IPC Study Material

Law of Crimes – I (Indian Penal Code) LB-302 BA.LL.B/BBALL.B.
III Semester
HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA

III SEMESTER
B.A./B.B.A.LL.B. (Hons.)
COURSE CODE: LB- 302
Law of Crimes – I (Indian Penal Code)
COURSE CONTENTS AND READING MATERIAL
COURSE CONTENT DEVELOPED, READINGS SUGGESTED & EDITED BY:

Dr. Ruchi Sapahia (COURSE INSTRUCTOR)
Himachal Pradesh National Law University Shimla,
16 Miles, Shimla-Mandi National Highway Ghandal,
District Shimla, HP-171014
: https://www.hpnlu.ac.in/
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For Private Circulation Only
Law of Crimes – I (Indian Penal Code) LB-302 BA.LL.B/BBALL.B. III Semester
Module-1
Law of Crimes: Introduction
1.1 Introduction; nature and scope of Criminal Law

1.2 Principle of mens rea
1.3 Concept of Strict Liability
1.4 An overview of General Exceptions
1.5 Right to Private Defense
Module-2
Inchoate Crimes
2.1 Group Liability

2.2 Common Intention (Sections 34-38) & Common Object (Sections 141-149)
2.3 Riot & Affray
2.4 Attempt (Sections 511,307,309)
2.5 Abetment & Conspiracy
Module-3
Offences Against Human Body
3.1 Culpable Homicide: General; Culpable Homicide & Murder; Exception to S. 300
3.2 Kidnapping & Abduction (Sections 359, 360,361-366)
3.3 Sexual offences (Sections 354, 354A-354D, 375-376A-376E)
3.4 Defamation
Module-4
Offences Against Property
4.1 Theft (Sections 378-382 read with section 23-24) & Extortion (Section 383)
4.2 Robbery & Dacoity (Sections 390-391)
4.3 Dishonest misappropriation of Property & Criminal breach of trust (Sections 403-405)
4.4 Cheating (415-416 and 420 read with sections 29-30)
4.5 Criminal Trespass
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Prescribed legislation:
1. The Indian Penal Code, 1860
2. The Protection of Children from Sexual Offences Act, 2012
3. The Juvenile Justice (Care and Protection of Children) Act, 2000
4. The Protection of Women from Domestic Violence Act, 2005
Prescribed Books:
1. Gaur, K.D.; Criminal Law: Cases and Materials, (Universal, 2015)

2. Vibhute, K. I. (Rev.), P.S.A. Pillai's Criminal Law (LexisNexis, 2014)
Reference Books:
1. Huda, Syed Shamsul; The Principles of the Law of Crimes in British India (EBC,
2011)
2. Pillai, K.N. Chandrasekharan; General Principles of Criminal Law (EBC, 2011)
3. Nigam, R.C.; Law of Crimes in India, (Asia Publishing House, 1965)
4. Pillai, K.N.C. & Shabistan Aquil (Rev.); Essays on the Indian Penal Code (ILI, 2005)
5. Raju, V.B.; Commentary on Indian Penal Code, 1860, (EBC, 1982)
6. Thomas, K.T., M.A. Rashid (Rev.), Ratan Lal & Dhiraj Lal's The Indian Penal Code,
(LexisNexis, 2014)
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INTRODUCTION:
Indian Penal Code (IPC) is the main criminal code of India. It is a comprehensive code intended
to cover all substantive aspects of criminal law. The code was drafted in 1860 on the
recommendations of first law commission of India established in 1834 under the Charter Act of
1833 under the Chairmanship of Thomas Babington Macaulay. It came into force in British India
during the early British Raj period in 1862. However, it did not apply automatically in the
Princely states, which had their own courts and legal systems until the 1940s. The Code has since
been amended several times and is now supplemented by other criminal provisions. Based on
IPC, Jammu and Kashmir has enacted a separate code known as Ranbir Penal Code (RPC).
After the departure of the British, the Indian Penal Code was inherited by Pakistan as well, much
of which was formerly part of British India, and there it is now called the Pakistan Penal Code.
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Even after the independence of Bangladesh (Formerly known as East Pakistan) from Pakistan
(Formerly known as West Pakistan), it continued in force there. It, the Indian Penal Code, was
also adopted by the British colonial authorities in Burma, Ceylon (now Sri Lanka), the Straits
Settlements (now part of Malaysia), Singapore and Brunei, and remains the basis of the criminal
codes in those countries. The Ranbir Penal Code applicable in that state of Jammu and Kashmir
of India, is also based on this Code.
The draft of the Indian Penal Code was prepared by the First Law Commission, chaired by
Thomas Babington Macaulay in 1834 and was submitted to Governor-General of India Council
in 1837. Its basis is the law of England freed from superfluities, technicalities and local
peculiarities. Elements were also derived from the Napoleonic Code and fromEdward
Livingston's Louisiana Civil Code of 1825. The first final draft of the Indian Penal Code was
submitted to the Governor-General of India in Council in 1837, but the draft was again revised.
The drafting was completed in 1850 and the Code was presented to the Legislative Council in
1856, but it did not take its place on the statute book of British India until a generation later,
following the Indian Rebellion of 1857. The draft then underwent a very careful revision at the
hands of Barnes Peacock, who later became the first Chief Justice of the Calcutta High Court,
and the future puisne judges of the Calcutta High Court, who were members of the Legislative
Council, and was passed into law on 6 October 1860. The Code came into operation on 1
January 1862. Unfortunately, Macaulay did not survive to see his masterpiece come into force,
having died near the end of 1859.
SALIENT FEATURES OF THE I.P.C.
Objective of the Indian Penal Code
The objective of this Act is to provide a general Penal Code for India. Though this Code
consolidates the whole of the law on the subject and is exhaustive on the matters in respect of
which it declares the law, many more penal statutes governing various offences have been
created in addition to this code.
The Indian security system has been one that has gone through a lot of tests and examinations
throughout the time. This is due to the political as well as the social situation of the country.
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India is a land of diverse cultures and traditions and it is a place where people from various
religions as well as ethnic backgrounds live together.
Indian Penal Code Format
The Indian Penal code has a basic format, it’s a document that lists all the cases and punishments
that a person committing any crimes is liable to be charged. It covers any person of Indian origin.
The exceptions are the military and other armed forces, they cannot be charged based on the
Indian Penal Code. They have a different set of laws under the Indian Penal Code as well.
The Indian Penal Code has its roots I the times of the British rule in India, formulating in year
1860.Amendments have been made to it in order to incorporate a lot of changes and jurisdiction
clauses. One such amendment is the inclusions of section 498-A.The total number of sections
contained in the Indian Penal Code are five hundred eleven. All these sections pertain to a
particular category of crimes committed by civilians of Indian origin. There are sections related
to Dowry Laws and jurisdictions in India, as well as there are several sections that concern
various types of criminal laws. The Indian Penal Code is thus the most fundamental document
of all the law enforcer as well as the entire judiciary in India.
The Indian judicial system is one that has evolved into a stable and fair system of detention and
penalizing, after being tested well for several years. The judiciary of the country is a body of
people who are given the task of execution of the laws made by the government, that is, the
judiciaries of a country are its law enforcers. However, the judicial representatives cannot assess
the cases of crimes or misconduct on their own perceptions or rules. There has to be a single
system or a document that acts as a standard to all the decision making process and the
penalizing norms. Such a document exists in all countries and in case of India, it is referred to as
The Indian Penal Code. The Indian Penal Code is applicable to all the citizens of India who
commit crimes or actions suggesting misconduct in the Indian territory. The document is
applicable to ships as well as aircrafts within the Indian seas or the airspace as well.
Indian penal code is the skeleton of the Indian criminal justice system.
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There are certain questions that are frequently asked by a layperson for basic understanding of
rights for example,
1. What exactly Indian Penal code is?
2. How and when did it originate?
3. What is its applicability?
4. How does it work?
5. To what extend it s the law enforcement agencies?
6. What is modus operandi of judges while applying the relevant sections?
These questions are answered as follows-
Indian Penal Code is a document that has been formulated to counter crimes of various natures
and breach of law. IPC traces its roots to the British colonial rule in India.IPC covers any Indian
citizen or a person of Indian origin with the exceptions to any kind of military or the armed
forces crimes, which are handled by a dedicated list of armed force acts.
The most important feature of the Indian Penal Code is the impartial nature of judgments
promoted by the document. The Indian Penal Code does not include any special favors for any
special person at some position. Thus, the Indian Penal Code stands alike for government
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Law of Crimes – I (Indian Penal Code) LB-302 BA.LL.B/BBALL.B. III
Semester
employees, as for a common man, and even for a judicial officer. This builds up the faith of
the common citizens in the law making and enforcing bodies in the country and prevents any
sort of corruption or misuse of power on the part of the people in power.
All in all, the Indian Penal Code of the present day has done away with almost all its flaws
and has evolved into a modern law enforcing document that takes into consideration the
humane side of the personalities of culprits as well. This has escalated and improved the
Indian system of Law to greater heights and has led to a firm respect for it in every citizen of
the country.
Importance of The Penal Code
Indian Penal Code is a very important set of regulation which is very important for the system
to be operated in a proper way. It is the main criminal code of India. They are various
offences that are made under this law. The Indian Penal Code includes all the relevant
criminal offences dealing with offences against the state, offenses for public, offences for
armed forces, kidnapping, murder, and rape. It deals with offense related to religion, offences
against property and it has an important section for offences for marriage, cruelty from
husband or relatives, defamation and so on so forth. This was a general over view of the
structure of Indian Penal Code. It is not only important for India but every country should
have an Penal Code in order for its system to be operated in a systematic way. This document
majorly covers all the basic offences which are highlighted in the society.
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IPC: A REFLECTION OF DIFFERENT SOCIAL AND MORAL VALUES
Values
Values are the rules by which we make decisions about right and wrong, should and
shouldn't, good and bad. They also tell us which are more or less important, which is useful
when we have to trade off meeting one value over another. It is beliefs of a person or social
group in which they have an emotional investment (either for or against something).
Morals
Morals have a greater social element to values and tend to have a very broad acceptance.
Morals are far more about good and bad than other values. We thus judge others more
strongly on morals than values. A person can be described as immoral, yet there is no word
for them not following values.
IPC reflects different social and moral values while defining the crime and its punishments.
APPLICABILITY OF I.P.C.- TERRITORIAL AND PERSONAL
Personal Jurisdiction
Section 2 of the Indian Penal Code says that every person irrespective of his/her rank,
nationality, caste or creed shall be liable for an offence committed in India and of which he is
found guilty. It expends to foreign nationals also. Eg: Adultery is not an
offence in America, but is an offence under Section. 497 of the Indian Penal Code.
Exceptions
The following persons are always exempted from the jurisdiction of Criminal Courts as
certain rights and privileges are conferred on them.
1. Foreign Soverigns
2. Ambassadors
3. Alien enemies

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4. Foreign Army
5. Warships
6. President and Governors.
President and Governors of the Country are exempted from Jurisdiction of Criminal Courts
under Article 361 of the Indian Constitution.
Territorial Jurisdiction
A person shall be liable for an offence committed over/throughout the territory of the State.
Territory includes land and sea comprising of territorial waters.
NATURE AND DEFINITION OF CRIME
NATURE OF CRIME
The Indian security system has been one that has gone through a lot of tests and examinations
throughout the time. This is due to the political as well as the social situation and standing of
the country. India is a land of diverse cultures and traditions. It is a place where people from
various religions as well as ethnic backgrounds live together. As a result of these, there might
arise certain disputes amongst the people. The cultural diversity is such that there are disputes
and clashes of interest between different states, ethnic to particular cultural consortiums.
There are also many intrusions from neighboring countries and terrorist organizations. Then,
there is the issue of the Naxalites as well as the day to day common crimes. To counter all
such crimes and breach of law, a document has been formulated, that covers each of these
situations separately and lists out the penalties for those found guilty under any of the
mentioned offences. This is document is known as the Indian Penal Code. The Indian penal
code is also applicable to the state of Jammu and Kashmir.However, it was known in this
state as the Ranbir Penal Code (RPC). The Indian Penal code, in its basic form, is a document
that lists all the cases and punishments that a person committing any crimes is liable to be
charged with. It covers any Indian citizen or a person of Indian origin. The exception here is
that any kind of military or the armed forces crimes can not be charged based on the Indian
Penal Code. Military as well as the armed forces have a different dedicated list of laws and
the Indian Penal Code does not have the privilege to supersede any part of it. The Indian
Penal Code also has the power to charge for any crimes committed by a person who is an
Indian citizen on any means of transport belonging to India-an Indian aircraft or an Indian

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ship. The Indian Penal Code has its roots in the times of the British rule in India. It is known
to have originated from a British legislation account in it's colonial conquests, dating back to
the year 1860.The first and the introductory draft of the Indian Penal Code was formulated in
1860s and was done under the able supervision of the First Law Comission.The commission
was righteously chaired by Lord Macaulay. The first penal code came into existence way
back in the year 1862.Since then, a lot of amendments have been made to it in order to
incorporate a lot of changes and jurisdiction clauses. One such amendment is the inclusions
of section 498-A.The total number of sections contained in the Indian Penal Code are five
hundred eleven. All these sections pertain to a particular category of crimes committed by
civilians of Indian origin. There are sections related to Dowry Laws and jurisdictions in
India, as well as there are several sections that concern various types of criminal laws. The
Indian Penal Code is thus the most fundamental document of all the law enforcer as well as
the entire judiciary in India.
WHAT IS A CRIME? We must answer this question at the outset. In order to answer this
question we must know first, what is law because the two questions are closely inter-related.
Traditionally, we know a law to be a command enjoining a course of conduct. The command
may be of a sovereign or of political superiors to the political inferiors; or it may be the
command of a legally constituted body or a legislation emanating from a duly constituted
legislature to all the members of the society. A crime may, therefore, be an act of
disobedience to such a law forbidding or commanding it. But then disobedience of all laws
may not be a crime, for instance, disobedience of civil laws or laws of inheritance or
contracts. Therefore, a crime would mean something more than a mere disobedience to a law,
"it means an act which is both forbidden by law and revolting to the moral sentiments of the
society." Thus robbery or murder would be a crime, because they are revolting to the moral
sentiments of the society, but a disobedience of the revenue laws or the laws of contract
would not constitute a crime. Then again, "the moral sentiments of a society" is a flexible
term, because they may change, and they do change from time to time with the growth of the
public opinion and the social necessities of the times. So also, the moral values of one
country may be and often are quite contrary to the moral values of another country. To cite a
few instances, heresy was a crime at one time in most of the countries of the world, because
in those days it offended the moral sentiments of the society. It was punished with burning.
But nobody is punished nowadays for his religious beliefs, not even in a theocratic state. The
reason is obvious. Now it does not offend the moral sentiments of the society. Adultery is

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another such instance. It is a crime punishable under our Penal Code, but it is not so in some
of the countries of the West. Then again suttee, i.e., burning of a married woman on the
funeral pyre of her deceased husband, was for a long time considered to be a virtue in our
own country, but now it is a crime. Similarly, polygamy was not a crime in our country until
it was made so by the Hindu Marriage Act, 1955. This Act, it may be stated, does not apply
to Mohammedans or Christians. But Christians are forbidden to practise polygamy under

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their law of marriage, while Mohammedans are yet immune from punishment for polygamy.
All these instances go to show that the content of crime changes from time to time in the
same country and from country to country at the same time because it is conditioned by the
moral value approved of by a particular society in a particular age in a particular country. A
crime of yesterday may become a virtue tomorrow and so also a virtue of yesterday may
become a crime tomorrow. Such being the content of crime, all attempts made from time to
time beginning with Blackstone down to Kenny in modern times to define it have proved
abortive. Therefore, the present writer agrees with Russell when he observes that "to define
crime is a task which so far has not been satisfactorily accomplished by any writer. In fact,
criminal offences are basically the creation of the criminal policy adopted from time to time
by those sections of the community who are powerful or astute enough to safeguard their own
security and comfort by causing the sovereign power in the state to repress conduct which
they feel may endanger their position".
But a student embarking on study of principles of criminal law must understand the chief
characteristics and the true attributes of a crime. Though a crime, as we have seen, is difficult
of a definition in the true sense of the term, a definition of a crime must give us "the whole
thing and the sole thing," telling us something that shall be true of every crime and yet not be
true of any other conceivable non-criminal breach of law. We cannot produce such a
definition of crime as might be flexible enough to be true in all countries, in all ages and in
all times. Nevertheless, a crime may be described and its attributes and characteristics be
clearly understood. In order to achieve this object, we propose to adopt two ways, namely,
first, we shall distinguish crime from civil and moral wrongs, and secondly, we shall critically
examine all the definitions constructed by the eminent criminal jurists from time to time.
DISTINCTION BETWEEN MORAL, CIVIL AND CRIMINAL WRONGS
In order to draw a distinction between civil and criminal liability, it becomes necessary to
know clearly what is a wrong of which all the three are species. There are certain acts done
by us which a large majority of civilised people in the society look upon with disapprobation,
because they tend to reduce the sum total of human happiness, to conserve which is the
ultimate aim of all laws. Such acts may be called wrongs, for instance, lying, gambling,
cheating, stealing, homicide, proxying in the class, gluttony and so on. The evil

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tendencies and the reflex action in the society of these acts or wrongs, as we have now
chosen to call them, differ in degree. Some of them are not considered to be serious enough
as to attract law's notice. We only disapprove of them. Such wrongs may be designated as
moral wrongs, for instance, lying, overeating or gluttony, disobedience of parents or teachers,
and so on. Moral wrongs are restrained and corrected by social laws and laws of religion.
There are other wrongs which are serious enough to attract the notice of the law. The reaction
in the society is grave enough and is expressed either by infliction of some pain on the
wrongdoer or by calling upon him to make good the loss to the wronged person. In other
words, law either awards punishment or damages according to the gravity of the wrong done.
If the law awards a punishment for the wrong done, we call it a crime; but if the law does not
consider it serious enough to award a punishment and allows only indemnification or
damages, we call such a wrong as a civil wrong or tort. In order to mark out the distinction
between crimes and torts, we have to go deep into the matter and study it rather elaborately.
Civil and Criminal Wrongs: We may state, broadly speaking, first, that crimes are graver
wrongs than torts. There are three reasons for this distinction between a crime and a tort.
First, they constitute greater interference with the happiness of others and affect the well-
being not only of the particular individual wronged but of the community as a whole.
Secondly, because the impulse to commit them is often very strong and the advantage to be
gained from the wrongful act and the facility with which it can be accomplished are often so
great and the risk of detection so small that human nature, inclined as it is to take the shortest
cut to happiness, is more likely to be tempted, more often than not, to commit such wrongs. A
pickpocket, a swindler, a gambler are all instances. Thirdly, ordinarily they are deliberate acts
and directed by an evil mind and are hurtful to the society by the bad example they set. Since
crimes are graver wrongs, they are singled out for punishment with four-fold objects, namely,
of making an example of the criminal, of deterring him from repeating the same act, of
reforming him by eradicating the evil, and of satisfying the society’s feeling of vengeance.
Civil wrongs, on the other hand, are less serious wrongs, as the effect of such wrongs is
supposed to be confined mainly to individuals and does not affect the community at large.
Secondly, the accused is treated with greater indulgence than the defendant in civil cases. The
procedure and the rules of evidence are modified in order to reduce to a minimum the risk of
an innocent person being punished.

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For example, the accused is not bound to prove anything, nor is he required to make any
statement in court, nor is he compellable to answer any question or give an explanation.
However, under the Continental Laws an accused can be interrogated.
Thirdly, if there is any reasonable doubt regarding the guilt of the accused, the benefit of
doubt is always given to the accused. It is said that it is better that ten guilty men should
escape rather than an innocent person should suffer. But the defendant in a civil case is not
given any such benefit of doubt.
Fourthly, crimes and civil injuries are generally dealt with in different tribunals. The former
are tried in the criminal courts, while the latter in the civil courts.
Fifthly, in case of a civil injury, the object aimed at is to indemnify the individual wronged
and to put him as far as practicable in the position he was, before he was wronged. Therefore
he can compromise the case, whereas in criminal cases generally the state alone, as the
protector of the rights of its subjects, pursues the offender and often does so in spite of the
injured party. There are, however, exceptions1o this rule.
Lastly, an act in order to be criminal must be done with malice or criminal intent. In other
words, there is no crime without an evil intent. Actus non facit reum nisi mens sit rea, which
means that the act alone does not make .a man guilty unless his intentions were so. This
essential of the crime distinguishes it from civil injuries.
Criminal and Moral Wrongs: A criminal wrong may also be distinguished from a moral
wrong. It is narrower in extent than a moral wrong. In no age or in any nation an attempt has
ever been made to treat every moral wrong as a crime. In a crime an idea of some definite
gross undeniable injury to someone is involved. Some definite overt act is necessary, but do
we punish a person for ingratitude, hard-heartedness, absence of natural affection, habitual
idleness, avarice, sensuality and pride, which are all instances of moral lapses? They might be
subject of confession and penance but not criminal proceeding. The criminal law, therefore,
has a limited scope. It applies only to definite acts of commission and omission, capable of
being distinctly proved. These acts of commission and omission cause definite evils either on
definite persons or on the community at large. Within these narrow limits there may be a
likeness between criminal law and morality. For instance, offences like murder, rape, arson,
robbery, theft and the like are equally abhorred by law and morality.
On the other hand, there are many acts which are not at all

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immoral, nonetheless they are criminal. For example, breaches of statutory regulations and
bye laws are classed as criminal offences, although they do not involve the slightest moral
blame. So also “the failure to have a proper light on a bicycle or keeping of a pig in a wrong
place," or the neglect in breach of a bye-law to cause a child to attend school during the
whole of the ordinary school hours; and conversely many acts of great immorality are not
criminal offences, as for example, adultery in England, or incest in India. However, whenever
law and morals unite in condemning an act, the punishment for the act is enhanced.
Stephen on the relationship between criminal law and morality observes:
The relation between criminal law and morality is not in all cases the same. The two may
harmonise; there may be a conflict between them, or they may be independent. In all
common cases they do, and, in my opinion, wherever and so far as it is possible, they ought
to harmonise with and support one another. Everything which is regarded as enhancing the
moral guilt of a particular offence is recognised as a reason for increasing the severity of the
punishment awarded to it. On the other hand, the sentence of the law is to the moral
sentiment of the public in relation to any offence what a seal is to hot wax. It converts into a
permanent final judgement what might otherwise be a transient sentiment. The mere general
suspicion or knowledge that a man has done something dishonest may never be brought to a
point, and the disapprobation excited by it may in time pass away, but the fact that he has
been convicted and punished as a thief stamps a mark upon him for life. In short, the
infliction of punishment by law gives definite expression and a solemn ratification and a
justification to the hatred which is excited by the commission of the offence, and which
constitutes the ll1oral or popular as distinguished from the conscientious sanction of that part
of morality which is also sanctioned by the criminal law. The crill1inal law thus proceeds
upon the principle that it is ll1orally right to hate crill1inals, and it confirms and justifies that
sentill1ent by inflicting upon criminals punishments which express it.
Criminal Law and Ethics: Let us also distinguish criminal law from ethics. Ethics is a study
of the supreme good. It deals with absolute ideal, whereas positive morality deals with
current public opinion, and law is concerned with social relationship of men rather than with
the individual's excellence of character. The distinction between law and morality has been
discussed already. We may now bring out the distinction between law and ethics by

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citing two illustrations. Your neighbour, for instance, is dying of starvation. Your granary is
full. Is there any law that requires you to him out of your plenty? It may be ethically wrong
or morally wrong; but not criminally wrong. Then again, you are standing on the bank of a
tank. A woman is filling her pitcher. All of a sudden she gets an epileptic fit. You do not try
to save her. You may have committed an ethical wrong or a moral wrong, but will you be
punished criminally? However, with the growth of the humanitarian ideas, it is hoped that the
conception of one's duty to others will gradually expand, and a day might arrive when it may
have to conform-to the ideal conduct which the great Persian Poet. Sheikh Saadi, aimed at,
viz.: “If you see a blind man proceeding to a well, if you are silent, you commit a crime.”
This was what the poet said in the 13th century. But we may have to wait for a few more
decades, when we might give a different answer to the question: “Am I my brother's keeper?"
Are Crimes and Torts Complementary? In the foregoing, we have drawn a clear
distinction between crimes and civil injuries. In spite of those distinctions, however, it should
be remembered that crimes and torts are complementary and not exclusive of each other.
Criminal wrongs and civil wrongs are thus not sharply separated groups of acts but are often
one and the same act as viewed from different standpoint, the difference being not one of
nature but only of relation. To ask concerning any occurrence, "is this a crime or a tort?" is,
to borrow Sir James Stephen's apt illustration, no wiser than it would be to ask of a man, "Is
he a father or a son? For he may be both." In fact, whatever is within the scope of the penal
law is crime, whatever is a ground for a claim of damages, as for an injury, is a tort; but there
is no reason why the same act should not belong to both classes, arid many acts do. In fact,
some torts or civil injuries were erected and are being erected into crimes, whenever the law-
making hand comes to regard the civil remedy for them as being inadequate. But we cannot
go so far as to agree with Blackstone when he makes a sweeping observation that
"universally every crime is a civil injury." This observation of Blackstone is proved incorrect
in the following three offences which do not happen to injure any particular individual. First,
a man publishes a seditious libel or enlists recruits for the service of some foreign belligerent.
In either of these cases an offence against the state has been committed but no injury is
caused to any particular individual. Secondly, an intending forgerer, who is found in
possession of a block for the purpose of forging a trade mark or engraving a

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bank-note or for forging a currency note, commits a serious offence but he causes no injury to
any individual. Thirdly, there are cases where though a private individual does actually suffer
by the offence, yet the sufferer is no other than the actual criminal himself who, of course,
cannot claim compensation against himself, for example, in cases of attempted suicide.
However, in England as elsewhere the process of turning of private wrongs into public ones
is not yet complete, but it is going forward year to year. For instance, the maiming or killings
of another man’s cattle were formerly civil wrongs but they were made crimes in the
Hanoverian reign. Then again, it was not until 1857 a crime for a trustee to commit a breach
of trust. So also, incest was created a crime in 1908. In fact, the categories of crimes are not
closed. In our own country, since Independence, many acts have now been enacted into
crimes which we could not even have conceived of, for instance, practice of untouchability or
forced labour or marrying below a certain age and so on. A socialistic state does conceive of
many anti-social behaviours punishable as crimes more frequently.
We must remember that crime is a relative concept and a changing one too. Different
societies have different views as to what constitutes a criminal act and the conception of a
crime may vary with the age, locality and several other facts and circumstances. For example,
people were burned for heresy a few centuries ago, but in modern times no civilised nation
punishes a man on the ground that he professes a different religious view. Then again,
adultery is a crime according to our penal code, while it is a civil wrong according to English
law.

