section 41 of IPC, 1860.
403
Esha Mitra, ―India's rape laws don't cover transgender people. They say it's putting them at risk‖ CNN, December
09, 2020. Available at: https://edition.cnn.com/2020/12/08/india/india-transgender-rape-laws-intl-hnk-dst/index.html
404
Section 5. Certain laws not to be affected by this Act.- Nothing in this Act shall affect the provisions of any Act
for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India
or the provisions of any special or local law.
405
Available at: https://main.sci.gov.in/supremecourt/2013/17790/17790_2013_Judgement_11-Oct-2017.pdf (Visited
on March 09, 2022).
406
on March 09, 2022).

300
In Attorney General for India and Ors. v. Satish and Another407 (2021) Supreme Court again
observed that POCSO Act is special law enacted under Article 15 (3).
Relation between General Law and Special Law
There are following points on the basis of which relation between ‗General Law‘ and ‗Special
Law‘ -
 In case of conflict between General Law and Special Law, special law will
prevail.408
 One statute may be ‗General Law‘ in some context and some other context may
be ‗Special Law‘. In Life Insurance Corporation of India v. D.J. Bahadur409, it
was held , ―In determining whether a statute is a special or a general one, the
focus must be on the principal subject-matter plus the particular perspective. For
certain purposes, an Act may be general and for certain other purposes it may be
special‖. There was question regarding LIC Act and Industrial Dispute Act. The
Court observed, ―Industrial disputes at the termination of the settlement as
between the workmen and the Corporation, the Industrial Dispute Act is a special
legislation and the LIC Act a general legislation. Likewise, when compensation
on nationalisation is the question, the LIC Act is the special statute‖. This case
was also cited in Independent Thought Case at para 94.
 Many times there are basic differences between general and special laws. For
example, accused must prove ‗Beyond Reasonable Doubts‘ for proving his
innocence under NDPS Act, 1985 and POCSO Act, 2012. According to Section
30 (2)410 of the POCSO Act, 2012 and Section 35 (2)411 of the NDPS Act, 1986
accused must prove his innocence beyond reasonable doubt.412 Preponderance of
probability is not sufficient. On the other side, if accused wants to take benefit
under any provisions of IPC, he has to prove only ‗Preponderance of
Probabilities‘ under Section 105, Indian Evidence Act, 1872.413
3. ―Local law‖ – According to Section 42, a ―local law‖ is a law applicable only to a
particular part of India. The Armed Forces (Jammu and Kashmir) Special Powers Act,
407
Nov. 18. 2021.
408
Independent Thought v. Union of India.
409
(1981) 1 SCC 315.
410
Section 30 (2) - For the purposes of this section, a fact is said to be proved only when the Special Court believes
it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of
probability.
411
Section 35 (2) of the NDPS Act, 1986 says. ―For the purpose of this section, a fact is said to be proved only when
the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a
preponderance of probability‖.
412
Attorney General for India and Ors. v. Satish and Another , November 18, 2021.
413
State of U.P. v. Ram Swarup & Anr. AIR 1974 SC 1570, Salim Zia v. State of U.P. (1978) Jams Martin v. State
of Kerala, (2004) 2 SCC 203.

301
1990 is local law because it is applicable only in Jammu and Kashmir. At the same time it
is also special law because it deals power of only armed forces.
4. Military Law – There are many laws related to military. For example Army Act, the
Naval Discipline Act, the Indian Navy (Discipline) Act, or the Air Force Act etc. These
are also comes under category of ‗Special Laws‘. IPC does not affect mutiny and
desertion of officers, soldiers, sailors or airmen in the service of the Government of India.
AFSPA and Rape
The Armed Forces (Special Powers) Act, 1958414 comes under ‗Special Law‘ as well as under
‗Military Law. There are only six sections in this Act. This Act confers very wider powers to arm
forces. Many times it is alleged that it also protect rapist army men. It is alleged that it is main
root for gross violation of human rights especially in North-East Region. Rape of Thangjam
Manorama in 2004 is glaring example of this. In the wee hours of July 11, 2004, 32-year-old
Thangjam Manorama was picked up in the night from her home in Laiphorak Maring in Manipur
by members of the 17th Assam Rifles unit (the Indian Army). The next day, she was found lying
naked and dead near her house. Her body was punctured with bullet wounds and badly mutilated.
Semen was also found on her body.415 There was big movement against this rape. It was alleged
that she belonged to PLA (People‘s Liberation Army).
The Manipur government instituted a Commission of Inquiry to look into Manorama‘s death.
The commission was headed by a retired judge, Chungkham Upendra Singh. The Assam Rifles
refused to send anyone to provide statements or testify before the commission regarding what
had transpired the night Manorama died, saying that all the people involved had been transferred.
It said it was conducting its own inquiry into the matter as a result of which the police or other
414
Available at: https://www.indiacode.nic.in/bitstream/123456789/1527/1/a1958-28.pdf (Visited on March 09,
2022).
415
Amala Dasarathi, ‗Remembering Thangjam Manorama | #IndianWomenInHistory‘ ‗Feminism in India‘ March
09, 2017. Available at: https://feminisminindia.com/2017/03/09/thangjam-manorama-essay/ (Visited on March 09,
2022).

302
civilian forces could not be involved. It was challenged by Assam Rifles on the ground of
Section 6416 of AFSP Act, 1958. Section 6 provides ‗immunity from prosecution‘ granted to
armed forces‘ personnel.417 It was alleged that only Central Government can constitute inquiry.
State Government had no power. It was accepted by High Court.418
Here Explanation of Section 197 (1) is very important which was inserted in 2013. Section 197
prohibits Courts to take cognizance against judges and public servants without prior sanction of
Central or State Governments as the case may be. But this Explanation says, ― For the removal of
doubts it is hereby declared that no sanction shall be required in case of a public servant accused
of any offence alleged to have been committed under section 166A, section 166B, section 354,
section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376A,
section 376AB, section 376C, section 376D, section 376DA, section 376DB] or section 509 of
the Indian Penal Code (45 of 1860)‖. It means if there is allegation of rape against public servant,
there is no need to take cognizance.
On the other Side Section 6 of the AFSP Act, 1958 neither mention explanation nor any
exception. It means where AFSP Ac, 1958 is applicable, no prosecution can be started against
armed force.
………………………………………………………………………………………………….
….to any extent (Section 375 (a) & (b)
Penetration of full penis or insertion of full part of body or whole object is not necessary. Now
no need of rupture of hymen. There are many part of penis. Suppose size of penis is five inch.
Even insertion of one inch is sufficient. There is no need to insert whole penis. Reason of this is
that ‗to any extent‘ word has been used.
Mental Condition of Victim
There are seven circumstances related to mental condition of victim. Mental condition of victim
can be divided between into categories. These are -
(1) Lawful consent -Voluntarily consent, and
(2) Unlawful or without consent - Consent obtained under fear, fraud or misconception of
fact or consent given by those person who are not competent to give consent. In reality
unlawful consent is no consent in eyes of law. Sections 7, 90 and Explanation 2 of section
375 are also relevant.
Consensual sexual intercourse between two majors is valid. But this consent must not had been
given under misconception of facts or fear of death or hurt. Sex is rule. Relation between
416
The Armed Forces (Special Powers) Act, 1958, Section 6. Protection to persons acting under Act - No
prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central
Government, against any person in respect of anything done or purported to be done in exercise of the powers
conferred by this Act.
417
Himangshu Ranjan Nath and Falakyar Askari, ‗The Armed Forces (Special Powers) Act, 1958, And Federal
Conflicts‘ Vol. II, 60 ILI Law Review ( Winter 2017). Available at: https://www.ili.ac.in/pdf/himanshu.pdf (Visited
on March 09, 2022).
418
Amala Dasarathi, ‗Remembering Thangjam Manorama | #IndianWomenInHistory‘ ‗Feminism in India‘ March
09, 2017. Available at: https://feminisminindia.com/2017/03/09/thangjam-manorama-essay/ (Visited on March 09,
2022).

303
husband and wife is allowed. 7.9 Billion population is result of consensual sexual intercourse.
Sexual intercourse is rule. It is prohibited only in few cases. For example it is prohibited in India
only in seven circumstances which had been mentioned under Section 375 firstly to seventhly
and few cases under POCSO Act, 2012. There are seven circumstances in which mental
condition of victim is not relevant to save accused. For the sake of understanding these seven
circumstances may be divided into four categories namely;
(1) No Consent – First and Secondly
(2) With Consent – Thirdly, fourthly and fifthly
(3) With or Without Consent – Sixthly (Modified in 2013 – 16 Years to 18 Years).
(4) Unable to communicate consent – Seventhly (Ins. in 2013)
Consent is anti-thesis of rape.419 It was recommended to substitute the ‗consent‘ by ‗free and
voluntary consent‘. These seven circumstances can be understand with the help of following
table -
S. No. (1) No Consent- First and Secondly

First Against her will
Secondly Without her consent.
(2) With Consent- Thirdly, fourthly and fifthly
Thirdly With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or
believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.
(3) With or Without Consent – Sixthly
Sixthly With or without her consent, when she is under eighteen years of age.
(4) Unable to communicate consent - Seventhly (Ins. 2013)
Seventhly When she is unable to communicate consent.
Meaning of Consent
Explanation Consent means an unequivocal voluntary agreement when the woman by words,
2 gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration
shall not by the reason only of that fact, be regarded as consenting to the sexual
activity420.
419
LCI, Report 84, Para 2.6, Page no. 6 http://lawcommissionofindia.nic.in/51-100/Report84.pdf (Visited on October
12,2018).

304
Section 375: Two Exceptions

There are two exceptions of Section 375. First Exception is related to medical intervention which
is exception of Section 375 (b). Second exception is related to marital rape which is exception of
Section 375, Sixthly.
Section 375:
2 Exceptions
Medical Marital
TIntervention Rape
It is exception of It is exception of
Sec. 375 (b) Sec. 375, Sixthly
(1) Medical Intervention or Procedure - A medical procedure or intervention shall not

constitute rape. This exception excludes insertion of object for medical treatment from section
375(b). In absence of this exception several activities of medical treatment will come under the
categories of rape. ‗Two finger test‘421 has been prohibited by Supreme Court. So insertion of
two fingers for check up to decide commission of rape by medical practitioner will constitute
rape. In Lillu v. State of Haryana (2013) Hon‘ble Supreme Court held that ―Two Finger Test‖ is
violation of ‗Right to Privacy‘. In many cases ‗two finger test‘ had been applied. It was applied
even in Tuka Ram and Anr. v. State of Maharashtra (1978).
(2) Marital Rape – This exception can be divided into two parts –
(a) before Independent Thought v. Union of India & Anr.422 and
(b) after Independent Thought v. Union of India & Anr.423
(a) before Independent Thought Case (2017) Sexual intercourse or sexual acts by a man with
his own wife, the wife not being under fifteen years of age, is not rape. Sexual intercourse with
wife who is below the age of 15 years will constitute the rape.
(b) After Independent Thought Case, protection for wife has been increased. By this judgment,
sexual intercourse with wife below the age of 18 years, have been declared rape. In Independent
Thought v. Union of India & Anr.424 Supreme Court observed following important points -
I. Section 375 Exception 2 is arbitrary to Articles 14, 15 & 21 of the Constitution of

India. It makes unreasonable classification between married (15 -18 yrs. - No
rape) and unmarried girl (15 -18 yrs – Rape).
II. It is inconsistent with the provisions of POCSO, which must prevail.
420
This proviso has been inserted to nullify judgment of Tuka Ram Case.
421
Lillu @ Rajesh and Anr. v. State of Haryana [(2013)14SCC643]. It violates right to privacy. The two finger test
and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus,
this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.
422
Date of Judgment11Oct.2017.
423
424

305
III. Now in all cases, sexual intercourse with a women including wife, if she is below
the age of 18 years, is rape.
IV. In this way, now, there is no difference between unmarried and married women. If
wife is below the age of 18 years, and husband makes sexual relation with his
wife whether with consent or without consent, it would be amount to rape.
Anomaly of Legal relation of sexual intercourse by husband with wife was compared with
unmarried girl (for example unmarried girl). It was found that there was clear cut violation of
Article 14 of the Constitution of India. This can be understood with the help of following tables -
Married Unmarried / Girl Friend
Below Below
15Yrs 15Yrs
Rape Rape
Table 1: Comparison between married and unmarried woman below the age of 15 Years before
2017.
Between Between
15 -18Yrs 15 to 18Yrs
No Rape Rape
Table 2: Comparison between married and unmarried woman between age of 15 to 18 Years
before 2017.
After decision of Independent Thought Case (2017) sexual relation between wife and unmarried
girl (For example unmarried girl) is following -
15 -18Yrs
Between
15 to 18Yrs
Rape Rape
Table 3: Comparison between married and unmarried woman between age of 15 to 18 Years
before 2017.
If there is sexual intercourse without consent,
 in case of wife, there is no rape.
 In case of other than wife, it is rape.
Married Unmarried Girl Friend / Married Girl

Friend / third woman
Above Above
18Yrs 18Yrs
No Rape Rape
Table 4 : Comparison between married and unmarried woman above 18 Years before 2017.

306
Consent for Specific sexual act
If a woman has given consent for penetration of penis into vagina but person intentionally had
inserted penis either into urethra or anus or mouth it will amount to rape.
Before 2013 Amendment, to constitute the rape insertion of penis into vagina was necessary. So
several accused persons were getting benefit by proving that there was no insertion of penis into
vagina. Now law has been changed. Now penetration of penis into urethra (Urine part), vagina
(Now vagina includes labia majora. Earlier it was not so. There are two types of labia namely
(i) Labia minora and (2) Labia Majora. In Law Labia majora covers labia minora), anus and
mouth also constitute rape. This law is in favour of women. So with the help of this chart we can
understand differences among vagina, urethra, labia majora and labia minora. In some cases
Courts held that rupture of hymen was necessary. Later on in the case of Pani Bhushan Beheru
v. State of Orissa, Orissa High Court held that rupture of hymen was not necessary.
Strict Liability (Section 375 does not talk about guilty mind of accused).
Rape
Victim Accused
Mental Condition Actus Reus Mens Rea
PIMA
Firstly to Seventhly Section 375 is silent
State of U.P. v. Chottey Lal (2011) S.C.

Difference between ―against her will‖ and ―without her consent‖
The expressions ―against her will‖ and ―without her consent‖ may overlap sometimes but
surely the two expressions in clause Firstly and clause Secondly have different connotation and
dimension. The expression ―against her will‖ would ordinarily mean that the intercourse was
done by a man with a woman despite her resistance and opposition. On the other hand, the
expression ―without her consent‖ would comprehend an act of reason accompanied by
deliberation.
It must be noted that the Courts have followed the tests laid down under Section 90 of the
IPC for establishing ―consent‖.
Section 90. Consent known to be given under fear or misconception.—

A consent is not such a consent as is intended by any section of this Code, if the consent
is given by a person under fear of injury, or under a misconception of fact, and if the person

307
doing the act knows, or has reason to believe, that the consent was given in consequence of such
fear or misconception; or
[Consent of insane person] if the consent is given by a person who, from unsoundness of mind,
or intoxication, is unable to understand the nature and consequence of that to which he gives his
consent; or
[Consent of child] unless the contrary appears from the context, if the consent is given by a
person who is under twelve years of age.‖
Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and Justice and
Another (Date of Judgment - September 06, 2018).
(1) Para 206 - A cursory reading of Section 375 IPC divulges that it is a gender specific
provision for the protection of women as only a man can commit the offence of rape. The
Section has been divided into two parts. The former part, comprising of Clauses (a) to
(d), simply describes what acts committed by a man with a woman would amount to rape
provided that the said acts are committed in the circumstances falling under any of the
seven descriptions as stipulated by the latter part of the Section.
(2) While Section 375 permits consensual penetrative acts (the definition of ‗penetration‘
includes oral and anal sex), Section 377 makes the same acts of penetration punishable
irrespective of consent. This creates a dichotomy in the law.
(3) The proscription of a consensual sexual relationship under Section 377 is not founded on
any known or rational criteria. Sexual expression and intimacy of a consensual nature,
between adults in private, cannot be treated as ―carnal intercourse against the order of
nature‖.
(7.7.2.) LEADING CASES RELATED TO RAPE

When a person makes an assault with the intention of causing rape, victim may cause any harm
including death of assailant.425 Victim may claim right of private defence of body.426
(1) Yeshwant Rao v. State of M.P.427
Minor daughter of the accused had gone to the toilet on the rear side of the house. The deceased
gripped her and had sexual intercourse with her. The accused seeing his minor girl being raped
by the deceased hit the deceased with a spade. Daughter was minor, so her consent was
immaterial and act of the deceased would amount to committing rape under section 376 and
hence the father in defence of the body of his daughter was justified in exercising his right of
private defence under Section 100 Thirdly.
425
The Indian Penal Code, 1860 (45 of 1860), Section 100, Thirdly.
426
The Indian Penal Code, 1860 (45 of 1860), Section 100.
427
AIR 1992 SC 1683. Date of Judgment- 4 May, 1992.

308
(2) Tuka Ram v. State of Maharashtra428

This case is known as Mathura Rape case. This is related to ‗Custodial Rape‘. Mathura was not
a minor girl who was raped in Police Station by two policemen. This case was decided on
September 15, 1978. This case was decided by full bench consisted of Hon‘ble Justice A.D.
Koshal, Hon‘ble Justice Jaswant Singh and Hon‘ble Justice P.S. Kailasam. This judgment was
written by Hon‘ble Justice A.D. Koshal. In this case Section 375, IPC (Before 1983, 2013 &
2019 Amendments) and Section 375, Thirdly, IPC were involved. Accused was acquitted by
Supreme Court on the ground that there was implied consent. Implied consent was drawn on the
basis that there was no injury on the body of victim. This judgment was vehemently criticized by
public and jurists. Mathura Rape Case led to the Criminal Law Amendment Act, 1983 by which
IPC, CrPC and Indian Evidence Act were amended.
FACTS IN DETAILS
 Mathura & Gama- Mathura‘s parents died when she was a child and she was living
with her brother, Gama. Both of them worked as labourers to earn a living.
 Nunshi & Ashok - Mathura used to go to the house of Nunshi for work and during the
course of her visits to that house she came in contact with Ashok who was the sister‘s son
of Nunshi.
 Love and Dedication - The contact developed into an intimacy between Ashok and
Mathura. Both decided to become husband and wife.
 March 26, 1972 - On 26th of March, 1972 Gama lodged a report at the police station
alleging that Mathura had been kidnapped by Nunshi, her husband Laxman and Ashok.
The report was recorded by Head Constable Baburao, at whose instance all the three
persons complained against as well as Mathura was brought to the police station at about
9 p.m. and the statements of Ashok and Mathura were recorded. By that time, it was
10.30 p.m. and Baburao asked all the persons to leave with a direction to Gama to bring
a copy of the entry regarding the birth date of Mathura.
 Tuka Ram & Ganpat - After Baburao left, Mathura, Nunshi, Gama and Ashok started to
leave the police station. Tuka Ram & Ganpat, however, asked Mathura to wait at the
police station and told her companions to move out. The direction was complied with.
 Rape by Ganpat - Immediately thereafter Ganpat took Mathura into a latrine room and
raped her and thereafter dragged her to a Chhapri on the back side and raped her again.
 Attempt of rape by Tuka Ram - Thereafter, Tukaram fondled with her private parts but
could not rape her because he was in a highly intoxicated condition.
428
Supreme Court , Date of Judgment15th September 1978.

309
Persons involved
in this case
Baburao
Mathura & Lakshman, Nunshi Tuka Ram

Gama & Askok & Ganpat
Tuka Ram [There was Ganpat [There was

no penetration] penetration]
 Lodging of complain against these officers - Nunshi, Gama and Ashok who were
waiting outside the police station for Mathura grew suspicious. They therefore shouted
and attracted a crowd. Thereafter, a complaint was lodged.
 Medical examination of Mathura – Dr. Kamal Shastrakar conducted medical
examination at 8 p.m. on March 27th, 1972.
 No injury on body - Mathura was examined by a doctor who found that she had
no injury on her person.
 Two finger Test - Her hymen revealed old ruptures. The vagina admitted two
fingers easily.
 Age - The age of the girl was estimated by the doctor to be between 14 and 16
years.
 Semen - The Chemical Examiner did not find the traces of semen in the pubic
hair and vaginal-smear slides. The presence of semen was, however, detected on
the girl‘s clothes.
 Public hair – There was no matting of the pubic hair.
 Section 376 r/w 34 – Both were prosecuted under section 376 r/w Section 34, IPC.
Section 375, IPC. (Before 1983, 2013 & 2019 Amendments).

Section 375. ‗A man is said to commit ‗rape‘ who except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the five following
descriptions:
First.-Against her will.
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent has been obtained by putting her in fear of death,
or of hurt.
Fourthly.-With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself to
be lawfully married.
Fifthly.-With or without her consent, when she is under sixteen years of age.

310
Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the

offence of rape.
Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.
Decision of Session Court

There are following observations of Sessions Judge, Chandrapur, on the 1st of June 1974, –
 Age - The Sessions Judge found that there was no satisfactory evidence to prove that
Mathura was below 16 years of age on the date of occurrence. It means she was above the
age of 16 years.429
 ‗Shocking liar‘ - He held that Mathura was ‗a shocking liar‘ whose testimony ‗is riddled
with falsehood and improbabilities‘.
 There was sexual intercourse but no rape - The Court came to the conclusion that she
had sexual intercourse while at the police station but rape had not been proved.
 Habitual sexual intercourse and surrender of body- She was habituated to sexual
intercourse, but finding that Nunshi and Ashok would get angry with her, she had to
sound virtuous before them. Really speaking, she would have surrendered her body to the
Constable.
 Acquittal - Accused were acquitted for charges of Section 376 read with Section 34.
Decision of High Court –
The High Court of Judicature at Bombay (Nagpur Bench) reversed the order of acquittal on
October 12th 1976.
 Tuka Ram - Tuka Ram was convicted for molestation of woman under Section 354 and
one year imprisonment was awarded. It was found that he was involved in foreplay. He
did not made any attempt for rape.
 Ganpat – Ganpat was convicted for rape under Section 376 and one year imprisonment
was awarded.
 The High Court found that the sexual intercourse was forcible and amounted to rape.
 Since both the accused were strangers to Mathura, it was highly improbable that Mathura
would make any overtures or invite the accused to satisfy her sexual desire.
 Both were accused in authority.
Decision of Supreme Court –
 Both accused were acquitted by Supreme Court on September 15, 1978.
429
By Criminal Law ( Amendment) Act, 2013 16 Years was substituted by 18 Years. It means below this age
consent of victim is immaterial. Accused will be liable for rape even though she had given consent. Section 375
fifthly (Old Provision) must be compared with Section 375 Sixthly (New Provision).

311
Decision
Ganpat Tuka Ram Ganpat [Convicted Tuka Ram Ganpat Tuka Ram
[Acquitted] [Acquitted] u/s376] [Convicted u/s 354] [Acquitted] [Acquitted]
Arguments of appellants –
In an appeal by special leave, the appellant contended that:-
(1). No direct evidence about consent - There was no direct evidence about the nature of the
consent of the girl to the alleged act of sexual intercourse. Therefore, it had to be inferred
from the available circumstances and it could not be deduced from those circumstances
that the girl had been subjected to or was under any fear or compulsion as would justify
an inference of any ‗passive submission‘.
(2). Consent – There was no injury on her body. It means there was consent. She was above
the age of 16 years, so there was no rape.
(3). Peaceful intercourse - The alleged intercourse was a peaceful affair and the story of stiff
resistance is all false.
(4). False statement - The averments of the girl that she had shouted loudly is false.
Arguments of Respondent – Sexual intercourse was without free consent. She had given
consent under fear of hurt and death.
Issues –
1. Whether sexual intercourse by Ganpat was without consent?
Answer- No. She had given the consent for sexual intercourse. There was no injury on
the body of Mathura.
2. Whether Tuka Ram had committed offence of molestation?
Answer – No. He had not committed offence under Section 354. Her statements were
contradictory in cross-examination.
Decision
 No fear for death or hurt - There could be no fear because the girl was taken away by
Ganpat from amongst her near and dear ones.430 Even mere fere is not sufficient. Fere
must be for death or hurt. In this case she had fear that her boyfriend and his relative will
not accept her.
430
This reasoning of Supreme Court is not good. She went for further inquiry. Accused did not say that they were
calling for rape or molestation. She was innocent. She was illiterate and belongs from poor family and suppressed
class. Even today, if police call even LL.B. girl of Delhi University in circumstances in which Mathura was called,
she can‘t denied. Everyone knows about behavior of UP, Bihar and Haryana Police.

312
 Section 375, Thirdly – High Court concluded that there was fear. But High Court did not
say that fear was for death or hurt. So merely such fear did not vitiate consent.431
 No injury on the body [Sexual intercourse with consent] - On the point of consent of
the victim Supreme Court said that no marks of injury were found on the person of the
girl after the incident and their absence goes a long way to indicate that the alleged
intercourse was a peaceful affair. So it was matter of ―passive submission‖.
 Burden of prove on Prosecution
 to prove ‗Without Consent‘ - Burden of proof lies over prosecution to prove that
sexual intercourse was without consent or consent was given under fear.432
 to prove ‗Ingredients of Section 375‘ - The onus is always on the prosecution to
prove affirmatively each ingredient of the offence. It was therefore, incumbent on
the prosecution to prove all the ingredients of Section 375 of the Indian Penal
Code.
 Circumstantial Evidence – There was no direct evidence. Case was decided by High
Court on the basis of circumstantial evidence. There were more conclusion than one.
 Acquittal - In this case appellants were acquitted.
Effect of Tukaram Case - This judgment is regressive judgment. This judgment was decided
when Supreme Court had already decided several judgment in favour of women. For example,
Maneka Gandhi v. Union of India [Jan. 25, 1978] Nandini Sathpathi433 v. P.L.Dani [April 07,
1978]. Against ratio of this judgment protest started all over India. Law Commission of India
submitted its 84th Report in 1980 on ―Rape and allied offences some questions of Substantive
Law, Procedure and Evidence‖.434 Mrs. Indira Gandhi came into power in 1980. Due to public
pressure criminal laws were changed to nullify the ratio of judgment of this case in 1983. Indian
Evidence Act, IPC and Cr.P.C. were amended at large scale. Section 114A was inserted in Indian
Evidence Act and definition of rape was substituted.
Criminal Law (Amendment) Act, 1983
IPC
(1) Section 228 A [Ins.] - Disclosure of identity of the victim of certain offences, etc. In
Tuka Ram Case, name of victim became infamous. Now disclosure of identity is an
offence under this Section.
431
Even this reasoning of Supreme Court is not good. High Court accepted that there was fear and fear was to her.
High Court was not in favour that she went for sexual enjoyment and after returning she realized. Of course that fear
was either for hurt or death. Even non-mentioning hurt or death is not sufficient to vitiate to reasoning of High
Court.
432
This ratio was nullified by inserting Section 114A, Indian Evidence Act by Criminal Law (Amendment) Act,
1983.
433
Former Chief Minister of Orissa.
434
Available at: https://lawcommissionofindia.nic.in/51-100/index51-100.htm (Visited on March 11, 2022).

313
(2) Section 375, Fifthly [Ins.] - With her consent when, at the time of giving such consent,
by reason of unsoundness of mind or intoxication or the administration by him personally
or through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.
(3) Re-numbering of Provision 375 – Section 375 fifthly was inserted. Fifthly was
renumbered as Section 375, sixthly.
(4) Punishment was enhancement.
CrPC
1. S. 327(2) [Ins]435 The inquiry into and trial of rape shall be conducted in camera.
2. S. 327(3) [Ins.] Where any proceedings are held under sub- -section (2), it shall not be
lawful for any person to print or publish any matter in relation to any such proceedings,
except with the previous permission of the court.
IEA
Section 114A- Presumption as to absence of consent in rape cases was inserted. According to
section 114A of Indian Evidence Act, in rape cases if question arises whether sexual intercourse
had been done with or without consent then Court shall presume that there was absence of
consent if two conditions are being fulfilled –
(i) where sexual intercourse by the accused is proved and
(ii) such woman states in her evidence before the court that she did not consent.
If both the conditions is proved then presumption of absence of consent will be and burden of
prove regarding presence of consent shall lies over accused.
Criminal Law Amendment, 2013

On the basis of three important points I am discussing Criminal Law Amendment, 2013
regarding Tuka Ram Case.
 Definition of Rape. Definition of rape was very narrower. At present time foreplay may
also come under definition of rape. For example if accused rubs vagina with his mouth
[Section 375 (d)] or insert his finger into vagina [Section 375 (b)]. Earlier it was not
possible. Tuka Ram involved in Foreplay. Although ‗Foreplay‘ word was not used in this
case, but facts clearly dealt foreplay
 Age – Age of the victim has been enhanced. Earlier age of victim was 16 years (Section
375 fifthly). At present time age of victim is 18 years (Section 375 sixthly). Mathura was
above sixteen years. But she was below the age of 18 years. At present time, in case like
Mathura, there is no need discuss whether she had given consent or not.
 Consent - Provided of explanation 2 of section 375 clearly nullify the ratio of Tuka Ram
Case. It says, ―…Provided that a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as consenting to the
sexual activity.‖ In Mathura case it was held that there was no bodily injury. It means
435
Available at: http://goaprintingpress.gov.in/downloads/8384/8384-51-SI-OG.pdf (Visited on March 30, 2021).

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there was no physical resistance. It means there was consent. In this way ratio of Mathura
Case had been nullified.
State of Punjab v. Gurmit Singh & Ors. (1996
State of Punjab v. Gurmit Singh & Ors. 436was decided by Division Bench consisted of Hon‘ble
Justice A.S. Anand and Hon‘ble Justice S. Saghir Ahmad on January 16, 1996. Author of
judgment is Hon‘ble Justice A.S. Anand. In this case effect of rape was discussed.
Facts
 A girl below the age of 16 years was kidnapped by Gurmit Singh and other 3 accused
when she was returning after appearing in Exam of 10th class at 12.30 p.m. on March 30,
1984.
 They went at tubewell. She was taken to the ‗kotha‘ of the Tubewell and raped. She was
again raped at night.
 Next morning they dropped her in front of school. After appearing in exam she went to
home and narrated all facts to her mother and mother narrated these facts to father.
 Father immediately called Panchayat but he was unable to get justice from Panchayat.
Panchayat tried for compromise.
 Finally FIR was lodged.
 High Court acquitted them.
 Supreme Court - Matter reached to the Supreme Court. Supreme Court convicted them.
Issue –Whether ‗Rape‘ had been committed by accused?

Answer – Yes.
Ratios of the Judgment
Supreme Court laid down following important ratios in this case -
(1) Effect of Rape - Hon‘ble Justice Anand observed, ―….a rapist not only violates the
victim‘s privacy and personal integrity, but inevitably causes serious psychological as
well as physical harm in the process. Rape is not merely a physical assault. It is often
destructive of the whole personality of the victim. A murderer destroys the physical body
of his victim, a rapist degrades the very soul of the helpless female.‖437
(2) Previous sexual intercourse does not authorize everyone to make sex -―…Even if the
prosecutrix has been promiscuous in her sexual behavior earlier, she has a right to
refuse to submit herself to sexual intercourse to anyone and everyone because she is not
a vulnerable object or prey for being sexually assaulted by anyone and everyone.‖
436
437
This ratio was accepted by Supreme Court in Independent Thought Case at para 68 of the judgment.

315
(3) Trial of accused rather than rape of victim - Even in cases where there is some
acceptable material on the record to show that the victim was habituated to sexual
intercourse, no such inference like the victim being a girl of ―loose moral character‖ is
permissible to be drawn from that circumstance alone. No stigma, like the one as cast in
the present case should be cast against such a witness by the Courts, for after all it is the
accused and not the victim of sex crime who is on trial in the Court.
(4) Duty of Court in Cross-examination - Some defence counsel adopt the strategy of
continual questioning of the prosecutrix as to the details of the rape. The victim is
required to repeat again and again the details of the rape incident not so much as to
bring out the facts on record or to test her credibility but to test her story for
inconsistencies with a view to attempt to twist the interpretation of events given by her so
as to make them appear inconsistent with her allegations. The Court, therefore, should
not sit as a silent spectator while the victim of crime is being cross-examined by the
defence. It must effectively control the recording of evidence in the Court.
(5) Trial in Camera rather than in open Court – Section 327 of Cr.P.C. 1973 must always
keep in mind. Trial of rape cases in camera should be the rule and an open trial in such
cases is an exception. It would enable the victim of crime to be a little comfortable and
answer the questions with greater ease in not too familiar a surroundings. Trial in camera
would not only be in keeping with the self-respect of the victim of crime and in tune with
the legislative intent but is also likely to improve the quality of the evidence of a
prosecutrix because she would not be so hesitant or bashful to depose frankly as she may
be in an open court, under the gaze of public.
(6) Supreme Court scolded Trial Court – Supreme Court observed, ―The trial court not
only erroneously disbelieved the prosecutrix, but quite uncharitably and unjustifiably
even characterised her as a girl ―of loose morals‖ or ―such type of a girl‖. Supreme Court
was also not happy. Trial Courts were not following laws strictly. For example Supreme
Court noticed that trial of rape victim was not going in camera. The High Courts would
therefore be well advised to draw the attention of the trial courts to the amended
provisions of Section 327 Cr. P.C.
(7) Evidentiary Value of Statement of Victim - Evidence of the victim of sexual assault is
enough for conviction and it does not require any corroboration unless there are
compelling reasons for seeking corroboration. The court may look for some assurances of
her statement to satisfy judicial conscience. The statement of the prosecutrix is more
reliable than that of an injured witness as she is not an accomplice.
(8) Delay in FIR - The Court held that the delay in filing FIR for sexual offence may not be
even properly explained, but if found natural, the accused cannot be given any benefit
thereof.
(9) Criminal Law (Amendment) Act, 1983 [Act 43 of 1983] - The alarming frequency of
crime against women led the Parliament to enact Criminal Law (Amendment) Act, 1983
[Act 43 of 1983] to make the law of rape more realistic.

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 By the Amendment Act, Sections 375 and 376 were amended and certain more
penal provisions were incorporated for punishing such custodians who molest
women under their custody or care.
 Section 228 A was also inserted which prohibits disclosure of identity.
 Section 114-A was also added in the Evidence Act for drawing a conclusive
presumption as to the absence of consent in certain prosecutions for rape,
involving such custodians.
 Section 327 of the Code of Criminal Procedure which deals with the right of an
accused to an open trial was also amended by addition of sub-sections 2 and 3
after renumbering the old Section as sub-section (1).
Conclusion
They were convicted for offences under Sections 363/366/368 and 376 IPC. Name of the victim
was not disclosed due to Section 228A, IPC.
Uday v. State of Karnataka438 (2003 SC)

In this case man (21-22 Years) and woman (19 Years) were from different caste. She was
college girl. Uday was neighbor and friend of elder brother of prosecutrix. He used to visit her
house daily and he was talking frequently to all members of family. She was well aware of this
fact and at the time of proposal she raised this issue. She knew, that her marriage with the
appellant was difficult on account of caste considerations. A friendship developed between them
and one day, the appellant proposed to her to marry him. Prosecutrix told him that since they
belong to different castes such a marriage was not possible. The prosecutrix is a native of Tamil
Nadu and belongs to the Goundar community, while the appellant claims to be a Daivanya
Brahim. However, it is not disputed that they fell in love with each other, but the prosecutrix
avoided talking to the appellant in presence of her parents. She also admits that she had sexual
intercourse with him about 15-20 times and that they used to have sexual intercourse once or
twice a week. This state of affairs continued till she discovered that she was pregnant. She told
the appellant about the pregnancy but he assured her that she should not worry and that he will
marry her after sometime. The suspicion of her mother was aroused during the 6th month of
pregnancy and she was, therefore, compelled to disclose everything to her mother. This was
disclosed to brother of girl. Even after eighth months of pregnancy, accused was saying that
don‘t disclose to his parents. But he was not reached many times at decided place for marriage.
Thereafter followed a quarrel between female members of the two families. Since the appellant
did not marry her as promised, she lodged the complaint with the police on 12th May, 1989. She
gave birth to a child on 29th May, 1989.
Session Court - The Sessions Judge accepting the evidence of the prosecutrix concluded that
though she had consented to have sexual intercourse with the appellant, that consent was not
438
Division Bench, Supreme Court, February 19, 2003. Available at:

317
consent within the meaning of Section 375 Secondly IPC having regard to Section 90. According
to him the consent was obtained by making a false promise of marriage and, therefore, it was a
consent obtained by fraud and mis-representation. He, therefore, held that in the facts and
circumstances of the case, the appellant had sexual intercourse with the prosecutrix without her
consent and was, therefore, guilty of the offence of rape punishable under Section 376 of the
Indian Penal Code.
High Court - The High Court in appeal affirmed the finding of the trial court substantially for
the same reasons
Supreme Court – Accused was acquitted. Sexual intercourse was with consent. In this Case
Section 375, Secondly and Section 90 were discussed.
In Stroud‘s Judicial Dictionary (Fifth Edition) page 510 "consent" has been given the following
meaning:- "Consent is an act of reason, accompanied with deliberation, the mind weighing, as in
a balance, the good and evil on each side."
So she had not given consent under misconception of facts as mentioned in section 90. To apply
section 90 two conditions must be fulfilled namely;
(a) Firstly, it must be shown that the consent was given under a misconception of fact.
(b) Secondly, it must be proved that the person who obtained the consent knew, or had reason to
believe that the consent was given in consequence of such misconception.
The prosecutrix willingly consented to having sexual intercourse with the appellant with whom
she was deeply in love, not because he promised to marry her, but because she also desired to
make sexual intercourse.
Criticism – This is not good judgment. She raised issue from the very beginning that due inter-
caste, marriage was not possible. It was natural thing that he had assured to get marriage at that
time. At the subsequent stages, he assured her mother and brother many times. Place was decided
to get marriage at least two times. But he did not approach. In last, he was ready to keep her at
secret place and he would maintain her after completing construction of his house. All these facts
denotes that she had given consent due to fraud and misconception of fact. This is clear cut rape
on the basis of Section 375 secondly. There was no consent under Section 90.
Sakshi v. Union of India439 (2004) S.C.

In this case ‗Sakshi‘ is an NGO working for sexual victim. It filed writ petition for direction
especially for widening the definition of rape. It was requested that ―sexual intercourse‖ as
contained in section 375 of the Indian Penal Code must include all forms of penetration such as
(1) penile/vaginal penetration, (2) penile/oral penetration, (3) penile/anal penetration (4)
finger/vaginal and finger/anal penetration and (5) object/vaginal penetration. After the change in
definition of rape in 2013 maximum suggestions of ―Sakshi‖ have been incorporated in sections
375 and 376. For example -
a. penile/vaginal penetration –Section 375(a),
439
Date of Judgment: May 26, 2004.

318
b. penile/oral penetration- Section 375(a),

c. penile/anal penetration - Section 375(a),
d. finger/vaginal and finger/anal penetration Section 375(b),
e. object/vaginal penetration- Section 375(b).
Following directions were issued by Supreme Court in this case-

I. The provisions of sub-section (2) of section 327440 Cr.P.C. shall in addition to the
offences mentioned in the sub-section would also apply in inquiry or trial offences
under section 354 and section 377 IPC.
II. In holding trial of child sex abuse or rape: a screen or some such arrangements
may be made where the victim or witnesses (who may be equally vulnerable like
the victim) do not see the body or face of the accused; the questions put in cross-
examination on behalf of the accused, in so far as they relate directly to the
incident, should be given in writing to the presiding Officer of the Court who may
put them to the victim or witnesses in a language which is clear and is not
embarrassing; the victim of child abuse or rape, while giving testimony in court,
should be allowed sufficient breaks as and when required.
III. These directions are in addition to those given in State of Punjab v. Gurmit Singh.
(10) Deepak Gulati v. State of Haryana441- Intercourse under promise to marry

constitutes rape only if from initial stage accused had no intention to keep promise. An
accused can be convicted for rape only if the court reaches a conclusion that the intention
of the accused was mala fide and that he had clandestine motives.
(11) Mukesh and Anr. v. State for NCT of Delhi442- This case is related to Delhi
Gang Rape Case (Dec.16, 2012).This is related to confirmation of death sentence by
Supreme Court.
(10) Independent Thought v. Union of India & Anr.443

This case was decided on October 11, 2017 by Division Bench of Supreme Court consisted of
Hon‘ble Justices Madan B. Lokur and Deepak Gupta. There was concurrent opinion. But both
wrote judgment separately.
(i) Facts - The petitioner is a society registered on 6th August, 2009 and has since been working
in the area of child rights. The society has filed a petition under Article 32 of the Constitution in
440
Section 327 (2) deals proceeding in camera.
441
Date of Judgment –May 20, 2013.
442
Date of Judgment-05 May, 2017.
443
Date of Judgment October 11, 2017.
on March 13, 2022).

319
public interest with a view to draw attention to the violation of the rights of girls who are married
between the ages of 15 and 18 years.
(ii) Issue - Whether sexual intercourse between a man and his wife being a girl between 15 and
18 years of age is rape?
(iii) ―Penetrative Sexual Assault‖ ―Aggravated Penetrative Sexual Assault‖ and ―Rape‖
Section 2 (f) of POCSO Act, 2012 says "penetrative sexual assault" has the same meaning as
assigned to it in section 3. Section 3 of the POCSO Act defines ―penetrative sexual assault‖.
Section 5 (n) defines ―Aggravated Penetrative Sexual Assault‖ committed by relative including
through marriage.
Section 3. Penetrative sexual assault.444 - A person is said to commit ―penetrative sexual assault‖
if –
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into
the vagina, the urethra or anus of the child or makes the child to do so with him or
any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the
vagina, urethra, anus or any part of body of the child or makes the child to do so
with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the
child to do so to such person or any other person.
Justice Lokur observed, ―There is no real or material difference between the definition of rape in
the terms of Section 375 of the IPC and penetrative sexual assault in the terms of Section 3 of the
POCSO Act. 6 The only difference is that the definition of rape is somewhat more elaborate and
has two exceptions but the sum and substance of the two definitions is more or less the same.‖
Section 4 deals punishment for penetrative sexual assault. Section 5 deals aggravated penetrative
sexual assault. Clause (n) of Section 5 provides that if a person commits penetrative sexual
assault with a child, then that person actually commits aggravated penetrative sexual assault if
that person is related to the child, inter alia, through marriage. Therefore, if the husband of a girl
child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative
sexual assault as defined in Section 5(n) of the POCSO Act which is punishable under Section 6
of the POCSO Act by a term of rigorous imprisonment of not less than ten years and which may
extend to imprisonment for life and fine.
Prior to this judgment, Exception 2 of Section 375 was giving exception to husband for making
sexual intercourse if wife was above the age of 15 years even if that sexual intercourse was non-
consensual.
444
Penetrative sexual assault is PIMA.

320
IPC was contradictory of POCSO, 2012. The duality is that having sexual intercourse with a
girl child between 15 and 18 years of age, the husband of the girl child is said to have not
committed rape as defined in Section 375 of the IPC but is said to have committed aggravated
penetrative sexual assault in terms of Section 5(n) of the POCSO Act.
(iv) Relation between General & Special Law [Section 5 IPC and 42-A, POCSO Act, 2012]
Section 5 says that IPC will not affect special law. Section 41, IPC defines special law. As per
this definition POCSO Act is special law.
Section 42-A inserted in the POCSO Act by an amendment made on 3rd February, 2013. This
section reads: 42-A. Act not in derogation of any other law –
―The provisions of this Act shall be in addition to and not in derogation of the provisions of any
other law for the time being in force and, in case of any inconsistency, the provisions of this Act
shall have overriding effect on the provisions of any such law to the extent of the inconsistency.‖
The consequence of this amendment is that the provisions of the POCSO Act will override the
provisions of any other law (including the IPC) to the extent of any inconsistency.445
(v) Ratio –
 Overriding Effect - Special Law will prevail over General Law. POCSO is special law
and IPC is general law. Combined reading of Sections 5 & 41, IPC and Section 42A,
POCSO Act make clear that in case of conflict between ‗General Law‘ and ‗Special
Law‘, ‗Special Law‘ will prevail over ‗General Law‘. So Section 5 (n) of POCSO Act
prevails over Section 375 Exception 2.
 ―Right to reproductive choice‖ - Women have right to bodily integrity and the
reproductive choice. Ratio of Suchita Srivastava v. Chandigarh Administration446 was
followed in which the right to make a reproductive choice was equated with personal
liberty under Article 21 of the Constitution, privacy, dignity and bodily integrity. It
includes the right to abstain from procreating.
 Women are not commodities - ―Right to reproductive choice‖ highlights that she cannot
be treated as a commodity. The human rights of a girl child are very much alive and
kicking whether she is married or not and deserve recognition and acceptance.
 Effect of Rape – Ratio of State of Punjab v. Gurmit Singh and Ors.447 and State of
Haryana v. Janak Singh448 - In Gurmit Singh Case Supreme Court observed, ――We must
remember that a rapist not only violates the victim‘s privacy and personal integrity, but
inevitably causes serious psychological as well as physical harm in the process. Rape is
not merely a physical assault — it is often destructive of the whole personality of the
victim. A murderer destroys the physical body of his victim, a rapist degrades the very
soul of the helpless female.‖ In Janak Singh Case Supreme Court observed, ―Rape is one
445
Independent Thought Case, Para 48.
446
(2009) 9 SCC 1.
447
(1996) 2 SCC 384.
448
(2013) 9 SCC 431.

321
of the most heinous crimes committed against a woman. It insults womanhood. It violates
the dignity of a woman and erodes her honour. It dwarfs her personality and reduces her
confidence level. It violates her right to life guaranteed under Article 21 of the
Constitution of India.‖
 Violation of Fundamental Rights - Justice Madan B. Lokur observed, ―Exception 2 to
Section 375 of the Indian Penal Code, 1860 (the IPC) answers this in the negative, but in
our opinion sexual intercourse with a girl below 18 years of age is rape regardless of
whether she is married or not. The exception carved out in the IPC creates an
unnecessary and artificial distinction between a married girl child and an unmarried girl
child and has no rational nexus with any unclear objective sought to be achieved. The
artificial distinction is arbitrary and discriminatory and is definitely not in the best
interest of the girl child. The artificial distinction is contrary to the philosophy and ethos
of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution
and our commitments in international conventions. It is also contrary to the philosophy
behind some statutes, the bodily integrity of the girl child and her reproductive choice.
What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the
girl child and surely each one of us must discourage trafficking which is such a horrible
social evil‖.
 Violation of Article 14 – There is no reasonable classification between married and
unmarried girl for achieving particular object. Exception 2 to Section 375 IPC is,
therefore, discriminatory and violative of Article 14 of the Constitution of India.
 Liability of Husband – It was observed that husband gets benefit only under rape law.
For other law he does not get benefit. If the husband beats a girl child and has forcible
sexual intercourse with her, he may be charged for offences under Sections 323, 324, 325
IPC etc. but he cannot be charged with rape. As far as sexual crimes against women are
concerned, these are covered by Sections 354, 354A, 354B, 354C, 354D of the IPC.
There is no exception clause giving immunity to the husband for such offences. The
Domestic Violence Act will also apply in such cases and the husband does not get
immunity. There are many other offences where the husband is either specifically liable
or may be one of the accused. The husband is not given the immunity in any other penal
provision except in Exception 2 to Section 375 IPC. This leads to an anomalous and
astounding situation where the husband can be charged with lesser offences, but not with
the more serious offence of rape.
 Change in Traditional Concept - Section 42 of POCSO makes it clear that where an
offence is punishable, both under POCSO and also under IPC, then the offender, if found
guilty of such offence, is liable to be punished under that Act, which provides for more
severe punishment. This is against the traditional concept of criminal jurisprudence that if
two punishments are provided, then the benefit of the lower punishment should be given
to the offender. The legislature knowingly introduced Section 42 of POCSO to protect the
interests of the child.

322
 Violation of Right of wife ( especially below 18 yrs) - As the objects and reasons of the
POCSO show, this Act was enacted as a special provision for protection of children, with
a view to ensure that children of tender age are not abused during their childhood and
youth. These children were to be protected from exploitation and given facilities to
develop in a healthy manner. When a girl is married at the age of 15 years, it is not only
her human right of choice, which is violated. She is also deprived of having an education;
she is deprived of leading a youthful life. Early marriage and consummation of child
marriage affects the health of the girl child
(vi) Decision –Supreme Court observed, ― Exception 2 to Section 375 IPC in so far as it relates
to a girl child below 18 years is liable to be struck down on the following grounds:–
I. it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not
fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the
Constitution of India;
II. it is discriminatory and violative of Article 14 of the Constitution of India and;
III. it is inconsistent with the provisions of POCSO, which must prevail.
IV. Therefore, Exception 2 to Section 375 IPC is read down as follows: ―Sexual intercourse
or sexual acts by a man with his own wife, the wife not being 18 years, is not rape‖. It is,
however, made clear that this judgment will have prospective effect‖.
Conclusion
Supreme Court observed that Section 375 Exception 2 is arbitrary to Articles 14, 15 & 21 of the
Constitution of India. Court may take cognizance under section 198(6) of Cr. P.C. Now in all
cases, sexual intercourse with a women including wife, if she is below the age of 18 years, is
rape. In this way, now, there is no difference between unmarried and married women. If wife is
below the age of 18 years, and husband makes sexual relation with his wife whether with consent
or without consent, it would be amount to rape. Rape under IPC was also compared with POCSO
Act. The Act was declared special law.
Phool Singh v. The State of Madhya Pradesh449
Facts - In the intervening night of 9th August, 1999 and when the husband of the prosecutrix
went to another village and she was alone and she was sleeping in her room, Phool Singh, the
accused, jumped the wall and entered into the room of the prosecutrix. Seeing the accused the
prosecutrix woke up and in the light of the bulb she identified the accused. Then the accused
pressed the mouth of the prosecutrix and committed rape and thereafter he fled away by jumping
the wall. As per the case of the prosecutrix, she narrated the incident to her sister-in-law (Jethani)
and mother-in-law but they did not believe her. On the contrary, she was beaten. That thereafter
449
Dec-2021.pdf (Visited on March 12, 2022).

323
the prosecutrix also told the incident to other family members of her matrimonial house but
nobody took any action. The prosecutrix sent the information to her parental house. Thereafter,
her uncle and others came to her matrimonial house and the prosecutrix told them about the
incident. They took her to parental house. Thereafter, an FIR was lodged on 12.08.1999.
Decision - Session Court, High Court and Supreme Court convicted accused for committing
rape. Judgment was written by Division Bench of Supreme Court consisted of Mr. M.R. Shah
and Mr. Sanjiv Khanna on December 01, 2021.
Ratio - There is following ratio –
 Evidentiary value of Victim - Whether, in the case involving sexual harassment,

molestation, etc., can there be conviction on the sole evidence of the prosecutrix?
Hon‘ble Supreme Court observed ratio of many previous cases and observed that in the
case involving sexual harassment, molestation, etc., conviction can be on the sole
evidence of the prosecutrix. Ratio of State of Punjab v. Gurmit Singh,450 and State (NCT
of Delhi) v. Pankaj Chaudhary,451 was followed. In Pankaj Chaudhary Case, it is
specifically observed and held by this Court that conviction can be sustained on the sole
testimony of the prosecutrix if it inspires confidence and that there is no rule of law or
practice that the evidence of the prosecutrix cannot be relied upon without corroboration.
Cheerfulson Snaitang v. State of Meghalaya452
Prelude - Cheerfulson Snaitang was convicted for rape by Session Court in 2018. Cheerfulson
Snaitang v. State of Meghalaya was decided by High Court of Meghalaya at Shillong on March
14, 2022. In this case Section 375 was discussed and accused was convicted for committing rape.
This case is known as ―Rape over Underwear Case‘. Rape was committed in 2006. He was
convicted under Old Rape Law i.e. law before 2013. It is other thing that High Court also
discussed new rape law.
450
(1996) 2 SCC 384
451
(2019) 11 SCC 575.
452
Available at: https://www.livelaw.in/pdf_upload/cheerfulson-snaitang-v-state-of-meghalaya-14-march-2022-
412232.pdf (Visited on March 17, 2018).

324
Facts – Rape was committed on September 23, 2006. FIR was registered on September 30,
2006.
 She was minor.
 In medical report it was found that the victim‘s vagina was tender and red and her hymen
was ruptured. According to medical report it was rape. There was extra-judicial
confession.
Argument of Cheerfulson Snaitang – There was no case penetration of penis in terms of

Section 375, IPC. According to the appellant, if the victim‘s underwear was not taken down and
the appellant merely rubbed himself on the victim‘s crotch while she still wore her underpants,
there would be no commission of any rape.
Issue – Whether rubbing of penis over underwear will amount to rape under old rape law (Before
2013)?
Decision of High Court – High Court held that rubbing over underwear will amount to rape.
Reason of this was that there was penetration. It was not merely rubbing. There was something
more than rubbing. Simple rubbing over underwear will not amount to rape under old law. In this
case there were following grounds for concluding that there was penetration –
 victim‘s vagina was tender and red.
 her hymen was ruptured.
 Para 7 & 8 of the Judgment- There was penetration. When it is evident that the ten-
year-old victim, upon being medically examined about a week after the incident, still
showed signs of tenderness in her vagina and her hymen was torn, there is sufficient
evidence of penetrative sex.
 If it be accepted that at the relevant time the victim was wearing her underpants and the
appellant rubbed his organ from over her underpants, there was no difficulty in
penetration. Penetration for the purpose of Section 375 of the Penal Code does not have
to be complete. Any element of penetration would suffice for the purpose of the relevant
provision.
Decision – Accused was convicted not for rubbing penis over vagina. He was convicted for
penetration. Rubbing was so forceful that converted into penetration. In the old law there was no
rape without sexual penetration.
Importance- This judgment is remarkable. It does not only cover direct penetration, but also
cover indirect penetration. This judgment is in the light of ratio of Attorney General for Indian
and Ors. v. Satish and Ors. which is known as ‗Skin to Skin Touch‘ Case.
It can also be concluded that if accused does not remove his under wear and make sex, he will
also be convicted. Sex without put off underwear should be treated like sex with condom.

