Law of Crime

Unit-I

Qs. Concept of Crime, conditions of criminal liabilities- Actus Reus, Mens Rea, Exclusion
of mens rea i.e. Strict Liability in Criminal Law.

Ans. Criminal law is a body of rules and statutes that defines conduct prohibited by the state
because it threatens and harms public safety and welfare and that establishes punishment to be
imposed for the commission of such acts. Criminal law differs from civil law, whose emphasis is
more on dispute resolution than in punishment.

The term criminal law generally refers to substantive criminal laws. Substantive criminal laws
define crimes and prescribe punishments. In contrast, Criminal Procedure describes the process
through which the criminal laws are enforced. For example, the law prohibiting murder is a
substantive criminal law. The manner in which state enforces this substantive law—through the
gathering of evidence and prosecution—is generally considered a procedural matter.

Definition Of Crime:

Many jurists have defined crime in their own ways some of which are as under:
Blackstone defined crime as an act committed or omitted in violation of a public law either
forbidding or commanding it.

Stephen observed a crime is a violation of a right considered in reference to the evil tendency of
such violation as regards the community at large.

Oxford Dictionary defines crime as an act punishable by law as forbidden by statute or

injurious to the public welfare.

IPC1860 Section 40 “crimes means An act which is prohibited under Indian Penal Code or
under special or local law as defined”

Fundamental Elements of Crime: There are four elements which go to constitute a crime, these
are:-

1. Human being
2. Mens rea or guilty intention
3. Actus reus or illegal act or omission
4. Injury to another human being

1). Human Being- The first element requires that the wrongful act must be committed by a
human being. In ancient times, when criminal law was largely dominated by the idea of
retribution, punishments were inflicted on animals also for the injury caused by them, for
example, a pig was burnt in Paris for having devoured a child, a horse was killed for having

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kicked a man. But now, if an animal causes an injury we hold not the animal liable but its owner
liable for such injury.

So the first element of crime is a human being who- must be under the legal obligation to act in a
particular manner and should be a fit subject for awarding appropriate punishment.

Section 11 of the Indian Penal Code provides that word ‘person’ includes a company or
association or body of persons whether incorporated or not. The word ‘person’ includes artificial
or juridical persons.

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

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

3). Actus Reus [Guilty Act Or Omission] - The third essential element of a crime is actus reus.
In other words, some overt act or illegal omission must take place in pursuance of the guilty
intention. Actus reus is the manifestation of mens rea in the external world. Prof. Kenny was the
first writer to use the term ‘actus reus’. He has defined the term thus- “such result of human
conduct as the law seeks to prevent”.

4). Injury- The fourth requirement of a crime is injury to another person or to the society at
large. The injury should be illegally caused to any person in body, mind, reputation or property
as according to Section 44 of IPC, 1860 the injury denotes any harm whatever illegally caused to
any person in body, mind, reputation or property.

Stages of Crime

Not any act is punishable quickly. It has to pass from many stages. The following are the stages
of crime.

1). Intention—

The first stage of crime is intention. Not any act is done without intention. Every work has
feelings in the heart of man. It is called “Intention.” When any person intends to do crime, firstly
the feelings to do such act arises in his heart. For example, A plans to murder B here the
intention of A is to murder B.

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It is mentionable here that only intention is not punishable, means the first stages of crime is not
considered punishable. Merely the idea of crime is not punishable

The obvious reason for not prosecuting the accused at this stage is that it is very difficult for the
prosecution to prove the guilty mind of a person.

Exception

It has an exception under Indian penal Code 1860, section 120A and 120B, criminal conspiracy
is considered as punishable Crime. In it a planning to commit any crime is done. In it they have
their intention.

2). Preparation

The second stage of crime is preparation. As crime is not possible without intention, same cannot
as without preparation, a crime cannot be done. Preparation is a second stage of crime after
making intention. So it is said,” Collecting means to commit crime is preparation.”

Illustration—

A wants to murder B or want to theft in B’s house and for this intention.
A arranges for poison or collects weapon, it is preparation.

Preparation has not been made punishable because in most of the cases the prosecution has failed
to prove that the preparations in the question were made for the commission of the particular
crime.

Illustration—

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

Preparation When Punishable (Excepion)-- Generally, preparation to commit any offence is

not punishable but in some exceptional cases preparation is punishable, following are some
examples of such exceptional circumstances-

I. Preparation to wage war against the Government - Section 122, IPC 1860;

Preparation to commit depredation on territories of a power at peace with

Government of India- Section 126, IPC 1860;
II. Preparation to commit dacoity- Section 399, IPC 1860;
III. Preparation for counterfeiting of coins or Government stamps- Sections 233-235, S. 255
and S. 257;

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IV. Possessing counterfeit coins, false weight or measurement and forged documents. Mere
possession of these is a crime and no possessor can plead that he is still at the stage of
preparation- Sections 242, 243, 259, 266 and 474

Madhusudan Sen Gupta (A.I.R. 1958 kolkata) it was held decided that making gang for
dacoity is preparation and it is punishable crime.

3). Attempt—Attempt is the third stage of crime. It is an important stage and considered
punishable crime. It is attempt carries crime to completion. There are three essentials of an
attempt:-

I. Guilty intention to commit an offence;

II. Some act done towards the commission of the offence;
III. The act must fall short of the completed offence.

Aman kumar v/s State of Haryana (A.I.R. 2004, S.C) Supreme Court decided that attempt
means an act which if not prevented would have resulted in full consummation of act attempted.

Madan Lal v/s State of Jammu and Kashmir (A.I.R 1998 S.C) it was held that brushing
(rubbing) the Phallus (mall organ of generation) on the the womb of twelve years old girl child
was considered attempt to rape.

The following are considered punishable crime separately—

A. Attempting to fight against Indian Government section 121

B. Attempting to obtain gift etc. to save a criminal from punishment section 213
C. Attempting to excite someone to accept section 239
D. Attempt to murder 307
E. Attempt to killing human crime fully section 308
F. Attempt to commit suicide section 309
G. Attempt to dacoity or robbery section 393, 397, 398
H. Attempt to kill any person during trespassing in a house or breaking house section 460

All the attempt except the above are considered punishable crime under section 511 of IPC.

Difference between preparation and attempt

a. Preparation is the second stage of crime whether attempt is third stage.

b. Preparation means collecting means to commit crime, whether attempt means endeavour
to commit crime.
c. Preparation is not crime in itself whether attempt is a crime in itself.
d. Preparation is not considered punishable crime in I.P.C. except some exceptions whether
attempt is considered punishable crime.

Mens Rea and Actus Reum

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Means rea is an important element of crime. It is the element which makes a work crime.
Generally no work is considered crime unless it is done with mens rea. Mens rea means criminal
intention.

Illustration--A shoots a man behind bush considering him an animal and man dies. Though
death is caused but A will not be considered death man because for such death there is no mens
rea of A.

Actus reum facit reum nisi mens sit rea

The meaning of it is, that without intention , work doesnot make a person criminal. This maxim
comprises of two words—

A. Actus reum

B. mens rea

Actus reum means an act which is prohibited by law and mens rea means malicious act. When
the both mixes then it makes crime. It is mentionable that only mens rea does not constitute
crime. Work with means rea is necessary for crime.

R. v/s Liveret (1629) it was decided that any act cannot be considered crime without mens rea. In
this case the maid servant was killed by misunderstanding that she was considered theif. The
court did not consider it case of murder, because there was absence of mens rea.

Mens rea in Indian Penal code

The position of mens rea in Indian penal Code is different from Anglo law. In Indian Penal
Code, the principle of mens rea is not adopted rigidly. Here mens rea is not necessary for crime.
There are some acts, which are considered crime without mens rea. In India, such acts are
considered crime which are prohibited by law. It is due to strict liability principle. According to
his principle, such acts are considered crime. Which are against law whether there is mens rea or
not.

But it does not mean that there is no place of mens rea in Indian Penal Code. In Indian Penal
Code, mens rea is not adopted directly. Some words are added with every crime, which shows
mens rea as—

a. Voluntarily
b. Intentionally
c. Fraudulently
d. Dishonestly
e. Corruptly
f. Malignantly
g. Want only
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 h. Rashly
i. Negligence

R. Hariprasad v/s State (A.I.R. 1951 S.C) Supreme Court considered mens rea as an essential
element of crime.

State of Maharashtra v/s Mayor Hans George (A.I.R. 1965 S.C) Supreme Court said that,
unless it is declined to consider mens rea as an essential element of crime, criminal cannot be
considered guilty of crime. If has heart is not malicious.

Qs. General Exceptions; Mistake of Fact (section 76 and 79) Necessity (section 81)
Unsoundness of mind (section 84) Intoxication (section 85 and 86) Right of Private Defence
(section 96-106)

The Criminal law covers various punishments which vary from case to case. But it is not always
necessary that a person gets punished for a crime which he/she had committed. The Indian Penal
Code (IPC), 1860 recognizes defences in Chapter IV under “General Exceptions”. Section 76 to
106 covers these defences which are based on the presumption that a person is not liable for the
crime committed. These defences depend upon the circumstances prevailing at that point of
time, mens rea of person and reasonability of action of that accused.