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Elements of Crime: The following elements are to be satisfied to constitute an act as a crime.
1. Human Being
2. Mens rea
3. Actus reus
4. Injury
1. Human Being The first essential element of a Crime is that it must be committed by a
human being. In case, the crime is committed by an animal, its owner is subject to
Civil/Tortious liability.
Example Cases 1. R vs Prince (1875) 2. R vs Bishop 3. R vs Mrs. Talson 4. R vs Wheat &
Stock
2. Mens Rea: No act per se (itself) is criminal, the act becomes a crime only when it is done
with a guilt mind. The jurist determines the Mens Rea. "guilty mind", produces criminal
liability in the common law based criminal law jurisdiction Illustration. A blacksmith is
seized by a gang of robbers and he forced to break the doors of a house for robbery to enter,
and the robbers committed a robbery. A crime is done with a criminal intent. The
fundamental principal of criminal liability is that there must be a wrongful act- actus reus,
combined with a wrongful intention-mens rea. This principle is embodied in the maxim, actus
non facit reum nisi mens sit rea. Meaning an act does not make one guilty unless the mind is
also legally blameworthy.
3 Actus Reus: Comprises the following: 1. Human Conduct or an Activity. 2. The Result of
the Act Prohibition by Law. Illustration: A shoots at B using a rifle intentionally and B dies.
A physical act that attracts criminal sanctions.
Actus reus, sometimes called the external element or the objective element of a crime, is the
Latin term for the "guilty act". Which, when proved beyond a reasonable doubt in
combination with the mens rea.,. There should be an external act. The Act and the mens rea
should be concurrent and related. 4 Injury There should be some injury or the act should be
prohibited under the existing law. The act should carry some kind of punishment Offence
Since there is no satisfactory definition of Crime, the Indian Penal Code, 1860 uses the word
'Offence' in place of Crime. Section 40 of the IPC defines Offence as an act punishable by the
Code. An Offence takes place in two ways, either by commission of an act or by omission of

19
an act. When a Crime is done, any member of the public can institute proceedings against the
person accused of the offence. Only in certain exceptional cases, the persons concerned alone
can institute the criminal proceedings. Example of such crimes include Matrimonial cases,
dowry cases, defamation etc What are the stages of a crime? What is an attempt to commit an
offence? Distinguish between Preparation and Attempt. In general, an offence passes through
the following stages - Conceiving the idea of performing a legally defined harm - It is
immaterial whether the person conceiving such an idea knows that it is illegal to perform it.
At this stage, there is no action taken to harm anybody and it is not a crime to merely think of
doing harmful activity because the person thinking it may not even want to actually do it. For
example, merely thinking killing 1000s of people instantaneously, is not a crime.
Deliberation - At this stage, a person consolidates his devious ideas and identifys ways of
doing it. Again, there is no action taken and there is no harm done to anybody nor is there any
intention to cause injury to anybody. It is still in the thinking stage and is not a crime. For
example, merely thinking about how to build a device that can kill 1000s of people
instantaneously, is not a crime. From a legal standpoint the above two stages are
inconsequential because man being a thoughtful animal, he thinks about innumerable things
without any material result. Intention (Mens Rea) - This stage is a significant progress from
mere deliberation towards actual commission of the crime. At this stage, the person has made
up his mind to actually implement or execute his devious plans. There is an intention to cause
harm but he hasn't yet taken any action that manifests his intention. Further, there is no way
to prove an intention because even devil can't read a human mind. Thus, this is not
considered a crime. For example, intention to kill anyone is not a crime in itself. However, it
is an essential ingredient of crime because without intention to cause harm, there can be no
crime. On the other hand, even a thoughtless act, without any deliberation, can be a crime if
there is an intention to cause harm.
Preparation - As this stage, the intention to cause harms starts manifesting itself in the form
of physical actions. Preparation consists of arranging or building things that are needed to
commit the crime. For example, purchasing poison. However, it is possible for the person to
abandon his course of action at this stage without causing any harm to anyone. In general,
preparation is not considered a crime because it cannot be proved beyond doubt the goal of
the preparation. For example, purchasing knife with an intention to kill someone is not a
crime because it cannot be determined whether the knife was bought to kill someone or to
chop vegetables. However, there are certain exceptions where even preparation for
committing an offence is crime. These are - Sec 122 - Collecting arms with an intention of

20
waging war against the Govt. of India. Sec 126 - Preparing to commit depredation on
territories of any power in alliance or at peace with the Govt. of India. Sec 235 -
Counterfeiting operations for currency. Sec 399 - Preparation to commit dacoity. Attempt -
This stage is attained by performing physical actions that, if left unstopped, cause or are
bound to cause injury to someone. The actions clearly show that the person has absolutely no
intention to abandon his plan and if the person is left unrestricted, he will complete the
commission of the crime. Since the intention of the person can be determined without doubt
from his actions, an attempt to commit a crime is considered a crime because if left
unpunished, crime is bound to happen and prevention of crime is equally important for a
healthy society. Actual commission of the offence - This is the final stage where the crime is
actually done. Distinction between Preparation and Attempt There is a very fine line between
preparation and attempt. While, IPC does not define either of them, it is very important to
distinguish between them because attempt is a crime but preparation is not. Both, Preparation
and Attempt are physical manifestations of the criminal intention. But attempt goes a lot
father than preparation towards the actual happening of crime. While in Preparation, there is
a possibility that the person may abandon his plan, but attempt leaves no room for that. For
example, keeping a pistol in pocket and looking for the enemy to kill is a preparation because
one can abandon the plan anytime, but taking out the piston and pulling the trigger is attempt
because it leaves no room for turning back.. Thus, in general, Preparation involves collecting
material, resources, and planning for committing an act while attempt signifies a direct
movement towards commission after the preparations are made. Ordinarily, to constitute an
attempt the following elements are needed - 1. mens rea to commit the crime 2. ant act which
constitutes the actus reus of a criminal attempt 3. failure in accomplishment In the case of R
vs Cheesman 1862, Lord Blackburn identified a key difference between the two. He says that
if the actual transaction has commenced which would have ended in the crime if not
interrupted, there is clearly an attempt to commit the crime.
However, this is not the only criteria for determining an attempt. The following are four tests
that come in handy in distinguishing between the two - 1. Last Step Test or Proximity Rule
As per this test, anything short of last step is preparation and not attempt. This is because as
long as there is a step remaining for completion of the crime, the person can abandon it. For
example, A obtains poison to kill B and mixes it with food that B is supposed to eat. But he
has not yet given the food to B. Thus, it is still preparation. As soon as he keeps the food on
the table from where B eats everyday, the last step is done and it becomes an attempt. In the

21
case of R vs Riyasat Ali 1881, the accused gave orders to print forms that looked like they
were from Bengal Coal Company. He proofread the samples two times and gave orders for
correction as well so that they would appear exactly as forms of the said company. At this
time he was arrested for attempt to make false document under section 464. However, it was
held that it was not an attempt because the name of the company and the seal were not put on
the forms and until that was done, the forgery would not be complete. In the case of
Abhayanand Mishra vs State of Bihar AIR 1961, A applied to the Patna University for MA
exam and he supplied documents proving that he was a graduate and was working as a
headmaster of a school. Later on it was found that the documents were fake. It was held that
it was an attempt to cheat because he had done everything towards achieving his goal. 2.
Indispensable Element Test or Theory of Impossibility As per this test, all of indispensable
elements must be present to equal attempt. For example, a person has the gun to kill but he
forgot the bullets. In this case, it would not be an attempt. Further, he goes to place where
victim should be but is not then he is not guilty of attempt under this test. In other words, if
there is something a person needs to commit the crime but it is not present, then there is not
an attempt. This test has generated a lot of controversy ever since it was laid in the case of
Queen vs Collins, where it was held that a pickpocket was not guilty of attempt even when he
put his hand into the pocket of someone with an intention to steal but did not find anything.
Similarly, in the case of R vs Mc Pherson 1857, the accused was held not guilty of attempting
to break into a building and steal goods because the goods were not there. However, these
cases were overruled in R vs Ring 1892, where the accused was convicted for attempting to
steal from the hand bag of a woman although there was nothing in the bag. Illustration (b) of
section 511 is based on this decision. 3. But For Interruption Test If the action proves that the
person would have gone through with the plan if not for the interruption such as arrest, then it
is an attempt. For example, a person points a gun at another and is about to pull the trigger.
He is overpowered and was stopped from pulling the trigger. This shows that if he had not
been interrupted, he would have committed the crime and he is thus guilty of attempt even
though the last step of the crime has not be performed. 4. Unequivocality Test or On the job
Theory If a person does something that shows his commitment to follow through and commit
the crime then it is an attempt. For example, in the case of State of Mah. vs Mohd. Yakub
1980, three persons were found with a truck loaded with silver near the sea dock. Further, the
sound of engine of a mechanized boat was heard from a nearby creek. They were convicted
of attempting to smuggle silver. J Sarkaria observed that what constitutes at attempt is a
mixed question of law and the facts of a case. Attempt is done when the culprit takes

22
deliberate and overt steps that show an unequivocal intention to commit the offence even if
the step is not the penultimate one.
CONSTITUENT ELEMENTS OF CRIME
ELEMENTS OF A CRIME
The two elements of crime are mens rea and actus reus. Apart from these two elements that
go to make up a crime, there are two more indispensable elements, namely, first, “a human
being under a legal obligation to act in a particular way and a fit subject for the infliction of
appropriate punishment,” and secondly, “an injury to another human being or to the society
at large.” Thus the four elements that go to constitute a crime are as follows: first, a human
being under a legal obligation to act in a particular way and a fit subject for the infliction of
appropriate punishment: secondly, an evil intent or mens rea on the part of such human
being; thirdly, actus reus, i.e., act committed or omitted in furtherance of such an intent; and
fourthly, an injury to another human being or to society at large by such an act.
A Human Being: The first element requires that the act should have been done by a human
being before it can constitute a crime punishable at law. The human being must be “under a
legal obligation to act, and capable of being punished.” .
Mens Rea: The second element, which is an important essential of a crime, is mens rea or
guilty mind. In the entire field of criminal law there is no important doctrine than that of
mens rea. The fundamental principle of English Criminal jurisprudence, to use a maxim
which has been familiar to lawyers following the common law for several centuries, is “actus
non facit reum nisi mens sit rea”. Mens rea is the state of mind indicating culpability, which
is required by statute as an element of a crime. It is commonly taken to mean some
blameworthy mental condition, whether constituted by intention or knowledge or otherwise,
the absence of which on any particular occasion negatives the intention of a crime. The term
‘mens rea’ has been given to volition, which is the motive force behind the criminal act. It is
also one of the essential ingredients of criminal liability
As a general rule every crime requires a mental element, the nature of which will depend
upon the definition of the particular crime in question. Even in crimes of strict liability some
mental element is required.

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Expressions connoting the requirement of a mental element include: ‘with intent’,

‘recklessly’, ‘unlawfully’, ‘maliciously’, ‘unlawfully and maliciously’, ‘wilfully’,
‘knowingly’, ‘knowing or believing’, ‘fraudulently’, ‘dishonestly’, ‘corruptly’, ‘allowing’,
and ‘permitting’. Each of these expressions is capable of bearing a meaning, which differs
from that ascribed to any other. The meaning of each must be determined in the context in
which it appears, and the same expression may bear a different meaning in different contexts.
Under the IPC, guilt in respect of almost all offences is fastened either on the ground
of intention or knowledge or reason to believe All the offences under the
Code are qualified by one or the other words such as wrongful gain or wrongful loss,
dishonestly, fraudulently, reason to believe, criminal knowledge or intention, intentional co-
operation, voluntarily, malignantly, wantonly. All these words describe the mental condition
required at the time of commission of the offence, in order to constitute an offence. Thus,
though the word mens rea as such is nowhere found in the IPC, its essence is reflected in
almost all the provisions of the code. The existence of the mental element or guilty mind or
mens rea at the time of commission of the actus reus or the act alone will make the act an
offence.
Generally, subject to both qualification and exception, a person is not criminally liable for a
crime unless he intends to cause, foresees that he will probably cause, or at the lowest,
foresees that he may cause, the elements which constitute the crime in question. Although the
view has been expressed that it is impossible to ascribe any particular meaning to the term
mens rea, concepts such as those of intention, recklessness and knowledge are commonly
used as the basis for criminal liability and in some respects may be said to be fundamental to
it:
Intention: To intend is to have in mind a fixed purpose to reach a desired objective; it is used
to denote the state of mind of a man who not only foresees but also desires the possible
consequences of his conduct. The idea foresees but also desires the possible consequences of
his conduct. The idea of ‘intention’ in law is not always expressed by the words ‘intention’,
‘intentionally’ or ‘with intent to’. It is expressed also by words such as ‘voluntarily’,
‘wilfully’ or ‘deliberately’ etc. Section 298 IPC makes the uttering of words or making
gestures with deliberate intent to wound the religious feelings punishable under the Act.

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On a plain reading of the section, the words ‘deliberate’ and ‘intent’ seem synonymous. An
act is intentional if, and in so far as it exists in idea before it exists in fact, the idea realizing
itself in the fact because of the desire by which it is accompanied. Intention does not mean
ultimate aim and object. Nor is it a synonym for motive.
Transferred intention: Where a person intends to commit a particular crime and brings
about the elements which constitute that crime, he may be convicted notwithstanding that the
crime takes effect in a manner which was unintended or unforeseen. A, intends to kill B by
poisoning. A places a glass of milk with poison on the table of B knowing that at the time of
going to bed B takes glass of milk. On that fateful night instead of B, C enters the bedroom of
B and takes the glass of milk and dies in consequence. A is liable for the killing of C under
the principle of transferred intention or malice.
Intention and Motive: Intention and motive are often confused as being one and the same.
The two, however, are distinct and have to be distinguished. The mental element of a crime
ordinarily involves no reference to motive. Motive is something which prompts a man to
form an intention. Intention has been defined as the fixed direction of the mind to a particular
object, or determination to act in a particular manner and it is distinguishable from motive
which incites or stimulates action. Sometimes, motive plays an important role and becomes a
compelling force to commit a crime and, therefore, motive behind the crime become a
relevant factor for knowing the intention of a person. In Om Prakash v. State of Uttranchal
[(2003) 1 SCC 648] and State of UP v. Arun Kumar Gupta [(2003) 2 SCC 202] the Supreme
Court rejected the plea that the prosecution could not signify the motive for the crime holding
that failure to prove motive is irrelevant in a case wherein the guilt of the accused is proved
otherwise. It needs to be emphasised that motive is not an essential element of an offence but
motive s us to know the intention of a person. Motive is relevant and important on the
question of intention.
Intention and knowledge: The terms ‘intention’ and ‘knowledge’ which denote mens rea
appear in Sections 299 and 300, having different consequences. Intention and knowledge are
used as alternate ingredients to constitute the offence of culpable homicide. However,
intention and knowledge are two different things. Intention is the desire to achieve a certain
purpose while knowledge is awareness on the part of the person concerned of the
consequence of his act of omission or commission, indicating his state of mind. The
demarcating line between knowledge and intention is no doubt thin, but it is not difficult to

25
perceive that they connote different things. There may be knowledge of the likely
consequences without any intention to cause the consequences. For example, a mother jumps
into a well along with her child in her arms to save herself and her child from the cruelty of
her husband. The child dies but the mother survives. The act of the mother is culpable
homicide. She might not have intended to cause death of the child but, as a person having
prudent mind, which law assumes every person to have, she ought to have known that
jumping into the well along with the child was likely to cause the death of the child. She
ought to have known as prudent member of the society that her act was likely to cause death
even when she may not have intended to cause the death of the child.
Recklessness: Intention cannot exist without foresight, but foresight can exist without
intention. For a man may foresee the possible or even probable consequences of his conduct
and yet not desire this state of risk of bringing about the unwished result. This state of mind is
known as ‘recklessness’. The words ‘rash’ and ‘rashness’ have also been used to indicate this
same attitude.
Negligence: If anything is done without any advertence to the consequent event or result, the
mental state in such situation signifies negligence. The event may be harmless or harmful; if
harmful the question arises whether there is legal liability for it. In civil law (common law) it
is decided by considering whether or not a reasonable man in the same circumstances would
have realized the prospect of harm and would have stopped or changed his course so as to
avoid it. If a reasonable man would not, then there is no liability and the harm must lie where
it falls. The word ‘negligence’, therefore, is used to denote blameworthy inadvertence. It
should be recognized that at common law there is no criminal liability for harm thus caused
by inadvertence. Strictly speaking, negligence may not be a form of mens rea. It is more in
the nature of a legal fault. However, it is made punishable for a utilitarian purpose of hoping
to improve people’s standards of behaviour. Criminal liability for negligence is exceptional at
common law; manslaughter appears to be the only common law crime, which may result
from negligence. Crimes of negligence may be created by statute, and a statute may provide
that it is a defence to charges brought under its provisions for the accused to prove that he
was not negligent. Conversely, negligence with regard to some subsidiary element in the
actus reus of a crime may deprive the accused of a statutory defence which would otherwise
have been available to him.

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Advertent negligence is commonly termed as wilful negligence or recklessness. In other

words, inadvertent negligence may be distinguished as simple. In the former the harm done is
foreseen as possible or probable but it
is not willed. In the latter it is neither foreseen nor willed. In each case carelessness, i.e. to
say indifference as to the consequences, is present; but in the former this indifference does
not, while in the latter it does prevent these consequences from being foreseen. The physician
who treats a patient improperly through ignorance or forgetfulness is guilty of simple or
inadvertent negligence; but if he does the same in order to save himself trouble, or by way of
a scientific experiment with full recognition of the danger so incurred, his negligence is
wilful. It may be important to state here that the wilful wrong doer is liable because he
desires to do the harm; the negligent wrong doer is liable because he does not sufficiently
desire to avoid it. He who will excuse himself on the ground that he meant no evil is still
open to the reply: - perhaps you did not, but at all event you might have avoided it if you had
sufficiently desire to do so; and you are held liable not because you desired the mischief, but
because you were careless and indifferent whether it ensured or not. It is on this ground that
negligence is treated as a form of mens rea, standing side by side with wrongful intention as a
formal ground of responsibility.
Injury to Human Being: The fourth element, as we have pointed out above, is an injury to
another human being or to society at large. This injury to another human being should be
illegally caused to any person in body, mind, reputation or property. Therefore, it becomes
clear that the consequences of harmful conduct may not only cause a bodily harm to another
person, it may cause harm to his mind or to his property or to his reputation. Sometimes, by a
harmful conduct no injury is caused to another human being, yet the act may be held liable as
a crime, because in such a case harm is caused to the society at large. All the public offences,
especially offences against the state, e.g. treason, sedition, etc. are instances of such harms.
They are treated to be very grave offences and punished very severely also.
We may state again that there are four essential elements that go to constitute a crime. First,
the wrongdoer who must be a human being and must have the capacity to commit a crime, so

27
that he may be a fit subject for the infliction of an appropriate punishment. Secondly, there
should be an evil intent or mens rea on the part of such human being. This is also known as
the subjective element of a crime. Thirdly, there should be an actus reus, i.e. an act
committed or omitted in furtherance of such evil intent or mens rea. This may be called the
objective element of a crime. Lastly, as a result of the conduct of the human being acting with
an evil mind, an injury should have been caused to another human being or to the society at
large. Such an injury should have been caused to any other person in body, mind, reputation
or property. If all these elements are present, generally, we would say that a crime has been
constituted. However, in some cases we find that a crime is constituted, although there is no
mens rea at all. These are known as cases of strict liability. Then again, in some cases a crime
is constituted, although the actus reus has not consummated and no injury has resulted to any
person. Such cases are known as inchoate crimes, like attempt, abetment or conspiracy. So
also, a crime may be constituted where only the first two elements are present. In other
words, when there is intention alone or even in some cases there may be an assembly alone of
the persons without any intention at all. These are exceptional cases of very serious crimes
which are taken notice of by the state in the larger interests of the peace and tranquillity of
the society.
SECTION 34 &149-COMMON INTENTION AND COMMON
Object:
Section 34 of the Indian Penal Code refers to common intention. It says that when a criminal
act is done by several persons in furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it were done by him alone. Common
object is dealt within Section 149 of IPC. 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. • Common intention requires that the number of persons
should be more than one. At least 5 persons are necessary for common object. [Sec.141] •

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Common intention does not create a specific and substantive offence. It states a rule of law
which is read with other substantive offences. No punishments can be solely based on this
sections. Common object on the other hand creates a specific and substantive offence. •
Common intention may be of any form where common object must be one of the five objects
specified in Section 141 of IPC. • In common intention prior meeting of minds is necessary.
But it is not a requirement under Common object. The only requirement is that there must be
5 or more persons forming an unlawful assembly. • Substantive offence under S.141 of the
IPC, of unlawful assembly, is also involved in S.149. But S.34 contains only a rule of law. So
while specific charge is necessary for S.149 that is not necessary in the case of S.34.
Decisions: Mohanan v. State of Kerala 2000 (2) KLT 562 Hon'ble The Chief Justice Mr.
Justice Arijit Pasayat & Hon'ble Mr. Justice K.S. Radhakrishnan Relied on AIR 1956 SC 731
"Common object" is different from a 'common intention' as it does not require a prior concert
and a common meeting of minds before the attack. It is enough if each has the same object in
view and their number is five or more and that they act as an assembly to achieve that object.
The 'common object' of an assembly is to be ascertained from the acts and language of the
members composing it and from a consideration of all the surrounding circumstances. It may
be gathered from the course of conduct adopted by the members of the assembly. What the
common object of the unlawful assembly is at a particular stage of the incident is essentially
a question of fact to be determined, keeping in view the nature of the assembly, the arms
carried by the members and the behaviour of the members at or near the scene of the incident.
It is not necessary under law that in all cases of unlawful assembly, with an unlawful
common object, the same must be translated into action or be successful. Under the
Explanation to S. 141, an assembly which was not unlawful when it was assembled, may
subsequently become unlawful. It is not necessary that the intention or the purpose which is
necessary to render an assembly an unlawful one comes into existence at the outset. The time
of forming an unlawful intent is not material. An assembly which, at its commencement or
even for sometime thereafter, is lawful, may subsequently become unlawful. In other words,
it can develop during the course of incident at the spot instantly. (para. 12)
General Exceptions:

29
Indian Penal Code is the major criminal law in India which defines substantive offences and
prescribes their respective punishments. Every offence is treated as a crime against society.
One of the major requirement to accuse any one of an offence is the presence of mens rea or
guilty mind. It is the saying in law that an act should be coupled with necessary mens rea to
constitute a crime. In certain cases even if the act is not performed, one can be punished for
his guilty mind. Thus forms the importance of mens rea in Penal Law. So we must conclude
that the presence of guilty intention is the measure of one's guilty act. But there are
circumstances in which the mind can be transformed by some external forces to perform the
illegal act. Thus even though an act is criminal the mind had no intention to perform the
same. Such is the case when an external force instigates the mind to do a crime. In criminal
law the most heard saying is that no innocent must be punished even if thousand criminals
escape. It will not be just to punish someone who was controlled by a criminal as a puppet to
do an illegal act. Likewise, there are certain circumstances which would exempt a person
from major punishment or entitle to smaller punishments. Such circumstances are termed
'General Exceptions' in the IPC. They are spread throughout Sections 76 to 106 of the Code.
The exceptions as provided are as follows with the relevant sections in brackets:
1. Mistake [76, 79]

2. Judicial Acts [77,78]
3. Accident [80]
4. Necessity [81]
5. Infancy [82,83]
6. Insanity [84]
7. Drunkenness [85,86]
8. Consent [87 to 93]
9. Compulsion [94]
10. Trifles [95]
11. Private Defence [96 to 106]
The above forms of exceptions are generally divided into two viz. excusable and justifiable.
In excusable the mens rea is completely absent. In justifiable the acts are not left excused; but
are justified.

30
Q. How far is mistake of fact, accident, act of child, insanity, and intoxication are valid and
good defences under IPC? In IPC, mistake of law is no defence but mistake of fact is a good
defence. How? What exemptions have been given by IPC to minors for an offence under
General Exceptions? What has to be proved by a person claiming immunity from criminal
liability on the ground of Insanity?
The general rule is that it is the duty of the prosecution to prove the prisoner's guilt beyond
doubt and if there is any reasonable doubt then the benefit of doubt is given to the accused.
The prosecution must prove beyond doubt that the accused performed the act with intention
and with full knowledge of the consequences of the act. This is based on the maxim, "actus
non facit reum, nisi mens sit rea", which means that mere doing of an act will not constitute
guilt unless there be a guilty intent'. IPC defines certain circumstances in which it is
considered that the accused had no evil intention. These circumstances are nothing but
exceptional situations that negate mens rea. They create a reasonable doubt in the case of the
prosecution that the act was done by the accused with evil intention. However, it is the
burden of the accused to prove that such circumstances existed at the time of crime and the
presumption of such circumstances is against the accused. If the accused proves that such
circumstances indeed existed, then his act is not considered a crime. In K M Nanavati vs
State of Maharashtra AIR 1962, it was held that it is the duty of the prosecution to prove
the guilt of the accused or the accused is presumed to be innocent until his guilt is established
by the prosecution beyond doubt. Chapter IV (Sec 76 to 106) of IPC defines such
circumstances. Upon close examination of these sections, it can be seen that they define two
types of circumstances - one that make the act excusable (Sec 76 to 95), which means that the
act itself is not an offence, and second (Sec 96 to 106) that make the act justifiable, which
means that although the act is an offence but it is otherwise meritorious and the accused is
justified by law in doing it.
Mistake of fact, accident, act of child, insanity, and intoxication - All these cases are defined
in General Exceptions of IPC and they make the act of the accused excusable. The presence
of any of these conditions is a good defence because they negate the mens rea. Let us look at

31
them one by one. Mistake of fact Sometimes an offence is committed by a person

inadvertently. He neither intends to commit an offence nor does he know that his act is
criminal. He may be totally ignorant of the existence of relevant facts. The knowledge of
relevant facts is what really makes an act evil or good. Thus, if a person is not aware of the
facts and acts to the best of his judgment, his act cannot be called evil. Under such
circumstances he may take the plea that his acts were done under the misconception of the
facts. Such a mistake of fact is acknowledged as a valid defence in section 76 and 79 of IPC.
Section 76 - Act done by a person bound or by mistake of fact believes to be bound by law -
Nothing is an offence which is done by a person who is or who by reason of a mistake of fact
and not by a reason of a mistake of law, in good faith believes himself to be bound by law to
do it. Illustration - A, a soldier fires on a mob upon orders from his superior, in conformity
with the commands of the law. He has committed no offence. A, an officer of court of justice,
upon ordered by that court to arrest Y, after due inquiry, believing Z to be Y, arrests Z. He
has committed no offence. Section 79 - Act done by a person justified or by a mistake of fact
believing himself justified by law - Nothing is an offence which is done by the a person who
is justified by law , or who by reason of a mistake of fact and not by reason of a mistake of
law in good faith believes himself to be justified by law, in doing it. Illustration - A sees Z
doing what appears to be murder. A, in the exercise to the best of his judgment, exerted in
good faith of the power which the law gives to all persons of apprehending murderers in the
act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence
though it may turn out that Z was acting in self defence. Difference between sec 76 and 79
The only difference between sec 76 and 79 is that in section 76, a person believes that he is
bound by to do a certain act while in 79, he believes that he is justified by law to do a certain
act. For example, a policeman believing that a person is his senior officer and upon that
person's orders fires on a mob. Here, he is bound by law to obey his senior officer's orders.
But if the policeman believes that a person is a thief, he is not bound by law to arrest the
person, though he is justfied by law if he arrests the person. To be eligible in either of the
sections, the following conditions must be satisfied - 1. it is a mistake of fact and not a
mistake of law that is excusable. 2. the act must be done in good faith.
Meaning of Mistake - A mistake means a factual error. It could be because of wrong

information, i.e. ignorance or wrong conclusion. For example, an ambulance driver taking a

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very sick patient to a hospital may be driving faster than the speed limit in order to reach the
hospital as soon as possible but upon reaching the hospital, it comes to his knowledge that the
patient had died long time back and there was no need to drive fast. However, since he was
ignorant of the fact, breaking the speed limit is excusable for him. A person sees someone
remove a bulb from a public pole. He thinks the person is a thief and catches him and takes
him to the police only to learn that the person was replacing the fused bulb. Here, he did the
act in good faith but based on wrong conclusion so his act is excusable. To be excusable, the
mistake must be of a fact and not of law. A mistake of fact means an error regarding the
material facts of the situation, while a mistake of law means an error in understanding or
ignorance of the law. A person who kills someone cannot take the defence of mistake saying
he didn't know that killing is a crime because this is a mistake of law and not of fact. But, as
in Waryam Singh vs Emperor AIR 1926, he can take a defence of mistake saying he
believed that the killed person was a ghost because that would be a mistake of a fact. R vs
Prince 1875, is an important case where a person was convicted of abducting a girl under 18
yrs of age. The law made taking a woman under 18 from her guardian without her guardian's
permission a crime. In this case, the person had no intention to abduct her. She had gone with
the person with consent and the person had no reason to believe that the girl was under 18.
Further, the girl looked older than 18. However, it was held that by taking a girl without her
guardian's permission, he was taking a risk and should be responsible for it because the law
made it a crime even if it was done without mens rea. In this case, five rules were laid down
which are guidelines whenever a question of a mistake of fact or mistake of law arises in
England and elsewhere - 1. When an act is in itself plainly criminal and is more severely
punishable if certain circumstances coexist, ignorance of the existence is no answer to a
charge for the aggravated offence. 2. When an act is prima facie innocent and proper unless
certain circumstances co-exist, the ignorance of such circumstances is an answer to the
charge. 3. The state of the mind of the defendants must amount to absolute ignorance of the
existence of the circumstance which alters the character of the act or to a belief in its non-
existence. 4. When an act in itself is wrong, and under certain circumstances, criminal, a
person who does the wrongful act cannot set up as a defence that he was ignorant of the facts
which would turn the wrong into a crime. 5. When a statute makes it penal to do an act under
certain circumstances, it is a question upon the wording and object of the statute whether

33
responsibility of ascertaining that the circumstances exist is thrown upon the person who does
the act or not. In the former case, his knowledge is immaterial. The above guidelines were
brought in Indian law in the case of The King vs Tustipada Mandal AIR 1951 by Orissa HC.
In R vs Tolson 1889, a woman's husband was believed to be dead since the ship he was
traveling in had sunk. After some years, when the husband did not turn up, she married
another person. However, her husband came back and since 7 years had not elapsed since his
disappearance, which are required to legally presume a person dead, she was charged with
bigamy. It was held that disappearance for 7 yrs is only one way to reach a belief that a
person is dead. If the woman, and as the evidence showed, other people in town truly
believed that the husband died in a shipwreck, this was a mistake of fact and so she was
acquitted. However, in R vs White and R vs Stock 1921, a person was convicted of bigamy.
Here, the husband with limited literacy asked his lawyers about his divorce, who replied that
they will send the papers in a couple of days. The husband construed as the divorce was done
and on that belief he married another woman. It was held that it was a mistake of law. Good
faith Another condition that must be satisfied to take a defence of mistake of fact is that the
act must be done in good faith. Section 52 says that nothing is said to be done or believed in
good faith which is done or believed without due care and attention. Thus, if one shoots an
arrow in the dark without ascertaining no one is there, he cannot be excused because he failed
to exercise due care. If a person of average prudence in that situation can ascertain the facts
with average deligence, a person taking the defence of mistake of those facts cannot be said
to have taken due care and thus, is not excusable. Accident Accidents happen despite of
nobody wanting them. There is no intention on the part of anybody to cause accident and so a
loss caused due to an accident should not be considered a crime. This is acknowledged in
Section 80 of IPC, which states thus - Section 80 - Nothing is an offence which is done by
accident or misfortune, and without any criminal intention or knowledge in doing of a lawful
act, in a lawful manner by lawful means with proper care and caution. Illustration - A works
with a hatchet; the head flys off and kills a person standing nearby. Here, if there was no
want of proper caution on the part of A, his act is excusable and is not an offence. From
section 80, it can be seen that there are four essential conditions when a person can take the
defence of an accident 1. The act is done by accident or misfortune - Stephen in his digest of
criminal law explains that an effect is said to be accidental if the act that caused it was not

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done with an intention to cause it and if the occurance of this effect due to that act is not so
probable that a person of average prudence could take precautions against it. The effect
comes as a surprise to the doer of average prudence. SInce he does not expect it to happen, he
is unable to take any precaution against it. For example, a firecraker worker working with
Gun powder knows that it can cause explosion and must take precaution against it. If it
causes an explosion and kills a third person, he cannot claim defence of this section because
the outcome was expected even though not intended. However, if a car explodes killing a
person, it is an accident because a person on average prudence does not expect a car to
explode and so he cannot be expected to take precautions against it.
2. There must not be a criminal intent or knowledge in the doer of the act - To claim defence
under this section, the act causing the accident must not be done with a bad intention or bad
motive. For example, A prepares a dish for B and puts poison in it so as to kill B. However, C
comes and eats the dish and dies. The death of C was indeed an accident because it was not
expected by A, but the act that caused the accident was done with a criminal intention. In
Tunda vs Rex AIR 1950, two friends, who were fond of wrestling, were wresting and one got
thrown away on a stone and died. This was held to be an accident and since it was not done
without any criminal intention, the defendant was acquitted. 3. The act must be lawful, and
done in a lawful manner, and by lawful means - An accident that happens while doing an
unlawful act is no defence. Not only that, but the act must also be done in a lawful manner
and by lawful means. For example, requesting rent payment from a renter is a lawful act but
threatening him with a gun to pay rent is not lawful manner and if there is an accident due to
the gun and if the renter gets hurt or killed, defence under this section cannot be claimed. In
Jogeshshwar vs Emperor, where the accused was fighting with a man and the man's pregnant
wife intervened. The accused aimed at the woman but accidently hit the baby who was killed.
He was not allowed protection under this section because he was not doing a lawful act in a
lawful manner by lawful means. 4. Proper precautions must be taken while doing the act -
The act that causes the harm must have been done with proper care and precautions. An
accident caused due to negligence is not excusable. A person must take precautions for any
effects that any person with average intelligence would anticipate. For example, a owner of a
borewell must fence the hole to prevent children falling into it because any person with
average prudence can anticipate that a child could fall into an open borewell. In Bhupendra

