Criminal Law Notes

August 7, 2018: Introduction

There is no definition of the term ‘crime’, but an act is a crime if it is deemed so by the law.
Unlike a civil wrong, a crime is public in nature since it is a wrong against the public and the
relevant action is brought by the state.

Right in rem- a right against people at large

Right in personam- a right against a particular person
Malum in se- acts which are inherently wrong (murder, rape, theft etc.)
Mala prohibita- acts which are wrong because the law says so (drug use, gambling etc.)

Problem with social morality definition of crime- does not count victimless crimes, not all
crimes necessarily deemed so on grounds of morality (for example, mala prohibita)

The remedy in crime is a punitive punishment to the wrongdoer accorded by the state.

The social contract and crime?

Actus reus- committing the (criminal) act

Mens rea- intention to do something (criminal)

The aims of punishment: Punishment has many theories behind it, the primary ones being
repression, prevention, deterrence or retribution. These however are not mutually exclusive
and very well overlap.

As times have changed, punishment has taken a more restitutive nature than a repressive one.
The preventive purpose is considered too narrow since it only covers time served and does
not completely work in conjunction with the concept of reformation. Modern criminal justice
systems thus focus mainly on deterrence with the purpose of retribution.

August 14, 2018: General Principles

Under §53 of the IPC, the following punishments: -
 Death
 Imprisonment for life (for the remainder of the offender’s natural life unless remitted;
rigorous imprisonment)
 Imprisonment- rigorous or simple
 Forfeiture of property
 Fine

An offence in general has the following elements: -

 Actus reus; [literally, guilty act/an act prohibited by law]
 Mens rea; [literally, guilty mind/intention]
 Combined with the causal chain
 Person;
 [And injury]
The concept of mens rea however has not always been relevant to the criminal justice system.
A series of acts can also constitute an act according to §33. Similarly, for omissions.
“Actus reus non facit reum nisi mens sit rea.” Literally, an act does not make a person guilty
without a guilty mind. Mens rea looks at the psychology of the wrongdoer- knowledge,
intention, reason to believe, recklessness and voluntariness. However, one particular state of
mind is not looked at, instead various forms of mens rea at different levels are looked at.
Different offences require different degrees of mens rea.

The term ‘voluntarily’ is defined under §39, one commits an act voluntarily if there was
intention or reason to believe that the act would likely cause something. Note the difference
in degree. [check illustration in bare act]

Negligence in crime- Though negligence implies a lack of intention, it is still an element of

mens rea. Certain professionals and public officials owe a duty of care and could hence be
held liable for negligence in crime.

August 21, 2018: Causation

Say actus reus and mens rea are both present. Together, they will be referred to as ‘conduct’.
The question is that whether the conduct had a proximate effect on the harm.

Causation in fact refers to what actually caused the harm, whereas causation in law refers to
the damage which was reasonably foreseeable and not too remote.

Directness and proximity determine whether the consequences were foreseeable or not, in
case the chain in causation was broken.

The chain in causation can be broken by the victim, third parties, natural forces and so on.

The ‘but for test’ can be used to determine causation in fact. However, this test is not
applicable when the chain in causation is broken. If that may be the case, then causation in
law is looked at.

Novus actus interveniens generally does not break the chain in causation if the consequence
was highly likely due to the defendant’s act, ceteris paribus.

In R v Blaue, the defendant was held liable due to the eggshell skull rule [take the victims as
they come]. Denying a blood transfusion does not constitute a novus actus interveniens.

In R v Kennedy, the defendant’s conviction for manslaughter was quashed. This was because
the victim voluntarily administered the drug to himself [through free will] and this constituted
a novus actus interveniens.

In Govindaswamy v State of Kerala, the head injury was not sufficient in itself to cause
death- the blood that entered the air passage due to other injuries was the main cause. These
injuries were not attributed to the appellant due to insufficient evidence and he was hence not
liable for murder. There was a break in the chain of causation.

[CHECK SHAUN STAR’S NOTES/WINFIELD FOR BROADER EXPLANATION]

August 28, 2018: Stages of a Crime/Inchoate Offences
Stages of a (generalised, may not be applicable to all) crime: -
 Intention/making up of mind
 Preparation
 Attempt
 Commission/completion

A mere thought of committing a crime without any other stages having occurred does not
make one criminally liable.