325
Such interpretation protects interest of women.

Criticism – Decision of this case is good. But decision is not supported by good interpretation of
law. There are following grounds of criticism –
 Rape was committed in 2006. Criminal Law cannot be applied with retrospective effects.
So old rape law will be applicable i.e. rape law before 2013. Court did not discuss
Section 375 (old law) thoroughly.
 High Court tried to get justification from new rape law i.e. Section 375 (b) and Section
375 (c).
 High Court did not mention any previous judgment of Supreme Court. High Court even
did not try to get rationality from Attorney General for Indian and Ors. v. Satish and
Ors. Although this case is mainly case related to POCSO. But its reasoning is very
relevant for interpretation of rape law.
(7.8) Conflict between Protection of Children from Sexual Offences Act, 2012 (POCSO)
Act and Section 375, Exception 2.
Protection of Children from Sexual Offences Act, 2012 (POCSO) was enacted in pursuance of
Article 15(3) of Constitution of India and Convention on the Rights of the Child, 1989. This Act
came into force on November 14, 2012. Under this Act, it has been provided for the
establishment of Special Court, Special Public Prosecutor and Special Juvenile Police Unit so
that better protection may be given to children.
For the purpose of POCSO Act, 2012 a person who is below the age of eighteen years is a
child.453 According to section 2(2) of this Act, any word which has been used in this Act but not
defined in this Act and defined in IPC, 1860, Cr.P.C.1973 or Information Technology Act, 2000
shall have the same meaning respectively assigned to them in IPC, 1860, Cr.P.C.1973 or
Information Technology Act, 2000. Here child has not been divided on the basis of marriage.
Sexual relation with any child below the age of 18 is an offence.
453
Protection of Children from Sexual Offences Act, 2012 (No. 32 of 2012).Section 2(1) (d).

326
Exception 2 of Section 375 was clearly saying that sexual relation by husband with his wife even
below the age of 18 years and above 15 years was not rape. So it was direct conflict between two
statutes. This controversy was settled down by the decision of Independent Thought v. Union of
India & Anr.454
In this case Supreme Court held that a man will be punished for rape if he is found to be guilty of
having sexual intercourse with his minor wife i.e. below the age of 18 years.
With this verdict, the Supreme Court has ended the disparity between exception 2 of Section
375, which allows a husband to have sexual relationship with his 15-year-old wife, and the
definition of ‗child‘ in recent laws such as the Protection of Children from Sexual Offences Act,
2012, which includes any person below the age of 18.
Difference between UK and India
United Kingdom India
A man can commit rape of man or Here rape of man is not possible.
woman. Section 142 of the Criminal
Justice and Public Order Act 1994
definition of rape was changed.
Here marital rape is rape. Here if the age of wife is above the age of 18
years, marital rape is not possible. This must be
read in the light of Independent Thought Case.
J.S. Verma Committee recommended that the
exception for marital rape must be removed. But
this recommendation was rejected at the time of
making amendment in criminal law.
USA
In Eisenstadt v. Baird the US Supreme Court observed that a ―marital couple is an independent
entity with a mind and heart of its own, but an association of two individuals each with a
separate intellectual and emotional makeup.‖
Canada, South Africa and Australia
These countries have declared marital rape as rape.
India
Section 375, Exception 2 -―Sexual intercourse or sexual acts by a man with his own wife, the
wife not being under fifteen years of age, is not rape.‖
Marital Rape can be divided into three parts namely;
(1) Minor Marital Rape (Birth to 15 Yrs.)

(2) Minor Marital Rape (Since 15 years – 18 Years)
(3) Adult Marital Rape (Since 18 Years to onwards).
454

327
Marriage Marriage Marriage

Since birth to 15 years Since 15 years – 18 Years Since 18 Years to onwards
Rape Rape No Rape
Reason -Exception of section Reason –Interpretation of Reason –Interpretation of

375. Marital Rape from the Exception -2 of section 375 in Exception -2 of section 375 in
very beginning the case of Independent the case of Independent
Thought Thought. In this case SC did
not consider beyond statutory
provisions.
(1) Minor Marital Rape (Birth to 15 Yrs.)– This is marital rape declared by the Indian
Penal Code under section 375, Exception 2. Section 375, Exception 2 says ―Sexual
intercourse or sexual acts by a man with his own wife, the wife not being under fifteen
years of age, is not rape.‖ It means if wife is below the age of fifteen years then sexual
intercourse or sexual acts by her husband whether with consent or without consent of her
will amount to rape. If wife is above the age of 15 years, then there is no rape. Sexual
intercourse by husband with wife who is above 15 yrs. and below 18 years was
challenged in Independent Thought Case.
(2) Minor Marital Rape (Since 15 years – 18 Years) – Exception 2 of section 375 deals
with marital rape. According to bare reading of this provision sexual intercourse with
wife (Since 15 years – 18 Years) by husband is not rape. But after the decision of
Independent Thought case this is the rape.
After the decision of division bench of Supreme Court in the case of Independent
Thought v. Union of India on October 11, 2017 sexual intercourse by a husband with his
wife whether with or without consent is rape if she is below the age of eighteen years. It
was interpreted in the light of POCSO and Article 14 of the Constitution of India.
In the case of Independent Thought v. Union of India Supreme Court confined itself only
with marital rape of a girl child between 15 and 18 years of age in the context of
Exception 2 to Section 375 of the IPC.
(3) Adult Marital Rape – In India Adult Marital Rape is no rape. But marital rape victim
has civil remedy under the Protection of Women from Domestic Violence Act, 2005.
Justice J. S. Verma Committee Report - The IPC differentiates between rape within
marriage and outside marriage. Under the IPC sexual intercourse without consent is
prohibited. However, an exception to the offence of rape exists in relation to un-
consented sexual intercourse by a husband upon a wife. The Committee recommended
that the exception to marital rape should be removed. Marriage should not be considered
as an irrevocable consent to sexual acts. Therefore, with regard to an inquiry about
whether the complainant consented to the sexual activity, the relationship between the
victim and the accused should not be relevant.

328
J.S.Verma Committee said that notion has changed and now wife is not property of
husband. Even the United Kingdom and several other countries have changed its law.
The Committee was in favour of deletion of section 375 Exception and declaration of
marital rape as a rape in India also.
Report of this Committee was discarded.
Recommendation of Human Rights Council- In the Report of the Human Rights Council on its
thirty-sixth session recommended to remove exception for IPC and declare marital rape as rape
(June 2018).455
The Protection of Children from Sexual Offences Act, 2012
In Attorney General for India and Ors. v. Satish and Another456 Supreme Court observed that
since the sexual offences against women were not adequately addressed by the existing laws, the
Protection of Children from Sexual Offences Act, 2012457 (POCSO Act, 2012) was specifically
enacted to protect the children from the offences of sexual assault, sexual harassment and
pornography.
The Protection of Children from Sexual Offences Act, 2012458 is known as POCSO Act.
Preamble of this Statute clearly shows that this Act was enacted in light of Article 15 (3),
Constitution of India and Article 34 of the Convention on the Right of the Child, 1989459. This
Act came into force on November 14, 2012 which is celebrated as Children‘s Day and Birth
Anniversary of Pt. Jawarlal Nehru. It is neutral law. Below the age of 18 years, all children will
be covered under this Act.460 If any sexual offence committed against children, this Act will be
applicable. Offence can be committed either by man or woman. It is special law. In case of
inconsistency with general law (for example IPC), it will prevail. 461 Presumption is against
accused. Accused must prove his innocence ‗Beyond Reasonable Doubts‘ and mere
preponderance will not be sufficient.462 Special Court463 is established and Special Public
Prosecutors are appointed464
455
Available at: https://www.ohchr.org/en/hrbodies/hrc/regularsessions/session36/pages/36regularsession.aspx
456
Nov. 18. 2021.
457
Available at: https://www.indiacode.nic.in/bitstream/123456789/2079/1/AAA2012____32.pdf#search=POCSO
458
Available at: https://www.indiacode.nic.in/bitstream/123456789/2079/1/AAA2012____32.pdf (Visited on March
15, 2022).
459
Available at: https://www.unicef.org/child-rights-convention/convention-text# (Visited on March 15, 2022).
460
Section 2 (d) says "child" means any person below the age of eighteen years.
461
Section 42A, POCSO Act and Section 5 read with Section 7 and Section 41.
462
Section 30 (2), POCSO Act.
463
Section 28.
464
Section 32.

329
Section 2 (2) is like bridge between POCSO and other statutes. Section 2 (2) says that any word
which has not been defined under POCSO Act but defined under IPC, CrPC, the Juvenile Justice
(Care and Protection of Children) Act, 2015 and the Information Technology Act, 2000, meaning
can be borrowed from these statutes. For example ‗he‘ word has not been defined under POCSO
but defined under Section 8, meaning of ‗he‘ can be borrowed from IPC for the interpretation of
POCSO Act.
There are six categories of offences under POCSO Act, 2012 which are following-
(1). Penetrative Sexual Assault (Sections -3 & 4)

(2). Aggravated Penetrative Sexual Assault (Sections – 5 & 6)
(3). Sexual Assault (Sections – 7 & 8)
(4). Aggravated Sexual Assault (Sections -9 & 10)
(5). Sexual Harassment of the Child (Sections – 11 & 12)
(6). Use of Child for Pornographic Purposes (Sections -13 & 14).
(1) Penetrative Sexual Assault

Section 2 (f) says ‗Penetrative Sexual Offence‘ has the same meaning as assigned to it in section
3. ‗Penetrative Sexual Offence‘ is PIMA committed by any person i.e. either male or female
against any child below the age of 18 years. It is punishable under Section 4.
Section 3. Penetrative sexual assault. - A person is said to commit ―penetrative sexual assault‖ if
-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child
or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of the child or makes the child to do so with him or any
other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the
vagina, urethra, anus or any part of body of the child or makes the child to do so with
him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child
to do so to such person or any other person.
There are following ingredients of Section 3 -

 Any person can commit ―penetrative sexual assault‖.
 Combined reading of Section 2 (y), POCSO and Section 8, IPC, denotes that he includes
she.
 It is perfect case for application of ‗Principle of Strict Liability‘ for protection of
children. Section 3 and Section 5 are contrary to section 7. Sections 3 and 5 don‘t
mention any word which denotes mention rea.
 Section 3 and Section 5 don‘t use breast or penis of accused.

330
This definition was accepted in Section 375 with certain modifications. Penetrative sexual
assault is punishable under Section 4.
(2) Aggravated Penetrative Sexual Assault

Section 2 (a) ―aggravated penetrative sexual assault‖ has the same meaning as assigned to it in
section 5. If penetrative sexual assault as defined under Section 3 is committed by authority or
relatives including husband, it will be amount to ―aggravated penetrative sexual assault‖ . It is
punishable under Section 6. Even in this case ‗Principle of Strict liability‘ is applicable. In
Independent Thought v. Union of India, Hon‘ble Supreme Court interpreted Section 5 (n),
POCSO Act and Section 375, Exception 2 and held that if wife is below the age of 18 years,
husband will be liable under Section 6, POCSO Act and Section 376, IPC.
(3) Sexual Assault

Section 2 (i) says ―Sexual Assault‖ has the same meaning as assigned to it in section 7. Section 7
says, ―Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or
makes the child touch the vagina, penis, anus or breast of such person or any other person, or
does any other act with sexual intent which involves physical contact without penetration is said
to commit sexual assault. Section 8 deals punishment for Sexual assault.
In Attorney General for India and Ors. v. Satish and Another465 Supreme Court said that skin to
skin touch is not necessary for the application of Section 7. In this case accused had squeezed
breast of victim without removing her shirt. Hon‘ble Justice S. Ravindra Bhat observed, ―The use
of a spoon, for instance, to consume food - without touching it with the hand - in no way
diminishes the sense of touch that is experienced by the lips and the mouth. Similarly, when a
stick, or other object is pressed onto a person, even when clothed, their sense of touch is keen
enough to feel it‖. Accused was convicted under Section 8.
Penis of victim has been used under Section 7. It means if any woman plays with penis of boy
below the age of 18 years, she will be punished. In this way ‗Zigolo‘ below the age of 18 years is
prohibited by law.
Intention of the accused is necessary for the application of Section 7. ‗Principle of Strict
Liability‘ is not applicable in this case. Sexual
Difference between POCSO Act, 2012 and Rape under IPC466, 1860
Basis POCSO Act, 2012 IPC, 1860
467
Sex It is gender neutral. Here accused It is gender specific. In case of rape
may be either man or woman. Even only man can commit rape. Only
465
Nov. 18. 2021.
466
DU LL.B. QUESTION 7 (B) (2015) - ―Rape is a question of law.‖ Explain the essentials of crime of rape. How is
this law different from the law against sexual assault provided under POCSO.
467
Nipun Saxena & Anr. v. Union of India & Ors., Para 29, (2019) 13 SCC 715. Date of Judgment: December 11,
2018. Available at: https://main.sci.gov.in/supremecourt/2012/42374/42374_2012_Judgement_11-Dec-2018.pdf

331
gender of victim is immaterial. Victim woman can be victim of rape.

may be either man or woman.
Age It covers only children. Here child It covers women. In case of rape age of
means any person below the age of woman is immaterial. It means covers
eighteen years [section 2 (d)]. Sex of minors as well as majors.
child is immaterial. It does not cover
persons who have attained age of
majority.
Marriage It covers all types of women whether Section 375, Sixthly - Sexual
married or unmarried if she is below the intercourse with a woman who is under
age of eighteen years. the age of eighteen years is rape and her
consent is immaterial.
Marital Intercourse- Exception 2 of
section 375. It says that sexual
intercourse with wife with or without
consent is not rape if she is above the
age of fifteen years.
Nature POCSO Act is Special Law. Combined IPC is General Law. According to
of law reading of Article 15(3) of Constitution section 5 IPC shall not affect special
of India, sections 5 & 41 IPC and laws. Section 41 Special law is a law
Section 42A, POCSO Act, 2012 it applicable to particular subject. Article
becomes clear that in case of conflict 15(3) State is empowered to make
between IPC (general law) and POCSO, special laws.
Act (special law), POCSO Act shall
prevail over IPC.
Standard According to Section 30 (2) accused Accused must prove ‗Preponderance of
of proof must prove beyond reasonable Probabilities‘ for getting benefits of
468
doubts. ‗General Exceptions‘.
Relation Independent Thought Case. In this case Exception 2 of section 375was declared
between unconstitutional. It was inconsistent with POCSO Act, 2012, Articles 14, 15 and
IPC, 21and section 375, sixthly of IPC.
POCSO
& Const.
Independent Thought v. Union of India & Anr. (11Oct. 2017.)

This case is a leading case which was decided by Division Bench of Supreme Court on October
11, 2017. In this case triangle relationship of POCSO, IPC and Constitution was involved.
Independent Thought v. Union Of India & Anr. (11Oct.2017.)
468
Attorney General for India and Ors. v. Satish and Another

332
Married Unmarried (1) Section 375 Exception 2 is arbitrary to Articles 14, 15 &
Below Below 21 of the Constitution of India. It is unconstitutional. It
15Yrs 15Yrs makes unreasonable classification between married (15 -
Rape Rape 18 no rape) and unmarried girl (15 -18 years – Rape).
(2) It is inconsistent with the provisions of POCSO, which
Married Unmarried must prevail.
15 -18Yrs Below (3) Now in all cases, sexual intercourse with a women
18Yrs including wife, if she is below the age of 18 years, is rape.
No Rape Rape (4) In this way, now, there is no difference between
unmarried and married women. If wife is below the age of
18 years, and husband makes sexual relation with his wife
whether with consent or without consent, it would be
amount to rape.
(7.9.) Comparison Bet. Before and After 2013 Amendment Regarding Rape
Before 2013 Amendment After 2013 Amendment

Definition Sexual Intercourse was necessary. Now sexual intercourse is not
of Rape Earlier insertion of penis into necessary. Penetration of penis
vagina was necessary. Such into the vagina, mouth, urethra or
sexual intercourse must be in six anus of a woman or insertion of
circumstances namely , any object into vagina, urethra or
Firstly- Against her will. anus is sufficient. If a man
Secondly—Without her consent. manipulates any part of the body
Thirdly— With her consent, of woman for penetration or
when her consent has been applies his mouth to the vagina,
obtained by putting her or any urethra or anus of a woman or
person in whom she is interested make her to do so against her will
in fear of death or of hurt. or without her consent or with or
Fourthly..Fifthly.. Sixthly — without her consent, when she is
With or without her consent, under eighteen years of age is
when she is under sixteen years of rape.
age. Explanation.
Age to give Section 375 Sixthly — With or Section 375 Sixthly — With or
consent without her consent, when she is without her consent, when she is
under sixteen years of age. under eighteen years of age.

333
New ground There were six categories of Now, there are seven categories of
regarding consent. consent.
consent Seventhly- When she is unable to
communicate consent.
Punishment There was no provisions There are two circumstances
regarding punishment of death when in rape cases death
sentence. sentence may be awarded. These
two cases are (1) Section 376A-
Punishment for causing death or
resulting in persistent vegetative
state of victim. (2) Section 376E-
Punishment for repeat offenders.
Exception There was one exception- Sexual There are two exceptions.
intercourse by a man with his Exception1-A medical procedure
own wife, the wife not being or intervention shall not constitute
under fifteen years of age, is not rape.
rape. Exception2-Sexual intercourse by
a man with his own wife, the wife
not being under fifteen years of
age, is not rape.
Exception 2 does not exist after
decision of Independent Thought
v. Union of India & Anr.469
Explanation There was one explanation. There are two explanations.
(1) Explanation 1 – Meaning of
vagina.470
(2) Meaning of Consent.
(7.10.) SPECIAL FEATURES OF THE CRIMINAL LAW (AMENDMENT) ACT, 2018.
469
Available at: https://indiankanoon.org. (Visited on April 10, 2018). Date of Judgment11Oct.2017.
470
Before 2013 Amendment, to constitute the rape insertion of penis into vagina was necessary. So several accused
persons were getting benefit by proving that there was no insertion into vagina. Now law has been changed. Now
penetration of penis into urethra (Urine part), vagina (Now vagina includes labia majora). Earlier it was not so.
There are two types of labia namely (i) Labia minora and (2) Labia Majora. In Law Labia majora covers labia
minora), anus and mouth also constitute rape. This law is in favour of women. In some cases, Courts held that
rupture of hymen was necessary. Later on in the case of Pani Bhushan Beheru v. State of Orissa, High Court held
that rupture of hymen was not necessary.

334
Now Criminal Law (Amendment) ‗Ordinance‘471 has been replaced by the Criminal Law
Amendment Act, 2018.472 By this ―Act‖ changes have been done in IPC, 1860, Indian Evidence
Act, 1872, Code of Criminal Procedure, 1973 and Protection of Children from Sexual Offences
Act, 2012. Rape has been classified into four categories- (1) Rape with girl below the age of
twelve years (2) Rape with girl below the age of sixteen years (3) Rape with girl below the age
of eighteen years (4) Rape above the age of eighteen years.
Provisions Before Criminal Law After Criminal Law (Amendment)

(Amendment) Act, 2018. Act, 2018.
INDIAN PENAL CODE,1860 INDIAN PENAL CODE,1860
Section 166A (c) 376B,376C, 376D, and 376E 376AB, 376B, 376C, 376D, and
Public servant Substituted by 376DA, 376DB.
disobeying direction
under law.
Section 228A 376A,376B,376C, 376D, Section 376 A, Section 376AB,
Disclosure of identity 376B,376C, 376D, and 376DA,
376DB.
Section 376(1) …not be less than seven years …not be less than ten years but
Punishment for rape but which may extend to which may extend to imprisonment
imprisonment for life… for life..
Section 376(2)(i) Rape on a woman when she is Deleted
under sixteen years of age
Section 376 (3) Section 376 (3) was absent. Newly inserted.
(It had been provided under Rape on a woman when she is under
Section 376(2) (i) for which sixteen years of age – Not less than
punishment was……. twenty years –which may be
not be less than ten years but imprisonment for life.
which may extend to
imprisonment for life..
Section 376 A Section 376 A Section 376 A (No change)
Section 376 AB Absent Inserted. Punishment-
Rape with girl below Not less than twenty Years – up to LI
the age of 12 Years and fine or Death sentence
471
This Ordinance has been issued by President under Article 123(1). This Ordinance was signed by president on
21st April,2018. It is available at :
http://www.prsindia.org/uploads/media/Ordinances/The%20Criminal%20Law%20Amendment%20Ordinance%202
018.pdf (Visited on October 13, 2018).
472
THE CRIMINAL LAW (AMENDMENT) ACT, 2018. The Act of Parliament received the assent of the President
on the 11th August, 2018. It shall be deemed to have come into force on the 21st day of April, 2018. Available at:
https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf (Visited on October 13, 2018).

335
Section 376DA Life Imprisonment

Punishment for gang
rape on a women under
sixteen years of age
Section 376DB LI and Fine or Death Sentence
Punishment for gang
rape on a women under
twelve years of age
Omitted Substituted Inserted
Section 376(2)(I) Section 166A,Section 228 A, Section 376(3), Section 376AB,
Section 376(1) Section 376DA, Section 376DB
Protection of Children From
Sexual Offences Act, 2012
Section 42 Section 376A, Section 376 C, Sections 376A, 376AB, 376B, 376C,
Substituted Section D Section 376D, 376DA and 376 DB.
There are following special features of this ‗Act‘-
 Amendments in Four Statutes-

By this ―Act‖ changes have been done in IPC, 1860, Indian Evidence Act, 1872, Code of
Criminal Procedure, 1973 and Protection of Children from Sexual Offences Act, 2012.
 Classification of Rape Victims on the basis of age-
Rape has been classified into four categories-
(i) Rape with girl below the age of twelve years – Section 376AB and Section 376
DB.
(ii) Rape with girl below the age of sixteen years Section 376DA
(iii)Rape with girl below the age of eighteen years Section 376(1)
(iv) Rape above the age of eighteen years.
 Enhancement of Punishment-
 Minimum Punishment- (a) According to section 376(1), minimum punishment in
rape cases is 10 years. Earlier minimum punishment was seven years.
 Minimum Punishment for Rape with women below the age of 16Years-
According to section 376(3), rigorous punishment for a term which shall not be
less than twenty years.
 Minimum Punishment for Rape with women below the age of 12 Years-
According to section 376AB, rigorous punishment for a term which shall not be
less than twenty years and which may extent to LI or death sentence.
 Life Imprisonment- According to Section 376DA Punishment for gang rape on a
women under sixteen years of age is imprisonment for life which shall mean
imprisonment for the remainder of that person‘s natural life, and with fine.
 Death Sentence - (Section 376 AB Section 376DB) - Two more categories of
offences related to rape have been inserted when death sentence may be awarded.

336
After this ―Act‖ there are four categories of offences related to rape when death
sentence may be awarded.
DEATH SENTENCE IN RAPE CASES
There are four situations in which death sentence can be awarded in case of commission of rape.
With the help of following table, it can be understood properly -
S.N. Act / Provisions Punishment
The Criminal Law (Amendment) Act, 2013
2013
1 Section 376A- Punishment for causing death or resulting in Death Sentence
persistent vegetative state of victim
2 Section 376E- Punishment for repeat offenders. Death Sentence
473
THE CRIMINAL LAW (AMENDMENT) Act, 2018.
2018
3 Section 376AB- Rape with women below the age of 12 Years Death Sentence
4 Section 376DB- ―Gang Rape‖ with women below the age of 12 Death Sentence
Years
RAPE OF WOMEN AND PUNISHMENT
S.N. Age of Woman Punishment Sections

1
2018 Rape of Woman under 12 Years Minimum 20Years in Jail Section 376AB
or LI or Death Sentence
2018 Gang Rape of Woman under 12 Years LI and Fine or death Section 376DB
Sentence
2
2018 Rape of Woman under 16 Years Minimum punishment 20 Section 376(3)
years (Earlier it was
10Years) which may
extend to LI and fine.
2018 Gang Rape of Woman under 16 Years LI and Fine Section 376DA
3
years (Earlier it was 7
473
This Ordinance has been promulgated by President under Article 123(1) on 22 nd April, 2018.

337
Years) which may extend

to LI and fine.
2013 Gang Rape of Woman under 18 Years Not less than 20 years Section 376D
which may extend to LI
and fine.
4 Under or above 18 Years Rape whether rape has been committed with or without
consent
to LI and fine.
and fine.
Rape by Women
Question - Can a lady be prosecuted for gang rape?
Answer- National Commission for Women says that a woman can be liable for gang rape if she
supported in commission of rape474.
According to ‗National Crime Records Bureau‘ Report, 2020, 4454 male, 19 female were
convicted for committing rape. It also shows that 6675 male, 167 female were acquitted from
charge of rape.475 It further mentions that 646 male and 16 female were discharged from
committing of rape.
But judgments476 of Supreme Court makes very clear that women can‘t be liable for rape or gang
rape.
Remarks – I am unable to understand why there is contradiction in report of NCRB Report and
judgments of Supreme Court. If these are judgments of Session and High Courts, how judges can
ignore judgment of Supreme Court.
Priya Patel v. State of Madhya Pradesh477
Facts - Complaint was lodged by the prosecutrix alleging that she was returning by Utkal
Express after attending a sports meet. When she reached her destination at Sagar, accused Bhanu
Pratap Patel (husband of the accused appellant) met her at the railway station and told her that
her father has asked him to pick her up from the railway station. Since the prosecutrix was
suffering from fever, she accompanied accused Bhanu Pratap Patel to his house. He committed
474
Available at: http://ncw.nic.in/sites/default/files/Chapter02.pdf (Visited on March 22, 2023).
475
National Crime Records Bureau (Ministry of Home Affairs) , Crime in India 2020 Statistics Volume III,
TABLE 19A.5 P. 1219 (2020). Available at: https://ncrb.gov.in/sites/default/files/CII2020%20Volume%203.pdf
476
Priya Patel v. State of Madhya Pradesh AIR 2006 SC 2639 and In State of Rajasthan v. Hemraj and Anr. (2009)
12 SCC 403.
477
AIR 2006 SC 2639. https://main.sci.gov.in/judgment/judis/27844.pdf (Visited on March 22, 2022)

338
rape on her. When commission of rape was going on, his wife, the present appellant reached
there. The prosecutrix requested the appellant to save her. Instead of saving her, the appellant
slapped her, closed the door of the house and left place of incident.
Issue - Can a lady be prosecuted for gang rape?
Decision of High Court - The High Court was of the view that though a woman cannot commit
rape, but if a woman facilitates the act of rape, Explanation-I to Section 376(2) comes into
operation and she can be prosecuted for "gang rape". She was convicted for gang rape.
Supreme Court –
Section 376 (2) (g) - Whoever, commits gang rape, shall be punished with rigorous
imprisonment for a term which shall not be less than ten years but which may be for life and
shall also be liable to fine.
Explanation I.--Where a woman is raped by one or more in a group of persons acting in
furtherance of their common intention, each of the persons shall be deemed to have committed
gang rape within the meaning of this sub-section. Supreme Court observed following important
points -
(1). Section 375 - A bare reading of Section 375 makes the position clear that rape can be
committed only by a man. The section itself provides as to when a man can be said to
have committed rape.
(2). Section 376(2) (g) - Section 376(2) makes certain categories of serious cases of rape as
enumerated therein attract more severe punishment. One of them relates to ―gang rape".
The language of sub-section (2)(g) provides that ―whoever commits ‗gang rape‘ shall be
punished etc.
(3). Section 376 (2) Explanation - The Explanation only clarifies that when a woman is
raped by one or more in a group of persons acting in furtherance of their common
intention each such person shall be deemed to have committed gang rape within this sub-
section (2). That cannot make a woman guilty of committing rape. This is conceptually
inconceivable. The Explanation only indicates that when one or more persons act in
furtherance of their common intention to rape a woman, each person of the group shall be
deemed to have committed gang rape. By operation of the deeming provision, a person
who has not actually committed rape is deemed to have committed rape even if only one
of the group in furtherance of the common intention has committed rape.
(4). Common Intention under Section 34 – ―Common intention‖ is dealt with in Section 34
IPC and provides that 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 was done by him alone. ―Common intention‖ denotes action in concert and
necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of
participation in action. The acts may be different and vary in character, but must be
actuated by the same common intention, which is different from same intention or similar
intention. The sine qua non for bringing in application of Section 34 IPC that the act must
be done in furtherance of the common intention to do a criminal act.
(5). Common Intention under Section 376 (2) (g) – The expression ―in furtherance of their
common intention‖ as appearing in the Explanation to Section 376(2) relates to intention
to commit rape. A woman cannot be said to have an intention to commit rape.

339
(6). Acquittal of woman - Appellant cannot be prosecuted for alleged commission of the
offence punishable under Section 376(2)(g).
(7). Abetment of Rape by woman – whether she can be charged for abetment. This is an
aspect which has not been dealt with by the Trial Court or the High Court. So Supreme
Court did not express his opinion.
State of Rajasthan v. Hemraj and Anr.
In State of Rajasthan v. Hemraj and Anr.478 Hon‘ble Justice Arijit Pasayat applied his reasoning
which he had applied in Priya Patel v. State of Madhya Pradesh.479 High Court of Rajasthan had
convicted Kamla for gang rape. Supreme Court acquitted Kamla for charge of gang rape.
Although name of Priya Patel v. State of Madhya Pradesh.480 was not used. But whole ratio of
this case was applied in this case.
Suggestions – (1) Proper implementation of law (2) Awareness (3) Division of Police
department in two parts (i) Law and Order, and (ii) Investigating agency (4) Rehabilitation
Centre. (5) Compensation.
Unnatural offences: Section 377

Section 377 - Unnatural offences.- Whoever voluntarily has carnal intercourse against the
order of nature with any man, woman or animal, 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.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the
offence described in this section.
Important words
 Lesbian: (woman and a woman) - Women who are attracted to women. The word
―lesbian‖ is derived from the name of the Greek island of Lesbos, where it was rumored
that female same-sex couples proliferated.
 Gay: (Men to Men) - Men who are attracted to men, although this term is sometimes also
used generically for all same-sex attracted persons.
 Bisexual: Women who are attracted to both sexes; men who are attracted to both sexes.
 Transgender – Sex is not clear of these persons.
478
(2009) 12 SCC 403. Date of Judgment: April 27, 2009. Available at:
479
480

340
 Homosexual (Same): People of either gender who are attracted, sexually, emotionally
and in relationships, to persons of the same sex. Gay and lesbian are two parts of
homosexual. In case of man to man – Gay, and in case of woman to woman – Lesbian.
The word ―homosexual‖ is not derived from ―homo‖ meaning man, but from ―homo‖
(Greek word) means ‗same‘.
 Heterosexuals (Opposite) (man and woman) – Opposite sex attract to each other. This is
most popular form of sexual attraction. But bisexual is challenging its supremacy. Reason
of this is easy access of every types of pornography.
 Penile – Related to penis
 Carnal Intercourse – Sexual Intercourse between organs which are not part for the
purpose of procreation of child.
Introduction -Section 377 penalises all forms of non-penile-vaginal intercourse. Section 377
criminalizes sexual intercourse that is penile and non-vaginal, deeming it ―against the order of
nature‖. The law affects the rights of the lesbian, gay, bisexual and transgender (LGBT)
population, in particular, but its provisions can also be applied to heterosexual citizens.481
In 2009, the Delhi High Court had ruled in favour of decriminalizing section 377. This decision
was overturned by Division Bench of Supreme Court in 2013, in the Suresh Kumar Koushal v.
Naz Foundation (2013).
Suresh Kumar Koushal Case was overruled by Navtej Singh Johar v.UOI by five judges of
Constitutional Bench of Supreme Court on Sep. 6, 2018.482
Section 377 is an archaic relic. In September 2018, a five-judge Constitution Bench of the
Supreme Court decriminalized consensual homosexual sexual activity among adults (Navtej
Singh Johar v.UOI). In doing so the court restored the Delhi High Court‘s 2009 Naz Foundation
judgment which was overruled by a two-judge bench of the SC in Suresh Kumar Kaushal v. Naz
Foundation (2013).
Leading Cases
Year/Court Leading Cases Remarks

2009 Naz Foundation v. Section 377 –Partially Unconstitutional
Government of NCT of
Delhi and others483
2013 Suresh Kumar Koushal & (1) Section 377- Constitutional (2) Naz
481
https://www.livemint.com/Politics/d8zjDGMLYr2hCHMt54iKcN/Section-377-verdict-by-Supreme-Court-today-
5-key-things-to.html
482
Vageshwari Deswal, ―Unnatural offences: Decrypting the phrase, ‗Against the order of nature‘, The Times of
India, October 18, 2019. Available at: https://timesofindia.indiatimes.com/blogs/legally-speaking/unnatural-
offences-decrypting-the-phrase-against-the-order-of-nature/ (Visited on March 14, 2022).
483
(2009) 111 DRJ 1.

341
Anr. v. Naz Foundation & Foundation case was overruled.

Ors 484 Reason of Decision – (i) The LGBT community
comprised only a minuscule fraction of the total
population and
(ii) that the mere fact that the said Section was
being misused is not a reflection of the vires of the
Section.
2014 National Legal Services Transgenders are person
Authority v. Union of A person‗s sex is usually assigned at birth, but a
India and others relatively small group of persons may be born
with bodies which incorporate both or certain
aspects of both male and female physiology.
September Navtej Singh Johar & Ors. Section 377 is partially struck down. The
06, 2018 v. Union Of India Thr. provisions of Section 377 will continue to govern
Secretary Ministry of Law non-consensual sexual acts against adults, all acts
and Justice of carnal intercouse against minors, and acts of
beastiality]
There are four parts of this judgment -
(1) Sex with consent -Section 377 IPC, will not govern any consensual sexual
relationship between two adults, i.e. homosexuals (man and a man),
heterosexuals (man and a woman) or lesbians (woman and a woman). For this
purpose Section 377 be regarded as unconstitutional.
(2) Sex without Consent -Any act of the description covered under Section 377
IPC done between two individuals without the consent of any one of them
would invite penal liability under Section 377 IPC.
(3) Sex with animals - If anyone, both a man and a woman, engages in any kind
of sexual activity with an animal, the said aspect of Section 377 is constitutional
and it shall remain a penal offence under Section 377 IPC.
(4) Suresh Koushal Case – This case was overruled.
Reasoning of decision
(1)Consensual sexual intercourse between two adult male and female is valid
while between two males or females it is crime. It is volative of article 14.
(2) While Section 375 permits consensual penetrative acts (the definition of
‗penetration‘ includes oral and anal sex), Section 377 makes the same acts of
penetration punishable irrespective of consent. This creates a dichotomy in the
law.
484
(2014) 1 SCC 1

342
(i) Naz Foundation v. Government of NCT of Delhi and Others (2009) Division Bench of
the Delhi High Court- Hon‘ble JJ. Ajit Prakash Shah & S.Muralidhar – Section 377 is
Partially Unconstitutional. Delhi High Court partially struck down Section 377 IPC
clearly stating that carnal intercourse between homosexuals and heterosexuals with
consent cannot be an offence.
(ii) Suresh Kumar Koushal & Anr v. Naz Foundation & Ors (11 December, 2013),
Supreme Court Division Bench – JJ. G.S. Singhvi, Sudhansu Jyoti Mukhopadhaya –
Appeal was referred from the judgment of Naz Foundation v. Government of NCT of
Delhi and Others (2009). In this case Supreme Court declared that Section 377 is
constitutional.
(iii)Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and
Justice (September 6, 2018) Constitutional Bench
Hon‘ble JJ. (1) Dipak Misrahon‘ble (2) Rohinton Fali Nariman, (3) A.M. Khanwilkar, (4)
Dr. Justice D.Y. Chandrachud, (5) Indu Malhotra (Four concurring Order).
After this judgment section 377 may be divided into two parts –
Constitutional part of section 377

Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal
intercouse against minors, and acts of beastiality.
In following cases section 377 is constitutional
(i) Sex without Consent -Any act of the description covered under Section 377 IPC done
between two individuals without the consent of any one of them would invite penal
liability under Section 377 IPC.
(ii) Sex with Minor – According to section 5 special law (POCSO Act) shall prevail over
general law (IPC). But where special law is silent general law (section 377) shall apply.
(iii)Sex with animals (Beastiality) - if anyone, by which we mean both a man and a woman,
engages in any kind of sexual activity with an animal, the said aspect of Section 377 is
constitutional and it shall remain a penal offence under Section 377 IPC.
Suresh Koushal Case – This case was overruled.
Unconstitutional Part of Section 377

LGBT (Lesbian, Gay, Bisexual and Transgender)
In following cases section 377would be unconstitutional-
(1) Sex with consent -Section 377 IPC, so far as it penalizes any consensual sexual relationship
between two adults at private place, be it homosexuals (man and a man), heterosexuals (man and
a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. Now in these
case section 377 would not be applicable.
Indu Malhotra
(i) In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises
consensual sexual acts of adults (i.e. persons above the age of 18 years who are

343
competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the
Constitution. It is, however, clarified that such consent must be free consent, which is
completely voluntary in nature, and devoid of any duress or coercion.
(ii) The declaration of the aforesaid reading down of Section 377 shall not, however, lead to
the reopening of any concluded prosecutions, but can certainly be relied upon in all
pending matters whether they are at the trial, appellate, or revisional stages.
(iii)The provisions of Section 377 will continue to govern non-consensual sexual acts against
adults, all acts of carnal intercouse against minors, and acts of beastiality.
(iv) The judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. is hereby
overruled.
Justice Deepak Mishra

(i) Distinction between ‗natural‘ and ‗unnatural‘ is not acceptable - Rejecting the
distinction between ‗natural‘ and ‗unnatural‘ sexual relations, said that ―what nature gives
is natural‖, and ―the natural identity of an individual should be treated to be absolutely
essential to his being‖. Sexual attraction for the same sex is controlled by neurological
and biological factors; an individual‘s natural orientation is innate and lies at the core of
her/his being and identity.
(ii) Majoritarian Rule is not acceptable- The Constitution is not for just the majority, the
fundamental rights are guaranteed to ―any person‖ and ―any citizen‖, and the sustenance
of these rights does not require majoritarian sanction.
(iii)Homosexuality is not mental illness - ―Homosexuality is neither mental illness nor
moral depravity,‖ CJI Misra said in clear terms. Nor does one choose to be homosexual
— the science of sexuality says an individual has little or no control over whom she/he is
attracted to. Research shows sexual orientation is decided very early, possibly even
before birth.
Section 377 criminalises carnal intercourse even between heterosexuals, and is legally
unsustainable for the simple reason that Section 375 IPC clearly stipulates that carnal
intercourse between a man and a woman with the wilful and informed consent of the
woman does not amount to rape, and is not punishable.
(7.11.) MARITAL RAPE, RAPE AND POCSO ACT, 2012
Meaning of Marital Rape - Marital means pertaining to marriage. Sexual intercourse between
husband and wife is called marital sexual intercourse. Essence of rape is consent. If sexual
intercourse has occurred in presence of free consent there is no rape. If it is happened without
free consent, it is rape.
If husband has made sexual intercourse against the consent of her wife, this is marital rape.
Difference between marital rape and rape is that in case of marital rape sexual intercourse
occurred between spouses against free consent of another spouse. In case of rape sexual
intercourse occurred between two persons (In some countries rape laws are neutral and in some

344
countries it is gender based. In India it is gender based. Only man can commit rape.) against free
consent of another person. Here relationship of husband and wife is missing.
Common in both Marital Rape Rape
Essence of both rapes is Existence of relationship Here there is no marital
against free will of another between husband and wife is relationship.
person. sine qua non.
Basis of non-marital rape- The exemption for marital rape stems from a long out-dated notion
of marriage which regarded wives as no more than the property of their husbands. According to
the common law of coverture, a wife was deemed to have consented at the time of the marriage
to have intercourse with her husband at his whim. Moreover, this consent could not be revoked.
Sir Matthew Hale in his book ‗The History of the Pleas of the Crown‘ published in 1736
declared: ―The husband cannot be guilty of rape committed by himself upon his lawful wife, for
by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto
her husband which she cannot retract‖. Essence of rape is against will or consent of woman.
According to Mr. Hale consent is given at the time of getting marriage. From that woman cannot
retract from own words. Thought of Mr. Hale was good at that time. In most of the countries
marriage institution was treated sacrament. In Religious phenomenal there was no scope for wife
to take divorce. After changing of time wives were allowed to take divorce under certain
circumstances. Now wife has also independent personality. She has right to live with dignified
life. Several countries have declared sexual intercourse with wife against her will or without her
free consent is rape.
English Law
In Sexual Offences Act 1956 rape was not possible by husband even marriage is invalid.
According to Section 6 (2) Where a marriage is invalid under section two of the Marriage Act,
1949, or section one of the Age of Marriage Act, 1929 (the wife being a girl under the age of
sixteen), the invalidity does not make the husband guilty of an offence under this section because
he has sexual intercourse with her, if he believes her to be his wife and has reasonable cause for
the belief. By section 142 of the Criminal Justice and Public Order Act 1994 definition of rape
was changed.
This immunity has now been withdrawn in most major jurisdictions. In England and Wales, the
House of Lords held in 1991 that the status of married women had changed beyond all
recognition since Hale set out his proposition. Most importantly, Lord Keith, speaking for the
Court, declared, ‗marriage is in modern times regarded as a partnership of equals, and no longer
one in which the wife must be the subservient chattel of the husband.‘

345
Section 142 of the Criminal Justice and Public Order Act 1994 abolished the marital rape
exception by excluding the word 'unlawful' preceding 'sexual intercourse' in s. 1 of the Sexual
Offences Act 1956.485
Judgment of the European Commission of Human Rights in C.R. v UK which endorsed the
conclusion that a rapist remains a rapist regardless of his relationship with the victim.
Importantly, it acknowledged that this change in the common law was in accordance with the
fundamental objectives of the Convention on Human Rights, the very essence of which is respect
for human rights, dignity and freedom. This was given statutory recognition in the Criminal
Justice and Public Order Act 1994.‖ In U.K. marital rape is a kind of rape which is punishable
Difference between UK and India

United Kingdom India
A man can commit rape of man or Here rape of man is not possible.
woman. Section 142 of the Criminal
Justice and Public Order Act 1994
definition of rape was changed.
Here marital rape is rape. Here if the age of wife is above the age of 18
years, marital rape is not possible. This must be
read in the light of Independent Thought Case.
J.S. Verma Committee recommended that the
exception for marital rape must be removed. But
this recommendation was rejected at the time of
making amendment in criminal law.
USA
In Eisenstadt v. Baird the US Supreme Court observed that a ―marital couple is an independent
entity with a mind and heart of its own, but an association of two individuals each with a
separate intellectual and emotional makeup.‖
Canada, South Africa and Australia

These countries have declared marital rape as rape.
India
Section 375, Exception 2 -―Sexual intercourse or sexual acts by a man with his own wife, the
wife not being under fifteen years of age, is not rape.‖
485
J.S. Verma Committee Report, Page no.114, Available at:
https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf
(Visited on December 1, 2018).

346
Marital Rape can be divided into three parts namely;
(1) Minor Marital Rape (Birth to 15 Yrs.)

(2) Minor Marital Rape (Since 15 years – 18 Years)
(3) Adult Marital Rape (Since 18 Years to onwards).
Marriage Marriage Marriage

Since birth to 15 years Since 15 years – 18 Years Since 18 Years to onwards
Rape Rape No Rape
Reason -Exception of section Reason –Interpretation of Reason –Interpretation of

375. Marital Rape from the Exception -2 of section 375 in Exception -2 of section 375 in
very beginning the case of Independent the case of Independent
Thought Thought. In this case SC did
not consider beyond statutory
provisions.
(1) Minor Marital Rape (Birth to 15 Yrs.)– This is marital rape declared by the Indian
Penal Code under section 375, Exception 2. Section 375, Exception 2 says ―Sexual
intercourse or sexual acts by a man with his own wife, the wife not being under fifteen
years of age, is not rape.‖ It means if wife is below the age of fifteen years then sexual
intercourse or sexual acts by her husband whether with consent or without consent of her
will amount to rape. If wife is above the age of 15 years, then there is no rape. Sexual
intercourse by husband with wife who is above 15 yrs. and below 18 years was
challenged in Independent Thought Case.
(2) Minor Marital Rape (Since 15 years – 18 Years) – Exception 2 of section 375 deals
marital rape. According to bare reading of this provision sexual intercourse with wife
(Since 15 years – 18 Years) by husband is not rape. But after the decision of Independent
Thought case this is the rape.
After the decision of division bench of Supreme Court in the case of Independent
Thought v. Union of India on October 11, 2017 sexual intercourse by a husband with his
wife whether with or without consent is rape if she is below the age of eighteen years. It
was interpreted in the light of POCSO and Article 14 of the Constitution of India.
In the case of Independent Thought v. Union of India Supreme Court confined itself only
with marital rape of a girl child between 15 and 18 years of age in the context of
Exception 2 to Section 375 of the IPC.
(3) Adult Marital Rape – In India Adult Marital Rape is no rape. But marital rape victim
has civil remedy under the Protection of Women from Domestic Violence Act, 2005.
Justice J. S. Verma Committee Report - The IPC differentiates between rape within
marriage and outside marriage. Under the IPC sexual intercourse without consent is
prohibited. However, an exception to the offence of rape exists in relation to un-

347
consented sexual intercourse by a husband upon a wife. The Committee recommended

that the exception to marital rape should be removed. Marriage should not be considered
as an irrevocable consent to sexual acts. Therefore, with regard to an inquiry about
whether the complainant consented to the sexual activity, the relationship between the
victim and the accused should not be relevant.
J.S.Verma Committee said that notion has changed and now wife is not property of
husband. Even the United Kingdom and several other countries have changed its law.
The Committee was in favour of deletion of section 375 Exception and declaration of
marital rape as a rape in India also.
Report of this Committee was discarded.
Recommendation of Human Rights Council- In the Report of the Human Rights
Council on its thirty-sixth session recommended to remove exception for IPC and declare
marital rape as rape (June 2018).486
Question No. 5 (2016)

Meenu, a 16 years old girl worked as domestic servant in Anita‘s house. Anita lost her necklace
and suspected that Meenu had stolen it. She filed a complaint against Meenu and both were
called to the police station. Meenu came with her mother and Anita came with her husband. All
were asked to leave the police station except Meenu, whose presence was required for further
investigation. Gopal a police constable then had sexual intercourse with Meenu in the Police
Station, whereas another constable Madan touched her private parts. Meenu said that she did not
consent to the sexual intercourse and had protested touching her body in an appropriate manner.
Can Gopal and Madan held liable for rape?
Answer
In this problem Tuka Ram v. State of Maharashtra (Mathura Rape Case) (1978), section 375 (a),
(c), Sixthly, section 376 C, and section 376D of IPC are involved.
Tuka Ram Case was decided by Supreme Court in 1978 in which it was said that there were no
physical injury on body of victim. It means she had not resisted. She had given implied consent.
Appellant was acquitted. After this decision, movement started all over India against ratio of this
judgment. Rape law was amended in 1983. Again after Delhi Gang Rape case definition of rape
was substituted and punishment was made harsher. In the light of current definition of rape under
section 375, this problem needs to be discussed.
According to section 375 (a) a man is said to be commit rape if he penetrates his penis, to any
extent, into the vagina, mouth urethra or anus of a woman or makes her to do so with him or any
other person.
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348
According to section 375 (c) a man is said to be commit rape if he manipulates any part of the
body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of
such woman or makes her to do so with him or any other person.
First part of section 375 deals about actus reus and second part deals mens rea.
According to section 375 sixthly, if prohibited act is done with or without her consent, when she
is under eighteen years of age then it is rape.
Section 376 C deals punishment for sexual intercourse done by person in authority and Section
376 D deals punishment for gang rape.
Meenu was 16 years old girl. So according to section 375 sixthly, her consent was immaterial.
Even she had also said that she had not given consent. Gopal had sexual intercourse with Meenu
in the Police Station. So sexual intercourse made by Gopal had fallen into section 375(a). He has
penetrated his penis into vagina of Meenu. Madan touched her private parts which will come
under section 375(c). He was touching the private parts of Meenu to cause penetration.
Gopal was police constable and Madan was constable. They had raped into police station. So
they will be punished under section 376 C. If they had raped in furtherance of common intention,
they will also be liable for ‗Gang rape‘ under section 376D of IPC.
Conclusion
From the above discussion it becomes clear that Gopal and Madan will be held liable for rape
under section 376 C and section 376D of IPC.
Question 7 (2015 OC)

Seema, girl of 16 years had sexual intercourse with her boyfriend Mohan on the promise made
by him of getting married. However, he went to Bombay and stopped entertaining her any more.
Seema filed a complaint against her boyfriend of committing rape on the pretext of getting
married. Decide what offence has been committed by the Mohan.
Answer (Already discussed)

Section 375(a).
Section 375 is gender specific. Only man commits rape. Rape con be committed only of woman.
There are two parts of section 375 namely; (1) Actus reus - (a) to (d) (2) Mens rea –Firstly to
Seventhly.
Seema is woman and Mohan is man. Mohan had sexual intercourse with Seema. Sexual
intercourse means penetration of penis into vagina (including labia majora), urethra anus or
mouth. So sexual intercourse of Mohan with Seema will come under section 375(a).
Section 375 Sixthly
Seema was below the age of eighteen years. She was age of sixteen years. According to section

349
375 sixthly, sexual intercourse with a woman who is under the age of eighteen years is rape and
her consent is immaterial. So Mohan has committed rape.
Section 375 Secondly, Section 90 & Deepak Gulati Case
According to section 90, a consent is not such a consent as it intended by any section of this
Code, if the consent is given by a person under fear of injury, or under a misconception of fact,
and if the person doing the act knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception.
Section 375 Secondly – If PIMA is done against consent of woman then such PIMA will be
rape.
Deepak Gulati v. State of Haryana (SC 2013)- Intercourse under promise to marry constitutes
rape only if from initial stage accused had no intention to keep promise. An accused can be
convicted for rape only if the court reaches a conclusion that the intention of the accused was
mala fide and that he had clandestine motives.
In this problem Seema had sexual intercourse with her boyfriend Mohan on the promise made by
him of getting married. It means Seema was under misconception of fact that Mohan will get
marriage. While Mohan knew that Seema would become ready to make sexual intercourse on his
promise to get marriage. But he went to Bombay and stopped entertaining her. It means he was
not interested in getting married. He had mala fide and clandestine motives. So Mohan has
committed rape.
Conclusion
From the above discussion it becomes clears that Mohan has raped Seema.
Question 5 (2012)
M, a young girl of 16 years having lost her both parents lived with her brother G. M developed
relationship with A and they decided to get married. G filed a report with police that A had
kidnapped M. The police swung into action and brought M, G, and A to the police station at
8p.m. when their statement were recorded. After recording their statements, the inquiry officer
left the station. When M, G, and A started leaving the police station at around 9.30 PM, T a head
constable and P , a constable directed the M remain at police station for further investigation.
Immediately, thereafter T and P took M into a room. T loosened her underwear, lit a torch and
stared at her private parts. He then felled her on the floor in the room and had sexual intercourse
with her. P was impatience to have sexual intercourse with M but could not do so as there were
wide protests from G and A outside as a result of which a crowd had collected outside the police
station.
The crowd broke open the gate and apprehended T and P. It was found that P had already
unbuttoned his trousers. While coming out of the police station, M cried repeatedly that she had
been subjected rape by T. She further cried that had she not been rescued by the people P too
would have raped her. Accordingly, FIR was lodged against T and P for the offence of rape.
After investigation T and P are being tried for the offence of rape u/s 376 (2) (a) and (g) of IPC.