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Singh Chudasama vs State of Gujarat 1998, the appellant, an armed constable of SRPF shot
at his immediate supervisor while the latter was inspecting the dam site in dusk hours. The
appellant took the plea that it was dark at that time and he saw someone moving near the dam
with fire. He thought that there was a miscreant. He shouted to stop the person but upon
getting no response he fired the shot. However, it was proven that the shot was fired from a
close range and it was held that he did not take enough precaution before firing the shot and
was convicted. Accident in a act done with consent Section 87 extends the scope of accident
to cases where an act was done with the consent of the victim. It says thus - Section 87 -
Nothing which is not intended to cause death or grevious hurt and which is not known to the
doer to be likely to cause death or grevious hurt is an offence by reason of any harm that it
may cause or be intended by the doer to cause to any person above eighteen years of age,
who has given consent whether express or implied, to suffer that harm; or by reason of any
harm which it may be known by the doer to be likely to cause to any such person who has
consented to take the risk of that harm. Illustration - A and Z agree to fence with each other
for amusement. This agreement implies the consent by each to suffer any harm which in the
course of such fencing may be caused without foul play; and if A, while playing fairly, hurts
Z, A committs no offence. This is based on the premise that every body is the best judge for
himself. If a person knowingly undertakes a task that is likely to cause certain damage, then
he cannot hold anybody responsible for suffering that damage. Thus, a person watching
another litting up firecrackers agrees to take the risk of getting burned and must not hold
anybody responsible if he gets burned. In Nageshwar vs Emperor, a person asked the accused
to try dao on his hand believing that his hand was dao proof due to a charm. He got hurt and
bled to death. However, the accused was acquitted because he was protected under this
section. The deceased consented to the risk of trying dao on his hand.
Act of child, insanity, intoxication As mentioned before, to hold a person legally responsible
for a crime, in general, evil intention must be proved. A person who is not mentally capable
of distinguishing between good and bad or of understanding the implications of an action
cannot be said to have an evil intention and thus should not be punished. Such incapacity may
arise due to age, mental illness, or intoxication. Let us look at each of these one by one:

36
Act of child: It is assumed that a child does not have an evil mind and he does not do things
with evil intention. He cannot even fully understand the implications of the act that he is
doing. Thus, he completely lacks mens rea and should not be punished. IPC contains for
following exemptions for a child - Section 82 - Nothing is an offence which is done by a
child under seven years of age. Section 83 - Nothing is an offence which is done by a child
above seven years of age and below twelve years of age who has not attained the sufficient
maturity of understanding to judge the nature and consequences of this conduct on that
occasion. Through these sections, IPC acknowledges the fact that children under seven years
of age cannot have suffient maturity to commit a crime and is completely excused. In Indian
law, a child below seven years of age is called Doli Incapax. In Queen vs Lukhini Agradanini
1874 , it was held that merely the proof of age of the child would be a conclusive proof of
innocence and would ipso facto be an answer to the charge against him. However, a child
above seven but below twelve may or may not have sufficient maturity to commit a crime
and whether he is sufficiently mature to understand the nature and consequences of the act
needs to be determined from the facts of the case. To claim a defence under section 83, a
child must 1. be above seven and below twelve years of age. 2. not have attained sufficient
maturity to understand the nature and consequences of his act. 3. be immature at the time of
commission of the act. Section 83 provides qualified immunity because presumes that a child
above seven and below twelve has sufficient maturity to commit a crime and the burdon is on
the defence to prove that he did not possess sufficient . Thus, in Hiralal vs State of Bihar
1977, the boy who participated in a concerted action and used a sharp weapon for a
murderous attack, was held guilty in the absence of any evidence leading to boy's feeble
understanding of his actions. In English law, a boy below 14 years is deemed incapable of
raping a woman but no such protection is offered in India and in Emperor vs Paras Ram
Dubey, a boy of 12 years of age was convicted of raping a girl.
Insanity A person may be rendered incapable of judging an action as right or wrong due to
several kinds of deficienty in mental faculty or a disease of mind. Such people are called
insane. Their position is same as childern below the age of discretion. From time to time
several approches have been adopted to understand insanity and to see whether a person was
insane or not at the time of his act. Wild Beast Test This test was evolved in R vs Arnold
1724. Here, the accused was tried for wounding and attempting to kill Lord Onslow. By

37
evidence, it was clear that the person was mentally deranged. J Tracy laid the test as follows,
"If he was under the visitation of God and could not distinguish between good and evil and
did not know what he did, though he committed the greatest offence, yet he could not be
guilty of any offence against any law whatsoever." Insane Delusion Test This test was
evolved in Hadfield's Case in 1800, where Hadfield was charged with high treason and
attempting the assasination of Kind George III. He was acquitted on the ground of insane
delusion. Here, the counsel pleaded that insanity was to be determined by the fact of fixed
insane delusions with which the accused was suffering and which were the direct cause of his
crime. He pointed out that there are people who are deprived of their understanding, either
permanently or temporarily, and suffer under delusions of alarming description which
overpowers the faculties of their victims. M' Naghten's Rules In this case, Danial M'Naghten
was tried for the murder of a private secretary of the then prime minister of England. He was
acquitted on the ground of insanity. This caused a lot of uproar and the case was sent to
bench of fifteen judges who were called upon to lay down the law regarding criminal
responsibility in case of lunacy. Some questions were posed to the judges which they had to
answer. These questions and answers are knows as M'Naghten's Rules which form the basis
of the modern law on insanity. The following principals were evolved in this case - 1.
Regardless of the fact that the accused was under insane delusion, he is punishable according
to the nature of the crime if, at the time of the act, he knew that he was acting contrary to law.
2. Every man must be presumed to be sane until contrary is proven. That is, to establish
defence on the ground of insanity, it must be clearly proven that the person suffered from a
condition due to which he was not able to understand the nature of the act or did not know
what he was doing was wrong. 3. If the accused was conscious that the act was one that he
ought not to do and if that act was contrary to law, he was punishable. 4. If the accused
suffers with partial delusion, he must be considered in the same situation as to the
responsibility, as if the facts with respect to which the delusion exists were real. For example,
if the accused, under delusion that a person is about to kill him and attacks and kills the
person in self defence, he will be exempted from punishment. But if the accused, under
delusion that a person has attacked his reputation, and kills the person due to revenge, he will
be punishable. 5. A medical witness who has not seen the accused previous to the trial should
not be asked his opinion whether on evidence he thinks that the accused was insane. The

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Indian Law recognizes the first two principals and incorporates them in section 84. Section
84 - Nothing is an offence which is done by a person who, at the time of doing it, by the
reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is
doing what is either wrong or contrary to law. Thus, a person claiming immunity under this
section must prove the existence of the following conditions - 1. He was of unsound mind -
Unsound Mind is not defined in IPC. As per Stephen, it is equivalent to insanity, which is a
state of mind where the functions of feeling, knowing, emotion, and willing are performed in
abnormal manner. The term Unsoundness of mind is quite wide and includes all varieties of
want of capacity whether temporary or permanent, or because of illness or birth defect.
However, mere unsoundness of mind is not a sufficient ground. It must be accompanied with
the rest of the conditions. 2. Such incapacity must exist at the time of the act - A person may
become temporarily out of mind or insane for example due to a bout of epilepsy or some
other disease. However, such condition must exist at the time of the act. In S K Nair vs State
of Punjab 1997, the accused was charged for murder of one and greivious assault on other
two. He pleaded insanity. However, it was held that the words spoken by the accused at the
time of the act clearly show that he understood what he was doing and that it was wrong.
Thus, he was held guilty. 3. Due to incapacity, he was incapable of knowing - 1. either the
nature of the act. 2. or that the act is wrong. 3. or that the act is contrary to law. The accused
in not protected if he knows that what he was doing was wrong even if he did not know that
what he was doing was contrary to law. In Chhagan vs State 1976, it was held that mere
queerness on the part of the accused or the crime does not establish that he was insane. It
must be proved that the cognitive faculties of the person are such that he does not know what
he has done or what will follow his act. Intoxication Several times intoxication due to
drinking alcohol or taking other substances cause the person to lose the judgment of right or
wrong. In early law, however, this was no defence for criminal responsibility. In recent times
this has become a valid defence but only if the intoxication was involuntary. Section 85 says
thus - 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. This means that to claim
immunity under this section, the accused mus prove the existence of following conditions - 1.

39
He was intoxicated. 4. Because of intoxication, he was rendered incapable of knowing the

nature of the act or that what is was doing was wrong or contrary to law. 5. The thing that
intoxicated him was administered to him without his knowledge or against his will. Director
of Public Prosecution vs Beard 1920 was an important case on this point. In this case, a 13 yr
old girl was passing by a mill area in the evening. A watchman who was drunk saw her and
attempted to rape her. She resisted and so he put a hand on her mouth to prevent her from
screaming thereby killing her unintentionally. House of lords convicted him for murder and
the following principles were laid down - 1. If the accused was so drunk that he was
incapable of forming the intent required he could not be convicted of a crime for which only
intent was required to be proved. 2. Insanity whether produced by drunkenness or otherwise
is a defence to the crime charged. The difference between being drunk and diseases to which
drunkenness leads is another. The former is no excuse but the later is a valid defence if it
causes insanity. 3. The evidence of drunkenness falling short of proving incapacity in the
accused to form the intent necessary to commit a crime and merely establishing that his mind
was affected by the drink so that he more readily gave way to violent passion does not rebut
the presumption that a man intends the natural consequences of the act. Q. Define the right of
private defence. When does a person not have this right? When does this right extend to
causing death? When does this right start and when does it end? It is said that the law of self
defence is not written but is born with us. We do not learn it or acquire it some how but it is
in our nature to defend and protect ourselves from any kind of harm. When one is attacked by
robbers, one cannot wait for law to protect oneself. Bentham has said that fear of law can
never restrain bad men as much as the fear of individual resistance and if you take away this
right then you become accomplice of all bad men. IPC incorporates this principle in section
96, which says, Section 96 - Nothing is an offence which is done in the exercise of the right
of private defence. It makes the acts, which are otherwise criminal, justifiable if they are done
while exercising the right of private defence. Normally, it is the accused who takes the plea
of self defence but the court is also bound take cognizance of the fact that the accused aced in
self defence if such evidence exists. In Section 97 through 106, IPC defines the
characteristics and scope of private defence in various situations. Section 97 - Every person
has a right, subject to the restrictions contained in section 99, to defend - first - his own body
or body of any other person against any offence affecting the human body. second - the

40
property, whether movable or immovable, of himself or of any other person, against any act
which is an offence falling under the definition of theft, robbery, mischief, or criminal
trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. This
allows a person to defend his or anybody else's body or property from being unlawfully
harmed. Under English law, the right to defend the person and property against unlawful
aggression was limited to the person himself or kindred relations or to those having
community of interest e.g. parent and child, husband and wife, landlord and tenant, etc.
However, this section allows this right to defend an unrelated person's body or property as
well. Thus, it is apt to call it as right to private defence instead of right to self defence. It is
important to note that the right exists only against an act that is an offence. There is no right
to defend against something that is not an offence. For example, a policeman has the right to
handcuff a person on his belief that the person is a thief and so his act of handcuffing is not
an offence and thus the person does not have any right under this section. Similarly, an
aggressor does not have this right. An aggressor himself is doing an offence and even if the
person being aggressed upon gets the better of the aggressor in the exercise of his right to self
defence, the aggressor cannot claim the right of self defence. As held by SC in Mannu vs
State of UP AIR 1979, when the deceased was waylaid and attacked by the accused with
dangerous weapons the question of self defence by the accused did not arise. The right to
private defence of the body exists against any offence towards human body, the right to
private defence of the property exists only against an act that is either theft, robbery,
mischief, or criminal trespass or is an attempt to do the same. In Ram Rattan vs State of UP
1977, SC observed that a true owner has every right to dispossess or throw out a trespasser
while the trespasses is in the act or process of trespassing and has not accomplished his
possession, but this right is not available to the true owner if the trespasser has been
successful in accomplishing the possession to the knowledge of the true owner. In such
circumstances the law requires that the true owner should dispossess the trespasser by taking
resource to the remedies available under the law. Restrictions on right to private defence As
with any right, the right to private defence is not an absolute right and is neither unlimited. It
is limited by the following restrictions imposed by section 99
Section 99 - There is no right of private defence against an act which does not reasonably
cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a

41
public servant acting in good faith under colour of his office though that act may not be
strictly justifiable by law. There is no right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be
done, by the direction of a public servant acting in good faith under colour of his office
though that direction may not be strictly justifiable by law. There is no right of private
defence in cases in which there is time to have recourse to the protection of the public
authorities. Extent to which the right may be exercised - The right of private defence in no
case extends to the inflicting of more harm that it is necessary to inflict for the purpose of
defence. Explanation 1 - A person is not deprived of his right of private defence against an
act done or attempted to be done by a public servant, as such, unless he knows or has reason
to believe that the person doing the act is such public servant. Explanation 2 - A person is not
deprived of his right of private defence against an act done or attempted to be done by the
direction of a public servant, unless he knows or has reason to believe that the person doing
the act is acting by such direction, or unless such person states the authority under which he
acts or if he has authority in writing, unless he produces such authority if demanded. Upon
carefully examining this section, we can see that the right to private defence is not available
in the following conditions - 1. when an act is done by a public servant or upon his direction
and the act 1. is done under colour of his office - an off duty police officer does not have the
right to search a house and right to private defence is available against him. A police officer
carrying out a search without a written authority, cannot be said to be acting under colour of
his office. If the act of a public servant is ultra vires, the right of private defence may be
exercised against him. 2. the act does not cause the apprehension of death or grievous hurt -
for example, a police man beating a person senselessly can cause apprehension of grievous
hurt and the person has the right of private defence against the policeman. 3. is done under
good faith - there must be a reasonable cause of action on part of the public servant. For
example, a policeman cannot just pick anybody randomly and put him in jail as a suspect for
a theft. There must be some valid ground upon which he bases his suspicion. 4. the act is not
wholly unjustified - The section clearly says that the act may not be strictly justified by law,
which takes care of the border line cases where it is not easy to determine whether an act is
justified by law. It clearly excludes the acts that are completely unjustified. For example, if a
policeman is beating a person on the street on mere suspicion of theft, his act is clearly

42
unjustified and the person has the right to defend himself. However, this right is curtailed
only if the person knows or has reasons to believe that the act is being done by a public
servant. For example, if A tries to forcibly evict B from an illegally occupied premises, and if
B does not know and neither does he have any reason to believe that A is a public servant or
that A is acting of the direction of an authorized public servant, B has the right to private
defence. In Kanwar Singh's case 1965, a team organized by the municipal corporation was
trying to round up stray cattle and was attacked by the accused. It was held that the accused
had no right of private defence against the team. 2. when the force applied during the defence
exceeds what is required to for the purpose of defence. For example, if A throws a small
pebble at B, B does not have the right to shoot A. Or if A, a thief, is running back leaving
behind the property that he tried to steal, B does not have the right to shoot A because the
threat posed by A has already subsided. In many situations it is not possible to accurately
determine how much force is required to repel an attack and thus it is a question of fact and
has to be determined on a case by case basis whether the accused was justified in using the
amount of force that he used and whether he exceeded his right to private defence. In Kurrim
Bux's case 1865, a thief was trying to enter a house through a hole in the wall. The accused
pinned his head down while half of his body was still outside the house. The thief died due to
suffocation. It was held that the use of force by the accused was justified. However, in Queen
vs Fukira Chamar, in a similar situation, a thief was hit on his head by a pole five times
because of which he died. It was held that excessive force was used than required. 3. when it
is possible to approach proper authorities - No man has the right to take the law into his
hands and so when he has the opportunity to call proper authorities, he does not have the
right to private defence. It usually happens when there is a definite information about the
time and place of danger. But law does not expect that a person must run away to call proper
authorities. The question whether a person has enough time depends on the factors such as -
1. the antecedent knowledge of the attack. 2. how far the information is reliable and precise.
3. the opportunity to give the information to the authorities. 4. the proximity of the police
station. In Ajodha Prasad vs State of UP 1924, the accused received information that they
were going to get attacked by some sections of the village. However, they decided that if they
separated to report this to the police they will be in more danger of being pursued and so they
waited together. Upon attack, they defended themselves and one of the attackers was killed. It

43
was held that they did not exceed the right of private defence. Right to private defence of
body up to causing death Section 100 of IPC specifies six situations in which the right of
private defence of body extends even to causing death. Section 100 - The right of private
defence of the body extends under the restrictions mentioned in section 99, to the voluntary
causing of death or of any other harm to the assailant if the offence which occasions the
exercise of the right be of any of the descriptions here in after enumerated, namely - First -
such an assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault. Second - such an assault as may reasonably cause the
apprehension that grievous hurt will otherwise be the consequence of such assault. Third - An
assault with the intention of committing rape. Fourth - An assault with the intention of
gratifying unnatural lust. Fifth - As assault with the intention of kidnapping or abducting.
Sixth - An assault with the intention of wrongfully confining a person under circumstances
which may reasonably cause him to apprehend that he will be unable to have recourse to the
public authorities for his release. Even though this section authorizes a person to cause death
of another in certain situation, it is also subject to the same restrictions as given in section 99.
Thus, a person cannot apply more force than necessary and must contact the authorities if
there is an opportunity. In Viswanath vs State of UP AIR 1960, when the appellant's sister
was being abducted from her father's home even though by her husband and there was an
assault on her body by the husband, it was held that the appellant had the right of private
defence of the body of his sister to the extent of causing death. To be able to extend this right
up to causing death, the apprehension of grievous hurt must be reasonable. In case of Sheo
Persan Singh vs State of UP 1979, the driver of a truck drove over and killed two persons
sleeping on the road in the night. People ahead of the truck stood in the middle of the road to
stop the truck, however, he overran them thereby killing some of them. He pleaded right to
private defence as he was apprehensive of the grievous hurt being caused by the people trying
to stop him. SC held that although in many cases people have dealt with the errant drivers
very seriously, but that does not give him the right of private defence to kill multiple people.
The people on the road had a right to arrest the driver and the driver had no right of private
defence in running away from the scene of accident killing several people. Yogendra
Morarji vs State of Gujarat 1980 is an important case in which SC observed that when life

44
is in peril the accused was not expected to weigh in golden scales what amount of force does
he need to use and summarized the law of private defence of body as under –
1. There is no right of private defence against an act which is not in itself an offence under
this code.
2. The right commences as soon as and not before a reasonable apprehension of danger to the
body arises from an attempt or thread to commit some offence although the offence may not
have been committed and it is continuous with the duration of the apprehension.
3. It is a defensive and not a punitive or retributive right. Thus, the right does not extend to
the inflicting of more harm than is necessary for defence.
4. The right extends to the killing of the actual or potential assailant when there is a
reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses
of section 100.
5. There must be no safe or reasonable mode of escape by retreat for the person confronted
with an impending peril to life or of grave bodily harm except by inflicting death on the
assailant.
6. The right being in essence a defensive right does not accrue and avail where there is time
to have recourse to the protection of public authorities. Duration of the right of private
defence of body Section 102 specifies the duration of the right of private defence of the body
as follows - Section 102 - The right of private defence of the body commences as soon as a
reasonable apprehension of danger to the body arises from an attempt or threat to commit the
offence, though the offence may not have been committed and it continues as long as such
apprehension of danger to the body continues. The right to defend the body commences as
soon as a reasonable apprehension of danger to the body arises and it continues as long as
such apprehension of danger to the body continues. Right to private defence of property up to
causing death Section 103 of IPC specifies four situations in which the right of private
defence of property extends even to causing death. Section 103 - The right of private defence
of property extends, under the restriction mentioned in section 99, to the voluntary causing of
death or of any other harm to the wrong doer, if the offence, the committing of which, or

45
attempting to commit which, occasions the exercise of the right, be an offence of any of the
descriptions hereinafter enumerated, namely - First - Robbery Secondly - House breaking by
night Third - Mischief by fire committed on any building, tent, or vessel, which building tent
or vessel is used as a human dwelling or as a place for custody of property. Fourth - Theft,
mischief or house trespass under such circumstances as may reasonably cause apprehension
that death or grievous hurt will be the consequence if such right of private defence is not
exercised. A person may cause death in safeguarding his own property or the property of
some one else when there is a reason to apprehend than the person whose death has been
cause was about to commit one of the offences mentioned in this section or to attempt to
commit one of those offences. In case of State of UP vs Shiv Murat 1982, it was held that to
determine whether the action of the accused was justified or not one has to look in to the
bona fides of the accused. In cases where there is a marginal excess of the exercise of such
right it may be possible to say that the means which a threatened person adopts or the force
which he uses should not be weighed in golden scales and it would be inappropriate to adopt
tests of detached objectivity which would be so natural in a court room. Duration of the right
of private defence of property Section 105 specifies the duration of the right of private
defence of the property as follows - Section 105 - The right of private defence of the property
commences as soon as a reasonable apprehension of danger to the property commences. It
continues - in case of theft - till the offender has effected his retreat with the property or
either the assistance of the public authorities is obtained or the property has been recovered.
in case of robbery - as long as the offender causes or attempts to cause to any person death or
hurt or wrongful restraint or as long as the fear of instant death or of instance hurt or of
instance personal restraint continues. in case of criminal trespass - as long as the offender
continues in the commision of criminal trespass or mischief. in case of house breaking by
night - as long as the house, trespass which has been begun by such house breaking,
continues. The case of Amjad Khan vs State AIR 1952, is important. In this case, a criminal
riot broke out in the city. A crowd of one community surrounded the shop of A, belonging to
other community. The crowd started beating the doors of A with lathis. A then fired a shot
which killed B, a member of the crowd. Here, SC held that A had the right of private defence
which extended to causing of death because the accused had reasonable ground to apprehend
that death or grievous hurt would be caused to his family if he did not act promptly. Section

46
107 of Indian Penal Code, 1860 deals with Abetment of a thing. A person abets the doing of a
thing, whoFirst.-Instigates any person to do that thing; or Secondly.-Engages with one or
more other person or persons in any conspiracy for the doing of that thing, if an act or illegal
omission takes place in pursuance of that conspiracy, and in order to the doing of that thing;
or Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.-A person who, by wilful misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose, voluntarily causes or procures, or attempts to
cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A,
a public officer, is authorized by a warrant from a Court of Justice to apprehend Z, B,
knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby
intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does
anything in order to facilitate the commission of that act, and thereby facilitates the
commission thereof, is said to aid the doing of that act. Section 108 of Indian Penal Code,
1860 Defines who is an Abettor 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. Explanation 1 The abetment of the illegal omission of an act may amount to an
offence although the abettor may not himself be bound to do that act. Explanation 2 To
constitute the offence of abetment it is not necessary that the act abetted should be
committed, or that the effect requisite to constitute the offence should be caused. Illustrations
(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit
murder. (b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers
from the wound. A is guilty of instigating B to commit murder. Explanation 3 It is not
necessary that the person abetted should be capable by law of committing an offence, or that
he should have the same guilty intention or knowledge as that of the abettor, or any guilty
intention or knowledge. Illustrations (a) A, with a guilty intention, abets a child or a lunatic to
commit an act which would be an offence, if committed by a person capable by law of
committing an offence, and having the same intention as A. Here A, whether the act be
committed or not, is guilty of abetting an offence. (b) A, with the intention of murdering Z,
instigates B, a child under seven years of age, to do an act which causes Z's death. B, in

47
consequence of the abetment, does the act in the absence of A and thereby causes Z's death.
Here, though B was not capable by law of committing an offence, A is liable to be punished
in the same manner as if B had been capable by law of committing an offence, and had
committed murder, and he is therefore subject to the punishment of death. (c) A instigates B
to set fire to a dwelling-house. B, in consequence of the unsoundness of his mind, being
incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to
law, sets fire to the house in consequence of A's instigation. B has committed no offence, but
A is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the
punishment provided for that offence. (d) A, intending to cause a theft to be committed,
instigates B to take property belonging to Z out of Z's possession. A induces B to believe that
the property belongs to A. B takes the property out of Z's possession, in good faith, believing
it to be A's property. B, acting under this misconception, does not take dishonestly, and
therefore does not commit theft. But A is guilty of abetting theft, and is liable to the same
punishment as if B had committed theft. Explanation 4 The abetment of an offence being an
offence, the abetment of such an abetment is also an offence. Illustration A instigates B to
instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence
in consequence of B's instigation. B is liable to be punished for his offence with the
punishment for murder; and, as A instigated B to commit the offence, A is also liable to the
same punishment. Explanation 5 It is not necessary to the commission of the offence of
abetment by conspiracy that the abettor should concert the offence with the person who
commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence
is committed. Illustration A concerts with B a plan for poisoning Z. It is agreed that A shall
administer the poison. B then explains the plan to C mentioning that a third person is to
administer the poison, but without mentioning A's name. C agrees to procure the poison, and
procures and delivers it to B for the purpose of its being used in the manner explained. A
administers the poison; Z dies in consequence. Here, though A and C have not conspired
together, yet C has been engaged in the conspiracy in pursuance of which Z has been
murdered. C has therefore committed the offence defined in this section and is liable to the
punishment for murder. Criminal Conspiracy - Section 120-A, IPC Section 120-A of the
I.P.C. defines 'conspiracy' to mean that when two or more persons agree to do, or cause to be
done an illegal act, or an act which is not illegal by illegal means, such an agreement is

48
designated as "criminal conspiracy. 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 furtherance thereof. Section 120-B of the I.P.C.
prescribes punishment for criminal conspiracy. It is not necessary that each conspirator must
know all the details of the scheme nor be a participant at every stage. It is necessary that they
should agree for design or object of the conspiracy. Conspiracy is conceived as having three
elements: (1) agreement (2) between two or more persons by whom the agreement is
effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or
may constitute the means, or one of the means by which that aim is to be accomplished. It is
immaterial whether this is found in the ultimate objects. The common law definition of
'criminal conspiracy' was stated first by Lord Denman in Jones' case (1832 B & AD 345) that
an indictment for conspiracy must "charge a conspiracy to do an unlawful act by unlawful
means" and was elaborated by Willies, J. on behalf of the Judges while referring the question
to the House of Lords in Mulcahy v. Reg (1868) L.R. 3 H.L. 306 and the House of Lords in
unanimous decision reiterated in Quinn v. Leathem 1901 AC 495 at 528 as under: "A
conspiracy consists not merely in the intention of two or more, but in the agreement of two or
more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design
rests in intention only it is not indictable. When two agree to carry it into effect, the very plot
is an act in itself, and the act of each of the parties, promise against promise, actus contra
actum, capable of being enforced, if lawful, punishable of for a criminal object or for the use
of criminal means. The discussion pertaining to standard of proof required for proving the
offence of conspiracy can be summarized by the following observations of Supreme Court in
the decision reported as State (NCT of Delhi) v. Navjot Sandhu AIR 2005 SC 3820:- "A few
bits here and a few bits there on which the prosecution relies cannot be held to be adequate
for connecting the accused in the offence of criminal conspiracy. Section 141. Unlawful
assembly An unlawful assembly refers to a gathering of individuals who come together in
order to commit an unlawful act or to behave in a violent, boisterous or tumultuous manner.
Political gathering and demonstration raise the most troublesome issues involving unlawful
assembly. The "Unlawful assembly" is the most debated topic in the present political
scenario. While the Indian Constitution under the Article 19(1) (b) confers upon all citizens
of India the right to assemble peacefully and without arms, but this right is subject to

49
reasonable restriction in the interest of the sovereignty and integrity of India and public order.
For the implementation of the same, the Indian Penal Code, 1870 defines "Unlawful
Assembly" and the Code of Criminal Procedure, 1973 lays down the procedure and the
powers conferred upon the adjudicating authorities to prevent such assemblies in order to
maintain public order. The line of distinction between protecting freedom of assembly and
protecting peace and tranquillity of the community is often difficult for the courts to draw.
Section 129 of Criminal Procedure Code, 1973 gives power in the hands of the Executive
magistrate or an officer in charge of the police station, or a police officer not below the rank
of the sub- inspector to command to disperse. In case of ineffectually the same shall be made
to disperse by the military with the use of minimum force according to Section 130 Criminal
Procedure Code, 1973. The same power has been vested with the Commissioned or Gazetted
officer in case of emergency and the same shall be communicated to the nearest magistrate at
the earliest according to Section 131 of Criminal Procedure Code, 1973. The officer has the
power to take into the custody any offender (Section 131, Criminal Procedure Code, 1973).
SECTION 149 IPC: Scope and Object Section 149 IPC has essentially two ingredients viz. (i)
offence committed by any member of an unlawful assembly consisting five or more members
and (ii) such offence must be committed in prosecution of the common object (under Section
141 IPC) of the assembly or members of that assembly knew to be likely to be committed in
prosecution of the common object. The Supreme Court in Ramachandran Vs. State of Kerala
has examined the law relating to offences committed by persons in pursuance of common
object being part of an unlawful assembly, as entailed in Section 149 of the Indian Penal
Code. The relevant extracts from the judgment are reproduced hereunder; For "common
object", it is not necessary that there should be a prior concert in the sense of a meeting of the
members of the unlawful assembly, the common object may form on spur of the moment; it
is enough if it is adopted by all the members and is shared by all of them. In order that the
case may fall under the first part the offence committed must be connected immediately with
the common object of the unlawful assembly of which the accused were members. [Vide:
Bhanwar Singh & Ors. v. State of M.P., (2008) 16 SCC 657] Even if the offence committed
is not in direct prosecution of the common object of the assembly, it may yet fall under
second part of Section 149 IPC if it can be held that the offence was such as the members
knew was likely to be committed. The expression 'know' does not mean a mere possibility,