Inchoate offences: an offence where all the stages have not been completed by the accused,
particularly the stage of commission. Preparation does not entail any liability barring a few
exceptions. (Preparation to dacoity and preparation to wage war against the state) If an illegal
act is committed during preparation, then the accused is liable for that particular act.

Attempt entails liability because mens rea and actus reus were present. The state makes it
liable to deter others and act as an agent of the victim. ‘Injury’ may not be caused to the
victim but does shake the conscience of society at large. Attempt punishable under §511 of
the IPC.

Drawing a line between preparation and attempt: Earlier, the penultimate act constituted
attempt. Now, the physical proximity towards commission is looked at along with
circumstantial evidence. This test is broader in scope and depends on degree of activity.

Preparation is defined as “arranging means and measures” while attempt is defined as “direct
action towards commission”.

In R v Robinson, a jeweller reported a theft but the ostensibly stolen goods were found hidden
in a safe. Robinson was charged with an attempt to deceive the insurance company but the
defence argued that he had only reached the stage of preparation as the insurance company
wasn’t contacted. The letter with the claim had not been dispatched. Since the penultimate
stage was not reached, Robinson was not held liable.

In Abhayanand Mishra v Bihar, the appellant produced certain documents for an MA exam
and the university dispatched the admission card but sooner rather than later the documents
turned out to be fake. It was argued that this was preparation and not attempt as no harm was
caused. It was unforeseeable by the appellant that the university’s reputation was damaged.
However, admission card constituted property (check §§420 and 511) and the appeal was
dismissed.

Locus poenitentiae test: Literally, chance to repent. If the accused changed his mind due to
say a feeling of guilt before committing the offence, then it would only constitute preparation
and not attempt. This test however is not much in use now due to many loopholes.

The equivocality test: Based on res ipsa loquitor (the thing speaks for itself). Depends upon
highest possible degree of evidence. This test too is not preferred any longer.

Attempts where commission of the offence is impossible: Certain factors may render the
commission of an offence impossible. The impossibility may be internal (legal) or external
(factual). In common law jurisdictions, both did not carry any liability. Now, external
impossibility carries liability.
In Anderton v Ryan, Mrs Anderton believed she was purchasing a stolen video recorder as it
was too cheap. The police questioned her but it turned out the good wasn’t stolen at all,
despite her believing so. The offence was impossible to begin with and she was acquitted.

In R v Shivpuri, the defendant was to hand over a briefcase to another person but while doing
so was soon arrested. The briefcase contained some white powder believed to be an illegal
drug. On examination, the substance turned out to be vegetable powder. The defendant was
held liable for attempting to deal with illegal drugs as this was an external impossibility.

In Emperor v Asgar Ali Pradhania, the defendant entered into a relationship with his
neighbour and she got pregnant. He freaked out and abandoned his plans to marry her. He
plans to administers a substance to her which would result in a miscarriage. He later tries to
force it down her throat but fails. On examination, the substance turned out to be not a poison
but copper sulphate which was harmless to the uterus. The impossibility was internal and
defendant hence not liable.

August 29, 2018: Complicity and Joint Liability

Criminal conspiracy is recognised as an offence under §120-A of the IPC. Elements of
criminal conspiracy: -
 Two or more persons;
 Agree to commit an illegal act or a legal act by illegal means

What is present here is both intention and preparation. An attempt is not required, mere
agreement is sufficient. Civil action may also follow. If say three persons are involved in a
conspiracy but only one of them carries out the act, then all three will be liable for criminal
conspiracy. Punishments prescribed under §120B.

Abetment is covered under §§107-120. An abetment entails the same punishment as if the
abettor himself/herself committed the offence so abetted.

Joint liability covered under §34 which lays out common intention. If two or more people act
on common intention AND in furtherance commit an offence, then all such individuals would
be liable as if each person had committed the offence alone. Constructive participation
(despite physical absence) while the crime is being committed also included.

Common intention is different from similar/same intention. Common intention implies that
the individuals were aware of each other’s motives.