350
The defence of T and P at the trial, inter alia ( among other things) , is that it was M who had
shown interest in them and that she had voluntarily played back and shown no resistance when T
and P purposed sexual intercourse to her. Further, P‘s defence is that he cannot be held guilty as
he had no sexual intercourse with her.
Discuss whether the prosecution can succeed in proving the guilt of the accused P & T under
sections 376(2)(a) & (g) of IPC.
Question 5(a) (2015)

Akriti, a girl of 17 years of age ran away with her boyfriend. She was brought to the police
station as her father had filed a complaint of kidnapping against her boyfriend. Sexual
intercourse in the police station between Akriti and Ghanshyam, a police constable was proved.
Akriti said that she did not consent to the sexual intercourse. There are no marks of injury on her
person or that of Ghanshyam. Can Ghanshyam be held liable for rape?
Answer (Question 5 (2012) Question 5(a) (2015)

(I am replying the answers according to current position of law i.e. law in 2018)
In these problems Tuka Ram v. State of Maharashtra (Mathura Rape Case) (1978), section 114A
of the Indian Evidence Act and section 375 (a), secondly, sixthly, Explanation 2 of IPC are
involved.
Tuka Ram v. State of Maharashtra (Mathura Rape Case)
Mathura‘s parents died when she was a child and she was living with her brother, Gama. Both of
them worked as labourers to earn a living. Mathura used to go to the house of Nunshi for work
and during the course of her visits to that house she came in contact with Ashok who was the
sister‘s son of Nunshi. The contact developed into an intimacy so that Ashok and Mathura
decided to become husband and wife. On 26th of March, 1972 Gama lodged a report at the
police station alleging that Mathura had been kidnapped by Nunshi, her husband Laxman and
Ashok. The report was recorded by Head Constable Baburao, at whose instance all the three
persons complained against as well as Mathura were brought to the police station at about 9 p.m.
and the statements of Ashok and Mathura were recorded. By that time, it was 10.30 p.m. and
Baburao asked all the persons to leave with a direction to Gama to bring a copy of the entry
regarding the birth date of Mathura. After Baburao left Mathura, Nunshi and Gama and Ashok
started to leave the police station. The appellants, however, asked Mathura to wait at the police
station and told her companions to move out. The direction was complied with. Immediately
thereafter Ganpat took Mathura into a latrine room and raped her and thereafter dragged her to a
Chhapri on the back side and raped her again. Thereafter, Tuka Ram fondled with her private
parts but could not rape her because he was in a highly intoxicated condition. Nunshi, Gama and
Ashok who were waiting outside the police station for Mathura grew suspicious. They therefore
shouted and attracted a crowd. Thereafter, a complaint was lodged.
Mathura was examined by a doctor who found that she had no injury on her person. Her
hymen revealed old ruptures. The vagina admitted two fingers easily. The age of the girl was

351
estimated by the doctor to be between 14 and 16 years. The Chemical Examiner did not find the
traces of semen in the pubic hair and vaginal-smear slides. The presence of semen was,
however, detected on the girl‘s clothes.
Supreme Court wrongly presumed and said that there could be no fear because the girl was taken
away by Ganpat from amongst her near and dear ones. On the point of consent of the victim
Supreme Court said that no marks of injury were found on the person of the girl after the incident
and their absence goes a long way to indicate that the alleged intercourse was a peaceful affair.
SO it was matter of ―passive submission‖. In this case appellants were acquitted. At that time
burden of prove lies over prosecution.
Effect of Tuka Ram Case - Against ratio of this judgment protest started all over India. Due to
public pressure criminal laws were changed to nullify the ratio of judgment of this case. In 1983
Indian Evidence Act, IPC and Cr.P.C. were amended at large scale. Section 114A were inserted
in Indian Evidence Act and definition of rape was substituted.
After Delhi Gang Rape Case in 2013 again due to pressure of public criminal laws were
amended in 2013. After Kathua and Unnav Rape Case again criminal laws were amended in
2018.
Section 114A
According to section 114A of Indian Evidence Act, in rape cases if question arises whether
sexual intercourse had been done with or without consent then Court shall presume that there
was absence of consent if two conditions are being fulfilled –
(iii)where sexual intercourse by the accused is proved and
(iv) such woman states in her evidence before the court that she did not consent.
If both the conditions is proved then presumption of absence of consent will be and burden of
prove regarding presence of consent shall lies over accused.
Explanation 2 of section 375

According to Explanation 2 of Section 375, ―Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of verbal or non-verbal
communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.‖
‗Provided that‘ has been inserted to prevent repetition like ratio of Tuka Ram Case.
Section 90
According to section 90, a consent is not such a consent as it intended by any section of this
Code, if the consent is given by a person under fear of injury, or under a misconception of fact,
and if the person doing the act knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception.
Deepak Gulati Case

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Deepak Gulati v. State of Haryana (SC 2013)- Intercourse under promise to marry constitutes
rape only if from initial stage accused had no intention to keep promise. An accused can be
convicted for rape only if the court reaches a conclusion that the intention of the accused was
mala fide and that he had clandestine motives.
Evaluation of Problems
Sexual intercourse between Aktiti and Ghanshyam is being evaluated on following grounds-
(1) Sexual intercourse between Aktiti and Ghanshyam will come under section 375(a).
(2)Aktiti was below the age of 18 years. So her consent was immaterial. Her rape comes under
section 375 sixthly.
(3) She had not given consent. Both conditions of section 114A are being fulfilled. First
condition i.e. sexual intercourse has been proved between Akriti and Ghanshyam, a police
constable. Second condition i.e. denial of giving consent had also been proved i.e. Akriti said
that she did not consent to the sexual intercourse. So Court shall presumed that there was no
consent.
(4) According to Explanation 2 of 375, a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as consenting to the sexual
activity. So marks of injury on her person or that of Ghanshyam is immaterial.
Conclusion
From the above discussion it becomes very clear that Ghanshyam has committed rape.
Question 5(b) 2013

You are required to decide the criminality of Tuka Ram and Ganpat under Law as amended
under the Criminal Law (Amendment) Act, 2013 in the following facts and circumstances:
Mathura, an unmarried girl about 18 years of age was called to police station by the above named
policemen in respect of her role in a kidnapping case. After she came out of the police station she
complained that the above two accused confined her in one room and Ganpat undressed her and
before having penile penetration in her vagina he inserted two of his fingers in her vagina. It was
at that time that she was able to run away from the room by forcefully pushing both of them on
one side. She stated that she could thus save herself from being forced to penile sexual
intercourse against her will and without her consent. She also stated in her statement to the police
that when Ganpat had overpowered her, Tuka Ram was also undressing himself with intent to
have forced penile sexual intercourse with her. Decide.
Answer
Rape

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According to section 375 (b) A man is said to commit "rape" if he inserts, to any extent, any
object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman
or makes her to do so with him or any other person.
In this problem Ganapat inserted two of his fingers in her vagina. It was without consent. . It was
at that time that she was able to run away from the room by forcefully pushing both of them on
one side. She stated that she could thus save herself from being forced to penile sexual
intercourse against her will and without her consent. According to section 114 A of IEA once
insertion is proved and woman denies her consent, the court shall presume absence of consent.
So as soon as Ganapat inserted his two fingers into vagina of Mathura against her will (Section
375 firstly) or without her consent (Section 375 secondly), he committed rape.
Gang Rape
Section 376D- Where a woman is raped by one or more persons constituting a group or acting
in furtherance of a common intention, each of those persons shall be deemed to have committed
the offence of rape and shall be punished with rigorous imprisonment for a term which shall not
be less than twenty years, but which may extend to life which shall mean imprisonment for the
remainder of that person's natural life, and with fine.
In this problem she was called by policemen. Ganapat and Tularam confined her in one room.
when Ganpat had overpowered her, Tuka Ram was also undressing himself with intent to have
forced penile sexual intercourse with her. These facts denote that both were acting in furtherance
of common intention. Common intention was to commit rape. Liability of both persons will be
same. So both will be liable for committing gang rape under section 376D.
Conclusion
From the above discussion it becomes very clear that Ganapat had committed rape as well as
gang rape. Tuka Ram has committed gang rape along with Ganapat.

354
SPECIAL FEATURES OF THE CRIMINAL LAW (AMENDMENT) Act, 2018.
Now ‗Ordinance 2018‘ has been substituted by ‗..Act,2018‘. Either they ask ‗Ordinance
2018‘ or ‗..Act,2018‘will be same. Most important point is that they will ask only those changes
which were made in IPC. Don‘t emphasize on Criminal Procedure Code or Evidence or POCSO.
But for safe side you can read. 99.9% chance is that they will ask question from ‗..Act,2018‘
related to IPC.
By this ―Ordinance‖ changes have been done in IPC, 1860, Indian Evidence Act, 1872, Code of
Criminal Procedure, 1973 and Protection of Children from Sexual Offences Act, 2012. Rape has
been classified into four categories- (1) Rape with girl below the age of twelve years (2) Rape
with girl below the age of sixteen years (3) Rape with girl below the age of eighteen years (4)
Rape above the age of eighteen years.
INDIAN PENAL CODE, 1860
Provisions Before Criminal Law After Criminal Law (Amendment)

INDIAN PENAL CODE,1860 INDIAN PENAL CODE,1860
Section 166A (c) 376B,376C, 376D, and 376E 376AB, 376B, 376C, 376D, and
Public servant Substituted by 376DA, 376DB.
disobeying
direction under
law.
Section 228A 376A,376B,376C, 376D, Section 376 A, Section 376AB,
Disclosure of 376B, 376C, 376D, and 376DA,
identity 376DB.
Section 376(1) …not be less than seven years but …not be less than ten years but
Punishment for which may extend to which may extend to imprisonment
rape imprisonment for life… for life..
Section 376(2)(i) Rape on a woman when she is Deleted
under sixteen years of age
Section 376 (3) Section 376 (3) was absent. Newly inserted.
(It had been provided under Rape on a woman when she is under
Section 376(2) (i) for which sixteen years of age – Not less than
punishment was……. twenty years –which may be
not be less than ten years but imprisonment for life.
which may extend to
imprisonment for life..
Section 376 A Section 376 A Section 376 A (No change)
Section 376 AB Absent Inserted. Punishment-
Rape with girl Not less than twenty Years – up to

355
below the age of LI and fine or Death sentence

12 Years
Section 376DA Life Imprisonment
Punishment for
gang rape on a
women under
sixteen years of
age
Section 376DB LI and Fine or Death Sentence
Punishment for
gang rape on a
women under
twelve years of
age
Omitted Substituted Inserted
Section 376(2)(I) Section 166A,Section 228 A, Section 376(3), Section 376AB,
Section 376(1) Section 376DA, Section 376DB
INDIAN EVIDENCE ACT, 1872
Provision Before Criminal Law After Criminal Law (Amendment)
Section 53A Section 376A, Section 376B, Section 376A, Section 376 AB,
Substituted Section 376 C and 376 D Section 376B,
Section 376 C and 376 D, Section
376D and Section 376DA and
Section 376 DB.
Section 146 Section 376A, Section 376B, Section 376A, Section AB, Section
Substituted Section 376 C and 376 D 376B,
Section 376 DB.
Code of Criminal Procedure
1973
Provision Before Criminal Law After Criminal Law (Amendment)
Section 26 Section 376A, Section 376B, Section 376A, Section AB, Section
Section 376 DB.
Section 154 Section 376A, Section 376B, Section 376A, Section 376 AB,

356

Section 376C, Section 376D and
Section 376DA and Section 376 DB.
Section 161 Section 376A, Section 376B, Section 376A, Section 376AB,
Section 376 DB.
Section 164 (5A) Section 376A, Section 376B, Section 376A, Section 376 AB,
Section 376C, Section 376D and
Section 376DA and Section 376 DB.
Section 173(1A) Investigation in relation to rape of Investigation in relation to rape of
Substituted child may be completed within child shall be completed within two
three months months
Section 376C and 376 D, Section
Section 376 DB.
Section376 C and 376 D, Section
Section 376 DB.
Section 309 When the inquiry or trial relates When the inquiry or trial relates to
Substituted to an offence under Section 376A, an offence under Section 376A,
Section 376B, Section 376 C and Section 376 AB, Section 376B,
376 D the inquiry or trial shall, Section 376C and 376 D, Section
AS FOR AS POSSIBLE, be 376D and Section 376DA and
completed within the period of Section 376 DB of IPC, the inquiry
two months from the date of or trial shall be completed within
filling of the charge sheet. the period of two months from the
date of filling of the charge sheet.
Section 327(2) Section 376A, Section 376B, Section 376A, Section AB, Section
Section 376 C and 376 D 376B,
Substituted Section 376 C and 376 D, Section
Section 376 DB.
Section 357 B- Section 326A and Section 376D Section 326A and Section 376AB,

357
Substituted Section376 D, Section 376 DA and

Section DB.
Section 357 C- Section 376A, Section 376B, Section 376A, Section AB, Section
Section 376C and 376 D, Section
Section 376 DB.
Section 377 There was no limitation period Section 377 (3)- When appeal has
(3)Appeal disposal of appeal been filed against a sentence passed
Inserted under Section 376A, Section AB,
Section 376B,
Section 376 DB of IPC , the Appeal
shall be disposed of within a period
of six months from the date of filing
of such appeal
DEFECTIVE REASON -Section 377 (3) has It is a silly mistake and human error.
ORDINANCE been inserted without either
substituting clause (3) or
renumbering clause (3) as clause
(4).
Section 438 (4) Absent No anticipatory bail when offence is
Inserted. related to Section 376(3), Section
376AB Section 376DA and Section
376 DB.
Section 439 (1) Absent High Court or Court of Session shall
Second Proviso before, before granting a bail to a
Inserted person who is accused of an offence
under Section 376(3), Section
376AB Section 376DA and Section
376 DB give notice to the
application for bail to the Public
Prosecutor within a period of fifteen
days from the date of receipt of the
notice of such application.
Schedule Section 376 AB, Section DA,
Section DB,-, Cognizable, Non-
Bailable , Court of Session
Protection of Children From

358
Sexual Offences Act, 2012

Section 42 Section 376A, Section 376 C, Section 376A, Section 376AB,
Substituted Section D Section 376B, Section 376C, Section
376D, Section 376DA and Section
376 DB.
There are following special features of this ‗Ordinance‘-
(1) AMENDMENTS IN FOUR STATUTES- By this ―Ordinance‖ changes have been done
in IPC, 1860, Indian Evidence Act, 1872, Code of Criminal Procedure, 1973 and
Protection of Children From Sexual Offences Act, 2012.
(2) CLASSIFICATION OF RAPE VICTIMS ON THE BASIS OF AGE- Rape has been
classified into four categories- (1) Rape with girl below the age of twelve years – Section
376AB and Section 376 DB.(2) Rape with girl below the age of sixteen years Section
376DA (3) Rape with girl below the age of eighteen years Section 376(1) (4) Rape above
the age of eighteen years.
(3) ENHANCEMENT OF PUNISHMENT-
a. Minimum Punishment-
i. According to section 376(1), minimum punishment in rape cases is 10
years. Earlier minimum punishment was seven years.
ii. Minimum Punishment for Rape with women below the age of 16Years-
According to section 376(3), rigorous punishment for a term which shall
not be less than twenty years.
iii. Minimum Punishment for Rape with women below the age of 12 Years-
According to section 376AB, rigorous punishment for a term which shall
not be less than twenty years and which may extent to LI or death
sentence.
b. Life Imprisonment- According to Section 376DA Punishment for gang rape on a
women under sixteen years of age is imprisonment for life which shall mean
imprisonment for the remainder of that person‘s natural life, and with fine.
c. Death Sentence - (Section 376 AB Section 376DB) - Two more categories of
offences related to rape have been inserted when death sentence may be awarded.
After this ―Ordinance‖ there are four categories of offences related to rape when
death sentence may be awarded.
DEATH SENTENCE IN RAPE CASES

359
S.N. Ordinance/ Provisions Punishment

The Criminal Law (Amendment) Act, 2013
2013
1 Section 376A- Punishment for causing death or resulting in Death Sentence
persistent vegetative state of victim
2 Section 376E- Punishment for repeat offenders. Death Sentence
487
THE CRIMINAL LAW (AMENDMENT) Act, 2018.
2018
3 Section 376AB- Rape with women below the age of 12 Years Death Sentence
4 Section 376DB- ―Gang Rape‖ with women below the age of 12 Death Sentence
Years
RAPE OF WOMEN AND PUNISHMENT

S.N. Age of Woman Punishment Sections
1 Under 12 Years
2018 Rape of Woman under 12 Years Minimum 20Years in Jail Section 376AB
or LI or Death Sentence
2018 Gang Rape of Woman under 12 Years LI and Fine or death Section 376DB
Sentence
2 Under 16 Years
years (Earlier it was
10Years) which may
extend to LI and fine.
2018 Gang Rape of Woman under 16 Years LI and Fine Section 376DA
3 Under 18 Years
to LI and fine.
and fine.
4 Under or above 18 Years Rape
whether rape has been committed with
or without consent
487
This Ordinance has been promulgated by President under Article 123(1) on 22 nd April, 2018.

360

to LI and fine.
and fine.
(4) INVESTIGATION- Investigation in relation to rape of child shall be completed within

two months. Earlier period was three months. Earlier it was not mandatory to complete
investigation within three months. Now it is mandatory to complete investigation within
two months.
(5) TRIAL- When the inquiry or trial relates to an offence under Section 376A, Section 376
AB, Section 376B, Section 376 C, Section 376D and Section 376DA and Section 376 DB
of IPC, the inquiry or trial shall be completed within the period of two months from the
date of filling of the charge sheet. Earlier it was discretionary power of court to complete
trial as far as possible within two months. Now it is mandatory to complete trial within
two months.
(6) LIMITATION PERIOD FOR DECISION OF APPEAL-Section 377 (3)- When appeal
has been filed against a sentence passed under Section 376A, Section 376AB, Section
376B, Section 376C, Section 376D and Section 376DA and Section 376 DB of IPC , the
Appeal shall be disposed of within a period of six months from the date of filing of such
appeal.
LIMITATION PERIOD
Ordinance
The Criminal Law (Amendment) The Criminal Law (Amendment)
Act, 2013 Act, 2018
Limitation Three months - Investigation in Two Months -Investigation in
Period for relation to rape of child may be relation to rape of child shall be
Investigation completed within three months. completed within two months.
It was discretionary power. Now it is mandatory to complete
Section 173(1A). investigation within two months.
Section 173(1A).
Three months Two Months

Discretion Mandatory
Limitation Section 376A, Section 376B, Section 376A, Section 376 AB,
Period for Trial Section 376C and 376 D Section 376B,
Section 376 C and 376 D,

361
Section 376D and Section 376DA

and Section 376 DB.
When the inquiry or trial relates to When the inquiry or trial relates
an offence under Section 376A, to an offence under Section
Section 376B, Section 376 C and 376A, Section AB, Section 376B,
376 D the inquiry or trial shall, AS Section 376 C , Section 376D and
FOR AS POSSIBLE, be Section 376DA and Section 376
completed within the period of two DB of IPC, the inquiry or trial
months from the date of filling of shall be completed within the
the charge sheet. period of two months from the
date of filling of the charge sheet.
Two Months Two Months
As for as possible… It was , the inquiry or trial shall be
discretionary power of Court. completed..
Now it is mandatory.
Limitation On this point law was silent. Section 377 (3)- When appeal
Period for has been filed against a sentence
disposal of passed under Section 376A,
Appeal Section 376 AB, Section 376B,
Section 376 C, Section 376D and
Section 376DA and Section 376
DB of IPC , the Appeal shall be
disposed of within a period of six
months from the date of filing of
such appeal.
No limitation period Six Months
Remarks Limitation period for Limitation period for appeal–
investigation and trial – Two Three Months
Months
(7) ANTICIPATORY BAIL Section 438 (4)--No anticipatory bail when offence is related to
Section 376(3), Section 376AB Section 376DA and Section 376 DB.
ANTICIPATORY BAIL and RAPE

BAIL RAPE Important Point
RAPE ANTICIPATORY Section 376(3) Rape with a woman below the
Section 438(4) BAIL IS NOT Section 376AB age of sixteen years, anticipatory
ins. by 2018 ALLOWED (Only in Section 376DA bail is not allowed.
Ordinance. those rape case and Section 376DB
punishment which

362
have been inserted in

2018)
Section 376(3) Rape on a woman when she is
under sixteen years of age.
Sect.376 AB Rape with girl below the age of
12 Years
Section 376DA Punishment for gang rape on a
women under sixteen years of
age
Section 376DB Punishment for gang rape on a
women under twelve years of age
RAPE ANTICIPATORY Section 376 (1)
BAIL IS ALLOWED Section 376 (2)
Section 376 A
Section 376 B
Section 376 C
Section 376 D
Section 376 E.
Problem
Mr. B and A who were class fellows from class Xth, developed infatuation towards each other.
They carried the relationship for 6 long years till the boy did his master's course and was
employed in good multinational. They had promised to marry each other and were firm to do so,
knowing fully well that they belonged to different castes. On the basis of this promise and long
relationship they entered into sexual relationship many a times. However, finally, when boy
disclosed it to his parents, they refused to do so on the basis of caste. They threatened the boy of
social ostraization and even death of both of them in case they do the same. Compelled by these
reason the boy married another girl. A, charges the boy B of having committed rape · Decide the
fate of B.
Solution – In this problem Section 375, Secondly, Section 375, Explanation 2 and section 90 are
involved. This problem depends upon meaning of consent. This problem can be solved with help
of leading cases especially Uday v. State of Karnataka and Deepak Gulati v. State of Haryana.
These cases are following –
(i) Uday v. State of Karnataka488 (2003 SC) – Already discussed above.
(ii) Deepak Gulati v. State of Haryana (20 May, 2013). In this case Supreme Court said that
this Court considered the issue involved herein at length in the case of Uday v. State of
Karnataka (2003 SC) Deelip Singh @ Deelip Kumar v. State of Bihar (2005 SC); Yedla
Srinivasa Rao v. State of A.P. (2006 SC) and came to the conclusion that in the event that the
488
Division Bench, Supreme Court, February 19, 2003. Available at:

363
accused‘s promise is not false and has not been made with the sole intention to seduce the
prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Section 90 of the
IPC, 1860 provides, that any consent given under a misconception of fact, would not be
considered as valid consent, so far as the provisions of Section 375 IPC are concerned.
Intercourse under promise to marriage constitutes rape only if from initial stage accused had no
intention to keep promise. An accused can be convicted for rape only if the court reaches a
conclusion that the intention of the accused was mala fide, and that he had clandestine motives
Law and This Problem – In this case they knew that they belong from different caste. According
to Deepak Gulati Case if false promise to get marriage has been made since inception then there
is no consent. B could not fulfill his promise due to the occurrence of facts which were beyond
him.
Question 1 – Disclosure of identity of a victim of rape is punishable under

(a) Section 376D, IPC (b) Section 376 E, IPC (c) Section 228, IPC (d) Section 228A, IPC.
Answer - (d) Section 228A, IPC.
Question 2 - Voyeurism is defined under which section of IPC-
(a) Section 354 A (b) Section 354 B (c) Section 354C (d) Section 355.
Answer - (c) Section 354C.
Question 3. Match List-I with List-II and give the correct answer by using the code given below
:
List – I (Provision for) List-II (Sections of I.P.C.)

(a) Punishment for causing death or resulting
state of victim in persistent vegetative state of victim (i) Section 376-D
(b) Sexual intercourse by husband upon his wife
during separation (ii) Section 376-B
(c) Sexual intercourse by a person in authority (iii) Section 376-A
(d) Gang rape (iv) Section 376-C
Code:
(a) (b) (c) (d)
(1) (i) (ii) (iii) (iv)
(2) (ii) (iv) (i) (iii)
(3) (iii) (ii) (iv) (i)
(4) (iv) (i) (iii) (ii)
Answer -(3) (iii) (ii) (iv) (i)

364
List – I(Provision for) List-II (Sections of I.P.C.)

(a) Punishment for causing death or resulting
state of victim in persistent vegetative state of victim (iii) Section 376-A
(b) Sexual intercourse by husband upon his wife
during separation (ii) Section 376-B
(c) Sexual intercourse by a person in authority (iv) Section 376-C
(d) Gang rape (i) Section 376-D
(7.13.) UP (Higher Judiciary) Pre. Exam 2018
Question no. 4 – The Criminal Law (Amendment) Act, 2013 has four new Sections after section
354 of the Penal Code. One of the newly inserted sections deals with Voyeurism. Mark that
section: (A) Section 354A (B) Section 354B (C) Section 354C (D) Section 354 D.
Answer -(C) Section 354C
Questions 5- Which of the following combinations are correctly matched?

(a) Harbour – Section 51A
(b) Wrongful loss – Section 23
(c) Gang Rape of woman under 12 Years of age Section 376DB
(d) Gang Rape - Section 376D.
Option –
(a) a, c & d
(b) a, b &c
(c) b, c &d
(d) a, b & d.
Answer – C
Question 6– Which of the following provision does not provide death sentence in rape case –
(a) Section 376A
(b)Section 376E
(c)Section 376D
(d)Section 376AB
Answer -C
Question 7- Section 377 has been partially declared unconstitutional in following case –
(a) Independent Thought v. Union Of India & Anr.
(b) Shayara Bano v.UOI
(c) Justice K.S.Puttaswami (Retd.) and Anr. V. UOI and Ors.
(d) Navtej Singh Johar v. Union of India
Answer – D
Question 8- Which of the following case is related to marital rape (Section 375 Exception II) –

365
(a) Independent Thought V. Union Of India & Anr.

Answer – A
Question 9– In which case Supreme Court observed the effect of rape and said, ―….a rapist not
only violates the victim‘s privacy and personal integrity, but inevitably causes serious
psychological as well as physical harm in the process. Rape is not merely a physical assault. It is
often destructive of the whole personality of the victim. A murderer destroys the physical body of
his victim, a rapist degrades the very soul of the helpless female.‖
Option –
(a) Tuka Ram v. State of Maharashtra (Mathura Rape case)
(b) State of Punjab v. Gurmit Singh
(c) Sakshi v. Union of India
(a) Deepak Gulati v. State of Haryana
Answer - (b) State of Punjab v. Gurmit Singh
Question 10 – There are four cases of rape when death sentence can be awarded. These are
Section 376 A, Section 376 E, Section 376 AB and Section 376 DB. Match List-I with List-II
and give the correct answer by using the code given below:
List - I List-II
(a) Punishment for repeat offenders. (i) Section 376 A
(b) Rape with women below the age of 12 Years (ii) Section 376 E
(c) Punishment for causing death or resulting in
persistent vegetative state of victim (iii) Section 376 AB
(d) ―Gang Rape‖ with women below the age of 12 Years (iv) Section 376 DB
Code : (1) (2) (3) (4)

(a) (iii) (ii) (iv) (i)
(b) (iii) (ii) (i) (iv)
(c) (ii) (i) (iv) (iii)
(d) (ii) (i) (iii) (iv)
Answer – D
Question 11 – For the purpose of section 375 vagina includes
(a) Vagina includes labia minora
(b) Vagina includes labia majora
(c) Vagina includes labia majora, labia minora, hymen, vaginal opening
(d) Vagina includes labia majora, labia minora, hymen, vaginal opening, urethral
opening, clitoris

366
Answer - D
Question 12 – A man (16 years) and woman (17 years) are in live in relationship. The woman
voluntarily applied her mouth to penis of the man. In heat of passion the man also applied his
mouth to vagina of the woman. After some months both became enemy to each other. Which of
the following statement is true?
(a) Man has not committed rape while woman has committed rape.
(b) Both have committed rape on each other
(c) Both have not committed rape on each other
(d) Man has committed rape while woman has not committed rape.
Answer - D
Question 13– Z, petty girl has birthday on 09 March. A knew this fact from Facebook account of
that girl. He was interest to touch her reddish cheeks. He decided to celebrate her birth day and
he purchased a valuable cake. After celebrating birthday he rubbed some cakes on her cheeks
and inserted some parts of cake into her mouth. Both were very happy at that day. Z did not
know his malicious intention. After knowing this fact from the friend of A, Z lodged an FIR.
Which of the following offence ‗A‘ has committed
(a) Rape
(b) Attempt to rape
(c) Outrage of modesty of woman
(d) None of the above
Answer – C
Question 14 – A fare well party was organized in Faculty of Law, D.U. and several film stars
came to Faculty. There was huge crowd. ‗Z‘ a notorious boy of LL.B. first years student inserted
his finger into anus of girl. Although she was in jeans. She realized this and suddenly reacted and
slapped the boy. She filed FIR against boy for causing rape on her. The boy took defence that he
could not insert his finger because she was in dress. Which of the following offence has been
committed by ‗Z‘?
(a) Rape
(b) Attempt to rape
(d) Attempt to rape and Outrage of modesty of woman
Answer – (a). If zeans is tight, and insertion is not possible, it will attract Section 354. If zeans is
not tight and insertion is possible, it will be rape under Section 375 (b).
Question 15. Match the List-I (Punishment) with List-II(IPC section) and choose the correct
answer from the code given below :
List-I List-II
Punishment for gang rape on woman under 16 years of age i.Section 376AB
Punishment for gang rape on woman under 12 years of age ii.Section 376DB
Punishment for rape on woman under 12 years of age iii.Section 376D

367
Punishment for gang rape iv.Section 376 DA
Code:
a b c d
(a) ii iii iv i
(b) ii iv i iii
(c ) iv ii iii i
(d ) iv ii i iii
Answer: D
QUESTION PAPER
QUESTION 7 (B) (2015)
―Rape is a question of law.‖ Explain the essentials of crime of rape. How is this law different
from the law against sexual assault provided under POCSO.
Question No. 5 (2016)
Meenu, a 16 years old girl worked as domestic servant in Anita‘s house. Anita lost her necklace
and suspected that Meenu had stolen it. She filed a complaint against Meenu and both were
called to the police station. Meenu came with her mother and Anita came with her husband. All
were asked to leave the police station except Meenu, whose presence was required for further
investigation. Gopal a police constable then had sexual intercourse with Meenu in the Police
Station, whereas another constable Madan touched her private parts. Meenu said that she did not
consent to the sexual intercourse and had protested touching her body in an appropriate manner.
Can Gopal and Madan held liable for rape?
DU LL.B 2018 Question (4)
Sunil, a senior Air Force Officer, one day invited his junior female colleague, Mamta to his
house at night for having dinner with him in the absence of his wife. Later, he raped her. She
struggled and screamd but no one came for her rescue. Immediately after words, she drove to the
hospital and complained that she has been raped. There was no explanation of any complaining
reasons for meeting the officer at night. She asserted virginity but medical evidence showed that
she was habitual to sex. On Mamta‘s complaint, Sunil was arrested and tried for rape. Sunil
contended consent on the part of Mamta for the intercourse and pleaded not guilty. Decide the
case.

368
UNIT: 8
JOINT LIABILITY & GROUP LIABILITY
Law Centre -1,
FOL, University of Delhi
Contents
(8.1.) Introduction ....................................................................................................................... 368
(8.2.) Section 34 .......................................................................................................................... 369
(8.3.) Leading Cases - .................................................................................................................. 372
(8.3.1) Barendra Kumar Ghosh v. king Emperor (1924) ........................................................ 372
(8.3.2.) Mahaboob Shah v. Emperor (1945) .......................................................................... 372
(8.3.3.) Pandurang v. State of Hyderabad (1954).................................................................... 374
(8.3.4.) Rishi Deo Pandey v. State of U.P. (1955) .................................................................. 375
(8.3.5.) Gurdatta Mal v. State of U.P. (1965) .......................................................................... 375
(8.3.6.) Suresh and Another v. State of Uttar Pradesh (2001)................................................ 375
(8.4.) Section 149 ........................................................................................................................ 377
(8.5.) Relation between Section 34 and Section 149 .................................................................. 380
(8.6.) Leading Cases .................................................................................................................... 381
(8.6.1.) Mizaji and Anr. v. State of Uttar Pradesh, 1958........................................................ 381
(8.6.2.) Maina Singh v. State of Rajasthan.............................................................................. 384
(8.6.3.) Madan Singh v. State of Bihar(2004) ......................................................................... 386
(8.6.4) Mahmood & Anr v. State of U.P. [2007] .................................................................... 389
(8.6.5.) Mahendra & Anr. v. State of Madhya Pradesh (2022) ............................................... 389
(8.7.) Previous Year Question Papers ......................................................................................... 390
(8.8.) Objective Question ........................................................................................................... 395
(8.1.) Introduction

369
Sometimes offences are committed by single person. Sometimes offences are committed by
more than one person. When offences are committed by more than one person with different
activities, question arises what would be responsibilities of all persons. Answer of such questions
is searched with the help of Sections 34, 35, 37, 38, 149. There are many more provisions are
involved. But here I am confined only these few provisions. In Suresh and Another v. State of
Uttar Pradesh489 Supreme Court observed that Sections 35, 37, 38 are juxtaposition of Section
34. All Sections deal joint liability. Here Sections 7490, 8,491 9,492 32493 and 33494 are also
important. According to Section 32 ‗act‘ includes omission and according to Section 33 ‗act‘
denotes as well as series of acts as single act. This means a criminal act can be a single act or it
can be the conglomeration of a series of acts.495
In Suresh and Another v. State of Uttar Pradesh496 Hon‘ble Justice Thomas observed that there
are two types of vicarious liability namely; (a) vicarious liability in the criminal jurisprudence (b)
vicarious liability in the civil jurisprudence (Law of Torts). Section 34 of IPC recognizes the
principle of vicarious liability in the criminal jurisprudence. Vicarious liability makes a person
liable for action of an offence not committed by him but by another person with whom he shared
the common intention. Section 34 gives statutory recognition to the commonsense principle that
if more than two persons intentionally do a thing jointly, it is just the same as if each of them had
done it individually.
(8.2.) Section 34
Section 34 is based on the ratio of Reg v. Cruise (1838).497 In this case Police Constable went to
arrest A at his house. B C & D came out of house gave him a blow. In this case the Court
evolved the ‗Doctrine of Joint liability‘ and convicted all. English Poet Milton first time said,
―They also serve who only stand and wait‖. Later on it was used in law by Lord Sumner in case
of Barendra Kumar Ghosh v. king Emperor (Post-Office Case) decided on October 23, 1924.
489
Suresh and Another v. State of Uttar Pradesh (2001) 3 SCC 673. Date of Judgment: March 2, 2001.
490
Section 7. Sense of expression once explained.—Every expression which is explained in any part of this Code, is
used in every part of this Code in conformity with the explanation.
491
Section 8. Gender.—The pronoun ―he‖ and its derivatives are used of any person, whether male or female.
492
Section 9, IPC ―Number. - Unless the contrary appears from the context, words importing the singular number
include the plural number, and words importing the plural number include the singular number.
493
Section 32. Words referring to acts include illegal omissions.—In every part of this Code, except where a
contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.
494
Section 33. ―Act‖. ―Omission‖.—The word ―act‖ denotes as well as series of acts as a single act: the word
495
496
497
UP (J) 2019

370
Section 34498 deals sever (separate) and joint liability.499 ‗…in furtherance of the common
intention of all…‘ were inserted through Amendment in 1870.500 It was inserted to make Section
34 clearer.
Section 34 does not create specific offence like Sections 149 and 120B. It is merely declaratory
Section. It has been mentioned under Chapter II (General Explanations, Sections 6-52A). It only
lays down rule of evidence that if two or more than two persons commits criminal act in
furtherance of the common intention of all each of the persons will be liable on the principle of
joint and constructive liability.
There are following ingredients of Section 34 -
(1). Criminal Act - There must be criminal act. Act itself is not sufficient. Act does not
attract Section 34. Only Criminal act attracts Section 34. Section 32 says Act includes
illegal omission and Section 33 says ―Act‖ denotes as well as a series of acts as a single
act. According to Section 32 ‗act‘ includes omission and according to Section 33 ‗act‘
denotes as well as series of acts as single act. This means a criminal act can be a single
act or it can be the conglomeration of a series of acts.501 No need of substantial act. It is
enough that the act is only for guarding the scene. Here covert act means illegal
omission.502 There is difference between ‗act‘ and ‗criminal act‘. For example several
persons had attended marriage ceremony and performed dance. It is an act. If at the time
of performing dance, some disputes aroused between two parties. They started to fight
each other. Once they started to fight, act converted into criminal act. All acts are not
criminal act. But all criminal acts are act.
(2). Several Persons - There must be several persons. There must be at least two or more
persons. It means maximum persons has not been prescribed. Section 11503 defines
person. If offence is committed by men, women, companies, firm etc. Section 34 will be
applicable.
(3). Common Intention – Intention denotes mens rea. There must be common intention.
There must be meeting of mind. ―In furtherance of the common intention of all‖ denote
that activities of all persons must be done in furtherance of common intention. In
Mahaboob Shah v. Emperor, 1945, Sir Madhavan Nair, ―…Care must be taken not to
confuse same or similar intention with common intention, the partition which divides
‗their bonds‘ is often very thin ; nevertheless, the distinction is real and substantial , and
498
Section 34. Acts done by several persons in furtherance of common intention. - 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.
499
UPPCS 1991.
500
UPPCS 2001, UKAPO 2010
501
502
503
Section 11. ―Person‖.—The word ―person‖ includes any Company or Association or body of persons, whether
incorporated or not.

371
if overlooked, will result in miscarriage of justice..,It must be pre-arranged plan.‖ Ratio

of Mahaboob Sah v. Emperor was followed in Pandurang, Tukia And Bhillia v. State of
Hyderabad504 by Hon‘ble Supreme Court first time after independence of India. In
Pandurang Case Supreme Court said, ―Now in the case of section 34 we think it is well
established that a common intention presupposes prior concert. It requires a pre-
arranged plan because before a man can be vicariously convicted for the criminal act of
another, the act must have been done in furtherance of the common intention of them
all.‖ In Rishi Deo Pandey v. State of U.P.505 Supreme Court said that common intention
may develop on the spot. In Suresh and Another v. State of Uttar Pradesh506 Supreme
Court said that common intention can be formed previously or in the course of
occurrence and on a spur of moment.
(4). Some act must be done by all – Suresh and Another v. State of Uttar Pradesh507 Supreme
Court said that participation of all is necessary. If there is only common intention but
there is no participation, person may be liable under Section 109 or 120B but his matter
will not cover under Section 34. Even exhortation to another accused would amount to
participation.
(5). Physical Presence and Active Participation – At the initial stage it was observed that
physical presence is necessary. In Shree Kantia v. State of Bombay (1955) Supreme
Court observed that Physical presence and active participation of every person is
necessary. Later on Supreme Court modified its ratio. In J.M. Desai v. State of Bombay
(1960) Supreme Court observed that In case of offences against property, presence of
every person is not necessary. In Suresh and Another v. State of Uttar Pradesh508
Supreme Court said that due to advancement of electronic equipment like binoculars or
mobile phones a person may effectively participate in commission of crime. Physical
participation of everyone should not be necessary. For example in Mumbai attack (2008)
some terrorists in sitting Pakistan were guiding another terrorists who were directly
involve in commission of crime. Even these terrorists sitting in Pakistan must be covered
(6). No Distinct offence - In Gurdatta Mal v. State of U.P. (1965) Supreme Court observed,
―It is well settled that Section 34 of the Indian Penal Code does not create a distinct
offence: it only lays down the principle of joint criminal liability‖. In Suresh and Another
504
AIR 1955 SC 216. Available at : https://main.sci.gov.in/judgment/judis/860.pdf (Visited on March 16, 2022).
505
AIR 1955 SC 331.
506
(2001) 3 SCC 673.
Date of Judgment: March 2, 2001. Available at: https://main.sci.gov.in/judgment/judis/17655.pdf (Visited on April
16, 2021).
507
(2001) 3 SCC 673.
16, 2021).
508
(2001) 3 SCC 673.
16, 2021).

372
v. State of Uttar Pradesh509 Hon‘ble Justice Thomas observed that it is a rule of evidence
and does not create a substantive offence. It means this Section itself does not constitute
any offence. Only use of this Section is to prove the liability of co-accused. So if there is
only one person has committed crime this Section will not be applicable.
(7). Liability - Each of such persons is liable for that act in the same manner as if it were
done by him alone. Activities of every person for the purpose of liability will not be
separated. All persons will be liable for offence. If murder has been committed in
furtherance of common intention, one accused can‘t take defence that he was only
standing and watching for the purpose of alarming accused.
(8.3.) Leading Cases -
There are following leading cases on Section 34 –
(8.3.1) Barendra Kumar Ghosh v. king Emperor (1924)

Barendra Kumar Ghosh v. King Emperor510 which is known as Sankaritolla Post Office Case.
It was decided by Justice Sumner, Bombay High Court on October 23, 1924.
 Facts - The Sub-Postmaster at Sankaritolla Post Office was counting money at his table
in the back room, when several men appeared at the door which leads into the room from
a courtyard, and, when just inside the door, called on him to give up the money. Almost
immediately afterwards they fired pistols at him. He was hit in two places, in one hand
and near the armpit, and died almost at once. Without taking any money the assailants
fled, separating as they ran. Barendra Kumar Ghosh was a freedom fighter. Barendra
Kumar Ghosh was caught. He was the man outside the room.
 Meaning of Criminal Act - A criminal act means unity of criminal behaviour which
results in something, for which an individual would be punished, if it were all done by
himself alone, that is, in a criminal offence. Lord Sumner said, ―They also serve who
only stand and wait‖. By Section 33 a criminal act in Section 34 includes a series of acts.
―The act‖ in the latter part of the Section must include the whole action covered by ―a
criminal act‖ in the first part, because they refer to it.
 Decision - He was convicted for murder u/s302 r/w Section 34, IPC.
(8.3.2.) Mahaboob Shah v. Emperor (1945)

Mahaboob Shah v. Emperor511 which is known as ‗Indus River Case‘ ‗Reed Cutting Case‘
decided Bombay High Court on January 31, 1945. Hon‘ble Justice Sir Madhavan Nair wrote this
judgment.
509
510
(1925) 27 BOMLR 148.
511
(1945) 47 BOMLR 941

373
In this case there was dispute regarding cutting of reed on the bank of river. Allah Dad and his
companion were given warning not to cut reed. Ignoring this warning they cut the reed.
Altercation started.
Facts -
 On August 25, 1943, at sunrise, Allah Dad, deceased, with a few others left their village
Khanda Kel by boat for cutting reeds growing on the banks of the Indus river. When they
had travelled for about a mile downstream, they saw Mohammad Shah, father of Wali
Shah (absconder) bathing on the bank of the river. On being told that they were going to
collect reeds, he warned them against collecting reeds from land belonging: to him.
 Ignoring his warning they collected about sixteen bundles of reeds, and then started for
the return journey.
 While the boat was being pulled upstream by means of a rope Ghulam Quasim Shah,
nephew of Mohammad Hussain Shah who was standing on the bank of the river asked
Ahah Dad to give him the reeds that had been collected from his uncle's land. He refused.
 Quasim Shah shouted out for help and Wali Shah and Mahbub Shah came up. They had
guns in their hands.
 When Allah Dad and Hamidullah tried to run away, Wali Shah and Mahboob Shah came
in front of them and
 Wali Shah fired at Allah Dad who fell down dead and
 Mahbub Shah fired at Hamidullah, causing injuries to him.
Victims
Allah Dad Hamidullah

(Death) by (injury) by
Wali Shah Mahaboob Shah
Quasim Shah and Mohammad Hussain Shah were acquitted. Wali Shah was a fugitive from
justice and has not been so far arrested. Lahore High Court applied Section 34 and convicted
Mahaboob Shah for causing injury and death read with Section 34.zx There is following
summary -
 Death of Allah Dad - Mahaboob Shah was 19 years old. Mahaboob Shah was convicted
for the murder of Allah Dad under Section 302 r/w Section 34 and he was punished for
death sentence.
 Injury to Hamidullah Khah - He was also convicted of the attempted murder of one
Hamidullah Khah and sentenced to seven years rigorous imprisonment; but that
conviction was not challenged.

374
Appeal was preferred to Bombay High Court against Judgment of Lahore High Court.
Issue
Whether Mahaboob Shah had been rightly convicted of murder upon the true construction of
Section 34 of the Indian Penal Code?
Observation
Sir Madhavan Nair observed -
 Pre-arranged Plan - Common intention within the meaning of the Section implies a pre-
arranged plan, and to convict the accused of an offence applying the Section it should be
proved that the criminal act was done in concert pursuant to the pre-arranged plan.
 Evidence - As has been often observed, it is difficult if not impossible to procure direct
evidence to prove the intention of an individual; in most cases it has to be inferred from
his act or conduct or other relevant circumstances of the case.
 Differences between Common Intention and Same/Similar Intention - Care must be
taken not to confuse same or similar intention with common intention, the partition which
divides ‗their bonds‘ is often very thin; nevertheless, the distinction is real and substantial
, and if overlooked , will result in miscarriage of justice..‖ Common intention within the
meaning of Section 34 implies a pre-arranged plan.
Reason of Decision
 Common Intention – There was common intention to save Ghulam Quasim. There was
no common intention to cause death. The evidence shows that Wali Shah "happened to be
out shooting game," and when he and the appellant heard Ghulam's shouts for help they
came up with their guns.
 No Pre-planning- There were no pre-planning to kill. Causing injuries to save Ghulam
Quasim was similar intention. There was no evidence and there were no circumstances
from which it might be inferred that the appellant must have gone acting in concert with
Wali Shah in pursuance of a concerted plan when he along with him rushed to the rescue
of Ghulam Quasim.
Decision - Mahaboob Shah succeeded in his appeal. His conviction for murder and the sentence
of death was set aside.
(8.3.3.) Pandurang v. State of Hyderabad (1954)

Pandurang, Tukia And Bhillia v. State of Hyderabad512 was decided by Supreme Court on
December 03, 1954. Judgment was written by Hon‘ble Justice Vivian Bose. It was observed
that the common intention should be prior or antecedent to the occurrence. Supreme Court
observed, ―Now in the case of Section 34 we think it is well established that a common intention
presupposes prior concert. It requires a pre-arranged plan because before a man can be
512
AIR 1955 SC 216. Available at : https://main.sci.gov.in/judgment/judis/860.pdf (Visited on March 16, 2022).

375
vicariously convicted for the criminal act of another, the act must have been done in furtherance
of the common intention of them all.
(8.3.4.) Rishi Deo Pandey v. State of U.P. (1955)
Rishi Deo Pandey v. State of U.P.513 was decided by Supreme Court on February 03, 1955.
Supreme Court said that common intention may develop on the spot.
(8.3.5.) Gurdatta Mal v. State of U.P. (1965)

In Gurdatta Mal v. State of U.P. (1965) Supreme Court observed, ―It is well settled that Section
34 of the Indian Penal Code does not create a distinct offence: it only lays down the principle of
joint criminal liability‖.
(8.3.6.) Suresh and Another v. State of Uttar Pradesh (2001)

Suresh and Another v. State of Uttar Pradesh514 was decided by Full Bench comprises of
Hon‘ble Justice Sethi, Hon‘ble Justice Agrawal and Hon‘ble Justice Thomas of Supreme Court
on March 2, 2001. Judgment was written by Hon‘ble Justice Thomas.515 This case is related to
Sections 34 r/w 302.
Facts
In this case Ramesh and Suresh were brothers. Ramesh was living in his house along with his
wife and four children. There was some land disputes between Ramesh and Suresh. Suresh along
with his brother-in-law made plan for killing of all members of family of Ramesh. In midnight
Suresh along with his brother-in-law Ramji attacked over family of Ramesh and killed all
members except Jitendra (Seven Years) who also suffered injuries but fortunately survived.
Pavitri Devi w/o Suresh was also charged for exhortation. Suresh, Ramji and Pavitri were
charged under sections 302 r/w 34.
Party
Victim Accused
Wife and 4
Ramesh Suresh Pavitri Ramji
children
3 Children 1 Child
Convicted Acquitted Convicted
(Death) (Death)
513
AIR 1955 SC 331.
514
(2001) 3 SCC 673.
16, 2021).
515
This was concurring judgment. But Justice Sethi also wrote judgment for himself and for Hon‘ble justice
Agrawal.

376
Issue: Whether Section 34 will be applicable in this case?

Answer: Yes.
In this Case Supreme Court held that Pavitri Devi was not involved and she was acquitted and
Ramji and Suresh were liable for murder.
Important Points
In this leading case Supreme Court laid down several important points –
(i) Meaning of ‗Criminal act‘ - According to Section 32 ‗act‘ includes omission and
according to Section 33 ‗act‘ denotes as well as series of acts as single act. This means a
criminal act can be a single act or it can be the conglomeration of a series of acts.
(ii) Juxtaposition of Section 34 – Sections 35 37, 38 are juxtaposition of Section 34. All
Sections deal joint liability.
(iii)Vicarious liability -There are two types of vicarious liability namely; (a) vicarious
liability in the criminal jurisprudence (b) vicarious liability in the civil jurisprudence
(Law of Torts). Section 34 of IPC recognizes the principle of vicarious liability in the
criminal jurisprudence.
(iv) Meaning of vicarious liability - It makes a person liable for action of an offence not
committed by him but by another person with whom he shared the common intention.
(v) Not substantive offence, only evidence - It is a rule of evidence and does not create a
substantive offence. It means this Section itself does not constitute any offence. Only use
of this Section is to prove the liability of co-accused. So if there is only one person has
committed crime this Section will not be applicable.
(vi) Commonsense Principle -The Section gives statutory recognition to the commonsense
principle that if more than two persons intentionally do a thing jointly, it is just the same
as if each of them had done it individually.
(vii) Pre-plan - There is no gainsaying that a common intention pre-supposes prior concert,
which requires a pre- arranged plan of the accused participating in an offence. Such a pre-
concert or pre-planning may develop on the spot or during the course of commission of
the offence but the crucial test is that such plan must precede the act constituting an
offence. Common intention can be formed previously or in the course of occurrence
and on a spur of moment. The existence of a common intention is a question of fact in
each case to be proved mainly as a matter of inference from the circumstances of the
case.
(viii) Some act must be done by all – Participation of all is necessary. If there is only common
intention but there is no participation, person may be liable under Section 109 or 120B
but his matter will not cover under Section 34. Even exhortation to another accused
would amount to participation.
Section 34 Supposed section 34

When a criminal act is done by several When a criminal act is done by one person in

377
persons in furtherance of the common furtherance of the common intention of

intention of all, each of such persons is several persons, each of such several persons
liable for that act in the same manner is liable for that act in the same manner as if
as if it were done by him alone. it were done by all such persons.
Participation of all is necessary. Activity of one is sufficient in furtherance of
common object.
(ix) Presence on the spot is not necessary - binoculars or mobile phones (Para 22) - Due to
scientific development a person may actively involve in commission of crime from far
away (It is my example - In Mumbai attack in 2008 some terrorist in sitting Pakistan were
guiding another terrorist who were directly involve in commission of crime). In this case
the Court said that due to advancement of electronic equipment like binoculars or mobile
phones a person may effectively participate in commission of crime.
(x) Either overt or covert act is sufficient (Para 24) – No need of substantial act. It is
enough that the act is only for guarding the scene. Here covert act means illegal
omission. According to Section 32 act includes illegal omission. The act mentioned in
Section 34 IPC need not be an overt act, even an illegal omission to do certain act in
certain situation can amount an act. For example – A co-accused, standing near the victim
face to face saw an armed assailant nearing the victim from behind with a weapon to
inflict a blow. The co-accused did not inform with the idea that the blow should fall on
the victim.
Hence an act, whether overt or covert is indispensable to be done by the co-accused to be
fastened with the liability.
(xi) Barendra Kumar Ghosh Case, Mahbub Shah Case, Pandurang Case, Iftikhar Khan Case
Tukaram Case were also discussed in this case.
(8.4.) Section 149
Section 149 deals joint and vicarious liability. It creates distinct offence. Section 149 will be
applicable only where there is unlawful assembly as mentioned under Section 141, IPC.
Section 149. Every member of unlawful assembly guilty of 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.
Section 149 can be understood with the help of following SmartArt -

378
Section 149
Unlawful Common Member Commission or

Assembly objects knowledge of
[Section 141] [Section 141] offence
At the time of
Five or more in prosecution commission of Commission of Knowledge of
persons of the common offence offence offence
object [Section 40] [Section 40]
There are following ingredients of Section 149, IPC -
 Unlawful Assembly [Minimum Member and Common Object] – That offence must
be committed by member of unlawful assembly. Unlawful assembly has been defined
under Section 141. All assembly cannot be termed as ‗Unlawful Assembly‘. An
assembly can convert into ‗Unlawful Assembly‘ if two conditions are being fulfilled.
Both the conditions must be fulfilled simultaneously i.e. five or more persons and
common object as mentioned under Section 141, IPC. These are –
 (i) Five or more members - Act must be committed by five or more persons.
Here minimum persons have been mentioned, but there is no limit for maximum
persons. Question arises whether one person can be convicted with the help of
149, IPC. Answer is positive. But other condition must be fulfilled like (a)
commission or knowledge of offence, (b) member of unlawful assembly, (c)
common object, and (d) there were five or more persons of unlawful assembly,
but they have not been arrested or there name and identity is unknown. In Maina
Singh v. State of Rajasthan516 Supreme Court observed, ―The charge in the
present case related to the commission of the offence of unlawful assembly by
the appellant along with the other named four co-accused, and with no other
person. The trial in fact went on that basis throughout. There was also no direct
or circumstantial evidence to show that the offence was committed by the
appellant along with any other unnamed person. So when the other four co-
accused have been given the benefit of doubt and have been acquitted, it would
not be permissible to take the view that there must have been some other person
along with the appellant Maina Singh in causing the injuries to the deceased. It
was as such not permissible to invoke Section 149 or Section 34 IPC Maina
Singh would accordingly be responsible for the offence, if any, which could be
shown to have been committed by him without regard to the participation of
516
AIR 1976 SC 1084. Available at: https://main.sci.gov.in/judgment/judis/5696.pdf (Visited on March 17, 2022).

379
others‖. In Mahendra & Anr. v. State of Madhya Pradesh517 Supreme Court

observed, ―Less than five persons may be charged under Section 149 if the
prosecution case is that the persons before the Court and other numbering in all
more than five composed a unlawful assembly, these others being persons not
identified and unnamed‖. In this case Section 149 was not applied. Reason of
this was that 17 members had been acquitted and there were no more identified
and unnamed accused.
 (ii) Common Object - The act must be done in prosecution of the ―Common
Object‖ of that assembly. There are five types of common object as mentioned
under Section 141, IPC. In Madan Singh v. State of Bihar518 Supreme Court said,
―Mere presence in an unlawful assembly cannot render a person liable unless
there was a common object and he shared the same or was actuated by that
common object and that object is one of those set out in Section 141. Where
common object of an unlawful assembly is not proved, the accused persons
cannot be convicted with the help of Section 149.
 Offence - There must be an offence. Meaning of offence will be traced from Section 40
read with Section 7, IPC. For the purpose of Section 149, offence can be divided
between two categories - (i) There must be actual commission of offence, or (ii) the
members of that assembly knew to be likely to be committed in prosecution of that
object. He had done some work in prosecution of common object, or he had knowledge
but personally he did nothing. He did not perform any act but he was member of
unlawful assembly and he knew that such act was likely to be committed in prosecution
of common object. In Madan Singh v. State of Bihar519 Supreme Court observed, ―Overt
act is not necessary to become a member of unlawful assembly‖ In Madan Singh v. State
of Bihar520 Hon‘ble Justices Arijit Pasayat observed, ―Section 149, IPC consists of two
parts. The distinction between the two parts of Section 149 cannot be ignored or
obliterated‖. Same view was followed earlier.521 In Mizaji and Anr. v. State of Uttar
Pradesh 522 in which Mizaji was carrying pistol in Dhoti. On the basis of facts and
circumstances of the case, Supreme Court applied 149, second part and convicted all
accused for murder on the basis that they were knowing that accused was carrying pistol
in Dhoti.
517
Date of Order: January 05, 2022. Available at:
https://main.sci.gov.in/supremecourt/2018/26567/26567_2018_43_21_32326_Order_05-Jan-2022.pdf (Visited on
March 18, 2022).
518
Date of Judgment: April 02, 2004. https://main.sci.gov.in/judgment/judis/26032.pdf (Visited on March 18, 2022)
519
520
521
Chikkarange Gowda and others v. State of Mysore: AIR 1956 SC 731.
522
AIR 1959 SC 572. Available at: https://main.sci.gov.in/judgment/judis/434.pdf (Visited on April 16, 2021).

380
Offence
Actual commission of offence Knowledge about commission of the offence
 Member of the Unlawful Assembly at the time of commission of offence – Person

must be member of the unlawful assembly at the time of the committing of that offence.
If person is not a member or he was member but ceased to be member of unlawful
assembly, Section 149 shall not attract. If Ram was member of unlawful assembly.
Common object was killing Abdullah during rioting. There were ten members. They
were crossing forest in night. Ram was following all other nine members. There was a
pit. Ram fell in that pit. Other nine members could not notice this fact. Ram was unable
to come out from pit in that night. Nine members went and killed Abdulla. Ram came
out from pit with the help of JCB on next day. In this problem, Ram will not be liable for
murder. He will not be covered under Section 149. Reason of this is that Ram was not
member of the ‗Unlawful Assembly‘ at the time of causing death of Abdulla.
(8.5.) Relation between Section 34 and Section 149
Nanak Chand v. The State of Punjab523 was decided by Supreme Court on January 25, 1955.
Supreme Court observed, ―There is a clear distinction between the provisions of Sections 34
and 149 of the Indian Penal Code and the two Sections are not to be confused….‖
There are following differences between Section 34 and Section 149, IPC -
S. N. Grounds Section 34, IPC. Section 149, IPC.