General Exceptions

1). Mistake

There are two type of mistakes described in two section—

a. Mistake of law
b. Mistake of fact

(A). Mistake of fact

First type of mistake is mistake of law. Section 76 and 79 provides excuse for the work done
under mistake of fact. This arrangement is based upon the maxim, ignorantia facit excusat means
ignorance of fact is a good excuse. Any person can defind himself from the criminal liability by
taking support of ignorance of fact. But the following are the necessary for it-

a) The act done bona fidely

b) The act is attached to law or not.

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Illustration- ‘A’ is an officer of court. He is ordered to arrest ‘B’ by court. ‘A’ investigates
about ‘B’ and believes bonafidely that ‘C’ is ‘B’ and arrests ‘C’. here ‘A’ does not commit any
offence because-

a) ‘A’ is ordered to arrest ‘B’ by the court.

b) ‘A’ investigates about ‘B’ bonafidely.
c) ‘A’ arrest ‘C’ after belief in good faith that he is ‘B’.

Here it is mistake of fact which is excusable. In this relation “Gopalia Kalia” [(1923)26
Mumbai L.R. 138] is a good case. In this, a police officer comes to Mumbai to arrest a person.
He have warrant of arrest. He investigates bonafidely about the person to whom he is to arrest
and believing bonafidely that he is the person, who is to be arrested and arrests him. The
complaintant complained against the police officer of wrongful confinement. The police officer
was given benefit of profit of protection under section 76 because the cats done by him were
done in good faith and mistake of fact.

Mistake means not only oblivion. It is the mistake which occuse by coincidence [Sand Ford V/s
Bali (1899) 65 L.J.O.B. 73]

For getting interest of such mistake, the mental situation of accused is also important (Jaswant
Rai Manik Lal V/s State of Mumbai, A.I.R. 1956, S.C. 575).

(B) Mistake of law

second type of mistake is mistake of law. It is not excusable viz. no one can save himself by the
support of the mistake of law.

This is based upon the maxim “Ignorantia Juris non excusat: Ignorance of law is no excuse.”

The reason is clear that if mistake of law is made then every accuse will try to save himself from
crime by pretending of mistake of law. Lord Edinberra said that, “if mistake of law is permitted
to consider base of in the severe case then it cannot be said that the pretend of ignorance shall be
extended to hoe much limits.”

In case of Fisher [(1891) 14, Madras 342] it was said that if any accuse violates law of the
country carelessly or unknowingly, then he will have to bear the results the mistake.

It happens sometimes that accuse is in the such situations that he cannot know about the newly
made laws. In such conditions, what will happen to such persons will he get benefit of mistake of
law.

In State of Maharashtra V/s M.H. George (1965) Cr. Law Journal 641 S.C.) it was answered
negatively.

The difference between two are-

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 i. Ignorance of fact is a good excuse but ignorance of law is no excuse.
ii. The section 76 & 79makes provisions for mistake of fact, but not for mistake of law.
iii. The acts done in furtherance of mistake of fact are not liable but acts done in mistake for
law, the liability occurs.

81) Unsoundness of mind (section 84)

Ans- Section 84 of the IPC focus on the intention to give or not to give immunity from criminal
liability to insane persons.

Section 84- nothing is offence which is done by a person who, at the time of doing it, by reason
of unsoundness of mind, is incapable of knowing the nature of act, or that he is doing , what is
either wrong or contrary to law. The following are the essential elements of this defence-

i. He should be unsound mind at time of committing such crime.

ii. He, by reason of, unsound mind, must not know the nature of his act, or he must not
know that his act is wrong or contrary to law.

McNaughton’s case- in 1843, the accused killed private secretary of British Prime Minister. He
pleaded sanity and the house of Lords acquitted him of the murder.

The farmers of code wished to give a very wide scope to the unstable mind while recognizing the
non compos menis (not of sound mind) concept as a defence under the Indian Criminal Law.

Ans- Intoxication (section 85 and 86)-

Section 85- nothing is an offence which is done by a person who, at the time of doing it is by
reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is
either wrong or contrary to law provided that the thing which intoxicated him was administered
to him without his knowledge or against his will. The following are the essential elements of this
defence-

i. The accused must be under the state of intoxication at the time of doing an act,
ii. He, by reason of intoxication, must not know the nature of his act, or he must not know
that his act is wrong or contrary to law.
iii. The intoxication is given to him without his knowledge or against his will.

In Jethuram V/s State, 1960- the intoxication is without one’s knowledge if he does not know
about the existence of the intoxicant, such as where someone mixes an intoxicant in the milk.

In Dedekhula Khabala Sahib V/s State of A.P. (1996)- it was held that voluntary drunkness is
no defence and thus the accused was guilty under section 304, IPC.

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Qs- Right of Private Defence (section 96-106)

Ans- it is a general principle of criminal law that no one can body of property of any other
person. If he does so, it is considered punishable crime. But section 96 to 106 of IPC 1860 in
which no act is offence. If it done for private defence because every person has right to defend
himself.

It is said in section 96 of IPC. 1860 that, “nothing is an offence which is done in the exercise of
the right of private defence.” The right of private defence is of two types-

a) Right of private defence of body, and

b) Right of private defence of property.

It is said in section 97 of IPC that- “every person has the right that he-

i. Has the right of private defence in relation to his own body and body of others;
ii. He can protect the property either movable and immovable from the offence comes in the
definition of criminal misconduct or it is attempt of theft, robbery, mischief etc.

Thus section 96 and 97 provide right of private defence to every person.

But the charge of providing situations for use of right of private defence falls upon the accused
viz. it falls upon the person. Who wants to get benefit from it [Rizan V/s State of Chatisgarh,
A.I.R. 2003 S.C. 976].

The right of private defence can be cleared by many illustrations. ‘A’ kills his father by shooting
considering that his father was cutting the throat of his mother. It was decided that ‘A’ had the
right to protect his mother’s body. [Rose (1884) 15, Crocks 540].

‘A’ trespasses in ‘B’s property. ‘B’ evicts ‘A’ from his property and throws all the things used in
trespassing. It was considered an act to defend ‘B’ himself.

1 The right of private defence related to person

Section 99 to 102 of I.P.C. provides about the beginning, limitation, expansion of private defence
of person.

Beginning—

According to section 102 of I.P.C, right of private defence starts at the moment when the
reasonable possibility of danger of body by attempt or warning creates, whether the offence is
done or not.

Limitations—

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Section 99 of I.P.C describes about the situations in which the right of private defence is not
available. The situations are followings—

a. If any public officer does work which is not justifiable but it is in good faith and it does
not cause danger of death or severe wound.
b. When the danger related to body or property can be removed with the help of public
officer and he has the sufficient time in getting such help.
c. The right of private defence can be used within the limits it is necessary.

Illustration—

B tries forcefully in trespassing in the land possessed by A. A attack upon B to stop him and it
causes B is death. It was considered excess use of the right of private defence.

Akaram Bheru Kotwal v/s State of Maharashtra A.I.R. 1977 S.C Thus where there is
fighting between two parties, these the right of private is not available to any party.

Rajesh v/s Dharmveer A.I.R 1977 S.C the right of private defence cannot be used as the spirit
of revenge.

Expansion till resulting death

Section 100 of I.P.C. is very important. In it, some conditions are described in which for the
private defence, death is caused to any person these situations are following—

a. When such attack is done which creates the possibility of death.

b. When such attack is done which result possibility of extreme hurt.
c. When attack is done for the intention of rape.
d. When an act is done against nature for the intention of fulfilling of sexual desire.
e. When attack is done for the intention of kidnapping.
f. When wrongful confinement is done in such conditions that there was no possibility of
getting help of public officer.

2 Right of private defence of property

Section 103 to 106 of I.P.C. 1860 provides about the starting, limitation and expansion of private
defence.

Beginning—

According to section 105 of code, right of private defence of property begins at the time when
the reasonable possibility of danger of property. This right remains—

a. Till the help of pubic officer in case of theft or of property.

b. Till the remaining of serious injury of murder in case of looting.

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 c. Till the remaining of trespass in case of criminal trespass.
d. Till the remaining of trespass in case of house trespassing.

Limitations-

Limitations are the same as told in section 99 these are describe above.

Expansion till death

Section 103 describes the conditions in which the right of private defence of property extends to
the death. These conditions are following—

a. In case of looting.
b. In case of house trespassing in night.
c. In case of mischief of tant, boat etc. used for the protection of property or human abode.
d. In case, where if the right of private defence will not be used in case of theft, mischief or
house trespassing then there is possibility of death or extreme damage.

Extension till causing damage to the Innocents

The question raise that can damage be done to the innocent person in using right of private
defence. It is answered in section 106 according to section 106—

“ in cases where there is possibility of death reasonably the person who defends must be in the
condition to use the right of private defence that he cannot use this right without the risk of
damage of person then the right of private defence extends to the limit of taking risks”

Illustration—

A group of person attack upon A and tries to kill him. He cannot use the right private defence
without firing shots. he cannot fire shot without taking risk of damage of little children. If he
harms to any child by shooting, then it will not a crime.

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 Unit-II

Qs. Joint and constructive liability (section 34 and 149)

Ans. The section 34 & 149 of Indian Penal Code laid down the important principle of ‘Joint
Liability’. When a crime is done by 2 or more persons and it is difficult to find the contribution
of each such person in the performance of such crime, then this rule plays a very important role.
In such conditions all persons are held equally liable. This is known as rule of joint liability.

This principle lies under section 34 (common intention) and section 149 (common object).

Common Intention- section 34 “when a criminal act is done by several persons in furtherance
of the common intention of all, each of such persons is liable for that act in the same manner as if
it were done by him alone.”