In Birendra Kumar Ghosh v Emperor, there was a common intention to rob a post office.
Multiple people (along with B) entered the post office and the postmaster was shot at twice
and he died. Some people at the post office intervened and B was caught while his
accomplices escaped. B claims he was just present at the scene of crime to keep guard and
tried fleeing on hearing the gunshots. Forensic evidence and witness accounts insufficient to
prove whether B shot the postmaster. On applying §34, standing guard was seen as an act in
furtherance of common intention and B was hence liable for robbery but not for murder due
to presence of reasonable doubt.
In Mahbub Shah v Emperor, no common intention present to commit murder. Both acted to
save their kin. M had no intention to murder the neighbour and was hence acquitted.
Unlawful assembly defined and covered under §§141-149. Unlawful assembly is also a form
of joint liability as explained by §149. Rioting is a form of unlawful assembly covered under
§§146-148.

Common object is broader in scope than common intention. It doesn’t matter how the act is
done, all that matters is that the parties sought to achieve the same outcome.

Joint liability under §34 is a rule of evidence whereas §143 and its ilk are substantive
offences.

In Matthew v State of Travancore, there were 10 accused involved. Two were arrested by the
police and the rest wanted to break them out of prison. The eight reached the holding cell
around midnight, armed with knives. In the process of breaking them out, two police officers
were killed. The appellant was charged under §149 and asserted that hadn’t injured any of the
police officers. Appeal failed, M liable.

September 5, 2018: Defences and General Exceptions

Two broad categories of defences- excusable and justifiable. Under excusable defences, mens
rea is absent. Under justifiable, mens rea is present but the act in itself is done either in good
faith, to prevent greater damage or for self-defence.

Unlike ignorance of the law, mistake of fact is a defence as prescribed under §§76 and 79.

Cognizable offence- an offence where an arrest can be made without a warrant.

Under §§77 and 78, judicial and administrative acts in good faith are not offences. This is to
avoid any hinderances in the normal functioning of public authorities.

Accidents which occur despite lack of intention/knowledge and having taken reasonable
care/caution do not make one criminally liable according to §80. The act which led to the
accident must have been done by lawful means. However, in some cases, strict/absolute
liability may apply. Chain of causation is important here. [Hunting hypothetical]

If the act committed is unlawful, the defence of accident cannot be availed.

For the prosecution, the threshold is to prove beyond reasonable doubt. For the defence
however, an exception can be proved on preponderance of evidence.

Necessity is a defence under §81 if the act is done without criminal intent and to prevent
other harm.

In R v Dudley and Stephens, four crewmen, including the co-defendants set off on a voyage
to Sydney. After a while, a wave struck the yacht, diminished their supplies and left them
stranded at sea. Three of them, without the fourth’s consent killed him and ate him up as he
was the weakest after waiting for another vessels. A life was taken to preserve three more,
say the defendants. Lord Coleridge found the defendants guilty and rejected the arguments of
self-preservation as it cannot justify taking one’s life; that person posed no physical threat to
the sailors and hence not an aggressor. Initially sentenced to death but the sentence was
commuted to six months in prison.
An act (except murder or an offence against the state) done by a person under compulsion
when one’s own life is under threat is not an offence according to §94. The section has been
read broadly enough to allow the inclusion of threats to close relatives.

Right of private defence is covered by §§96-106. Initially, it was governed by the ‘flight or
fight’ principle. Now, a chance of fleeing does not take precedence over this right.

The right to private defence to body begins as soon as the threat becomes imminent and
elapses as soon as the threat is over, §102. Similarly, for property under §105.

Under §97, this right can be exercised to defend one’s own body, the body of another person,
one’s own property or the property of another person. Whether the assailant is of sound mind
or not is immaterial, §98.

Restrictions to private defence are laid down in §99. Private defence cannot be claimed
against the actions of public officials acting in good faith, the force applied must be
reasonable and no recourse to public authorities should be available. Courts have been lenient
in applying this to various scenarios.

If death or grievous bodily harm is caused in legitimate exercise of private defence, then the
defendant is not criminally liable, §100. Instances where this section is applicable listed along
with.

In Amjad Khan v State, the appellant fired a few warning shots in a horizontal direction
believing that his shop was being looted during some communal riots, which resulted in a
man being killed from these gunshots. However, it was later learnt that no looting had taken
place. Sessions court convicted the appellant since no looting took place but agreed that
reasonable apprehension was present. The high court upheld this but the supreme court
invoked §102 and overturned the conviction. Also, reasonable apprehension was present
given the circumstances and no recourse to public authorities was present. The force used
was reasonable.

The right to private defence of body can extend to cause death under §100 and §103 extends
this to defence of property too.

If the threat leads to an apprehension of death and in exercise of private defence third parties
are injured, then the person commits no offence (§106).