1 Offence It does not create substantive It creates substantive offence. It
offence. It deals only rule of has been mentioned under
evidence. It has been mentioned Chapter VIII.
under Chapter II.
2 Activity Active participation either in formBeing a member of unlawful
of overt act or covert act is assembly is sufficient. He will
necessary. be liable even he does not do
any act.
3 Common Common intention is sine qua non. Common object is sine qua non.
intention/ Common intention is wider. Common object is limited up to
Objects five circumstances as mentioned
u/s 141.
4 Minimum Criminal act must be done at least Offence must be done at least
persons by two persons. by five persons.
523
MPPCS J,1993, UPPCS 2006, UPAPO 2007

381
5 Maximum Maximum person has not been

Maximum persons have not
persons mentioned. It may be 3,4,5,6,7,8,9,
been mentioned.
10…. Persons or more
It may be 5,6,7,8,9,10…..
persons.…..Only condition is that
persons or more
persons.…..Only condition is
other conditions mentioned under
section 34 must be fulfilled.
that other conditions mentioned
under section 149 must be
fulfilled.
5 Part of There is only one part of Section There are two parts of Section
Section 34. 149.
When a criminal act is done by First Part - If an offence is
several persons….. committed by any member of an
unlawful assembly in
prosecution of the common
object of that assembly, or
Second Part - Such as the
members of that assembly knew
to be likely to be committed in
prosecution of that object,
6 Amendment Section 34 was amended in 1870. Section 149 has not been
amended till now.
(8.6.1.) Mizaji and Anr. v. State of Uttar Pradesh, 1958
Prelude - Mizaji and Anr. v. State of Uttar Pradesh 524 was decided by Full Bench of Supreme
Court Consisted of Hon‘ble Justice J.L. Kapur, Hon‘ble Justice Syed Jaffer Imam and Hon‘ble
Justice S.K. Das on December 18, 1958. Judgment was written by Hon‘ble Justice J.L. Kapur. In
this case Section 141 (Fourth), Section 149 Second Part and Section 302, IPC.
Facts- In this case there was dispute regarding possession of field. One day Tez Singh (spear),
his son Mizaji (pistol in the fold of dhoti) and three other persons - Maiku ,Subedar and Machal
(lathis) made a plan for acquisition of property forcefully. They reached the field along with their
arms.
They divided themselves into three parties. Maiku was in the field where jowar was sown and he
was ploughing it. Mizaji, Subedar and Machal were in the sugar field and cutting the crop. Tej
Singh was keeping watch. Victim and his parties reached and started to protest to Tej Singh.
Thereupon, all the members of Tej Singh‘s party gathered at the place where Tej Singh was and
asked the complainants ―to go away otherwise they would be finished‖, but they refused to go.
524

382
Thereupon Tej Singh asked Mizaji to fire at them and Mizaji fired the pistol which he was
carrying in the fold of his dhoti as a result of which Rameshwar was injured, fell down and died
hour later.
Parties
Accused
Victim
[Pre-planning]
Tez Singh Mizaji s/o Tez Maiku, Subedar Rameshwar

Four other
(spear) (Pistol in the and Machal (Death) by
persons
fold of dhoti) (Lathi) Mizaji
Statutory Provisions
(i) Section 141(Fourth)

An assembly of five or more persons is designated an ―unlawful assembly‖, if the common
object of the persons composing that assembly is -
 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…
(ii) Section 149, Second part – Second part of this Section says that if anyone is member of
unlawful assemble and he knew that the particular act was about to be caused, and that act is
caused, he will be covered under Section 149. Overt or covert act by every member is not
necessary.
(iii) Section 302 – Section 302 prescribes punishment for murder.
Decision of Farrukhabad Session Court and Allahabad High Court - Session Court and High
Court found that the common object of the unlawful assembly was to take forcible possession of
the field and to meet every eventuality even to the extent of causing death if interfered with. It
accordingly convicted the appellants under s. 302 read with s. 149, Indian Penal Code, and
sentenced Mizaji to death and the others to imprisonment for life.
High Court observed, " We are also of the opinion that the act of the accused was premeditated
and well-designed and that the accused considering the circumstances of the case and the
weapons with which they were armed, knew that murder was likely to be committed in
accomplishment of their common object."
Supreme Court - These are two appeals which arise out of the same judgment and order of the
High Court at Allahabad and involve a common question of law.
Issues –

383
 What is the scope of Section 149, Second part?

 What would be liability of other if one killed a person in pursuance of common object?
Contention of Appellant - The appellants contended that the other appellants could not have the
knowledge that Mizaji carried a pistol in the folds of his dhoti, that the murder was not
committed in prosecution of the common object to take forcible possession nor did the other
appellants know that murder was likely to be committed in furtherance of the common object.
Decision of Supreme Court –
 Appellants were convicted under Section 302 read with Section 149.
 Mizaji was rightly given the sentence of death. He shared the common object of the
unlawful assembly and carried the pistol from his house to use it in prosecution of the
object and did use it. The fact that he used the pistol at the instance of his father was not a
mitigating circumstance.
Reason of decision of Supreme Court –
 Two of them were armed one with a spear and the other with a pistol. The rest were
armed with lathis. The evidence is that when the complainants‘ party objected to what the
appellants did, they all collected together and used threats towards the complainants‘
party telling them to go away otherwise they would be finished and this evidence was
accepted by the High Court.
 The circumstances show that the appellants must have known that Mizaji was carrying a
pistol.
 The fact that the appellants went to take possession in the absence of the complainants
did not show that the common object was not to take forcible possession as proceedings
were going on between the parties in the Revenue Court for possession over the field and
the appellants had gone armed with lethal weapons prepared to overcome the opposition
which they knew they would meet.
 From this conduct it appears that members of the unlawful assembly were prepared to
take forcible possession at any cost and the murder must be held to be immediately
connected with the common object and therefore the case falls under section 149 and they
are all guilty of murder.
Ratio
 Two parts of Section 149 - Under the first part Of S. I49 the offence committed in
prosecution of the common object must be one which was committed with a view to
accomplish the common object and must be connected immediately with the common
object of the unlawful assembly of which the accused were members. Even if the offence
committed was not in direct prosecution of the common object of the assembly, it would
yet fall under s. I49 if it could be shown that the offence was such as the members knew
was likely to be committed. The expression ‘know‘ does not mean a mere possibility,
such as might or might not happen.

384
Conclusion – Supreme Court said, ―In our opinion the courts below have rightly imposed the
sentence of death on Mizaji. Other appellants being equally guilty under Section 149, Indian
Penal Code, have been rightly sentenced to imprisonment for life. The appeals must therefore be
dismissed‖.
(8.6.2.) Maina Singh v. State of Rajasthan

Crux - Maina Singh v. State of Rajasthan525 was decided by Justice Shinghal, Supreme Court on
March 17, 1976. This is landmark judgment on the point of ‗number of member of unlawful
assembly‘. There were more than one accused. There were total five accused. All accused except
Maina Singh was convicted for murder read with Section 149 or Section 34, IPC. Maina Singh
challenged his conviction on the ground that he should not have been convicted under joint
liability. Supreme Court held that this was not suitable case for the application of join liability.
Supreme Court observed that it was not permissible for the High Court to invoke s. 149 or s. 34,
I.P.C. Maina Singh was acquitted for murder and conviction was approved under Section 326,
IPC.
Facts –
Parties
Victim Accused
Amar Singh Ajeet Singh Maina Singh Hardeep Jeet Singh Puran Singh Narain
[Father] [Son] [F] Singh (S) (S) (S) Singh
Death Injury Convicted Acquitted Acquitted Acquitted Acquitted
The deceased Amar Singh and accused Maina Singh and his three sons Hardeep Singh, Jeet
Singh and Puran Singh used to live in ‘chak‘ No. 77 GB, in Ganganagar district of Rajasthan
while Narain Singh used to live in another ‘chak‘. It was alleged that the relations between Amar
Singh and Maina Singh were strained, as Maina Singh suspected that Amar Singh was giving
information about his smuggling activities.
Amar Singh was having some construction work done in his house and had engaged Isar Ram as
a mason. On June 29, 1967, at about sun set, the deceased Amar Singh, his son Ajeet Singh and
Isar Ram went to the ‘diggi‘ in ‘murabba‘ for bath. Ajeet Singh took his bath, and was changing
his clothes and Isar Ram was nearby. Amar Singh was cleaning his ‘lota‘ after attending the call
of nature. It is alleged that at that time Maina Singh and his three sons Hardeep Singh, Jeet Singh
and Puran Singh came to the ‘diggi‘ along with Narain Singh. Maina Singh was armed with a 12
bore gun, Puran Singh with a ‘takua‘ and the other three with ‘gandasis‘. Maina Singh fired at
Amar Singh, but could not hit him. The gun shots however hit Ajeet Singh on his legs and he
525

385
jumped into a dry water course which was nearby to take cover. Maina Singh fired again, but
without success. Amar Singh ran towards the sugarcane field crying for help but was chased by
the accused. Ajeet Singh thereupon ran towards ‘chak‘ No. 78 GB and ultimately went and
lodged a report at Police Station Anoopgarh at 10 p.m. after covering a distance of about six
miles. The five accused however followed Amar Singh. Maina Singh fired his gun at Amar
Singh and he fell down. The other accused went near him and gave ‘gandasi‘ blows, and Maina
Singh gave a blow or two with the butt end of his gun which broke and the broken pieces fell
down. Amar Singh succumbed to his injuries on the spot, and the accused ran away.
On the report of Ajeet Singh about the incident which took place by the time he left for the
police station, the police registered a case for an offence under s. 307 read with s. 149 I.P.C. and
started investigation. Charge-sheet was submitted and trial started.
Session Court –
 Deceased‘s wife evidence was not reliable. Her name was not mentioned in FIR.
 Statement of Ajeet Singh and Isar Ram was contradictory to each other against Hardeep
Singh, Jeet Singh, Puran Singh and Narain Singh. Benefit of accused was given to all
these accused and they were acquitted.
 Maina Singh was convicted on the basis of circumstantial evidence.
High Court – Appeal was filed by State Govt. against acquittal of four accused. Maina Singh
also filed appeal against his conviction.
Rajasthan High Court dated April 21, 1971 upheld the trial court‘s judgment convicting Maina
Singh of an offence under Section 302 read with Section 34 I.P.C. for causing the death of Amar
Singh and of an offence under Section 326 I.P.C. for causing grievous injuries to Amar Singh‘s
son Ajeet Singh.
The High Court dismissed both the appeals and maintained the conviction and sentence of Maina
Singh.
Supreme Court – Supreme Court acquitted for charge of murder and convicted under Section
326.
Issue – Whether one person (Maina Singh) can be convicted under Section 34 or Section 149 in
following circumstances –
 When other named accused (four accused in this case) had been acquitted, and
 also no direct or circumstantial evidence to show that the offence was committed by the
appellant along with any other unnamed person.
Arguments of Maina Singh –

 Acquittal of four accused - Maina Singh had raised the substantial argument that he
could not have been convicted of the offence of murder under Section 302 read with
Section 34 I.P.C. when the four co-accused had been acquitted and the Sessions Judge
had found that it was not possible to record a conviction under Section 302 read with
Section 149 I.P.C. or Section 148 I.P.C.

386
 No ‗Unlawful Assembly‘ - It has been argued that when the other four accused were
given the benefit of doubt and were acquitted, it could not be held, in law, that they
formed an unlawful assembly or that any offence was committed by Maina Singh in
prosecution of the common object of that assembly.
 Furtherance of the common intention - It has been argued further that, a fortiori, it was
not permissible for the Court of Sessions or the High Court to take the view that a
criminal act was done by appellant Maina Singh in furtherance of the common intention
of the "other accused" when those accused had been named to be no other than Hardeep
Singh, Puran Singh, Jeet Singh and Narain Singh who had all been acquitted. It has
therefore been argued that all that was permissible for the High Court was to convict
appellant Maina Singh of any offence which he might have committed in his individual
capacity, without reference to the participation of any other person in the crime.
Supreme Court observed,

―The charge in the present case related to the commission of the offence of unlawful assembly by
the appellant along with the other named four co-accused, and with no other person. The trial in
fact went on that basis throughout. There was also no direct or circumstantial evidence to show
that the offence was committed by the appellant along with any other unnamed person. So when
the other four co-accused have been given the benefit of doubt and have been acquitted, it would
not be permissible to take the view that there must have been some other person along with the
appellant Maina Singh in causing the injuries to the deceased. It was as such not permissible to
invoke Section 149 or Section 34 IPC Maina Singh would accordingly be responsible for the
offence, if any, which could be shown to have been committed by him without regard to the
participation of others‖.
Decision –
 Maina Singh was guilty of voluntarily causing grievous hurt to the deceased and his son
by means of an instrument for shooting, and was guilty of an offence under Section 326.
 Conviction of Maina Singh under Section 302/34 IPC is altered to one under Section 326
IPC. He was liable only for his act. He was not liable for acts of other persons.
 It was not permissible for the High Court to invoke Section 149 or Section 34, IPC.
(8.6.3.) Madan Singh v. State of Bihar(2004)

Madan Singh v. State of Bihar526 was decided by Division Bench comprises of Hon‘ble Justices
Doraiswamy Raju & Arijit Pasayat on April 02, 2004. Judgment was written by Hon‘ble Justices
526

387
Arijit Pasayat. Section 302 read with Sections 149, 307 read with Sections 149, 352, 379 of
Indian Penal Code, 1860, Section 27 of the Arms Act, 1959 and Section 3 (2)(i) of the TADA
Act were involved.
This is landmark judgment. Following important points were laid down –
 Meaning of ‗Object‘ and ‗Common Object‘-The word ‘object‘ means the purpose or
design and, in order to make it ‘common‘, it must be shared by all. In other words, the
object should be common to the persons, who compose the assembly, that is to say, they
should all be aware of it and concur in it.
 Formation of ‗Common Object‘ - A common object may be formed by express
agreement after mutual consultation, but that is by no means always necessary. It may be
formed at any stage by all or a few members of the assembly and the other members may
just join and adopt it. Once formed, it need not continue to be the same. It may be
modified or altered or abandoned at any stage. Ratio of Sukhbir Singh v. State of
Haryana 527 was accepted in which Supreme Court observed that common object in terms
of Section 149 can develop at the spot. Existence of the object has to be considered at the
time of actual occurrence and not necessarily from anterior point of time.
 Determination of Common Object - The ‘common object‘ of an assembly is to be
ascertained from the acts and language and utterances of the members composing it the
nature of arms carried , and from a consideration of all the surrounding circumstances. It
may be gathered also from the course of conduct adopted by and behaviour of the
members of the assembly at or before the actual conflict. Though no hard and fast rule
can be laid down as to the circumstances from which the common object can be called
out, it may reasonably be collected from the nature of the assembly, arms it carries and
behaviour at or before or after the scene of incident.
 Importance of Common Object - Mere presence in an unlawful assembly cannot render
a person liable unless there was a common object and he shared the same or was actuated
by that common object and that object is one of those set out in Section 141. Where
common object of an unlawful assembly is not proved, the accused persons cannot be
convicted with the help of Section 149.
 ‗In prosecution of common object‘ -The expression ‗in prosecution of common object‘
as appearing in Section 149 have to be strictly construed as equivalent to ‗in order to
attain the common object‘. It must be immediately connected with the common object by
virtue of the nature of the object. There must be community of object and the object may
exist only up to a particular stage, and not thereafter.
‗in prosecution of common object‘ ‗in order to attain the common object‘
527
(2002 (3) SCC 327).

388
 Differences between ‗Common Object‘ and ‗Common Intention‘ - ‘Common object‘

is different from a ‘common intention‘ as it does not require a prior concert and a
common meeting of minds before the attack. It is enough if each has the same object in
view and their number is five or more and that they act as an assembly to achieve that
object.
 Two part of Section 149 - Section 149, IPC consists of two parts. The distinction
between the two parts of Section 149 cannot be ignored or obliterated. In every case it
would be an issue to be determined, whether the offence committed falls within the first
part or it was an offence such as the members of the assembly knew to be likely to be
committed in prosecution of the common object and falls within the second part.
However, there may be cases which would fall within first part being offences committed
in prosecution of the common object, while at the same time, though not always falling
within the second part, as offences which the members of the unlawful assembly knew to
be likely to be committed by a person engaged in the prosecution of the common object
and acting with the purpose of executing it.
 First Part - The first part of the section means that the offence to be committed in
prosecution of the common object must be one which is committed with a view to
accomplish the common object. In order that the offence may fall within the first
part, the offence must be connected immediately with the common object of the
unlawful assembly of which the accused was member.
 Second Part - Even if the offence committed is not in direct prosecution of the
common object of the assembly, it may yet fall under Section 141, if it can be
held that the offence was such as the members knew was likely to be committed
and this is what is required in the second part of the section.
The word ‘knew‘ used in the second branch of the section implies something
more than a possibility and it cannot be made to bear the sense of ‘might have
been known‘. Positive knowledge is necessary. When an offence is committed in
prosecution of the common object, it would generally be an offence which the
members of the unlawful assembly knew was likely to be committed in
prosecution of the common object. That, however, does not make the converse
proposition true; there may be cases which would come within the second part but
not within the first part.
 Unlawful Assembly – Overt act is not necessary to become a member of unlawful
assembly. The only thing required is that he should have understood that the assembly
was unlawful and was likely to commit any of the acts which fall within the purview of
Section 141.

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(8.6.4) Mahmood & Anr v. State of U.P. [2007]

Mahmood & Anr v. State of U.P.528 was decided by Division Bench consisted of Hon‘ble Justices
Altamas Kabir & B. Sudershan Reddy on November 15, 2007. Judgment was written by Hon‘ble
Justice B. Sudershan Reddy. In this case murder and theft along with Section 149 was involved.
Supreme Court observed, ―Once a membership of an unlawful assembly is established, it is not
incumbent on the prosecution to establish any specific overt-act to any of the accused for
fastening of liability with the aid of section 149 of the IPC. Commission of overt-act by each
member of the unlawful assembly is not necessary. The common object of the unlawful
assembly of the accused in the present case is evident from the fact that some of them were
armed with deadly weapons. None of them were curious onlookers or spectators to the macabre
drama that was enacted on 19.2.1977 at 3.30 p.m. at galiyara, village Badipur‖.
(8.6.5.) Mahendra & Anr. v. State of Madhya Pradesh (2022)

Mahendra & Anr. v. State of Madhya Pradesh529 was decided by Division Bench of Supreme
Court consisted of Hon‘ble Justices Mr. Ajay Rastogi and Abhay S. Oka on January 05, 2022.
Facts –
it was stated by the complainant that on 27.11.2004 at about 10.00 a.m. he and his sons had gone
to a village in order to lift the engine of a tractor and when they were coming back after lifting
the engine in their tractor trolley, on the way 15-20 persons who were armed with lathi and axe
came there with a common object of eliminating them and started beating his son Bachna with
lathi and axe by abusing him with filthy language. They were Mahendra Singh, Roop Singh,
Khilan Singh son of Halkai, Bhujbal and 10 to 12 other persons, whose names are not known to
him.
The complainant had lodged a report against the appellants and 18 others on that basis FIR was
registered on 27.11.2004 at about 13.00 hours and a charge-sheet was submitted against the
appellants and 18 other accused persons under Sections 148, 294, 341/149, 325/149.
Session Court –
 The charge-sheet was filed implicating 20 accused persons who faced trial.
 The learned Trial Court acquitted 17 out of 20 accused persons who faced trial and 3
accused persons were finally convicted under Sections 148, 325/149 and 323/149 IPC.
High Court – Out of three, one accused died during pending case before High Court. Judgment
was confirmed against two accused.
Supreme Court – In this case there was following issue, ratio and decision in and before
Supreme Court -
528
2008 1 CrLJ 696 (SC). Available at: https://main.sci.gov.in/judgment/judis/29895.pdf (Visited on March 18,
2022).
529
Date of Order: January 05, 2022. Available at:
https://main.sci.gov.in/supremecourt/2018/26567/26567_2018_43_21_32326_Order_05-Jan-2022.pdf (Visited on
March 18, 2022).

390
 Issue – Whether three or only two persons can be convicted with help of Section 149?
 Answer – Yes. But there must be more than five persons. Only two or three could be
identified and tried and other could not be identified or tried.
Argument of Appellants – 17 accused acquitted. There were not known and unknown accused
other than these 20 accused. So this case was not suitable for application of Section 149 which is
not applicable in case of less than five persons. Here there were only three accused before Court
of Session and two accused before High Court.
In this case Supreme Court observed following important points –
(1). Vicarious or constructive criminal liability - Section 149 prescribes for vicarious or
constructive criminal liability for all members of an unlawful assembly.
(2). Ingredients of Section 149 and conviction of less than five persons – Section 149 r/w
Section 141 becomes clear that an essential condition of an unlawful assembly that its
membership must be five or more. At the same time, it may not be necessary that five or
more persons necessarily be brought before the Court and convicted. Less than five
persons may be charged under Section 149 if the prosecution case is that the persons
before the Court and other numbering in all more than five composed a unlawful
assembly, these others being persons not identified and unnamed.
(3). No application Section 149 in this case – In the instant case, the persons are specifically
named by the complainant and against them, after the investigation,
charge-sheet was filed and all the 20 accused persons faced trial. It was not the
case of the prosecution that there are other unnamed or unidentified persons other than
the one who are charge-sheeted and faced trial. When the other co-accused
persons faced trial and have been given benefit of doubt and have been acquitted, it
would not be permissible to take the view that there must have been some other
persons along with the appellant in causing injuries to the victim. In the facts and
circumstances, it was as such not permissible to invoke Section149 IPC.
(4). Decision –
 The appellants may be held responsible for the offence, if any, which could be
shown to have been committed by them with regard to the participation of others
but that was not the case of the prosecution.
 In the given facts and circumstances, in our considered view, the conviction of the
present appellants under Section 325 with the aid of Section 149 IPC at least
could not have been invoked.
Conclusion - Section 149 was not applicable. Main reason was that accused were less than five
persons. There were no other unidentified, unknown and escaped accused.
(8.7.) Previous Year Question Papers

391
2010 Question (a) – ―The essential distinction between section 34 and 149 of IPC is between
‗participation‘ and ‗membership‘ respectively‖. Discuss.
Answer
Participation and section 34-- For application of section 34, participation of each and every
person is necessary. Merely member of group is not sufficient. Participation may be either in
form of overt act or covert act. In the case of Barendra Kumar Ghosh v. king Emperor (23
Oct.1924.P.C. Post Office case), Lord Sumner said, ―They also serve who only stand and wait‖.
Standing and waiting of Barendra Kumar Ghosh outside of Post office was treated in
participation in commission of crime. The participation must be in doing the act, not merely in its
planning. It was accepted that leading feature of section 34 is ‗participation‘.
Shreekantiah Ramayya Munipalli v. State of Bombay (1955 SC) Supreme Court held that
physical presence is necessary for participation in commission of crime for application of section
34. But in the case of J.M. Desai v. State of Bombay (1960 SC) Supreme Court held that
participation need not in all cases be by physical presence. In offences involving physical
violence, normally presence at the scene of offence of the offenders sought to be rendered liable
on the principle of joint liability may be necessary, but such is not the case in respect of other
offences where the offence consists of diverse acts which may be done at different times and
places.
This Court again in Tukaram Ganapat Pandare v. State of Maharashtra (Feb. 6, 1974)
reiterated that section 34 lays down the rule of joint responsibility for criminal act performed by
a plurality of persons and even mere distance from the scene of crime cannot exclude the
culpability of the offence. ―Criminal sharing, overt or covert, by active presence or by distant
direction making out a certain measure of jointness in the commission of the act is the essence
of section 34‖.
In the case of Suresh v. State of Uttar Pradesh (SC, 2001) Supreme Court held that the act
mentioned in section 34 IPC need not be an overt act, even an illegal omission (covert) to do
certain act in certain situation can amount an act. Due to scientific development a person may
actively participate in the commission of crime from far away (It is my example - In Mumbai
attack in 2008 some terrorist in sitting Pakistan were guiding another terrorist who were directly
involve in commission of crime). In this case the Court said that due to advancement of
electronic equipment like binoculars or mobile phones a person may effectively participate in
commission of crime.
Membership and section 149 – Under section 141 ‗Unlawful Assembly‘ has been described. The
word ‗offence in clause Third of section 141 is intended to include all offences both against body
and property.530 Section 142 declares who is member of unlawful assembly. For being a member
of unlawful assembly, he must be aware about common object of the assembly. If some entered
into the assembly merely due to curiosity to know about object of the assembly, he cannot be
declared member of the assembly. According to section 142 ―Whoever, being aware of facts
530
Ghansa Singh v. State of Rajasthan (AIR 1958 Raj. 226).

392
which render any assembly an unlawful assembly, intentionally joins that assembly, or
continues in it, is said to be a member of an unlawful assembly.‖ Here ‗continues‘ means
physical presence with the knowledge of unlawful character of the assembly. A member of
unlawful assembly may withdraw from the assembly. It may be either actual and voluntarily or
involuntarily depending on the facts and circumstances of the case.
Section 149 –―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.‖
Section 149 is very wider. There are two parts of section 149 namely (1) Offence is committed in
prosecution of common object, and (2) Members knew to be likely to be committed. For
application of section 149 participation of every member is not necessary. Being a member of
unlawful assembly is sufficient for application of section 149.
Example- A, B, C, D, and E (Five persons) decided to commit murder of X in night. They were
going towards house of X. E was behind all other fellows. He fell into dug which was very deep.
E was unable to come out. In next day with the help of villagers he came out. Other members
were too much busy. They forgot E and committed murder of X.
E will not be liable. Reason is that he was not member at the time of commission of murder of X.
Section 149 will also not be applicable. According to section 149 person must be member at the
time of the committing of that offence.
2010 Question (b)

A,B,C, and D attacked E a lady who was allegedly having illicit relationship with X. A inflicted
an injury on the backside of E near her shoulder with a weapon uttering words ―die with this‖. B
gave blow with a ganadasa on the right side of the head while C and D gave blow on the neck.
Thereafter, all ran away and E died on the spot. Medical examination confirmed death due to
head injury. While all four (A,B,C, and) are being prosecuted for causing death to E. C and D
take the plea that the injury caused by them is not fatal hence should not be held liable for death
of B along with other. Is the plea of C and D acceptable as per law, if not, give reasons.
Answer
In this case sections 302 r/w 34 and differences between similar/ same intention and common
intention are involved. This case is open ended. Here question is silent whether there was
common intention or not. From the facts there is possibility of presumption of two things
namely; (1) presence of common intention and (2) presence of similar/same intention.
(1) Presence of common intention - From the nature of attack over E by A, B, C, and D , it can
be presumed that there was common intention to cause death of E.

393
Section 34 -Acts done by several persons (Section 11) in furtherance of common intention -
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.
According to section 34 if any crime is committed in furtherance of the common intention of all,
liability of each person shall be equal.
Here C and D will also be liable for murder. Reason is that they actively participated in
furtherance of the common intention of all i.e. causing death of E. So C and D will also liable for
causing death of E. Plea of C and D is not acceptable.
(2) Presence of similar/same intention – In the case of Mahaboob Shah v. Emperor (1944), Sir
Madhavan Nair said, ―…Care must be taken not to confuse same or similar intention with
common intention, the partition which divides ‗their bonds‘ is often very thin ; nevertheless,
the distinction is real and substantial , and if overlooked , will result in miscarriage of justice..‖
Suppose in this case there was neither pre-meeting of mind nor it developed on the spur of the
moment. There was only similar intention i.e. to cause death of E. In such types situation C and
D will be liable only for causing grievous hurt rather than for the death of E.
Conclusion
In the presence of common intention C and D will also be liable for causing death. In the absence
of common intention and presence of similar intention C and D will be liable only for causing
grievous hurt.
2014 Question 7.
(a) ―Establishment of an overt act is not a requirement of law to allow Section 34 to operate in as
much as the Section gets attracted when a criminal act is done by several persons in furtherance
of a common intention of all.‖ Explain.
Ans. Already discussed.
2015 Question 5 (20 Marks) –

Six persons enter a house at night to commit theft. While others are busy looking for valuables
on the ground floor of the house, one of them climbs up to the first floor of the house and finding
the maid servants sleeping alone there rapes her and threatens to kill her if she raises an alarm.
Then he comes down and joins his associates in the process of collecting valuables after which
they all leave the house. Discuss the laibility of all of them for the offences of theft and rape.
Answer –
Section 149 is very wider. There are two parts of section 149 namely (1) Offence is committed in
prosecution of common object, and (2) Members knew to be likely to be committed. Here if a
member of unlawful assembly (section 142) knew that it was possibility to be committed an
offence although it was not in prosecution of common object, he will be liable for commission of
that act. For application of section 149 participation of every member is not necessary. Being a
member of unlawful assembly is sufficient for application of section 149.

394
Theft was done in prosecution of common object.

Rape was neither done in prosecution of common object nor other members knew that such act
was likely to be committed.
Conclusion – For theft all the members will be liable.
For rape only one member who had committed rape will be liable for rape. Other members will
not be liable for rape.
2015 (OC) Question 4 (20 Marks) –
A,B,C & D and E went to the office of X at night to commit theft in the office knowing it to be
guarded by the watchman. While they were committing theft, watchman came there and tried to
stop them. A,B,C & D and E started assaulting him while E took out small knife from his pocket
and killed the watchman. Discuss the liability of all.
Answer –
Theft – Theft was done in prosecution of common object. For theft all the members will be
liable.
Voluntarily Causing Hurt – All the members will be liable for voluntarily causing hurt.
Liability for death - Knife was small. E took out small knife from his pocket and killed the
watchman. Liability of other members depends upon knowledge of knife into pocket of E. If they
had knowledge about knife then they knew that it might be used. So they will liable for causing
death of watchman. If they had no knowledge then they will not be liable for death of watchman.
Causing death was done in prosecution of common object.
2016 Question 2 (b) (20 Marks) –

In the wake of demonetization a group of 50 people forcibly entered a leading bank and started
vandalizing the premises. The bank employees who intervened or tried to restrain the crowd
were assaulted. Five group members who carried lathis and rods with them played an active part
whereas the rest of the people quietly witnessed the proceedings. The two bank employees
sufferred grievous injuries and one another suffered simple hurt. Discuss the liability of those
who were armed and those who were unarmed.
Answer –
All the members will be liable. Reason is that they were member of unlawful assebmly. They
knew that other person who were carrying lathis and rods they will use for causing hurt or
grievous hurt. There is no difference between the liability of those who were armed and those
who were unarmed.
Question (6)
‗A‘ and ‗B‘ agreed to rob the owner of a Liquor Store. The plan was that just before the Store
closes, they would enter the store, and while ‗A‘ would threaten the owner with a knife, ‗B‘
would empty the cash box. ‗A‘ asked ‗B‘ what happens if the owner puts up a fight. ‗B‘ replied
―Use your knife‖.

395
On the appointed day and time they went to the shop. ‗A‘ threatened the owner with the knife.
The owner of the store offered no resistance. ‗B‘ emptied the cash box and then both of them
walked towards the door. At that moment ‗X‘ a customer walked in and realized at once what
was happening. He tried to seize the cash bag from ‗B‘. ‗A‘ stabbed ‗X‘ several times in the neck
and back. The owner also tried to assist ‗X‘. ‗B‘ punched him in his stomach causing him to fall
and hit his head on the counter. ‗X‘ died as a result of the injuries and the owner suffered a deep
cut on his forehead which required a few stiches. Later on, both were convicted for the murder of
‗X‘ under section 302 IPC. Discuss.
Also consider ‗A‘s liability for the injuries caused to the owner.
Answer – Both have committed murder.
First approach - Here section 34 r/w section 302 will be applicable. Common intention may
develop on the spur. Suresh and Another v. State of Uttar Pradesh - Common intention can be
formed previously or in the course of occurrence and on a spur of moment.
Second approach – section 302 r/w section 301.
(8.8.) Objective Question
Question 1- The ‗Doctrine of joint liability‘ as envisaged by section 34 of the IPC is based on
the decision of the following –
(a) Barendra Kumar Ghosh v. Emperor (b) Mulcahy v. R ( c) Pandurang v. State of Hyderabad
(d) Reg v. Cruise
Answer (d) - Reg v. Cruise. Section 34 is based on the ratio of decision of Reg v. Cruise (1838).
In this case Police Constable went to arrest ‗A‘ at his house. B C & D came and gave him a
blow. In this case the Court evolved the Doctrine of Joint liability.
Explanation –
(a) Barendra Kumar Ghosh v. Emperor (1924)
(b) Mulcahy v. R (1868)
(c) Pandurang v. State of Hyderabad (1954)
(d) Reg v. Cruise (1838)
Question 2 – In which case it was said that either overt or covert act is sufficient for application
of section 34 of IPC? It was also observed that activities with binoculars or mobile phone are
sufficient and no need to presence on the spot.
(a) J.M. Desai v. State of Bombay
(b) Suresh and Another v. State of Uttar Pradesh
(c) Mahaboob Shah v. Emperor (Indus River Case )
(d) Barendra Kumar Ghosh v. king Emperor, Sankaritolla Post Office Case.
Answer – (b)
Question 3. Four accused with common intention to kill, shot one B in the bona fide belief that
B was A. In this case:

396
(1) None of them is liable for the offence of murder.

(2) All accused are guilty of causing death.
(3) Section 34 of Indian Penal Code does not apply.
(4) All accused are guilty of causing death without invoking Section 34.
Answer - (2) All accused are guilty of causing death.
Question 4. Which of the following is false of Section 34 and Section 149 of the IPC?
A. Section 34 does not by itself create any specific offence whereas S. 149 does so
B. Some active participation in crime is required in S. 34 while it is not needed in S. 149
C. Section 34 speaks of common intention while S. 149 contemplates common object
D. Section 34 requires at least five persons who must share the common intention while S. 149
requires at least two persons to share the common intention
Answer. D
Remarks - Suresh and Another v. State of UP is a masterpiece judgment on Section 34, IPC
which was decided by Justice Thomas in 2001. Madan Singh v. State of Bihar is a masterpiece
judgment on Section 149, IPC which was decided by Justice Arijit Pasayat in 2004.
UNIT 9
ATTEMPT TO COMMIT OFFENCE WITH SPECIAL REFERENCE TO S. 511, IPC
(9.1.) INTRODUCTION
Attempt is called ‗Inchoate Offence/Crime‘.531 Inchoate Offence means incomplete offence and
person is convicted for such incomplete offence. Abetment and conspiracy are also example of
inchoate crime.
Attempt under Indian Penal Code can be divided into four categories on the basis of its
provisions. There are few sections which contain attempt and actual commission of offences in
same section.532 There are few offences for which commission of offence and attempt are under
different sections.533 Attempt to suicide comes under third category which is punishable under
Section 309, but actual commission of crime is not punishable. There are certain offences for
which there are provisions for commission of offence but there is no provision for attempt to
offences.534 Section 511 deals residuary offences
There are several principles have been developed by Courts to decide differences between
attempt and preparation. Reason of development of these principles is that preparations for
commission of offences, as a rule, are not punishable. Attempt is punishable.
531
V Suresh & D Nagasaila (Eds.), ―PSA Pillai ‗s Criminal Law‖ 181 ( LexisNexis Butterworths, New Delhi, 9th
Edn., 2000, Fourth Reprint, 2007).
532
Sections 121, 124, 124A, 130, 131, 152, 152A, 161, 162, 163, 165 196, 198, 200, 213, 239, 240, 251, 385, 387,
389, 391, 397, 398, and 460.
533
Culpable Homicide [Section 304 and Section 307], Murder [Section 302 and 307].
534
Theft, Rape etc.

397
(9.2.) OBJECT OF PUNISHING ATTEMPT
Object for punishing of attempt to commission of offence is based on ‗Prevention is better than
cure‘. The object is to nib the evil in the bud. Person must be punished at the initial stage if his
activities denote that he was about to commit crime. Attempt is sufficient to create fear among
persons and society. Purpose of State is to provide free and healthy environment for the growth
of individuals and nation.
(9.3.) MEANING OF ATTEMPT
Making differences between preparation and attempt is very difficult. Preparation is prior stage
of attempt. Justice Raghubar Dayal535 said, ―The distinction between preparation and attempt
may be clear in some cases, but, in most of the cases, the dividing line is very thin. Nonetheless,
it is a real distinction. The crucial test is whether the last act, if uninterrupted and successful,
would constitute a crime.
There are following definitions of attempt -
(9.3.1) Sir James Stephen

―An act done with intent to commit that crime, and forming part of a series of acts which would
constitute its actual commission if it were not interrupted. The point at which such a series of
acts begins cannot be defined, but depends upon the circumstances of each particular case.‖
(9.3.2.) Hon‘ble Justice Raghubar Dayal

In Abhayanand Mishra v. State of Bihar536 Hon‘ble Justice Raghubar Dayal observed, ―A
person commits the offence of ‗attempt to commit a particular offence‘ when (i) he intends to
commit that particular offence; and (ii) he, having made preparations and with the intention to
commit the offence, (iii) does an act towards its commission; (iv) such an act need not be the
penultimate act towards the commission of that offence but must be an act during the course of
committing that offence.‖ Penultimate act means final act.
(9.3.3.) Law Commission of India

Law Commission of India537 in its 42nd report suggested to repeal Section 511 and adding new
Chapter VB containing Sections 120C & 120D to collect all inchoate offences. He also
suggested redefining Section 307 and Section 308, IPC.
In Section 120C defines attempt. Section 120D deals punishment for such attempt. In the
definition all important principles have been covered. This is following –
Section 120C – A person attempts to commit an offence punishable by this Code, when –
535
Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698. Date of Judgment: 24 April, 1961. Available at:
536
AIR 1961 SC 1698. Date of Judgment: 24 April, 1961 S.C. Justice Raghubar Dayal. Available at:
537
Law Commission of India, 42nd Report on Indian Penal Code, (Ministry of Law), (1971), para 5.54, pp. 138 &
139). Available at: https://lawcommissionofindia.nic.in/1-50/Report42.pdf (Visited on April 10, 2021).

398
(a) He, with the intention or knowledge requisite for committing it does any act towards its
commission;
(b) The act so done is closely connected with, and proximate to, the commission of the
offence; and
(c) The act fails in its object because of the facts not known to him or because of
circumstances beyond his control.
Definition proposed by Law Commission of India covers Section 511 and some important
principles. For example proposed Sections 120C (a), 120C (b) and 120C (c) deals Section 511,
Proximate Doctrine and Doctrine of Impossibility respectively.
(9.3.4.) State of Madhya Pradesh v. Mahendra Alias Golu

In State of Madhya Pradesh v. Mahendra Alias Golu538 Supreme Court observed, ―Whereas, an
‗attempt‘ to commit the offence, starts immediately after the completion of preparation.
‗Attempt‘ is the execution of mens rea after preparation. ‗Attempt‘ starts where ‗preparation‘
comes to an end, though it falls short of actual commission of the crime‖.
(9.4.) STAGES OF CRIME
In State of Madhya Pradesh v. Mahendra Alias Golu539, Hon‘ble Supreme Court observed, ―It is
a settled preposition of Criminal Jurisprudence that in every crime, there is first, Mens Rea
(intention to commit), secondly, preparation to commit it, and thirdly, attempt to commit it.
If the third stage, that is, ‗attempt‘ is successful, then the crime is complete‖.
There are four stages of crime-
(1) Intention to commit crime - Intention is mental status, which cannot be traced, so mere
intention is not punishable. In Aman Kumar v. State of Haryana540 Supreme Court
observed, ―Intention is the direction of conduct towards the object chosen
upon considering the motives which suggest the choice‖. In this case it was
further observed, ―Mere intention to commit an offence, not followed by any act, cannot
constitute an offence‖.
541
(2) Preparation to commit crime - In Aman Kumar v. State of Haryana Supreme Court
observed, ―Preparation consists in devising or arranging the means or measures
necessary for the commission of the offence. Preparation to commit an offence is
punishable only when the preparation is to commit offences under Section 122 (waging
war against the Government of India) and Section 399 (preparation to commit dacoity)‖.
538
Oct-2021.pdf (Visited on March 23, 2022).
539
540
(2004) 4 SCC 379.
541
(2004) 4 SCC 379.

399
In State of Madhya Pradesh v. Mahendra Alias Golu542 Supreme Court observed, ―The
stage of ‗preparation‘ consists of deliberation, devising or arranging the means or
measures, which would be necessary for the commission of the offence‖.
Generally preparation is also not punishable. But there are some exceptional cases when
at the stage of preparation, offence is punishable, namely,
 Preparation to wage war against the Government (Section 122)
 Any one commits damages to the property and destruction of property within the
territories of our country and the country which is with peace with our
government (Sec. 126)
 Preparation for counterfeiting of coins or Government Stamps (Sections 233 to
235, 255 and 257).
 Possessing counterfeit coins, false weights or measurements and forged
documents (Section 242, 243, 259, 266 and 474)
 Making preparation to commit dacoity (Section 399)
(3) Attempt to commit crime – It is punishable in all cases. In Abhayanand Mishra v. State
of Bihar543 Hon‘ble Justice Raghubar Dayal observed, ―A person commits the offence of
‗attempt to commit a particular offence‘ when (i) he intends to commit that particular
offence; and (ii) he, having made preparations and with the intention to commit the
offence, (iii) does an act towards its commission; (iv) such an act need not be the
penultimate act towards the commission of that offence but must be an act during the
course of committing that offence.‖ In Koppula Venkat Rao v. State of A.P.,544 laying
down that: ― An attempt to commit an offence is an act, or a series of acts, which
leads inevitably to the commission of the offence, unless something, which the doer
of the act neither foresaw nor intended, happens to prevent this. An attempt may be
described to be an act done in part-execution of a criminal design, amounting to more
than mere preparation, but falling short of actual consummation, and, possessing, except
for failure to consummate, all the elements of the substantive crime. In other words, an
attempt consists in it the intent to commit a crime, falling short of, its actual commission
or consummation/completion. It may consequently be defined as that which if not
prevented would have resulted in the full consummation of the act attempted.‖
(4) The actual commission of crime – It is punishable in all cases.
(9.5.) ANALYSIS OF SECTION 511
Chapter XXIII, IPC contains only one Section. This Section is Section 511. This is the last
Section which is residuary Section on the point of attempt to commit offence.
542
543
AIR 1961 SC 1698. Date of Judgment: 24 April, 1961 S.C. Justice Raghubar Dayal. Available at:
544
(2004) 3 SCC 602

400
―Section 511- Punishment for attempting to commit offences punishable with imprisonment for
life or other imprisonment.-
 Whoever attempts to commit an offence545 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, for a term
which may extend to
 one-half of the imprisonment for life or, as the case may be,
 one-half of the longest term of imprisonment provided for that offence, or
 with such fine as is provided for the offence, or
 with both.
Illustrations
(a) Empty box Theft Impossible Theory
(b) Empty pocket Theft Impossible Theory
(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 has done an act towards the commission
of theft, and therefore is guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z‘s pocket. A fails in
the attempt in consequence of Z‘s having nothing in his pocket. A is guilty under this
section.‖
There are two parts of Section 511. In first part accused directly do something. In second part
accused attempt to do something with the help of other person. In both situations offences must
be punishable either with imprisonment for life or imprisonment.
545
In Om Prakash v. State of Punjab Supreme Court observed, ―The expression ‗whoever attempts to commit an
offence‘ in section 511, can only mean ‗whoever intends to do a certain act with the intent or knowledge necessary
for the commission of that offence‖.

401
Section 511
[Residuary
Section]
Attempt [Direct...himself] Attempt [ Indirect..through

[Whoever attempts to another person [Whoever
commit an offence ] attempts... to cause such an
offence to be committed]
Punishable with
Punishable with Punishable with
life Punishable with
imprisonment life
imprisonment imprisonment
imprisonment
Provisions of section 511 are applicable to limited offences. They are not applicable to attempts
to commit very serious offences punishable with death or the offences the attempts of which are
made punishable expressly. Section 511 is also not applicable to the attempts of those offences
which are punishable with fine only.546
There are following three circumstances in which Section 511 will not be applicable –
1. Specific Provision – Section 511 is residuary provision with certain limitation. Where
there is specific provision for attempt, Section 511 will not be applicable for examples
attempt to waging war (Section 121), attempt to murder (Section 307), attempt to
culpable homicide (Section 308) and attempt to suicide (309) etc.
2. Death Sentence - Where offence is punishable with only death sentence, Section 511
will not be applicable for example Section 303. Although Section 303 had been declared
unconstitutional.
3. Fine - Where offence is punishable only with fine, Section 511 will not be applicable. 547
For example, Section 154, Section 155, Section 156, Section 171G, Section 171 H,
Section 171 I, Section 278 Section 283, Section 290 etc.548
Non-application
of Section 511
Specific Punishable only

Punishable only
provision for with death
with fine
attempt sentence
Section 511 can be elaborated with the help of following points -
546
Mool Singh, ‗Law Relating To Attempts: Need For A Fresh Look‘ 399 Journal of the Indian Law Institute, Vol.
33, No. 3 (July-September 1991).
547
K.D. Gaur, ‗Textbook on Indian Penal Code‘ 885 (Universal Law Publication, New Delhi, 5th Edn., 2014).
548
Mool Singh, ‗Law Relating To Attempts: Need For A Fresh Look‘ 399 Journal of the Indian Law Institute, Vol.
33, No. 3 (July-September 1991).

402
(a) Residuary Section (……where no express provision is made by this Code for the
punishment of such attempt….)
There are four types of provisions under IPC namely,
a. Same section for offence and attempt – Same sections which deal offence and
attempt within own sphere and provide same punishment. For example Sections
121, 124, 124A, 161 &196 etc.
b. Different sections- In second category those provisions come which discuss
separately for commission of offence (section 302) and attempt to commission of
offence (section 307). There are also different punishment for commission of
offence and attempt to commission of offence.
c. Only attempt is an offence while actual completion of act is not an offence. For
example section 309.
d. No specific provision for attempt – There are several offences for which there is
no specific provisions for attempt. For example theft (sections 378 – 382). For
such types offences section 511 has been provided.
Section 511 covers attempt for all types of offences for which there is no specific
provisions which deals attempt and not punishable by death sentence or only fine.
(b) Limited application (……with imprisonment for life or imprisonment……..)
a. This section will be applicable only where offence is punishable either with
imprisonment for life or imprisonment.
b. If any offence is punishable only either with death sentence or fine, section 511
will not be applicable.
(c) Half Punishment
a. Section 57 Fractions of terms of punishment - In calculating fractions of terms
of punishment, imprisonment for life shall be reckoned as equivalent
to imprisonment for twenty years.
b. ….. one-half of the imprisonment for life (Half of 20 years – 10 years) or, as the
case may be, one-half of the longest term of imprisonment provided for that
offence (Section 376B – Minimum 2 years and maximum seven years –Half of
maximum punishment i.e. three & half years), or with such fine ( Full fine ,
rather than half of fine) as is provided for the offence, or with both.
(d) Meaning of attempt
―……….. does any act towards the commission of the offence…..‖ denotes
meaning of attempt. Word ‗towards‘ denotes that there is no need of penultimate
act or last act. If anything has been done after preparation with intention of
committing of offence and before final commission of offence that will be
attempt. Attempting to cause death without food will amount to attempt murder
every day.
For example Om Prakash planned to kill his wife i.e. Vimla Devi without
providing food. He chose that method so that he can take defence that she died

403
due to illness and weakness. He arranged a particular room for this purpose. He
locked her in room on January 01, 2022. Once he locked her in room for this
purpose, attempt started at the moment. She got opportunity and ran away on
January 20, 2022.
Meaning of attempt differs on the basis of different words –
(1) Towards – ‗Towards‘ denotes that offence started just after preparation and
there is no need of penultimate act. It covers ‗…during course…‘In this example,
attempt was January 01, January 02, January 03, January 04, January 05, January
06, January 07, January 08, January 09, January 10, January 11, January 12,
January 13, January 014, January 15, January 16, January 17, January 18, January
19, January 20. Section 511 contains ‗…towards‘. Act includes series of acts.549
(2) Penultimate act – Penultimate act is last act. In this example, there is no
attempt. Reason of this is that she was able to survive for three or four more days.
Word ‗Penultimate‘ or ‗last‘ act has not been used under Section 511.
In Abhayanand Mishra v. State of Bihar550 and Om Prakash v. State of Punjab551 Hon‘ble Justice
Raghubar Dayal rejected ‗penultimate‘ formula and said that there is no need of penultimate act.
He accepted ‗towards‘ and said that act done during course will amount attempt. In Om Prakash
v. State of Punjab, he observed that there is no difference between meaning of attempt in context
of Section 307 and Section 511. In both cases, penultimate act is not necessary. It can be inferred
from illustration (d) of Section 307 also.
(9.6.) PRINCIPLES RELATED TO ATTEMPT
Justice Raghubar Dayal552 said, ―The distinction between preparation and attempt may be clear
in some cases, but, in most of the cases, the dividing line is very thin. Nonetheless, it is a real
distinction. As a rule in case of preparation person will not be liable while in case of attempt
person will be liable. So to establish clarity between preparation and attempt following principles
have been accepted. It depends upon judge in which case he is going to apply which principle.
These are following principles –
(I) Proximity Rule
(II) Doctrine of Locus Paenitentiae
(III) Impossibility Test
(IV) Social Danger Test
(V) Equivocality Test
549
Section 33, IPC.
550
AIR 1961 SC 169
551
552
Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698. Date of Judgment: 24 April, 1961. Available at:

404
(9.6.1) Cogitationis Poenam Nemo Patitus (Proximity Rule)

No man can safely be punished for his guilty purpose, save so far as they have manifested
themselves in overt acts which themselves proclaim his guilt. Proximity must be not in relation
to time and action but to intention. There are following leading cases on this points -
(1) Abhayanand Mishra v. State of Bihar553
(2) Om Prakash v. State of Punjab554
(3) Sudhir Kumar Mukherjee and Anr. v. State of West Bengal555
(4) State of Maharashtra v. Mohammad Yakub and Ors.556
(5) State of Madhya Pradesh v. Mahendra Alias Golu557
(9.6.1.1) Abhayanand Mishra v. State of Bihar
Abhayanand Mishra v. State of Bihar558 was decided by Division Bench of Supreme Court
consisted of Hon‘ble Justice Raghubar Dayal and Hon‘ble Justice K. Subba Rao on April 24,
1961. Judgment was written by Hon‘ble Justice Raghubar Dayal. In this case Section 420 r/w
Section 511 was involved. This case is known for giving wonderful and perfect definition of
‗Attempt‘ which had been followed by many judgments in this Country. Court said that there is
no need of penultimate act. Act includes series of acts. The Court also said that ‗admit card‘ is
property for the purpose of Section 415 i.e. cheating.
Facts –
 Abhayanand Mishra applied to the Patna University for permission to appear at the 1954
M. A. Examination in English as a private candidate, representing that he was a graduate
having obtained his B.A. Degree in 1951 and that he had been teaching in a certain
school.
 In support of his application, he attached certain certificates purporting to be from the
Headmaster of the School, and the Inspector of Schools.
 The University authorities accepted the appellant‘s statements and gave permission and
wrote to him asking for the remission of the fees and two copies of his photograph.
 The appellant furnished these and on April 9, 1954.
 Proper admission card for him was dispatched to the Headmaster of the School.
 Neither Teacher nor graduate - Information reached the University about the appellant‘s
being not a graduate and being not a teacher.
 Inquiry - Inquiries were made and it was found that the certificates attached to the
application were forged, that the appellant was not a graduate and was not a teacher
553
AIR 1961 SC 169. Date of Judgment: April 24, 1961, Judgment was written by Hon‘ble Justice Raghubar Dayal.
554
AIR 1961 SC 1782. Date of Judgment: April 24, 1961, Judgment was written by Hon‘ble Justice Raghubar
Dayal. Available at: https://main.sci.gov.in/judgment/judis/4214.pdf (Visited on March 22, 2022).
555
AIR 1973 SC 2655. Date of Judgment: September 24, 1973, Judgment was written by Hon‘ble Justice
Alagiriswami).
556
(1980) 3 SCC 57. Date of Judgment: March 04, 1980, Judgment was written by Hon‘ble Justice R.S. Sarkaria)
557
558
AIR 1961 SC 169. Date of Judgment: April 24, 1961, Judgment was written by Hon‘ble Justice Raghubar Dayal.

405
 Consequences of Inquiry –
 He had been debarred from taking any University examination for a certain
number of years on account of his having committed corrupt practice at a
University examination.
 The matter was reported to the police who, on investigation, prosecuted the
appellant. He was arrested for committing offence under section 420 r/w section
511.
Supreme Court
Appeal was filed by Abhayanand Mishra against judgment of High Court.