50
such as might or might not happen. For instance, it is a matter of common knowledge that if a
body of persons go armed to take forcible possession of the land, it would be right to say that
someone is likely to be killed and all the members of the unlawful assembly must be aware of
that likelihood and would be guilty under the second part of Section 149 IPC. There may be
cases which would come within the second part, but not within the first. The distinction
between the two parts of Section 149 IPC cannot be ignored or obliterated. [See : Mizaji &
Anr. v. State of U.P., AIR 1959 SC 572; and Gangadhar Behera & Ors. v. State of Orissa,
AIR 2002 SC 3633]. However, once it is established that the unlawful assembly had common
object, it is not necessary that all persons forming the unlawful assembly must be shown to
have committed some overt act. For the purpose of incurring the vicarious liability under the
provision, the liability of other members of the unlawful assembly for the offence committed
during the continuance of the occurrence, rests upon the fact whether the other members
knew before hand that the offence actually committed was likely to be committed in
prosecution of the common object. [See : Daya Kishan v. State of Haryana, (2010) 5 SCC 81;
Sikandar Singh v. State of Bihar, (2010) 7 SCC 477, and Debashis Daw v. State of W.B.,
(2010) 9 SCC 111]. The crucial question for determination in such a case is whether the
assembly consisted of five or more persons and whether the said persons entertained one or
more of the common objects specified by Section 141. While determining this question, it
becomes relevant to consider whether the assembly consisted of some persons which were
merely passive witnesses and had joined the assembly as a matter of idle curiosity without
intending to entertain the common object of the assembly.(Vide: Masalti v. State of Uttar
Pradesh, AIR 1965 SC 202) In K.M. Ravi & Ors. v. State of Karnataka, (2009) 16 SC 337,
this Court observed that mere presence or association with other members alone does not per
se be sufficient to hold every one of them criminally liable for the offences committed by the
others unless there is sufficient evidence on record to show that each intended to or knew the
likelihood of commission of such an offending act. Similarly in State of U.P. v. Krishanpal &
Ors., (2008) 16 SCC 73, this Court held that once a membership of an unlawful assembly is
established it is not incumbent on the prosecution to establish whether any specific overt act
has been assigned to any accused. Mere membership of the unlawful assembly is sufficient
and every member of an unlawful assembly is vicariously liable for the acts done by others
either in prosecution of common object or members of assembly knew were likely to be

51
committed. In Amerika Rai & Ors. v. State of Bihar, (2011) 4 SCC 677, this Court opined
that for a member of unlawful assembly having common object what is liable to be seen is as
to whether there was any active participation and the presence of all the accused persons was
with an active mind in furtherance of their common object. The law of vicarious liability
under Section 149 IPC is crystal clear that even the mere presence in the unlawful assembly,
but with an active mind, to achieve the common object makes such a person vicariously
liable for the acts of the unlawful assembly. Thus, this court has been very cautious in the
catena of judgments that where general allegations are made against a large number of
persons the court would categorically scrutinise the evidence and hesitate to convict the large
number of persons if the evidence available on record is vague. It is obligatory on the part of
the court to examine that if the offence committed is not in direct prosecution of the common
object, it yet may fall under second part of Section 149 IPC, if the offence was such as the
members knew was likely to be committed. Further inference has to be drawn as what was
the number of persons; how many of them were merely passive witnesses; what were their
arms and weapons. Number and nature of injuries is also relevant to be considered.
"Common object" may also be developed at the time of incident. Rioting: U/Sec 146:
Whenever force or violence is used by an unlawful assembly or by any member thereof in
prosecution of the common object of such assembly is guilty of the offence of rioting.
Following are the ingredients of an offence of rioting. (i) Use of Force or Violence: There
must be use of force or violence by an unlawful assembly or any member thereof to
constitute an offence of rioting. It is not necessary that the force or violence should be
directed against any particular person or object. (ii) By Unlawful Assembly or Any Member:
The force or violence must be use by an unlawful assembly or any member of it, so to
constitute an offence of rioting all the ingredients of sec. 141 need to be fulfilled. (ii) In
Prosecution of Common Object: Such force or violence should have been used in prosecution
of the common object of such assembly. (III) Punishment U/Sec 147: Whoever is guilty of
rioting, shall be punished with imprisonment of either description for a term which may
extend to two years or with fine or with both. (IV) punishment Where Rioting Armed With
Deadly Weapon U/Sec 148: However is guilty of rioting being armed with deadly weapon or
with anything which used as a weapon, offence, is likely to cause death shall be punished
with imprisonment of either description for a term which may extend to three years or with

52
fine or with both. A person cannot be found guilty under this section unless he actually has a
dangerous weapon in his hands. (PLD 1981 Sc286) Affray: U/Sec 159: When 2 or more
persons by fighting in a public place disturb the public peace, they are said to commit an
affray. (II) Ingredients: (i) Two or More Person: An affray requires two sides fighting. Case
Law PLD 1959 LAH I0I8 It was held that on the offence of affray there must be to or more
person. Passive submission by one party to a beating by the other is not affray. (ii) Public
Place: Fighting must be at public place. A public place is one where the public go, on matter,
Whether they have a right to go or not. (iii) Disturbance of Public Peace: It is essential that
there must be a disturbance of the public peace i.e assault or breath of the peace. Mere
quarelling is not sufficient to attract section 159. (III) Punishment U/Sec 160: Whoever
commits an affray shall be punished with imprisonment of either for a term which may
extend to one month or with fine which may extend to one hundred Rs. With both.
Distinction Between Rioting And Affray: (I) Place Rioting can be committed at any place
whether private or public. Affray can be committed at only Public place. (II) Number Of
Person: Rioting requires five-or more persons. Affray requires two or more persons. (III)
Liability: In riot every member of an unlawful assembly is punishable although some of them
may not have personally used force or violence. In affray only those actually engaged are
liable. (IV) Object: In rioting the object to use force or violence must be one mentioned in
sec. 141. In affray, the object is to disturb the public peace. (V) Punishment: In riot,
punishment awarded is imprisonment which may extend to two years or which fine or with
both. The punishment for affray is imprisonment which may extend to one month or with fine
which may extend to RS. 100 or with both. (VI) As To Enhancement Of Punishment:
Enhanced punishment is provided for rioting if a person is armed with a deadly weapon u/sec
148. For affray no such provision is present. PERJURY( as it is called in English Law) 191:
Giving false evidence. ( judicial perjury ) Whoever, being legally bound by an oath or any
express provision of law to state the truth, or being bound by law to make a declaration upon
any subject, makes any statement which is false, or does not believe to be true, is said to be
giving false evidence. ESSENTIAL CONDITIONS FOR PROSECUTION OF JUDICIAL
PERJURY 1. Legal obligation to state the truth 2. The making of a false statement 3. Belief
in its falsity. Criteria for establishing offense: (a) The statement is false (b) The parson
making the statement knew or believed it to be false or did not believe it to be true. (c) The

53
statement was made intentionally. All three criteria must be proved for conviction. Intention
is most important. False evidence is said to be given intentionally, if, the person making the
statement is aware or has knowledge that it is false and has deliberately used such evidence in
a judicial proceeding with the intention of deceiving the court. ELEMENTS OF PERJURY:
1. False statement made by a person Who is -2. bound by an oath 3. By an express provision
of law 4. A declaration which a person is bound by law to make on any subject 5. Which
statement or declaration is false and which he either knows or believes to be false or does not
believe to be true. 2. Oath must be administered by a person of competent authority. The
authority must be competent to administer the oath. The proceedings where oath is
administered must be sanctioned by law. 3. Express provisions of law include—Plaints,
Written Statements, and other pleadings. CPC casts a legal duty to speak the truth.
Verification of pleadings is a legal obligation. 4. Affidavits are declaration made under oath.
5. A statement could be verbal or otherwise. Statement that he believes a thing which he does
not believe. Statement that he knows a thing which he does not know. Statement that he
knows to be false or does not believe to be true Statement need not be on a point material to
the proceedings. In order to sustain and maintain sanctity and solemnity of the proceedings in
law courts it is necessary that parties should not make false or knowingly, inaccurate
statements or misrepresentation and/or should not conceal material facts with a design to gain
some advantage or benefit at the hands of the court, when a court is considered as a place
where truth and justice are the solemn pursuits. If any party attempts to pollute such a place
by adopting recourse to make misrepresentation and is concealing material facts it does so at
its risk and cost. Read a judgment about the above in Vijay Sval Vs. State of Punjab AIR
2003 SC 4023, 2003 (2) JKJ 197 SC, JT 2003 (5) SC 241 Section 192 in The Indian Penal
Code, 1860 192. Fabricating false evidence.-- Whoever causes any circumstance to exist or
makes any false entry in any book or record, or makes any document containing a false
statement, intending that such circumstance, false entry or false statement may appear in
evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as
such, or before an arbitrator, and that such circumstance, false entry or false statement, so
appearing in evidence, may cause any person who in such proceeding is to form an opinion
upon the evidence, to entertain an erroneous opinion touching any point material to the result
of such proceeding is said" to fabricate false evidence". Illustrations (a) A puts jewels into a

54
box belonging to Z, with the intention that they may be found in that box, and that this
circumstance may cause Z to be convicted of theft. A has fabricated false evidence. (b) A
makes a false entry in his shop- book for the purpose of using it as corroborative evidence in
a Court of Justice. A has fabricated false evidence. (c) A, with the intention of causing Z to
be convicted of a criminal conspiracy, writes a letter in imitation of Z' s handwriting,
purporting to be addressed to an accomplice in such criminal conspiracy, and puts the letter
in a place which he knows that the officers of the police are likely to search. A has fabricated
false evidence. Section 268 of Indian Penal Code, 1860 deals with Public nuisance. A person
is guilty of a public nuisance who does any act or is guilty of an illegal omission which
causes any common injury, danger or annoyance to the public or to the people in general who
dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction,
danger or annoyance to persons who may have occasion to use any public right. A common
nuisance is not excused on the ground that it causes some convenience or advantage. The
distinction between private and public nuisance is a matter of fact and not law and can
collapse in situations where the right being violated is a public right but the injury is caused
to an individual and not the public at large. In many cases it essentially is a question of
degree. An example of such a situation is obstruction of a highway affecting houses adjacent
to it. In such cases, even though the number of people being affected is not large, the right
being violated is public in nature. Unlike private nuisance, public nuisance does not consider
easement rights as acceptable defence for nuisance. Merely the fact that the cause of nuisance
has been in existence for a long time does not bar any challenge against it as no length of
time can legalize a public nuisance. The definition of nuisance excludes from its ambit the
instances of legalized nuisance. Legalized nuisance are cases when the nuisance cause is
statutorily approved and in the interest of greater good and social welfare. For instance, the
running of railway engines and trains or establishment of the yard, despite being a legitimate
cause of nuisance, is not punishable under IPC. Section 269. Negligent act likely to spread
infection of disease dangerous to life Whoever unlawfully or negligently does any act which
is, and which he knows or has reason to believe to be, likely to spread the infection of any
disease dangerous to life, shall be punished with imprisonment of either description for a
term which may extend to six month, or with fine, or with both. Sections 269 and 270 of the
IPC are potent weapons in case of criminal transmission. These provisions, in the past, have

55
been used to address the spread of cholera, plague, syphilis, gonorrhea and other sexually
transmitted diseases. However, to establish an offence under Section 269, the action of the
accused must be unlawful, negligent and contrary to the provisions of the Indian law. Also, it
is necessary that the accused knew or had reason to believe that his or her action could cause
harm. This means, that the element of malignancy is crucial in the commission of an offence
under Section 270. The main problem in prosecuting a person who has wilfully transmitted
HIV virus to another is the difficulty in establishing that the accused was aware of his or her
HIV status and the implications of such status at the time the virus was transmitted to the
partner.
CULPABLE HOMICIDE AND MUREDER:
The word homicide is derived from two Latin words - homo and cido. Homo means human
and cido means killing by a human. Homicide means killing of a human being by another
human being. A homicide can be lawful or unlawful. Lawful homicide includes situations
where a person who has caused the death of another cannot be blamed for his death. For
example, in exercising the right of private defense or in other situations explained in Chapter
IV of IPC covering General Exceptions. Unlawful homicide means where the killing of
another human is not approved or justified by law. Culpable Homicide is in this category.
Culpable means blame worthy. Thus, Culpable Homicide means killing of a human being by
another human being in a blameworthy or criminal manner. Section 299 of IPC defines
Culpable Homicide as follows - Section 299 - Who ever causes death by doing an act with
the intention of causing death, or with the intention of causing such bodily injury as is likely
to cause death, or with the knowledge that he is likely by such act to cause death, commits
the offence of Culpable Homicide.
Illustrations - 1. A lays sticks and turf over a pit, with the intention of there by causing death,
or with the knowledge that death is likely to be thereby caused. Z believing the ground to be
firm, treads on it, falls in and is killed. A has committed the offence of Culpable Homicide. 2.
A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be
likely to cause Z's death, induces B fires and kills Z. Here B may be guilty of no offence; but

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A has committed the offence of Culpable Homicide. 3. A, by shooting at a fowl with intent to
kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here,
although A was doing an unlawful act, he was not guilty of Culpable Homicide, as he did not
intend to kill B, or to cause death by doing an act that he knew was likely to cause death.
Explanation 1 - A person who causes bodily injury to another who is labouring under a
disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be
deemed to have caused his death.
Explanation 2 - Where death is caused by bodily injury, the person who causes such bodily
injury shall be deemed to have caused the death, although by resorting to proper remedies
and skillful treatment the death might have been prevented.
Explanation 3 - The causing of the death of child in the mother's womb is not homicide. But
it may amount to Culpable Homicide to cause the death of a living child, if any part of that
child has been brought forth, though the child may not have breathed or been completely
born.
Based upon the above definition, the following are the essential elements of Culpable
Homicide - 1. Death of a human being is caused - It is required that the death of a human
being is caused. However, it does not include the death of an unborn child unless any part of
that child is brought forth.
2. By doing an act - Death may be caused by any act for example, by poisoning or by hurting
with a weapon. Here act includes even on omission of an act for which one is obligated by
law to do. For example, if a doctor has a required injection in his hand and he still does not
give it to the dying patient and if the patient dies, the doctor is responsible. 3. Intention or
Knowledge - There must be an intention of any of the following - 1. Intention of causing
death - The doer of the act must have intended to cause death. As seen in Illustration 1, the
doer wanted or expected someone to die. It is important to note that intention of causing
death does not necessarily mean intention of causing death of the person who actually died. If
a person does an act with an intention of killing B but A is killed instead, he is still
considered to have the intention. 2. Intention of causing such bodily injury as is likely to
cause death - The intention of the offender may not have been to cause death but only an

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injury that is likely to cause the death of the injured. For example, A might intended only to
hit on the skull of a person so as to make him unconscious, but the person dies. In this case,
the intention of the person was only to cause an injury but the injury is such that it is likely to
cause death of the person. Thus, he is guilty of Culpable Homicide. However, if A hits B with
a broken glass. A did not know that B was haemophilic. B bleeds to death. A is not guilty of
Culpable Homicide but only of grievous hurt because he neither had an intention to kill B nor
he had any intention to cause any bodily injury as is likely to cause death. Or the act must
have been done with the knowledge that such an act may cause death - When a person does
an act which he knows that it has a high probability to cause death, he is responsible for the
death which is caused as a result of the act. For example, A knows that loosening the brakes
of a vehicle has a high probability of causing death of someone. If B rides such a bike and if
he dies, A will be responsible for B's death. In Jamaluddin's case 1892, the accused, while
exorcising a spirit from the body of a girl beat her so much that she died. They were held
guilty of Culpable Homicide. Negligence - Sometimes even negligence is considered as
knowledge. In Kangla 1898, the accused struck a man whom he believed was not a human
being but something supernatural. However, he did not take any steps to satisfy himself that
the person was not a human being and was thus grossly negligent and was held guilty of
Culpable Homicide. Murder (When Culpable Homicide amounts to Murder) Murder is a type
of Culpable Homicide where culpability of the accused is quite more than in a mere Culpable
Homicide. Section 300, says that Culpable Homicide is Murder if the act by which the death
is caused is done 3. with the intention of causing death 4. or with an intention of causing such
bodily injury as the offender knows to be likely to cause the death of the person, 5. or with an
intention of causing such bodily injury as is sufficient in ordinary course of nature to cause
death. 6. It is also Murder if the person committing the act knows that the act is so dangerous
that it will cause death or such injury as is likely to cause death in all probability and he has
no valid reason for doing that act. Illustrations - A shoots Z with an intention of killing him.
Z dies in consequence. A commits Murder. A intentionally gives Z a sword cut that sufficient
in ordinary course of nature to cause death. Z dies because of the cut. A commits Murder
even though he had no intention to kill Z. A without any excuse fires a loaded canon on a
crowd. One person dies because of it. A commits Murder even though he had no intention to
kill that person.

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In Augustine Saldanha vs State of Karnataka 2003, Hon. SC deliberated on the difference

of Culpable Homicide and Murder. SC observed that in the scheme of the IPC Culpable
Homicide is genus and Murder its specie. All 'Murder' is 'Culpable Homicide' but not vice-
versa. Speaking generally, 'Culpable Homicide' sans 'special characteristics of Murder is
Culpable Homicide not amounting to Murder'. For the purpose of fixing punishment,
proportionate to the gravity of the generic offence, the IPC practically recognizes three
degrees of Culpable Homicide. The first is, what may be called, 'Culpable Homicide of the
first degree'. This is the greatest form of Culpable Homicide, which is defined in Section 300
as 'Murder'. The second may be termed as 'Culpable Homicide of the second degree'. This is
punishable under the first part of Section 304. Then, there is 'Culpable Homicide of the third
degree'. This is the lowest type of Culpable Homicide and the punishment provided for it is
also the lowest among the punishments provided for the three grades. Culpable Homicide of
this degree is punishable under the second part of Section 304.
Thus, it boils down to the knowledge possessed by the offender regarding a particular victim
in a particular state being in such condition or state of health that the internal harm caused to
him is likely to be fatal, notwithstanding the fact that such harm would not, in the ordinary
circumstances, be sufficient to cause death. In such a case, intention to cause death is not an
essential requirement. Only the intention of causing such injury coupled with the knowledge
of the offender that such injury is likely to cause death, is enough to term it as Murder.
Situations where Culpable Homicide does not amount to Murder Section 300 also specifies
certain situations when the Murder is considered as Culpable Homicide not amounting to
Murder.
These are as under:
1. If the offender does an act that causes death because of grave and sudden provocation by
the other.
2. If the offender causes death while exceeding the right to private defense in good faith.
3. If the offender is a public servant and does an act that he, in good faith, believes to be
lawful.
4. If the act happens in a sudden fight in the heat of passion.
5. If the deceased is above 18 and the death is caused by his own consent.

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Exception I - Culpable Homicide is not Murder if the offender, whilst deprived of the power
of self-control by grave and sudden provocation, causes the death of the person who gave the
provocation or causes the death of any other person by mistake or accident. The above
exception is subject to the following provisos - 1. That the provocation is not sought or
voluntarily provoked by the offender as an excuse for killing or doing harm to any person. 2.
That the provocation is not given by anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of such public servant. 3. That the provocations
not given by anything done in the lawful exercise of the right of private defence.
Explanation-Whether the provocation was grave and sudden enough to prevent the offence
from amounting to Murder is a question of fact. Illustrations 1. A, under the influence of
passion excited by a provocation given by Z, intentionally kills, Y, Z's child. This is Murder,
in as much as the provocation was not given by the child, and the death of the child was not
caused by accident or misfortune in doing an act caused by the provocation. 2. Y gives grave
and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor
knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has
not committed Murder, but merely Culpable Homicide. 3. A is lawfully arrested by Z, a
bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This Murder, in
as much as the provocation was given by a thing done by a public servant in the exercise of
his powers. 4. A appears as a witness before Z, a Magistrate, Z says that he does not believe a
word of A's deposition, and that A has perjured himself. A is moved to sudden passion by
these words, and kills Z. This is Murder. 5. A attempts to pull Z's nose, Z, in the exercise of
the right of private defence, lays hold of a to prevent him form doing so. A is moved to
sudden and violent passion in consequence, and kills Z. This is Murder, in as much as the
provocation was given by a thing done in the exercise of the right of private defence. 6. Z
strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take
advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose.
B kills Z with the knife. Here B may have committed only Culpable Homicide, but A is
guilty of Murder. Exception 2 - Culpable Homicide is not Murder if the offender, in the
exercise in good faith of the right 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 . –

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such right of defence without premeditation, and without any intention of doing more harm
than is necessary for the purpose of such defence. Illustration - Z attempts to horsewhip A,
not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the
assault. A believing in good faith that he can by no other means prevent himself from being
horsewhipped, shoots Z dead. A has not committed Murder, but only Culpable Homicide.
Exception 3 - Culpable Homicide is not Murder if the offender, being a public servant or
aiding a public servant acting or the advancement of public justice, exceeds the powers given
to him by law, and causes death by doing an act which he, in good faith, believes to be lawful
and necessary for the due discharge of his duty as such public servant and without ill-will
towards the person whose death is caused. Exception 4 - Culpable Homicide is not Murder if
it is committed without premeditation in a sudden fight in the heat of passion upon a sudden
quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual
manner. Explanation-It is immaterial in such cases which party offers the provocation or
commits the first assault. In a very recent case of Byvarapu Raju vs State of AP 2007, SC
held that in a Murder case, there cannot be any general rule to specify whether the quarrel
between the accused and the deceased was due to a sudden provocation or was premeditated.
"It is a question of fact and whether a quarrel is sudden or not, must necessarily depend upon
the proved facts of each case," a bench of judges Arijit Pasayat and D K Jain observed while
reducing to 10 years the life imprisonment of a man accused of killing his father. The bench
passed the ruling while upholding an appeal filed by one Byvarapu Raju who challenged the
life sentence imposed on him by a session's court and later affirmed by the Andhra Pradesh
High Court for killing his 'drunkard' father. Exception 5 - Culpable Homicide is not Murder
when the person whose death is caused, being above the age of eighteen years, suffers death
or takes the risk of death with his own consent. Illustration - A, by instigation, voluntarily
causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z's
youth, he was incapable of giving consent to his own death; A has therefore abetted Murder.
: : . – Define Hurt and Grievous Hurt. Explain the difference. In normal sense, hurt
means to cause bodily injury and/or pain to another person. IPC defines Hurt as follows -
Section 319 - Whoever causes bodily pain, disease, or infirmity to any person is said to cause
hurt. Based on this, the essential ingredients of Hurt are - 1. Bodily pain, disease or infirmity
must be caused - Bodily pain, except such slight harm for which nobody would complain, is

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hurt. For example, pricking a person with pointed object like a needle or punching somebody
in the face, or pulling a woman's hair. The duration of the pain is immaterial. Infirmity means
when any body organ is not able to function normally. It can be temporary or permanent. It
also includes state of mind such as hysteria or terror. 2. It should be caused due to a voluntary
act of the accused. When there is no intention of causing death or bodily injury as is likely to
cause death, and there is no knowledge that inflicting such injury would cause death, the
accused would be guilty of hurt if the injury is not serious. In Nga Shwe Po's case 1883, the
accused struck a man one blow on the head with a bamboo yoke and the injured man died,
primarily due to excessive opium administered by his friends to alleviate pain. He was held
guilty under this section. The authors of the code have observed that in many cases offences
that fall under hurt will also fall under assault. However, there can be certain situations,
where they may not. For example, if A leaves food mixed with poison on B's desk and later
on B eats the food causing hurt, it cannot be a case of assault. If the accused did not know
about any special condition of the deceased and causes death because of hurt, he will be held
guilty of only hurt. Thus, in Marana Goundan's case AIR 1941, when the accused kicked a
person and the person died because of a diseased spleen, he was held guilty of only hurt. A
physical contact is not necessary. Thus, a when an accused gave food mixed with dhatura and
caused poisoning, he was held guilty of Hurt. Grievous Hurt Cases of severe hurt are
classified under grievous hurt. The authors of the code observed that it would be very
difficult to draw a line between hurt and grievous hurt but it was important to draw a line
even if it is not perfect so as to punish the cases which are clearly more than hurt. Thus,
section 320 of IPC defines Grievous Hurt as - Section 320 - The following kinds of hurt only
are designated as "Grievous" - 1. Emasculation 2. Permanent privation of the sight of either
eye. 3. Permanent privation of the hearing of either ear. 4. Privation of any member or a joint.
– 5. Destruction or permanent impairing of powers of any member or joint. 6. Permanent
disfiguration of the head or face. 7. Fracture or dislocation of a bone or tooth. 8. Any hurt
which endangers life or which causes the sufferer to be, during the space of twenty days, in
severe body pain or unable to follow his ordinary pursuits. Thus, it can be seen that grievous
hurt is a more serious kind of hurt. Since it is not possible to precisely define what is a
serious hurt and what is not, to simplify the matter, only hurts described in section 320 are
considered serious enough to be called Grievous Hurt. The words "any hurt which endangers

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life" means that the life is only endangered and not taken away. Stabbing on any vital part,
squeezing the testicles, thursting lathi into rectum so that bleeding is caused, have all been
held as Hurts that endanger life and thus Grievous Hurts. As with Hurt, in Grievous Hurt, it is
not a physical contact is not necessary. Difference between Hurt and Grievous Hurt Only
hurts that are defined in section 320 are called Grievous Hurt. Punishment for voluntarily
causing Hurt as defined in section 323 is imprisonment of either description up to 1 year and
a fine up to 1000 Rs, while punishment for voluntarily causing grievous hurt is imprisonment
of either description up to 7 years as well as fine. Difference between Grievous Hurt and
Culpable Homicide The line separating Grievous Hurt and Culpable Homicide is very thin. In
Grievous Hurt, the life is endangered due to injury while in Culpable Homicide, death is
likely to be caused. Thus, acts neither intended nor likely to cause death may amount to
grievous hurt even though death is caused. In case of Formina Sbastio Azardeo vs State of
Goa Daman and Diu 1992 CLJ SC, the deceased was making publicity about the illicit
intimacy between N and W. On the fateful day, N, W, and her husband A caught hold of D
and tied him up to a pole and beat him as a result of which he died. They were not armed
with any dangerous weapon and had no intention to kill him. N and W were held guilty of
only causing grievous hurt. Wrongful restraint and wrongful confinement Section 339.
Wrongful restraint Whoever voluntarily obstructs any person so as to prevent that person
from proceeding in any direction in which that person has right to proceed, is said wrongfully
to restrain that person. Wrongful restraint means preventing a person from going to a place
where he has a right to go. In wrongful confinement, a person is kept within certain limits out
of which he wishes to go and has a right to go. In wrongful restraint, a person is prevented
from proceeding in some particular direction though free to go elsewhere. In wrongful
confinement, there is restraint from proceeding in all directions beyond a certain area. One
may even be wrongfully confined in one's own country where by a threat issued to a person
prevents him from leaving the shores of his land. Object - The object of this section is to
protect the freedom of a person to utilize his right to pass in his. The slightest unlawful
obstruction is deemed as wrongful restraint. Physical obstruction is not necessary always.
Even by mere words constitute offence under this section. The main ingredient of this section
is that when a person obstructs another by causing it to appear to that other that it is
impossible difficult or dangerous to proceeds as well as by causing it actually to be

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impossible, difficult or dangerous for that to proceeds. Ingredients: 1. 1. An obstruction. 2. 2.