This section lays down a very important principle of joint liability under criminal law. It says
when several persons do a criminal act in furtherance of the common intent shall be liable for
that act in the same manner as if he had done it alone.

Common Intention presupposes a meeting of minds of those involved in the crime. Meeting of
minds means that each of the participants knows and concurs with the mind of each of the others.

B.N Kantaiyya (A.I.R. 1958 S.C) Supreme Court decided that, when two or more persons
commit any act (crime) jointly with intention, then it will result as they would do it individually.

Illustration—three persons come by motorcycle and holds the wounded person A. Two or more
persons throw acid upon him and third attack by knife. The act of all the three was considered act
in the direction of common intention.

State of U.P. v/s Ashok Mahale (A.I.R. 1997 S.C) thus killing of a yound wife for the demand
of dowry by husband, nd in laws was also considered case of common intention

Essential Elements

1. Doing any criminal act

2. Pre-arranged plan
3. The act done by two or more person
4. Such act done for the implementation of pre-arranged plan.

Raja Manikayala Rao v/s State of A.P. (A.I.R. 2004, S.C) two compulsory elements are told
of common intention.

I. Pre-arranged plan by two or more person to do any act

II. Active Participation in the plans.

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Unless these two elements are present any act cannot said as an act for common intention. In this
case, Supreme Court also said that the creation of common intention may be at incident place.
The necessary only is that there should be pre-arranged plan and pre-concert.

Suresh v/s State of U.P. (A.I.R. 2001 S.C.) Supreme Court decided that two things are
compulsory for common intention pre-arranged plan and pre-concert.

Common Object—

Common object is defined and provided in section 149 of IPC. 1860. According to it-

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.

It is also known as laying down a principle of joint or vicarious or constructive criminal

responsibility. There are two kinds of cases covered under this section—

Every member or an unlawful assembly guilty of any offence which has been committed by any
member of such assembly in prosecution of the common object of the assembly.

Every member of such assembly guilty of any offence which the member of such assembly knew
to be likely to be committed in prosecution of the common object of the assembly. The basis of
the constructive guilty under this section is the membership of an unlawful aseembly.

Illustration—Some accused are collected to murder a person. At that time, a person came there.
All the accused attached on him. The person died at the place. Then all the accused were found
guilty of common object.

Lakhan Mahanto, A.I.R. 1996, S.C common object creates a particular and different offence

Essential Elements

I. Minimum Five persons

II. Commit of a offence by any member for unlawful assembly
III. The unlawful assembly of such offence done to promote of common object
IV. No need of any pre-arranged plan

Sardara v/s State of Haryana A.I.R. 1980, S.C it was held that for unlawful assembly cases, it
is not necessary to prove works of accused individually, only necessity is that all the member
played for the furtherance of the common object.

Difference between common intention and common object

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 1. Under common intention, offence is done by many persons in furtherance of the common
intention whether under common object, member of unlawful assembly offence in
furtherance of a common object.
2. For common intention minimum 2 persons are compulsory whether for common object,
minimum 5 persons are compulsory.
3. Pre-arranged plan is necessary for common intention whether it is not necessary for
common assembly.
4. For common intention active participation of all members is necessary whether in
common object, unlawful assembly member is sufficient.
5. Common intention does not create any particular or different offence whether common
object create particular and different offence.

Qs. Abetment (section 107, 08 and 108A)

Ans. Inspiration play important role in doing any act. Such act may be crime if it is done by
abetment.

Definition: Abetment is defined in section 07 of I.P.C. 1860.

According to it—

“A person abets the doing of a thing who-

a) Instigates any person to do that thing, or

b) Engage with or more persons in any conspiracy for the doing of that thing,
c) Intentionally aids, by any actor illegal omission, the doing of that thing.”

a) Instigating- instigating to do any act to any person is abetment. [Amiruddin (1922) 24,
Mumbai L.R.534]
In Parimal Chatarjee [(1932) 60 kolkata 327], to encourage, to provoke or incite or to
urge forward or inspiring is considered abetment.

Illustration- A clash rises between ‘A’ and ‘B’.’A’ says to ‘B’ to go and die and ‘B’
dies. ‘A’ is responsible fo abetment if he says it intentionally. (Sanju Alias Sanjay V/s
State of M.P. A.I.R.2002, S.C.1998)

b) By conspiracy- Engaging by one or more person for the conspiracy to do any act or not is
called abetment by conspiracy.
In “Queen V/s Mohit Pandey” [(1871)3 N.W.P. 316] is a good case, it was said by the
accused to the women, whose husband was died, that if she will recite Ram-Ram while
burning with her husband she will become chaste. The person (accused) went with her at the

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 funeral pyre. The woman also desired to end her life with her husband. She died by burning.
The accused was held guilty of abetment.
c) Abetment by Aiding- helping any person in doing or not doing any act intentionally is
abetment. In Trilok Chand jian Vs State A.I.R. 1977, S.C. 666), it was decided that for
abetment, helping intentionally or willingly is necessary.
In this relation “Emperor V/s Umi” [(1882)6 Mumbai 126] is a good case. In this case, a
priest was held guilty of abetment for the intentionally aid in playing role in illegal
marriage. The priest knew that the person, of whose marriage he was performing, was
already married. It was case of bigamous marriage.

Offence is not necessary to be committed- it is noticeable that in case of abetment, it Is not

necessary that the person, for whom the abetment is done, must do offence. In other words, it
may said that it is meaningless of doing or not doing offence in cases of abetment. {Raghu Nath
das (1920) 5 P.L.J. 129].

Abettor- the person who abets is abettor. section 108 of code defines abetment- “A person abets
an offence, who abets either the commission of an offence, or the commission of an act which
would be an offence, if committed by a person capable by law of committing an offence with the
same intention or knowledge as that of the abettor.”

Thus according to section 108 abettor means the person who abets-

a) To commit of an offence, or
b) To do such offence, which would be an offence if it would done by the competent person
by the intention or awareness.

In “Mazlim Tiwari” [(1961)2 Cr. Law-2 266] it was said that the abettor plays active
participation before the committing of an offence.

Clearification (Explaination):

(a) The illegal omission of an act may account in the category of abetment. Whether the abettor
himself is not attached to it.

Illustaration- ‘A’ is husband of ‘B’. The case of ‘B’ is legal duty of ‘A’. if he is unable to do it,
it is illegal omission for him. ‘C’ abets ‘A’ for this illegal omission, then ‘C’ will be considered
abettor for this illegal omission though he himself is not bound to case ‘B’.

(b) It is not necessary that the act abettor should be committed or that the effect requisite to
constitute the offence should be caused. It shows that the effect of an abetment is immaterial.

Illustration- ‘A’ abets ‘B’ to murder ‘C’. ‘B’ denies to murder ‘C’. ‘A’ is the guilty of abetment.

15
(c) It is not necessary that abetted person should be capable of law of committing an offence, or
that have same guilty intention of knowledge as that of abettor.

Illustration- ‘A’ abets to a child or mad person to do an act with malice intention. The act will
be an offence if done by the person competent to do it. (Keshav Rao A.I.R 1956, Madhya
Bharat, 65).

(d) It is applicable only to the offence of abetment by conspiracy.

Illustration- ‘C’ procures poison and delivers it to ‘B’. Even though ‘C’ does not

know the full details to be liable for the offence of criminal conspiracy, he is liable for abetment
by conspiracy to murder as he has sufficiently engaged himself in this crime.

Qs. Criminal conspiracy (section 120-A)

Ans. Criminal conspiracy is the father of crimes. Common person is also aware of it. “Criminal
Conspiracy” was not given place in I.P.C. earlier. But after sometime it was added in the cat in
year 1913 by an amendment in 120 (A) and 120 (B).

Definition- “Criminal Conspiracy” is defined in section 120(a) of I.P.C. 1860. According to it-
when two or more persons agree to do, or cause to be don e-

a) An illegal act, or
b) An act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties to such
agreement in pursuance thereof.

In Hiralal Harilal Bhagat V/s CBI, New Delhi (AIR 2003 S.C. 2545), the Supreme Court
observed that “An agreement between the parties for doing an unlawful act is criminal
conspiracy.”

In the same way in “Ram Narain V/S CBI (AIR 2003 S.C. 2748), the Supreme Court defines
conspiracy that “An agreement between conspirators to do an illegal act is criminal conspiracy.
Not over act need be done in furtherance of conspiracy.

Essential elements- the following are the essential elements for constituting criminal conspiracy.

16
(1). Agreement- the basic thing is the agreement which naturally requires at least two persons.
‘Agreement’ is not merely the stage of intention which is not culpable, but is more than that. It is
the design to be carried into effect. (Hussain Umar V/s Dilip Singh, AIR 1970 Sc 45).

In State of Himachal Pradesh V/s Krishna Lal (A.I.R. 1987 S.C. 773), Supreme Court decide
that intenting to do any illegal act is enough for criminal conspiracy.

In “Rajiv Assessination”, Supreme Court said that it is not compulsory for criminal conspiracy
that all the conspirer must present at the incident place. (State of Tamilnadu V/s nalini stc.
A.I.R. 1999 S.C. 2640).

(2). Do not act with illegal means and illegal act- the agreement must be to do or cause to be
done an illegal act or an act which is not illegal by illegal means.

Thus an agreement with a woman to make her prostitute or making him to accept to have illegal
relationship with any person is criminal conspiracy.