Arguments of Appellant in Supreme Court - The appellant contended that on the facts found
the conviction was unsustainable on the grounds
(1) Not property - that the admission card had no pecuniary value and was therefore not
property under Section 415, and
(2) Only Preparation - that, in any case, the steps taken by him did not go beyond the stage
of preparation for the commission of the offence of cheating and did not therefore make
out the offence of attempting to cheat.
Issues: There were following issues before Supreme Court -
 Whether admit card amount to property under Section 415, IPC?
Answer – Yes.
 Whether acts done be Abhayanand Mishra only amount to preparation or he had crossed
stage of attempt?
Answer – He had crossed stage of preparation. His acts amount to attempt.
 Whether Abhayanand Mishra had caused offence of attempt to cheating?
Answer- Yes.
Observation of Supreme Court - Supreme Court observed following important points -

(1) Meaning of Attempt - Supreme Court said, ―We may summarize our views about the
construction of s. 511, Indian Penal Code, thus:
A person commits the offence of ‗attempt to commit a particular offence‘ when
(i) he intends to commit that particular offence; and
(ii) he, having made preparations and with the intention to commit the offence, does an act
towards its commission; such an act need not be the penultimate act towards the commission
of that offence but must be an act during the course of committing that offence.‖ penultimate
act means final act.
Intention Preparation Attempt

406
(2) Preparation by accused - The Court held that preparation was complete when the accused
prepared the application for submission to the university and that the moment, he had dispatched
(3) Essential ingredient of section 415 and this case – There are following essential ingredient
of section 415 –
(1) Deception- There must be deception of any person. (A person deceives another when he
causes to believe what is false or misleading as to matter of fact, or leads into error).
(2) Property - fraudulently or dishonestly induces (FDI) the person so deceived
a. to deliver any property to any person, or
b. to consent that any person shall retain any property,
(3) Injury (To do or omit to do) –
a. intentionally induces the person so deceived to do or omit to do anything which
he would not do or omit if he were not so deceived, and
b. which act or omission causes or is likely to cause damage or harm to that person
in body, mind, reputation or property.
Now we have to compare this case with ingredient of section 415 -

The appellant would therefore have cheated the University if he had
(i) deceived the University;
(ii) fraudulently or dishonestly induced the University
(iii)to deliver any property to him; or
(iv) had intentionally induced the University to permit him to sit at the M.A. Examination
which it would not have done if it was not so deceived and
(v) the giving of such permission by the University caused or was likely to cause damage or
harm to the University in reputation.
Supreme Court said, ―There is no doubt that the appellant, by making false statements about his
being a graduate and a teacher, in the applications he had submitted to the University, did
deceive the University and that his intention was to make the University give him permission and
deliver to him the admission card which would have enabled him to sit for the M.A.
Examination. This card is ‗Property‘. The appellant would therefore have committed the offence
of ‗cheating‘ if the admission card had not been withdrawn due to certain information reaching
the University.
(4) Conviction - He was convicted for Section 420 r/w Section 511 on the ground that he had
crossed stage of preparation for committing offence of cheating.
Importance – Meaning of ‗Attempt‘ defined in this case was universally followed by
subsequent judgments.559 On the same day ratio of this case was followed in Om Prakash v.
State of Punjab.560 In this case ‗Doctrine of Proximity‘ was not discussed. But from the ratio of
the case it can be inferred that this is the leading case on this doctrine.
In this
559
Om Prakash v. State of Punjab., Sudhir Kumar Mukherjee and Sham Lal Shaw v. State of West Bengal
560

407
In this case Hon‘ble Justices Raghubar Dayal and Subba Rao, disapproved of the test of ‗last
act‘ which if uninterrupted and successful would constitute a criminal offence‘.561
(9.6.1.2.) Om Prakash v. State of Punjab

Om Prakash v. State of Punjab562 was decided by Division Bench of Supreme Court consisted of
Hon‘ble Justice Raghubar Dayal and Hon‘ble Justice K. Subba Rao on April 24, 1961. Judgment
was written by Hon‘ble Justice Raghubar Dayal. In this case Section 307 was involved. In this
case Court said that there is no difference between meaning of attempt for the purposes of
Section 307 and Section 511. This case is related to attempt to cause death of married woman by
starvation.
Facts - Bimla Devi was married to the appellant in October, 1951. Their relations got strained by
1953 and she went to her brother‘s place and stayed there for about a year, when she returned to
her husband‘s place at the assurance of the appellant‘s maternal uncle that she would not be
maltreated in future. She was, however, ill-treated and her health deteriorated due to alleged
maltreatment and deliberate undernourishment. In 1956, she was deliberately starved and was
not allowed to leave the house and only sometimes a morsel or so used to be thrown to her as
alms are given to beggars. She was denied food for days together and used to be given gram husk
mixed in water after five or six days. She managed to go out of the house in April 1956, but
Romesh Chander and Suresh Chander, brothers of the appellant, caught hold of her and forcibly
dragged her inside the house where she was severely beaten. Thereafter, she was kept locked
inside a room.
On June 5, 1956, she happened to find her room unlocked, her mother-in-law and husband away
and, availing of the opportunity, went out of the house and managed to reach the Civil Hospital,
Ludhiana, where she met lady Doctor Mrs. Kumar and told her of her sufferings. The appellant
and his mother went to the hospital and tried their best to take her back to the house, but were not
allowed to do so by the lady Doctor. Social workers got interested in the matter and informed the
brother of Bimla Devi, one Madan Mohan, who came down to Ludhiana and, after learning all
facts, sent information to the Police Station by letter on June 16, 1956.
Arguments of Appellant - Contention for the appellant is that the ingredients of an offence
under section 307 are materially different from the ingredients of an offence under Section 511,
IPC. The difference is that for an act to amount to the commission of the offence of attempting to
commit an offence, it need not be the last act and can be the first act towards the commission of
the offence, while for an offence under section 307, it is the last act which, if effective to cause
death, would constitute the offence of an attempt to commit murder. The contention really is that
even if Bimla Devi had been deprived of food for a certain period, the act of so depriving her
does not come under section 307, as that act could not, by itself, have caused her death, it being
necessary for the period of starvation to continue for a longer period to cause death.
Supreme Court – Supreme Court rejected contention of argument.
561
State of Maharashtra v. Mohammad Yakub and Ors.561
562

408
Justice Ragubar Dayal observed that there is no difference between meaning of attempt in
context of Section 307 and Section 511. In both cases, penultimate act is not necessary. It can be
inferred from illustration (d) of Section 307 also. Supreme Court discussed relation between
Section 511 and Section 307 on the following grounds -
I. Whoever attempts to commit an offence‘ - The expression ‗whoever attempts to commit

an offence‘ in section 511, can only mean ‗whoever intends to do a certain act with the
intent or knowledge necessary for the commission of that offence‘. The same is meant by
the expression used in section 307 ‗whoever does an act with such intention or
knowledge and under such circumstances that if he, by that act, caused death, he would
be guilty of murder‘.
II. Meaning of Act – According to Section 32 act includes omission. According to section
33, act includes series of acts.
III. Ratio of Emperor v. Vasudeo Balwant Gogte - In Emperor v. Vasudeo Balwant
Gogte563 - a person fired several shots at another. No injury was in fact occasioned due
to certain obstruction. The culprit was convicted of an offence under section 307. Chief
Justice Beaumont said, ―I think that what section 307 really means is that the accused
must do an act with such a guilty intention and knowledge and in such circumstances
that but for some intervening fact the act would have amounted to murder in the normal
course of events‖. This is correct. In the present case, the intervening fact which
thwarted the attempt of the appellant to commit the murder of Bimla Devi was her
happening to escape from the house and succeeding in reaching the hospital and
thereafter securing good medical treatment.
IV. Section 307, Illustration (d) – Section 300, illustration (d) clearly denotes that
penultimate act is not necessary. Section 307, Illustration (d) says, ―A, intending to
murder Z, by poison, purchases poison and mixes the same with food which remains in
A‘s keeping; A has not yet committed the offence in this section. A places the food on
Z‘s table or delivers it to Z‘s servants to place it on Z‘s table. A has committed the
offence defined in this section.‖ Supreme Court observed that A‘s last act, contemplated
in this illustration, is not an act which must result in the murder of Z. The food is to be
taken by Z. It is to be served to him. It may not have been possible for A to serve the
food himself to Z, but the fact remains that A‘s act in merely delivering the food to the
servant is fairly remote to the food being served and being taken by Z.
V. Ratio of Anhayanand Mishra Case - Ratio of Anhayanand Mishra Case was followed
in this case and observed that penultimate act is not necessary to constitute offence under
section 307 and act during curing course is sufficient.
VI. Conclusion - Conviction under section 307 of Om Prakash was upheld. He had crossed
stage of preparation for committing murder of Vimla Devi. Supreme Court said that even
there was chance to survive two or more days without food, but for attempt last act or
563
(1932) I.L.R. 56 Bom. 434.

409
penultimate act is not necessary. Once any act is done after preparation with intention to
commit offence is sufficient. Act during course is sufficient.
Remark- This is another leading case on ‗Doctrine of Proximity‘ to decide difference between
preparation and attempt.
(9.6.1.3.) Sudhir Kumar Mukherjee and Sham Lal Shaw v. State of West Bengal
Sudhir Kumar Mukherjee and Sham Lal Shaw v. State of West Bengal564 was decided by
Supreme Court on September 24, 1973. Judgment was written by Hon‘ble Justice A.
Alagiriswami. This case is related to Section 420 read with Section 511, IPC.
Sudhir Kumar Mukherjee was an employee in a firm and Sham Lal Shaw was a supplier of lime
stone to the firm. The procedure in respect of the supply was that the second appellant would
bring four bags of lime stone every day to the first appellant and present a chalan to him. The
accused person Sudhir Kumar Mukherjee, an employee of a firm had attempted, in collusion
with a limestone dealer, to show false delivery of limestone to his company by forging the
signature of his superior on the invoice after which it would be presented for payment. At the
time when he was caught, he had himself not signed the challan evidencing receipt of the goods.
Supreme Court followed the ratio of Abhayananda Mishra v. State of Bihar and held that the fact
that a challan had been prepared and that the initial of the concerned clerk had been obtained by
the accused on the challan showed that definite steps had been taken by the accused to commit
the offence of cheating. He was liable for cheating under Section 420 r/w section 511.This case
is also related to ‗Doctrine of Proximity‘.
(9.6.1.4.) State of Maharashtra v. Mohammad Yakub & Ors.
State of Maharashtra v. Mohammad Yakub & Ors.565 was decided by Division Bench of
Supreme Court consisted of Hon‘ble Justice R.S. Sarkaria and Hon‘ble Justice O. Chinnappa
Reddy on March 04 1980. Both judges wrote concurrent and separate judgment. In this case
proximity test was discussed in express words. Definition given in Abhayanand Mishra v. State
of Bihar was accepted.
Facts – The prosecution alleged that on the night of the occurrence the respondents carried in a
truck and a jeep silver ingots some of which were concealed in a shawl, and some others hidden
in saw-dust bags from Bombay to a lonely creek nearby and that when the ingots were unloaded
near the creek the sound of the engine of a mechanized sea-craft from the side of the creek was
heard by the Customs officials.
They were prosecuted for attempting to smuggle silver out of India. The respondents were
charged with the offence of attempting to smuggle out of India 43 silver ingots in violation of the
564
AIR 1973 SC 2655. Date of Judgment: September 24, 1973, Judgment was written by Hon‘ble Justice
Alagiriswami).
565
(1980) 3 SCC 57. Date of Judgment: March 04, 1980, Judgment was written by both judges. Available at:

410
 Foreign Exchange Regulation Act, 1947,

 Imports and Exports (Control) Act, 1947 and
 The Customs Act, 1962.
In this case provision of Indian Penal Code was not involved. This is leading case to define
‗attempt‘. In this case , ‗proximate‘ was used many times.
Trial Court – The Trial Court convicted and sentenced them to various terms of imprisonment
and fine.
Session Court – Session Court acquitted all of the on the ground that they were only at the stage
of preparation rather than attempt. No more than that the accused had only made ―preparations‖
for bringing the silver to the creek and ―had not committed any act amounting to a direct
movement towards the commission of the offence‖ and that until the silver was put in the boat
with intent to export, it would merely be in the stage of preparation falling short of an ―attempt‖
to export in contravention of the law.
High Court - The High Court dismissed the State‘s appeal.

Supreme Court – State of Maharashtra went to Supreme Court through appeal. Supreme Court
observed following important points –
(1). Proximity Test - In Director of Public Prosecutions v. Stonehouse, Lord Diplock and
Viscount Dilhorne, accepted the ‗Proximity Test‘.
(2). Kenny was rejected [Last Proximate] - Kenny in his ‘Outlines of Criminal Law‘
defined ―attempt‖ to commit a crime as the ―last proximate act which a person does
towards the commission of an offence, the consummation of the offence being hindered
by circumstances beyond his control.‖ This definition was rejected on the ground that it is
too narrow.
As a general principle the test of ‗the last possible act before the achievement of the end‘
would be entirely unacceptable. If that principle be correct, a person who has cocked his
gun at another and is about to pull the trigger but is prevented from doing so by the
intervention of someone or something cannot be convicted of attempt to murder
(3). Attempt - In order to constitute ‗an attempt‘, first, there must be an intention to commit a
particular offence, second, some act must have been done which would necessarily have
to be done towards the commission of the offence, and, third, such act must be
‗proximate‘ to the intended result. The measure of proximity is not in relation to time
and action but in relation to intention. In other words, the act must reveal, with
reasonable certainty, in conjunction with other facts and circumstances and not
necessarily in isolation, an intention, as distinguished from a mere desire or object, to
commit the particular offence, though the act by itself may be merely suggestive or
indicative of such intention; but, that it must be, that is, it must be indicative or
suggestive of the intention.
(4). Stages of Crime - all crimes which consist of the commission of affirmative acts are
preceded by some covert or overt conduct which may be divided into three stages: the
first stage exists when the culprit first entertains the idea or intention to commit an

411
offence; in the second stage he makes preparations to commit it; and the third stage is
reached when the culprit takes deliberate overt steps to commit the offence. Such overt
act or step, in order to be criminal, need not be the penultimate act towards the
commission of the offence. It is sufficient if such act or acts were deliberately done and
manifest a clear intention to commit the offence aimed, being reasonably proximate to the
consummation of the offence.
(5). Acceptance of Ratio of Abhayanand Mishra Case - Ratio of Abhayanand Mishra
Case was accepted regarding meaning attempt.
(6). Rejection of Malkiat Singh & Anr v. State of Punjab- Definition given by Supreme
Court in Malkiat Singh & Anr v. State of Punjab was based on the particular fact. So it
was not accepted in this case. Justice Ramaswamy in Malkiat Singh & Anr v. State of
Punjab., observed: ―The test for determining whether the act of the appellants constituted
an attempt or preparation is whether the overt acts already done are such that if the
offender changes his mind and does not proceed further in its progress, the acts already
done would be completely harmless. In the present case it is quite possible that the
appellants may have been warned that they had no licence to carry the paddy and they
may have changed their mind at any place between Samalkha barrier and the Delhi-
Punjab boundary and not have proceeded further in their journey‖.
(7). Act and series of acts - The expression ―attempt‖ within the meaning of the penal
provisions is wide enough to take in its fold any one or series of acts committed beyond
the stage of preparation in moving contraband goods deliberately to the place of
embarkation, such act or acts being reasonably proximate to the completion of the
unlawful export.
(8). Mixed question of law and attempt - What constitutes an ―attempt‖ is a mixed question
of law and fact, depending largely on the circumstances of the particular case.
(9). Reason of Decision - For instance, in the instant case, had the truck been stopped and
searched at the very commencement of the journey or even at Shirsad Naka, the
discovery of silver ingots in the truck might at the worst lead to the inference that the
accused had prepared or were preparing for the commission of the offence. It could be
said that the accused were transporting or attempting to transport the silver somewhere
but it would not necessarily suggest or indicate that the intention was to export silver. The
fact that the truck was driven upto a lonely creek from where the silver could be
transferred into a sea-faring vessel was suggestive or indicative though not conclusive,
that the accused wanted to export the silver. It might have been open to the accused to
plead that the silver was not to be exported but only to be transported in the course of
inter-coastal trade. But, the circumstance that all this was done in a clandestine fashion, at
dead of night, revealed, with reasonable certainty, the intention of the accused that the
silver was to be exported.

412
(10). Error of Decision of High Court - The High Court was in error in holding that
the circumstances established by the prosecution fell short of constituting the offence of
an ―attempt‖ to export unlawfully silver out of India.
(11). Decision – Court allowed the appeal and set asided the acquittal of the accused-
respondents and convicted them under Section 135(a) of the Customs Act, 1962 read
with Section 5 of the Imports and Exports Control Act, 1947.
(9.6.1.4.) State of Madhya Pradesh v. Mahendra Alias Golu

State of Madhya Pradesh v. Mahendra Alias Golu566 was decided by Division Bench of
Supreme Court consisted of Hon‘ble Justice Surya Kant and Hon‘ble Justice Hima Kohli on
October 25, 2021. Judgment was written by Hon‘ble Justice Surya Kant. This case is known as
‗Rubbing of Genital over genitals‘. This is leading case on many points –
 Difference between Preparation and Attempt
 Section 376 (2) (f) and Section 511, IPC
 Relation between Section 354, IPC and Attempt to rape.
 Meaning of Intention, Preparation, Attempt and Penetration
 Ratio of Aman Case
 Child Witness
Session Court – Session Court convicted for attempt to rape. It was accepted by Session Court
that accused had crossed stage of preparation and he was at stage of attempt to rape. There were
two reasons –
 One he lured both girls [about 9 years and 8 years] who were playing ‗gillidanda‘,
preparation started. This preparation was for rape. It was continued till removal of dress.
Once he started rubbing his genital over genitals of victims, it was attempt to rape.
 Attempt to Rape could not convert into actual, because both girls started to cry and he
feared which was beyond his control. Accused could not succeed in his penultimate act
High Court – Whatever accused did, that was only preparation for rape. He had not crossed
stage of preparation. So he was convicted under Section 354 and acquitted from charge of
attempt to rape. His sentence was reduced from 5 years to 2 years rigorous imprisonment.
Supreme Court – Supreme Court convicted for attempt to rape i.e. Section 375 r/w Section 511.
Issue – There was following issue before Supreme Court
Whether the offence proved to have been committed by Mahendra Alias Golu amounts to
‗attempt‘ to commit rape within the meaning of Section 376(2)(f) read with Section 511 IPC or
was it a mere ‗preparation‘ which led to outraging the modesty of the victims?
Remarks – I will complete this today‘s night.
I. Stages of Crime – It is a settled preposition of Criminal Jurisprudence that in every
crime, there is first, Mens Rea (intention to commit), secondly, preparation to commit
566

413
it, and thirdly, attempt to commit it. If the third stage, that is, ‗attempt‘ is successful, then
the crime is complete.
II. Punishment for Attempt and its philosophy - If the attempt fails, the crime is not
complete, but law still punishes the person for attempting the said act. ‗Attempt‘ is
punishable because even an unsuccessful commission of offence is preceded by mens
rea, moral guilt, and its depraving impact on the societal values is no less than the actual
commission.
III. Visible distinction between Preparation and Attempt – There is a visible distinction
between ‗preparation‘ and ‗attempt‘ to commit an offence and it all depends on the
statutory edict coupled with the nature of evidence produced in a case.
IV. What is preparation? The stage of ‗preparation‘ consists of deliberation, devising or
arranging the means or measures, which would be necessary for the commission of the
offence.
V. What is Attempt? Whereas, an ‗attempt‘ to commit the offence, starts immediately after
the completion of preparation. ‗Attempt‘ is the execution of mens rea after preparation.
‗Attempt‘ starts where ‗preparation‘ comes to an end, though it falls short of actual
commission of the crime.
VI. Aman Kumar v. State of Haryana - In this case ratio of Aman Kumar v. State of
Haryana567 was discussed. In this Case Supreme Court had discussed many important
points beautifully. The Court observed at paras 9 and 10, ―
 Stages of Crime - A culprit first intends to commit the offence, then makes
preparation for committing it and thereafter attempts to commit the offence. If the
attempt succeeds, he has committed the offence; if it fails due to reasons beyond
his control, he is said to have attempted to commit the offence.
 Commencement of Offence - Attempt to commit an offence can be said to begin
when the preparations are complete and the culprit commences to do something
with the intention of committing the offence and which is a step towards the
commission of the offence. The moment he commences to do an act
with the necessary intention, he commences his attempt to commit the
offence.
 Intention and Attempt - Mere intention to commit an offence, not followed
by any act, cannot constitute an offence. The will is not to be taken for the
deed unless there be some external act which shows that progress has been made
in the direction of it, or towards maturing and effecting it.
 Meaning of Intention - Intention is the direction of conduct towards the
object chosen upon considering the motives which suggest the choice.
 Meaning of Preparation - Preparation consists in devising or arranging
the means or measures necessary for the commission of the offence.
567
(2004) 4 SCC 379.

414
Preparation to commit an offence is punishable only when the preparation is to

commit offences under Section 122 (waging war against the Government of
India) and Section 399 (preparation to commit dacoity).
 Thin Line between Preparation and Attempt - The dividing line between a
mere preparation and an attempt is sometimes thin and has to be decided on the
facts of each case. There is a greater degree of determination in attempt as
compared with preparation.
 Meaning of Attempt - Attempt is the direct movement towards the commission
after preparations are made. An attempt to commit an offence is an act, or a series
of acts, which leads inevitably to the commission of the offence, unless
something, which the doer of the act neither foresaw nor intended, happens to
prevent this. An attempt may be described to be an act done in part-execution of a
criminal design, amounting to more than mere preparation, but falling short of
actual consummation, and, possessing, except for failure to consummate, all
the elements of the substantive crime. In other words, an attempt consists in it the
intent to commit a crime, falling short of, its actual commission. It may
consequently be defined as that which if not prevented would have resulted in the
full consummation of the act attempted. The illustrations given in Section
511 clearly show the legislative intention to make a difference between the
cases of a mere preparation and an attempt.‖
 Meaning of Penetration and its importance - Penetration is the sine qua non for
an offence of rape. In order to constitute penetration, there must be evidence clear
and cogent to prove that some part of the virile member of the accused was within
the labia of the pudendum of the woman, no matter how little.
VII. Koppula Venkat Rao v. State of A.P. - The difference between `attempt‘ and
`preparation‘ in a rape case was again elicited by this Court in Koppula Venkat Rao v.
State of A.P.,568 laying down that:-
―10. An attempt to commit an offence is an act, or a series of acts, which leads
inevitably to the commission of the offence, unless something, which the doer of the
act neither foresaw nor intended, happens to prevent this. An attempt may be described
to be an act done in part-execution of a criminal design, amounting to morethan mere
preparation, but falling short of actual consummation, and, possessing, except for failure
to consummate, all the elements of the substantive crime. In other words, an attempt
consists in it the intent to commit a crime, falling short of, its actual commission or
consummation/completion. It may consequently be defined as that which if not
prevented would have resulted in the full consummation of the act attempted. The
illustrations given in Section 511 clearly show the legislative intention to
make a difference between the cases of a mere preparation and an attempt. In order to
find an accused guilty of an attempt with intent to commit rape, court has to be satisfied
568
(2004) 3 SCC 602

415
that the accused, when he laid hold of the prosecutrix, not only desired to gratify his
passions upon her person, but that he intended to do so at all events, and notwithstanding
any resistance on her part. Indecent assaults are often magnified into attempts at rape. In
order to come to a conclusion that the conduct of the accused was indicative of a
determination to gratify his passion at all events, and in spite of all resistance, materials
must exist. Surrounding circumstances many times throw beacon light on that aspect.‖
VIII. Meaning of Penetration – The definition of ‗Rape‘, before the 2013 Amendment, used
to provide that ―A man is said to commit ―rape‖ who, except in the case
hereinafter excepted, has sexual intercourse with a woman under circumstances
falling under any of the six following descriptions: - Sixthly.- With or without
her consent, when she is under sixteen years of age. Explanation.- Penetration is
sufficient to constitute the sexual intercourse necessary to the offence of rape. In this
case age of both girls was below the age of Sixteen Years. So Section 375 (sixthly) and
its explanation was involved. A plain reading of Section 375 (sixthly) spells out that
sexual intercourse with a woman below sixteen years, with or without her consent,
amounted to ‗Rape‘ and mere penetration was sufficient to prove such offence. The
expression ‗penetration‘ denotes ingress of male organ into the female parts, however
slight it may be. Ratio of Aman Kumar v. State of Haryana569 was followed regarding
meaning of penetration.
IX. Reasons of Decision – He had crossed the stage of preparation.
(9.6.2.) Doctrine of Locus Paenitentiae
Locus Paenitentiae means ‗Time for Repentance‘. Doctrine of Locus Paenitentiae means an
opportunity to withdraw from a contract or obligation before it is completed or to decide not to
commit an intended crime. There is two leading on these points –
1. Queen-Empress v. Ramakka
2. Malkiat Singh v. State of Punjab
(9.6.2.1.) Queen-Empress v. Ramakka
Queen-Empress v. Ramakka570 was decided by Madras High Court on October 11, 1884. This
case is related to Section 309.
In this case a woman on account of a quarrel with her father and brother rushed towards a well,
shouting that she would jump into it. The Court held that she could not be held guilty for attempt
to suicide as her act amounted only to a preparation to commit suicide. She must have reached
569
(2004) 4 SCC 379.
570
(1885) 8 Mad. 5.

416
into the well and done a further act, such as trying to jump from the parapet wall of the well, for
her to be liable for conviction.
It was held that she had not gone past the Locus Paenitentiae allowed to her by the law, i.e. there
was every chance that she could have repented at the very last moment and not gone ahead with
her threats and therefore her acts were merely preparatory and not an attempt. She was acquitted.
(9.6.2.2.) Malkiat Singh v. State of Punjab
Malkiat Singh v. State of Punjab571 was decided by Full Bench of Supreme Court consisted of
Hon‘ble Justices V. Ramaswami, J.C. Shah and A.N. Grover on November 08, 1968. Judgment
was written Hon‘ble Justice V. Ramaswami. Section 511 was not involved although concept of
attempt was involved. In this Case following Special Laws were involved -
 Essential Commodities Act, 1955, Section 3 and Section 7.
 Punjab Paddy (Export Control) Order, 1959, para 3.
Facts - In this case consignment of paddy from Punjab to Delhi was involved. Truck carrying
paddy stopped by police at Samalkha barrier post within Punjab which is about 14 miles from the
Punjab-Delhi Border.
On October 19, 1961 Sub Inspector Banarasi Lal of Food and Supplies Department was present
at Smalkha Barrier along with Head Constable Badan Singh and others. Malkiat Singh then came
driving truck . Babu Singh was the cleaner of that truck. The truck carried 75 bags of paddy
weighing about 140 maunds. As the export of paddy was contrary to law, the Sub Inspector took
into possession the truck as also the bags of paddy.
Provisions of Essential Commodities Act, 1955, section 3 and section 7 and Punjab Paddy
(Export Control) Order, 1959, para.3 were involved in this case.
Decision - Justice V. Ramaswami said, ―The test for determining whether the act of the
appellants constituted an attempt or preparation is whether the overt acts already done are such
that if the offender changes his mind and does not proceed further in its progress, the acts already
done would be completely harmless. In the present case it is quite possible that the appellants
may have been warned that they had no licence to carry the paddy and they may have changed
their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have
proceeded further in their journey.
Section 8 of the Essential Commodities Act states that ―any person who attempts to contravene,
or abets a contravention of, any order made under Section 3 shall be deemed to have contravened
that order‖. But there is no provision in the Act which makes a preparation to commit an offence
punishable. It follows therefore that the appellants should not have been convicted under Section
7 of the Essential Commodities Act.‖
Conclusion - Malkiat Singh was acquitted.
(9.6.3.) Impossibility Test

In the impossible test
571

417
 guilty mind is punished

 even when the act itself is innocent.
Impossible Test
Mind is guilty Act is innocent
The crucial aspect is the belief of the person and intention preceding his action to do a particular
act. Illustrations (a) and (b) of Section 511 is based on impossible test.
These illustrations are following –
(a) Empty box Theft Impossibility Test
(b) Empty pocket Theft Impossibility Test
Section 511, Illustration (a) [Opening an empty box] - 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
has done an act towards the commission of theft, and therefore is guilty under this section.
Section 511, Illustration (b) [Thrusting hand into empty pocket] -A makes an attempt to pick
the pocket of Z by thrusting his hand into Z‘s pocket. A fails in the attempt in consequence of
Z‘s having nothing in his pocket. A is guilty under this section.
These illustrations clearly shows, it does not matter that it is after breaking open a box with the
intention of stealing jewels which he believes to be inside it or the person who picks another‘s
pocket with the intention of picking whatever valuable he finds inside both persons find their
intentions incapable of fulfillment.
In Asgarali Pradhania v. Emperor572 Calcutta High Court observed that Section 511, illustration
(b) clearly denies the ratio R. v. Collins. In this case further observed that ratio of Collins Case is
incompatible with Section 511 and it has also been rejected in England. In R. v. Collins573 Chief
Justice Cockburn held that if a person puts his hand into the pocket of another, with intent to
steal what he can find there, and the pocket is empty, he cannot be convicted of an attempt to
steal. Because an attempt to commit felony can only in point of law be made out where, if no
interruption had taken place, the attempt could have been carried out successfully, so as to
constitute the offence which the accused is charged with attempting to commit.
The crucial test was whether they had crossed the stage of preparation with intention of
committing offence. There are following leading cases on this points -
(9.6.3.1.) Asgarali Pradhania v. Emperor
Asgarali Pradhania v. Emperor574 was decided by Justice Lort Williams, Calcutta High Court on
July 21, 1933. In this Case Section 312 r/w Section 511, IPC was involved. Accused had
intention of abortion but amount was not sufficient. Accused did something to cause abortion of
572
AIR 1933 Cal. 893.
573
(1864) 33 LJM C 177.
574
AIR 1933 Cal. 893.

418
victim with intention of abortion after preparation; he was not held liable for miscarriage on the
ground of impossibility.
Facts - The complainant was 20 years of age, and had been married but divorced by consent. She
was living in her father‘s house, where she used to sleep in the cook shed. Asgarali Pradhania
was a neighbour who had lent money to her father, and was on good terms with him. He was a
married man with children. According to the complainant he promised to marry her. As a result
sexual intercourse took place and she became pregnant. She asked him to fulfil his promise, but
he demurred and suggested that she should take drugs to procure a miscarriage. One night he
brought her a bottle half full of a red liquid, and a paper packet containing a powder. After he
had gone she tasted the powder, but finding it salty and strong, spat it out. She did not try the
liquid. The following night the appellant came again and finding that she had not taken either the
powder or the liquid, he pressed her to take them, but she refused saying that she was afraid for
her own life, and that the powder irritated her tongue. Thereupon he asked her to open her
mouth, and approached her with the bottle, and took hold of her chin. But she snatched the bottle
from him and cried out loudly, and her father and some neighbours came, and the appellant fled.
The police were informed, and upon analysis, sulphate of copper was detected in the powder,
but the amount was not ascertained. No poison was detected in the liquid.
Medical evidence -According to the medical evidence, copper sulphate has no direct action on
the uterus, and is not harmful unless taken in sufficiently large quantities, when it may induce
abortion.
Issue – Whether activity of accused crossed stage of preparation?
Argument of Appellant - It is argued that as there was no evidence to show that either the liquid
or the powder was capable of causing a miscarriage, the appellant cannot be convicted of an
attempt to do so.
High Court – High Court acquitted accused. High Court observed following important points in
this case -
 Rejection of R. v. Collins - Illustrations of Section 511 rejects ratio of R. v. Collins575.
 Four stages of Crime - It is beyond dispute that there are four stages in every crime, the
intention to commit, the preparation to commit the attempt to commit, and if the third
stage is successful, the commission itself. Intention alone, or intention followed by
preparation are not sufficient to constitute an attempt. But intention followed by
preparation, followed by any act done towards the commission of the offence ―is
sufficient.‖ Act done towards the commission of the offence are the vital words in this
connection.
 Attempt if act not completed due to independent interruption of volition of accused
- In each of the illustrations to Section 511, there is not merely an act done with the
intention to commit an offence which is unsuccessful because it could not possibly result
in the completion of the offence, but an act is done 'towards the commission of the
offence,' that is to say the offence remains incomplete only because something yet
575
(1864) 33 LJM C 177.

419
remains to be done, which the person intending to commit the offence is unable to do,
by reason of circumstances independent of his own volition.
There are following example of attempt.
 If a man thrusts his hand into the pocket of another with intent to steal, he does an
act towards the commission of the offence of stealing, though unknown to him the
pocket is empty. He tries to steal, but is frustrated by a fact, namely the emptiness
of the pocket, which is not in any way due to any act or omission on his part. He
does an act towards the commission of the offence of pocket picking, by thrusting
his hand into the pocket of another with intent to steal.
 Similarly, he may fail to steal the watch of another because the latter is too strong
for him, or because the watch is securely fastened by a guard. Nevertheless he
may be convicted of an attempt to steal.
 No Attempt if act not completed due to fault of accused Examples of ‗No Attempt‘ –
If there is fault of accused and act could not completed, that act will not amount to
attempt. There is difference between ‗… does an act towards the commission of the
offence‘, and ‗an act towards the commission of something which cannot result in hurt to
another‘. There are following examples which do not come under category attempt -
 If one who believes in witchcraft puts a spall on another576, or
 burns him in effigy, or
 curses him with the intention of causing him hurt, and believing that his actions
will have that result,
 if a man with intent to hurt another by administering poison prepares and
administers some harmless substance, believing it to be poisonous, he cannot be
convicted of an attempt to do so.
In these examples accused is not liable for attempt because what he does is not an act towards the
commission of that offence, but an act towards the commission of something which cannot,
according to ordinary human experience result in hurt to another, within the meaning of the
Penal Code. His failure to cause hurt is due to his own act or omission, that is to say, his act
was intrinsically useless, or defective, or inappropriate for the purpose he had in mind, owing to
the undeveloped state of his intelligence, or to ignorance of modern science. His failure was due,
broadly speaking, to his own volition.
Decision – High Court observed that Asgarali Pradhania cannot in law, be convicted of an
attempt to cause a miscarriage. He was acquitted.
Reason of Decision – There were following reasons of acquittal –
 What he did was not an ―act done towards the commission of the offence‖ of causing a
miscarriage. It was only preparation. It was not an attempt.
576
- प |

420
 Neither the liquid nor the powder being harmful, they could not have caused a
miscarriage.
 The appellant‘s failure was not due to a factor independent of himself.
Remark – Rape law was not discussed in this case. Otherwise accused had been convicted for
rape. Consent was subject to get marriage.
(9.6.3.2.) Munah Binti Ali v. Public Prosecutor
In Munah Binti Ali v. Public Prosecutor577 Munah Binti Ali was charged under Section 312 r/w
Section 511, Penal Code, (Laws of Malaysia578) of with voluntarily attempting to cause one Chee
Yew Cheng to have miscarriage and in such attempt did insert an instrument into her vagina by
which there was haemorrhage. He was not doing in good faith for saving life.
Issue was whether an accused is liable for an attempt to cause abortion, when the woman
(complainant) was not actually pregnant, as it came to be known later. Accused was convicted
under Section 312 r/w Section 511of the Malaysian Penal Code.
Differences between IPC and Malaysian Penal Code
Section 511 of both countries deals residuary attempt. Total Sections in both laws is Section 511.
There are two basic differences between IPC and Malaysian Penal Code in context of Section
511. These differences are –
Grounds IPC Malaysian Penal Code
Scope It covers only those It covers not only those offences which are
offences which are punishable under MPC, but also any other written
punishable under IPC. law which deals imprisonment and fine. It is
wider.
It is narrower.
Fine Offence punishable only Offence punishable with fine also comes under
with fine does not come Section 511.
under Section 511.
(9.6.3.3.) R. v. Shivpuri
R. v. Shivpuri579 was decided by House of Lords in May 1986. In this case there was matter of
smuggling of prohibited drugs. Accused believed that he was carrying prohibited drugs. When he
was arrested he confessed. In due course the powdered substance in the several packages was
scientifically analysed and found not to be a controlled drug but snuff or some similar harmless
vegetable matter.
577
[1958] 1 MLJ 159.
578
Available at:
https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/61339/117909/F1085941047/MYS61339%202015.pdf (Visited
on March 26, 2022).
579
[1986] Crim. L.R. 536

421
Whether an offence which is impossible to commit amounts to a conviction of an attempt. House

of Lords held that accused had committed offence. Principle laid down in this case is that the
accused is punished for his guilty mind although the act actually committed was innocent.
(9.6.4.) Job Test

Job Test is connected to impossibility. A person on the job may be held guilty. A man trying to
break steel safes with totally inappropriate or inadequate instrument would still be guilty of
attempting to steal, even though it is probably impossible to actually achieve it.
(9.6.4) Social Danger Test

A gives pills to a pregnant woman to procure abortion, but they have no effect because the drug
turns out to be innocuous. A would be guilty of an attempt to cause miscarriage since the act
would cause an alarm to society and would have social repercussions.
(9.7. ) Section 309
There are three provisions about suicide. Section 305580 and Section 306581 deals abetment of
suicide, while Section 309 deals attempt to suicide. Wording of Section 309 is similar to the
wording of Section 511. Both Sections use ‗…does any act towards the commission of such
offence..‖ It means meaning of attempt for the purpose of Section 511 and Section 309 is same.
Lenient punishment for attempt to suicide has been prescribed on the humanitarian grounds.
Section 309 says, ‗Whoever attempts to commit suicide and does any act towards the
commission of such offence, shall be punished with simple imprisonment for a term which may
extend to one year or with fine, or with both‘.
Many farmers either commit suicide or attempt to suicide. In many cases Supreme Court had
differentiated euthanasia from suicide.
With the help of following judgments constitutional validity of Section 309 can be understood
properly –
Courts Years Name of Cases RIGHT TO DIE

HC 1987 Maruti Shri Pati Right to life includes right to die. Section 309 has
Dubal v. State of been declared unconstitutional
Maharashtra
HC 1988 Chenna agadeeswar Right to life does not include right to die. Section
and Anr. v. State of 309 is constitutional.
Andhra Pradesh
SC 1994 P. Rathinam v. UOI Right to life includes right to die. Section 309 has
been declared unconstitutional.
580
Abetment of suicide of child or insane person.
581
Abetment of suicide.

422
SC 1996 Gian Kaur v. State Right to life does not include right to die. Section
of Punjab 309 is constitutional.
EUTHANASIA
SC 2011 Aruna R.Shanbaugh J.Markandey Katju- Passive euthanasia was
v. UOI allowed and for this guidelines were laid down.
SC 09 Common Cause (A (1) Right to die with dignity is a fundamental
March Regd. Society) v. right under Article 21,
2018 Union of India and (2) Passive euthanasia is legally valid and
Another. (3) Living will is legally valid.
Meaning of Living Will- Living will is a written
document that allows a patient to give explicit
(express) instructions in advance about the
medical treatment to be administered when he or
she is terminally ill or no longer able to express
consent.
Hunger Strike
2021 P, Chandrakumar v. Sitting on hunger strike is not a suicide
State attempt, says HC582
(9.7. 1.) Gian Kaur v. State of Punjab
Gian Kaur v. State of Punjab583 was decided by Constitutional Bench of Supreme Court on
March 21, 1996. Judgment was written by Hon‘ble Justice J.S. Verma.
Gian Kaur and her husband Harbans Singh were convicted by the Trial Court under Section 306,
IPC and each sentenced to six years R.I. and fine of Rs. 2,000/-, or, in default, further R.I. for
nine months, for abetting the commission of suicide by Kulwant Kaur. On appeal to the High
Court, the conviction of both has been maintained but the sentence of Gian Kaur alone has been
reduced to R.I. for three years. These appeals by special leave are against their conviction and
sentence under Section 306.
The conviction of the appellants has been assailed, inter alia, on the ground that Section 306 is
unconstitutional. The first argument advanced to challenge the constitutional validity of Section
306 rests on the decision in P. Rathinam v. Union Of India584 by a Bench of two learned Judges
of this Court wherein Section 309 has been held to be unconstitutional as violative of article
21 of' the Constitution. It is urged that right to die being included in Article 21 of the
Constitution as held in P. Rathinam declaring Section 309 to be unconstitutional, any person
582
Mohamed Imranullah S., ‗Sitting on hunger strike is not a suicide attempt, says HC‘ The Hindu, February
19, 2021. Available at: https://www.thehindu.com/news/national/tamil-nadu/sitting-on-hunger-strike-is-not-a-
suicide-attempt-says-hc/article33875368.ece (Visited on March 22, 2022).
583
AIR 1996 SC 946
584
(1994) SCC 394.

423
abeting the commission of suicide by another is merely assisting in the enforcement of the
fundamental right under article 21 and, therefore, section 306 penalising assisted suicide is
equally violative of Article 21.
Decision – Supreme Court held that Section 306 and Section 309 both are constitutional and they
are not violate Article 21. P. Ratthinam Case was overruled by Constitutional Bench.
Reason of decision. There were following reasons of decision -

(1)To give meaning and content to the word ‗life‘ in Article 21, it has been construed as life
with human dignity. Any aspect of life which makes it dignified may be read into it but not that
which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting
in effacing the right itself. The ‗right to die‘, if any, is inherently inconsistent with the ‗right to
life‘ as is ‗death with life‘.
(2) ‗Right to life‘ is a natural right embodied in Article 21 but suicide is an unnatural termination
or extinction of life and, therefore, incompatible and inconsistent with the concept of ‗right to
life‘.
(9.7. 2.) P. Chandrakumar v. State

P. Chandrakumar v. State585 was decided by Madras High Court on February 15, 2021. This
Case is known as ‗Hunger Strike Case‘. In this case two things were discussed. These are – (i)
Section 309, IPC – Limitation Period.586 (ii) Section 468, CrPC - Limitation period for taking
cognizance by Magistrate. The High Court observed that there was expiry of limitation period.
So Court was not authorized to take cognizance.
Facts - P. Chandrakumar sat on a hunger strike for nearly 10 days between August 15 and
August 24, 2013. He was also accused of not cooperating with the local Tahsildar when attempts
were made to provide medical treatment to him when his health condition worsened due to the
protest having been continued for nearly 10 days.
Issue - Will sitting on a hunger strike for days together to press certain demands and refusing to
cooperate with the authorities in the provision of medical treatment amount to a criminal offence
under Section 309 (attempt to commit suicide) of the Indian Penal Code?
Decision – There is following decision -
(1). Section 309, IPC - Hon‘ble Justice N. Anand Venkatesh, the Madras High Court
quashed a case booked against Sri Lankan refugee. He observed, ―Sitting on hunger
strike is not a suicide attempt‖587
(2). Section 468 CrPC. - Section 309 IPC is punishable with a maximum imprisonment of
one year. As per Section 368, cognizance must be taken within one year in such cases.
The F.I.R. was registered in the year 2013 and the Court below has taken cognizance in
585
2021 SCC OnLine Mad 710. Available at: https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/567174
586
Devika Sharma, ‗ Madras HC | Can Court take cognizance of an offence registered under S. 309 IPC after 3
years? Court discusses while expressing ―Hunger strike during a protest is not an offence under S. 309 IPC‘ SCC
Online, February 19, 2021). Available at: https://www.scconline.com/blog/post/2021/02/19/protest/ (Visited on
March 22, 2022).
587
Mohamed Imranullah S., ‗Sitting on hunger strike is not a suicide attempt, says HC‘ The Hindu, February
19, 2021. Available at: https://www.thehindu.com/news/national/tamil-nadu/sitting-on-hunger-strike-is-not-a-
suicide-attempt-says-hc/article33875368.ece (Visited on March 22, 2022).

424
the year 2016 and the same is barred under Section 468 Cr.P.C. The Court below has
taken cognizance after nearly three years without assigning any reasons. Therefore,
taking cognizance of the final report by the Court below is barred by law and stands
vitiated.
Criticism – This judgment can be criticized on the point of Section 309. Neither Section 309
was discussed nor any ratio of previous judgment of high Courts, Supreme Court and and Court
of other Country. This is like a simple statement given by Hon;ble justice N. Anand Venkatesh.
Judgment must be based on reasoning and logic. Pure statement of judges of High Court and
Supreme Court is not good tendency. Their decisions are part of law of land.
Question 1 - ―We may summarize our views about the construction of s. 511, Indian Penal
Code, thus: A person commits the offence of ‗attempt to commit a particular offence‘ when (i)
he intends to commit that particular offence; and (ii) he, having made preparations and with the
intention to commit the offence, does an act towards its commission; such an act need not be
the penultimate act towards the commission of that offence but must be an act during the
course of committing that offence.‖ penultimate act means final act.
In which of the following case Supreme Court observed above ratio for application of section
511 of IPC –
(a) Abhayanand Mishra v. State of Bihar (24 April,1961 S.C. Justice Raghubar Dayal).
(b) Om Prakash v. State of Punjab 1961 (24 April,1961 S.C. Justice Raghubar Dayal).
(c) Sudhir Kumar Mukherjee v. State of West Bengal (1973 Justice A. Alagiriswami)
(d) State of Maharashtra v. Mohammad Yakub (1980, Justice R.S. Sarkaria)
Answer – (a)
Question 2 – Which is the first case in which Doctrine of Locus Paenitentiae (Time for
Repentance) was discussed thoroughly -
(a) Malkiat Singh v. State of Punjab
(b) Asgarali Pradhania v. Emperor
(c) Queen-Empress v. Ramakka
(d) Munah Binti Ali v. Public Prosecutor
Answer – (c)
Question -3 –Preparation to commit murder is
(a) Punishable
(b) Not punishable
(c) Punishable with fine
(d) All the above
Answer – (b)
Question 4 – For the purpose of calculation of life imprisonment, according to section 57
life imprisonment means –

425
(a) 10 Years
(b) 20 Years
(c) 30 years
Answer - B
Question 5 – Match List-I with List-II and give the correct answer by using the code given
below:
List - I List-II
(a) State of Maharastra v. Mohammad Yakub (i) 1968
(b) Sudhir Kumar Mukherjee v. State of West Bengal (ii) 1973
(c) Queen-Empress v. Ramakka (iii) 1980
(d) Malkiat Singh v. State of Punjab (iv) 1884
Code: (a) (b) (c) (d)

(a) (iii) (ii) (iv) (i)
(b) (iii) (ii) (i) (iv)
(c) (ii) (i) (iii) (iv)
(d) (ii) (i) (iii) (iv)
Answer – (a).
Unit 10: Of Offences against Property

[Sections 378 to 402: Theft, Extortion, Robbery & Dacoity]
Contents
(10.1.) Introduction ................................................................................................................ 426
(10.2.) Theft ........................................................................................................................... 427

426
(10.2.1.) Ingredients of theft .................................................................................................. 427

(10.2.2.) Five Explanations ................................................................................................ 433
(10.2.3.) Illustrations .......................................................................................................... 434
(10.3.) Difference between Larceny/ Theft in UK and Theft in India ................................... 436
(10.4) Leading Cases ............................................................................................................. 437
(10.4.1.) Queen-Empress v. Butchi .................................................................................... 437
(10.4.2.) K N Mehra v. State of Rajasthan ......................................................................... 438
(10.4.3.) Pyare Lal Bhargava v. State of Rajasthan ........................................................... 439
(10.4.4.) Avtar Singh v. State of Punjab ............................................................................ 441
(10.4.5.) Sekar v. Arumugham ........................................................................................... 441
(10. 5.) Extortion ................................................................................................................ 442
(10.5.1.) Jadunandan Singh & Another v. Emperor ........................................................... 443
(10.6.) Distinction between Theft & Extortion ...................................................................... 445
(10.7.) Robbery ...................................................................................................................... 446
(10.8.) Dacoity ....................................................................................................................... 450
(10.9.) Difference between Robbery and Dacoity ................................................................. 451
(10.10) Distinction amongst the offences of ‗theft‘, ‗extortion‘ and ‗robbery‘ ..................... 451
(10.1.) Introduction
‗State‘ came into existence for protection of life, liberty and property of persons. It is primary
responsibility of the State is to protect property of State. IPC is a tool to protect property of
persons. Chapter XVII of Indian Penal Code, 1860 deals of offences against property. This
chapter contains Section 378 to Section 462. Right of private defence is also available against
some offences against property. Right of private defence is available only in case of theft,
robbery mischief and criminal trespass (TRMC). This right is available in both types of property
i.e. movable and immovable property. 588 In some cases person may cause death or harm in
exercise of right of private defence.589 Offences may be committed by corporations, companies
588
Indian Penal Code, 1860 (Act 45 of 1860), Section 97, Secondly, IPC
589
Id., Section 103.

427
and firms.590 Immovable property has not been defined in IPC. But movable property has been
defined under Section 22.591
Many times disputes of property become reasons of offences against body.
(10.2.) Theft
Sections 378 to 382, IPC deals theft. Theft has been defined under Section 378, IPC. Punishment
of theft varies on the gravity of the nature of theft. In case of simple theft, maximum punishment
is three years as prescribed in Section 379. Punishment under this Section may be of either
description. Meaning of either description has been provided under Section 60, IPC.592
Maximum punishment for seven years imprisonment has been prescribed under Section 380 593
and Section 381594, IPC. Maximum punishment for ten years imprisonment has been prescribed
under Section 382.595 In some circumstances theft converts into robbery.596 There is right of
private defence in case of theft also.
Theft does not come under category of ‗Strict Liability‘. It is based on ‗Actus non facit reum,
nisi mens sit rea. Dishonest intention denotes mens rea for committing theft. Only movable
property can be subject matter of theft. ‗Snatching‘ has been provided as separate category of
theft under Section 379A by State of Gujarat.
(10.2.1.) Ingredients of theft
Section 378 defines theft. There are three parts of this section i.e. (i) main body, (ii) five
Explanations, and (iii) Illustrations (a) to (p). Section 379 says, ―Whoever, intending to take
dishonestly any movable property out of the possession of any person without that person‘s
consent, moves that property in order to such taking, is said to commit theft‖. It is general law.
Special law will prevail over this law. It is neutral law. Anyone can commit offence of theft
irrespective of age and sex. It is other thing that person may get benefit of ‗General Exceptions‘.
From this definition, it can be said that there are five ingredients of theft. These ingredients are –
590
Anath Bandhu v. Corporation of Calcutta AIR 1952 Cal 759 and Iridium India Telecom Ltd v. Motorola
Incorporated & Ors. Supreme Court (October 20, 2010).
591
Section 22. ―Movable property‖ - The words ―movable property‖ are intended to include corporeal property of
every description, except land and things attached to the earth or permanently fastened to anything which is attached
to the earth.
592
Section 60. Sentence may be (in certain cases of imprisonment) wholly or partly rigorous or simple - In every
case in which an offender is punishable with imprisonment which may be of either description, it shall be competent
to the Court which sentences such offender to direct in the sentence that such imprisonment shall be wholly
rigorous, or that such imprisonment shall be wholly simple, or that any part of such imprisonment shall be rigorous
and the rest simple.
593
Indian Penal Code, 1860 (Act 45 of 1860), Section 380: Theft in dwelling house, etc,
594
Indian Penal Code, 1860 (Act 45 of 1860), Section 381: Theft by clerk or servant of property in possession of
master.
595
Indian Penal Code, 1860 (Act 45 of 1860), Section 382: Theft after preparation made for causing death, hurt or
restraint in order to the committing of the theft.
596
Section 390, Part 1.

428
(1) Dishonest intention, (2) Movable Property, (3) Out of possession, (4) Without consent, and
(5) Moving the property.
Theft
Five
Ingredients
Dishonest Movable Out of Without

Moving
Intention Property possession Consent
(1) Dishonest intention - Dishonest intention denotes the mens rea. According to Section 24
dishonestly, means ‗whoever does anything with the intention of causing wrongful gain to one
person or wrongful loss to another person. There are two ingredients of ‗dishonestly‘ namely; (i)
There must be intention, and (ii) with that intention person had caused either wrongful gain or
wrongful loss.
Dishonestly
[Section 24]
Wrongful gain or wrongful loss

Intention
[Section 23]
Loss Gain
Permanent Temporary Permanent Temporary

[Sec. 378] [Sec. 378] [Sec. 378] [Sec. 378]
Section 23 defines wrongful gain and wrongful loss. ―Wrongful gain‖ is gain by unlawful means
of property to which the person gaining is not legally entitled. It covers accused. Wrongful loss‖
is the loss by unlawful means of property to which the person losing it is legally entitled. It
covers victims. Section 24 uses either wrongful gain or wrongful loss. It means even victim is
not losing anything, but accused is gaining something, it will amount to dishonest if accused has
committed with intention. Without dishonest intention theft cannot be committed. Illustrations
(i) and (p) denote this points.
Illustration (i) say, ―A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop.
A, not owing to the jeweller any debt for which the jeweller might lawfully detain the watch as a
security, enters the shop openly, takes his watch by force out of Z‘s hand, and carries it away.
Here A, though he may have committed criminal trespass and assault, has not committed theft, in
as much as what he did was not done dishonestly‖.
Illustration (p) says, -―A, in good faith, believing property belonging to Z to be A‘s own
property, takes that property out of Z‘s possession. Here, as A does not take dishonestly, he does
not commit theft‖.

429
In K N Mehra v. State of Rajasthan 597 Supreme Court said that the taking out of the Harvard
aircraft by accused for the unauthorized flight was wrongful gain and wrongful loss. It means
there was dishonesty.
Permanent and temporary loss or gain will be covered under dishonestly. In Pyare Lal Bhargava
v. State of Rajasthan598 Supreme Court observed, ―The loss need not be caused by a permanent
deprivation of property but may be caused even by temporary dispossession, though the person
taking it intended to restore it sooner or later. A temporary period of deprivation or dispossession
of the property of another causes loss to the other‖.
Illustrations (b)599 and (l)600 enumerate two situations by which it clears that even temporary
removal of immovable property will amount to theft.
(2) Only movable property - Subject matter of theft is only movable property. Theft of
immovable property is not possible under Section 378, IPC. Movable property has been defined
under Section 22. This Section says, ―The words ―movable property‖ are intended to include
corporeal property of every description, except land and things attached to the earth or
permanently fastened to anything which is attached to the earth.‖ Animals are also movable
property for the purpose of theft.601 There is separate provision for punishment in Tripura for
snatching,602 vehicle lifting603 and Cattle Lifting.604 Aircraft605 and documents606 are also
movable property.
Explanation 1 also makes clear that theft of only movable property is possible. Theft of
immovable property is not possible. This explanation also says that immovable property may
convert into movable property. Explanation 1 says, ―A thing so long as it is attached to the earth,
not being movable property, is not the subject of theft; but it becomes capable of being the
subject of theft as soon as it is severed from the earth‖.
In Avtar Singh v. State of Punjab607 Supreme Court observed that electricity is not movable
property. So it is not subject matter of theft under Section 378, IPC. Dishonest abstraction of
electricity is an offence under Electricity Act, 1910.
597
Date of Judgment: February 11, 1957.AIR 1957 SC 369
598
599
Temporary removal of a dog which might ultimately be returned to the owner is sufficient and matter will come
under dishonesty.
600
Illustration (l) Temporary Taking - A takes an article belonging to Z out of Z‘s possession, without Z‘s consent,
with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes
dishonestly; A has therefore committed theft.
601
Section 378, Illustration (b).
602
Section 382A, IPC.
603
Section 382C, IPC.
604
Section 382E, IPC.
605
K N Mehra v. State of Rajasthan, AIR 1957 SC 369
606
Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094.
607
AIR 1965 SC 666. Date of Judgment: August 24, 1964. Available at:

430
(3) Out of the possession – Section 378 had been enacted to protect possession rather than
ownership. Even owner may be liable for theft of his own property. Section 378 covers both
types of possession i.e. De facto Possession and De Jure Possession. De jure possession will
prevail over de facto possession.608 For example A the master of house gives a dinner party; the
plate and other things on the table are in his de jure possession though from time to time they are
in the de facto possession of his guests or servants.
Illustrations (d) to (g) and illustration (o) deals de facto and de jure possession. Possession may
be of man, women, company, firm and other legal personality. Section 11609 defines person.
Possession
[Illustrations (d) to (g) & (o)
De Jure Possession
[De Jure will prevail De Facto Possession
over de facto]
Section 27 says ―When property is in the possession of a person‘s wife, clerk or servant, on
account of that person, it is in that person‘s possession within the meaning of this Code‖.
Explanation of this Section further provides that A person employed temporarily or on a
particular occasion in the capacity of a clerk or servant, is a clerk or servant within the meaning
of this section.
Section 27 is applicable only in two conditions – (i) There must be wife, clerk or servant, and (ii)
They are holding property given by husband and employer as the case may be. For example
‗Stridhan‘ will not amount to property of husband. If wife is working and she is earning money,
that money will not come under section 27, IPC. Suppose Rekha is earning money one lakh per
month. She gave one lakh to her paramour taking prior permission of her husband. Neither she
nor her paramour will be liable for theft.
She or her paramour will be liable only when her husband had given 10, 000 rs for daily
expenditure of home. But she without consent of her husband, handed over that property to her
paramour. Paramour was knowing this fact. Both will be liable for fact. It becomes clear from
illustration (o) and Butchi Case.
Illustration (o) - A is the paramour of Z‘s wife. She gives a valuable property, which A knows to
belong to her husband Z, and to be such property as she has no authority from Z to give. If A
takes the property dishonestly, he commits theft.
In Queen-Empress v. Butchi610 a wife during her husband‘s absence removed his property and
handed over her paramour. Madras High Court convicted both of them for theft. Justice
608
Section 378, Illustration (d).
609
Section 11: The word ―person‖ includes any Company or Association or body of persons, whether incorporated
or not.
610
(1894) ILR 17 Mad 401. Date of Judgment: May 05, 1993. Available at: https://indiankanoon.org/doc/592730/

431
M. Best Ayyar observed, ―There is no presumption of law that the wife and husband constitute
one person in India for the purposes of criminal law. Theft is an offence against property, and
where there is no community of property611, each may commit theft in regard to the property of
the other. If the wife, removing the husband's property from his house, does so with dishonest
intention, she is guilty of theft…‖. This case must be read in the light of Section 27, IPC. From
this judgment it becomes very clear that husband may also be liable for theft of property of wife.
Section 378, illustration (d) read with section 27 decide liability of servant. Illustration (d)
says, that ‗A‘, being Z‘s servant, and entrusted by Z with the care of Z‘s plate, dishonestly runs
away with the plate, without Z‘s consent. A has committed theft. In this illustration De facto
possession is in the hands of A (Servant). De Jure possession is in the hand of Z (Owner). In
context of Section 27, it can also be said that plate was in possession of employer.
According to illustration (f) says that even de jure possession is sufficient. There is no need of de
facto possession in every circumstance. Illustration (f) says ‗A finds a ring belonging to Z on a
table in the house which Z occupies. Here the ring is in Z‘s possession, and if A dishonestly
removes it, A commits theft‘.
Section 378 is based on ―No possession, No theft‖. If property is not in possession, offence of
theft is not possible. Illustration (e) of Section 378 say, ‗ Z, going on a journey, entrusts his plate
to A, the keeper of the warehouse, till Z shall return. A carries the plate to a goldsmith and sells
it. Here the plate was not in Z‘s possession. It could not therefore be taken out of Z‘s possession,
and A has not committed theft, though he may have committed criminal breach of trust.
Illustration (g) says that without possession, there is no theft. A finds a ring lying on the
highroad, not in the possession of any person. A by taking it, commits no theft, though he may
commit criminal misappropriation of property.
Theft of own
property
Illustration Illustration
(j) (k)
There are two illustrations i.e. (j) and (k) say that theft of own property is possible. Reason of
this is that possession is in the hand of other person.
Illustration (j) - If A owes money to Z for repairing the watch, and if Z retains the watch
lawfully as a security for the debt, and A takes the watch out of Z‘s possession, with the intention
of depriving Z of the property as a security for his debt, he commits theft, in as much as he takes
it dishonestly.
Illustration (k) Theft of own property - Again, if A, having pawned his watch to Z, takes it out of
Z‘s possession without Z‘s consent, not having paid what he borrowed on the watch, he commits
theft, though the watch is his own property in as much as he takes it dishonestly.
611
Community of property means joint property.