Obstruction prevented complainant from proceeding in any direction. Obstruction:-
Obstruction mans physical obstruction, though it may cause by physical force or by the use of
menaces or threats. When such obstruction is wrongful it becomes the wrongful restraint. For
a wrongful restraint it is necessary that one person must obstruct another voluntarily.In
simple word it means keeping a person out of the place where his wishes to, and has a right to
be. This offence is completed if one's freedom of movement is suspended by an act of
another done voluntarily. Restraint necessarily implies abridgment of the liberty of a person
against his will. What is require under this section is obstruction to free movement of a
person, the method used for such obstruction is immaterial. Use of physical force for causing
such obstruction is not necessary. Normally a verbal prohibition or remonstrance does not
amount to obstruction, but in certain circumstances it may be caused by threat or by mere
words. Effect of such word upon the mind of the person obstructed is more important than the
method. Obstruction of personal liberty:Personal liberty of a person must be obstructed. A
person means a human being, here the question arises whether a child of a tender age who
cannot walk of his own legs could also be the subject of restraint was raised in Mahendra
Nath Chakarvarty v. Emperor. It was held that the section is not confined to only such person
who can walk on his own legs or can move by physical means within his own power. It was
further said that if only those who can move by physical means within their own power are to
be treated as person who wishes to proceed then the position would become absurd in case of
paralytic or sick who on account of his sickness cannot move. Another points that needs our
attention here is whether obstruction to vehicle seated with passengers would amount to
wrongful restraint or not.
An interesting judgment of our Bombay High Court in Emperor v. Ramlala : "Where,

therefore a driver of a bus makes his bus stand across a road in such a manner, as to prevent
another bus coming from behind to proceed further, he is guilty of an offence under Sec. 341
of the Penal Code of wrongfully restraining the driver and passengers of another bus". "It is
absurd to say that because the driver and the passengers of the other bus could have got down
from that bus and walked away in different directions, or even gone in that bus to different
destinations, in reverse directions, there was therefore no wrongful restraint" is the judgment
of our High Court which is applicable to our busmen who suddenly park the buses across the

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roads showing their protest on some issues. IllustrationsI. A was on the roof of a house. B
removes the ladder and thereby detains A on the roof. II. A and B were co-ower of a well. A
prevented B from taking out water from the well . Section 340. Wrongful confinement.
Whoever wrongfully restrains any person in such a manner as to prevent that person from
proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.
Object - The object of this section is to protect the freedom of a person where his personal
liberty has totally suspended or abolish, by voluntarily act done by another. Ingredients: I.
Wrongful confinement of person. 1. Wrongful restraint of a person 2. Such restraint must
prevent that person from proceeding beyond certain limits. Prevent from proceedings
:Wrongful confinement is a kind of wrongful restraint, in which a person kept within the
limits out which he wishes to go, and has right to go.There must be total restraint of a
personal liberty, and not merely a partial restraint to constitute confinement.For wrongful
confinement proof of actual physical obstruction is not essential. Circumscribing Limits
:Wrongful confinement means the notion of restraint within some limits defined by a will or
power exterior to our own. Moral force: Detention through the excise of moral force, without
the accomplishment of physical force is sufficient to constituted this section.
Degree of OffenseWrongful restraint is not a serious offence, and the degree of this offense is
comparatively lees then confinement.Wrongful confinement is a serious offence, and the
degree of this offense is comparatively intensive then restraint. Principle element In wrongful
retraint voluntarily wrongful obstruction of a person personal liberty, where he wishes to, and
he have a right to.In Wrongful confinement voluntarily wrongfully restraint a person where
he wishes to, and he has a right to, within a circumscribing limits. Personal libertyIt is a
partial restraint of the personal liberty of a person in Wrongful restraint. A person is restraint
is free to move anywhere other than to proceed in a partial direction.It is a absolute or total
restraint or obstruction of a personal liberty in wrongful confinement. NatureConfinement
implies wrongful restraint.Wrongful confinement not implies vice-versa. NecessityNo limits
or boundaries are required in Wrongful restraint. But in wrongful confinement certain
circumscribing limits or boundaries requires. FORCE: FORCE Under Section 349 of Indian
Penal Code the term 'Force' has been defined. The term 'Force' defined in this section
contemplates force used by one human being on another human being. The term Force here
defined occurs in the English phrase" Vi Et Armis" - Exertion of energy producing change in

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the outer world. In order to constitute force there must be at least:- : In order to constitute
force there must be at least: - (i) Causing of a motion (ii) Change of a motion or (iii)
Cessation of a motion. In, Shadshiv Mondal v. Emperor : In, Shadshiv Mondal v. Emperor
The court held that Force does not contemplate the use of force against inanimate objects.
This is clear from the use of word "another" in this section. The word "another" refers to
another human being in the ambit of this section. In, Ramakant rajaram v. Manuel Fernandes
: In, Ramakant rajaram v. Manuel Fernandes It was held in this case that , a motion or change
of motion or cessation of motion caused to Property without affecting a human being is not
the 'Use of Force to Another within the meaning of this section.' In, Chandrika sao v. State of
Bihar : In, Chandrika sao v. State of Bihar Supreme Court in the case held that it would be
clear from a Bare Perusal of the section that one person can be said to have used force against
another if he causes motion or cessation of motion to that other. By snatching away the
accused necessarily caused a jerk to the hand or the hands of official would be to affect the
sense of the feelings of the hands of the official. Therefore the court held that the action of
the accused amounts to use of force as contemplated by Section 349 of Indian Penal Code. In,
Jai Ram v. Emperor : In, Jai Ram v. Emperor In this case the Accused raises his stick to
strike the Plaintiff, the plaintiff seeing the accused raising the stick moves away. It was held
by the Court that A uses the force within the meaning of this section. In, Sheo pratap singh v.
Emperor : In, Sheo pratap singh v. Emperor It was held in the case that inducing an animal to
move may amount to using force. Criminal Force : Criminal Force The last Section defined
'force' which by itself is not an offence , for the use of force may take place under
circumstances the most benevolent, as where a person pulls another out of a well to save him
from being drowned in the well, such an act is not an offence. When does force becomes
Criminal Force? : When does force becomes Criminal Force? The previous section has
defined Section 349, which can also be put to positive or good use. Force becomes criminal
only when -- it is used without consent and in order of committing offence. when it is used to
cause injury, fear or annoyance to another to whom the force is used. The essential
ingredients of this section are as follows:- : The essential ingredients of this section are as
follows:- (i) Intentional use of force to any person. (ii) Such Force must have been used
without the person's consent (iii) The Force must have been used: - (a) In order to committing
of an offence. (b) Intending to cause or knowing that is likely to cause Injury, fear or the

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annoyance to the person to whom the Force is used. Criminal Force : Criminal Force
Criminal Force is Equivalent to "battery" in English law which means the intentional
infliction of force by one person upon another against latter's consent. If A spits over B, then
A would be liable for use of Criminal Force as it must have cause annoyance to B. In,
Haystead v. DPP : In, Haystead v. DPP In this case accused punched a Woman, as a result of
which the child in her hand fell to the floor. His prosecution included the charge of "battery",
on the child. He contended that the battery required direct application of force which
involved direct physical contact with victim either with the body or medium such as Weapon.
In, Haystead v. DPP : In, Haystead v. DPP The court rejected this contention and said that
battery does not require direct infliction of violence. The accused was guilty because the
child's fall to floor had result directly from the assault of mother. In, Bihari Lal v. Emperor
: In, Bihari Lal v. Emperor In this case a person broke the house in the absence of the
occupant, then it is clear that the accused had taken the possession of the house without any
force or criminal force. But If, a person struck a pot which another person was carrying and
which was in contact with his body, it constitutes the offence of criminal force. Thus the
physical presence of a person makes a crucial difference, between an act amounting to
criminal force or not. Intentional : Intentional The word intentional excludes all Involuntary,
accidental or even negligent acts. An Attendant at a bath, who from pure carelessness turns
on the wrong tap and causes boiling water to fall on another, an illus. (g) to Sec.350, could
not be convicted for the use of Criminal Force. In, Mohd. Ishaq Khan v. Emperor : In, Mohd.
Ishaq Khan v. Emperor A person raises stick for any purpose of his own and the other B, runs
away because of sheer fright then the accused would not be liable for criminal Force. Though
in this case the act of the accused A caused fear in the mindset of the other person B even
then the accused will not be liable as the act was not done with an Intention to do so.
CONSENT : CONSENT The word Consent should be taken as defined in section90 of the
Indian Penal Code. There is some difference between doing an act "without one's consent"
and "against his will". The later involves active mental opposition of the act. MAYNE states
:- Where it is an element of an offence that the act should have been done without the consent
of the person affected by it , some evidence must be offered that the act was done to him
against his will or without his consent. Assault : Assault An assault is nothing more than a
threat of violence exhibiting an intention to use criminal force, and the present ability and

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intention to carry the threat into execution. The Section basically requires two things : - (i)
Making of any gesture or preparation by a person in the presence of another. (ii) Intention or
knowledge of the likelihood that such gesture or preparation will cause the person present to
apprehend that the person making it is about to use Criminal Force to him. Gesture or
Preparation : Gesture or Preparation According to this section , the mere gesture or
preparation with the intention or knowledge that it is likely to cause apprehension in the mind
of the victim, amounts to an offence of assault. The explanation to this section provides that
mere words do not amount to assault , unless the words are used in the aid of the gesture or
preparation which amounts to an assault. Gesture or Preparation : Gesture or Preparation The
following have been held to be instances of assault: - (i) Pointing of a gun, whether loaded or
unloaded (ii) Fetching a Sword and advancing towards victim (iii) Lifting one's Lathi (iv)
Throwing brick into another's house (v) Advancing with a threatening attitude to strike
blows. In, Read v. Cooker : In, Read v. Cooker An assault is constituted by an attempt to
apply unlawful force to another or any threat which is accompanied by or consists of any act
or gesture showing a present intent to use unlawful force and also accompanied by " a present
ability to carry the threat into Execution". In, Stephens v. Myers : In, Stephens v. Myers A
advanced towards B in a threatening attitude and with the intent of striking B, but was
stopped by any other person just before he reached B. The Court held in this case that A's
blow would almost immediately have reached B if it had not been stopped he had committed
an assault. In, Hunter v. Johns : In, Hunter v. Johns In this case A, the master of a board
school, detained a child after school hours for not doing home lessons which, under the
Elementary Educations Act, 1870 and 1876, he had no power to set. The court held that he
was guilty of an Unlawful detention of the child and therefore an assault. Mere words cannot
constitute an assault. Defense to Assault : Defense to Assault The accused has got two
defenses available to him: - (i) That the facts of the case do not constitute an assault or
battery if it was an accident or done by consent. (ii) That he was justified and excused. He
may, also, where the circumstances permit, specially plead the defense that the matter has
already been disposed of by a court of summary jurisdiction . Difference between Criminal
force, Assault and Hurt :- : Difference between Criminal force, Assault and Hurt :-
Section319 of the Indian Penal code defines Hurt. The word assault, criminal force and hurt
have distinct meanings and definition in IPC. They deal with different stages of the

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commission of offence with different effects. Legally assault denotes the preparatory acts
which cause apprehension of the use of criminal force against the person. Assault falls short
of actual use of Criminal force. Difference between Criminal force, Assault and Hurt :- :
Difference between Criminal force, Assault and Hurt :- Now Criminal Force is causing
motion, change of motion or cessation of the motion without the consent of the person, in
order to commit an offence or intending to cause or knowing it will cause injury, fear or
annoyance. When the use of such criminal force results in causing of bodily pain or injury,
then it would amount to the offence of 'Hurt' under Section 323, Indian Penal Code. What is
meant by kidnapping from India, kidnapping from guardianship, and abduction? Differentiate
between Kidnapping and Abduction. Kidnapping Kidnapping from India - Kidnapping from
India means taking anybody, without his consent, out of the borders of India. Section 360
defines it as follows - Section 360 - Whoever conveys any person beyond the limits of India
without the consent of that person or of some person legally authorized to consent on behalf
of that person, is said to kidnanap that person from India. For example, if A takes B without
his consent or without B's lawful guardians consent to Pakistan, A would be committing this
offence. The essential ingredient of Kidnapping are - 1. The person should be conveyed out
of the borders of India. 2. The person should be conveyed without his consent or without the
consent of the person who is legally authorized to consent on his behalf. Thus, if a person is
not capable of giving valid consent as in the case of a minor or a person with unsound mind,
the consent of his lawful guardian is required to take him outside India. Kidnapping from
Lawful guardianship - Kidnapping from lawful guardianship means taking a child away from
his lawful guardian without the guardian's consent. Section 361 defines it as follows - Section
361 - Whoever takes or entices any minor under 16 yrs of age if male or 18 yrs of age if
female, or any person of unsound mind, out of the keeping of the lawful guardian of such
minor or person of unsound mind, without the consent of such guardian, is said to kidnap
such minor or person from lawful guardianship. Explanation - The words lawful guardian in
this section include any person lawfully entrusted with the care or custody of such minor or
other person. Exception - This section does not extend to the act of any person who in good
faith believes himself to be the father of an illegitimate child or who in good faith believes
himself to be entitled to the lawful custody of such child, unless such act is committed for an
immoral or unlawful purpose. Based on this section the essential ingredients are - 1. The

69
person should either be a minor or a person of unsound mind - This implies that the person is
not capable of giving consent. In case of male child the age is 16 yrs while in case of a female
child the age is 18 yrs. For a person on unsound mind, age is immaterial. 2. Such person be
taken or enticed away - This means that either force is used or any enticement that causes the
person to leave domain of the lawful guardian is used. For example, if A shows toffee to a
child C thereby causing the child to come out of the house and follow A, it fall under this
category. 3. Such person must be taken or enticed away from the lawful guardian - Only
when the child is under the lawful guardian, can he be kidnapped. This means that the child
should be under the domain of the lawful guardian. For example, an orphan wandering on the
streets cannot be kidnapped because he doesn't have a lawful guardian. However, this does
not mean that a child must be with the lawful guardian. For example, a child siting in a
school is also under the dominion of his father and if A takes such a child away, it would be
kidnapping. Further, a lawful guardianship does not necessarily mean a legal guardian. A
legal guardian may entrust the custody of his child to someone else. Taking a child away
from such custody will also fall under this section. For example, A entrusts his child to B, his
servant, to take the child to school. If, C takes the child away from the servant, this would be
kidnapping because the servant has the lawful guardianship of the child. Distinction between
taken away and allowing a child to follow - In Vardrajan vs State of Madras AIR 1965, SC
observed that there is a difference between taking away a minor and allowing the minor to
follow. If a person knowingly does an act which he has reason to believe will cause the child
to leave the guardian, then it would amount to taking away the child, however, if child
follows a person even when a person does not do any act meant to entice a child to leave his
guardian, he cannot be held responsible. For example, if a child follows an icecream vendor,
without any enticement from the vendor, while the guardian fails to keep the watch, the
vendor cannot be held guilty under this section. In Chajju Ram vs State of Punjab AIR 1968,
a minor girl was taken away out of the house for only about 20 - 30 yards. it was held that it
was kidnapping because distance is immaterial. Kidnapping is complete as soon as the minor
or the person with unsound mind leaves the custody of the guardian. It is not a continuing
offence. Thus, when a child is kidnapped from place P1 and taken to place P2 and then from
P2 to P3, kidnapping was done only once. Abduction Section 362 of IPC defines Abduction
as follows - Section 362 - Whoever by force compels, or by any deceitful means induces, any

70
person to go from any place is said to abduct that person. It means compelling a person, or to
induce him to go from where he is to another place. The essential ingredients are - A person
goes from one place to another - A person cannot be abducted at the same place where he is.
For abduction to take place, the person should physically move from one place to another.
Either by forcible compulsion or by inducement - The movement of the person must be

because of some compulsion or because of some inducement. For example, A threatens B on
gun point to go from his house to another city. Here, A has compelled B to go from his house
and is thus guilty under this section. Here, the age of the abducted person is immaterial. Thus,
even a major can be abducted if he is forced to go from one location. But if a minor is
abducted, it may amount to Kidnapping as well. Further, it is a continuing offence. As long as
a person is forced to go from place to place, abduction continues.
Criminal Law (Amendment) Act, 2013:
A Criminal Law (Amendment) Act, 2013 passed to amend the Indian Penal Code, 1860, the
Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872 and the Protection of
Children from Sexual Offences Act, 2012. It amends sections 100, 228A, 354, 370, 370A,
375, 376, 376A, 376B, 376C, 376D and 509 of Indian Penal Code, 1860. It also inserts new
sections 166A, 166B, 326A, 326B, 354A, 354B, 354C and 354D in Indian Penal Code, 1860.
It also amends sections 26, 54A, 154, 160, 161, 164, 173, 197, 273, 309, 327 and First
Schedule of Code of Criminal Procedure, 1973. It also inserts new sections 357B and 357C
of Code of Criminal Procedure, 1973. It also amends sections 114, 119 and 146 of Indian
Evidence Act, 1872.
It also inserts new sections 53A in Indian Evidence Act, 1872. It also amends section 42 of
Protection of Children from Sexual Offences Act, 2012. The Criminal Law (Amendment)
Bill, 2013 is an Indian legislation passed by the Lok Sabha on 19 March 2013, and by the
Rajya Sabha on 21 March 2013, which provides for amendment of Indian Penal Code, Indian
Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offences.
111121131 The Bill received Presidential assent on 2 April 2013 and deemed to came into
force from 3 February 2013. It was originally an Ordinance promulgated by the President of

71
India, Pranab Mukherjee, on 3 February 2013, in light of the protests in the 2012 Delhi gang
rape case. 14151 Contents • 1 Background • 2 The Criminal Law (Amendment) Ordinance,
2013 o 2.1 New offences o 2.2 Changes in law o 2.3 Criticisms • 3 The Criminal Law
(Amendment) Act, 2013 • 4 References • 5 External links Background: 2012 Delhi gang rape
case On 16 December 2012 a female physiotherapy intern [6] was beaten and gang raped in
Delhi. She died from her injuries thirteen days later, despite receiving treatment in India and
Singapore. The incident generated international coverage and was condemned by the United
Nations Entity for Gender Equality and the Empowerment of Women, who called on the
Government of India and the Government of Delhi "to do everything in their power to take
up radical reforms, ensure justice and reach out with robust public services to make women's
lives more safe and secure". 121 Public protests took place in Delhi, where thousands of
protesters clashed with security forces. Similar protests took place in major cities throughout
the country. On 22 December 2012, a judicial committee headed by J. S. Verma, a former
Chief Justice of India, was appointed by the Central government to submit a report, within 30
days, to suggest amendments to criminal law to sternly deal with sexual assault cases. The
Committee submitted its report after 29 days on 23 January 2013, after considering 80,000
suggestions received by them during the period from public in general and particularly
eminent jurists, legal professionals, NGOs, women's groups and civil society. [8]M The
report indicated that failures on the part of the Government and Police were the root cause
behind crimes against women. Major suggestions of the report included the need to review
AFSPA in conflict areas, maximum punishment for rape as life imprisonment and not death
penalty, clear ambiguity over control of Delhi Police etc. m]mi The Cabinet Ministers on 1
February 2013 approved for bringing an ordinance, for giving effect to the changes in law as
suggested by the Verma Committee Report. -121 According to Minister of Law and Justice,
Ashwani Kumar, 90 percent of the suggestions given by the Verma Committee Report has
been incorporated into the Ordinance. -131 The ordinance was subsequently replaced by a
Bill with numerous changes, which was passed by the Lok Sabha on 19 March 2013.
Change in definition of rape under IPC The most important change that has been made is the
change in definition of rape under IPC. The word rape has been replaced with sexual assault

72
in Section 375, and have added penetrations other than penile penetration an offence. The
definition is broadly worded and gender neutral in some aspect, with acts like penetration of
penis, or any object or any part of body to any extent, into the vagina, mouth, urethra or anus
of another person or making another person do so, apply of mouth or touching private parts
constitutes the offence of sexual assault. The section has also clarified that penetration means
"penetration to any extent", and lack of physical resistance is immaterial for constituting an
offence. Except in certain aggravated situation the punishment will be imprisonment not less
than seven years but which may extend to imprisonment for life, and shall also be liable to
fine. In aggravated situations, punishment will be rigorous imprisonment for a term which
shall not be less than ten years but which may extend to imprisonment for life, and shall also
be liable to fine. A new section, 376A has been added which states that if a person
committing the offence of sexual assault, "inflicts an injury which causes the death of the
person or causes the person to be in a persistent vegetative state, shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years, but which may
extend to imprisonment for life, which shall mean the remainder of that person's natural life,
or with death." 1161 In case of "gang rape", persons involved regardless of their gender shall
be punished with rigorous imprisonment for a term which shall not be less than twenty years,
but which may extend to life and shall pay compensation to the victim which shall be
reasonable to meet the medical expenses and rehabilitation of the victim. The age of consent
in India has been increased to 18 years, which means any sexual activity irrespective of
presence of consent with a woman below the age of 18 will constitute statutory rape. Certain
changes has been introduced in the CrPC and Evidence Act, like the recording of statement
of the victim, more friendly and easy, character of the victim is irrelevant, presumption of no
consent where sexual intercourse is proved and the victim states in the court that there has
been no consent, etc.
THEFT, EXTORTION, ROBBERY AND DACOITY:
Theft In general, theft is committed when a person's property is taken without his consent by
someone. For example, A enters the house of B and takes B's watch without B seeing and
puts it in his pocket with an intention to take it for himself. A commits theft. However,

73
besides the ordinary meaning conveyed by the word theft, the scope of theft is quite wide.
Section 378 of IPC defines theft as follows –
Section 378 - Whoever, intending to take dishonestly any movable property out of the
possession of any person without that person's consent, moves that property in order to such
taking, is said to commit theft. Based on this definition, the following are the essential
constituents of Theft - 1. Dishonest intention to take property - There must be dishonest
intention on the part of the offender. As defined in Section 24 of IPC, dishonestly means that
there must be a wrongful loss to one or wrongful gain to another. For example, A quietly
takes money from B's purse for his spending. Here, A causes wrongful loss to B and is thus
guilty of theft. However,if the intention of the offender is not to cause a wrongful loss or
wrongful gain, he does not commit theft even if he takes the property without consent. For
example, A gives his watch to B for repairing. B takes the watch to his shop. A, who does not
owe any debt to B for which B has the right to retain the watch, follows B and forcibly takes
back the watch. Here, A does not commit theft because he has no dishonest intention.
Similarly, when A, believing, in good faith, a property in possession of B, to be his, takes it
from B, it is not theft. In K. N. Mehra v. State of Rajasthan AIR 1957 S. C. 369, SC held that
proof of intention to cause permanent deprivation of property to the owner, or to obtain a
personal gain is not necessary for the purpose of establishing dishonest intention. Thus, In
Pyarelal Bhargava vs State AIR 1963, a govt. employee took a file from the govt. office,
presented it to B, and brought it back to the office after two days. It was held that permanent
taking of the property is not required, even a temporary movement of the property with
dishonest intention is enough and thus this was theft. 2. Property must be movable - An
immovable property cannot be stolen or moved from the possession so a theft cannot happen
in respect of an immovable property. However, as per Explanation 1 of section 378, as long
as a thing is attached to earth, not being movable, is not subject of theft. However, as soon as
it is severed from the earth, it is capable of being the subject of theft. Further, Explanation 2
says that a moving affected by the same act that causes severance, may be theft. For example,
a tree on A's land is not capable of being the subject of theft. However, if B, with an intention
to take the tree, cuts the tree, he commits theft as soon as the tree is severed from the earth. In

74
White's case, 1853, a person introduced another pipe in a gas pipeline and consumed the gas
bypassing the meter. Gas was held to be a movable property and he was held guilty of theft.
3. Property must be taken out of possession of another - The property must be in possession
of someone. A property that is not in possession of anybody cannot be a subject of theft. For
example, wild dogs cannot be a subject of theft and so if someone takes a wild dog, it will not
be theft. It is not important whether the person who possess the thing is the rightful owner of
that thing or not. If the thing is moved out of mere possession of someone, it will be theft. For
example, A, a coin collector, steals some coins from B, a fellow coin collector. A finds out
that they were his coins that were stolen earlier. Here, even though B was not the rightful
owner of the coins, he was still in possession of them and so A is guilty of theft. In HJ
Ransom vs Triloki Nath 1942, A had taken a bus on hire purchase from B under the
agreement that in case of default B has the right to take back the possession of the bus. A
defaulted, and thereupon, B forcibly took the bus from C, who was the driver of the bus. It
was held that the C was the employee of A and thus, the bus was in possession of A.
Therefore, taking the bus out of his possession was theft. 4. Property must be taken without
consent - In order to constitute theft, property must be taken without the consent of person
possessing it. As per Explanation 5, consent can be express or implied. For example, A, a
good friend of B, goes to B's library and takes a book without express consent of B, with the
intention of reading it and returning it. Here, A might have conceived that he had B's implied
consent to take the book and so he is not guilty of theft. Similarly, when A asks for charity
from B's wife, and when she gives A some clothes belonging to B, A may conceive that she
has the authority to give B's clothes and so A is not guilty of theft. In Chandler's case, 1913,
A and B were both servants of C. A suggested B to rob C's store. B agreed to this and
procured keys to the store and gave them to A, who then made duplicate copies. At the time
of the robbery, they were caught because B had already informed C and to catch A red
handed, C had allowed B to accompany A on the theft. Here, B had the consent of C to move
C's things but A did not and so A was held guilty of theft. 5. Physical movement of the
property is must - The property must be physically moved. It is not necessary that it must be
moved directly. As per Explanation 3, moving the support or obstacle that keeps the property
from moving is also theft. For example, removing the pegs to which bullocks are tied, is
theft. Further, as per Explanation 4, causing an animal to move, is also considered as moving

75
the things that move in consequence. For example, A moves the bullock cart carrying a box
of treasure. Here, A is guilty of moving the box of treasure. In Bishaki's case 1917, the
accused cut the string that tied the necklace in the neck of a woman, because of which the
necklace fell. It was held that he caused sufficient movement of the property as needed for
theft. Theft of one's own property As per the definition of theft given in section 378, it is not
the ownership but the possession of the property that is important. A person may be a legal
owner of a property but if that property is in possession, legally valid or invalid, of another, it
is possible for the owner to commit theft of his own property. This is explained in illustration
j of section 378 - A gives his watch to B for repairs. B repairs the watch but A does not pay
the repairing charges, because of which B does not return the watch as a security. A forcibly
takes his watch from B. Here, A is guilty of theft of his own watch. Further, in illustration k,
A pawns his watch to B. He takes it out of B's possession, having not payed to B what he
borrowed by pawning it, without B's consent. Thus, he commits theft of his own property in
as much as he takes it dishonestly. In Rama's Case 1956, a person's cattle was attached by the
court and entrusted with another. He took the cattle out of the trustee's possession without
recourse of the court. He was held guilty of theft. Extortion In Extortion, a person takes the
property of another by threat without any legal justification. Section 383 defines extortion as
follows - Section 383 - Whoever intentionally puts any person in fear of any injury to that
person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to
any person any property or valuable security or anything signed or sealed, which may be
converted into a valuable security, commits extortion. For example, A threatens to publish a
defamatory libel about B unless B gives him money. A has committed extortion. A threatens
B that he will keep B's child in wrongful confinement, unless B will sign and deliver to A a
promissory note binding B to pay certain moneys to A. B signs and delivers such noted. A
has committed extortion. The following are the constituents of extortion - 1. Intentionally
puts any person in fear of injury - To be an offence under this section, putting a person in fear
of injury intentionally is a must. The fear of injury must be such that is capable of unsettling
the mind of the person threatened and cause him to part with his property. Thus, it should
take away the element of freeness and voluntariness from his consent. The truth of the threat
under this section is immaterial. For example, A's child is missing and B, who does not have
A's child, threatens A that he will kill A's child unless A pay's him 1 lac Rs, will amount to

76
extortion. Similarly, guilt or innocence of the party threatened is also immaterial. In Walton's
case 1863, the accused threatened to expose a clergyman, who had criminal intercourse with
a woman of ill repute, unless the clergyman paid certain amount to him. He was held guilty
of extortion. However, in Nizamuddin's case 1923, a refusal by A to perform marriage and to
enter it in the register unless he is paid Rs 5, was not held to be extortion. 2. Dishonestly
induces a person so put in fear to deliver to any person any property - The second critical
element of extortion is that the person who has been put to fear, must deliver his property to
any person. Dishonest inducement means that the person would not have otherwise agreed to
part with his property and such parting causes him a wrongful loss. Further, the property must
be delivered by the person who is threatened. Though, it is not necessary to deliver the
property to the person threatening. For example, if A threatens B to deliver property to C,
which B does, A will be guilty of extortion. The delivery of the property by the person
threatened is necessary. The offence of extortion is not complete until delivery of the
property by the person put in fear is done. Thus, Duleelooddeen Sheikh's case 1866, where a
person offers no resistance to the carrying off of his property on account of fear and does not
himself deliver it, it was held not to be extortion but robbery. Extortion can also happen in
respect of valuable security or anything signed that can become a valuable security. For
example, A threatens B to sign a promissory note without the amount or date filled in. This is
extortion because the note can be converted to valuable security. In Romesh Chandra Arora's
case 1960, 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. In R S Nayak vs A R Antuley and another AIR
1986, it was held that for extortion, fear or threat must be used. In this case, chief minister A
R Antuley asked the sugar cooperatives, whose cases were pending before the govt. for
consideration, to donate money and promised to look into their cases. It was held that there
was no fear of injury or threat and so it was not extortion.
Robbery Robbery is a severe form of either theft or extortion. In certain circumstances, a

theft or an extortion gravitates to robbery. Section 390 defines robbery as follows - Section
390 - 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 theft, the offender for that end, voluntarily

77
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, or
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. Thus, a theft becomes a robbery when the following two conditions are satisfied - 1.
when someone voluntarily causes or attempts to cause 1. death, hurt, or wrongful restraint or
2. fear of instant death, instant hurt, or instant wrongful restraint 2. the above act is done 1. in
order to the committing of theft or 2. committing theft or 3. carrying away or attempting to
carry away property obtained by theft. For example, A holds Z down, and fraudulently takes
Z's money from Z's clothes, without Z's consent. A has committed theft and in order to
commit that theft, he voluntarily caused wrongful restraint to Z. Thus, A has committed
robbery. Robbery can be committed even after the theft is committed if in order to carrying
away the property acquired after theft, death, hurt, or wrongful restraint or an instant fear of
them is caused. The expression "for that end" implies that death, hurt, or wrongful restraint or
an instant fear of them is caused directly to complete the act of theft or carrying away the
property. In Hushrut Sheik's case 1866, C and D were stealing mangoes from tree and were
surprised by B. C knocked down B and B became senseless. It was held to be a case of
robbery. Further, the action causing death, hurt, or wrongful restraint or an instant fear of
them must be voluntary. Thus, in Edward's case 1843, a person, while cutting a string tied to
a basket accidentally cut the wrist of the owner who tried to seize it. He was held guilty of
only theft. An extortion becomes a robbery when the following three conditions are satisfied -
1. when a person commits extortion by putting another person in fear of instant death, hurt, or
wrongful restraint, and 2. such a person induces the person put in such fear to deliver the
property then and there and 3. the offender is in the presence of the person put in such fear
at the time of extortion. For example, A meets Z on high road, 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 present at the time of committing the extortion in
his presence, A has committed robbery. In another example, A meets Z and Z's child on the
high road. A takes the child and threatens to fling it down a precipice, unless Z delivers his

78
purse. Z in consequence, delivers the purse. Here, A has extorted the purse from Z by causing
Z to be in fear of instant hurt of his child who is present there. Thus, A has committed
robbery. For extortion to become robbery, the fear of instant death, hurt, or wrongful restraint
is must. Thus, when A obtains property from Z by saying, "Your child is with my gang and
will be put to death unless you send us ten thousand rupees", this is extortion but not robbery
because the person is not put in fear of instant death of his child. In presence of the person -
The offender must be present where a person is put in fear of injury to commit the offence of
robbery. By present, it means that the person should be sufficiently near to cause the fear. By
his presence, the offender is capable of carrying out his threat immediately. Thus the person
put in such fear delivers the property in order to avoid the danger of instant death, hurt or
wrongful restraint. In Shikandar vs State 1984, the accused attacked his victim by knife many
times and succeeded in acquiring the ear rings and key from her salwar. He was held guilty of
robbery. DacoityAs per section 391, a Robbery committed by five or more persons is dacoity.
Section 391 - When five or more persons conjointly commit or attempt to commit 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. Conjointly
implies a collective effort to commit or attempting to commit the action. It is not necessary
that all the persons must be at the same place but they should be united in their efforts with
respect to the offence. Thus, persons who are aiding the offence are also counted and all are
guilty of dacoity. It is necessary that all the persons involved must have common intention to
commit the robbery. Thus, dacoity is different from robbery only in the respect of number of
people committing it and is treated separately because it is considered to be a more grave
crime. In Ram Chand's case 1932, it was held that the resistance of the victim is not
necessary. The victims, seeing a large number of offenders, did not resist and no force or
threat was used but the offenders were still held guilty of dacoity. In Ghamandi's case 1970, it
was held that less than five persons can also be convicted of dacoity if it is proved as a fact
that there were more than 5 people who committed the offence by only less than five were
identified. However, if 5 persons were identified and out of them 2 were acquitted, the
remaining three cannot be convicted of dacoity. Answer to problem A has not committed
theft because the ring is not in possession of anybody. However, as a finder of goods, he has

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a responsibility to make good faith efforts to find the true owner. Since he has not made any
efforts to do so, he is guilty of Dishonest misappropriation of property under Section 403.
CRIMINAL MISAPPROPRIATIONAND CRIMINAL BREACH OF TRUST CRIMINAL
MISAPPROPRIATION : Section 403 of the Indian Penal Code deals with criminal
misappropriation of property. Section 403 says that, 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. Criminal
misappropriation means dishonest misappropriation or conversion of movable property which
is already in the possession of the offender. In the case of criminal misappropriation the
offender gets the possession of the movable property innocently but subsequently uses the
property dishonestly for his own benefit. eg: A takes property belonging to Z out of Z's
possession in good faith, believing, at the time when he takes it, that 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.
Criminal misappropriation takes place when the possession has been innocently come by, but
where, by a subsequent change of intention, or from the knowledge of some new fact with
which the party was not previously acquainted, the retaining becomes wrongful and
fraudulent[11. Misappropriation is the wrongful setting apart or assigning of a sum of money
to a purpose or use to which it should not be lawfully assigned or set apart[21. To constitute
criminal misappropriation, the property must have come into the possession of the accused
innocently in the first instance. The chief element for a conviction under section 403 is the
dishonest misappropriation or conversion to one's own use. In the absence of any overt act on
the part of the accused no dishonest motive can be imputed to him simply because he has
detained certain documents in his custody[41. Dishonestly misappropriates or converts to his
own use There are two things necessary before an offence under section 403, IPC can be
established. Firstly that the property must be misappropriated or converted to the use of the
accused, and secondly, that he must misappropriate or covert it dishonestly. Essential
Ingredient of Criminal misappropriation i) The property must be a movable one. ii) There
should be a dishonest misappropriation or conversion of a property for a person's own use.
Temple property The property of an idol or a temple must be used for the purpose of that idol
or temple; any other use would be a malversation of that property, and if dishonest, would