In Nirmal Chandra De (28 Cr. Laws 247), it was said that it is necessary for criminal
conspiracy that even agreement is done for illegal act or doing legal act by illegal means.

(3). Agreement between more than one person- the agreement is must be between two or more
than two persons. For instance, if there is criminal conspiracy amongst some members to
commit a murder, each one of the conspirators will have to be aware of the major detail of the
conspiracy.

(4). ‘mens rea’- to constitute an offence of criminal conspiracy there must be criminal intention
of conspires i.e. mens rea is an essential element.

In Jeth Sur Surang Bhai V/s State of Gujarat (A.I.R 1984, S.C. 151). It was held that a
Director cannot be held guilty of conspiracy merely on the ground that he used to sign on papers,
documents etc. of the society, because it does not proves his criminal intention.

Punishment- while prescribing punishment of criminal conspiracy, this section makes a

distinction between two kinds of criminal conspiracy.

i. The first clause is a criminal conspiracy to commit can offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two years or more has been
treated as a serious offence, shall be punished in a same manner as if he has abetted such
offence.
ii. Any other kind criminal conspiracy to commit an offence punishable with rigorous
imprisonment of less than two years or a criminal conspiracy to commit an act prohibited
by law shall be punished with simple or rigorous imprisonment for a term not exceeding six
months, or with fine, or with both.

Distinction between Criminal conspiracy and abetment-

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1) A person commits abetment who engages with one or more other persons in conspiracy for
doing of a thing. In criminal conspiracy there had be an agreement between two or more
persons to do an illegal act or legal act by illegal means.
2) The basis of liability of abetment by conspiracy is ‘engagement’, whereas that for criminal
conspiracy is ‘agreement’ between two or more persons.
3) It abetment an act or illegal omission must takes place where as criminal conspiracy does not
require anything to be done in pursuance of it, mere agreement makes one guilty.

Qs. Preparation and Attempts (section 511)

Ans.

Qs. Sedition 124-A

Ans. Every citizen has been given freedom to speak and express their views under Article 19(1)
(a) of the Indian Constitution. However, this freedom is not absolute and some reasonable
restrictions have been imposed on freedom of speech and expression under Article 19(2). But
when a person does an act by his words, signs or representation which is held to be
contemptuous towards the Government of India, then such act is punishable under section 124-A
of Indian Penal Code, 1860. Sedition is an offence that criminalizes speech that is regarded to be
disloyal to or threatening to the state. The provision of Section 124A is very wide and it covers
the act of defamation of the Government excluding any criticism in good faith of any particular
measures or acts of administration.

Law of Sedition

The term ‘Sedition’ means “conduct or speech which results in mutiny against the authority of
the state”. Law of Sedition deals with section 124A of IPC, 1860, is considered as a reasonable
restriction on freedom of speech. It was drafted by Thomas Macaulay and introduced in 1870.

The following points describe the origin of sedition law:

 Origin of Sedition law in India is connected to the Wahabis Movement of the 19th
century.
 This was an Islamic revivalist movement and was led by Syed Ahmed Barelvi.

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  Since 1830, the movement was active but in the wake of 1857 revolt, it turned into
armed resistance, a Jihad against the British.
 The British termed Wahabis as rebels and carried out military operations against
Wahabis.

History

In British Era, Section 124A was not a part of Indian Penal Code, 1860. But this Section was
inserted into IPC by the IPC (Amendment) Act, 1870. By an amending act of 1898, this
provision was later replaced by Section 124A. According to the British Era Law, under the old
IPC, “Exciting or attempting to excite feelings or disaffection was considered as Sedition”.

Meaning of Sedition under Section 124A of IPC, 1860

“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 shall be punishable with Life Imprisonment”.

Essential of Sedition

In India, what constitutes as ‘Sedition’ is highly debated. As per the Indian Penal Code, for an
act to be called “seditious”, it should have the following components:

1. Any words, which can be either written or spoken, or signs which include
placards/posters (visible representation)
2. Must bring hatred/contempt/disaffection against the Indian Government
3. Must result in ‘imminent violence’ or public disorder.

Defences Available to a Person Charged With Sedition

To get the exemption from Criminal Liability, the following are the defences:

19
 1. That he did not make the sign or representation or not speak or write the words, or not
do any act in question.
2. He did not attempt into the contempt or attempt disaffection.
3. Such disaffection should not be towards the Government.

Sedition and Article 19(1)(a) of the Indian Constitution

The Concept of Free Speech has attained global importance and all have supported it as a basic
fundamental right of a human being. In India, such rights are provided under Part-III and Article
19 of the Indian Constitution. The said right has no geographical indication because it is the right
of the citizen to gather information with others and to exchange thoughts and views within or
outside India.

Courts have been given the power to act as guarantors and protectors of the rights of the citizen.
Article 19(1)(a) secures the ‘freedom of speech and expression’ but it has been bound by the
limitation which has been given under Article 19(2) which states the permissible legislative
abridgement of the right of free speech and expression.

In Tara Singh v. State, the validity of Section 124A of the IPC was directly in issue. In this case,
it curtailed the freedom of speech and expression, so the East Punjab High Court declared this
section void.

By the Constitution (First Amendment) Act, 1951, two changes were introduced relating to
freedom of speech and expression, are:

1. It considerably widened the latitude for restrictions on free speech by adding further
grounds;
2. The restriction imposed on Article 19(1)(a) must be reasonable.

Therefore, the question now arises of whether Section 124A of IPC is in conflict with Article
19(1)(a) or not. It has been reflected by the following points:

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 1. Section 124A of the IPC is ultra vires the constitution in as much as it infringes the
fundamental right of freedom of speech in Article 19(1)(a) and is not saved by the
expression “in the interest of public order”.[8]
2. As the expression “in the interests of public order” has a wider connotation and should
not be confined to only one aspect of public order, then the Section 124A is not void.
3. Section 124A IPC is partly void and partly valid. In Indramani Singh v. State of
Manipur, it was held that Section 124A which seeks to impose restrictions on exciting
mere disaffection is ultra vires, but the restriction imposed on freedom of speech and
expression covered under Article 19(2) can be held intra vires.

In 1959, Allahabad High Court declared that Section 124A was ultra vires to Article 19(1)(a) of
the Constitution.

Famous Trials of Sedition

Cartoonist Aseem Trivedi

During a rally of Anti-Corruption crusader Anna Hazare in Mumbai, he had been accused of
putting up banners mocking the constitution and posting the same on his website. He was
charged under Section 124A of IPC, Section 66A of Information Technology Act and Section 2
of Prevention of Insults to National Honour Act.

Kashmiri Students

60 Kashmiri Students were cheering for Pakistan in a Cricket Match against India. So they were
charged with Sedition in March 2014.

Akbaruddin Owaisi

On December 22, 2012, he purported hate speech at Nirmal. He was slapped with the charge of
sedition by the District Police of Karimnagar.

Kanhaiya Kumar, Student of JNU

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JNU Student Leader, Kanhaiya Kumar was arrested in February 2016 on the charge of sedition.
He was arrested for inciting violence through unlawful speech, allegedly spread not all over
India but also across the world. This arrest has raised political turmoil in the country by which
academicians and activists protesting against this move by the Government. On March 2, 2016,
the videos purporting to show this activity were found to be fake and he was released after three
weeks in jail.

Conclusion

Sedition is the serious offence in the violation of Article 19. So there is a need that sedition laws
should have expressly contained words which satisfied the restrictions of Article 19(2). The
purpose of restricting speech under Sedition Act is the protection of National Security. Sedition
laws should be interpreted and applied according to the guidelines given by the Supreme Court.

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 Unit-III

Qs. Culpable homicide and Murder (section 299-301)

Ans. ‘culpable homicide’ and ‘murder’ is most serious offence in the offences done to body.
Section 299 and 300 provides it’s definition and section 302 and 302 provides about punishment.

Culpable Homicide- section 299 of IPC 1860 defines culpable homicide. According to it-
“anyone who commits murder or physical damage for the intention of killing or knowingly that
his act may commit murder, commits offence of culpable homicide.”

Illustration- ‘A’ lays sties over a pit, with the intention of there causing death or with the
knowledge that death is likely to be there y caused Z, believing the ground to be firm; treads on
it, falls in and killed. A has committed the offence of culpable homicide.

II- ‘A’ knows ‘Z’ to be behind a bush. ‘B’ does not know it. ‘A’ intending to cause or knowing
to be likely to cause Z’s death, includes ‘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.

Essential Elements:

a) Committing murder of anyone with the intention of committing death.

b) Committing murder by doing any act by which there is possibility of intention of
committing murder.
c) Knowingly that the act may result to commit death.

In this relation, Ghanshyam V/s State (1996 Criminal laws J.27 Mumbai) is a good case. In this
case, the husband bored the chest of his wife on denying for copulation. The act was result of
anger, sudden emotions. The accused was considered guilty of culpable homicide under section
(2) of section 299.

Murder:

Section 300 of code defines ‘Murder’. Culpable homicide is murder except some conditions, if
the act by which death is committed, is done intentionally.

Essential ingredients:

(A). Intention of committing murder- the first essential ingredient of murder is that there must
be intention of committing murder.

Illustration- ‘A’ an accused locks the gate of a hut so that the people from outside cannot open
it. Deceased ‘B’ was sleeping in the hut. ‘A’ fires in the hut and it results death of ‘B’. here A’s
intention was to murder ‘B’.