432
Problem612 - To enter inside the temple, A had to deposit his shoes with the guard at the gate of
the temple who was issuing a token against the shoes deposited by the visitors to the temple. A
also deposited his shoes with the guard and took a token. On his return, A found a long queue of
devotees to get back their shoes against the token. Feeling tired, A did not wait for his turn, and
picked his shoes from the rack without depositing the token. A who is being prosecuted for the
offence of theft takes the plea that it is his own property, which he is entitled to take. Discuss the
success of the defense of A.
Solution - A has committed theft. For theft possession is deciding factor rather than ownership. If
owner takes his property from the possession of another person dishonestly without his consent,
he has committed the theft. Illustration (j) and (k) make this things clear.
(4) Without consent – Consent means free consent. Consent obtained by force or misconception
of fact will not amount free consent. Section 90 and Explanation 5 of Section 378 deal consent.
Section 90 deals free consent while Explanation 5 of Section 378 mode of expression of consent.
According to Section 90, if the consent has been given by person of unsound mind or intoxicate
or person below the age of 12 years will not amount to free consent unless they were able to
understand nature and consequences.613
Explanation 5 says that consent may be express or implied. It may be given by person who is in
possession of property or on his behalf other authorised person may give consent. Illustrations
(m) and (n) deal implied consent. Illustration (o) deals person was not authorised either expressly
or impliedly.
Consent
Definition Mode of expression

[Section 90] [Explanation 5, Sec. 378]
Illustration (m) Implied Consent - A, being on friendly terms with Z, goes into Z‘s library in Z‘s
absence, and takes away a book without Z‘s express consent for the purpose merely of reading it,
and with the intention of returning it. Here, it is probable that A may have conceived that he had
Z‘s implied consent to use Z‘s book. If this was A‘s impression, A has not committed theft.
612
DU LL.B. Question Paper of 2020 [OBE]
613
IPC, Section 90. Consent known to be given under fear or misconception.- A consent is not such a consent as is
intended by any section of this Code, if the consent is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception; or
Consent of insane person. - if the consent is given by a person who, from unsoundness of mind, or intoxication, is
unable to understand the nature and consequence of that to which he gives his consent; or
Consent of child.- unless the contrary appears from the context, if the consent is given by a person who is under
twelve years of age.

433
Illustration (n) Implied Consent - A asks charity from Z‘s wife. She gives A money, food and
clothes, which A knows to belong to Z her husband. Here it is probable that A may conceive that
Z‘s wife is authorised to give away alms. If this was A‘s impression, A has not committed theft.
If a person knows that there is neither express nor implied consent, he will be liable for theft.
Illustration (o) clarifies this points which says, ―A is the paramour of Z‘s wife. She gives a
valuable property, which A knows to belong to her husband Z, and to be such property as she has
no authority from Z to give. If A takes the property dishonestly, he commits theft‖.
(5) Moving – Explanations 2 to 4 deal moving and taking property. Accused must move the
property for the purpose of taking with dishonest intention. Explanation 4 and illustration (c)
extends the meaning of movement. It says that if anyone makes movement an animal and by
movement of the animal, there is movement in other property. He cannot take defence that he
had moved only animal rather than property. Explanation 4 say, ―A person, who by any means
causes an animal to move, is said to move that animal, and to move everything which, in
consequence of the motion so caused, is moved by that animal‖. Illustration (c) says, ―A meets a
bullock carrying a box of treasure. He drives the bullock in a certain direction, in order that he
may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft
of the treasure‖.
Illustration (h) says even small and first movement is sufficient. Illustration (h) says that ‗as soon
as‘ there is movement with other ingredients, it will amount to theft. Illustration (h) says, ―A sees
a ring belonging to Z lying on a table in Z‘s house. Not venturing to misappropriate the ring
immediately for fear of search and detection, A hides the ring in a place where it is highly
improbable that it will ever be found by Z, with the intention of taking the ring from the hiding
place and selling it when the loss is forgotten. Here A, at the time of first moving the ring,
commits theft‖.
Explanation 2 says that severance is itself moving. Explanation 2 says a moving effected by the
same act which affects the severance may be a theft. For example a person cut branch of sandal
tree. But he was unable to carry due to forest officer. He cannot take defence that he was unable
to carry. Moving of property completed as soon as he severed branch with tree.
(10.2.2.) Five Explanations

There are five explanations of Section 378 which is the following -
Explanation 1 – ―A thing so long as it is attached to the earth, not being movable property, is not
the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed
from the earth‖.
According to Section 22, IPC, anything attached to the earth will not be movable property. To
explain this point Explanation 1 has been inserted. First part of this explanation accepts section
22. Second part of the Explanation says that when immovable property can convert into movable
property. It says that as soon as anything fastened to the earth is severed from earth, the moment
immovable property convert movable.

434
Illustration (a) is based on this Explanation 1. According to this illustration ‗A‘ cuts down a tree
on Z‘s ground, with the intention of dishonestly taking the tree out of Z‘s possession without Z‘s
consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft.
Explanation 2.- ―A moving effected by the same act which affects the severance may be a
theft‖.
This explanation says that as soon as property is severed, severance is itself come under category
of moving the property. For example a person cut branch of sandal tree. But he was unable to
carry due to forest officer. He cannot take defence that he was unable to carry. Moving of
property completed as soon as he severed branch with tree.
Explanation 3.-A person is said to cause a thing to move by removing an obstacle which
prevented it from moving or by separating it from any other thing, as well as by actually moving
it.
Illustration (h) – A sees a ring belonging to Z lying on a table in Z‘s house. Not venturing to
misappropriate the ring immediately for fear of search and detection, A hides the ring in a place
where it is highly improbable that it will ever be found by Z, with the intention of taking the ring
from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving
the ring, commits theft.
Explanation 4.-A person, who by any means causes an animal to move, is said to move that
animal, and to move everything which, in consequence of the motion so caused, is moved by that
animal.
Illustration (c) - A meets a bullock carrying a box of treasure. He drives the bullock in a certain
direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to
move, A has committed theft of the treasure.
Explanation 5.—The consent mentioned in the definition may be express or implied, and may be
given either by the person in possession, or by any person having for that purpose authority
either express or implied.
Illustrations (m), (n) and (o) deal consent. Illustration (o) also deals possession.
(10.2.3.) Illustrations
Illustrations (a) to (p) deal different aspect of theft. These illustrations are following -
(1). Illustration (a) – (Explanation 1 and taking) - A cuts down a tree on Z‘s ground, with the
intention of dishonestly taking the tree out of Z‘s possession without Z‘s consent. Here, as
soon as A has severed the tree in order to such taking, he has committed theft.
(2). Illustration (b) (Theft of animal) -A puts a bait for dogs in his pocket, and thus induces Z‘s
dog to follow it. Here, if A‘s intention be dishonestly to take the dog out of Z‘s possession
without Z‘s consent. A has committed theft as soon as Z‘s dog has begun to follow A. (Pet
animals are also subject matter of theft).
Moving of property even at initial stage is sufficient. There is no need that accused had also
got possession. Removal of property out of passion from accused is sufficient. Even

435
permanent removal of property is not necessary. Temporary removal is sufficient. Even that
dog return to Z‘s possession, accused will be liable. In Pyare Lal Bhargava v. State of
Rajasthan614 Supreme Court on the basis of this illustration said that temporary removal of
property is sufficient.
This illustration also denotes that for taking, there is no need of the force. Taking may also be
through allurement.
(3). Illustration (c) – (Animal) - A meets a bullock carrying a box of treasure. He drives the
bullock in a certain direction, in order that he may dishonestly take the treasure. As soon as
the bullock begins to move, A has committed theft of the treasure.
(4). Illustration (d) – (Possession) - A, being Z‘s servant, and entrusted by Z with the care of Z‘s
plate, dishonestly runs away with the plate, without Z‘s consent. A has committed theft. (De
facto possession – A (Servant), De Jure possession – Z (Owner).
(5). Illustration (e) (Possession) - Z, going on a journey, entrusts his plate to A, the keeper of the
warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate
was not in Z‘s possession. It could not therefore be taken out of Z‘s possession, and A has
not committed theft, though he may have committed criminal breach of trust.
(6). Illustration (f) – (Possession) - A finds a ring belonging to Z on a table in the house which Z
occupies. Here the ring is in Z‘s possession, and if A dishonestly removes it, A commits
theft.
(7). Illustration (g) – (Without possession, no theft) - A finds a ring lying on the highroad, not in
the possession of any person. A by taking it, commits no theft, though he may commit
criminal misappropriation of property.
(8). Illustration (h) – (Taking)- A sees a ring belonging to Z lying on a table in Z‘s house. Not
venturing to misappropriate the ring immediately for fear of search and detection, A hides the
ring in a place where it is highly improbable that it will ever be found by Z, with the intention
of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at
the time of first moving the ring, commits theft. Problem615- ‗X‘ finds a diamond ring
belonging to ‗Y‘ on a table in latter‘s house and X puts the same under the carpet there with
the intention of taking it later. The ring still lies there in the house of ‗Y‘ undetected. Better
side of man prevails over ‗X‘ and he decides not to take out the ring. Has ‗X‘ committed any
offence? Solution- There are five essential ingredients of theft. As soon as ‗X‘ moves the ring
which is movable property dishonestly, he committed theft. This problem is based on Section
378, Illustration (h).
(9). Illustration (i) Without dishonest - A delivers his watch to Z, a jeweller, to be regulated. Z
carries it to his shop. A, not owing to the jeweller any debt for which the jeweller might
lawfully detain the watch as a security, enters the shop openly, takes his watch by force out
of Z‘s hand, and carries it away. Here A, though he may have committed criminal trespass
and assault, has not committed theft, in as much as what he did was not done dishonestly.
614
615
D.U. LL.B. 2018, Question (2) (a).

436
(10). Illustration (j) Theft of own property -If A owes money to Z for repairing the watch, and if Z
retains the watch lawfully as a security for the debt, and A takes the watch out of Z‘s
possession, with the intention of depriving Z of the property as a security for his debt, he
commits theft, in as much as he takes it dishonestly.
(11). Illustration (k) Theft of own property - Again, if A, having pawned his watch to Z, takes it
out of Z‘s possession without Z‘s consent, not having paid what he borrowed on the watch,
he commits theft, though the watch is his own property in as much as he takes it dishonestly.
Illustration (l) Temporary Taking - A takes an article belonging to Z out of Z‘s possession,
without Z‘s consent, with the intention of keeping it until he obtains money from Z as a
reward for its restoration. Here A takes dishonestly; A has therefore committed theft. In
Pyare Lal Bhargava v. State of Rajasthan616 Supreme Court on the basis of this illustration
said that temporary removal of property is sufficient.
(12). Illustration (m) Implied Consent - A, being on friendly terms with Z, goes into Z‘s library in
Z‘s absence, and takes away a book without Z‘s express consent for the purpose merely of
reading it, and with the intention of returning it. Here, it is probable that A may have
conceived that he had Z‘s implied consent to use Z‘s book. If this was A‘s impression, A has
not committed theft.
(13). Illustration (n) Implied Consent - A asks charity from Z‘s wife. She gives A money, food and
clothes, which A knows to belong to Z her husband. Here it is probable that A may conceive
that Z‘s wife is authorised to give away alms. If this was A‘s impression, A has not
committed theft.
(14). Illustration (o) Section 27 Wife etc, possession and consent - A is the paramour of Z‘s wife.
She gives a valuable property, which A knows to belong to her husband Z, and to be such
property as she has no authority from Z to give. If A takes the property dishonestly, he
commits theft.
(15). Illustration (p) No Dishonest Intention- A, in good faith, believing property belonging to Z to
be A‘s own property, takes that property out of Z‘s possession. Here, as A does not take
dishonestly, he does not commit theft.
(10.3.) Difference between Larceny/ Theft in UK and Theft in India
Larceny Act, 1916 was enacted by UK Parliament.617 Larceny was defined under Section 1 of
the Larceny Act, 1916. Section 1 (1) of this Act defines ‗Larceny‘ and says, ―A person steals
who, without the consent of the owner, fraudulently and without a claim of right made in good
faith, takes and carries away anything capable of being stolen with intent, at the time of such
taking, permanently to deprive the owner thereof:
616
617
Larceny Act, 1916 , Available at: https://www.legislation.gov.uk/ukpga/1916/50/pdfs/ukpga_19160050_en.pdf

437
Provided that a person may be guilty of stealing any such thing notwithstanding that he has
lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the
same to his own use or the use of any person other than the owner‖.
Theft Act, 1968 was enacted by UK Parliament.618 Larceny Act, 1916 was repealed by Theft
Act, 1968. Section 1 of the theft Act defines ‗theft‘. According to this Section, ―A person is
guilty of theft if he dishonestly appropriates property belonging to another with the intention of
permanently depriving the other of it; and ―thief‖ and ―steal‖ shall be construed accordingly‖.
From the above discussion it becomes clear that for committing offence of theft (earlier larceny)
in UK there must be permanent loss. In India for committing theft either permanent or temporary
loss is sufficient. In Pyare Lal Bhargava v. State of Rajasthan619 Supreme Court on the basis of
illustrations (b) and (l) said that temporary removal of property is also sufficient. With the help
of following Table, differences between larceny /theft in UK and theft in India can be understood
properly.
Larceny/ Theft in UK Theft in India.
Only permanent gain or loss is necessary. Either temporary or permanent gain or loss
Temporary loss or gain is not sufficient. is sufficient.
(10.4) Leading Cases
There are following leading cases on this points –

(1). Queen-Empress v. Butchi (1894)
(2). K N Mehra v. State of Rajasthan (1957)
(3). Pyare Lal Bhargava v. State of Rajasthan (1962)
(4). Avtar Singh v. State of Punjab (1964)
(5). Sekar v. Arumugham (1999)
(10.4.1.) Queen-Empress v. Butchi

In Queen-Empress v. Butchi620 a wife during her husband‘s absence removed his property and
handed over her paramour. Madras High Court convicted both of them for theft. Justice
M. Best Ayyar observed, ―There is no presumption of law that the wife and husband constitute
one person in India for the purposes of criminal law. Theft is an offence against property, and
where there is no community of property621, each may commit theft in regard to the property of
the other. If the wife, removing the husband's property from his house, does so with dishonest
618
Theft Act, 1968. Available at: https://www.legislation.gov.uk/ukpga/1916/50/pdfs/ukpga_19160050_en.pdf
619
620
(1894) ILR 17 Mad 401. Date of Judgment: May 05, 1993. Available at: https://indiankanoon.org/doc/592730/
621
Community of property means joint property.

438
intention, she is guilty of theft…‖. This case must be read in the light of Section 27, IPC. From
this judgment it becomes very clear that husband may also be liable for theft of property of wife.
(10.4.2.) K N Mehra v. State of Rajasthan
K N Mehra v. State of Rajasthan 622 was decided by Full Bench of Supreme Court on February
11, 1957. Judgment was written by Hon‘ble Justice B. Jagannadhadas. This case is known as
‗Aircraft Theft Case‘ from Jodhpur to Pakistan. K.N. Mehra was liable for theft.
Fact - Both Mehra and Phillips were cadets on training in the Indian Air Force Academy,
Jodhpur. The prosecution is with reference to an incident which is rather extraordinary being for
alleged theft of an aircraft, which, according to the evidence of the Commanding Officer, has
never so far occurred. The alleged theft was on May 14, 1952. Phillips was discharged from the
Academy just the previous day, i.e., May 13, 1952, on grounds of misconduct. Mehra was a
cadet receiving training as a Navigator. The duty of a Navigator is only to guide a pilot with the
help of instruments and maps. It is not clear from the evidence whether Phillips also had been
receiving training as a Navigator. It is in evidence, however, that he knew flying. On May 14,
1952, Phillips was due to leave Jodhpur by train in view of his discharge. Mehra was due for
flight in a Dakota as part of his training along with one Om Prakash, a flying cadet. It is in
evidence that he had information about it. The authorised time to take off for the flight was
between 6 a.m. to 6-30 a.m. The cadets under training have generally either local flights which
mean flying area of about 20 miles from the aerodrome or they may have cross-country exercises
and have flight in the country through the route for which they are specifically authorised. On
that morning admittedly Mehra and Phillips took off, not a Dakota, but a Harvard H.T. 822. This
was done before the prescribed time, i.e., at about 5 a.m. without authorisation and without
observing any of the formalities, which are prerequisites for an aircraft-flight. It is also admitted
that sometime in the forenoon the same day they landed at a place in Pakistan about 100 miles
away from the Indo-Pakistan border. It is in the evidence of one J. C. Kapoor who was the
Military Adviser to the Indian High Commissioner in Pakistan at Karachi, that Mehra and
Phillips contacted him in person on the morning of May 16, 1952, at about 7 a.m. and informed
him that they had lost their way and force-landed in a field, and that they left the plane there.
They requested for his help to go back to Delhi. Thereupon Kapoor arranged for both of them
being sent back to Delhi in an Indian National Airways plane and also arranged for the Harvard
aircraft being sent away to Jodhpur. While they were thus on their return to Delhi on May 17,
1952, the plane was stopped at Jodhpur and they were both arrested.
(1) Taking- Flying of aircraft was taking.

(2) Movable Property - Aircraft was movable property.
622
AIR 1957 SC 369. Date of Judgment: February 11, 1957.
Available at: https://main.sci.gov.in/judgment/judis/674.pdf (Visited on March 29, 2022)

439
(3) Dishonestly (Wrongful gain or wrongful loss) -In the present case there can be no
reasonable doubt that the taking out of the Harvard aircraft by the appellant for the
unauthorised flight has in fact given the appellant the temporary use of the aircraft for his
own purpose and has temporarily deprived the owner of the aircraft, viz., the
Government, of its legitimate use for its purposes, i.e., the use of this Harvard aircraft for
the Indian Air Force Squadron that day. Such use being unauthorised and against all the
regulations of aircraft-flying was clearly a gain or loss by unlawful means. Further, the
unlawful aspect is emphasised by the fact that it was for flight to a place in Pakistan.
(4) Out of possession – It was out of the possession of Government of India (Indian Air
Force Academy).
(5) Without Consent – Both were not authorised for flying Harvard T-22.
Decision – Conviction was upheld. K N Mehra was punished under section 379.
(10.4.3.) Pyare Lal Bhargava v. State of Rajasthan

Pyare Lal Bhargava v. State of Rajasthan623 was decided by Supreme Court on October
22, 1962. Judgment was delivered by Hon‘ble Justice Subba Rao on October 22, 1962. In
this Case Supreme Court held that that temporary dispossession with other ingredients
will amount to theft. In this case Sections 378 Illustration (b), Section 378 Illustration (l)
of IPC and Sections 3 & 24, Indian Evidence Act was involved. In this case ‗Retracted
Confession‘ was involved which I will not discuss here.
Facts
Ram Kumar Ram obtained permission from the Alwar Government to supply electricity in
November 24, 1945. Ram Kumar Ram was a friend of Pyarelal Bhargava624, who was a
Superintendent in the Chief Engineers Office, Alwar. At the instance of Ram Kumar Ram,
Pyarelal Bhargava got the file Ex. PA/ 1 from the Secretariat and took the file to his house and
made it available to Ram Kumar Ram and some documents were substituted. It was again put in
the ‗Office‘.
Supreme Court – High Court convicted Pyare Lal. Pyare Lal filed appeal before Supreme
Court. Supreme Court upheld the conviction of Pyare Lal for theft.
Issues – There were following issues before Supreme Court -
1. Whether temporary deprivation of document amount to theft?

Answer – Yes.
2. Whether unlawfully taking the file from the department amount to dishonestly?
Answer – Yes.
Observation of Supreme Court
623
624
Somewhere name of appellant has been written as Pyare Lal and somewhere Pyarelal has been written.

440
Supreme Court observed that it is not necessary that the taking should be of a permanent
character, or that the accused should have derived any profit. A temporary removal of file from
the office of a Chief Engineer and making it available to a private person for a day or two
amounts to the offence of theft.
Arguments of Appellant and decision of Supreme Court can be understood with the help of
following Table -
Grounds Arguments of Appellant Decision of Court
Possession The Superintendent (Pyare Lal) The file was in the Secretariat of the
was in possession of the file and Department concerned, which was in charge
therefore he could not have of the Chief Engineer. The appellant was
taken the file from himself only one of the officers working in that
department and it cannot, therefore, be said
that he was in legal possession of the file.
There was no intention to take it To commit theft one need not take movable
Temporary dishonestly as he had taken it property permanently out of the possession
only for the purpose of showing of another with the intention not to return it
the documents to Ram Kumar to him. It would satisfy the definition if he
Ram and returned it the next day took any movable property out of the
to the office and therefore he possession of another person though he
had not taken the said file out of intended to return it later on. Illustrations
the possession of any person. 378(b) and (l) support this reasoning.
Dishonestly He did not intend to take it The appellant unauthorisedly took the file
(Wrongful dishonestly, as he did not from the office and handed it over to Ram
gain or receive any wrongful gain or Kumar Ram. He had, therefore, unlawfully
wrongful cause any wrongful loss to any taken the file from the department, and for a
loss other person. short time he deprived the Engineering
Department of the possession of the said
file. The loss need not be caused by a
permanent deprivation of property but may
be caused even by temporary dispossession,
though the person taking it intended to
restore it sooner or later. A temporary period
of deprivation or dispossession of the
property of another causes loss to the other.
Supreme Court observed that Illustration (b) denotes that Temporary removal of a dog which
might ultimately be returned to the owner indicate that temporary loss is sufficient.. Illustration
(l) Illustration (b)denotes that the temporary taking of an article with a view to return it after
receiving some reward constitutes theft, indicating thereby that temporary deprivation of another
person of his property causes wrongful loss to him.

441
Decision – Pyare Lal Bhargava was liable for theft.

Remarks – Monetary loss is not necessary.
(10.4.4.) Avtar Singh v. State of Punjab

In Avtar Singh v. State of Punjab625 Supreme Court observed that electricity is not movable
property. So it is not subject matter of theft under Section 378, IPC. Dishonest abstraction of
electricity is an offence under Electricity Act, 1910.
(10.4.5.) Sekar v. Arumugham

Sekar v. Arumugham626 was decided by Single Bench of Madras High Court on August 10, 1999.
Judgment was written by Hon‘ble Justice A. Ramamurthi. In this case it was alleged that bank of
employee had committed offence of theft. Some provisions of CrPC were also involved. The
High Court held that bank employee had not committed any offence.
Facts -
 Taking Loan - Sekar had taken loan for a sum of Rs. 4 lakhs during November 1994 from
the Bank of Madura, cantonment Branch, Trichy towards purchase of Ashok Leyland
Lorry.
 Execution of Hypothecation - The petitioner executed a deed of hypothecation dated 9-
11-1994 in favour of the bank and in terms of which had hypothecated the lorry in
question as a security towards the due repayment of the amount borrowed by him. The
loan was repayable in 60 monthly instalments.
 Deed of Hypothecation –
 In terms of Clause 14(3) of the deed of hypothecation, in the event of any default
in the payment of the loan instalments, the bank had the right to seize the said
lorry.
 As per Clause 15(b) of the deed of hypothecation, the bank upon seizure of the
vehicle was vested with the right to sell the same and appropriate the sale
proceeds towards the outstanding due and payable to it.
 Default in payment of instalment - He had defaulted in payment of monthly instalments.
 Seizure of Lorry - On 30-7-1998 the bank seized the lorry due to non-payment of
instalment.
 Private complaint for theft - The private complaint has been filed against the respondent
for alleged offence under Section 379, IPC only and the learned Chief Judicial
Magistrate, Trichy had directed the learned Magistrate to dispose of the case. It was
dismissed under section 203, CrPC.
Decision of Lower Court - The learned Magistrate on recording the evidence of the prosecution
witnesses and on conducting an enquiry under Section 202 of Criminal Procedure Code inter alia
625
AIR 1965 SC 666. Date of Judgment: August 24, 1964. Available at:
626
(2000) Cr. L.J 1952 (Mad.)

442
holding that for the seizure of the said lorry by the bank for the default in payment of
instalments, the bank or its officers cannot be prosecuted for the offence of theft in the absence of
mens rea.
High Court – Sekar reached to High Court.
Issue – There were following issues in this case -
 Is the Bank liable for theft?

Answer – Bank had not committed offence of theft. Lorry was ceased according to terms
and conditions of the hypothecation.
Arguments of Respondent -
 Learned counsel for the respondent contended that the petitioner hypothecated the lorry
to the bank as a security and Clause 14(e) of the deed of hypothecation clearly indicates
that in the event of any default in the payment of instalments, the bank had the right to
seize the lorry.
 Moreover, according to Clause 15(b) of the said deed of hypothecation, the bank upon
seizure of the vehicle was vested with the right to sell the same and appropriate the sale
proceeds towards the outstanding due and payable to it. It is therefore clear from Clauses
14(e) and 15(b) of the deed that the respondent is entitled to seize the lorry in case of
default.
Decision
 The bank was continues to be the owner of the lorry.
 When the respondent had been empowered to seize the lorry under Clause 14(e), it
cannot be said that the respondent had committed theft of the lorry when the petitioner
had committed default in payment of installments, the bank has seized the lorry.
 There was no theft.
Remark – This is not good judgment on the point of theft.
 In this cases Section 378 was not discussed properly.

 In this case, at least possession should have been discussed properly.
(10. 5.) Extortion
Section 383. Extortion.—Whoever intentionally puts any person in fear of any injury to that
person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any
person any property, or valuable security or anything signed or sealed which may be converted
into a valuable security, commits ―extortion‖.
There are following essential ingredients of Section 383, IPC –
(1). Intentional putting any person under fear

443
(2). Fear of injury

(3). Fear of injury to him or other
(4). Dishonest Intention
(5). Inducing to deliver property
(6). Any property or valuable security.
With the help of following table, Section 383 can be understood –
Extortion
Intentional Dishonest Inducing to

Fear of Injury Any property
putting any Fear of injury Intention deliver
person under to him or other property
fear
Injury [Section 4 Category [
44] Movable.,
Injury to Injury to other To deliver Immovable,
him[Illustration [ Illustration [Jadunandan Valueable
(a) (c) & (d) ] (b)] Singh v. Security or
Body, Mind, Emperor] anything
Property and converted into
Reputationn valuable
security
Illustrations
(a) A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus
induces Z to give him money. A has committed extortion.
(b) A threatens Z that he will keep Z's child in wrongful confinement, unless Z will sign and
deliver to A a promissory note binding Z to pay certain monies to A. Z signs and delivers the
note. A has committed extortion.
(c) A threatens to send club-men to plough up Z's field unless Z will sign and deliver to B a
bond binding Z under a penalty to deliver certain produce to B, and thereby induces Z to sign
and deliver the bond. A has committed extortion.
(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or affix his seal to a
blank paper and deliver it to A. Z signs and delivers the paper to A. Here, as the paper so signed
may be converted into a valuable security. A has committed extortion.
Sections 384 to 389 deal punishment of extortion according to gravity and nature of extortion.
(10.5.1.) Jadunandan Singh & Another v. Emperor

Jadunandan Singh & Another v. Emperor627 was decided by Patna High Court on September 18,
1940. There was forcefully taking thumb impression.In this case difference between ‗taking‘ and
627
AIR 1941 Pat. 129

444
‗delivery‘ was discussed. Accused was neither convicted for extortion nor theft. He was
convicted only under Section 352, IPC.
Facts –
(1) Narain Dusadh and Sheonadan Singh were returning after the inspection of their fields.
They were landlord.
(2) The two petitioners and others assaulted them.
(3) The petitioner Alakh gave bhala blow to Narain on the right leg, and then other people
assaulted him with lathis.
(4) Jadunandan and others then assaulted Sheonandan.
(5) Jadunandan after this forcibly TOOK the thumb impressions of Narain on one piece of
blank paper, and of Sheonandan on three blank papers.
Decision of Magistrate: Four persons were convicted -
1. Conviction of Alakh under Section 324.

2. Conviction of Jadunandan under Section 384 and Section 323.
3. Eaghu Kahar and Chander Singh were convicted under Section 323.
Additional Session Judge: Additional Session Judge, Gaya rejected appeal.

Revision Application to High Court:
 Revision application of Eaghu Kahar and Chander Singh were rejected.
 Revision application of Alakh was accepted only on limited grounds i.e. question of
sentence.
 Revision application of Jadunandan was accepted.
Issue –
1. Whether Jadunandan had committed offence of extortion?
Answer- No.
2. Whether Jadunandan had committed offence of theft?
Answer- No.
3. Whether Jadunandan had committed any offence?
Answer- Yes. Section 352.
Ingredients of extortion - It is clear from the definition of extortion that the prosecution to
prove that the victims Narain and Sheonandan were put in fear of injury to themselves or to
others, and further, were thereby dishonestly induced to deliver paper containing their thumb
impressions.
The prosecution story in the present case goes on further than that thumb impressions were
―forcibly taken‖ from them. The details of the forcible taking were apparently not put in

445
evidence. The trial Court speaks of the wrists of the victims being caught and of their thumb
impressions being then ‗taken.‘
Decision of High Court - Cases frequently occur which turn on the difference between the
giving and the taking of thumb impressions.
Theft Extortion
..Taking…out of possession.. Delivery…
 No delivery, no extortion - In this case there was no delivery. So it was not extortion.
 Without out of possession, No theft - In this case taking was involved. But this taking of
documents was not out of possession of victim. So it was not theft.
 Punishment for assault or criminal force- In this case the use of criminal force or an
assault punishable under Section 352, IPC was involved. So Jadunandan was punished
under section 352 of IPC.
 No interference on the point of Section 323 - Jadunandan Singh was also convicted
under Section 323, but no separate sentence was passed upon him under that section by
trial court. So, High Court did not interfere with that part of the order of the lower Court.
(10.6.) Distinction between Theft & Extortion
There are many similarities in theft and extortion. There are –
 Both offences come under Chapter XVII i.e. offences against body.
 Both are neutral law.
 In both cases, prosecutor is bound to prove commission of offence beyond reasonable
doubts.
 In both case accused may get benefit of ‗General Exceptions‘ by proving preponderance
of probabilities.
 Both may convert into robbery in addition of some more grounds as mentioned under
Section 390. So robbery is either robbery by theft or robbery by extortion.
There are following differences between theft and extortion -

S. No. Theft Extortion
Subject Only Movable property as Any property (Movable or immovable) or
defined under Section 22 can valuable security (section 30) or anything signed
be subject matter of theft. or sealed which may be converted into valuable
security may be subject matter of extortion.
Mode There must be taking. There must be delivery.
[Jadunandan Singh & Another v. Emperor]628
Mental Taking of movable property Delivery is due to fear of injury.
628
AIR 1941 Pat. 129

446
condition must be without Consent

of victim
Injury Here there is no fear of injury Here there is fear of injury to victim or any other
any person. person.
Right of Right of Private Defence is Right of Private Defence is not available against
Private available against theft. extortion. Reason of this is that there is no
Defence immediate threat for body, mind reputation and
property. Victim may take recourse of public
servant.
(10.7.) Robbery
Section 390 defines robbery. Robbery is either theft or extortion. Robbery is aggravated form of
theft or extortion. There are two types of robbery namely, (1) Robbery by theft & (2) Robbery by
extortion.
Robbery [Sec. 390]
Types of Robbery
Robbery by theft Robbery by Extortion
When theft becomes robbery – There are five essentials of theft. If two more conditions are
added in theft then theft converted into robbery.
Theft Adding two more conditions Robbery
Section Theft (1) Dishonest intention

378 (2) Movable Property
(3) Out of possession
(4) Without consent
(5) Moves that property
Section Robbery (6) Voluntarily (section 39) causes or attempts to cause
390 (a) death or hurt or wrongful restraint or
(b) fear of instant death or hurt or wrongful
restraint
(7) Why death….?

447
(a) in order to committing theft or

(b) in committing theft or
(c) carrying away the property obtained in theft or
(d) attempting to carrying away the property obtained
in theft
Robbery (1) Dishonest intention
(Theft + Robbery) (2) Movable Property
(3) Out of possession
(4) Without consent
(5) Moves that property
(6) Voluntarily (section 39) causes or attempts to cause
(a) death or hurt or wrongful restraint or
(b) fear of instant death or hurt or wrongful
restraint
(7) Why death….?
(c) carrying away the property obtained in theft or
(d) attempting to carrying away the property
obtained in theft
When extortion becomes robbery –
There are six essentials of extortion. If three more conditions are added in extortion then
extortion converted into robbery.
Extortion Adding 3 grounds Robbery
Section Extortion (1) Intention

383 (2) Putting any person into fear
(3) Fear of injury (section 44- Mind, body, reputation or
property) to the person so put into fear or any other person
(4) Dishonest inducement
(5) to deliver
(6) Any property (Movable or immovable) or valuable
security (section 30) or anything signed or sealed which may
be converted into valuable security
Robbery (7) Offender is in the presence of the person put in fear
(8) There must be in fear of instant death or instant hurt or
instant wrongful restraint to that person or to some other
person

448
(9) Then and there delivery

Section Robbery by (1) Dishonest intention
390 Extortion (2) Putting any person into fear
(Extortion + (3) Fear of injury (section 44- Mind, body, reputation or
Robbery) property) to the person so put into fear or any other person
(4) Dishonest inducement
(5) to deliver
(6) Any property (Movable or immovable) or valuable
security (section 30) or anything signed or sealed which may
be converted into valuable security
(7) Offender is in the presence of the person put in fear
(8) There must be in fear of instant death or instant hurt or
instant wrongful restraint to that person or to some other
person
(9) Then and there delivery
State of Karnataka v. Basavegowda
State of Karnataka v. Basavegowda629 was decided by Karnataka High Court on December 04,
1996. Husband was punished for extortion.
Facts –
 Basavegowda was the husband of Bhagyamma.
 It was alleged that about 10 days after their marriage, on 30-4-1987, he took her to the
Burudala Bore forest under the pretext of going for the wedding of a friend and that he
threatened to kill her unless she parted with all her ornaments.
 Bhagyamma, finding no other option, removed all her jewellery valued at around Rs.
11,000/- and handed the same over to the accused who wrapped the same in a
handkerchief and put it in his pocket.
 Thereafter, the accused is alleged to have assaulted her with a big stone whereupon,
Bhagyamma screamed. The accused continued to assault her with his fists and seeing two
other persons coming there, he ran away.
 Bhagyamma was thereafter taken to the town and ultimately to the hospital.
 He was charged with offences punishable under Sections 307 and 392.
 Majority of witnessed turned hostile.
629
(1997) Cr.L.J 4386 (Kant)

449
Trial Court - The learned trail judge, after assessing the evidence before him, held that the sole
testimony of Bhagyamma was insufficient to prove the prosecution case beyond reasonable
doubt principally because, the majority of witnesses had turned hostile. In this background, the
accused was acquitted and the State of Karnataka preferred appeal assailing the correctness of
the order.
High Court
(1) Argument of Respondent [Admission of Bhagyamma regarding her divorce &
Remarriage] - The respondent‘s learned advocate has placed strong reliance on the admission
elicited form Bhagyamma that she has subsequently obtained a divorce from the accused and has
also remarried. He submits that this is the clearest indication of the fact that Bhagyamma was not
happy with the marriage and desired to put an end to it which was why she has framed the
accused.
Reply of High Court – High Court observed, ―As far as this submission goes, we have carefully
scrutinised the evidence and we find that nothing has been brought on record to indicate that
Bhagyamma was not happy with the marriage at the time when it took place or that she had other
intention or for that matter, that she desired to marry some other man. In the absence of any such
material, merely because she has subsequently divorce the accused and remarried, would not
necessarily indicate that she was hostile to the accused at the time of the incident and that she
would go to the extent of fabricating serious charges against him if these were not true‖.
(2) Argument of Respondent [Medical Report]- The respondent‘s learned advocate thereafter
placed reliance on the medical evidence in support of his plea that the injury to the chest could
not have been caused by the stone.
Reply of High Court – It is true that the Doctor has initially opined that such an injury would
have been unlikely having regard to the fact that the stone was of the dimension of I0"x 8", but
subsequently, the doctor himself has agreed that such an injury could be caused by the stone in
question. This in our opinion sets the matter at rest.
(3) Argument of Respondent [Fabricated Story] - The learned advocate has also submitted
that if the accused was callous enough to threaten Bhagyamma with death and if he had taken her
to a lonely place for this purpose, that there is no reason why the accused would have not carried
out his intention and that this itself shows that the story is fabricated.
Reply of High Court – As far as this argument is concerned, we take note of the fact that
Bhagyamma was a young adult woman and even if the accused was the stronger of the two, she
would not have easily submitted to a fatal attack and she has in fact stated that on the first
occasion when the stone was aimed at her, that she was able to avoid it and that she sustained
only minor injuries. Cumulatively, therefore, we are of the view that merely because
Bhagyamma escaped with some injuries, that it cannot lead to the conclusion that the accused did
not assault her at all on that day.
(4) Argument of Respondent [Hostile Witnesses] The respondent‘s learned advocate then
pointed out to us that the majority of witnesses in this case have turned hostile.

450
Reply of High Court – The fact that the majority of witnesses have not supported the
prosecution case is therefore, not a factor in favour of the accused, but one which militates
heavily against him.
(5) Argument of Respondent [Custody of ornaments] The respondent‘s learned advocate then
advanced the submission that the accused was the husband of Bhagyamma and that it is perfectly
legitimate for him to keep the wife‘s ornaments in his custody and that he did so, that the custody
does not become unlawful.
Reply of High Court – High Court observed, ―We do not dispute the fact that under normal
situations, a wife may even entrust her ornaments to the husband for safe custody or a prudent or
careful husband may, for reasons of safety, keep the ornaments with him or under his control and
such an arrangement could never lead to the inference that the husband was disentitled to retain
the wife‘s ornaments and that it is a guilty circumstance against him. Particularly in criminal
cases, such facts are not to be considered in a vacuum, but must be looked at strictly in relation
to the special situation that prevails in that particular case. We have taken note of the fact that
Bhagyamma has very clearly stated in her evidence that these ornaments belong to her as they
had been made by her father for her wedding. She also states that they were in her custody and
on her person and that the accused under threat, took the ornaments away from her. If the
custody of the ornaments has come to the accused under these circumstances, then his possession
becomes clearly unlawful‖.
Evidentiary Value of Bhagyamma - As regards the rest of the evidence, we would prefer not to
refer to it because, the majority of witnesses have turned hostile and their evidence is not of
much consequence. It is true that most of them have been cross-examined and have come a full
circle, but we are of the view that Bhagyamma‘s evidence alone which finds considerable
support from the other material which we have discussed above, is sufficient to establish the
charge against the accused.
Decision - Accused was punished under section 325 and section 384.
Reason- She stated that ornaments were in her custody and on her person and that the accused
under threat, took the ornaments away from her. If the custody of the ornaments has come to the
accused under these circumstances, then his possession becomes clearly unlawful.
The Court said, ―In our considered view, the extortion of the ornaments from Bhagyamma under
threat and the subsequent recovery of these ornaments from the custody of the accused would
clearly make him liable for an offence of extortion‖.
Criticism – This was suitable case to declare that the offence was robbery. In this case there was
fear of instant death and she was compelled for then and there delivery.
(10.8.) Dacoity
Section 391 defines dacoity. Section 391 says, ―When five or more persons 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,

451
amount to five or more, every person so committing, attempting or aiding, is said to commit
―dacoity‖.
General rule is that offences at the stage of preparation are not punishable. There are certain
exceptional cases when offences are punishable at the stage of preparation. One of them is
dacoity. According to Section 399, dacoity is punishable even at the stage of preparation. Under
IPC death sentence has been provided only for exceptional offences. One of them is dacoity in
which for which death sentence has been provided. Section 396 provides death sentence in case
of dacoity with murder.
There are following essential ingredients of dacoity –
(1) There must be robbery (section 390)
(2) That robbery must be committed or attempted to commit or aiding to commit robbery
(3) By five or more persons (minimum five and maximum is unlimited)
(4) Such robbery must be done ‗Conjointly‘. All persons must committed robbery
conjointly.
(10.9.) Difference between Robbery and Dacoity
Deciding factors to make differences between robbery and dacoity are number of persons and
sharing of common intention of committing robbery. Suppose that 100 persons are committing
robbery without conjointly then that is merely robbery. It cannot convert into dacoity merely due
to number of persons of more than five. There are following differences between both -
(i) Every dacoity is robbery but every robbery is not dacoity.
(ii) There must be minimum number five in case of dacoity. One member is sufficient to
commit offence of robbery.
(iii) Every person must do conjointly for dacoity. There is no need of conjointly for robbery.
Only that robbery can convert into dacoity when number of persons is five or more and
they are doing conjointly. If number of persons is five or more and they are not conjointly
to each other that is merely robbery.
(iv) Robbery is not punishable at the stage of preparation. Dacoity is punishable even at the
stage of preparation (Section 399).
(v) There is no provision for death sentence in case of robbery. But there is provision for
death sentence in case of dacoity (Section 396).
(10.10) Distinction amongst the offences of ‗theft‘, ‗extortion‘ and ‗robbery‘
There are following differences among theft, extortion and robbery -

452
Theft Extortion Robbery

There is no kind of theft. There is no kind of There are two types of robbery
extortion. namely;
(i) robbery by theft
(ii) robbery by extortion
Theft is less serious in Extortion is less serious in Robbery is aggravated form of
comparison to robbery. comparison to robbery. either theft or extortion.
Here taking is necessary. Here delivery is necessary. Here in case of robbery by theft
[Jadunandan Singh v. [Jadunandan Singh v. taking is necessary and in case of
630
Emperor] Emperor]631 robbery by extortion delivery is
necessary. In this way in case of
robbery taking and delivery both
are relevant.
There is no fear. There is fear of injury There is fear of death, hurt or
wrongful restraint or
Fear of instant death, instant hurt
or instant wrongful restraint
Subject matter of theft is Subject matter is any In case of robbery by theft,
only movable property property (Movable or movable property is subject
immovable) or valuable matter.
security or anything In case of robbery by extortion –
signed or sealed which any types of property or valuable
may be converted into security are subject matter of
valuable security robbery.
Theft is committed without Extortion is committed In case of robbery by theft –
consent with Unlawful consent offence is committed without
consent.
In case of robbery by extortion-
offence is committed with
unlawful consent
There are five ingredients of In case of adding of two more
theft. These are - conditions in five condition of
(1) Dishonest intention theft, theft converts into robbery
(2) Movable Property by theft. There are total seven
(3) Out of possession conditions for robbery by theft.
(4) Without consent These two conditions are -
(5) Moves that property (6) Voluntarily (section 39) causes
630
AIR 1941 Pat. 129
631
AIR 1941 Pat. 129

453
or attempts to cause
(a) death or hurt or wrongful
restraint or
(b) fear of instant death or hurt or
wrongful restraint
(7) Why death….?
(c) carrying away the property
obtained in theft or
(d) attempting to carrying away
the property obtained in theft
There are six ingredients In case of adding of three more
of extortion. These are - conditions in six conditions of
(1) Dishonest intention extortion , extortion converts into
(2) Putting any person into
robbery by extortion.
fear These three conditions are -
(3) Fear of injury (section(7) Offender is in the presence of
44- Mind, body,
the person put in fear
reputation or property) to(8) There must be in fear of instant
the person so put into fear
death or instant hurt or instant
or any other person wrongful restraint to that person or
(4) Dishonest inducement to some other person
(5) to deliver (9) Then and there delivery
(6) Any property
(Movable or immovable)
or valuable security
(section 30) or anything
signed or sealed which
may be converted into
valuable security
Every theft is not robbery Every extortion is not In all robbery there is either theft
robbery. or extortion.

454
UNIT: 11
Offences of Criminal Misappropriation, Criminal Breach of Trust and Cheating
(11.1.) Criminal Misappropriation
(11.1.1) Introduction
Section 403 and Section 404 are related to ‗Dishonest misappropriation of property‘. Section 403
defines dishonest misappropriation of property and its punishment. Section 404 deals aggravated
form of dishonest misappropriation. The section deals misappropriation of property of deceased
person.
This offence does not come under category of strict liability. Right of private defence is not
available in this case. Preparation of this offence is not punishable. Attempt of this offence will
be governed by Section 511, IPC.
(11.1.2.) Ingredients
According to Section 403, ―Whoever dishonestly misappropriates or converts632 to his own use
any movable property, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both‖.
Section 403
Main Body Explanations

[DMC]
Explanation 1 Explanation 2
Mens Rea Actus Reus
Without
Dishonest Temporary
Misappropriates possession
Convert [Own
[Section 24] [Own use]
[Movable
use] [Movable
Property] Property
Ingredients – There are following essential ingredients of criminal misappropriation –
(i) Dishonestly – Section 24 defines dishonestly. It means there must be intention to cause
wrongful gain or wrongful loss. It denotes mental condition of accused. If there is no
dishonest intention, offence cannot be committed under Section 403. Illustration (a) of
Section 403 says, ―A takes property belonging to Z out of Z's possession, in good faith
believing at the time when he takes it, that the property belongs to himself. A is not guilty
of theft; but if A, after discovering his mistake, dishonestly appropriates the property to
his own use, he is guilty of an offence under this section‖.
632
DMC is a technic to remember this section. DMC- Delhi Municipal Corporation. D- Dishonestly, M-
Misappropriates, C- Converts.

455
(ii) Misappropriation or conversion – There must be Misappropriation or conversion of

movable property. Illustration (b) says, ― A, being on friendly terms with Z, goes into Z's
library in Z's absence, and takes away a book without Z's express consent. Here, if A was
under the impression that he had Z's implied consent to take the book for the purpose of
reading it, A has not committed theft. But, if A afterwards sells the book for his own
benefit, he is guilty of an offence under this section
(iii)For his own use – Such Misappropriation or conversion of movable property must be for
his own use. It may be for permanent use or temporary. Explanation 1 says that
temporary use is sufficient. Illustration of this explanation makes clearer. This illustration
says, ―A finds a Government promissory note belonging to Z, bearing a blank
endorsement. A, knowing that the note belongs to Z, pledges it with a banker as a
security or a loan, intending at a future time to restore it to Z. A has committed an offence
under this section‖.
(iv) Movable property – Subject matter of criminal misappropriation is movable property.
Movable property has been defined under Section 22.
(v) Taking or finding – In this case accused may get property either through innocent taking
or finding. At the subsequent stage he does with dishonest intention. Illustrations (a), (b)
and (c) supports innocent taking. Explanation 2 and its illustrations (a) to (f) support
innocent finding.
Taking -
(a) A takes property belonging to Z out of Z‘s possession, in good faith, believing, at any
time when he takes it, that the property belongs to himself. A is not guilty of theft;
but if A, after discovering his mistake, dishonestly appropriates the property to his own
use, he is guilty of an offence under this section.633
(b) A, being on friendly terms with Z, goes into Z‘s library in Z‘s absence, and takes away a
book without Z‘s express consent. Here, if A was under the impression that he had Z‘s
implied consent to take the book for the purpose of reading it, A has not committed theft.
But, if A afterwards sells the book for his own benefit, he is guilty of an offence under
this section.
(c) A and B, being joint owners of a horse, A takes the horse out of B‘s possession, intending
to use it. Here, as A has a right to use the horse, he does not dishonestly misappropriate it.
But, if A sells the horse and appropriates the whole proceeds to his own use, he is guilty
of an offence under this section.
Finding -
633
DU LL.B. 2016 Question 7 (b) - A in good faith, believing property belonging to Z to be A‘s own property takes
that property out of Z‘s possession. After a week A realizes his mistake, but as Z didn‘t complain. A keeps the
property himself. Has A committed any offence? Decide.

456
Illustration (a) A finds a rupee on the high road, not knowing to whom the rupee belongs. A
picks up the rupee. Here A has not committed the offence defined in this section.
Illustration (b) A finds a letter on the road, containing a bank note. From the direction and
contents of the letter he learns to whom the note belongs. He appropriates the note. He is guilty
of an offence under this section.
Illustration (c) A finds a cheque payable to bearer. He can form no conjecture as to the person
who has lost the cheque. But the name of the person, who has drawn the cheque, appears. A
knows that this person can direct him to the person in whose favour the cheque was drawn. A
appropriates the cheque without attempting to discover the owner. He is guilty of an offence
under this section.
Illustration (d) A sees Z drop his purse with money in it. A picks up the purse with the intention
of restoring it to Z, but afterwards appropriates it to his own use. A has committed an offence
under this section.
Illustration (e) A finds a purse with money, not knowing to whom it belongs; he afterwards
discovers that it belongs to Z, and appropriates it to his own use. A is guilty of an offence under
this section.
Illustration (f) A finds a valuable ring, not knowing to whom it belongs. A sells it immediately
without attempting to discover the owner. A is guilty of an offence under this section.
Section 404. Dishonest misappropriation of property possessed by deceased person at the time of
his death. - Whoever dishonestly misappropriates or converts to his own use property, knowing
that such property was in the possession of a deceased person at the time of that person's
decease, and has not since been in the possession of any person legally entitled to such
possession, shall be punished with imprisonment of either description for a term which may
extend to three years, and shall also be liable to
fine, and if the offender at the time of such person's decease was employed by him as a clerk or
servant, the imprisonment may extend to seven years.
Illustration
Z dies in possession of furniture and money. His servant A, before the money comes into the
possession of any person entitled to such possession, dishonestly misappropriates it. A has
committed the offence defined in this section.
(11.1.3.) Criminal Misappropriation and Theft
Criminal misappropriation is very close to theft. There are following relation between Criminal
Misappropriation and Theft634 –
S. No. Theft Criminal Misappropriation
Similarity Similarity
634
DU LL.B. 2016 Question 8: Write short notes – (a) Explain and illustrate differences between theft and Criminal
Misappropriation.

457
Subject Subject matter is movable Property Subject matter is movable Property

Matter
Mens rea Dishonest Intention denotes mens Dishonest Intention denotes mens
rea. rea.
Deprivation Either temporary or permanent Either temporary or permanent
deprivation of property is sufficient. deprivation of property is sufficient.
It becomes clear from Illustrations (b) It becomes clear from Explanation I,
and (l). It was also observed in and and its Illustration.
Pyare Lal Bhargawa v. State of
Rajasthan.
Mode of Theft is possible only through Criminal misappropriation is possible
getting ‗Taking‘. If there is no taking, theft is either through taking and finding.
property. not possible. Delivery, finding etc. Illustrations (a) to (c) of main body
are not sufficient for theft. denote taking. Illustrations (a) to (f)
of Explanation 2 denote finding.
Possession Taking of property must be out of Taking of property must be out of
possession. ‗Out of possession‘ is possession. In case of finding, there
essential ingredients. is no question of ‗out of possession‘.
‗Out of possession‘ is not essential
ingredients in case of finding.
Mens Rea Initial dishonest intention must be at At the initial stage, there is no mens
the time of taking of property. Mens rea. At the initial stage, there must be
rea must be from the very beginning. good faith. At the subsequent stage,
dishonest intention developed.
Use Use of property is immaterial. Here ―… his own use‖ is necessary. Mere
moving of immovable property is taking or finding of property is no
sufficient. . sufficient.
(11.2.) CRIMINAL BREACH OF TRUST
There are two types of breach of trust namely; (1) Civil breach of Trust, and (2) Criminal breach
of Trust. Civil breach of Trust is governed by the Indian Trust Act, 1882635. Criminal breach of trust
is regulated by Sections 405 to 409, IPC. Section 405 defines criminal breach of trust. Section
406 deals punishment for criminal breach of trust. Sections 407 to 409 deal aggravated form of
criminal breach of trust and its aggravated form of punishment.
635
The Indian Trust Act, 1882. Available at: https://legislative.gov.in/sites/default/files/A1882-02.pdf (Visited on
March 31, 2022).