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amount to criminal misappropriation{5J. Retention of money paid by mistake Where a

money is paid by mistake to a person, and such person, either at the time of receipt or at
anytime subsequently, discovers the mistake, and determines to appropriate the money, that
person is guilty of criminal misappropriation^]. The offence of criminal misappropriation is
non cognizable, bailable and compoundable with the permission of the court. Section 404
deals with dishonest misappropriation of property possessed by deceased person at the time
of his death. Section 404 says that, whoever dishonestly misappropriates or converts to his
own use property, knowing that such property was in the possession of a deceased person at
the time of that person's death and has not since been in the possession of any person legally
entitled to such possession, shall be punished with imprisonment of either description for a
term which may extend to three years, and shall also be liable to fine and if the offender at
the time of such person's decease was employed by him as a clerk or servant, the
imprisonment may extend to seven years. This section relates to a description of property
needing protection. The essential ingredient of offence under section 404, was the knowledge
on the part of the accused that the property in question as in possession of the deceased
person at the time of that person's death and had not since been in the possession of any
person legally entitled to such possession. Dhulji vs Kanchan 1956 CriLJ 224 Section 404
deals with dishonest misappropriation or dishonest conversion of property peculiarly needing
protection particularly when the previous owner, who was possessed of it, is dead and the
subsequent owner has not obtained possession thereof. The Section prescribes different
sentences where the offence is committed by strangers and when the offence is committed by
persons who occupy position of confidence.Thus if the word property in Section 404, I.P.C.
is read as movable property it will mean that offence under Section 404, I.P.C. is an
aggravated form of an offence under Section 403, I.P.C.It is for this reason that a provision is
made by which dishonest misappropriation or conversion under these circumstances is made
specially punisnable with a higher sentence. It is clear that in the case of immovable property
no such risk is involved except where the immovable property is first demolished and
converted into moveable property and thereafter it is dishonestly misappropriated or
converted. It is therefore clear that the word property in Section 404, I.P.C. can mean no
other property Both Calcutta and Bombay High Courts have taken the view that the word
property in Section 404, I.P.C. does not include immovable pro-perty vide - 'Jugdown Sinha

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v. Queen Empress' 23 Cal 372 (A) and-'Reg v. Girdhar' 6 Bom HCR Cr 33 (B). In 'Daud
Khan v. Emperor' AIR 1925 All 675 (C), Allahabad High Court differed from this view
mainly on the ground that the word used in Section 404, I.P.C., is 'Property' and not 'movable
property' as in Section 403, I.P.C. OF CRIMINAL BREACH OF TRUST : Section 405 of the
Code defines Criminal Breach of Trust. Under section 405, whoever, being in any manner
entrusted with property, or with any dominion over property, dishonestly misappropriated or
converts to his own use that property, or dishonestly uses or disposes of that property in
violation of any direction of law prescribing the mode in which such trust is to be discharged,
or any legal contract, express or implied, which he has made touching the discharge of such
trust or willfully suffers any other person so to do, commits 'criminal breach of trust'. eg: A,
being executer to the will of a deceased person, dishonestly disobeys the law which directs
him to divide the effects according to the will, and appropriated them to his own use. A has
committed criminal breach of trust. A person is liable to e punished for criminal breach of
trust if the following conditions are satisfied: i) He should have been entrusted with property
or with any dominion over property. ii) He should have dishonestly misappropriated or
converted the property so entrusted to his own use; or iii) He should have used or disposed of
that property in violation of any direction of law prescribing the mode in which trust was to
be discharged or of any legal contract Section 406 defines punishment ie. Whoever commits
criminal breach of trust shall be punished with imprisonment of either description for a term
which may extend to three years or with fine, or with both. In Shiv Sagar Tiwari Case[71, the
Supreme Court held that a Minister is in the position of a trustee in respect of public property
under his charge and discretion and hence he must deal with people's property in just and fair
manner, failing which he or she should be personally liable for criminal breach of trust. In
Karanavir Case[8] , Supreme Court ruled that once entrustment of money is proves,
prosecution need not prove misappropriation and it is for the accused to prove hoe the
property entrusted to him was dealt with. In the recent case of Dalip Kaur v. Jagnar Singh[9] ,
the supreme court reiterated that , "405 - Criminal breach of trust. Whoever, being in any
manner entrusted with property, or with any dominion over property, dishonestly
misappropriates or converts to his own use that property, or dishonestly uses or disposes of
that property in violation of any direction of law prescribing the mode in which such trust is
to be discharged, or of any legal contract, express or implied, which he has made touching the

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discharge of such trust, or willfully suffers any other person so to do, commits "criminal
breach of trust".
Stolen Property Sec. 410 Property, the possession whereof has been transferred by theft, or
by extortion, or by robbery, and property which has been criminally misappropriated or in
respect of which criminal breach of trust has been committed, is designed as "stolen
property". Dishonestly receiving stolen property- Section 411 of Indian Penal Code Whoever
dishonestly receives or retains any stolen property, knowing or having reason to believe the
same to be stolen property, shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both.
Dishonestly receiving property stolen in the commission of a dacoity - Section 412 of Indian
Penal Code Whoever dishonestly receives or retains any stolen property, the possession
whereof he knows or has reason to believe to have been transferred by the commission of
dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to
belong or to have belonged to a gang of dacoits, property which he knows or has reason to
believe to have been stolen, shall be punished with [imprisonment for life 1, or with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Habitually dealing in stolen property - Section 413 of Indian Penal Code Whoever habitually
receives or deals in property which he knows or has reason to believe to be stolen property,
shall be punished with [imprisonment for life 1, or with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine. Assisting in
concealment of stolen property - Section 414 of Indian Penal Code Whoever voluntarily
assists in concealing or disposing of or making away with property which he knows or has
reason to believe to be stolen property, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both. Cheating:
An Offence under Indian Penal Code Cheating is a offence under Section 415 of Indian Penal
Code. According to this section "Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any property to any person, or to
consent that any person shall retain any property, or intentionally induces the person so
deceived to do or omit to do anything which he would not do or omit if he were not so
deceived, and which act or omission causes or is likely to cause damage or harm to that

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person in body, mind, reputation or property, is said to "cheat". A dishonest concealment of

facts is deception within the meaning of this section. Illustrations: • A , by falsely
pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z
to let him have on credit goods for which he does not mean to pay. A cheats. • A, by
exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the
article corresponds with the sample, and thereby dishonestly induces Z to buy and pay for the
article. A cheats. • A, by tendering in payment for an article a bill on a house with which A
keeps no money, and by which A expects that the bill will be dishonored, intentionally
deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for
it. A cheats. Essential Ingredients of Cheating The section is divided into two distinct clauses.
Under the first clause, the person deceived must have been fraudulently or dishonestly
induced to deliver property. The second clause does not require the inducement to be
fraudulent or dishonest. But it requires that by reason of the intentional inducement, damage
or harm in body and mind, reputation or property was caused to the person deceived. Thus,
cheating may be committed in either of the two ways. 1. Deception:- It is the essence of the
offence of cheating. The word "deceiving" means causing to believe what is false, or
misleading as to mater of fact, or leading into error. It means a trick or sham committed by
words or conduct. It is a willful misrepresentation to mislead another. It has to shown that
that misrepresentation made was false to the accused's knowledge at the time when it was
made and the intention was to mislead a person. If the representation is made innocently, it
will not amount to deception. Deceit must have been practiced before the property is
delivered. Dishonest intention at the inception of the delivery of property is the gist of the
offence. 2. Fraudulent or dishonest intention:- Section 415 requires the deceiving of a person
as well as inducing him with intention to cause wrongful gain to one person or wrongful loss
to another. Cheating amounts to inducing the victim to enter into a bargain, which he would
not enter into, if he knew the real facts. A breach of promise may be unethical, but cannot be
criminal unless the promise and its breach were the result of the necessary mens rea. The
mere puffing of goods by vendor is no offence. A simple misrepresentation of the quality of
goods is not a false pretence. But when the thing sold is of an entirely different description
from what it is represented to be and the statements made are not in form of an expression of
opinion or mere praise, the offence of cheating will be committed e.g. where a gold chain

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represented to be of 15 -carat but was only of 6-carat. 3. Any property: - The word 'property'
as has been used in its widest sense in Section 415. The 'property' does not have to be a thing
which has market or pecuniary value. Thus, documents like passport, admit-cards, etc. are
also 'property' under this section. 4. Inducing person deceived to delivered property: - Mere
deception is not in itself sufficient to constitute cheating. It will be cheating only when on
account of the deception practised, the complainant is induced to deliver or part with property
or to do or omit to do certain acts which were detrimental to his interest. 5. Causes or is likely
to cause damage or harm in body, mind, reputation or property:- It is not necessary that the
resulting damage or likelihood of damage should have been within actual contemplation of
the accused when the deceit was practiced. But the person deceived must have acted under
influence of deceit, the facts must establish damage or likelihood of damage and the damage
must not be too remote. Cheating by Personation:- Under section 416, a person commits
cheating when pretends to some other person, real (living or deceased) or imaginary e.g. false
representation as to caste, martial status, economic status, etc. Where the accused
representing himself to be B at a University examination , got a hall-ticket under the
examinee's name and wrote papers in B's name , it was held that the accused has committed
cheating by Personation and the offence of forgery. The punishment for cheating by
Personation is provided in Section 419 i.e. Imprisonment up to 3 years, or fine or both.
Cheating with knowledge that wrongful loss may ensue to person whose interest offender is
bound to protect is defined in Section 418. This section deals with cheating a guardian, a
trustee, a pleader, an agent, or manager of Hindu family or by directors or managers of a
bank in fraud of the shareholders and depositors. Cheating and Dishonestly Inducing
Delivery of Property is defined in Section 420. This section deals with certain specified
classes of cheating. It deals with the cases of cheating whereby the deceived person is
dishonestly induced: 1. to deliver any property to any person; or 2. to make, alter or destroy
(a) the whole or any part of a valuable security , or ,(b) anything which is signed or sealed
and which is capable of being converted into valuable security. The difference between
Section 415 and Section 420 is that where in pursuance of the deception, no property passes
but inducement generated in the mind, the offence comes under Section 415. But where, in
pursuance of the deception property is delivered; the offence is punishable under Section 420.
Punishment for offence under Section 415 is one year, while under Section 420, up to 7 years

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imprisonment. The Case: Bhola Nath v. State 1982 Cr. L J. 1482 (Delhi) This case is regard
to deception being done by the petitioner regarding the payment of a cheque given by them to
complainant for the purpose of inducing them to deliver certain property to the petitioner.
The Cheques given were post dated and were not cleared by the bank for lack of funds in the
particular account : . – on which cheques were drawn. That bank account was opened
by the petitioner for that business deal only which clearly shows their intention to deceive the
complainant. The court emphasize on harmonious construction of the various statues ton
derive the true meaning out of them. Also the matter of jurisdiction was being looked into by
the court. This case was more near to English cases in its approach as it stresses on the point
of unwillingness to pay amount in bank then on the mere argument that dispute was there
with regard to quality of the goods.This was a revision petition in front of Delhi High Court
to again see in the decision of lower court. 425- Mischief - Whoever with intent to cause, or
knowing that he is likely to cause, wrongful loss or damage to the public or to any person,
causes the destruction of any property, or any such change in any property or in the situation
thereof as destroys or diminishes its value or utility, or affects it injuriously, commits
"mischief". Explanation 1.-It is not essential to the offence of mischief that the offender
should intend to cause loss or damage to the owner of the property injured or destroyed. It is
sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage
to any person by injuring any property, whether it belongs to that person or not. Explanation
2.-Mischief may be committed by an act affecting property belonging to the person who
commits the act, or to that person and others jointly. Illustrations (a) A voluntarily burns a
valuable security belonging to Z intending to cause wrongful loss to Z. A has committed
mischief. (b) A introduces water in to an ice-house belonging to Z and thus causes the ice to
melt, intending wrongful loss to Z. A has committed mischief. Criminal trespass Section 441.
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". 447 provides:- Punishment for criminal trespass-Whoever
commits criminal trespass shall be punished with imprisonment of either description for a
term which may extend to three months, with fine or which may extend to five hundred

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rupees, or with both. : Others: . – Forgery Forgery consists of filling in blanks on a

document containing a genuine signature, or materially altering or erasing an existing
instrument. An underlying intent to defraud, based on knowledge of the false nature of the
instrument, must accompany the act. Instruments of forgery may include bills of exchange,
bills of lading, promissory notes, checks, bonds, receipts, orders for money or goods,
mortgages, discharges of mortgages, deeds, public records, account books, and certain kinds
of tickets or passes for transportation or events. Statutes define forgery as a felony. Section
464. Making a false document 464. Making a false document A person is said to make a false
documentFirst- Who dishonestly or fraudulently makes, signs, seals or executes a document
or part of a document, or makes any mark denoting the execution of a document, with the
intention of causing it to be believed that such document or part of a document was made,
signed, sealed or executed by or by the authority of a person by whom or by whose authority
he knows that it was not made, signed, sealed or executed, or at a time at which he knows
that it was not made, signed, sealed or executed; or Secondly- Who, without lawful authority,
dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material
part thereof, after it has been made or executed either by himself or by any other person,
whether such person be living or dead at the time of such alteration; or Thirdly- Who
dishonestly or fraudulently causes any person to sign, seal, execute or alter a document,
knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by
reason of deception practiced upon him, he does not know the contents of the document or
the nature of the alteration. Illustrations (a) A has a letter of credit upon B for rupees 10,000
written by Z. A, in order to defraud B, adds a cipher to the 10,000, and makes the sum
1,00,000 intending that it may be delivered by B that Z so wrote the letter. A has committed
forgery. (b) A, without Z's authority, affixes Z's seal to a document purporting to be a
conveyance of an estate from Z to A, with the intention to selling the estate to B, and thereby
of obtaining from B the purchase-money. A has committed forgery. Explanation 1- A man's
signature of his own name may amount to forgery. Illustrations (a) A signs his own name to a
bill of exchange, intending that it may be believed that the bill was drawn by another person
of the same name. A has committed forgery. : Others: . – Explanation 2- The making
of a false document in the name of a fictitious person, intending it to be believed that the
document was made by a real person, or in the name of a deceased person, intending it to be

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believed that the document was made by the person in his lifetime, may amount to forgery.
Illustration A draws a bill of exchange upon a fictitious person, and fraudulently accepts the
bill in the name of such fictitious person with intent to negotiate it. A commits forgery.
Defamation There is a need to balance the public right to free speech & expression with the
private right to reputation. Legislation about defamation is an attempt to do the same.
Defamation is a Civil as well as a criminal offence. Under Criminal Law, Indian Penal Code,
defines defamation as - "Whoever, by words either spoken or intended to be read, or by signs
or by visible representations, makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases hereinafter excepted, to defame that
person." (1) Explanations in IPCExplanation 1- It may amount to defamation to impute
anything to a deceased person, if the imputation would harm the reputation of that person if
living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2- It may amount to defamation to make an imputation concerning a company or
an association or collection of persons as such. Explanation 3- An imputation in the form of
an alternative or expressed ironically, may amount to defamation. Explanation 4- No
imputation is said to harm a person's reputation, unless that imputation directly or indirectly,
in the estimation of others, lowers the moral or intellectual character of that person, or lowers
the character of that person in respect of his caste or of his calling, or lowers the credit of that
person, or causes it to be believed that the body of that person is in a loath some state, or in a
state generally considered as disgraceful.
Essentials: Under Criminal Law three essentials are to be proved to establish wrong of
Defamation - 1. There should be existence / publication of an imputation made by a person.
2. Such imputation may be words spoken or written signs, or visible representation. 3. It
should be made to injure or having knowledge to believe that it will injure reputation of a
person. Civil Law about Defamation is still governed by English Common Law rules,
according to which 4 essentials are to be proved - 1. The statement be defamatory. 2.
Reference of it to the plaintiff. 3. Publication of it by defendant. 4. Statement must be
substantially untrue. Exceptions: There are ten exception mentioned in Indian Penal Code
under which a person can escape his liability from an action of Defamation: 1. True
Imputation made / published for the public good "It is not defamation to impute anything

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which is true concerning any person, if it be for the public good that the imputation should be
made or published. Whether or not it is for the public good is a question of fact." It is also
sometimes referred as plea for justification, according to which it's not only essential to prove
that the imputation was substantially true but also that it, was made / published for the public
good. 2. Public conduct of public servants "It is not defamation to express in a good faith any
opinion whatever respecting the conduct of a public servant in the discharge of his public
functions, or respecting his character, so far as his character appears in that conduct and no
further." It is essential that it should be necessarily an expression of opinion and not that
statement of fact, and further expressed in good faith - ' done honestly' { Sec.3(22) of General
clauses act } & 'with due care and attention' { sec.52 } whose measure can be that of a
prudent man. : Others: . – 3. Public Question of a Person "Conduct of any person
touching any public question- It is not defamation to express in good faith any opinion
whatever respecting the conduct of any person touching any public question, and respecting
his character, so far as his character appears in that conduct, and no further" here also it's
essential that the statement be an opinion and made in good faith. 4. Publication of reports of
proceedings of Courts- "It is not defamation to publish substantially true report of the
proceedings of a Court of Justice, or of the result of any such proceedings." It's essential that
it be just a report and no further expression of statements on conduct of persons or
proceedings and further it must be substantially true. 5. Merits of case decided in Court or
conduct of witnesses and others concerned- "It is not defamation to express in good faith any
opinion whatever respecting the merits of any case, civil or criminal, which has been decided
by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in
any such case, or respecting the character of such person, as far as his character appears in
that conduct, and no further." it's essential that the statement be an opinion and made in good
faith. 6. Merits of public performance- "It is not defamation to express in good faith any
opinion respecting the merits of any performance which its author has submitted to the
judgment of the public, or respecting the character of the author so far as his character
appears in such performance, and no further." A public performance can be work like a book,
drama, movie etc, and statement made should be an opinion and that too expressed in good
faith. 7. Censure passed in good faith by person having lawful authority- "It is not defamation
in a person having over another any authority, either conferred by law or arising out of a

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lawful contract made with that other, to pass in good faith any censure on the conduct of that
other in matters to which such lawful authority relates." Censure cannot be considered to be
defamation if it's passed in course of exercising authority like the authority of a father over
son, a teacher's over student. 8. Accusation preferred in good faith to authorized person- "It is
not defamation to prefer in good faith an accusation against any person to any of those who
have lawful authority over that person with respect to the subject- matter of accusation". The
accusation should be made in good faith and that too within extent of lawful authority over
the other person. 9. Imputation made in good faith by person for protection of his or other's
interests- "It is not defamation to make an imputation on the character of another provided
that the imputation be made in good faith for the protection of the interests of the person
making it, or of any other person, or for the public good." Though it is a vague exception but
the Imputation should be made in good faith and for interest of own or some other person
concerned. 10. Caution intended for good of person to whom conveyed or for public good- "it
is not defamation to convey a caution, in good faith, to one person against another, provided
that such caution be intended for the good of the person to whom it is conveyed, or of some
person in whom that person is : Others: . – interested, or for the public good" It is
generally a warning to someone for protection of his / public good about another persons
character in good faith. Under Civil Law all the general defences, which are available for an
action of Torts, can be pleaded for action of defamation too but there are three additional
defences for Defamation. 1. Truth / Justification Being true of a defamatory statement is a
complete defence in civil action unlike criminal action the reason being that the law allows
no one to claim damages for a character which one never possessed or to presume undeserved
dignity, thus plea of justification; truth of the statement published is a complete defence. 2.
Fair Comment It is necessary that the imputation be expression of opinion or a comment
rather than being a statement of fact, it should be fair i.e. honestly expressed and without any
malice further it is necessary that the statement should be made/publicised for public good;
all these are matter of facts. 3. Protection of interest When the statement is made for general
or public interest, without any malice no action for defamation lies. 4. Privilege There are
circumstances when the Law grants Privilege to a person to express himself, in these
occasions Right to speech and expression overshadows or eclipses one's right to reputation.
There are two kinds of privileges which can be pleaded - Absolute and Qualified privilege.

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Absolute privilege can be taken by- (a) Members of parliament of both the houses about
anything stated in course of Parliamentary proceedings in side four walls of the house.
{Art.105 (2) for Lok Sabha & 194(2) for Rajya Sabha} (b) Statements made by Judges,
counsels, witnesses, or parties in course of judicial proceedings before any court of Law
provided that the statements are not such that have no relevance at all in the case. (c)
Communication relating to affairs of state made by one officer of state to another in course of
duty. In these circumstances no civil action for defamation lies even though the statement is
absolutely false and is made with malafied intentions. Qualified Privilege can be pleaded in
these cases - (c) Statement made in performance of a duty may be legal, social, or moral duty.
: Others: . – (d) Statement made for protection of general or public interest. (e) Fair
report of Public proceedings like judicial, parliamentary proceedings and public meetings. In
these cases privilege is only considered when the statement is made without any malice.
Kinds of Defamation Though Indian Law does not distinguish, but defamation is of two
types, as contained in English law too - Slander and Libel; when a defamatory imputation is
made on a temporary source of communication like verbally defaming someone then it is
classified as Slander; when defamatory imputation is made on a permanent source of
communication like publication in a newspaper or on electronic source, it's called as Libel.
Liabilities of different persons Author: of an article or book, is primarily liable for any
illegality in the work like obscenity, defamation. Contributor: would be liable if the article
contributed by him have legal discrepancy. Editor: is individually liable for any illegal matter
published in his paper, magazine, etc. News - Vendor / Bookseller: Under Civil Law a
Bookseller is not liable for defamatory publication of material sold by him unless he actually
knew it was defamatory, or he could have with due diligence, come to know that it was
defamatory. Under Criminal Law IPC Sec 502, he shall be liable only if he knew about
defamatory property of the material he sold at the time of selling it. Printer: is individually
liable for printing of objectionable matter. Proprietor: can be made liable for any matter
published in his paper, magazine, etc only if there's positive proof that he was responsible for
publishing it or for its selection for publication. Publisher: is liable for anything published in
his paper, magazine, etc which is defamatory. Reporter: is liable like printer, publisher,
editor, if he sends some work which is defamatory in character. Defamation - Recent Law :
Others: . – Information Technology Act, 2000 - Defamation through E-Mails will be

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punishable with liability for compensation. Threat may result in imprisonment up to 2 years.
Case Law-Khushwant Singh v. Maneka Gandhi AIR 2002 Delhi 58 Judges : Devinder Gupta,
Sanjay Kishan Kaul-'It cannot be said that an autobiography must relate to the person
concerned directly. An autobiography deals not only with the individual by whom it is
written but about the people whom he claims to have interfered with. This is a matter
between the author and the people who want to read him. Fetters cannot be put on to what an
author should and should not write. It is the judgment of the author." Para 73 Unit V Bigamy
Section 494 What is bigamy? Bigamy is the act of entering into a marriage with someone,
while still being legally married to another. In other words, it is a condition of having two
spouses at the same time; a man may have two wives or a woman may have two husbands.
Either way when this happens, the second marriage is considered null and void and is
therefore annulled. The person who knowingly enters into the second marriage, that is, the
bigamous marriage is guilty of the crime of bigamy. Most often the act of bigamy takes place
accidentally. For instance, if one thinks that their divorce has been finalized, but in reality it
isn't and they go ahead with their second marriage, then the second marriage is considered the
bigamous marriage. However, there are some cases where it is done intentionally so as to
acquire another's property and wealth. The person accused of this fraudulent scheme is then
prosecuted for bigamy. Sec.494 of IPC says: : Others: . – Whoever, having a
husband or wife living, marries in any case in which such marriage is void by reason of its
taking place during the life of such husband or wife, shall be punished with imprisonment of
either descripttion for a term which may extend to seven years, and shall also be liable to
fine. Exception. —This section does not extend to any person whose marriage with such
husband or wife has been declared void by a Court of competent jurisdiction, nor to any
person who contracts a marriage during the life of a former husband or wife, if such husband
or wife, at the time of the subsequent marriage, shall have been continually absent from such
person for the space of seven years, and shall not have been heard of by such person as being
alive within that time provided the person contracting such subsequent marriage shall, before
such marriage takes place, inform the person with whom such marriage is contracted of the
real state of facts so far as the same are within his or her knowledge. Exception is
understandable in that if a person whose marriage with such husband or wife means the
husband and wife of first marriage is declared void by a competent, this section is not

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applicable to such person. Second exception is, if a person contracts a marriage during life of
a former husband or wife, who at the time of marriage is continually absent from such person
for a period of seven years or not even heard of being alive, and provided person contracting
subsequent marriage should not hide about fact relating to earlier marriage with the person
he/she is marrying in subsequent marriage. To that extent law is very clear. However, the
problem is relating to interpretation of the main section viz., Whoever, having a husband or
wife living, marries in any case in which such marriage is void by reason of its taking place
during the life of such husband or wife, shall be punished with imprisonment of either
descripttion for a term which may extend to seven years, and shall also be liable to fine. Here,
interestingly, the HC in the above quoted judgment had acquitted the offender based on a
finding that, the marriage between Accused and Complainant has not been divorced and
hence, during the subsistence of their marriage if the Accused marries the co-accused, such
marriage itself is void in the eyes of law because the marriage took place during the
subsistence of marital relationship with earlier spouse, and hence the accused has not married
the co-accused at all, and for this reason he is not liable under Sec.494 of IPC. The HC relied
on similar judgments of Calcutta HC and AP HC. In Satyanarayana v. State of A.P. (1962
Mad LJ Cri 138) : (1962) 27 Cri LJ 644 where the learned Judge has observed that :- "This
object of the person committing bigamy and which is sought to be defeated by S. 494, Penal
Code, by declaring it an offence, is not achieved if the second marriage is one which is no
marriage at all in the eye of law, or which is otherwise void, in which case it cannot be said
that there was a valid marriage, and the meaning of the word 'marries' in S. 494 of the Penal
Code is not satisfied. There may be many instances where a second marriage may be no
marriage at all and in which case there could be no question of bigamy, as, for example,
where the parties are so closely related that a marriage between them is void according to
their personal laws, or where the person sought to be taken in second marriage is himself or
herself not eligible to be taken in marriage; and there may be many other instances, and it is
unnecessary to notice all of them in this connection, I am inclined to agree with Mr. Rama
Rao when he contends that the second marriage should be something which could be
regarded as a marriage in the sense in which : Others: . – marriages are understood
and if it is no marriage at all and if it cannot have any validity in law, apart from the fact that
by reason of its being a bigamous marriage it would be declared void it cannot be said that

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the offence of bigamy had been committed." Here what is interesting to note is that in
Sec.494, the word bigamy is not mentioned at all. It only says, Whoever, having a husband or
wife living, marries in any case in which such marriage is void by reason of its taking place
during the life of such husband or wife, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine which
means that anyone having a husband or wife living marries in any case in which such
marriage is void by reason of taking place during the life of such husband or wife, shall be
punished....here the fact that a subsequent marriage is void by virtue of already having a wife
or husband is not an impediment to punish the offender. It only says, such marriage is void by
reason of a person already having a spouse, it does not say - as the marriage is void because
of the reason of a spouse already existing such marriage is not considered marriage at all
hence bigamy has not been committed and hence the accused can be acquitted. The fact that
any marriage being void for any reason is not an impediment to punish the offender
according to the main section. Whether a marriage is valid or not, is a point to be considered
if it is a section relating to "bigamy". That is, the section is presumed to punish those people
involved in "bigamy" and "bigamy" means one who has two wives or two husbands. And so
if one has second husband or second wife, the requirement of law is that the marriage with
second husband or second wife must not be void and valid in the eyes of law. This is entirely
true, if Sec.494 is a bigamy law, but the fact is Sec.494 is not a law of bigamy, it has nothing
to do with whether a marriage is valid or not or void or not. In fact the section itself says
clearly, "marries in any case in which such marriage is void by reason of its taking place
during life of such husband or wi fe" which means that the section itself recognizes such
marriage as a void marriage but the fact that it is void marriage is not a bar to avoid
punishment to the offender. If it is wrongly presumed as a bigamy law, then a judge comes to
the conclusion that a certain marriage is not valid marriage or it is a void marriage hence the
second marriage is deemed to have not taken place, for that reason, Sec.494 is not applicable.
However, nowhere in Sec.494 it is mentioned that it is a bigamy law. If a marriage being a
void marriage does not preclude liability on the accused, then other reasons adduced for a
marriage being void also does not preclude liability on the accused. This also means that law
accords sanction to Court to punish the accused while simultaneously declaring that the
accused is participating in a void marriage and the fact that is is a void marriage is not a bar

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to punish him. Hence the fact of solemnization of subsequent marriage and the relevance of
evidence relating to solemnization of subsequent marriage becomes irrelevant because the
law does not demand that it be a valid marriage in order that the offender be punished. Law
itself says, it is void marriage even then, the accused is punishable. : Others: . –
Adultery The word "adultery' has been derived from the Latin term "adulterium' and is
defined as consensual sexual relationship between a married woman and an individual other
than his/her spouse. Almost all religions throughout the world condemn it and treat it as an
unforgivable offense. However, this may not be reflected in the legal jurisdictions of the
countries but adultery is recognized as a solid ground for divorce in all penal laws. The
Indian penal code also recognizes adultery as a crime and a punishable offence. This law
comes under the criminal law of India and has been placed under chapter XX that deals with
crimes related to marriage. The laws as stated in the Indian penal code are:- Section-497-
Adultery "Whoever has sexual intercourse with a person who is and whom he know s or has
reason to believe to be the wife of another man, without the consent or connivance of that
man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of
adultery, and shall be punished with imprisonment of either description for a term which may
extend to five years, or with fine, or with both. In such case, the wife shall not be punishable
as an abettor." Section-498- Enticing or taking away or detaining with criminal intent a
married woman "Whoever takes or entices any woman who is and whom he knows or has
reasons to believe to be the wife of any other man, from that man, or from any person having
the care of her on behalf of that man, with intent that she may have illicit intercourse with any
person or conceals or detains with that intent any such woman, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both". These laws were drafted in 1860 when India was under British rule and the
condition of Indian woman was pathetic. During those periods, a man could've several wives
and women were socially and economically dependent on men. Women were treated as an
object and considered the property of men. Thus, while drafting the laws it was presumed that
women are hapless victims, not capable of committing such an offence, instead, it must be a
man who will entice her and involve her in an adulterous relationship. But these laws
definitely treat a man and a woman unequally in the institution of marriage. According to
these laws:- 1. Man is always a seducer and the married woman just an innocent and a