23
(B). Committing physical damage which creates possibility of death- the second element of
murder is that the accused must have committed physical damage which creates possibility of
death.

(C). Committing physical damage to cause death- the third element is that any act done by the
accused which is adequate for death.

Illustration- ‘A’ affixes a plaster on the mouth of ‘B’ and ties the plaster with handkerchief.
After it, he puts a cotton of chloroform in the nose of ‘B’ and throws him in a brook and it results
death of ‘B. ‘A’ is guilty of murder of ‘B’.

(D). Any act by which death is probable- the fourth element of murder is that doing any act by
which death is probable and there will be no excuse.

Illustration- ‘A’ an accused says that he can immune from the effect of snake-bite to the people
and makes ‘B’ to bite by snake and ‘B’ dies. ‘A’ is guilty of the murder of ‘B’.

Thus, ‘A’ attacks upon B’s head for the intention to kill him and ‘B’ dies. ‘A’ is responsible for
murder because death was possible by these attacks.

Qs: When culpable homicide is murder?

Or

When culpable homicide is not murder?

Or

Every culpable homicide is not murder but every murder is culpable homicide.

Ans: section 300 of IPC 1860 provides some exceptions with the definitions. These results that-

a) Murder is serious form of culpable homicide.

b) Every culpable homicide is not murder due to these exceptions.
c) Every murder is culpable homicide, but every culpable homicide is not murder.
d) Culpable homicide is clan whether murder is its caste.

Exception 1- Grave and Sudden provocation- culpable homicide is not murder if the offender
whilst deprived of the power of self control by grave and sudden provocation.

Thus culpable homicide is not murder, if it is done under grave and sudden provocation. But it is
necessary that such provocation-

a) Is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm
to any person.

24
b) Secondly that it is not given by anything done in obedience to the law or by a public servant
in the lawful exercise of one power of such public servant.
c) Thirdly that it is not given by anything done in the lawful exercise of the right of private
defence.

Illustration- accused ‘A’ watches his wife ‘B’ copulating with ‘C’ and at that time he shoots ‘B’
and ‘C’. it was held grave and sudden provocation.

In this relation, K.M. Nanawati V/s State of Maharashtra (A.I.R. 1962, S.C. 605), Supreme
Court decided that grave and sudden provocation is a good exception.

Exception 2- Use of the right of Private Defence- culpable homicide is not the murder if the
offender in the exercise in good faith of private defence of person or property exceeds the power
given to him by law and causes the death of the person against whom he is exercising such right
of defence without pre-meditation and without any intention of doing more harm than is
necessary for the purpose of such defence.

Illustration- ‘A’ attempts to horsewhip ‘B’ not in such a manner as to cause grievous hurt ‘B’.
‘B’ draws out a pistal. ‘A’ persists in the assault ‘B’, believing in good faith that he can by no
other means prevent him shoots ‘A’ dead. He has committed only culpable homicide.

Exception 3- Excess use of power by public servant-Culpable homicide is not murder if the
offender, being a public servant or aiding a public servant acting for the advancement of public
justice, exceeds the powers giving to him by law, and caused death by doing the due discharge of
his duty as such public servant and without it will towards the person whose death is caused.

Illustration—Police arrests a person in the doubt of theft. The person jumps from the police
vehicle to save himself from police protection. Police officer did not have any way except
shooting. He shooted at the person and died. The accused was held responsible for culpable
homicide.

Exception 4 Sudden fights-- Culpable homicide is not murder if it is committed without pre-
meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the
offenders having taken under advantage or acted in a cruel or usual manner.

Illustration—a fight rises between two parties and one person is damaged seriously by accused
and he died. Accused was held guilty of culpable homicide.

Exception 5 —Death by consent culpable homicide is not murder if the person whose death is
caused, being above the age of 18 years, suffers death or takes the risk of death with his own
consent.

Qs. Death by Negligence (section 304-A)

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Ans. Section 304A, IPC deals with homicide by rash and negligent act. It provides punishment
for those cases which under English law are termed manslaughter by negligence. The original
Penal Code had no provision for punishment in those cases where a person causes death of
another by negligence. That is to say, liability for causing death was limited only to those cases
of murder and culpable homicide not amounting to murder. To fill in the gap, section 304A was
inserted in the Penal Code (Amendment) Act 27 of 1870 to cover those cases wherein a person
causes death of another by such acts as are rash or negligent but there is no intention to cause
death or no knowledge that the act will cause death.

Section 304-A of The Indian Penal Code 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.

Essential Ingredients – To bring a case of homicide under section 304A, IPC the following conditions
must exist, viz.,

1. There must be death of the person in question;

2. The accused must have caused such death; and
3. That such act of accused was rash or negligent and that it did not amount to culpable
homicide.

This section applies where there is direct nexus between the death of a person and the rash or
negligent act. The act must be causa causans, it is not enough that it may have been the causa
sine qua non.

Meaning

Causa causans: The primary cause or the originator of an action.

Causa Sine Qua Non: An intervening cause of loss which, though not direct, may nonetheless
contribute to the loss.

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 a particular
individual. Which having regard to all the circumstances out of which the charges have arisen, it

26
was the imperative duty of the accused person to have adopted (Bala Chandra v. State of
Maharashtra, AIR 1968 SC 1319).
Rash Act

A rash act is primarily an overhasty act and is opposed to a deliberate act; even if it is partly
deliberate, it is done without due thought and action. An illegal “omission” if negligent, may
come under this section. Negligence, on the other hand, is a breach of duty imposed by law.

Contributory negligence

The doctrine of contributory negligence does not apply to the criminal liability.

Medical Negligence

A great care should be taken before imputing criminal negligence to a professional man acting in
the course of his profession. A doctor is not criminally responsible for a patient’s death unless
his negligence shows such regard for life and safety as to amount to a crime against the State.

Where the accused who was a Homeopath, administered to the patient suffering from guinea
worm, 24 drops of mother tincture Stramonium and a leaf of Dhatura without studying its
effect and the patient died of poisoning. It was held that the accused was guilty under Section
304A. (Juggan Khan vs State of Madhya Pradesh, AIR 1965 SC 831)

Rash and Negligent Driving

The mere fact that a fatal motor run-over accident took place would not be itself, be enough to
make the driver liable under Section 304A. In order to impose criminal liability on the accused, it
must be found as a fact that a collision was entirely or at least mainly due to rashness or
negligence on the part of the driver. It is not sufficient if it is only found that the accused was
driving the vehicle at a fast speed. (State of Rajasthan vs Hari Singh, AIR 1969 Raj 86)

In Jagdish Chander vs State (1974) 1 SCR 204, the appellant suddenly turned his auto-scooter
rickshaw to the right without paying proper heed to the truck coming from the opposite and stuck
it. He then lost control of his scooter-rickshaw and crashed into a tree under which a woman was
standing with her baby in her arms. As a result, she received simple injuries and the child
received fatal injuries. The trial court and the High Court found the appellant guilty under section

27
304A. In appeal, the Supreme Court held that as the appellant suddenly turned to the right
without paying proper heed to the truck coming from the opposite direction, in doing so he was
rash and negligent.

Qs. Hurt (section 319) Grievous Hurt (section 320)

Ans. ‘Hurt’ is also one of the most prevalent offence among the offences affecting human body
deal. Section 319, 320,323,325 of IPC provides about it.

What is Hurt-

Whoever causes bodily pain, disease or infirmity to any person is said to cause the hurt.

Thus hurt means-

a) Causing physical pain

b) Making someone ill
c) Causing infirmity.

to anyone is hurt.

In Rang Nayakamma V/s Subbamma (A.I.R. 1967 Andhra Pradesh 208), catching and tugging
someone was considered hurt.

Thus a husband attack by foot on the stomach of his wife and it caused her death. It was
considered offence of hurt because neither the husband had the intention to kill his wife nor he
was aware about that his wife was pregnant. [Baysagoo Noshao V/s Emperor (1867)8 W.R. Cr.
29).

In another case a boy of sixteen years loved to a girl. The boy wanted to eat sweet to excite her.
He prepared a boy for it. The girl and her family members ate sweet. There were sign of poison
in it. It was considered hurt [Emperor V/s Anees Beg (1923)46 Allahabad).

It is remarkable that for hurt, touch to body is not necessary. If any person talks to a woman in
the dark as shooter, shows her pistol and the woman felt down unconsciously. It was considered
hurt.

What is Grievous Hurt?

Section 320 of I.P.C. provides about grievous hurt. It describes about the eight conditions in
which hurt, grievous hurt are defined. The text of section 320 is thus: “the following are the only
grievous hurt of hurt”.

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First- Emasculation

Second- Permanent privation of the sight of either eye.

Third- Permanent privation of the hearing of either ear.

Fourthly- privation of any member or joint.

Fifthly- destruction or permanent impairing of the powers of any member or jointly.

Sixthly- Permanent disfiguration of the head or face.

Seventhly-fracture or dislocation of a bone or tooth.