458
Section 405 - Whoever, being in any manner entrusted with property, or with any dominion over
property, dishonestly misappropriates or converts to his own use that property, or dishonestly
uses or disposes of that property in violation of any direction of law prescribing the mode in
which such trust is to be discharged, or of any legal contract, express or implied, which he has
made touching the discharge of such trust, or wilfully suffers any other person so to do, commits
―criminal breach of trust‖.
Illustrations
(a) A, being executor to the will of a deceased person, dishonestly disobeys the law which directs
him to divide the effects according to the will, and appropriates them to his own use. A has
committed criminal breach of trust.
(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under a contract
that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells
the goods. A has committed criminal breach of trust.
(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied
contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to
Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in
Company's paper. A dishonestly disobeys the directions and employs the money in his own
business. A has committed criminal breach of trust.
(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be
more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys
shares in the Bank of Bengal, for Z, instead of buying Company's
paper, here, thought Z should suffer loss, and should be entitled to bring a civil action against A,
on account of that loss, yet A, not
having acted dishonestly, has not committed criminal breach of trust.
(e) A, a revenue-officer, is entrusted with public money and is either directed by law, or bound
by a contract, express or implied, with the Government, to pay into a certain treasury all the
public money which he holds. A dishonestly appropriates the money. A has committed criminal
breach of trust.
(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly
misappropriates the property. A has committed criminal breach of trust
Section 405 - Criminal breach of trust –

(1) Whoever, being in any manner entrusted with property, or with any dominion over
property, [ED]
(2) The person who was entrusted or have dominion over property [ED]
a. dishonestly misappropriates or converts (DMC) to his own use that property, or
b. dishonestly uses or disposes of that property or wilfully suffers any other person
so to do in violation of
(i) any direction of law prescribing the mode in which such trust is to be discharged, or

459
(ii) any legal contract, express or implied, which he has made touching the discharge of such
trust,
commits ―criminal breach of trust‖.

Section 405 [Criminal Breach of Trust]
How does he get proprty? What does he do? Against whom does he do? Dishonest
intention
Uses or Legal contract [Sec. 24]
E= D= Allow other person Direction of
disposes [Express or
Entrusted Dominion to use or dispose law
himself Implied]
Illustration (e)
Illustration (e) J.M.Desai Case Illustration (e) Illustration (e)
Comments - There are following ingredients of Section 405, IPC -

(1) Getting of property in two ways -In criminal breach of trust person gets property in two
ways –
a. Either he is entrusted possession of property or
b. He is given dominion of property.
(2) Mens Rea – Dishonestly (section 24 –Intention to cause wrongful gain or wrongful loss)
denotes mens rea.
(3) What is he (abetting another person - wilfully suffers any other person so to do) doing
with those properties?
a. dishonestly misappropriates or converts (DMC) to his own use that property
b. dishonestly uses or disposes of that property
(4) Against which?
a. against direction of law or
b. against legal contract.
(11.2.1.) Jaikrishnadas Manohardas Desai and Another v. State of Bomaby

Jaikrishnadas Manohardas Desai (J.M.Desai) and Another v. State of Bomaby 636&637 was
decided by Supreme Court on March 16, 1960. Judgment was written by Justice Shah. In this
case Section 405, Section 409 read with section 34, IPC was involved. Accused was convicted
Facts –
 On June 15, 1948, the Textile Commissioner invited tenders for dyeing Pugree Cloth.
636
AIR 1960 SC 889.
637
Available at: https://main.sci.gov.in/judgment/judis/226.pdf (Visited on April 13, 2021)

460
 Jaikrishnadas Manohardas Desai was the Managing Director and the second appellant a
Director and technical expert of a cloth dyeing concern known as Parikh Dyeing and
Printing Mills Ltd.
 They submitted their tender and their tender was accepted.
 The company entered into a contract with the Textile Commissioner undertaking to dye
a large quantity of cloth which was supplied to the company for that purpose.
 In pursuance of the contract certain quantity of cloth was dyed and delivered to the
Textile Commissioner by the company but it failed to dye and deliver the balance of cloth
which remained in its possession and was not returned to the Textile Commissioner in
spite of repeated demands.
 On November 20, 1950, the contract was cancelled by the Textile Commissioner in
respect of the balance of cloth and the company was called upon to give an account
without any further delay of the balance undelivered and it was informed that it would be
held responsible for material spoiled or not accounted for.
 Company admitted its liability.
 In December 1950, the first appellant left Bombay to take up the management of a
factory in Ahmedabad and the affairs of the company were managed by one R. K. Patel.
 Several letters were written. But satisfactory answers were not given.
 On December 29, 1952, the premises of the company and the place of residence of the
appellants were raided, but no trace of the cloth was found. A complaint was then filed
with the police charging the two appellants with criminal breach of trust in respect of
1,32,4041 yards of cloth belonging to the Government.
 Ultimately the two appellants were prosecuted for criminal breach of trust under section
409 read with section 34 of the Indian Penal Code.
Judgemnt
Add. Session Judge High Court Supreme Court
Both were convicted Both were convicted Both were convicted

u/s 409 r/w/ s. 34 u/s 409 r/w/ s. 34 u/s 409 r/w/ s. 34
Additional Session Judge [1955]–

They were convicted under Section 409 r/w Section 34, IPC.
High Court [Feb. 14, 1956]–
In appeal the High Court reviewed the evidence on the ground of misdirection to the jury but
found that the two appellants were liable to account for the cloth over which they had dominion,
and having failed to do so each of them was guilty of the offence of criminal breach of trust. The
High Court refused to accept the appellants‘ plea that the cloth was old and was eaten up by
white ants and moths.

461
Supreme Court
Issues
 Whether appellants had dominion over yards of cloth?
Answer- Yes.
 Whether breach of trust must be proved by direct evidence and by precise mode?
Answer- No. In certain circumstances, breach of trust may be proved by circumstantial
evidence.
 Whether mere failure to account properly will amount to breach of trust in all cases?
Answer – No.
 Whether for application of Section 34, presence of accused is necessary in all cases?
Answer – No. In certain cases like breach of trust, presence of accused at the time of
commission of accused is not necessary.
Ratio of the Case
Sections 405 &409, IPC Section 34, IPC

In this Case, Supreme Court discussed two important points. These points are – Sections 405 &
409 IPC, & Section 34, IPC .
Section 405 IPC:
 Duty of Prosecution - To establish a charge of criminal breach of trust, the prosecution

was not bound to prove the precise mode of conversion, misappropriation or
misapplication by the accused of the property entrusted to him or over which he had
dominion.
 Direct and Circumstantial evidence - Direct evidence to establish misappropriation of
the cloth over which the appellants had dominion is undoubtedly lacking, but to establish
a charge of criminal breach of trust, the prosecution is not obliged to prove the precise
mode of conversion, misappropriation or misapplication by the accused of the property
entrusted to him or over which he has dominion.
 The principal ingredient of the offence being dishonest misappropriation or conversion
which may not ordinarily be a matter of direct proof and failure in breach of an obligation
to account for the property entrusted, if proved, may in the light of other circumstances,
justifiably lead to an inference of dishonest misappropriation or conversion.
 Failure of accused to give proper account of property -
 The mere failure of the accused to account for the property entrusted to him might not
be the foundation of his conviction in all cases.
 But where he was unable to account and rendered an explanation for his failure
which was untrue, an inference of misappropriation with dishonest intent might
readily be made.

462
Basis of conviction – Supreme Court observed, ―In this case, on a search of the factory on
December 29, 1952, the cloth remaining to be delivered by the company was not found. At the
trial, the appellants sought to explain the disappearance of the cloth from the factory premises
where it was stored, on the plea that it was old and was eaten up by white-ants and moths, and
had been thrown away as rubbish. This plea of the appellants was not accepted by the High Court
and we think rightly. No information was given at any time to the Textile Commissioner after
December 4, 1950, that the cloth had been eaten up by white-ants and moths, and was therefore
thrown away or otherwise destroyed. Nor was any evidence led in support of the plea by the
appellants.
Section 34 (No need of physical presence in all cases)-

 Shreekantiah Ramayya Munipalli v. The State of Bombay was cited on behalf of first
appellant in which Supreme Court had held that for application of Section 34 presence of
accused is necessary.
 But in this case Supreme Court held that physical presence of the accused at the scene of
offence of the offender sought to be rendered liable under section 34 is not, on the words
of the statute, one of the conditions of its applicability in every case. But this
participation need not in all cases be by physical presence.
 In offences involving physical violence, normally presence at the scene of offence of the
offenders sought to be rendered liable on the principle of joint liability may be necessary,
but such is not the case in respect of other offences where the offence consists of diverse
acts which may be done at different times and places.
Decision of Supreme Court – Supreme Court dismissed the appeal and held that conviction of
both persons under section 409 r/w section 34 by High Court was justified. It was accepted that
First appellant had dominion over property.
(11.3.) ‗Criminal Misappropriation‘ and ‗Criminal breach of Trust‘

There are following similarities between ‗criminal misappropriation‘ and ‗criminal breach of
trust‘638
(1). Both offences have been mentioned in Chapter XVII (Sections 378-462) which is related
to offences against property. It means both offences are related to property.
(2). Dishonestly is common in both offences.
(3). DMC to his own use is common. Dishonestly misappropriates or converts to his own use
is common in both offences.
(4). Right of private defence is not available in both cases.
638
DU LL.B. 2013 Question 6 (a) - Bring out clearly the distinction and similarities, if any, between the offences of
‗criminal misappropriation‘ and ‗criminal breach of trust‘.

463
(5). At the stage of preparation, both are not punishable.
There are following differences between ‗criminal misappropriation‘ and ‗criminal breach of
trust‘ -
Criminal Misappropriation Criminal Breach of Trust
Sections 403 to 404 deal Criminal Sections 405 – 409 deal Criminal Breach of
Misappropriation of property. Trust.
Subject matter is ‗Movable Property‘ Any types of property whether movable or
immovable may be subject matter of ‗Criminal
Breach of Trust‘.
In case of Criminal Misappropriation A person is entrusted with property or
accused either takes property or finds the dominion over property.
property accidentally.
There is no fiduciary relationship. There is fiduciary relationship.
Here there is violation of law. Here there is Here there is violation of either law or
no question of violation of contract. contract.
Accused is doing only one work i.e. Accused is doing two works –
dishonestly misappropriates or converts (i) dishonestly misappropriates or converts
(DMC) to his own use that property, or (DMC) to his own use that property, or
(ii) dishonestly uses or disposes of that
property or willfully suffers any other person so
to do
in violation of
(a) any direction of law prescribing the mode
in which such trust is to be discharged, or
(b ) any legal contract, express or implied,
which he has made touching the discharge of
such trust.
639
Problem Rohan is a ware-house keeper. Gopal going on a journey, entrusts his furniture to
Rohan, under a contract that it shall be returned on payment of a stipulated sum for the ware-
house room. Rohan dishonestly sells the goods. What offence, if any, has Rohan committed.
Solution – Section 405, Illustration (b).
(11.4.) Cheating
Section 415 to Section 420 deal cheating and its punishment. Cheating and Cheating by
personation have been defined under Section 415 and Section 416 respectively. Punishment for
cheating and cheating by personation has been provided from Sections 417 to 420.
639
DU LL.B. 2018 Question (7) (b).

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Section 415- Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces
(D FDI) the person so deceived to deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the person so deceived to do or omit to
do anything which he would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in body, mind, reputation or
property, is said to ―cheat‖.
Explanation.-A dishonest concealment of facts is a deception within the meaning of this section.
Illustrations
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus
dishonestly induces Z to let him have on credit goods for which he does not mean to pay.
A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that
this article was made by a certain celebrated manufacturer, and thus dishonestly induces
Z to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing
that the article corresponds with the sample, and thereby, dishonestly induces Z to buy
and pay for the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps no money,
and by which A expects that the bill will be dishonored, intentionally deceives Z, and
thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally
deceives Z, and thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend
to him and thereby dishonestly induces Z to lend him money. A not intending to repay it.
A cheats.
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of
indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to
advance money upon the faith of such delivery. A cheats; but if A, at the time of
obtaining the money, intends to deliver the indigo plant, and afterwards breaks his
contract and does not deliver it, he does not cheat, but is liable only to a civil action for
breach of contract.
(h) A intentionally deceives Z into a belief that A has performed A‘s part of a contract made
with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A
cheats.
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no
right to the property, sells or mortgages the same to Z, without disclosing the fact of the
previous sale and conveyance to B, and receives the purchase or mortgage money from Z.
A cheats.

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(11.4.1.) Ingredients of Cheating

In Ram Jas v. State of U.P.640 was decided by Supreme Court on September 11, 1970. Supreme
Court observed that the ingredients required to constitute the offence of cheating are -
(i) There should be fraudulent or dishonest inducement of a person by deceiving him;

(ii)
a. The person so deceived should be induced to deliver any property to any person,
or to consent that any person shall retain any property; or
b. The person so deceived should be intentionally induced to do or omit to do
anything which he would not do or omit if he were not so deceived; and
(iii)In cases covered by (ii) (b), the act or omission should be one which causes or is likely to
cause damage or harm to the person induced in body, mind, reputation or property.
There are following essential ingredient of section 415 –
(i) Deception- There must be deception of any person. According to Explanation, a

dishonest concealment of facts is a deception within the meaning of section 415. A
person deceives another when he causes to believe what is false or misleading as to
matter of fact, or leads into error.
(ii) Mens Rea – Accused must fraudulently or dishonestly induces (FDI) the deceived person
for delivering of property.
(iii) Purpose of accused- Purpose of the accused that inducing the property for delivering the
property or inducing the accused to do or omit to do.
(i) Delivering Property –Accused must induce victim. Purpose of the inducement is -
a. to deliver any property to any person, or
b. to consent that any person shall retain any property,
(ii) Inducing To do or omit to do & thereby causing injury – Accused intentionally
induces the person so deceived to do or omit to do anything which he would not do or
omit if he were not so deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or property.
640
1971 SCR (2) 178. Available at: https://www.sci.gov.in/jonew/judis/1333.pdf (Visited on 08 /11/2018).

466
Cheating
[Section 415]
Act of the Act of the

Accused victim
Causing Property or To do or omit to

Fraudulently or do
deception and Dishonestly
inducing
Giving consent Causes or likely
Delivering the
for retaining the to cause injury
property
property
(11.4.2) Mahadev Prasad v. State of Bengal
Mahadeo Prasad v. State of West Bengal was decided by Supreme Court on January 13, 1954. In
this case relation between ‗Breach of Contract‘ and Cheating was discussed. Case is related
‗Case against delivery‘. Mahadeo Prasad was convicted for cheating.
Facts - Mahadev Prasad agreed to purchase from the complainant Dulichand Kheria 25 ingots of
tin on May 05, 1951. Price was to be paid Mahadev Prasad against delivery. He took delivery of
the ingots but kept the Jamadar awaiting and did not pay the price to him. The Jamadar waited
for a long time. The Appellant went out and did not return to the Guddi and the Jamadar
ultimately returned to the complainant and reported that no payment was made though the ingots
were taken delivery of by the Appellant. He took the defence that he had no sufficient money
which he knew.
Decision
Add. P. Magistrate High Court Supreme Court
Conviction u/s. 420 Conviction u/s. 420 Conviction u/s. 420
The Additional Presidency Magistrate,

The Additional Presidency Magistrate, Calcutta convicted the accused under Section 420.
High Court
The High Court dismissed the appeal and confirmed the conviction and sentence passed upon the
Appellant by the Additional Presidency Magistrate, Calcutta.
Supreme Court – Accused filed appeal before Supreme Court. There were following issues
before Supreme Court -
Issue 1 – Whether accused had caused cheating? Supreme Court replied in positive.
Supreme Court accepted the view of High Court. High Court made differences between breach
of contract and cheating. The Court observed-

467
 Breach of Contract [ Intention to pay] -The High Court observed rightly that if the
Appellant had at the time he promised to pay cash against delivery an intention to do so,
the fact that he did not pay would not convert the transaction into one of cheating.
 Cheating [ No intention to pay] - But if on the other hand he had no intention
whatsoever to pay but merely said that he would do so in order to induce the complainant
to part with the goods then a case of cheating would be established.
Aggrement
Intention to perform (pay) & Failed No intention to perform (Pay)
Breach of Contract (Civil Law) Cheating (Criminal Law)
Supreme Court - Supreme Court observed following important points -

(1) No miscalculation - There was no question of any miscalculation made by the Appellant in
the matter of his ability to pay the cash against delivery. He knew fully well what his
commitments were, what moneys he was going to receive from outside parties and what
payments he was to make in respect of his transactions up to the 4th May 1951.
(2) Attempt to settlement- The anxiety to arrive at a settlement could easily be explained by the
fact that the Appellant knew that he had taken delivery of the ingots without payment of cash
against delivery and the only way in which he would get away from the criminal liability was to
arrive at a settlement with the complainant.
(3) Convicted under section 420 - The Appellant was therefore rightly convicted of the offence
under section 420 of the Indian Penal Code and both the Courts below were right in holding that
he was guilty of the said offence and sentencing him to one year‘s rigorous imprisonment as they
did.
(11.4.3.) Akhil Kishore Ram v. Emperor

Akhil Kishore Ram v. Emperor641 was decided by Patna High Court on November 26, 1937. It
was decided by Hon‘ble Justice Rowland. It is related to Vashi Karan Mantra (Gupta Mantra).
Accused was convicted for cheating. Even a single time section 415 or section 420 has not been
used.
Facts
 Akhil Kishore Ram resides at Katri Sarai, police station Giriak, in Patna District, where
in his own name and under thirteen other aliases he carries on a business of selling
charms and incantations which he advertises in a number of newspapers in several
641
AIR 1938 Pat. 185. Available at: https://indiankanoon.org/doc/81559/ (Visited on April 14, 2021)

468
provinces of India, and dispatches by value payable post to persons answering the
advertisements.
 Six of these transactions have been the subject matter of the charges.
 He advertised ―Gupta Mantra‖ and claimed that person will achieve his desire. In case
of non-success reward for 100 rs. was advertised.
Object of Charm - It was claimed that the objects which cannot be achieved by spending lacs of
rupees may be had by repeating this Mantra seven times. There is no necessity of undergoing any
hardship to make it effective. It is effective without any preparation. She whom you want may be
very hard-hearted and proud, but she will feel a longing for you and she will want to be for ever
with you, when you read this Mantra. This is a ―Vashi Karan Mantra.‖ It will make you
fortunate, give you service, and advancement, make you victorious in litigation, and bring you
profits in trade. A reward of Rs. 100, if proved fallible.
Method to read formula - Read the Mantra seven times and look at the moon for fifteen minutes
without shutting up your eyes even for a moment. Have a sound sleep with desired object in your
heart after that and you will succeed.
Arguments of accused: The main argument put forward on behalf of the petitioner is that
 assuming him to have done those things which the Courts below have found that he did,
he has committed no offence and
 the second contention is that even if the acts amounted to cheating, the sentences imposed
are excessive.
Issue – Whether accused has committed offence of cheating?

Decision- Finally he was convicted for cheating.
(11.4.4.) Sri Bhagwan S.S.V.V.Maharaj v. State of A.P.

Sri Bhagwan S.S.V.V.Maharaj v. State of A.P.642 was decided by Supreme Court. It is related to
Healing power.
Sri Bhagwan S.S.V.V.Maharaj represented to have divine healing powers through his touch,
particularly of chronic diseases. Complainant approached him for healing his 15 year old
daughter who is congenitally a dumb child. Sri Bhagwan S.S.V.V.Maharaj assured the
complainant that the little girl would be cured of her impairment through his divine powers. He
demanded a sum of Rs.1 lac as consideration to be paid in instalments. The first instalment
demanded was Rs.10,000/- which, after some bargaining, was fixed at Rs.5,000/-. Complainant
paid that amount and later he paid a further amount of Rs.1,000/- towards incidental expenses.
He waited eagerly for improvement of his dumb child till 1994 which was the time limit
indicated by the appellant for the girl to start speaking. But he could not get result.
642
AIR 1999 SC 2332.

469
In the meanwhile he got the news that accused had cheated several persons and earned more than
one crore of rupees. It was then that the complainant realized the fraud committed by the
appellant. Hence a complaint was lodged.
Magistrate
Magistrate ordered for re-investigation the case.
The Magistrate took cognizance of the offence on receipt of the said report and issued warrant of
arrest against the appellant.
High Court
Appellant moved the High Court against decision of the Magistrate for quashing the proceedings
on two grounds.
(1) First is that the Magistrate has no jurisdiction to order re-investigation after receipt of the first
report of the police, without affording an opportunity to the appellant.
(2) Second is that allegations of the complainant would not constitute an offence of cheating. But
the High Court dismissed the petition for which the impugned order was passed.
Supreme Court
Sri Bhagwan S.S.V.V.Maharaj approached to Supreme Court. Supreme Court dismissed appeal
and said that power of the police to conduct further investigation, after laying final report, is
recognised under section 173(8) of the Code of Criminal Procedure.
Problem -A sells and conveys a farmland to B. Thereafter he mortgages the same farmland to Z,
without disclosing the fact of the previous sale and receives the mortgage money from Z. What
offence has A committed?
Solution This problem is based on section 415 and its illustration (i). Section 415, Illustration (i)
says, ―A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no
right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous
sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats‖.
Objective Questions
Question 1 – ‗A‘ who was entrusted by ‗B‘ with certain blocks for printing a catalogue, prints
catalogue of rival‘s firm with the same block. ‗A‘ is guilty of
(a) Criminal breach of trust (b) Criminal misappropriation (c) Cheating (d) Theft
Answer - (a) Criminal breach of trust
Question 2 - Match the items of List I with the items of List II and choose the correct answer
from the code given below –
List I List II
(a) Delivery of property (1) Criminal breach of trust

(b) Taking of property (2) Criminal misappropriation of property
(c) Entrustment of property (3) Theft

470
(d) Convertibility of property got innocently to one‘s own use (4) Extortion
Code – (a) 4,3,1,2 (b) 3,4,1,2 (c) 4,2,3,1(d) 3,1,2,4
Answer - (a) 4,3,1,2
(a) Delivery of property (4) Extortion

(b) Taking of property (3) Theft
(c)Entrustment of property (1) Criminal breach of trust
(d) Convertibility of property got innocently to one‘s own use(2) Criminal misappropriation of
property
Question 3. Match List-I with List-II and give the correct answer by using the code given below:
List - I List-II
(a) Dishonest taking of property (i) Criminal breach of Trust
(b) Dishonestly inducing any person to deliver property (ii) Extortion
(c) Entrustment of property (iii) Criminal Misappropriation
(d) Conversion of property (iv) Theft
Code :
(a) (b) (c) (d)
(1) (i) (ii) (iii) (iv)
(2) (iv) (ii) (i) (iii)
(3) (iii) (iv) (ii) (i)
(4) (ii) (iii) (i) (iv)
Answer - (2) (iv) (ii) (i) (iii)
List - I List-II
(a) Dishonest taking of property (iv) Theft
(b) Dishonestly inducing any person to deliver property (ii) Extortion
(c) Entrustment of property (i) Criminal breach of Trust
(d) Conversion of property (iii) Criminal Misappropriation
Question no. 4 – A police officer has received a sum of Rs. 5000/-against fine from the persons
violating traffic rules, instead of depositing the fine money with State Treasury, he utilized the
same for his personal use. What offence under Indian Penal Code, the police officer has
committed:
(A) Criminal Breach of Trust
(B) Mischief
(C) Cheating the Government
(D) None of the above.
Answer - (A) Criminal Breach of Trust. Explanation – Section 403. Similar to illustration (e).
Question 5 – Which of the following offence is not inchoate crime –

(a) abetment
(b) conspiracy
(c) attempt

471
(d) Cheating
Answer (d)
Question 6 –‗A‘ obtained a sum of rs. 10,000/-from ‗B‘ in fear of death. Which of the following
offences was committed by ‗A‘?
(a) Cheating
(b) Robbery
(c) Mischief
(d) Extortion
Answer – (d)
Question 7 – A revenue officer is entrusted with public money and is directed by law to pay into
treasure all the public money which he holds. He instead of paying the same into the treasury
dishonestly misappropriates the same buying a sofa set for his personal use. What offence has
‗A‘ committed?
(a) Dishonest misappropriation of property
(b)Criminal Breach of trust
(c) Cheating the Government
Answer – B
Question 8 – ‗X‘ Hindu, turned his wife out of the the marital home and refused to return her
ornaments, money and clothes despite her repeated demands. What offence if any, has ‗X‘
committed?
(a) Cajolery
(b) Cheating
(c) Criminal intimidation
(d) Breach of trust
Answer –(d)
Objective Questions
Questions 1. Who is known as father of IPC?

Options – (a) Sir James Fitzjames Stephen
(b) Lord Sir Babington Thomas James Macaulay
(c) Lord Sir James Thomas Babington Macaulay
(d)Lord Sir Thomas James Babington Macaulay
Answer –D
Questions 2. IPC, 1860 came into force on –
Options – (a) October 6, 1860

472
(b) October 6, 1862

(c) January 1, 1860
(d) January 1, 1862
Answer – D
Questions 3 - Which of the following combinations are correctly matched?
(a) Harbour – Section 51A
(b) Wrongful loss – Section 23
(c) Gang Rape of woman under 12 Years of age Section 375DB
(d) Gang Rape - Section 375D.
Option –
(a) a, c & d
(b) a, b &c
(c) b, c &d
(d) a, b & d.
Answer – C
Question 4- Which of the following is not correctly matched ?

(a) Navtej Singh Johar v. Union of India – Section 498A
(b) K.N. Mehra v. State of Rajasthan- Section 378
(c) State of M.P. v. Narayan Singh – Mens Rea
(d) State of Haryana v. Raja Ram – Section 361
Answer – A
(a) Criminal breach of trust
(b) Theft
(c) Robbery
(d) Criminal Trespass.
Answer – a
Question 6- Match the items of List I with the items of List II and choose the correct
answer from the code given below –
List I List II
(a) Delivery of property (1) Criminal breach of trust

(b) Taking of property (2) Criminal misappropriation of property
(c) Entrustment of property (3) Theft
(d) Convertibility of property got innocently to one‘s own use (4) Extortion

473
Code –
(i) (ii) (iii) (iv)
(a) 4 3 1 2
(b) 3 4 1 2
(c) 4 2 3 1
(d) 3 1 2 4
Answer – A
below:
List - I List-II
(a) Mehboob Shah V. Emperor (i) Mens rea

(b) State of Maharashtra V. M.H. George (ii) Theft
(c) Virsa Singh v. State of Punjab (iii) Common Intention
(d) Pyare Lal Bhargava v. State of Rajasthan (iv) Section 300(3)
Code :
(1) (2) (3) (4)
(a) (i) (ii) (iii) (iv)
(b) (iii) (i) (iv) (ii)
(c) (iii) (i) (ii) (iv)
(d) (iv) (ii) (iii) (i)
Answer –B
Question – 8 ―In every statute mens rea is to be implied unless contrary is shown‖ was said in
(a) Fowler v. Padget (Lord Kenyon)
(b) Sherras v. De Rutzen (Justice Wright)
(c) Brend v. Wood (Justice Goddard)
(d) R.v. Prince (Blackburn)
Answer - B
Question 9- ―The right of private defence is a preventive and not a punitive right. In case of
(b) Vishwa Nath v. State of U.P.
(c) Deo Narain v. State of U.P.

474
Answer – C
Question 10 - Match List-I with List-II and give the correct answer by using the code given
below:
List - I List-II
(a) Navtej Singh Johar v. Union of India (i) Adultery

(b) Joseph Shine v. Union of India (ii) Unnatural Sex
(c) Justice K.S.Puttaswami V. UOI and Ors. (iii) Abolition of Triple Talaq
(d) Shayara Bano v.UOI (iv) Right to Privacy
Code :
(1) (2) (3) (4)
(a) (ii) (i) (iv) (iii)
(b) (iii) (i) (iv) (ii)
(c) (iii) (i) (ii) (i)
(d) (iv) (ii) (iii) (i)
Answer –A
Question 11- (UGC 2014 2nd Paper Q. 43)
The maxim ―De Minimis non curat lex‖ relates to –
(A) Law takes no account of slight harm
(B) Law takes no account of trifles
(C) Exhibition of disrespect
(D) Law takes no account of annoyance
Answer – B
Question 12– Which of the following case is not related to kidnapping –

(a) State of Haryana v. Raja Ram
(b) S. Varadrajan v. State of Madras.
(c)Thakorilal D Vadgama v. State of Gujarat
(d)Tukaram v. State Of Maharashtra
Answer – D
Question 13– ―In which case it was observed, ―There is a distinction between taking and
allowing a minor to accompany a person.‖

475
(b) State of Haryana v. Raja Ram

(c) Thakorilal D Vadgama v. State of Gujarat
(d) S. Varadrajan v. State of Madras.
Answer – D
Question 14- Which of the following case is not related to section 300
(b) Cherubin Gregory v. State of Bihar
Answer – B
Question 15 – First time Supreme Court has discussed in detail differences between murder and
culpable homicide –
(a) R v. Govinda, July 18, 1876 Justice Melvil.
(b) Virsa Singh v. State of Punjab -1958 SC, Justice Vivian Bose.
(c) State of A.P. v. R.Punnayya Sept. 15, 1976, Justice Ranjit Singh Sarkaria
(d) Alister Anthony Pareira V. State of Maharashtra ( Jan. 12, 2012 Justice R.M. Lodha
Answer – C
Question 16 - ―We may summarize our views about the construction of s. 511, Indian Penal
Code, thus: A person commits the offence of ‗attempt to commit a particular offence‘ when (i)
he intends to commit that particular offence; and (ii) he, having made preparations and with the
intention to commit the offence, does an act towards its commission; such an act need not be
the penultimate act towards the commission of that offence but must be an act during the
course of committing that offence.‖ penultimate act means final act.
In which of the following case Supreme Court observed above ratio for application of section
511 of IPC –
(a) Abhayanand Mishra v. State of Bihar (24 April,1961 S.C. Justice Raghubar Dayal).
(b) Om Prakash v. State of Punjab 1961 (24 April,1961 S.C. Justice Raghubar Dayal).
(c) Sudhir Kumar Mukherjee v. State of West Bengal (1973 Justice A. Alagiriswami)
(d) State of Maharashtra v. Mohammad Yakub (1980, Justice R.S. Sarkaria)
Answer -A
Question 17 – Which is the first case in which Doctrine of Locus Paenitentiae (Time for
Repentance) was discussed thoroughly -
(a) Malkiat Singh v. State of Punjab
(b) Asgarali Pradhania v. Emperor .
(c) Queen-Empress v. Ramakka
(d) Munah Binti Ali v. Public Prosecuter
Answer – C
Question 18– Which of the following provision does not provide death sentence in rape case –
(a) Section 376A

476
(b)Section 376E
(c)Section 376D
(d)Section 376AB
Answer -C
Question 19- Section 377 has been partially declared unconstitutional in following case –
Answer – D
Question 20- Which of the following case is related to marital rape (Section 375 Exception II)
–
Answer – A
Question 21 – In which case it was said that either overt or covert act is sufficient for application
of section 34 of IPC? It was also observed that activities with binoculars or mobile phone are
sufficient and no need to presence on the spot.
Answer - B
Question 22- The ‗Doctrine of joint liability‘ as envisaged by section 34 of the IPC is based on
the decision of the following –
(a) Barendra Kumar Ghosh v. Emperor
(b) Mulcahy v. R
(c) Pandurang v. State of Hyderabad
(d) Reg v. Cruise
Answer -D
Question 23– In which of the following cases, the Supreme Court has remarked that
‗husband is not the master of his wife‘?
(a) Joseph Shine v. Union of India
(b) Sarla Mudgal, President, Kalyani v. Union of India

477
(c) Lily Thomas v. UOI

(d) Kailash Singh v. Priti Pratihar.
Answer - A
Question 24 The right to private defence against an act done by a public servant is available:
(a) When it is discharged in good faith
(b) When it is attempted to be done by him
(c) When it was done while he was not in colour of his office,
(d) When it is strictly to be justifiable by law
Answer - C
Question 25 (UP J)- ‗A‘ enters into the house of ‗B‘ with the intention to commit theft. ‗B‘
along with other members of the family surrounded and attack ‗A‘ with wooden sticks. ‗A‘
finding his life in danger fires with pistol causing death to ‗B‘. Here ‗A‘ has committed:
Option –
(b) Murder
(c) Theft
Answer - B
Question 26 (DJS)– The issue whether section 497 IPC is violative of Article 14 and 15 of the
Constitution was decided by the Supreme Court for the first time in the case of:
(a) Smt. Sowmithri Vishnu v. Union Of India & Anr.
(b) Joseph Shine v. Union of India
(c) V. Rewathi v. Union of India and
(d) Yusuf Abdul Aziz v. The State of Bombay
Answer – B
below:
List - I List-II
(a) Man (i) Section 8

(b) Gender (ii) Section 10
(c) Person (iii) Section 9
(d Number (iv) Section 11

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Code :
(1) (2) (3) (4)
(a) (i) (ii) (iii) (iv)
(b) (ii) (iv) (i) (iii)
(c) (iii) (i) (ii) (iv)
(d) (ii) (i) (iv) (iii)
Answer – d
below:
List - I List-II
(a) ―Court of Justice‖. (i) Section 18

(b) ―Judge‖ (ii) Section 19
(c) ―India‖. (iii) Section 20
(d) ―Public servant‖. (iv) Section 21
Code :
(1) (2) (3) (4)
(a) (i) (ii) (iii) (iv)
(b) (iii) (ii) (i) (iv)
(c) (iii) (i) (ii) (iv)
(d) (ii) (i) (iv) (iii)
Answer – b
below:
List - I List-II
(a) ―Dishonestly‖ (i) Section 22

(b) ―Wrongful gain‖ (ii) Section 23
(c) ―Fraudulently‖ (iii) Section 24
(d) ―Movable property‖ (iv) Section 25
Code :
(1) (2) (3) (4)

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(a) (iii) (ii) (iv) (i)

(b) (iii) (ii) (i) (iv)
(c) (iii) (i) (ii) (iv)
(d) (ii) (i) (iv) (iii)
Answer - A
below:
List - I List-II
(a) ―Voluntarily‖ (i) Section 28
(b) ―Counterfeit‖ (ii) Section 39
(c) ―Good faith‖ (iii) Section 40
(d) ―Offence‖ (iv) Section 52
Code : (1) (2) (3) (4)

(a) (iii) (ii) (iv) (i)
(b) (iii) (ii) (i) (iv)
(c) (iii) (i) (ii) (iv)
(d) (ii) (i) (iv) (iii)
Answer – D
Question 31 – In which of the following cases Lord Sumner observed ,―They also serve who
only stand and wait‖
(a) Indus River Case (Mahaboob Shah v. Emperor, )
(b) Shankari Tola Post Office case (Barendra Kumar Ghosh v. king Emperor,)
(c) J.M. Desai v. State of Bombay
(d) Gurdatta Mal v. State of U.P.
Answer – (b) Shankari Tola Post Office case
Question 32– In which case Supreme Court observed the effect of rape and siad, ―….a rapist not
only violates the victim‘s privacy and personal integrity, but inevitably causes serious
psychological as well as physical harm in the process. Rape is not merely a physical assault. It is
often destructive of the whole personality of the victim. A murderer destroys the physical body of
his victim, a rapist degrades the very soul of the helpless female.‖
Option –
(a) Tukaram v. State of Maharashtra (Mathura Rape case)
(b) State of Punjab v. Gurmit Singh
(c) Sakshi v. Union of India
(a) Deepak Gulati v. State of Haryana
Answer - (b) State of Punjab v. Gurmit Singh

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Question -33 In which of the following case differences between ‗Common Intention‖ and
―Similar Intention‖ were discussed?
Answer – C
Question -34 –Preparation to commit murder is
(a) Punishable
(b) Not punishable
(c) Punishable with fine
(d) All the above
Answer – B
Question -35 Which sections have been declared unconstitutional completely or partially?
(a) Section 303
(b) Sections 303 and 497
(c) Sections 303, 497and 377
Answer – C
Question 36 – There are four cases of rape when death sentence can be awarded. These are
Section 376 A, Section 376 E, Section 376 AB and Section 376 DB. Match List-I with List-II
and give the correct answer by using the code given below:
List - I List-II
(a) Punishment for repeat offenders. (i) Section 376 A
(b) Rape with women below the age of 12 Years (ii) Section 376 E
(c) Punishment for causing death or resulting in
persistent vegetative state of victim (iii) Section 376 AB
(d) ―Gang Rape‖ with women below the age of 12 Years (iv) Section 376 DB
Code : (1) (2) (3) (4)

(a) (iii) (ii) (iv) (i)
(b) (iii) (ii) (i) (iv)
(c) (ii) (i) (iv) (iii)
(d) (ii) (i) (iii) (iv)
Answer – D
Question 37 – Which of the following offence is not inchoate crime –
(a) abetment
(b) conspiracy

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(c) attempt
(d) Cheating
Answer D
Question 38 – Match List-I with List-II and give the correct answer by using the code given
below:
List - I List-II
(a) State of Maharastra v. Mohammad Yakub (i) 1968
(b) Sudhir Kumar Mukherjee v. State of West Bengal (ii) 1973
(c) Queen-Empress v. Ramakka (iii) 1980
(d) Malkiat Singh v. State of Punjab (iv) 1884
Code : (1) (2) (3) (4)

(a) (iii) (ii) (iv) (i)
(b) (iii) (ii) (i) (iv)
(c) (ii) (i) (iii) (iv)
(d) (ii) (i) (iii) (iv)
Answer – A
Question 39 – Who has given the following definition of crime ―Crime is an act committed or
omitted in violation of public law either forbidding or commanding it.‖
(a) Stephan
(b) Blackstone
(c) Kenny
(d) Austin
Answer – b
Question 40 – What are not essential ingredient of ―Nullum Crimen Sine Lege, Nulla Poena
Sine Lege‖-
(a) Retroactivity of penal laws.
(b) Penal statutes must be construed strictly
(c) Certainty in legislation.
(d) Accessibility of the laws.
Answer –A
Question 41 – Which of the following statement is wrong?
(a)All homicides is not culpable homicides but all culpable homicides are homicide.
(b) All culpable homicides are not murder but all murders are culpable homicide.
(c) All robbery is either theft or extortion. But all theft are not robbery.
(d) All robbery is either theft or extortion. But all extortions are robbery.
Answer – D
Question 42 – Which of the following is not essential ingredient of theft

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(a) Dishonest intention

(b) Things attached to the earth
(c) Out of the possession
(d) Without consent of the person
Answer - B
Question 43 – ―The causing of death of child in the mother‘s womb is not homicide‖ has been
discussed under
(a) Section 300 Exception 1
Answer – c
Question 44 – For the purpose of section 375 vagina includes
(a) Vagina includes labia minora
(b) Vagina includes labia majora
(c) Vagina includes labia majora, labia minora, hymen, vaginal opening
(d) Vagina includes labia majora, labia minora, hymen, vaginal opening, urethral
opening, clitoris
Answer - D
Question 45 – A man (16 years) and woman (17 years) are live in relationship. The woman
voluntarily applied her mouth to penis of the man. In heat of passion the man also applied his
mouth to vagina of the woman. After some months both became enemy to each other. Which of
the following statement is true?
(a) Man has not committed rape while woman has committed rape.
(b) Both have committed rape on each other
(c) Both have not committed rape on each other
(d) Man has committed rape while woman has not committed rape.
Answer - D
Question 46 – Z, petty girl has birthday on 09 March. A knew this fact from Facebook account
of that girl. He was interest to touch her reddish cheeks. He decided to celebrate her birth day
and he purchased a valuable cake. After celebrating birthday he rubbished some cakes on her
cheeks and inserted some parts of cake into her mouth. Both were very happy at that day. Z did
not know his malicious intention. After knowing this fact from the friend of A, Z lodged an FIR.
Which of the following offence ‗A‘ has committed
(a) Rape
(b) Attempt to rape
Answer – C

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Question 47 – For the purpose of calculation of life imprisonment, according to section 57 life
imprisonment means –
(a) 10 Years
(b) 20 Years
(c) 30 years
Answer - B
Question 48 – A fare well party was organized in Faculty of law and several film stars came to
faculty. There was huge crowd. ‗Z‘ a notorious boy of LL.B. first years inserted his finger into
anus of girl. Although she was in jeans. She realized this and suddenly reacted and slapped the
boy. She filed FIR against boy for causing rape on her. The boy took defend that he could not
insert his finger because she was in dress. Which of the following offence has been committed
by ‗Z‘?
(a) Rape
(b) Attempt to rape
(d) Attempt to rape and Outrage of modesty of woman
Answer – D
Question 49 –‗A‘ obtained a sum of rs. 10,000/-from ‗B‘ in fear of death. Which of the
following offences was committed by ‗A‘?
(a) Cheating
(b) Robbery
(c) Mischief
(d) Extortion
Answer – D
Question 50- ‗X‘ on receiving grave and sudden provocation from ‗Z‘ intentionally causesthe
death of ‗Y‘, who is ‗Z‘ brother:
(a) Murder
(b) Grievous hurt
(c) Culpable homicide not amounting to murder
(d) Attempt to murder
Answer – (a) Murder
Question 51 – A revenue officer is entrusted with public money and is directed by law to pay
into treasure all the public money which he holds. He instead of paying the same into the
treasury dishonestly misappropriates the same buying a sofa set for his personal use. What
offence has ‗A‘ committed?
(a) Dishonest misappropriation of property
(b)Criminal Breach of trust
(c) Cheating the Government

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Answer – B
Question 52 – ‗X‘ Hindu, turned his wife of the the marital home and refused to return her
ornaments, money and clothes despite her repeated demands. What offence if any, has ‗X‘
committed?
(a) Cajolery
(b) Cheating
(c) Criminal intimidation
(d) Breach of trust
Answer – D
Questions 53. Who is known as father of IPC? What is the date of enforcement of IPC?
Options –
(e) Sir James Fitzjames Stephen & January 1, 1862
(f) Sir James Fitzjames Stephen & October 6, 1860
(g) Lord Sir Thomas James Babington Macaulay & October 6, 1860
(h) Lord Sir Thomas James Babington Macaulay & January 1, 1862
(i)
Answer –D
Questions 54.Which of the following combination is wrong?
(e) Section 17 – India

(f) Section 19 – Judge
(g) Section 39 –Voluntarily
(h) Section 40 – Offence
Answer –A
Questions 55. In which of the following offence right of private defence is available?
(e) Criminal breach of trust Robbery, Mischief & Criminal Trespass

(f) Theft, Robbery, Mischief & Criminal Trespass
(g) Cheating, Theft, Robbery & Mischief
(h) Criminal Misappropriation, Criminal Trespass, Theft & Robbery,
Answer – B
Question 56- Which definition is not correctly match –
(a) Kenny ―Crimes are wrongs which sanction is punitive and is no way remissible
crown.

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(b) Stephan ―Crime is an act forbidden by law and which is at the same time revolting
to the moral sentiments of the society.‖
(C) Blackstone ―Crime is an act committed or omitted in violation of public law either
(d) Austin ―Crime is …to be commission or omission of an act which the law
forbids or commands under pain of a punishment to be imposed by the
State by a proceeding in its own name.‖
Answer – (D)
Question 57 - Who will be benefited in case of application of ‗Actus non facitreum, nisi mens sit
rea‘ ?
(e) Accused
(f) Victim
(g) Accused & Victim
(h) None of them
Answer- (a) Accused

Question 58-Which of the following is not example of strict liability?
(e) Rape
(f) Waging war
(g) Selling of obscene books
(h) Culpable Homicide
Answer- (d) Culpable Homicide

Question 59–Who said, ―The general rule applicable to criminal case is actus non facitreum, nisi
mens sit rea…It is of the utmost importance for the protection of the liberty of the subject…‖
Name of Case Justice Year

S.No.
Fowler v. Padget Lord Kenyon 1798
(a)
1889
(b) R. v.Tolson Justice Wills
Sherrasv. De Rutzen Justice Wright 1895
(c)
Brendv. Wood Justice Goddard 1946
(d)
Answer-D
Question 60 -Who had written majority opinion of State of Maharashtra v. M.H.George?
(a) Justice Ayyangar,

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(b) Justice Subbarao

(c) Justice Mudholkar
(d) JusticeHidayatullah
Answer- (a) Justice Ayyangar

Question 61- ―In every statute mens rea is to be implied unless contrary is shown‖ was said in
a. Fowler v. Padget (Lord Kenyon)

b. Sherras v. De Rutzen (Justice Wright)
c. Brend v. Wood (Justice Goddard)
d. R.v. Prince (Blackburn)
Answer – B
Question 62- General exceptions are laid down in the Indian Penal Code in
(A) Chapter VI
(B) Chapter VIII
(C) Chapter IV
(D) Chapter IV and VI
Answer -Chapter IV
Question 63- Assertion (A): Homicide is the killing of a human being by a human being
Reason (R): Homicide is always culpable
Codes:
a. Both (A) and (R) are false

b. Both (A) and (R) are true
c. (A) is false but (R) is true
d. (A) is true but (R) is false
Answer -(d). (A) is true but (R) is false.

Question 64– Which of the following statements correctly reflects the cardinal principle, ‗actus
non facit reum, nisi mens sit rea‘?
(a) Mensrea is essential element of crime and there cannot be crime without mensrea
(e) Criminal liability under Indian law always implies mensrea
(f) To constitute crime there must be actus reus, mensrea
(g) actus reus is not always necessary to constitute crime.
Answer -(c) To constitute crime there must be actusreus, mensrea
Answer (c) To constitute crime there must be actus reus, mensrea

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Question 65 – Which section of Indian Penal Code deals solitary confinement?
(a) Section 73
(b) Section 72
(c) Section 71
(d) Section 70
Answer - (a) Section 73

Question 66 -The maxim ―De Minimis non curat‖ relates to _______.
(a) Slight harm

(b) Trifles
(c) Exhibition of disrespect
(d) Annoyance
Answer- (b) Trifles
Question 67 –
Select the statement that is most suitable in law:
Culpable homicide is not murder when one is deprived of the power of self-control resulting
from :
(a) Grave and sudden provocation

(b) When death results by voluntary provocation.
(c) Where death results in course of obedience of law.
(d) When death results by mistake.
Answer-(a) Grave and sudden provocation

Question 68.Denotion of mens rea is inferred through
(e) Reason to believe

(f) Voluntarily
(g) Dishonestly
(h) All the above
Answer-(D) All the above

Question 69-Which of the following is correct
(a) Grave and sudden provocation (i) Exception II of section 300
(b) Death caused in sudden fight (ii) Exception III of section 300
©Death caused by consent (iii) Exception V of section 300
(d) Exceeding right of private defence (iv) Exception IV of section 300

488
Answer- C
Question 70. A person who causes bodily injury to another who is labouring under a disorder,
disease or bodily infirmity and thereby accelerates the death of the person. Under which it shall
be deemed to have caused his death ?
(a)Explanation I to Section 299
(b) Explanation I to Section 300
©Explanation II to Section 299
(d)Explanation II to Section 300
Answer- A
Question 71. In which provision of Indian Penal Code the definition of ‗valuable security‘ is
explained?
(a) Section 29
(b) Section 30
(c) Section 31
(d) Section 13
Answer- B. Section 30
Question 72 . State the age limit prescribed under Section 82 of Indian Penal Code in which if a
child commits an overt act is not considered as an offence?
(a) Under the age of 12 years.

(b) Under the age of 7 years.
(c) Under the age of 16 years.
(d) Under the age of 18 years.
Answer-B
Question 73 -Who said, ―To preserve one's life is generally speaking a duty, but it may be the
plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not
to live, but to die.
(a) Mansfield
(b) Coleridge
(c) Blackburn
(d) Cordozo
Answer –D. Lord Coleridge

Question 74 - A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers
from the wound. A is guilty of –
(a) Murder
(b) Attempt to murder

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(c) Abetment of attempt to murder

(d) Abetment of murder.
Answer –D
Question 75–Which of the following section is not related to Volenti non fit injuria?
(a) Section 87
(b) Section 88
(c) Section 89
(d) Section 90
Answer- D
Question 76 – In which of the following cases, the Supreme Court has remarked that
‗husband is not the master of his wife‘?
(a) Joseph Shine v. Union of India

(b) SarlaMudgal, President, Kalyani v. Union of India
(c) Lily Thomas v. UOI
(d) Kailash Singh v. PritiPratihar.
Answer (a) Joseph Shine v. Union of India
Question 77- There are some sections of IPC which have been declared partially or totally
unconstitutional. Match the following offences –
(a) Mithu Singh v. State of Punjab (April 7, 1983) (i) Section 303
(b) Navtej Singh Johar&Ors. V. Union Of India (ii) Section 375, Exception 2
(c) Independent Thought v. Union of India &Anr (iii) Section 377,
(d) Joseph Shine v. Union of India (iv) Section 497
(a) (b) (c) (d)

(A) (i) (iii) (iv) (ii)
(B) (ii) (i) (iv) (iii)
(C) (iii) (ii) (i) (iv)
(D) (i) (iii) (ii) (iv)
Answer –D
Question 78-‗A‘ enters into the house of ‗B‘ with the intention to commit theft. ‗B‘ along with
in danger fires with pistol causing death to ‗B‘. Here ‗A‘ has committed :
Option –

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(b) Murder
(c) Theft
Answer -Murder. Explanation- Right of private defence is not available against right of private
defence. It is also not available for stage manager.
Question 79- Which of the following is wrong?
Section 52A, Sea Smuggling of gold

The Indo-China Steam Customs Act, 1878
Navigation Co. Ltd. v. Jasjit
(a) Singh
RanjitD.Udeshi v. State of Section 292, IPC Selling of obscene book
(b) Maharashtra
State of Maharashtra v. FERA, 1947 Smuggling of gold
(c) M.H.George
(d) R.v. Tolson Section 57, Offences Kidnapping
Against Person Act,
1861
Answer - (d)
Question 78-―The right of private defence is a preventive and not a punitive right. In case of

(b) VishwaNath v. State of U.P.
(c) DeoNarain v. State of U.P.
Answer – C
Question 79-Which of the following case is not related to section 300 thirdly

(b) Emperor v. Dhirajia
Answer – B

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Question 80 – First time Court has discussed in detail differences between murder and culpable
homicide –

(c) R v. Govinda- Justice Melvil.
(d) Alister Anthony Pareira V. State of Maharashtra - Justice R.M. Lodha
Answer – C
Question 81- In which case it was observed, ―Self-preservation is the prime instinct of every
human being..…Section 99, IPC denotes ‗LakshmanRekha….. The right of self-defence is a
very valuable right, serving a social purpose and should not be construed narrowly…It is not
possible to weigh with golden scales whether circumstances exist to exercise right of private
defence or not. Such circumstances must not be viewed with high- powered spectacles or
microscopes‘‖
(a) DeoNarain v. State of U.P.

(b) James Martin v. State of Kerala
(c) State of U.P. v. Ram Swarup
(d) Amjad Khan v. State
Answer- (b)
Question 82- ‗A‘ a foreigner stabbed ‗B‘ another foreigner in a foreign vessel on the high seas.
Both were brought to Bombay for treatment where ‗B‘ died. ‗A‘ is also available in Bombay.
Which one of the following proposition is correct in respect of applicability of IPC to the trial of
‗A‘?
(a) As both the deceased and accused belong to foreign countries and the occurrence of
offence has taken place on the high seas, IPC is not applicable to A and hence he cannot
be prosecuted in India.
(b) IPC is not absolutely applicable to a foreigner and hence ‗A‘ cannot be tried in India.
(c) As the offence is completed in India and accused ‗A‘ is available in India. IPC is
applicable and he should be tried in at Bombay
(d) As IPC is applicable to Indians as well as foreigners ‗A‘ must be tried in India.
Answer -(a) As both the deceased and accused belong to foreign countries and the occurrence of
offence has taken place on the high seas, IPC is not applicable to A and hence he cannot be
prosecuted in India.
Question 83-‗X‘knows that ‗Y‘ is suffering from enlarged liver. Being a doctor, ‗X‘ knows that
if he gives a first blow to ‗Y‘ in the region with moderate force, it would result in rupture of Y‘s

492
liver and is likely to cause his death. Knowing this, Xgives Y a first blow which ruptures Y‘s
liver and causes his death, ‗X‘ is liable for murder under
(e) Section 300 First

(f) Section 300 Secondly
(g) Section 300 Thirdly
(h) Section 300 Fourthly
Answer-(b) Section 300 Secondly (State of Andhra Pradesh v. R. Punnaya).

Question 84-In which cases it was observed, ―culpable homicide‘ is genus and ‗murder‘ is its
species. All ‗murder‘ is ‗culpable homicide‘ but not vice-versa. There are three kinds of
‗Culpable Homicide‘ namely –1st Degree (Highest Degree-Murder),2nd Degree (Middle Degree-
Culpable Homicide caused with Intention and 3rd Degree (Lowest Degree)- Culpable Homicide
caused with Knowledge. For making the difference between murder and Culpable Homicide
‗keywords‘ must be focused.‖
(e) State of A.P. v. R.Punnayya - Justice Ranjit Singh Sarkaria

(f) Virsa Singh v. State of Punjab -Justice Vivian Bose.
(g) R v. Govinda- Justice Melvil.
(h) Emperor v. MushnooruSuryanarayana Murthy – Justice Benson
Answer- (a) State of A.P. v. R.Punnayya - Justice Ranjit Singh Sarkaria

Question85-Which are the cases in which difference between Exception 1 and Exceptions 4
were discussed?
(e) K.M. Nanavati v. State of Maharashtra (1961SC)

(f) Ghapoo Yadav&Ors. v. State of M.P. ( Feb. 2003)
(g) Surain Singh v. The State of Punjab (DOJ-10 April 2017)
(h) Both -Ghapoo Yadav&Ors. v. State of M.P. and Surain Singh v. The State of Punjab
Answer- (d) Both

Question 86–Section 105 of Indian Evidence Act is relevant to decide burden of prove whether
accused is entitled to get benefit of sections 96 to 106. The burden which rests on the accused to
prove the exception is not of the same rigour as the burden of the prosecution to prove the charge
beyond a reasonable doubt. It is enough for accused to show as in a civil case that the
preponderance of probabilities is in favour of his plea.
Which of the following case is not related burden of prove regarding ‗General Exceptions‘?
1972 Deo Narain v. State of U.P.
(a)

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May 2, 1974 State of U.P v. Ram Swarup

(b)
Nov. 24, 1978 Salim Zia v. State of U.P.
(c)
Dec. 16, 2003 James Martin v. State of Kerala
(d)
Answer- A
Question 87 -‗A‘ enters into the house of ‗B‘ with the intention to commit theft. ‗B‘ along with
Option –
(e) Culpable homicide not amounting to murder

(f) Murder
(g) Theft
(h) No offence as he acted in self –defence.
Answer – (b) Murder.