Any act done by a child under the age of seven isn’t an offence (§82). If the child is between
the age of seven and twelve and incapable of understanding the nature and consequences of
his/her actions, the child is not liable (§83).

The defence of insanity developed in 1843 in Britain in the M’Naghten case. Here, Daniel
M’Naghten, a lunatic, had shot Edward Drummond, who was Sir Robert Peel’s private
secretary. The defendant had the intention of murdering the Prime Minister as he believed
that Sir Robert had harmed him but shot Drummond thinking he was Peel. The House of
Lords formulated the M’Naghten rules as an outcome of the trials. Lord Tindal said that to
plead the defence of insanity, the defendant should either be incapable of understanding the
nature and consequences of his action or due to delusion not know what he was doing is
wrong.

Under the IPC, unsoundness of mind is a defence under §84, which is derived from the
M’Naghten rules.

Diminished responsibility is a British concept in the insanity defence. This allows for the
offence to change its nature and does not absolve the wrongdoer of liability overall. This is
used when the M’Naghten rules do not apply fully. For example, an act of killing by a lunatic
may be reduced from murder to manslaughter.

Intoxication is a defence if the accused was intoxicated involuntarily, §85.

In Basdev v State, the appellant went to a wedding accompanied by a fifteen-year-old. He

consumed alcohol and has a trifling altercation with the kid (the kid refused to give up his
chair). He took out his gun and shot him. It was held that he had the knowledge of his actions
as per §86. Since he was able to recall the entire incident, intention was present too. Hence
liable for murder, intoxication doesn’t apply.

Trivial acts which cause the slightest of harm are not offences as per §95. De minimis non
curat lex.

In Rupan Deol Bajaj v Kanwar Pal Singh Gill, the defendant spanked the plaintiff’s ass after
getting drunk and making lewd comments. The lower courts held this was a trivial matter but
the supreme court said that the defence of triviality is inapplicable. Defendant liable.

September 19, 2018: Offences Against the Human Body

The word ‘culpable’ is added before homicide in criminal statutes to connote that the act of
killing is illegal. [Yeah, no shit Sherlock]

Culpable homicide defined in §299 whereas murder is defined in §300. Murder is a subset of
culpable homicide. This means that culpable homicide may or may not amount to murder.

In the United Kingdom and the United States, manslaughter is the equivalent of culpable
homicide not amounting to murder.

The difference between culpable homicide and murder lies in the degree of mens rea. For the
former, the act should be likely enough to cause death and for the latter, the act should be so
dangerous that it will cause death in all probability. The prosecution first has to prove
culpable homicide and then move to establish if it is murder or not.

In Emperor v Dhirajia, the accused was a young woman who had a baby. Got into a fight
with the husband who was abusive. She was absconding, jumped in a well to avoid the
husband but survived while the baby died. The case was referred to the high court, where a
distinction between knowledge and intention was drawn. The court said that while there was
no intention, the accused had knowledge, thus guilty of culpable homicide not amounting to
murder.
In Gyarsibai v State, the appellant was living with her husband, sister in law and three
children. Got into quarrels generally. Wife fought with sister in law and said she’d jump in
the well with her children; and did so. She survived while the kids died. Court looks at
§300(4), knowledge present plus her statement represents intention. Liable for murder but not
in a sound state of mind, sentence hence commuted.
In KM Nanavati v State of Maharashtra, the appellant’s wife, Sylvia was having an
extramarital affair with a businessman and told her husband about the same. He drove his
wife and kids to the cinema, went to his ship, got his gun, went to the businessman’s house
and shot him. Three shots were fired. Initially ruled as an accident but facts came to light
later. Grave and sudden provocation as an exception to murder and applied here. Mancini rule
and the reasonable man test were also used. Lapse of time an important element along with
self-control. After a trial of the century, not guilty owing to grave and sudden provocation.

If grave and sudden provocation is successfully proven, the act entails a lesser punishment.

In the United Kingdom, the concept of grave and sudden provocation has been replaced with
the concept of ‘loss of control’.