95
submissive victim. 2. Wife is no more than a chattel to her husband and a third person had
committed the crime of intruding upon his marital possession by establishing a physical
relationship with his wife. 3. Only the husband of the treacherous woman (or a person who
had care of the married woman) is a distressed party and he is liable to file a complaint
against the third party. 4. There is no provision in the law for a woman to file a complaint
against her adulterous husband. If a married man commits adultery with an unmarried woman
or a widow or with a married woman with the consent of her husband, his wife is not
regarded as an aggrieved party and she is not permitted to make any official grievance against
her husband. Considering the changes our society has witnessed in recent times, the Indian
penal code must revise these laws and upgrade them keeping in mind the equality of men and
women and enabling women to have more freedom and liberty in making their choices. The
payment of a dowry gift, often financial, has a long history in many parts of the world. In
India, the payment of a dowry was prohibited in 1961 under Indian civil law and
subsequently by Sections 304B and 498a of the Indian Penal Code were : Others: . –
enacted to make it easier for the wife to seek redress from potential harassment by the
husband's family. Dowry laws have come under criticism as they have been misused by
women and their families. In India, there are civil laws, criminal laws and special legislative
acts against the tradition of Dowry. Someone accused of taking dowry is therefore subject to
a multiplicity of legal processes. IPC Section 304B This Section of the Indian Penal Code
was inserted by a 1986 amendment. The wording of the law states: Section 304B. Dowry
death (1) Where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within seven years of her marriage and it is
shown that soon before her death she was subjected to cruelty or harassment by her husband
or any relative of her husband for, or in connection with, any demand for dowry, such death
shall be called "dowry death" and such husband or relative shall be deemed to have caused
her death. Explanation:-For the purpose of this sub-section, "dowry" shall have the same
meaning as in section 2 of the Dowry Prohibition Act, 1961 ( 28 of 1961). (2) Whoever
commits dowry death shall be punished with imprisonment for a term which shall not be less
than seven years but which may extend to imprisonment for life. m IPC Section 498A
Section 498A was inserted into the Indian Penal Code in 1983 via an amendment. It reads:
498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being

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the husband or the relative of the husband of a woman, subjects such woman to cruelty shall
be punished with imprisonment for a term which may extend to three years and shall also be
liable to fine. Explanation-For the purpose of this section, "cruelty" means- (a) Any willful
conduct which is of such a nature as is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health whether mental or physical) of the woman;
or : Others: . – (b) Harassment of the woman where such harassment is with a view
to coercing her or any person related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person related to her meet such
demand. 181 This section is non-bailable,non-compoundable (i.e. it cannot be privately
resolved between the parties concerned) and cognizable. Prosecution for a non-
compoundable offense can only be quashed by a High Court of India under its powers under
section 482 of Criminal Procedure Code of India. Usually, cases under 498A are quashed by
mutual agreement when the husband and wife reconcile with each other, or agree to divorce
by mutual consent. After registration of an FIR for a cognizable, non-bailable offense, the
police in India can arrest any and all of the accused named in the complaint. Status of Second
wife under Anti-Dowry Law- I [2008] DMC 279- Bombay High Court- Justice C.L.
Pangarkar —Ranjana Gopalrao Thorat Vs. State of Maharashatra- Hindu Marriage
Act,1955—Section 17—Bigamy—Second wife cannot assume a character as wife--- It is no
marriage in eyes of law—[Pg.280 {Para6}]-- Indian Penal Code—Section 498A—cruelty—
word "relative"—meaning of- "Person who is related to husband either by blood or
marriage—Thus she does not fall within scope of Section 498A-- Indian Penal Code—
Pg.280 {Para6}] "Every Suicide After Marriage cannot be presumed to be Suicide due to
Dowry Demand"- 2011[1] JCC Page No.668- In The High Court of Delhi- Hon'ble Mr.
Justice Shiv Narayan Dhingra- Dated: - 2 December 2010- Rani Vs. State of NCT of
DelhiCriminal Appeal No. 93 of 2004- Indian Penal Code, 1860- Section 304B/ 498A Read
With Section 34- Conviction- allegation of demanding of Rs.50,000/- and scooter were vague
in nature- Whether it was done by husband, mother-in-law or father-in-lawAnswers to all
these questions are absent—Ingredients of Section 304B IPC were totally absent- Unnatural
Death can be called a dowry death only if after making a demand made by accused is not
fulfilled by perpetuation of cruelty upon the victim- The list of dowry show that both parties
belonged to poor strata of society- No evidence, whatsoever was collected by police about the

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real facts- Every suicide after marriage cannot be presumed to be a suicide due to dowry
demand- The tendency of the court should not be that since a young bride has died after
marriage, now somebody must be held culprit and the noose must be made to fit some neck.
Criminal Intimidation-Section 503 of IPC 503. Criminal intimidation Whoever threatens
another with any injury to his person, reputation or property, or to the person or reputation of
any one in whom that person is interested, with intent to cause alarm to that person, or to
cause that person to do any act which he is not : Others: . – legally bound to do, or to
omit to do any act which that person is legally entitled to do, as the means of avoiding the
execution of such threat, commits criminal intimidation. Explanation- A threat to injure the
reputation of any deceased person in whom the person threatened is interested, is within this
section. Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit,
threatens to burn B's house. A is guilty of criminal intimidation. Interpretation of Section
503:As implied by the words 'whoever threatens another', the section requires that a threat, in
order to constitute criminal intimidation, must be communicated by one party to another. This
is also necessary given that the basis of the offence is the effect of the threat on the mind of
the person threatened, which presupposes that "it must be either made to him by the person
threatening or communicated to him in some way." Communication of the threat need not be
direct, and in the presence of the complainant- it is sufficient even if addressed to a third
party, so long as it is intended to reach the victim.In addition, the threat made need not be
targetted at any one person in particular. The offence under this section is made out if the
threat is addressed to a class or group of persons. However, it must be aimed at a "defined
and ascertained body of individuals. With regard to S. 503, it was noted that based on the
interpretation given to the section by the Courts, the essential features of the offence are a
threat of a certain kind, coupled with an intention of either causing the target of the threat to
do, or abstain from doing, something he was not legally bound to do, or had a legal right to
do, or of causing him alarm. In connection with this interpretation, it was noted that although
the Indian law is adequate in most respects, the inclusion of 'alarm' in this section, as opposed
to a section punishing insult, is incongruous and regrettable. This is because alarm can be
caused very often, not by a threat, but simply by abuses and insults 504. Intentional insult
with intent to provoke breach of the peace Whoever intentionally insults, and thereby gives
provocation to any person, intending or knowing it to be likely that such provocation will

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cause him to break the public peace, or to commit any other. offence, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.
Statements conducting to public mischief. 188[(1) Whoever makes, publishes or circulates

any statement, rumour or report,- (a) with intent to cause, or which is likely to cause, any
officer, soldier, 189[sailor or airman] in the Army, 190[Navy or Air Force] 191[of India] to
mutiny or otherwise disregard or fail in his duty as such; or (b) with intent to cause, or which
is likely to cause, fear or alarm to the public, or to any section of the public whereby any
person may be induced to commit an offence against the State or against the public
tranquility; or (c) with intent to incite, or which is likely to incite, any class or community of
persons to commit any offence against any other class or community; shall be punished with
imprisonment which may extend to 192[three years], or with fine, or with both. 193[(2)
Statements creating or promoting enmity, hatred or ill-will between classes Whoever makes,
publishes or circulates any statement or report containing rumour or alarming news with
intent to create or promote, or which is likely to create or promote, on grounds of religion,
race, place of birth, residence, language, caste or community or any other ground whatsoever,
feelings of enmity, hatred or ill-will between different religious, racial, language or regional
groups or castes or communities, shall be punished with imprisonment which may extend to
three years, or with fine, or with both. (1) Offence under sub-section (2) committed in place
of worship, etc- Whoever commits an offence specified in subsection (2) in any place of
worship or in an assembly engaged in the performance of religious worship or religious
ceremonies, shall be punished with imprisonment which may extend to five years and shall
also be liable to fine.] Exception- It does not amount to an offence, within the meaning. of
this section when the person making, publishing or circulating any such statement, rumour or
report, has reasonable grounds for believing that such statement, rumour or report is true and
makes, publishes or circulates it 193[in good faith and] without any such intent as aforesaid.]
506. Punishment for criminal intimidation Whoever commits, the offence of criminal
intimidation shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt,
etc- and if the threat be to cause death or grievous hurt, or to cause the destruction of any
property by fire, or to cause an offence punishable with death or 152[imprisonment for life],

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or with imprisonment for a term which may extend to seven years, or to impute, unchastity to
a woman, shall be punished with imprisonment of either description for a term which may
extend to seven years, or With fine, or with both. 507. Criminal intimidation by an
anonymous communication Whoever commits the offence of criminal intimidation by an
anonymous communication, or having taken precaution to conceal the name or abode of the
person from whom the threat comes, shall be punished with imprisonment of either
description for a term which may extend to two years, in addition to the punishment provided
for the offence by the last preceding section. 508. Act caused by inducing person to believe
that he will be rendered an object of the Divine displeasure Whoever voluntarily causes or
attempts to cause any person to do anything which that person is not legally bound to do, or
to omit to do anything which he is legally entitled to do, by inducing or attempting to induce
that person to believe that he or any person in whom he is interested will become or will be
rendered by some act of the offender an object of Divine displeasure if he does not do the
thing which it is the object of the offender to cause him to do, or if he does the thing which it
is the object of the offender to cause him to omit, shall be punished with imprisonment of
either description for a term which may extend to one year, or with fine, or with both.
Illustrations (a) A sits dharna at Z's door with the intention of causing it to be believed that,
by so sitting, he renders Z an object of Divine displeasure. A has committed the offence
defined in this section. (b) A threatens Z that, unless Z performs a certain act, A will kill one
of A's own children, under such circumstances that the killing would be believed to render Z
an object of Divine displeasure. A has committed the offence defined in this section. 509.
Word, gesture or act intended to insult the modesty of a woman Whoever, intending to insult
the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any
object, intending that such word or sound shall be heard, or that such gesture or object shall
be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with
simple imprisonment for a term which may extend to one year, or with fine, or with both.
510. Misconduct in public by a drunken person Whoever, in a state of intoxication, appears in
any public place, or in any place which it is a trespass in him to enter, and there conducts
himself in such a manner as to cause annoyance to any person, shall be punished with simple
imprisonment for a term which may extend to twenty-four hours, or with fine which may
extend to ten rupees, or with both. What do you mean by attempt to commit murder?

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Whether without causing injury can a person be held guilty of attempt to commit murder? Do
the elements of Sec 511 (attempt to commit an offence) apply to section 307, 308, & 309
(attempt to commit murder, culpable homicide, and Suicide)? Attempt to commit murder
Section 307 of IPC states that whoever does any act with intention or knowledge, and under
such circumstances, that, if by that act he caused death he would be guilty of murder, 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 hurt is caused to any person by such act the offender
shall be either liable to imprisonment for life. This means that if a person intentionally does
something to kill another and if the other person is not killed, he would be liable for attempt
to murder. However, his action must be capable of killing. For example, if a person picks up
a pebble and throws it on someone saying, "I will kill you", it is not attempt to murder
because it is not possible to kill someone with a pebble. But if someone swings a thick lathi
and misses the head of another person, it is attempt to murder. Illustrations - 1. A shoots at Z
with intention to kill him, under such circumstances that, if death ensued. A would be guilty
of murder. A is liable to punishment under this section. 2. A, with the intention of causing the
death of a child of tender years, exposes it is a desert place. A has committed the offence
defined by this section, though the death of the child does not ensue. 3. A, intending to
murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z.
He has committed the offence defined in this section, and if by such firing he wounds Z, he is
liable to the punishment provided by the latter part of the first paragraph of ] this section. 4.
A, intending to murder Z by poison, purchases poison and mixes the same with food which
remains in A's keeping; A has not yet committed the offence defined in this section. A places
the food on Z' s table or delivers it to Z's servant to place it on Z's table. A has committed the
offence defined in this section. Is Injury necessary From the wordings of this section, it is
clear that a person is liable under this section even if no injury is caused to anyone. However,
if hurt is caused, the punishment is more severe. Further, as held in the case of State of Mah.
vs Balram Bama Patil 1983, SC held that for conviction under sec 307, it is not necessary that
a bodily injury capable of causing death must be inflicted but the nature of the injury can
assist in determining the intention of the accused. Thus, this section makes a distinction
between the act of the accused and its result. Whether act committed must be capable of
causing death In Vasudev Gogte's Case 1932, the accused fired two shots at point blank range

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at the Governor of Bombay. However, it failed to produce any result because of defect in
ammunition or intervention of leather wallet and currency. It was held that to support
conviction under this section the accused must have done the act with intention or knowledge
that but for any unforeseen intervention, it would cause death. Thus, he was held guilty.
Penultimate Act not necessary In the case of Om Prakash vs State of Punjab, AIR 1961, SC
held that a person can be held guilty under this section if his intention is to murder and in
pursuance of his intention he does an act towards its commission, even if that act is not the
penultimate act. As per J B K Sharma, the intention of the culprit is the key and it must be
gathered from all the circumstances and not merely from the location, number, and type of
injury. Section 307, 308, 309 and Section 511 Attempts are dealt with in IPC in three ways -
1. Some sections such as 196 and 197, deal with the offence as well an attempt for that
offence. 2. Some sections such as 307 and 308 deal exclusively with an attempt of an offence.
3. The attempts for offenses that are not dealt with in above two are covered by section 511.
Thus, a case of attempt to murder may fall under section 307 as well as section 511. There is
a conflict of opinion among the high courts regarding this matter. In the case of R vs Francis
Cassidy 1867, Bombay HC held that section 511 is wide enough to cover all cases of attempt
including attempt to murder. It further held that for application of section 307, the act might
cause death if it took effect and it must be capable of causing death in normal circumstances.
Otherwise, it cannot lie under 307 even if it has been committed with intention to cause death
and was likely, in the belief of the prisoner, to cause death. Such cases may fall under section
511. However, in the case of Queen vs Nidha 1891, Allahabad HC expressed a contrary view
and held that sec 511 does not apply to attempt to murder. It also held that section 307 is
exhaustive and not narrower than section 511. In the case of Konee 1867, it was held that for
the application of section 307, the act must be capable of causing death and must also be the
penultimate act in commission of the offence, but for section 511, the act may be any act in
the series of act and not necessarily the penultimate act. However, this view has now been
overruled by SC in the case of Om Prakash vs State of Punjab AIR 1967, where the husband
tried to kill his wife by denying her food but the wife escaped. In this case, SC held that for
section 307, it is not necessary that the act be the penultimate act and convicted the husband
under this section. Section 511 AttemptsIn every crime, there is first, intention to commit,
secondly, preparation to commit it, thirdly, attempt to commit it. If the third stage, that is,

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attempt is successful, then the crime is complete. If the attempt fails the crime is not
complete, but law punishes the person attempting the act. Section 511 is a general provision
dealing with attempts to commit offences not made punishable, by other specific sections. It
makes punishable all attempts to commit offences punishable with imprisonment and not
only those punishable with death. An attempt is made punishable, because every attempt,
although it falls short of success, must create alarm, which by itself is an injury, and the
moral guilt of the offender is the same as if he had succeeded. Moral guilt, must be united to
Injury in order to justify punishment. As the injury is not as great as if the act had been
committed, only half the punishment (half of life imprisonment is defined in Section 57 IPC)
is awarded. One of the most difficult questions in Criminal law which creates riddle is, "why
the 'Attempt to commit an offence' is being criminalized?" How the penal law should treat
those acts, which cross the stage of being preparatory to the commission of an offence,
constitute an attempt to commit the offences, but for some reason are not actually completed,
has been the subject of great amount of debate and discussion amongst jurists, judges and
those concerned about criminal law. In other words what are the values that criminalize the
Attempt? The criminal law punishes not only completed crimes but also short of completion
of crimes this category of uncompleted crimes is often called Inchoate crimes. The doctrine
of inchoate crimes is applied specifically to three crimes; Attempt, Conspiracy, and
Abetment. In this regard, incomplete criminal conducts raise a question as to whether it is
proper to punish someone who has harmed no one or to set free determined to commit a
crime. The criminal law answers the question by imposing lesser penalties for inchoate
crimes than for completed crimes that have been attempted, abetted, conspired. ( K.N.C.Pillai
" Genaral Principle of Criminal Law", p. 199). Especially in attempt we have to see that the
actors have done all they had intended to do but have still not realized their criminal
objective. In relation to this we have to take glance of the stages of crime. In this assignment,
I am going to deal with certain aspects which will justify how certain values criminalize the
attempt. For this purpose there is need to discuss on the concept of attempt vis-a-vis elements
of crime from the perspective of Inchoate crimes, and also how the attempt is being defined
by distinguishing it from the preparation. And also to discuss criminalization of attempt with
the of English and Indian cases and through various tests which have been laid down by
courts for distinguishing the values such as intention, preparation, Attempt to commit an

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offence Preparation not Punishable- In general preparation is not punishable, because a

preparation apart from its motive would generally be a harmless act. It would be impossible
in most cases to show that the preparation was directed to a wrongful end, or was done with
an evil motive or intent, and it is not the policy of law to create offences that in most cases it
would be impossible to bring home the culprit, or which might lead to harassment of innocent
persons. Preparation punishable in Exceptional cases:- There are exceptional cases wherein
the contemplated offence may be so grave that it would be of the utmost importance to stop it
at initial stage and punish it at the preparatory stage itself. These are preparations thereto:- 1)
Collecting arms, etc, with the intention of waging war against the Government of India
(section 122, IPC); 2) Committing depredation on territories of power or at peace with the
Government of India (section 126, IPC); 3) Making or selling or being in possession of
instrument for counterfeiting coin or Government stamps (section 223- 235and 257, IPC); 4)
Possession of counterfeit coin, Government Stamp, False weight, or measure (section 242,
243, 259 and 266, IPC); and 5) Making preparation to commit dacoity (section 399, IPC).
Five Tests Laid down by courts:- Thus, it is simple to say that an attempt to commit offence
begins where preparation to commit it ends, but it is difficult to find out where one ends and
the other begins. To solve this riddle various tests have been laid down by the courts. These
are as follows: 0 The Proximity test, 0 The locus poenitentiae test, 0 The impossibility test, 0
The social danger test, and 0 The equivocal test 1) The Proximity Test:- Proximity cause as
explains is the causal factor which is closes, not necessarily in time or space, but in efficacy
to some harmful consequences; in other words, it must be sufficiently near the
accomplishment of the substantive offence. In Sudhir kumar Mukherjee case and Abyanand
Mishra case, the Supreme Court explained the offence of attempt with of the proximity test,
saying that:- "A person commits the offence of 'attempt to commit a particular offence'
whena) he intends to commit that particular offence; and b) he having made preparation with
the intention to commit the offence, does an act towards its commission; such an act need not
to be the penultimate act towards the commission of that offence but must be an act during
the course of committing that offence. 2) The Locus Poenitentiae test:- The Latin expression
speaks about time for repentance. In Locus Poenitentiae the word Locus means, a place,- a
word frequently used to denote the place in or at which some material act or even such as
crime, delict or breach of contract took place. Locus Poenitentiae means the opportunity to

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withdraw from a bargain before it has become fully Constituted and become binding. In
simple language an act will amount to a mere preparation if a man on his own accord, before
the criminal act is carried out, gives it up. It is, thus, possible that he might of its own accord,
or because of the fear of unpleasant consequences that might follow, desists from the
completed attempt. If this happens, he does not go beyond the limits of preparation and does
not enter the arena of attempt. He is, thus at the stage of preparation which can not be
punished. Malkiat singh v. state of Punjab, (1969) 1 SCC 157 explains this second test, in this
case, a truck carrying a paddy was stopped at Samalkha Barrier, a place 32 miles away from
Delhi. Evidently, there was no export of paddy within the meaning of para 2(a) f the Punjab
Paddy (Export Control) Order, 1959, the Court decided that there was no attempt to commit
the offence export. It was merely a preparation. Distinguishing between attempt and
preparation Supreme Court observed that the test of distinction between two is whether the
overt acts already done are such that if the offender changes his mind and does not proceed
further in its progress, the acts already done would be completely harmless. In the present
case, it is quite possible that the appellants may have been warned that they had no licence to
carry the paddy and they may have changed their mind at any place between Samalkha
Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. 3)
Impossibility Test:- In Queen Express v. Mangesh Jivaji, the Bombay high court held that
within the meaning of section 511 of IPC, an attempt is possible, even when the offence
attempted cannot be committed. In Asagarali Pradhaniu v. Emperor (1934) ILR 61, 64, what
the appellant did was not an "act done towards the commission of offence", and therefore, he
could not be convicted. But in a Malaysian case the accused was held liable for an attempt to
cause abortion when the woman was not pregnant. Even the appeal court held the accused
liable because the circumstances in this case seemed to be exactly covered by the illustration
to section 511 IPC. The act itself is impossible of performance and yet it constitutes an
offence of attempt to commit crime. This was precisely the position in English Law before
Houghton v. Smith case. In R v. Shivpuri (1987) 1 AC 1 (HL) it has been held that, if the
mental element has proceeded to commit the act but failed his responsibility for attempt
would be evaluated in the light of facts as he thought them to be (putative facts). 4) In Social
Danger Test:- In order to distinguished and differentiate an act of attempt from an act of
preparation the following factors are contributed. A) The seriousness of the crime attempted;

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B) The apprehension of the social danger involved. In this test the accused's conduct is no
examined only partially but the consequences of the circumstances and the fullness of the
facts are taken into consideration. For example, X administers some pills to a pregnant
woman in order to procure abortion. However, since the pills are innocuous they do not
produce the result. In spite of this X would be held liable for an attempt from the view point
of the social danger test, as his act would cause as alarm to society causing social
repercussions. 5) The Equivocality test:- It is a situation wherein there are two opinions about
the crime here, as decided by the Madras High court, an attempt is an act of such a nature that
it speaks for itself or that it is in itself evidence of the criminal intent with which it is done. A
criminal attempt bears criminal intent upon its face. In other words, if what is done indicates
unequivocally and beyond reasonable doubt the intention to commit the offence, it is an
attempt, or else it is a mere preparation. The reasoning behind the imposition of responsibility
for criminal attempts has been stated to be to control dangerous conduct or person. What are
the values which criminalizes the attempt? Answer to this question lies in the values which
impose the criminal liability to commission of crime. For the commission of crime by person
involves four stages viz, formation of the intention or mental element, preparation for
commission of crime, acting on the basis of preparation, commission of the act resulting in an
event proscribed by law. To criminalize attempts these four stages are involved but the last
stage fails to complete. As stated by Kenny, criminal liability will not begin until the offender
has done some act which not only manifests his mens rea but also goes some way towards
carrying out it. In this regard, to commit offence of attempt mens rea, preparation and actus
reus are necessary values but the actus reus is failed to be completed. This values generally
criminalize the attempt and impose criminal liability on the person who commits the offence
of Attempt. The Case of State of Maharashtra v. Mohd.Yakub (1980) 3 SCC 57. A jeep
driven by the respondent and a truck was stopped at about midnight near a bridge. The
respondents started removing the bundle from the truck. At this time customs officials acting
on a clue reached the spot and accosted the respondents. At the same time, the sound of a
mechanized sea-crafts engine was heard near the side of the creek. Two persons from the
neighborhood were called and in their presence silver ingots were recovered from the
vehicles. Respondent no-1 had a pistol, a knife and some currency notes. On the questioning
it was found that the respondents were not the dealers in silver. The trial court convicted the

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accused u/s 135(1)(a) read with section 135(2) of the Customs Act for attempting to smuggle
out of India silver ingots worth about Rs 8 lakhs in violation of Foreign Exchange Regulation
Act, the Imports and Exports (control) Act and the Custom Act. But the Additional session
judge acquitted them on the ground that the facts proved by the prosecution fell short of
establishing that the accused had 'attempted' to export silver in contravention of the Law. The
High Court upheld the acquittal. The Supreme Court however allowed the appeal and set
aside the acquittal. Two separate but concurring judgments of Justice Sarkaria and Justice
Chinnappa Reddy call for a critical evaluation with a view to appreciating their import for the
law of Attempt in India Justice Sarkaria Observed: - "what constitutes an 'attempt' is a mixed
question of law and fact depending largely upon the circumstances of a particular case.
'Attempt' defies a precise and exact definition. Broadly speaking all crimes which consist of
the commission of affirmative acts is proceeded by some covert or overt conduct which may
be divided into three stages. The first stage exists when the culprit first entertains the idea or
intention to commit an offence. In the second stage, he makes preparation to commit it. The
third stage is reached when the culprit takes deliberate overt act or step to commit the
offence. Such overt act or step in order to be 'criminal' need not be penultimate act t owards
the commission of the offence. It is sufficient if such act or act were deliberately done, and
manifest a clear intention to commit aimed, being reasonable proximate to the consummation
of the offence." Justice Chinnapa Reddy undertook the definitional exercise even more
rigorously. He explored the English decisions and finally concluded: - "In order to constitute
an 'attempt' first, there must be an intention to commit a particular offence, second, some act
must have been done which would necessarily have to be done towards the commission of
offence, and third, such act must reveal with reasonable certainty, in conjunction with the
other facts and circumstances and not necessarily in isolation, an intention, as distinguished
from mere desire or object, to commit that particular offence"
TOPIC WISE IMPORTANT CASE LAWS AND ILLUSTRATIONS
MISTAKE OF FACT

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Mistake of fact is excusable. Mistake of law is inexcusable. Mistake of fact is a bonafide

mistake in good faith along with a belief that you are also justified by law to do something. S.
79 of the IPC says that an act done by a person justified, or who believes under a mistake of
fact that he is justified by the law is no offence.
For instance, in what appears to be a bank robbery, the good Samaritan in good faith with the
belief that he is about to foil an illegal act of bank robbery takes the law in his hands and
stabs a supposed bank robber. Later, it turns out that the victim of the stabbing was a movie
actor shooting for a scene of bank robbery. Here the good Samaritan shall not be held liable
for the stabbing as he acted in good faith under mistake of fact.
STATE OF ORISSA V. RAM BAHADUR THAPA
A master and his servant (Ram Bahadur) were crossing the jungle from the village. There
was a reputation for ghosts in the jungle. Ram Bahadur himself was a believer in ghosts. Ram
Bahadur was carrying his Nepali knife called Khukri. Ram Bahadur saw a strange physical
occurrence known as will-o’-wisp, which was a strange green light flickering at a distance.
There were two women collecting flowers near the will-o’-wisp and Ram Bahadur under a
bonafide honest belief that these women were ghosts murdered one woman and grievously
wounded the other. Ram Bahadur Thapa was acquitted of all charges and was given the
benefit of Section 79 IPC – Mistake of Fact because he acted in good faith under a mistake of
fact.
STATE OF ORISSA V. BHAGABAN BARIK
A and B were neighbours on bad terms. A’s cow would routinely graze on B’s fields, and
they would have verbal arguments. One day, A again entered B’s fields to retrieve his grazing
cow. B was hiding behind a well with a heavy stick. As soon as A entered, B gave a heavy
blow on A’s head due to which A died. Here B was not acting under a mistake of fact as he
had reason to believe it was A again retrieving his grazing cow from B’s property. B was
therefore not acting in good faith. Therefore B was denied benefit of mistake of fact.
INVOLUNTARY INTOXICATION

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If at the time of the commission of the act, by reason of intoxication, the person is incapable
of knowing the nature of the act, because of an intoxicating substance administered to him,
without his knowledge or, against his will, the person shall not be held liable because of S. 85
of the IPC.
BASDEV V. STATE OF P.E.P.S.U.
Basdev was in the army. During holidays he went to a wedding in Punjab. Everybody drank
alcohol voluntarily in the village on the solemn occasion of marriage. During the wedding,
Basdev asked a boy to vacate a chair as he wanted to sit down. On the boy’s refusal to
comply, Basdev in an inebriated condition pulled out his service revolver and shot the boy
dead. Basdev was held guilty of murder since the general exception of involuntary
intoxication u/s. 85 did not apply as Basdev voluntarily drank alcohol. Basdev was thereby
punished of murder u.s/302 r.w. S. 86.
INSANITY
Section 84 of the IPC provides that the act of a person of unsound mind is no offence, if at
the time of doing it by reason of unsoundness of mind he is incapable of knowing the nature
of the act or that which is wrong or contrary to law.
Legal insanity is different from medical insanity. Since, unsoundness must be during the
commission of the offence. And, the offender should not know the nature of the act, or that it
is morally wrong or contrary to law.
QUEEN EMPRESS V. KADER NASYER SHAH
Kader Shah lost his house and property in a fire and received a mental shock. For 2 months
he had sharp pain in his head and could not go to work. One day for no apparent reason, he
strangulated an 8 year old boy who was his neighbour’s son. After the boy had died, Kader
picked up the corpse and hid it in a deserted house. He pleaded unsoundness of mind.
According to the court, Kader was not entitled to the benefit of the general exception u/s. 84
since he knew what he did was wrong as he took due pains to hide the body in a deserted
house so that it is not discovered by anyone soon.