Eighthly- any hurt which endangers life or which causes the sufferer to be during the space of
twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

(1) First- Emasculation means-

a) Deprivation of the properties of a male.
b) Deprivation of masculine vigour.
c) Castration.
(2) Secondly privation of the sight- privation of the sight means privation of the sight of the
either eye must be permanent. Temporary privation does not amount to grievous hurt.
(3) Privation of the hearing of the ear- it means privation of the hearing of the ear must be
permanent. Temporary privation of hearing does not amount to grievous hurt. It may be of
one ear.
(4) Privation of part or joint- privation of part or joint means privation of any part of body of
the person or joint. The privation does not need to be permanent.
(5) Two kinds of hurt is considered as grievous-
a) Destruction of power of any member or joint.
b) Destruction of power of any member or joint permanently.
(6) Disfiguration of head or face permanently- the word disfiguration means making it ugly,
spoiling and beauty deforming etc. generally, these are caused by throwing acid on head or
face. These are included in grievous hurt-
a) Cutting nose or ear.
b) Throwing acid on the face.
c) Branding the cheeks by red-hotiron
d) The cut inflicted by a sharp razor on face is grievous hurt.
(7) Fracture or dislocation of a bone or tooth- a fracture or dislocation of a bone or tooth id
grievous hurt because it causes great pain and suffering to a victim.
In Hari Lal V/s State (A.I.R. 1970 S.C. 1969) the cutting and breaking of bone was
considered dislocation of bone and held grievous hurt.
(8) Severe physical pain-

29
 a) Hurt which endangers life.
b) Hurt which causes the sufferer to be during the space of twenty days in severe bodily
pain.
c) Hurt which makes anyone unable to follow his ordinary pursuits.

Case of Hurt-

(a) Beating a child (Shri Prakash V/s State, 1990, Cr. Laws J. 486 Allahabad).
(b) Slapping on the mouth (Purandar V/s State of Orissa, 1991, Cr. Laws 1388, Orissa).
(c) Causing damage to wife by husband by throwing a brick (Shri Devi v/s state 1974, Cr.
Laws 126 Allahabad).

In these judicial decisions, the following are considered grievous hurt-

a) The person made blind by drinking him alcohol Mitheal in tadi (E.K. Chnadrasen
1995, Cr. Laws J. 2060 S.C.).
b) Entering a stick in the private parts of a girl child (Ghuraiyya V/s State)
c) Burning by throwing acid (A.G. Bhagwat\, Chandigarh union Territory, 1989).

Qs. Kidnapping and Abduction (section 359-362)

Ans. Kidnapping and abductions are considered very serious offences among the offences done
to body. Section 362 and section 359 of I.P.C. provides kidnapping and abduction separately.

Kidnapping- the wordly meaning of kidnapping is ‘Child stealing’ section 359 describes two
kinds of it-

a) Kidnapping from India.

b) Kidnapping from lawful guardship.
(a) Kidnapping from India- section 360 defines “kidnapping from India” as-

“whoever conveys any person beyond the limits of India without the consent of that person or of
some person who is authorised to consent on his behalf, is said to kidnap that person from
India.”

Two things are necessary for it-

I. Taking any person outside from the boundaries of India.

II. Taking the person without the consent of authorative person.

[Hari bhai (1918)20 Mumbai L.R. 372) it was decided that taking anyone with his consent
outside India is not kidnapping.

Kidnapping from Lawful Guardship- section 361 of I.P.C. defines it as-

30
“whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years
if a female or nay 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”.

For the constitution of this offence, the following three conditions may be fulfilled-

(1) Taking or enticing away minor or a person of unsound mind- minor person is considered
as the person below the age of eighteen if male and below the age of sixteen if female. If any
woman tell her age more than the actual age maliciously, then it will not defend accused.

Then taking such person from the protection of lawful guardian is compulsory. The word taking
means bodily removal. As any minor or person of unsound mind is removed from the legal
protection of lawful guardian the offence of kidnapping is complete. (Re Rudalf Gregory 1970,
Cr. Laws J. 1318).

(2) Taking such minor or person of unsound mind from the protection of lawful guardian-
the word “lawful Guardian is applied, not legal guardian.” The area of lawful guardian is
very wide, whether the area of legal guardian is very limited. Lawful guardian means the
person who is given charge to care and protect such minor or person of unsound mind.
(3) Taking without Consent of Patron- taking without consent of patron is the third condition
of it.

The consent of minor is not important. If any person of unsound mind is removed without
consent of his lawful patron, the offence of kidnapping will constitute.

In this relation, the case of (Prakash V/s State of Haryana A.I.R. 2004 S.C. 227) is a good
case. In it, Supreme Court decided that, “consent of minor is immaterial in the case of
kidnapping from lawful guardianship. This section is designed to protect the sacred right of
guardians with respect to their minor wards.”

Abduction- section 362 defines abduction. According to it- “whoever by force compels, or by
any deceitful means induces any person to go from any place, said to abduct that person.”

Illustration- A girl is enticed by false pretention from the house of her-in-laws. It is abduction
[Fula V/s State of Rajasthan Criminal Laws re. 1979, Rajasthan 234].

Distinction between Kidnapping and Abduction

Kidnapping from lawful Abduction

Guardianship

(1) It is committed only in respect of a (1) abduction can be committed against minor under
16 years of age, if a any person.

31
 male 16 years in case of female.
(2) The person kidnapping is remo- (2) not necessary.

ved from lawful guardian ship.

A child without a guardian cannot

be kidnapped.

(3) The minor or the person of unsound (3) force, compulsion, or deceitful
mind is simply taken away or enticed means are employed.
to go with the kidnapper. This means
employed may be innocent.
(4) Consent of the person enticed is (4) consent of the person removed
immaterial. If freely and voluntarily given,
condones the offences.
(5) The intent of the offender is irrelevant. (5) it is very important. Abduction

must be with certain intent.

(6) It is not continuing offence. The offence (6) a person is being abducted both
is complete as soon as the minor is when he is first taken from any
removed from the custody of the place and also when he is remo-
guardian. ved from one place to another.
(7) It is substantive offence. (7) not punishable of itself unless
accompanied with some criminal
intention

32
 Unit-IV

Qs. Theft (section 378) Extortion (section 383) Robbery and Dacoity (section 390 and 391)

Ans: Theft is the most prevalent offence among the offences relating property. That’s the reason,
theft is given first place in I.P.C.

Definition- section 378 of I.P.C. 1860 defines theft. According to it- “Anyone carry away the
movable property, with the intention of obtaining it fradully, without the consent of the person,
who possess the property.

Illustration 1- there is a tree standing in the field of ‘A’. ‘B’ goes to his field and cut the tree to
carry away fradully, in the absence of ‘A’. ‘B’ have done theft.

Illustration 2- ‘A’ puts his hand in the pocket of ‘B’ and takes purse full of rupees. ‘A’ has done
theft.

Essential elements:

(1) Movable Property- the first essential element of theft is movable property. Theft can only
be of movable property, not of immovable property. Movable property which can be carried
from one place to another place as-vehicle, watch, cycle etc. things attached to earth are
considered immovable property as standing tree, grass etc.

In State of Rajasthan V/s Pooran Singh (1977 Criminal Laws J. 1055), fishing from the public
pool without permission was held theft.

(2) Possession- the second essential element of theft is possession of other person on such
movable property. If any property is not in the possession of a person than theft commit be
done. Possession is of two types- (a) physical (b) mental.

Illustration- ‘A’ person has rupees in his pocket or jewellery on his body then it will be called
physical possession and clothes and jewellery kept in his house will be considered mental
possession.

In “Ganga Ram V/s Sant Ram”, it was decided that, “Removing property without consent of
the person who is possessing the property.”

In State V/s Purshotam Shamji (1954 Cr. Laws J. 542 Saurashtra), it was decided that carrying
cycles of the person from the market fradully was held theft.

(3) Removal- unless the removal is not done, the offence of theft is not complete. In State of
Maharashtra V/s Vishwanath Tukaram” Supreme Court decided that transfer of
possession of property is necessary for the constitution of the offence of theft.

33
Illustration- ‘A’ shows some eating material to the pet dog of ‘B’ with the intention of carrying
him fradully. Dog goes with ‘A’. ‘A’ has done theft. Thus it is removal of dog from one place to
another.

(4) Absence of Consent- removal of any property without the consent of its owner. If anything
is required from a person by his consent, the offence of theft does not constitute.

Illustration- ‘A’ carries book of ‘B’ with his consent but does not return it. Here this act of ‘A’
comes in the ambit of criminal misappropriation but not in the definition of theft. It is noticeable
that-

a) The consent must be free means it should be free from torture, fraud, deceive etc.
b) Consent may be expressed or implied.
(5) Dishonest intention- last and important element of theft is dishonest intention, it is
compulsory for theft. If the intention is not dishonest, then the offence of theft will not
constitute.

Illustration- ‘A’ goes to house of his friend ‘B’ and carries a book thinking for reading, in the
absence of ‘B’. though ‘A’ has not committed theft, though he carried book of ‘A’ without his
consent yet his intention was not dishonestly.

In K.N. Mehra V/s State of Rajasthan the unauthorised flying by accused in Indian Air Force
plane was held theft.

Defence- in cases of theft, actual and bonafide claim of right on one’s own property is a good
defence. [Appa rao V/s Laxmi Narain A.I.R. 1962 S.C. 586].

Qs. Extortion (383)

Ans: Section 383 defence extortion and section 384 provides punishment for extortion. The
offence of extraction consists in – intentionally putting a person in fear of injury to himself or
another dishonestly inducing the person, so put in fear to deliver to any person, property or
valuable security.

Section 383 in The Indian Penal Code – 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 valuable security
commits, “Extortion”.