Question 88-In which case Supreme Court declared 303 of IPC unconstitutional on the basis of
violation of article 14 and 21 of the Constitution of India?
(e) Cherubin Gregory v. State of Bihar (July 31, 1963)

(f) Bachan Singh v. State of Punjab (9 May, 1980)
(g) Mithu Singh v. State of Punjab (April 7, 1983)
(h) Independent Thought v. Union Of India &Anr. 11Oct.2017.
Answer-(c) Mithu Singh v. State of Punjab (April 7, 1983)

Question 89 –There are 11 circumstances when death may be caused in exercise of right of
private defence. Which of the following pair is correct?
(e) Section 100 (6 circumstances) and 103 (4 circumstances)

(f) Section 100 (7 circumstances) and 103 (4 circumstances)
(g) Section 100 (7 circumstances) and 104 (4 circumstances)
(h) Section 99 (7 circumstances) and 103 (4 circumstances)
Answer- B
Question 90–When right of private defence is not available against public servant?
(e) Anact reasonably causes the apprehension of death

(f) Anact reasonably causes the apprehension of grievous hurt
(g) He is not acting in good faith
(h) He is acting under colour of his office

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Answer- D
Question 91-Nephews of ‗A‘ was illegally arrested. A went to police Station and asked why
have you arrested me nephews? Police asked, ―Who are you‖? He replied that he was uncle of
these and also student of Faculty of Law, University of Delhi. After listening this, they started to
beat brutally and they tried to gratify unnatural lust.
A in exercise of right of private defence
(e) had right to cause death

(f) had right either to cause deathor other harm
(g) had no right either to cause death or other harm
(h) had right either to cause death or other harm under section 103, IPC
Answer- (b) had right either to cause death or other harm

Question 92-
A, B, and C assaulted their junior and fresher X in their hostel room while ragging him. They
punched and kicked him on non-vital parts of his body as he refused to dance on a song played
by them on their mobile phone. X fell down and became unconscious. Presuming him to be dead
they hanged him from the ceiling fan by a rope, so as to create an impression that X had
committed suicide. The post-mortem examination showed that death was due to asphyxiation.
What offence has been committed by A, B and C?
(e) Culpable homicide

(f) Murder
(g) Death by negligence
(h) Voluntarily causing hurt
Answer- (d) Voluntarily causing hurt –Palani Goundan Case

Question 93– Tej had scolded Teena, daughter of Shan, for misbehaving with his daughter. Shan
did not like this and was looking for an opportunity to give good thrashing to Tej. One day Shan
saw that Tej was passing through his place and seizing this opportunity, Shan caught hold of a
stick lying nearby and gave nineteen blows with the stick on the legs and arms of Tej. Tej was
removed to a nearby hospital and died after two days. The post-mortem report attributed death to
multiple fractures on arms and legs and internal bleeding. Which offence Shan has committed?
(a) Culpable Homicide – Section 299 (b)

(b) Culpable Homicide – Section 299 (c)
(c) Murder – Section 300Thirdly
(d) Murder – Section 300 Fourthly
Answer- C

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Question 94 – In which of the following case it was clearly said that combined reading of
section 299 read with its illustration (a) denotes that section 299 does not require intention to
cause death of particular person…..Contributory action of victim or third party is immaterial…‖
(e) Virsa Singh v. State of Punjab

(f) Emperor v. M.S.Murthy (Halva Case)
(g) State of A.P. v. R.Punnayya
(a) Anda and Ors. v. The State of Rajasthan
Answer- B
Question 95 - Which of the following case is not related to right of private defence?

(b) YeshwantRao v. State of M.P.
(c) Amjad Khan v. State
(d) Fowler v. Padget
Answer-(d) Fowler v. Padget

(a) Section 52- Good Faith

(b) Section 38 - ―Voluntarily‖
(c) Section 40 – Offence
(d) Section 44- Injury
Question 97- Which Explanation deals ―Where death is caused by bodily injury, the person who
causes such bodily injury shall be deemed to have caused the death, although by resorting to
proper remedies and skilful treatment the death might have been prevented‖

(b) Section 299 Explanation 2
(c) Section 299 Explanation 3
(d) Section 300 Exception 4
Answer- (b) Section 299 Explanation 2.

Question 98 – To determine ‗Grave & Sudden Provocation‘ ‗Doctrine of Reasonable Man‘ must
be considered.
Which of the following statement is not relevant to decide ‗Doctrine of Reasonable Man‘?
(e) customs, manners, way of life, traditional values etc.

(f) the cultural, social and emotional background of the society to which an accused belongs

496
(g) there are social groups ranging from the lowest to the highest state of civilization. Level
of civilization
(h) In India, words and gestures may not cause grave and sudden provocation
Answer- (d In India, words and gestures may not cause grave and sudden provocation
Question 99 - What is not the true difference between Exception 1 and Exception 4 of Section
300, IPC?
(a) Here one party is to be blamed. He has A fight suddenly takes place, for which both
created grave and sudden provocation. parties are more or less to be blamed.
(b) It depends upon without premeditation. It depends upon premeditation.
(c) It covers matters of grave and sudden This covers matters of sudden fight.
provocation.
(d) There is total deprivation of self-control There is only that heat of passion which
clouds men‘s sober reason and urges them to
Answer- B
Question 100 – A attempts to pull Z‘s nose. Z, in the exercise of the right of private defence,
lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in
consequence, and kills Z.
(a) This is culpable homicide. A killed Z under grave and sudden and provocation.
(b) This is murder, inasmuch as the provocation was giving by a thing done in the exercise of
the right of private defence.
(c) This is culpable homicide because A cause death in sudden fight
(d) None of the above.
Answer –(b)
Question 101. Match List-I (Jurists) with List-II (Assumptions) and select the correct answer
List-I List-II
a. Lord Macauley i. Preparation of Indian Penal Code

b. Jeremy Bentham ii. Unwritten jurisprudence on penal principles
c. Kelson iii.Substantive law on crimes
d. Sir Barnes Peacock iv. Revision on Penal law
Code:
a b c d
A. i ii iii iv
B. ii iii iv i

497
C. iii iv i ii
D. ii iii iv i
Answer. A
Question 102. Match the items of List-I(IPC section) with List-II and choose the correct answer
from the code given below:
List-I List-II
a.Section 44 i. Life
b.Section 45 ii.Death
c. Section 46 iii.Animal
d.Section 47 iv.Injury
Code:
a b c d
A.iv ii iii i
B.ii iii iv i
C.iv i ii iii
D.ii i iii iv
Answer.C
Question 103- Causing death of a child in mother‘s womb:
E. Is always homicide
F. With intent to cause miscarriage is homicide
G. Is culpable homicide
H. Is culpable homicide if any part of such child has been brought forth, though the child may
not have breathed or been completely born
Answer- D
Question 104. ‗A‘ digs a pit and leaves four deadly and poisonous snakes into it with the
intention of causing death to others. ‗B‘ falls in the pit and is bitten by a snake and dies. ‗A‘ is
guilty, if any, of
A. Culpable homicide not amounting to murder under section 299 IPC

B. Voluntarily causing grievous hurt under section 326 IPC
C. Murder under section 300
D. No offence
Answer- A
Question 105. A servant collected money from the debtor of his master authorized by him. The
servant retained the money because it was due to him as wages. He commits:
A. Criminal breach of trust

B. No Offence
C. Theft
D. Criminal misappropriation

498
Answer- D
Question 106. ‗X‘ has consensual sexual relations with ‗Z‘s wife. She gives to ‗X‘ a valuable
property which ‗X‘ knows to belong to her husband ‗Z‘ and she has no authority from ‗Z‘ to
give. ‗X‘ takes the property. Which of the following offences have been committed by ‗X‘?
A. Criminal breach of trust

B. Theft
C. Criminal misappropriation
D. Theft and Criminal misappropriation
Answer- B
Question 107. Common intention implies
A. Similar intention
B. Pre-arranged planning
C. Presence of common knowledge
D. Common design for common objects
Answer- B
Question 108. ―In every statute, mens rea is to be implied unless the contrary is shown.‖:
This view was expressed in-
A. Sherras v. De Rutzen
B. R. v. Dudley & Stephen
C. Harding v. Price
D. R. v. Prince.
Answer. A
Question 109. Under section 82 & section 83 of IPC an offence is punishable if it is done by a
child:
A. of below seven years of age
B. of above seven years of age but below twelve years if he has not attained sufficient maturity
and understanding
C. of above seven years of age but below twelve years having attained sufficient maturity and
understanding
D. all the above.
Answer. C
Question 110. Match the List-I (Name of Case) with List-II(Offence) and choose the correct
List-I List-II
Vishwanath v state of U.P i. Kidnapping
State of Punjab v Major singh ii.Private defence
S.Varadarajan v. State of Madras iii.Modesty of Women

499
Amar singh v. State of Rajasthan iv.Dowry death

Code:
a b c d
ii iii iv i
ii iii i iv
iv ii iii i
iv ii i iii
Answer:B
Question 111. Section 84 of IPC provides for:
A. medical insanity
B. legal insanity
C. moral insanity
D. unsoundness of mind of any kind.
Answer. B
Question 112. Match the List-I (Punishment) with List-II(IPC section) and choose the correct
List-I List-II
Punishment for gang rape on woman under 16 years of age i.Section 376AB
Punishment for gang rape on woman under 12 years of age ii.Section 376DB
Punishment for rape on woman under 12 years of age iii.Section 376D
Punishment for gang rape iv.Section 376 DA
Code:
a b c d
ii iii iv i
ii iv i iii
iv ii iii i
iv ii i iii
Answer:D
Question 113. The principle ‗de minimus non curat lex‘ is contained in:
A. section 92 of IPC
B. section 93 of IPC
C. section 94 of IPC
D. section 95 of IPC.
Answer. D
Question 114. Right to private defence is:
A. available under all circumstances
B. available where there is time to have the recourse to the protection of public authorities

500
C. available where there is no time to have recourse to the protection of public authorities
D. all of the above.
Answer. C
Question 115. Which of the following is false of Section 34 and Section 149 of the IPC?
A. S. 34 does not by itself create any specific offence whereas S. 149 does so
B. Some active participation in crime is required in S. 34 while it is not needed in S. 149
C. S. 34 speaks of common intention while S. 149 contemplates common object
D. S. 34 requires at least five persons who must share the common intention while S. 149
requires at least two persons to share the common intention
Answer. D
Question 116. Match List-I (Objectives) with List-II(Propositions) and select the correct answer
List-I List-II
a. Inchoate crime i.Whaton says it is the beginning but not complete
b. Attempt ii.It does not act towards the commission of offence
c. Preparation iii.Culprit commences to do something
d. Intention iv.When preparation merges itself with attempt
Codes:
a b c d
ii iii iv i
i ii iii iv
iv ii iii i
iv ii i iii
Answer:B
Question 117. How many types of punishments have been prescribed under the Indian Penal
Code:
A. three
B. six
C. five
D. four.
Answer. C
Question 118. Under section 65 of IPC sentence of imprisonment for non-payment of fine shall
be limited to:
A. one-third of the maximum term of imprisonment fixed for the offence
B. one-fourth of the maximum term of imprisonment fixed for the offence
C. one-half of the maximum term of imprisonment fixed for the offence
D. equal to the maximum term of imprisonment fixed for the offence
Answer. B
Question 119. Match List-I with List-II and give the correct answer by using the code given
below:

501
List-I List-II
Mehboob shah v. Emperor i.Mens Rea
State of Maharastra v. M.H.George ii.Intoxication
Director of Public Prosecution v. Beard iii.Common Intention
R.V.Dudley v. Stephens iv.Necessity
Code:
a b c d
i ii iii iv
ii iv i iii
iii i ii iv
iv ii iii i
Answer. C
Question 120. Read Assertion(A) and Reason (R) and give the correct answer by using the code
given below:
Assertion(A): 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 exact nature of the act.
Reason(R): Mistake of fact is a good defence and mistake of law is no defence.
Code:
Both A and R are true and R is the correct explanation of A.
Both A and R are true and R is not the correct explanation of A.
A is true but R is false
A is false but R is true
Answer.B

502
General Exceptions

Law Centre-1, FOL,
Delhi University, Delhi
Introduction –
Chapter IV of Indian Penal Code, 1860 deals ‗General Exceptions‘. This Chapter contains
Sections 76 to 106. The Chapter provides immunities on the grounds of either excusable or
justiciable acts. Section 6643 of the Code says that definitions in the Code shall be understood
subject to ‗General Exceptions‘. There is no need to repeat general exceptions in each and every
section. Two illustrations mentions in Section 6 clarify this point. These illustrations are –
Illustration (a) - The sections, in this Code, which contain definitions of offences, do not express
that a child under seven years of age cannot commit such offences; but the definitions are to be
understood subject to the general exception which provides that nothing shall be an offence
which is done by a child under seven years of age.
Illustration (b) - A, a police-officer, without warrant, apprehends Z, who has committed murder.
Here A is not guilty of the offence of wrongful confinement; for he was bound by law to
apprehend Z, and therefore the case falls within the general exception which provides that
―nothing is an offence which is done by a person who is bound by law to do it‖.
This Chapter is based on the following principles –
 Any person who is doing acts in good faith must be protected.

 If any person is doing acts in compliance of law, he must not be punished.
 A person who is incompetent to commit crime, he must not be punished.
 State can‘t protect its citizens in each and every circumstance. So person can‘t be
punished if he does any act in order to protect his own body or property or other‘s body
or property.
Section 76. Act done by a person bound, or by mistake of fact believing himself bound, by law.
- Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact
and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.
Illustrations
(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the
commands of the law. A has committed no offence.
(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and after due
enquiry, believing Z to be Y, arrests Z. A has committed no offence.
643
Section 6. Definitions in the Code to be understood subject to exceptions. - Throughout this Code every
definition of an offence, every penal provision, and every illustration of every such definition or penal provision,
shall be understood subject to the exceptions contained in the Chapter entitled ―General Exceptions‖, though those
exceptions are not repeated in such definition, penal provision, or illustration.

503
COMMENT
Section 76 is of declaratory nature. It is based on ‗Ignorantia facti excusat, Ignorantia juris (legis)
non (neminem) execusat‘. It means ignorance of fact is excusable, but ignorance of law is not
excusable. State of West Bengal v. Shew Mangal Singh and Ors.644 is leading case on Section 76.
1. There must be an act.645

2. Act must be done
 Either by person who is bound by law
 Or by person who by reason of a mistake of fact in good faith646 believes himself to be,
bound by law to do it. This mistake must not be regarding law.
Acts
Done by
Person who is not bound by law but he

Person bound by law
believes in good faith to be bound by law
There are two parts of Section 76. There are following differences between both parts –
Grounds First Part Second Part
Believe Bound by law is sufficient. He is not bound by law. But he
believes that he is bound by law.
Good Faith This part does not require ‗Good This part requires ‗Good Faith‘. If a
Faith‘. If a person who is bound by person who believes that he is bound
law does an act even with mala by law does an act with mala fides
fides intention, he will be protected intention, he will not be protected
under Section 76 First part. under Section 76 second part.
Section 77. Act of Judge when acting judicially - Nothing is an offence which is done by a
Judge when acting judicially in the exercise of any power which is, or which in good faith he
believes to be, given to him by law.
Comments
Section 19 defines ‗Judges‘.647 Many times judges convict accused and he is fined or imprisoned
or accused hanged till death. Section 77 protects activities of judges which had been done in
644
Date of Judgment: August 25, 1981. AIR 1981 SC 1917. Available at:
https://main.sci.gov.in/judgment/judis/10014.pdf (Visited on January 5, 2022).
645
Section 33. ―Act‖. ―Omission‖.—The word ―act‖ denotes as well as series of acts as a single act: the word
646
Section 52 ―Good faith‖ - Nothing is said to be done or believed in ―good faith‖ which is done or believed
without due care and attention.
647
19. ―Judge‖.- The word ―Judge‖ denotes not only every person who is officially designated as a Judge, but also
every person.

504
exercise of judicial powers. But it protects only those acts which are done either in the exercise
of the power conferred to him or he belief in good faith that the power conferred to him. Even
judges will be convicted for committing of rape. Commission of rape can‘t be said that he was
acting judicial function.
Act of Judge
He is not bound by law. But he believes

Bound by Law
that he was bound by law
Section 78. Act done pursuant to the judgment or order of Court - Nothing which is done in
pursuance of, or which is warranted by the judgment or order of, a Court of Justice; if done
whilst such judgment or order remains in force, is an offence, notwithstanding the Court may
have had no jurisdiction to pass such judgment or order, provided the person doing the act in
good faith believes that the Court had such jurisdiction.
Comments
Section 78 protects those persons and authorities who perform acts in compliance of Court of
Justice. Section 20, IPC defines Court of Justice. If such acts are done in good faith, even
defective jurisdiction of Court of Justice can‘t make him liable. The Section also protects those
persons who executes death sentence.
Section 79. Act done by a person justified, or by mistake of fact believing himself, justified,
by law - Nothing is an offence which is done by any person who is justified by law, or who by
reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself
to be justified by law, in doing it.
Illustration
A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment
exerted in good faith, of the power which the law gives to all persons of apprehending murderers
in the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no
offence, though it may turn out that Z was acting in self-defence.
Comments
Section 76 provides protection to those persons who are bound by law or believes to be bound by
law. Section 79 provides protection to those persons who are justified by law or believes to be
justified by law.
Similarities and Differences between Section 76 & Section 79
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 or persons, which body of persons is empowered by law to give such a judgment.

505
There are two parts of Section 76 and Section 79. Second part of both Sections requires good
faith. Both Sections declare certain acts are not an offence if it is done by persons as prescribed
in Section 76 and Section 79. Second part of both Sections requires that mistake must be
mistake of fact rather than mistake of law.
There are following differences between both Sections -
Ground Section 76 Section 79
Bound/Justified This Section requires that act must This Section requires that act must be
be done by person bound by law. done by person justified by law.
Believe He must believe that he is bound He must believe that he is justified by
by law. law.
Section 80. Accident in doing a lawful act - Nothing is an offence which is done by accident or
misfortune and without any criminal intention or knowledge in the doing of a lawful act in a
lawful manner by lawful means and with proper care and caution.
Illustration
A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there
was no want of proper caution on the part of A, his act is excusable and not an offence.
Comments
Section 80 deals certain excusable acts. Starting line of Sections 76 to 80 is ‗nothing is an
offence…‘Offence‘ word has been defined under Section 40. Word ‗Crime‘ has not been used in
these sections. You have always to keep in your mind differences between ‗Offence‘ and Crime‘.
These sections protect ‗Act‘. ‗Act‘ word has been defined under Section 33.648 Sections 76 to 79
uses word ‗good faith‘ as defined in Section 52, while Section 80 does not use word ‗good faith‘.
But word ‗proper care and caution‘ denotes that act should also have been done in good faith for
getting protection of Section 80.
There are following essential ingredients of Section 80 –
1. Act must be done either by accident or misfortune.

2. This act must be done without any criminal intention or knowledge.
3. That act must be done in the doing of a lawful act.
4. That lawful act must be done in a lawful manner by lawful means and
5. That lawful act must be done with proper care and caution.
Leading Cases
Tunda v. Rex649 and Bhupendra Singh Chavdasama v. State of Gujarat650 are leading cases on
this points.
648
The word ―act‖ denotes as well as series of acts as a single act.
649
1950 All.H.C.
650
1997

506
Section 81. Act likely to cause harm, but done without criminal intent, and to prevent other
harm - Nothing is an offence merely by reason of its being done with the knowledge that it is
likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith
for the purpose of preventing or avoiding other harm to person or property.
Explanation.—It is a question of fact in such a case whether the harm to be prevented or avoided
was of such a nature and so imminent as to justify or excuse the risk of doing the act with the
knowledge that it was likely to cause harm.
Illustrations
(a) A, the captain of a steam vessel, suddenly, and without any fault or negligence on his part,
finds himself in such a position that, before he can stop his vessel, he must inevitably run down a
boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and
that, by changing his course, he must incur risk of running down a boat C with only two
passengers on board, which he may possibly clear. Here, if A alters his course without any
intention to run down the boat C and in good faith for the purpose of avoiding the danger to the
passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by
doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that
the danger which he intended to avoid was such as to excuse him in incurring the risk of running
down C.
(b) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He
does this with the intention in good faith of saving human life or property. Here, if it be found
that the harm to be prevented was of such a nature and so imminent as to excuse A's act, A is not
guilty of the offence.
Comments
This Section is based on ‗Quid Necessitas Non Habet Legam‘. It means quick necessity does not
know law. This Section is based on ‗Doctrine of Necessity‘ or ‗Doctrine of Inevitable
Accidents‘. Both illustrations explain these points clearly. Section 80 gives protection when act
has been done without intention and knowledge by accident or misfortune. Section 81 gives
protection even act has been done with knowledge. This Section does not give protection if an
act has been done with intention. There are following differences between Sections 80 and 81 -
Section 80 Section 81
Accident or misfortune Necessity
Section 80 is applicable when any This section protects when act has been done in case
act has been done by accident or of necessity to protect other person or property. This is
misfortune at the time of doing lawful based on ‗Doctrine of Necessity‘ or Doctrine of
act in lawful manner Inevitable Accident‘.
Without Intention or Knowledge Without Intention
Section 80 protects only those acts Section 81 protects only those acts which have been
which have been done without done without intention. It means it also protects those
intention or knowledge. acts which have been done even with knowledge.

507
There are following leading cases on this points –

English Cases
1. Mouse‘s Case (1608)

2. R. v. Dudley and Stephan (1884) [Lord Coleridge]
Indian Cases
1. Dhania Daji v. Emperor (1868)

2. Gopal Naidu and Anr. v. King Emperor (1922).
Mouse‘s Case651 (1608)

A ferryman was carrying forty-seven people, including one named Mouse, when a storm
threatened the barge. Another, one passenger threw the cargo overboard to save the barge.
Mouse‘s casket included £113 inside and he sued the passenger for its loss. The court found that
in cases of necessity, anyone may act to save lives and there is no liability to them, although
there may be liability against the ferryman. It was, however, still encumbered on the ferryman to
contribute to reimburse of the loss.652
R. v. Dudley and Stephan653 (1884) [Lord Coleridge]
Facts – There were four persons namely

1. Dudley
2. Stephens
3. Brooks and
4. Parker(victim)
These persons were crew of a yatch. They were cast away in a storm and were compelled to put
into an open boat which had no water or food. On twentieth day Dudley and Stephan became
ready to kill Parker. Brooks was not in favour of killing of Parker. Dudley and Stephan killed
Parker who was youngest and weakest. All three persons feed the body of Parker. On the fourth
day of killing, they were rescued.654
Dudley and Stephan were prosecuted for murder.
Issues –
1. Was killing of Parker murder?

Answer - Yes
2. Were Dudley and Stephan entitled for getting the benefit of necessity?
Answer – No.
651
(1608) 77 E.R. 1341.
652
Available at: https://en.wikipedia.org/wiki/Mouse%27s_case (Visited on January 6, 2022)
653
(1884) QBD 273 (DC). Date of Judgment: December 09, 1984.
654
V Suresh & D Nagasaila (Eds.), PSA Pillai Criminal Law 97 – 98 (LexisNexis Butterworth, New Delhi, 9th Ed,
2000).

508
Both were convicted for murder. Their defense based on necessity was rejected on the ground
that for saving own life, taking life of other is not allowed. Lord Coleridge observed, ―To
preserve one‘s life is generally speaking a duty, but it may be the plainest and the highest duty to
sacrifice it. War is full of instances in which it is a man‘s duty not to live, but to die. The duty, in
case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women
and children, as in the noble case of the Birkenhead (Birkenheadis the name of British ship);
these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of
their lives for others, from which in no country, least of all, it is to be hoped, in England, will
men ever shrink, as indeed, they have not shrunk.‖
Remarks – Killing of another person is allowed only in exercise of right of private defence.
Dhania Daji v. Emperor655
The accused was a toddy tapper. He observed that toddy was brewing stolen from the trees
regularly. To prevent it, he poisoned toddy in some of the trees. He sold toddy from other trees.
However, by mistake the poisoned toddy was mixed with other toddy, and some of the
consumers were injured and one of them had died. He was prosecuted. He took the plea of
Section 81.The Privy Council did not accept the contention of the just necessitas, as mixing
poison was done by the accused intentionally and also with the knowledge that it would cause
grave danger to the people. The accused was punished under section 328.
Gopal Naidu and Anr. v. King-Emperor
The accused was a rich person in a village. He drank and created public nuisance and also grave
danger to the public. The village Magistrate arrested him. The accused filed a case against the
village Magistrate. Hon‘ble Justice Phillips upheld the act of village Magistrate as it was
necessary to protect the people from the grave danger of the drunken accused.
Legal Standard of Proof in Criminal Law
Abstract
Crime is committed against victims, society and State. Society and its priority are changing very
fast. Many new types of crimes are being committed with sophisticated weapons and method.
Traditional way to deal such offences is insufficient. Justice is triangle. It is not only for accused
but also victims and society. ‗Presumption of innocence‘ is obliterated by many countries.
Standard of proof affects conviction rate. There are many types of standard of proof namely,
preponderance of probability, Clear and Convincing, Beyond Reasonable Doubts and just fair
655
(1868) 5 B.H.C(Cr.C.) 59

509
and reasonable. Common Law Countries and Civil Law Countries follow different standard of
proof in civil and criminal cases.656 Different standard of proof is followed in Common Law
Countries for civil and criminal Matters657 while same standard of proof is followed in civil and
criminal Matters in France.658
Standard of proof in India was very clear at the initial stage. ‗Preponderance of probability‘ and
‗Beyond reasonable doubts‘ were applicable civil law and criminal law respectively. Trend is
changing. ‗Preponderance of probability‘ is also applicable in criminal cases either through
judgments or clear term of statutes.
‗Clear and Convincing‘ standard of proof is also in criminal cases in many countries including
USA. In this Article, the researcher will discuss many types of legal standard of proof and he
will try to find out best suitable form of standards of proof in criminal law in context of India.
Key-words
Proof, ‗Presumption of innocence‘ ‗Beyond reasonable doubts‘, ‗Preponderance of probability‘

‗Clear and Convincing‘
(1) Kinds of Standard of Proof in Criminal Law
While the concept of ―presumption of innocence‖ maintains its pivotal position in the criminal
law jurisprudence, there is a steady shifting of burden of proof to tackle the new problems such
as growing socio-economic problems, emergence of new and graver crimes, terrorism, organised
crimes, poor rate of conviction, practical difficulties in securing the evidence etc. 659 In these
circumstances, it is important to understand all kinds of standard of proof and find suitable
standard of proof by which justice can be served to victims, accused and society.
International Convention on Civil and Political Rights has recognised in Article 14(2) the right of
the accused ‗to be presumed innocent until proved guilty according to law‘. In other words
though presumption of innocent is universally recognised the mode of proof which includes the
standard of proof is a matter which is left to be regulated by law made at the discretion of the
respective States.
In USA, the standard of proof adopted in criminal cases is ―proof beyond reasonable doubt‖. But
in cases of fraud some of the States in USA have adopted a lower standard called the ―clear and
convincing standard‖. This demonstrates that depending upon the local conditions and the
requirements of the situation, the law-makers have prescribed standards lower than ―proof
beyond reasonable doubt‖.
656
Kevin M. Clermont and Emily Sherwin, ―A Comparative View of Standards of Proof‖ 50 The Am. J. of Comp.
Law. 243 (2002).
657
Law. 251 (2002).
658
Law. 250 (2002).
659
Para 5.9, Malimath Committee Report, 2003.

510
―Proof beyond reasonable doubt‖ is not a standard of universal application. France has not
adopted this standard. The French standard is ―in time conviction‖ or inner conviction, the same
as ―proof on preponderance of probabilities‖.660 India has also accepted preponderance of
probabilities in criminal law to prove many things.661 Indian Parliament has enacted many
criminal laws in which standard of proof have been modified. Some of these statutes are NDPS
Act, 1985662 and POCSO, 2012663.
In Cook v. Michael,664 Oregon Supreme Court stated that there are three standards of proof: ―a
preponderance,‖ ―clear and convincing‖ and ―beyond a reasonable doubt.‖ 665
 Proof by a ‗preponderance of the evidence‘ means that the jury must believe that the
facts asserted are more probably true than false.
 To be ‗clear and convincing,‘ evidence must establish that the truth of the facts asserted is
‗highly probable.‘
 ‗Beyond a reasonable doubt‘ means that the facts asserted are almost certainly true.
Ratio of Cook v. Michel was followed in many judgment including Riley Hill General
Contractor Inc. v. Tandy Corp,666 There are three standards of proof: ―a preponderance‖, ―clear
and convincing‖ and ―beyond a reasonable doubt‖.
In the ordinary civil case, the plaintiff must meet its burden of proof by a preponderance of the
evidence.667 In a criminal case, the prosecution must establish its allegations by proof beyond a
reasonable doubt.668 In certain cases that fall between these classes, the standard is commonly
articulated as one of evidence that is clear and convincing, which is often coupled with such
terms as ―unequivocal‖ and ―cogent.‖669
The Malimath Commettee suggested, ―The middle course, in our opinion, makes a proper
balance between the rights of the accused on one hand and public interest and rights of the victim
on the other. This standard is just, fair and reasonable. It is operated not by layman but by Judges
who are sensitive to the rights of the accused and recognised in criminal jurisprudence. Safety
lies in the fact that the accused is assisted by a lawyer and the Judge is required to give reasons
for his findings. This will promote public confidence and contribute to better quality of justice to
victims. It is time for realm of doubts to pave way for search for truth and justice.670
660
661
State (Delhi Administration) v. Sanjay Gandhi.
662
Section 35 (2), NDPS Act, 1985
663
Section 30, POCSO, 2012
664
214 Or. 513, 526-27, 330 P.2d 1026 (1958).
665
Lee Loevinger, ‗Standards of Proof in Science and Law‘ vol. 32, no. 3, Jurimetrics 333 (1992). Available at:
https://www.jstor.org/stable/29762257 (Visited on January 31, 2022 ).
666
737 P.2d 595 (Or.1987). Available at: https://law.justia.com/cases/oregon/supreme-court/1987/303-or-390.html (
Visited on January 29, 2022).
667
Grogan v. Garner,111 S. Ct. 654 (1991).
668
United States v. Interstate Eng‘g, 288 F. Supp. 402 (D.N.H. 1967).
669
Lee Loevinger, ‗Standards of Proof in Science and Law‘ vol. 32, no. 3, Jurimetrics 333 (1992). Available at:
https://www.jstor.org/stable/29762257 (Visited on January 31, 2022 ).
670

511
Standard of Proof
Malimath Committee [Para

5.30]
Preponderance of Clear and convincing / Beyond a reasonable

Probabilities doubt
Just, Fair and Reasonable
(2) Preponderance of probabilities
[2.1] Origin
―Preponderance‖ derives from the Latin word ―praeponderare,‖ which translates to ―outweigh,
be of greater weight.‖ With regard to the burden of proof or persuasion in civil actions, it is
generally accepted to mean the greater weight of evidence. At one time in the history of English
law, the translation received a literal interpretation, with heads of witnesses being counted on
each side, and each item of testimony receiving a quantitative value or weight. The term suggests
to the jury that the evidence should be weighed on a scale and, frequently, trial judges will speak
of weights and scales in explaining to jurors under this standard that they cannot speculate or
guess what happened but that a party with the burden of persuasion in a civil case must prove
what probably occurred.671
[2.2.] Meaning
‗Preponderance of the evidence‘ means the greater weight of evidence. It is such evidence that,
when weighed with that opposed to it, has more convincing force and is more probably true and
accurate.672 The phrase ―preponderance of probability‖ appears to have been taken from Charles
R. Cooper v. F.W. Slade.673 & 674 The observations made therein make it clear that what
―preponderance of probability‖ means is ―more probable and rational view of the case‖, not
necessarily as certain as the pleading should be.675 That standard which a prudent man would
apply is of ―preponderance of probabilities‖.676 Preponderance of probabilities implies balance of
evidence. In order to succeed, the party must make out balance of evidence in his favour. 677 Tilt
of probability is favour is preponderance of probabilities. For example if there are 100 point. 51
points are in favour of ‗X‘ and 49 points are in favour of ‗Y‘. It will be called that preponderance
of probabilities are in favour of ‗X‘.
671
Riley Hill General Contractor Inc. v. Tandy Corp.
672
Ibid. Riley Hill General Contractor Inc. v. Tandy Corp.
673
(1857-59) 6 HLC 746.
674
Rishi Kesh Singh And Ors. v. The State, Para 61, AIR 1970 All 51.
675
Rishi Kesh Singh And Ors. v. The State, Para 61, AIR 1970 All 51. The case was decided on October 18, 1968.
676
677
Rishi Kesh Singh And Ors. v. The State, Para 13. AIR 1970 All 51. The case was decided on October 18, 1968.

512
There are two limbs of definition of prove and disprove as defined under Section 3 of the Indian
Evidence Act, 1872. Allahabad High Court observed that similar inference to Charles R. Cooper
v. F.W. Slade678 can be drawn from section 3 of the Indian Evidence Act, 1872.
[2.3] Application
Civil cases in India are governed by the standard of proof prescribed by section 3679 of the Indian
Evidence Act namely, preponderance of probabilities.680 India has also accepted preponderance
of probabilities in criminal law to prove many things.681 In State (Delhi Administration) v.
Sanjay Gandhi,682 Hon‘ble Chief Justice Y.V. Chandrachud observed, ‗In incidental matters of
criminal law there is no need to be proved beyond reasonable doubt. For example sections 83,
100,164 of Cr.P.C. and section 27 of Indian Evidence Act. In cases where the statute raises a
presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to
rebut that presumption by proving his defence by a balance of probabilities. For cancellation of
bail, balance of probabilities is sufficient. It was further observed that in case of rejection or
cancellation of bail, proving of facts by preponderance of probabilities would be sufficient. In
many cases it had been accepted that accused can get benefit of general exception or any
exception merely by proving fact by preponderance of probabilities.683
(3) ―Clear and convincing standard‖
Historically, the ―clear and convincing‖ standard of proof was first applied in equity to claims
which experience had shown to be inherently subject to fabrication, lapse of memory, or the
flexibility of conscience. This demonstrates that depending upon the local conditions and the
requirements of the situation, the law-makers have prescribed standards lower than ―proof
beyond reasonable doubt‖.684
In USA, the standard of proof adopted in criminal cases is ―proof beyond reasonable doubt‖. But
in cases of fraud some of the States in USA have adopted a lower standard called the ―clear and
convincing standard‖. In short, ―clear‖ describes the character of unambiguous evidence,
whether true or false; ―convincing‖ describes the effect of evidence on an observer.685
(4) ―Proof beyond reasonable doubt‖
[4.1] Origin –
The principle ―proof beyond reasonable doubt‖ was evolved in the context of the system of jury
trial in the UK.686 The courts believe that it is better that ten guilty persons escape rather than one
678
(1857-59) 6 HLC 746.
679
―Proved‖ and ―Disproved‖ word has been defined under Section 3 of the Indian Evidence Act, 1872. On the basis
of these definitions, The Malimath Committee concluded that section 3 deals ―preponderance of probabilities.
680
681
NDPS Act, 1985 and POCSO Act, 2013.
682
May 5, 1978. This case is also known as ‗Kissa Kursi Ka‘.
683
State of U.P. v. Ram Swarup & Anr. AIR 1974 SC 1570., Salim Zia v. State of U.P. AIR 1979 SC 391., Jams
Martin v. State of Kerala (2004) 2 SCC 203
684
685
Riley Hill General Contractor Inc. v. Tandy Corp.
686

513
innocent person suffer. It is from such concern of the courts to safeguard personal liberty of the
citizens that flows the standard of ‗proof beyond reasonable doubt‘. It is developed through
judgments.687
[4.2] Meaning
―Proof beyond reasonable doubt‖ is understood by different Judges differently. How this
principle actually operates in the minds of the decision maker is not easy to gather. 688 It is
subjective test.689 Many jurists had criticized it.
In Woolmington v. Director of Public Prisons,690 the House of Lords observed that ―proof
beyond reasonable doubt‖ required ―a clear conviction of guilt and not merely a suspicion, even
a strong suspicion, though on the other hand a mere fanciful doubt where it was not in the least
likely to be true would not prevent conviction‖. Shortly thereafter in Summer‘s case, 691 the Court
of Appeal ruled that the expression ―reasonable doubt‘ ought to be abandoned because it could
not be satisfactorily defined.
[4.3.] Who will prove ‗Beyond reasonable Doubts?

Commission of crime was being treated against State. State was very powerful and resourceful.
So for giving protection to accused, certain presumptions were drawn in favour of accused.
―presumption of innocence‖ was most important presumption which later on became basic
instinct of criminal law. It was recognised all over world.692
Prosecutor was bound to prove beyond reasonable doubt. Accused was not bound to prove
beyond reasonable doubts. But Indian Parliament had enacted certain laws in which accused are
bound to prove beyond reasonable doubts.693
[4.4.] Criticism of ―Proof beyond reasonable doubt‖

Courts have quite often observed that though they are convinced that the accused is guilty they
have to acquit him because there is some reasonable doubt. Chief Justice Ahmadi says that in
actual practice, in a large number of cases ―proof beyond reasonable doubt‖ virtually becomes
―proof beyond doubt‖. There is considerable subjective element involved in coming to the
conclusion that the doubt is a reasonable one. In the process, instead of focusing on discovering
truth, attention is drawn to the doubts and about their reasonableness. It is common knowledge
that most of the acquittals flow from the finding of the court that the prosecution has failed to
prove its case beyond reasonable doubt and that therefore the accused is entitled to the benefit of
doubt. Very grave consequences flow from the large percentage of acquittals of guilty persons.
More the number of acquittals of the guilty, more are the criminals that are let loose on the
society to commit more crimes. This they would do with greater daring for they know by their
own experience that there is no chance of their being punished. If the loopholes are not tightened,
687
688
689
690
1935 AC 462.
691
(1952) 36 C.A.R.14.
692
International Convention on Civil and Political Rights 1966, Article 14(2).
693
POCSO Act, 2012: Section 30 and NDPS Act, 1985: Section 35.

514
there will in course time be more criminals in the society to cause more harm to innocent
citizens. Such criminals may occupy important and sensitive position in public life. If criminals
start ruling the country one can imagine the consequences. If crimes go unchecked anarchy will
not be a matter of distant future. Peace and law & order situation depend to a large extent on the
efficacy of the Criminal Justice System. There is therefore an imperative need to provide a fair
procedure that does not allow easy escape for the guilty. In Shivaji v. State of Maharashtra,694
Justice Krishna Iyer while criticizing the view that it is better that several guilty persons should
escape than making one innocent person to suffer said that public accountability is one of the
most important responsibilities of the judiciary. Therefore, if the accused is acquitted on the basis
of every suspicion or doubt, the judicial system will lose its credibility with the community.
Proof beyond reasonable doubt clearly imposes an onerous task on the prosecution to anticipate
every possible defence of the accused and to establish that each such defence could not be made
out.695
(5) Differences among ―Proof beyond reasonable doubt‖ clear and convincing and
―Preponderance of Probabilities‖
There are following differences between ‗Proof beyond a reasonable doubt‘ and ‗preponderance
of probability‘ –
 Meaning – The standard of preponderance of the evidence translates into more- likely-
than-not. It is the usual standard in civil litigation, but it appears throughout law. Next
comes the intermediate standard or standards, often grouped under the banner of clear
and convincing evidence and roughly translated as much-more- likely-than-not.... These
apply to certain issues in special situations, such as when terminating parental rights. The
standard of proof beyond a reasonable doubt means proof to a virtual certainty. It rarely
prevails outside criminal law. 696
 Application - ‗Proof beyond reasonable doubt‘ is applicable only in criminal cases.
‗Preponderance of probability‘ is applicable in civil cases697 as well as in certain cases of
criminal law698.
 Effect – In case of application of ‗preponderance of probability‘ conviction rate will be
lower in comparison to application of ‗Proof beyond reasonable doubt‘.
(6) Burden of prove for getting benefit of General Exceptions or Exception
Hon‘ble Supreme Court had interpreted Section 3 read with Section 105699 of the Indian
Evidence Act, 1872 In many cases and held that accused may get benefit of General Exceptions
694
(1973) Cri.L.J. 1783.
695
696
Law. 251 (2002).
697
698
State (Delhi Administration) v. Sanjay Gandhi, POCSO Act, 2012 & NDPS Act, 1985.

515
in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in
any other part of the same Code by preponderance of probabilities. There are many relevant
cases which are relevant on these points -
(6.1.) State of U.P. v. Ram Swarup

In State of U.P. v. Ram Swarup & Anr.700 & 701 victim had started to run away. He was shot dead.
In this case Supreme Court said that the right of private defence constitutes a general exception
to the offences defined in the Penal Code. The burden which rests on the accused to prove the
exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a
reasonable doubt. It is enough for accused to show as in a civil case that the preponderance of
probabilities is in favour of his plea.
(6.2.) Salim Zia v. State of U.P.

In Salim Zia v. State of U.P. (1978) Supreme Court observed, ―It is true that the burden on all
accused person to establish the plea of self defence is not as onerous as the one which lies on the
prosecution and that while the prosecution is required to prove its case beyond reasonable doubt,
the accused need not establish the plea to the hilt and may discharge his onus by establishing a
mere preponderance of probabilities either by laying a basis for that plea in the cross-
examination of prosecution witnesses or by adducing defence evidence‖.
(6.3) James Martin v. State of Kerala.
In Jams Martin v. State of Kerala702 Hon‘ble Supreme Court observed following important
points -
 The accused need not prove the existence of the right of private defence beyond
reasonable doubt. It is enough for him to show as in a civil case that the preponderance
of probabilities is in favour of his plea.
 If the circumstances show that the right of private defence was legitimately exercised, it
is open to the Court to consider such a plea. In a given case the Court can consider it even
if the accused has not taken it, if the same is available to be considered from the material
on record.
 Under Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the
accused, who sets up the plea of self-defence, and, in the absence of proof, it is not
possible for the Court to presume the truth of the plea of self-defence. The Court shall
presume the absence of such circumstances. It is for the accused to place necessary
material on record either by him adducing positive evidence or by eliciting necessary
facts from the witnesses examined for the prosecution.
699
Section 105 - Burden of proving that case of accused comes within exceptions. - When a person is accused of
any offence, the burden of proving the existence of circumstances bringing the case within any of the General
Exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any other
part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of
such circumstances.
700
AIR 1974 SC 1570.
701
702
2021).

516
 An accused taking the plea of the right of private defence is not necessarily required to
call evidence; he can establish his plea by reference to circumstances transpiring from the
prosecution evidence itself.
(7) NEW TREND
(7.1.) Obliterating Presumption of Innocence

In K.Veeraswamy v. Union of India,703 the Supreme Court has up-held the validity of Section
5(1)(e) and Section 5(3) of the Prevention of Corruption Act which place the burden on the
accused to rebut the statutory presumption. It is held that this law is just, fair and reasonable and
does not contravene Article 21 of the Constitution. In Sodhi Transport Co. v. State of U.P,704 the
Supreme Court has held, ―A rebuttable presumption which is clearly a rule of evidence has the
effect of shifting the burden of proof and it is hard to see how it is unconstitutional when the
person concerned has the opportunity to displace the presumption by leading evidence‖. Section
29705 of the POCSO Act, 2012 recognizes presumption of guilt. Presumption of innocence was
rejected. In Attorney General for India and Ors. v. Satish and Another706 Supreme Court
observed that Section 29 is constitutional.
In K.Veeraswamy v. Union of India,707 the Supreme Court has up-held the validity of Section
5(1) (e) and Section 5(3) of the Prevention of Corruption Act which place the burden on the
accused to rebut the statutory presumption. It is held that this law is just, fair and reasonable and
does not contravene Article 21 of the Constitution.708
(7.2.) Lowering standard of Proof in Criminal law

―Proof beyond reasonable doubt‖ is not an absolute principle of universal application and
deviations can be made by the legislature. Deviations can take different forms such as shifting
the burden of proof to the prosecution or prescribing a standard of proof lower than ―proof
beyond reasonable doubt‖. As long as the accused has the opportunity to adduce evidence to
nullify the adverse effect such deviation will not offend Article 14 or 21 of the Constitution.
Even in England the principle in Woolmington case would apply only in the absence of a
statutory provision to the contrary. While the concept of ―presumption of innocence‖ maintains
its pivotal position in the criminal law jurisprudence, there is a steady shifting of burden of proof
to tackle the new problems such as growing socio-economic problems, emergence of new and
graver crimes, terrorism, organised crimes, poor rate of conviction, practical difficulties in
securing the evidence etc.709
703
1991 SCC (Cri) 734.
704
(1986) 2 SCC 486.
705
POCSO Act, 2012: Section 29 - Where a person is prosecuted for committing or abetting or attempting to commit
any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has
committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
706
Nov. 18. 2021. Available at:
https://main.sci.gov.in/supremecourt/2021/2286/2286_2021_32_1501_31537_Judgement_18-Nov-2021.pdf (Visited
707
1991 SCC (Cri) 734.
708
Malimath Committee Report, 2003.
709

517
According to Section 30 (2)710 of the POCSO Act, 2012 and Section 35 (2)711 of the NDPS Act,
1986 accused must prove his innocence beyond reasonable doubt. Preponderance of probability
is not sufficient.
(7.3.) Rejection of ―Rule of lenity‖ on the basis of object of Statute

In Attorney General for India and Ors. v. Satish and Another712 it was argued on behalf of the
accused that section 29 and Section 30 imposes strict burden on accused. ―Rule of lenity‖ 713 was
argued by Mr. Sidharth Luthara on behalf of accused.
Supreme Court rejected this argument and observed, ―The said submission of Mr. Luthra cannot
be accepted in view of the settled proposition of law that the statutory ambiguity should be
invoked as a last resort of interpretation. Where the Legislature has manifested its intention,
courts may not manufacture ambiguity in order to defeat that intent‖. Object of the Act is to
protect interest of children. Application of ‗Rule of Lenity‘ was rejected.
(9) Conclusion
There are many standard of proof have been recognised all over world. 714 But there are manly
three categories of standard of proof preponderance of probabilities, clear and convincing and
‗beyond reasonable doubts‘. ―In time conviction‖ or ―inner conviction‖ is the same as ―proof on
preponderance of probabilities‖.715 ‗Just, fair and reasonable‘ standard of proof is harder than
‗preponderance of probabilities and less harder than ‗beyond reasonable doubts‘.
(10) Suggestions
Standard of proof beyond reasonable doubt was accepted when cases were decided by jury.
There were many common men in jury. They were not expert in law. At present time, cases are
decided by expert of law. Accused have sufficient time and opportunity to protect them. Nature
and method of commission of crime had also changed. Offences related to money-laundering,
corruption, terrorism, human trafficking, export, import and Socio-economy are very grave.
Standard of proof must be changed. I am agree with Malimath Committee Report716 which
710
Section 30 (2) - For the purposes of this section, a fact is said to be proved only when the Special Court believes
it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of
probability.
711
Section 35 (2) of the NDPS Act, 1986 says. ―For the purpose of this section, a fact is said to be proved only when
the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a
preponderance of probability‖.
712
Nov. 18. 2021.
713
―Rule of Lenity‖ requires a court to resolve statutory ambiguity in a criminal statute in favour of the accused, or
to strictly construe the statute against the State.
714
―in time conviction‖ or inner conviction, ―proof on preponderance of probabilities‖, clear and convincing, beyond
reasonable doubts and just fair and reasonable
715
716
Malimath Committee Report, March 2003, Para 5.31 The middle course, in our opinion, makes a proper balance
between the rights of the accused on one hand and public interest and rights of the victim on the other. This standard
is just, fair and reasonable. It is operated not by layman but by Judges who are sensitive to the rights of the accused
and recognised in criminal jurisprudence. Safety lies in the fact that the accused is assisted by a lawyer and the
Judge is required to give reasons for his findings. This will promote public confidence and contribute to better
quality of justice to victims. It is time for realm of doubts to pave way for search for truth and justice.

518
accepted that there are three standard of proof namely; preponderance of probabilities, clear and
convincing and beyond reasonable doubts. The Committee suggested to accept middle standard
of proof that is just, fair and reasonable standard of proof in criminal law. It must be accepted by
legislative bodies and courts in grave offences which are affecting society at large and socio-
economic condition of country.
UGC NET /JRF 2022
Question 1. ‗Stalking‘ (following a women despite her disinterest, spying, etc) is an

offence under:
(1). Section 354 (1)(ii) IPC
(2). Section 354 B IPC
(3). Section 354 A (1) (iii)
(4). Section354 D IPC
Answer- (4)
Question 2.
Given below are two statements: one is labelled as Assertion A and the
other is labelled as Reasons R.

519
Assertion A : The right of private defence of body extends to causing of death to the Assailant in
case of assault of throwing or administering acid or an attempt to throw or administer acid which
may reasonably cause the apprehension that grievous hurt will otherwise be the consequences of
such Act.
Reason R : This provision was inserted under clause (7) of section 100 IPC by Act 13 of 2013 in
view of increasing cases of acid throwing on the girls and women in India
In the light of the above statements, choose the correct answer from the
options given below:
(1). Both A and R are correct and R is the correct explanation of A
(2). Both A and R are correct and R is NOT the correct explanation of A
(3). A is correct but R is not correct
(4). A is not correct but R is correct
Answer – 1
Question 3.
Which of the following statement/statements are correct?
(A) ‗Theft‘ is defined under section 378 IPC, as the dishonest removal of movable property out
of the possession of any person without his consent
(B) In the offence of extortion punishment is upto 3 years under section 384 IPC
(C) The offence of ‗Robbery‘ is defined under section 391 IPC
(D) Dacoity is Robbery committed by five or more persons
(E) The punishment for ‗Dacoity‘ is prescribed under section 392 IPC
Choose the correct answer from the options given below:
(1). (A), (B), (C), (D) only
(2). (A), (B), (D) only
(3). (D), (E) only
(4). (A), (B) only
Answer— 2
Question 4.
Which of the following statement/statements is/are correct?
(A) The offence of ‗sedition‘ is defined under section 124A of IPC
(B) The supreme court in Kedar Nath Singh V State of Bihar held that section 124A IPC is not
unconstitutional
(C) State (N.C.T. of Delhi) V. Navjot Sandhu Afsan Guru is a case related to sedition
(D) Mohd. Arif V State of NCT of Delhi is also known as Mumbai Terror Attack case
(E) Waging or attempt to wage war or abetting waging of war against the
Government of India is an offence under section 121 IPC.
(1). (A), (B), (C), (D) only
(2). (B), (C), (D), (E) only
(3). (A), (B), (E) only
(4). (D), (E) only
Answer – 3.
Question 5.

520
Match List I with List II :

List I List II
(Definitions of) (Provisions of Indian Penal Code)
(A) Solitary confinement (I) Section 95 IPC
(B) Act of a child under seven years of age (II) Section 93
(C) Communication made in good faith (III) Section 73 IPC
(D) Act causing slight Harm (IV) Section 82 IPC
(1). – (III), (B) – (IV), (C) – (II), (D) – (I)
(2). (A) – (I), (B) – (II), (C) – (III), (D) – (IV)
(3). (A) – (IV), (B) – (II), (C) – (III), (D) – (I)
(4). (A) – (II), (B) – (III), (C) – (IV), (D) – (I)
Answer – 1.
Question 6.
Which of the following statement/statements is/are correct?
(A) The offence of abetment is defined under section 107 of IPC
(B) The essential ingredient of ―the offence of conspiracy is the agreement to commit an offence
(C) The punishment of criminal conspiracy is given under section 120 IPC
(D) State of Tamil Nadu through Superintendent of Police, CBI/SIT V. Nalini is a case related to
offence of Abetment
(E) Abetment in India of offences committed outside of India is punishable under section 108A
IPC
(1). (A), (B), (C), (D) and (E)
(2). (B), (D), (E) only
(3). (A), (B), (E) only
(4). (B), (C) only.
Answer – 3.
Question 7.
In which of the following cases the supreme court observed. ―There is a thin line between the
preparation for and an attempt to commit an offence‖?
(1). State of Maharashtra V Mohd.Yakul
(2). Abhayanand Mishra V. State of Bihar
(3). Malkiat Singh V. State of Punjab
(4). Om Parkesh V. State of Punjab
Answer- 2.

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SUMMARY ON INDIAN PENAL CODE

Krishna Murari Yadav, Assistant Professor, LC-1, FOL, DU

First Edition ……. June 2020

SUMMARY OF INDIAN PENAL CODE

Krishna Murari Yadav

Thanks to everyone who has directly or indirectly supported me in this Journey.

UNITS Name of Units Page

Emporer v. M.S. Murthy

Moti Singh and Anr. v. State of UP

Ranjit D. Udeshi v. State of Maharashtra

Suresh and Another v. State of Uttar Pradesh

PRINCIPLE OF MENS REA AND STRICT LIABILITY

Governor-General of India in Council appointed ―The Indian Law Commissioners‖ in 1834 to

1. Lord Sir Thomas James Babington Macaulay [President]

1. VA [Criminal Conspiracy] [Ins. by Act 8 of 1913]

(1.2.) MEANING OF CRIME

Many jurists have defined crime. Some important defintions are -

(1.3.) ELEMENTS OF OFFENCE

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

Mens Rea / Actus reus / Injury to society

(1.3.1.) Human being

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

Standard Chartered Bank v. Directorate of Enforcement9

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

CBI v. M/s. Blue Sky Tie-up Pvt. Ltd. & Others

(1.3.2.) Mens Rea

(1.3.3.) Actus reus / Prohibited act

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

(1.4.) ACTUS NON FACIT REUM, NISI MENS SIT REA

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

Actus non facit reum, nisi mens sit rea

Prohibited Act Guilty Mind

(1.5.) Principle of Strict Liability

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

(1.5.1.) Waging War

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

(1.5.3.) Sale, etc., of obscene books

(1.5.4.) Sexual Harassment

(1.5.5.) Kidnapping from lawful guardianship

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

(1.5.8.) Economic offences

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

(1.5.9.) Essential Commodities Act, 1955

(1.5.10.) Public Health

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

(1.6.) SCHOOLS OF MENS REA

(1) Presumption of Existence of Mens Rea, and

Both presumptions are rebuttable.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

Statute is cleary talks about Statute is silent. For example

(1.6.1.) Presumption of existence of Mens Rea

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

Cases related to Presumption of existence of Mens Rea

(1.6.2.) Presumption of absence of Mens Rea

S. N. Name of Case Hon‘ble Justice Year

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

2 Hobbes v. Winchester Corporation Kennedy 1910

(1.7.) INTENTION, KNOWLEDGE, MOTIVE, NEGLIGENCE & RASHNESS

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, FOL, D.U.

Differences between Rashness and Negligence