In R v Ahluwalia, the defendant married a man in the UK, who was physically abusive and an
alcoholic. Ten years later, she found out that her husband had an affair with another woman
and wanted to end the marriage. He threatened her and demanded £200 from her. Later at
2:00 AM, she buys petrol and caustic soda and spreads it on his feet and then lights a fire.
Husband wakes up and shouts ‘I will kill you.’ She gets outside with her kids and looks
dazed, says that she’s waiting for her husband. Husband taken to the hospital and dies six
days later, before dying he narrates the incident and denies having an affair. It was incumbent
upon the defence to not only prove that a reasonable man would have lost control, but would
have also acted in the same way. Gravity of provocation was also important. Defence
conjured up the ‘battered woman syndrome.’ Diminished responsibility also brought up by
the defence. Retrial ordered. Prosecution argues state of mind, lapse of time. Ultimately,
guilty of manslaughter.

Kidnapping refers to taking someone away from India or lawful guardianship (§359-361)
while abduction (§362) refers to compelling someone by force or inducing someone to go
from one place to another. Abduction is not a substantive offence under the IPC.

October 9, 2018: Sexual Offences and Obscenity

Rape and its elements are laid down in §375.

In DPP v Morgan, the defendant invited over some friends for drinks and repeatedly told
them to have sex with his wife, describing her as ‘kinky’ and saying that if she resists, they
should ignore it. The friends enter the wife’s room, pick her up and take her to another room.
She cries for help but her husband pays no heed. Morgan and his friends each have sex with
her. The judge told the jury that if the friends reasonably believed that consent was given,
they should not be guilty, but the jury found them guilty anyway. On appeal, the court
switched reasonable belief to honest belief but found the appellants guilty. By 2003, the
standard of reasonable belief was restored.

Marital rape- Independent Thought v Union of India, constitutional validity

Regina v Hicklin was the leading authority on obscenity in the United Kingdom. See also
Roth v United States, which takes a contrary view and established the community standard
test. In Miller v California (1973), the Miller test was established. Courts in India by 2014
discarded the Hicklin test in favour of the community standard test in Aveek Sarkar v West
Bengal.

Section 377 of the IPC was struck down in the Navtej Singh v Union of India judgement.
Adultery was an offence under §497 but it was recently struck down by the Supreme Court in
Joseph Shine v Union of India.

October 30, 2018: Offences Against Property

Theft is an offence against possession and not against ownership and is the criminal
equivalent of the tort of conversion. Requirements: removal of property from lawful
possessor without consent AND with dishonest intention. Defined under §378.

‘Dishonestly’ connotes a wrongful gain or wrongful loss.

In the KN Mehra case, Philips, a co-defendant was discharged from the air force while Mehra
was a navigator. One fine day, Philip and Mehra hopped into a plane and flew it without
clearance and reached a couple hundred miles into Pakistan, where they were for three days
before being brought back. The Supreme Court had to consider whether dishonest intention
existed and if the act constitutes theft or not. Appellants called it a thoughtless prank and that
the landing was forced into Pakistan due to technical reasons. Supreme Courts says that no
authorisation was given, no authority from the flight commander, Philips was discharged and
radio signals sent to recall the plane weren’t heeded to. Consent not present since Philips
wasn’t authorised to fly the plane in the first place. Flying it to another country constituted
dishonest intention. Defendants hence guilty of theft.

In Pyare Lal v Rajasthan, the defendant was a superintendent at some government office and
his friend wanted some files from D’s office. D takes the files without the HOD’s consent,
gives them to the friend who tampers with them and then returns them to D, who keeps the
files back. Prosecuted for theft. Did he commit theft? SC- the files were not in his possession,
they were in the department’s possession though in D’s office. Even temporary removal
constitutes taking something away dishonestly. Wrongful loss present since files tampered
with. Hence guilty of theft.

Extortion (§383) requires putting in a fear of ‘injury’ to induce the person in order deliver
something to the offender. Here, the offender does not take away the property without the
knowledge of the victim but the induces the victim to deliver it to him. Check §44 for
definition of injury.

Theft or extortion become robbery (§390) when the harm apprehended is so imminent and
that of death, physical hurt or wrongful restraint.

Robbery becomes dacoity (§391) when at least five persons are involved.

Dishonest misappropriation (§403) occurs when someone converts someone else’s property
for their own use.
Causing death negligently- §304, Cherubin Gregory case, held liable and defence of
protecting property did not apply.

In Dr Suresh Gupta v Government of NCT, D was a surgeon and accused of causing the death
of a patient suffering from a minor nasal deformity and died of asphyxiation after the surgery.
Doctor not held liable since no offence existed, though a cause of action may arise in tort.