Essentials of Extortion

34
 I. Intentionally putting a person in fear of injury;
II. Such injury may be for the person who is put under the fear or for any other persons in
which the former person has interest.
III. Such force should be shown with a view to take a thing for property or valuable security
or sign or seal or a document.
IV. There must be a dishonest intention.

Thus if the above elements are present then it is an offence of extortion, dishonest intention is
also an essential element of extortion. Dishonest intention is measured from the circumstances
and facts of each case. Anything taken from a person at the point of the pistol is an e.g. of
extortion.

Illustration – ‘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 money to ‘A’. Z signs and delivers
the note. ‘A’ has committed the offence of extortion.

In Queen vs. Nathalirc Mirad, [(1844) 7 WR Cr 28] a threat to expose Bishop of his illegal
relation with a woman was held to be extortion. In Romesh Chandra Arora vs. The State (AIR
1960 SC 154), the accused took a photograph of a naked boy and a girl by compelling them to
take off their clothes and extorted money from them by threatening to publish the photograph.
He was held guilty of extortion.

Section 384 in The Indian Penal Code – Punishment for extortion.

Whoever commits extortion shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.

Section 385 in The Indian Penal Code -Putting person in fear of injury in order to commit
extortion.

Whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any
person in fear, of any injury, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.

Section 386 in The Indian Penal Code – Extortion by putting a person in fear of death or
grievous hurt.

Whoever commits extortion by putting any person in fear of death or of grievous hurt o that
person or to any other, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.

Section 387 in The Indian Penal Code – Putting person in fear of death or of grievous hurt,
in order to commit extortion.

35
Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of
death or of grievous hurt to that person or to any other, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be liable to fine.

Section 388 in The Indian Penal Code – Extortion by threat of accusation of an offence
punishable with death or imprisonment for life, etc.

Whoever commits extortion by putting any person in fear of an accusation against that person or
any other, of having committed or attempted to commit any offence punishable with death, or
with 1[imprisonment for life], or with imprisonment for a term which may extend to ten years or
of having attempted to induce any other person to commit such offence, 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, if the offence be one punishable under section 377 of this Code, may be
punished with imprisonment for life.

Difference between Theft and Extortion

Theft Extortion

I. In theft, property is taken away without the I. In extortion, the consent of the owner is
consent of the owner. obtained but wrongfully.

II. Theft maybe only in respect of movable II. The property may be movable or
property. immovable.

III. Property is obtained by putting a person in

III. There is no element of force. fear of injury and thereby reducing him to
part with his property.

IV. There is no delivery of property by the

IV. There is delivery of the property.
owner.

Robbery

Robbery in common language means to deprive a person of his or her property. The chief
distinguishing element in robbery, theft and extortion is the presence of imminent fear of
violence.

In all robbery, there is either theft or extortion. The essence of the offence of robbery is that the
offender for committing theft or for carrying away or attempting to carry away the looted
property, voluntarily causes or attempts to cause death or hurt or wrongful restraint.

36
Section 390 in The Indian Penal Code – Robbery

In all robbery, there is either theft or extortion.

When theft is robbery.—Theft is “robbery” if, in order to the committing of the theft, or in
committing the theft, or in carrying away or attempting to carry away property obtained by the
theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or
hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful
restraint.

When extortion is robbery.—Extortion is “robbery” if the offender, at the time of committing

the extortion, is in the presence of the person put in fear, and commits the extortion by putting
that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person
or to some other person, and, by so putting in fear, induces the person so put in fear then and
there to deliver up the thing extorted.

Explanation.—The offender is said to be present if he is sufficiently near to put the other person
in fear of instant death, of instant hurt, or of instant wrongful restraint. Illustrations

(a) A holds Z down and fraudulently takes Z’s money and jewels from Z’s clothes without Z’s
consent. Here A has committed theft, and in order to the committing of that theft, has voluntarily
caused wrongful restraint to Z. A has therefore committed robbery.

(b) A meets Z on the high roads, shows a pistol, and demands Z’s purse. Z in consequence,
surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt,
and being at the time of committing the extortion in his presence. A has therefore committed
robbery.

Section 392 in The Indian Penal Code – Punishment for robbery.

Whoever commits robbery shall be punished with rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the
highway between sunset and sunrise, the imprisonment may be extended to fourteen years.

Section 393 in The Indian Penal Code – Attempt to commit robbery.

Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term
which may extend to seven years, and shall also be liable to fine.

Section 394 in The Indian Penal Code – Voluntarily causing hurt in committing robbery.

If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such
person, and any other person jointly concerned in committing or attempting to commit such
robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a
term which may extend to ten years, and shall also be liable to fine.

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Dacoity

Section 391 of Indian Penal Code defines Dacoity. There is no difference between robbery and
dacoity accept in the number of offenders. Dacoity is perhaps the only offence which the
legislature has made punishable at four stages that is when 5 or more persons assemble for the
purpose of committing a dacoity, each of them is punishable under section 402 merely on the
grounds of joining the assembly. Another stage is preparation to commit a dacoity, the person is
punishable under section 399. The third stage is the stage of attempting to commit and lastly the
stage of the actual commission of a robbery. Thus attempt to commit dacoity is also dacoity.

Section 391 in The Indian Penal Code – Dacoity

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, amount to five or more, every person so
committing, attempting or aiding, is said to commit “dacoity”.

Essentials Ingredients of Dacoity

I. The accused commit or attempt to commit robbery;

II. Persons committing or attempting to commit robbery and person present and aiding must
not be less than 5;
III. All such person should act conjointly.

The word conjointly refers to the united or concerted action of 5 or more persons participating in
the act of committing the offence. In other words, 5 or more person should be concerned in the
commission of the offence and they should commit or attempt to commit robbery.

Section 395 in The Indian Penal Code – Punishment for dacoity

Whoever commits dacoity shall be punished with 1[imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Section 396 in The Indian Penal Code – Dacoity with murder.

If anyone of five or more persons, who are conjointly committing dacoity, commits murder in so
committing dacoity, every one of those persons shall be punished with death, or 1[imprisonment
for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be
liable to fine.

In Om Prakash v. State, [AIR 1956 All 163] the offence of robbery and murder took place at
the dead of Night there was official moonlight and Lantern light in a blink eyewitness to identify
all the accused. Held, the offence under section 396 IPC was proper.

38
Section 397 in The Indian Penal Code – Robbery, or dacoity, with attempt to cause death
or grievous hurt.

If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes
grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the
imprisonment with which such offender shall be punished shall not be less than seven years.

Difference between Dacoity and Robbery—

Dacoity

1. Section 391 defines “Dacoity”.

2. Dacoity is the aggravated form of Robbery.

3. The main difference between Robbery and Dacoity is number of participants in committing
wrong. In an offence of dacoity, there must be five or more persons.

4. Dacoity is most serious and heinous offence than robbery.

5. In dacoity, every member of the gang of dacoity is punished, whether he takes active part or
not. If one of members of dacoity commits wrong defined under this section, all the members are
held liable for punishment.

6. Every member of dacoity group need not present at the victim. In a circumstance, where one is
watching at the centre, another at door of the house, remain commit terror in the minds of the
owner, all the members are liable, including those who do not present at the very spot of offence.

7. Punishment: Imprisonment for life or with rigorous imprisonment for a term which may
extend to ten years, and also fine. (Sec. 395) In the aggravated forms of Dacoity the punishment
is more severe.

Robbery:

1. Sec. 390 defines “Robbery”.

2. Robbery includes either theft or extortion.

3. No minimum number of participants is prescribed in Robbery. Robbery may be committed by

one person to four persons.

4. Robbery is lesser offence than dacoity.

5. In robbery, the real wrong-doer is only punished.

6. The offender of robbery should be present at the victim, and should create fear of death.

39
7. Punishment: rigorous imprisonment upto ten years and also fine. If the robbery is committed
on the highway between sunset and sunrise, the imprisonment may extend to fourteen years. (Sec
392)

Qs. Criminal Misappropriation of Property and criminal breach of trust (section 403, 405)

Ans. Criminal Misappropriation of Property (403)

The word “misappropriation” means a dishonest appropriation and use of another’s property for
the sole purpose of capitalizing it for one’s own use. Criminal misappropriation text place when
the position has come innocently, but it continued due to subsequent change of intention or after
knowledge of some new facts with which the party was not previously acquainted. The retaining
a property becomes wrongful and fraudulent when the fact is known.

Section 403 and 404, IPC relate to the criminal misappropriation of property. Section 403 defines
criminal misappropriation and prescribes the punishment for the offence and section 404 deals
with misappropriation of a deceased person’s property.

Section 403 of The Indian Penal Code – Dishonest misappropriation of property.

Whoever dishonestly misappropriates or converts 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.

Illustrations

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.

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.

Ingredients

I. To constitute the offence of misappropriation the following ingredients must be

established:
II. Dishonest misappropriation or conversion of property.
III. The property must be movable.
IV. The movable property must belong to the complainant.

40
It has been held that the word ‘dishonestly’ and ‘misappropriate’ are necessary ingredients of an
offence under section 403. Any dispute being about the recovery of money is purely of civil
nature. Hence a criminal complaint regarding such a matter is not maintainable, U. Dhar vs State
of Jharkhand, AIR 2003 SC 974.

Finder of goods

If the intention was not dishonest at the time possession was taken a subsequent change of
intention does not make the possession illegal. Explanation to the section emphasizes that in case
of the finder of goods, if he has taken all precautions to ascertain the true owner and kept the
goods for a reasonable time for restoring it to the true owner, he can use the property for himself
if the true owner is not found. But if immediately misappropriate the property he would be liable
under the section.

criminal breach of trust (section 405)

Many transaction of life depends upon belief. Justice is created on belief. When belief breaks,
justice also breaches and becomes offence. It is called criminal breach of trust.

Definition- section 405 of I.P.C. 1860 defines Criminal Breach of Trust, “whoever being in any
manner entrusted with property, or with any dominion over property, or 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 he has made touching
the discharge of such trust or willfully suffers any other person so to do, commits Criminal
Breach of Trust.”

Illustration- ‘A’ is a storekeeper. ‘B’ entrusted under this contract to ‘A’ his furniture that it will
be returned after payment of the amount of rent of room in which it was kept ‘A’ sells it. ‘A’ has
breached criminally trust.

Thus if any property is entrusted to any partner under a special contract then he holds the
property as status of trust. If such person misappropriate offencely the property, then he will be
considered guilty of criminal breach of trust. [Anil Saran V/s State of Bihar 1996, S.C. 204].

It can be cleared by another illustration. ‘A’ is a revenue officer and some public money is
entrusted to him. ‘A’ is bound to deposit the money in a definite treasury contract with
government or by orders of government. ‘A’ uses the money for his own purposes. It is criminal
breach of trust.

Essential elements:

(1) Entrusted of Property- the first element of criminal breach of trust is entrusted of property.

41
In Jaswant Lal (AIR 1968 S.C. 700) the word “entrust” is cleared. According to it, “entrustment
of property is called when one person delivers his property to other person so that he may
manage it or keep it in his custody.”

When misappropriation of such property is done then it is called criminal breach of trust because
property is delivered as trust in it. (C.A. Narain v/s State, A.I.R. 1953, S.C. 478).

Illustration- ‘A’ police officer requires any property during investigation. He holds it as trust
because the property is entrusted to him. Now if he does not return it, then he is guilty of
criminal breach of trust.

(2) Misappropriation- the offence of criminal breach of trust in relation to entrusted property
does not constitute unless the accused-
a) Misappropriates the property dishonestly.
b) Convert it for his own use.
c) Disposed the property dishonestly violating legal contract.

In Keshav Chandra V/s Nityanand [(1901) 6 C.W.N, 203), a printer was given some blocks
to print it in his catalogue but the printer used it for other competitive firms catalogue it was
considered criminal breach of trust.

(3) Bearing it by any other person- bearing knowingly the misappropriation of property of any
other person. The word “knowingly” means doing any act with intention, not due to any
accident. (Kedarnath A.I.R. 1965 Allahabad 233).

Difference between Criminal misappropriation of property and Criminal Breach of Trust-

In the offence of criminal misappropriation of offender is already in possession of the property in
an innocent manner before, he dishonestly misappropriates or converts the same to his own use,
whereas in criminal breach of trust he is entrusted with property in any manner before the
dishonest misappropriation or conversion of property or before he dishonestly uses or disposes
that property.

The offence of criminal misappropriation of property can be committed only with respect to
movable property, while the other can be committed with respect to both movable and
immovable property.

Qs. Cheating (section 415)

Ans. Cheating is a known offence among offences relating to property. Section 415 of I.P.C.
1860 provides about it-

Definition- according to section 415 of code- “whoever, by deceiving any person, either
fraudulently or dishonestly induces the person so deceived to either delivery to any person or to
42
give consent that any person shall retain any property, or intentionally induces the person so
deceived to either to do or omit to do anything which he would not do or omit to do if he were
not so delivered and such act or omission either causes damage or harm to that person body,
mind, reputation or property is cheat.”

Illustration- ‘A’ deceives to ‘B’ by false statement that he is in civil service and excites. ‘B’
dishonestly that he should allow him to take things without paying money of which he has no
intention to pay ‘A’ cheats ‘B’.

In Ram Narain Popali V/s C.B.I. (A.I.R. 2003, S.C. 2748), Supreme Court defines cheat as-
“Deception of any person and fraudulently or dishonestly inducing that person to deliver any
property to any person or to consent that any person shall retain any property is cheating.”

Cheating is not only in relation to property or reputation, but also it may be for mental or
physical damage.

Illustration- ‘A’ prostitute assures a person that she do not have any disease, and excites him for
sexual intercourse, and due to it, one person got disease syphilis. The prostitute cheated him
[Rakma (1866) 11 Mumbai 59).

Essential Elements:

(a) Deceiving a person- first essential element of cheating is deceiving any person. Deceiving
means, Assuring anyone about the fact, which is false or guiding someone to commit
mistake or fault.”

In other words, it can be said that assuring about false facts or confusing about fact is deceiving.

Deception need not be by express words, but it may be conduct or implied.

It is remarkable that merely false stating is not sufficient. It is also necessary that the person
who is also aware about it that it is false.

(b) Fradulent or dishonest intention- In Hira Lal Hari Lal V/s C.B.I. (A.I.R. 2003, S.C.
2545) it was decided that, “Fraudulent or dishonest intention is must for cheating.”

In Jayanti V/s State (1984, Cr, Laws 1535) is a good case. In this case, a woman permits for
sexual intercourse on behalf of promise of marriage and this intercourse continues till she
became pregnant. It is necessary for considering accused proved his fault that he did not have
the intention from beginning.

(c) Inducing deceived Person- inducing the deceived person by the accused dishonestly that-
i. He deliver any property to any person
ii. Give consent that any person may keep it
iii. He do any act by which physical, mental, reputation damage is caused to the person.

43
In K. Krishna Murti V/s State [(1965)1 Cr. Laws 355 S.C.] is a good case. In this case, accused
was posted as an temporary civil assistant surgeon in Madras medical service. He applied to
Madras public service commission for permanent appointment and he stated false representation
about his name, father’s name, place of date, eligibility, basic educational qualifications etc. he
was selected after interview. He took salary from the government for many years but after
sometime, his forgery became known. He was held guilty of cheating.

In N.M. Chakravarti V/s State (A.I.R. 1977 M.C. 1174) acquiring passport by false
representation was held cheating by Supreme Court.

Qs. Criminal Trespass (section 441)

Ans: Sections 441 to 462 of the IPC deal with the offence of criminal trespass and its aggravated
forms. Trespass is generally a civil wrong for which the defendant can sue for damages but when
this trespass is committed with a criminal intention, it is treated as an offence and made
punishable under the IPC.

Section 441. Criminal trespass.—

Whoever enters into or upon property in the possession of another with intent to commit an
offence or to intimidate, insult or annoy any person in possession of such property, or having
lawfully entered into or upon such property, unlawfully remains there with intent thereby to
intimidate, insult or annoy any such person, or with intent to commit an offence, is said to
commit “criminal trespass”.

Section 441 has two parts. The first part is regarding entry into property in the possession of
someone else with the intention to commit some offence or to intimidate, insult or annoy that
person. The second part refers to the remaining in the property unlawfully, after entering into it
lawfully, with the intention of committing an offence or insulting, intimidation or annoying that
person.

Essential ingredients

The essential ingredients of criminal trespass are-

1. Entry into a property which is in someone else’s possession

2. If this entry is lawful, then unlawful remaining on that property

3. With the intention to

• Commit an offence

Intimidate, insult or annoy the person in possession of that property

44
‘Whoever enters’

The section opens with the words ‘whoever enters’ which implies that there must be an actual
entry upon the property by the accused. For example, constructive entry by a servant will not
amount to entry within this section.

Property

The word property in this section covers both movable and immovable property. Hence, there
can be criminal trespass to a motor car, boat, airplane etc. In Dhanonjoy v Provat Chandra
Biswas , a boat has been leased. The accused attacked the person to whom it was leased, drove it
away and plied it across the river to collect money. It was held that this would amount to
criminal trespass.

Possession of another

For the offence to be committed, the entry into the property should be in respect to the property
in possession of someone other than the trespasser himself. The legality of that possession is,
however, immaterial. It is also not essential that the person in possession of the property is
present in the property when the trespass takes place.

Intention

Entry into the property should be with the intention to commit an offence or insult, intimidate or
annoy the person in possession of the property. In Mathri v State of Punjab , the accused along
with others, entered the property with warrants. However, at the time they entered the property,
the warrants had ceased to be executable in law. The Supreme Court held that since the accused
only entered with the intention of executing the warrant, this act did not constitute the offence of
criminal trespass.

Punishment for criminal trespass

Section 447 of the IPC lays down that anyone who commits criminal trespass shall be punished
with imprisonment of a term which may extent to three months and/or fine which may extend to
five hundred rupees.

House trespass in order to commit offence punishable by death: punishable with rigorous
imprisonment for a term not exceeding ten years and fine

45
House trespass in order to commit offence punishable with imprisonment for life: punishable
with imprisonment for a term not exceeding ten years and fine

House trespass in order to commit an offence punishable with imprisonment: punishable with
imprisonment for a term which may extend to ten years plus fine and if this offence is theft then
the imprisonment may extend to seven years.

House trespass after preparation for hurt, assault or wrongful restraint: punishable with
imprisonment which may extend to seven years plus fine.

Harish Chandra vs. State (AIR 1955 Cal. 1338)

The workers of a factory left their working place. They entered into the office of the Managing
Director with deadly weapons. They raised the slogans and beat the staff. The’ High Court held
that the accused/workers were guilty of the offence criminal trespass.

46