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LAKSHMI V. THE STATE
Lakshmi and Chheddi were brothers. Lakshmi used to take drugs and wine and used to beat
his wife and mother. Unempolyed as he was, he used to ask Chheddi for money. One day
Chheddi refused and scolded and reprimanded his brother for his bad habits. Lakshmi ran
away for one month, and came back one day with a butcher’s knife and murdered Chheddi.
Chheddi’s wife saw Lakshmi hurriedly running away after murdering his brother from their
house. Lakshmi was held liable for murder and not allowed the benefit of S. 84 unsoundness
of mind because
Lakshmi knew what he did was wrong as he ran away immediately after committing the act
to avoid getting caught. Therefore, Lakshmi was not legally insane.
SHRIKANT ANANDRAO BHOSALE V. STATE OF MAHARASHTRA
Shrikant, a paranoid schizophrenic had hereditarily acquired schizophrenia from his

ancestors. He was treated for 2 years in the hospital but the mental condition would recur.
Preceding the crime, Shrikant had been taken to the hospital 25 times within 1 month. On the
day of the incident, Shrikant hit his wife on the head with a grinding stone for no apparent
reason. She died of severe blood loss due to brain hemorrhage. Shrikant did not even try to
escape. He was held entitled to benefit of S. 84 unsoundness of mind as he was unsound at
the time of the incident.
PRIVATE DEFENSE
According to S. 96, things done while exercising the right of private defence are not an
offence.
According to S. 97, everybody has a right of private defence of his own body and property,
and others’ body and property. S. 99 of the IPC puts certain reasonable restrictions on the
right of private defence when this right is exercised against a public servant duly discharging
his lawful duties. S. 99 also casts a duty on the defender not to inflict more harm than
necessary on the assailant meaning thereby that the defender cannot assume the role of the
assailant by exceeding his right of private defence. Also u/s. 99 there is no right of private
defence is there is time to have recourse to public authorities.

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S. 100 of the IPC, provides that subject to restriction under S. 99, the right of private defence
extends even to the causing of death or any harm to the assailant if; there is reasonable
apprehension of death, grievous hurt, rape, unnatural intercourse, kidnapping/abduction,
wrongful confinement or acid attack.
According to S. 101, if the act of the assailant does not fall under various description of
offences under Section 100 then the defender can in no case while exercising the right of
private defence cause the death of the assailant.
According to S. 102, the right of private defence commences on reasonable apprehension of

danger, or arises from attempt or threat even if the act be not yet committed, and it continues
till the apprehension or threat of danger is there.
STATE OF UTTAR PRADESH V. RAM SWARUP
Gangaram lost the auction of Tehbazari of a vegetable market to the victim, Munimji. When
Gangaram visited the market, Munimji told Gangaram, “ You won’t get vegetables from here
anymore” and got him pushed out of the market by his minions.
An hour later, Gangaram returned with his 3 sons to the market. His eldest son Ram Swarup
was armed with a rifle, while Gangaram carried a dagger. Gangaram’s other two sons were
carrying heavy lathis. Gangaram said to Munimji, “ You claim to be the Thekedar of this
market? I will show you how Thekedari is done over here!” and all of them proceeded
towards Munimji.
Munimji tried to run inside to his room but was shot point blank by Ram Swarup. In the
court, Ram Swarup’s plea of right of private defence u/s. 100 “Firstly” was rejected because
Ram was under no reasonable apprehension of death or grievous hurt. He was therefore
convicted of murder.
JAMES MARTIN V. STATE OF KERALA
James Martin had a bread-making factory in Kerala. The opposition party in Kerala had
organized a state bandh to protest against the policies of the ruling government. Political
workers of the opposition part y were going around telling people to abstain from work to

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make the bandh a success. When they arrived at James Martin’s factory they scolded James
Martin’s servant and pushed him and ordered to close down the factory. When James refused,
the goons started pelting stones. James Martin at the direction of his father whipped out his
rifle and shot dead Basheer, a political worker. James Martin was held not liable as he was
acting within his right of private defence u/s. 101 and 103 of the Indian Penal Code as he was
under a reasonable
apprehension of grievous hurt and mischief by fire to his property as the bandh activists were
carrying explosives and grenades.
GROUP LIABILITY
Sections 34 and 149 are the relevant provisions of group liability in the Indian Penal Code.
Section 34 defines common intention, whereas 149 defines the liability of a group acting in
the prosecution of a common object. Common intention means the same intention, whereas
common object means similar intention towards achieving an objective. Under the concept of
group liability, all the members of the group are equally liable even if the act be committed
by one person alone.
MAHBUB SHAH V. EMPEROR
X and Y had a dispute and later on an altercation. X called out to his sons, Mahbub and Z
who were inside the house, and who brought guns along with them. Z fired the fatal shot to
Y, whereas Mahbub Shah fired the shot which had only injured Y’s leg. The issue was
whether Mahbub is liable for murder as Z fired the fatal shot and had absconded never to be
found. U/s. 34 of the IPC, the provision requires a criminal act, atleast 2 persons and
evidence of common intention to prosecute Mahbub u/s. 34/302. Here as no evidence was
given of a premeditated concert between Z and Mahbub, only Z could be held liable and not
Mahbub for the murder. Accordingly, Mahbub was convicted of grievous hurt, but acquitted
of the charge of murder since he did not possess the common intention to kill Y.
ATTEMPT
Attempt is the third or the penultimate stage of a criminal offence. The stages of criminal
offences are 1) intention, 2) preparation, 3) Attempt, and 4) Forbidden Consequence

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prohibited by law. Attempt is generally punishable under Section 511 of the IPC. Whereas
specific sections such as 307, 308 and 309 specifically cast the liability of attempt to commit
murder, attempt to commit culpable homicide and attempt to commit suicide.
ASGARALI PRADHANIA V. EMPEROR
Asgarali was a married man with a wife and two children. He was having an affair with a
neighbor woman who was a divorcee. Asgarali promised marriage to her and she agreed to
have sexual relations with him. After a few months she became pregnant with Asgarali;s
child. Asgarali became increasingly nervous and requested the woman to abort the child, but
she refused and asked him to come good on his promise of marriage. Asgarali went to
medical quack
and purchased Copper Sulphate tablets for aborting the child. The next day he asked her to
ingest the Copper Sulphate tablets but she refused. Opon which Asgarali held her throat and
made her ingest a few tablets. The issue arose whether Asgarali had attempted to cause
miscarriage u/s. 312/511 of the IPC. The Doctors informed the court that Copper Sulphate
cannot cause an abortion. Attempt takes place when the accused does everything from his
owbn side, yet fails due to some extraneous reason in the commission of an offence. Here, as
Copper Sulphate is harmless, the accused cannot be held liable for attempting to commit
miscarriage as such miscarriage was impossible. The accused was therefore acquitted.
QUEEN V. PATERSON
H and W were husband and wife respectively. H wanted to marry a second time with X.
When the wife, W found about the wedding cards of her husband H’s, marriage with X, she
prosecuted her husband of attempt to commit bigamy i.e. u/s. 494/511. According to the
court, the act of getting wedding cards published was only preparation and not attempt.
Preparation for marriage is not punishable. The husband was acquitted.
ABHAYANAND MISHRA V. STATE OF BIHAR
Abhayanand Mishra wanted to take admission in Patna University. However he did not have
the requisite Class XIIth qualifications. Abhayanand deposited forged marksheets to Patna
University upon which Admit Card for an entrance test was dispatched to him. However, the

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University clerk discovered his fraud and informed the police. Abhayanand was prosecuted
under attempt to cheat i.e. u/s. 420/511 of the IPC. The court decided that Abhayanand had
indeed attempted cheating and it was not merely a preparation for cheating since he had done
everything from his own side to cheat the University. He had thus crossed over from
preparation to attempt. He was held guilty of attempt to cheat.
OM PRAKASH V. STATE OF PUNJAB
Bimla married om Prakash in the year 1951. They used to fight a lot and Bimla left her
husband. However, on assurance of Om’s parents she returned back to her marital home.
When she returned to her marital home, the husband acted very sweetly for a few days but
after some time became viciously abusive towards her. He locked her up in the bathroom for
days without giving her any food for weeks.
One day Bimla found the door unlocked and escaped and went to a nearby hospital. The
Doctor wrote down that she was so emaciated that her cheeks were hollow, she had no
strength or muscles left, her bones were protruding and she was looking like a dead body.
The issue arose was whether the husband had attempted to murder his wife.
According to the court, the accused Om Prakash did everything in his own capacity to bring
about Bimla’s death by starving her, and she did not die because of an extraneous
circumstance, wherein she escaped death by sheer luck. S. 307 Illustration (d) provides that
attempt to murder need not be the penultimate act. Therefore, Om Prakash was held liable for
attempt to murder u/s. 307 of the IPC.
CULPABLE HOMICIDE & MURDER
Homicide is that act of killing a human being. The distinction between Culpable Homicide
and Murder is such that Culpable Homicide is the genus whereas Murder is the specie. The
relation can be expressed in the following sentence, “all Murder is Culpable Homicide, but
all Culpable Homicide is not Murder.”
According to S. 299, whoever causes death by doing an act with the intention of causing
death, or by causing an intentional bodily injury likely to cause death, or with the knowledge
that he is likely by the act to cause death commits culpable homicide.

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Culpable Homicide means the blame for the death of a human being is cast upon the one
responsible for the death.
Murder is an aggravated form of Culpable Homicide.
According to S. 300 all culpable homicide is murder, except in cases of special exceptions
when:
1. The act is done with the intention of causing death, or
 The act is done with the intention to cause bodily injury which the offender knows is
likely to cause death, or
 The act is done with the intention of causing bodily injury as is sufficient in the
ordinary course of nature to cause death, or
 With the knowledge that the act is so imminently dangerous, it must in all probability
will cause death, or bodily injury likely to cause death, without any excuse for
incurring the risk of causing death.
PALANI GOUNDAN CASE
Palani Goundan had an argument with his wife during which he did the following acts:
1. Hit her on the head with a stick due to which she fainted. He had no intention to kill
her. But he presumed she had died since she became unresponsive. (No Mens rea +
No Actus reus)
2. After thinking his wife has died (although she had only fainted), Palani, with the
purpose of hiding his culpability hung her from the fan to show her eventual death as
suicide. (No Mens Rea + Actus Reus)
The decision of the court was that Palani is not liable for Murder. He had never had the
intention to kill his wife. Actus reus was there, but mens rea was absent. Therefore as
intention to kill was missing, and knowledge of whether she was dead was absent – Palani
was acquitted of Murder but was convicted for grievous hurt (S. 320/325) and Destruction of
Evidence (S. 201).

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IN RE THAVAMANI
Two gardeners while working noticed the landlady wearing a gold necklace. They planned to
kill her immediately and steal her chain. The incident comprised of two acts:
1. Hit woman on the head whereby she fainted (Mens Rea + No Actus Reus)
 Thinking she is dead, they with a purpose of hiding her body threw her in the well,
whereby she drowned and eventually died. (No Mens Rea + Actus Reus)
They were convicted of murder because the 1st act supplied the Mens Rea, while the 2nd act
supplied the actus reus. Moreover, the two acts were so closely connected that mens rea and
actus reus are said to present concomitantly. Thus, they were convicted for murder.
EMPEROR CASE
Mushnooru called Appalla, whom he owed some money to his relative’s house. Mushnooru’s
intention was to murder the creditor – Appalla by poisoning him. Mushnooru prepared a
Halwa with a cocktail of poisonous arsenic and mercury. It was served on the table, but
Appalla did not like it after tasting it and threw it away. After a few minutes the relative’s
daughter and daughter’s friend ate the halwa and died. On the other hand, Appalla became
very ill but survived.
The court held Mushnooru liable for murder on the basis of S. 301 i.e. transfer of intention
even though Mushnooru had no intention to kill the two little girls, however his intention to
kill Appalla was transferred to the girls and he was convicted of murder.
RAWALPENTA VENKALU CASE
Five people wanted to kill Moinuddin, so they set fire to his hut in which he was fast asleep.
To make sure that Moinuddin dies, they also carefully bolted the door from outside thus
locking him up. Moinuddin’s three employees tried to save him, but the Five people
overpowered them and did not let them unbolt the door.

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The court convicted the accused as all of them had the common intention to kill the victim as
they locked the door from outside and actively prevented people from unbolting it. There
were thus convicted of murder.
KAPUR SINGH CASE
Bachan Singh caused a severe injury to Pritam Singh which caused the amputation of his leg.
From that day forth, Pritam Singh’s father Kapur Singh held a grudge against Bachan Singh
and Bachan’s father – the eventual victim. One day, Kapur Singh saw Bachan’s father and
alongwith his associate who held the victim, inflicted as many as 18 injuries on the arms and
legs of the victim with a gandasa (butcher’s knife) with the intention to cause permanent
amputation of both his arms and legs. Unfortunately, the victim died.
As there was no intention to kill, Kapur Singh was acquitted of murder under s. 301 clause
(1). Kapur Singh was also acquitted of 300 clause (3) as the bodily injuries were not
sufficient to cause death since the accused was very careful about inflicting injuries solely for
the purpose of amputation.
Kapur Singh was convicted of Culpable Homicide under s. 299 (b) due to Explanation 2 of S.
299 which provides that when death is caused by bodily injury, the person who causes the
bodily injury is deemed to have cause the death within the meaning of this section. Thus, the
accused Kapur Singh was punished under S. 304 Part I.
STATE OF KARNATAKA V. VEDANAYAGAM
The accused gave a knife blow on the chest of the victim who died instantly. The accused
said he did not intend to kill the victim. However, the Medico Legal Certificate said that the
blow was sufficient in the ordinary course of nature to bring about the death.
The accused was convicted of murder under section 300 (3) as he intentionally committed a
bodily injury + the bodily injury inflicted was sufficient in the ordinary course of nature to
cause death.
EMPEROR V. MT. DHIRAJIA

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Dhirajia’s husband used to beat her up regularly. The wife wanted to go to her parent’s house
for sometime, however the husband would not let her. At night, when husband woke up, the
wife and his 6 month old baby were not there. He immediately realized that his wife must
have gone to her parent’s house. He ran and caught up with his wife. The wife on seeing the
fast approaching husband panicked as she was scared of him and jumped into the well with
their baby. The baby died, whereas Dhirajia survived.
The court acquitted Dhirajia of murder as under 300 (4), Dhirajia had a justifiable excuse to
jump in the well to escape her abusive husband. She was therefore entitled to undertake the
risk of jumping in the well to escape from her abusive husband. However, Dhirajia was
convicted of culpable homicide under 299 (c) since she had knowledge that she was about to
cause the death of her baby and because 299 (c) does not provide for any excuse from
liability unlike 300 (4).
SPECIAL EXCEPTIONS TO MURDER
The law is based on the principle of reason. Criminal law holds only reasonable and sane men
responsible for their crimes. The law takes a lenient view of spur of the moment murders and
punshes them only as culpable homicide. The special exceptions to murder reduce the
liability of one responsible for murder to that only of culpable homicide.
According to Exception 1 of S. 300, culpable homicide is not murder when due to the
deprivation of the power of self control and under grave and sudden provocation, a person
causes death of the person who gives the provocation, or causes the death of any other person
by mistake or ccident.
K.M. NANAVATI CASE
Nanavati was a naval officer who had a wife called Sylvia and 3 children. Nanavati used to
be away for 6 months in a year on the ship. In his absence, the wife started an affair with a
businessman called Prem Ahuja. When nanavati came home, the wife informed him of her
love for Prem Ahuja and that she wanted to marry him. Nanavati was very upset but he
calmed down and took his wife and children to a movie theatre. On the pretext of some work,
he took their leave and went to the cantonment stores and got a revolver + 6 bullets issued in

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his name. From thereon he went to Prem Ahuja’s house where he abused Prem Ahuja,“ You
filthy ****, when I die will you marry my wife and look after my children!”?
To this, Prem replied, “why should I marry everyone I sleep with?”. At this moment Nanavati
took out his pistol and shot Prem Ahuja dead. According to the court, Nanavati was not
entitled to the benefit of grave and sudden provocation since he had about 3 hours to cool
down his anger therefore it was not sudden anymore as he had regained his composure as
evinced by his act of taking his family for a movie.
BABU LAL V. STATE
Babu Lal saw his wife sleeping with her lover. Babulal’s wife promised to never to meet her
lover again. On this promise, they changed city and moved to a new house. One day, when
Babu suddenly came home early, he saw that his wife and her lover were having lunch in his
new house. Enraged, he murdered both his wife and her paramour.
The accused was given the benefit of special exception 1 to S. 300 as he acted without self
control under grave and sudden provocation, which was not voluntarily provoked by him.
Thus he was only liable for culpable homicide not amounting to murder.
HOMICIDE BY RASH/NEGLIGENT ACT
CHERUBIN GREGORY V. STATE OF BIHAR
The wall of Smt. Madilen’s toilet had falled down due to incessant rains in Bihar. Madilen
and her family started using the accused’s toilet. The accused repeatedly warned Madilen to
stay away from his property to no avail. The accused erected a live un-insulated copper wire
on the path to his property and switched it on. There was no warning that the wire was live
except a lit bulb hanging at some distance. Madilen again came to Cherubin’s property and
used the toilet. However, on leaving she touched the copper wire and died by electrocution.
The court convicted Cherubin of causing death by rash/negligent act as he took the risk of a
reckless act by erecting an un-insulated copper wire on his property when he knew that the
property was being visited by his neighbours frequently. He was convicted u/s. 304A.
DOWRY DEATH

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S. 304B of the IPC punishes causing dowry death. Dowry death is defined as causing death
of a woman by burns, bodily injury or any unnatural cause, whether it be homicide or suicide,
within
7 years of her marriage and it is shown that before her death she was subjected to cruelty by
the husband, or a relative of the husband, or harassment, which was in connection with a
demand for dowry.
SHANTI (SMT.) V. STATE OF HARYANA
Kailash got married to a man in the Indian army. Soon after her marriage, Smt. Kailash was
subjected to demands for dowry from her mother-in-law and sister-in-law. When Kaliash’s
father came to pick up his daughter for taking her to a family function, the mother-in-law
rebuked Kailash’s father and prevented him from taking his daughter along with him as he
had not fulfilled their wishes for dowry. Next day, the father came to know that his daughter
Kailash has expired and has been cremated.
The mother-in-law and sister-in-law were convicted of dowry death u/s. 304B of the IPC as
the death of Kialiash was unnatural, and caused within 7 years of marriage, moreover, she
was subjected to cruelty by her mother-in-law and sister-in-law in connection to a demand for
dowry. The accused were also convicted of S. 201 i.e. destruction of evidence as they hid the
death of Kailash from her parents and hurriedly cremated her with a view to prevent an
autopsy by the police.
HURT AND GRIEVOUS HURT
HURT
S. 319 of the Indian Penal Code defines simple hurt. Hurt is defined as causing of bodily
pain, disease, or infirmity to any person. S. 321 defines voluntarily causing hurt as an act
with the intention of causing hurt to any person with the knowledge that he is likely to hurt to
a person and causes hurt is said to voluntarily cause hurt. S. 323 defines the punishment for
causing hurt.
GRIEVOUS HURT

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S. 320 of the Indian Penal Code defines grievous hurt. Grievous hurt is defined as the
following kinds of descriptions of hurt: emasculation, permanent privation of the sight of
either eye, permanent privation of the hearing of either ear, privation of any member or joint,
destruction or permanent impairing of the powers of any member or joint, permanent
disfiguration of the head or the face, fracture or dislocation of a bone or tooth, and any hurt
that 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. S. 322 defines voluntarily
causing grievous hurt. S. 325 defines the punishment for voluntarily causing grievous hurt,
whereas S. 326 defines the punishment for causing grievous hurt by dangerous weapons or
means.
RAMBARAN MAHTON V. THE STATE
There was a dispute between two brothers. The younger brother came on Rambaran’s
property and started abusing him. When the younger brother started abusing their mother,
Rambaran lost his cool and pushed his brother to the ground, sat down on his stomach and
punched and slapped him many times. The younger brother fainted from the beating. Later,
Rambaran tried waking his brother up by offering him water but the brother did not respond
and was declared brought dead to the hospital.
The court convicted Rambaran u/s. 325 i.e. punishment for causing grievous hurt as 5 ribs of
the victim were found fractured and the spleen was ruptured, which falls under the
description of grievous hurt u/s. 320. The court also applied S. 322 i.e. voluntarily causing
grievous hurt as Rambaran had the knowledge that he is likely to cause grievous hurt by his
punches and slaps.
The court however took a lenient view of the matter as Rambaran had tended to his brother
once he cooled down and felt genuinely sorry for the death of his brother.
KIDNAPPING AND ABDUCTION
S. 359 of the Indian Penal Code defines Kidnapping as of two kinds: Kidnapping from India,
and Kidnapping from Lawful Guardianship. S. 360 defines Kidnapping from India as

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conveyance of any person beyond the limits of India without the consent of that person, or of
some person legally authorized to consent on behalf of that person.
S. 361 defines Kidnapping from Lawful Guardianship as enticing any minor under sixteen
years of age if a male, or under eighteen years of age if a female, or any person of unsound
mind, out of the keeping of the lawful guardian of such minor or person of unsound mind,
without the consent of such guardian. The words lawful guardian in section 361 includes any
person lawfully entrusted with the care of custody of such minor or other person.
S. VARDARAJAN V. STATE OF MADRAS
17 year old Savitri became friendly with her neighbor Vardarajan. They used to talk to each
other from the balcony. Savitri’s sister Rama noticed them talking and asked Savitri as to
why she was speaking with Vardarajan, whereupon Savitri declared to her sister that, “One
day I would marry Vardarajan.” At night, Rama complained about Savitri and Vardarajan to
her father. When questioned by the father as to Vardarajan, Savitri started crying but kept
quiet. The same night, Savitri’s father drove her to their relatives’ house and kept her there
intending that she stay away from Vardarajan for 1-2 months.
Next day early morning, Savitri left her relatives’ house and telephoned Vardarajan asking
him to come to pick her up. Vardarajan came in a car and Savitri sat next to him and
suggested that they should get married immediately. Vardarajan took her to the marriage
registrar where they got married in the presence of two witnesses. They left for their
honeymoon and upon return to Madras, Vardarajan was arrested by the police u/s. 361 IPC
for kidnapping Savitri.
According to the court, Vardarajan was not guilty. This is because Savitri left her relatives’
house on her own. She was not enticed by Vardarajan at all. Savitri harboured intentions of
marrying him without any enticement from his side. There was no evidence that the accused
enticed Savitri by promising marriage to her. Vardarajan merely complied with Savitri’s
wishes of marriage and this therefore cannot be said to be kidnapping as there was no
enticement from Vardarajan.
THAKORLAL D. VADGAMA V. STATE OF GUJARAT

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Mohini, a 15 year old girl used to live with her mother and father. On Mohini’s birthday,
Thakorlal, a wealthy industrialist gave her an extremely expensive Parker pen. However,
Mohini’s mother insisted that she return it, and the same was returned. One day, when all of
them were on a trip to Mt. Abu, Mohini’s mother saw Thakorlal sleeping with his arm around
Mohini which alarmed her. From that day, Mohini’s mother forbade her daughter to meet
Thakorlal. However, Mohini would run away from school and go to meet Thakorlal at his
bungalow where they would engage in sexual intercourse. One day, Mohini’s mother found
out that her daughter was missing school and sent over the police to Thakorlal’s house where
he was arrested and Mohini was recovered from his house.
The court convicted Thakorlal of S.361/366 i.e. Kidnapping from lawful guardianship and
Kidnapping for illicit intercourse. The court reasoned that Thakorlal had enticed Mohini by
giving her expensive gifts and promising her a luxurious life at his house. Therefore, he was
RAPE, SEXUAL AND UNNATURAL OFFENCES
Rape is defined in S. 375 of the IPC. Rape can be committed only by a man against a woman.
A woman can however be liable as an abettor to rape. The definition of rape has undergone
changes after the 2013 amendment act. Now the meaning of rape is not merely confined to
penile-vaginal penetration. After 2013, rape includes penile-vaginal, penile-oral, penile-anal
and digital penetration of a woman. This has significantly enlarged the scope of rape.
PASSIVE SUBMISSION AND CONSENT
RAO HARNARAIN SINGH SHEOJI SINGH V. STATE
Kalu and Surti were husband and wife living as servant tenants of Rao Harnarain, an
advocate. One day, the DSP and Public Prosecutors assembled at Rao Harnarain’s house for a
party. Rao Harnarain went over to Kalu and told him to surrender his wife for their sexual
pleasures for the night. Kalu protested but gave in once Rao Harnarain threatened to throw
them out of their tenancy and employment. When Kalu communicated the immoral request to
his wife Surti, she vehemently protested but was coaxed into submitting. Through the night,
Surti’s shrieks and cries were heard by Rao Harnarain’s neighbours. She died and her body
was hurriedly cremated in the morning. The accused were prosecuted for rape. The defense

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suggested that Surti had consented to sexual intercourse and therefore the accused were not
liable for rape.
The Court however held the accused liable. The court distinguished consent from passive
submission. According to the court, Surti passively submitted but never gave her free
consent. “A mere act of less resignation in the face of inevitable compulsion, quiescence,
non- resistance, or passive giving in, when volitional faculty is either clouded by fear or
vitiated by
duress, cannot be deemed as free consent under law.” “Consent means voluntary
participation, exercise of intelligence, based on knowledge, moral quality and assent.
Submission of body under fear or terror is not consent.”
GANGRAPE (376D)
BHUPINDER SHARMA V. STATE OF HIMACHAL PRADESH
A woman went to Solan to purchase medicines for her ailing father. But she could not find
the medical store. Two accused were passing by in an autorickshaw and offered to drop her to
the medical store like any normal passenger. Instead of taking her to the medical store, the
accused took her to a deserted house in the jungle where three more accused were present.
Out of the five accused, four had raped her. Before Bhupinder could rape her, she escaped
from the house and found a police vehicle on the highway. The police nabbed all the accused.
Later, Bhupinder proclaimed his innocence for the crime since he never committed rape on
her.
The court convicted Bhupinder under S. 376D Gangrape as it is unnecessary that he should
have raped her when he was complicit in the act of rape committed by others. Bhupinder
alongwith the other accused was acting in furtherance of common intention to rape the
victim, therefore the mere fact that he himself did not physically rape did not amount to
innocence for the act. Bhupinder was thus convicted for gangrape alongwith the other
accused.
SCOPE OF “SEXUAL INTERCOURSE” PRIOR TO 2013 AMENDMENT

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SAKSHI V. UNION OF INDIA
A writ petition under Article 32 of the Constitution was filed by the NGO Sakshi for a
declaratory relief to widen the scope of sexual intercourse in S. 375 prior to the 2013
amendment. Prior to 2013 amendment, the meaning of sexual intercourse was confined to
only
penile-vaginal intercourse. As a consequence of such restricted interpretation of “sexual

intercourse”, other sexual acts such as penile-oral, penile-anal and digital penetrations were
covered in offences of a much lesser degree. Acts involving penile-oral and penile-anal
penetration was covered under S. 377. Whereas, digital penetration was covered under S. 354
i.e. outraging the modesty of woman and not rape.
The court however refused to enlarge the scope of sexual intercourse mentioned in the pre-
2013 amendment S. 375 because it feared creating confusion in the country. It thus left it to
the legislature to amend the definition of rape.
The legislature finally expanded the meaning of sexual intercourse to include various forms
of penetrative sexual acts as rape under S. 375 by enacting the Criminal Laws (Amendment)
Act, 2013.
WHEN CONSENT IS GIVEN UNDER ERRONEOUS BELIEF OF MARRIAGE (S.

375 FOURTHLY)
BHUPINDER SINGH V. UT OF CHANDIGARH
Manjit Kaur and Bhupinder used to work together in the office. Bhupinder proposed marriage
to her. When Manjit said she wanted to take the permission of Bhupinder’s parents,
Bhupinder insisted that they get married first as permission can be obtained later also. They
got married. 2 years later, when Manjit and Bhupinder were visiting Rose Garden, Manjit
was informed by someone that Bhupinder was previously married and has another wife and
son living. When Manjit visited the address of Bhupinder’s parents, she was met by
Bhupinder, the previous wife and the son, and Manjit was thrown out from the house after a
heated argument. She filed a rape complaint under S. 375 Fourthly.

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The court convicted Bhupinder Singh of rape under S. 375 Fourthly as she had consented to
sexual intercourse only on the belief that she was lawfully married to Bhupinder whereas
Bhupinder knew that his marriage with Manjit was void due to it being his second marriage.
Therefore, Bhupinder Singh was convicted of rape under S. 375 Fourthly.
THEFT AND EXTORTION
THEFT
S. 378 of the Indian Penal Code defines theft as an act where whoever intending to take
dishonestly any moveable property out of the possession of any person without that person’s
consent, moves that property in order to such taking. But a thing so long as it is attached to
the earth, is not the subject of theft; but it becomes capable of being the subject of theft as
soon as it is severed from the earth.
A moving effected by the same act which affects the severance may be a theft. A person is
said to cause a thing to move by removing an obstacle which prevented it from moving or by
separating it from any other thing, as well as by actually moving it. A person, who by any
means causes an animal to move, is said to move that animal, and to move everything which,
in consequence of the motion so caused, is moved by that animal.
The consent mentioned in the definition of theft may be express or implied, and may be given
either by the person in possession, or by any person having for the purpose authority either
express or implied.
PYARELAL BHARGAVA V. STATE OF RAJASTHAN
Pyarelal Bhargava was a Superintendent in a government department. At the instance of his

friend, Pyarelal removed a file from the office of the Chief Engineer. He gave this file to his
friend who changed an affidavit and the next day, Pyarelal again placed the file back in the
Chief Engineer’s office so that the loss may not be discovered.
The court convicted Pyarelal for theft under Ss. 378/379 because his intention was dishonest
(S.

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24) and committed with the intention of causing wrongful loss (S. 23) since his act of
removing the file from the Chief Engineer’s office deprived the possession of the Chief
Engineer. Even removing temporarily amounts to theft since loss of possession is enough to
constitute the offence of theft.
Note: Read Illustration 378 (b) and (l).
SEKAR V. ARUMUGHAM
Sekar took a loan of 4 lacs from Bank of Madura and purchased a lorry under hypothecation.
Clause 14 of the deed of hypothecation gave the bank the right to seize the lorry in the non-
payment of the loan or default in payment of loan therein. After some time, Sekar defaulted
on the loan. Arumugham, the manager of the bank, ordered the seizure of the lorry and the
said lorry was seized. Aggrieved by the seizure, Sekar filed a case of theft against the bank
manager.
The court decided that the bank manager was not liable for theft as he did not possess a
dishonest intention to cause wrongful loss to Sekar. Clause 14 of the hypothecation deed
signed between Sekar and the bank itself gave a right to the bank to seize the lorry in the
event of non-payment of the loan amount. The bank therefore rightly seized the lorry and no
act of theft was committed.
EXTORTION
S. 383 of the Indian Penal Code defines extortion as an act whereby 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 property or valuable security, or anything
signed or sealed which may be converted into a valuable security.
STATE OF KARNATAKA V. BASAVEGOWDA
Basavegowda married Bhagyamma. 10 days after their marriage, Basavegowda suggested

that they attend his friend’s wedding and insisted that she must wear all her jewels. Instead of
the wedding, however, he took her to the forest and threatened to kill her unless she removes

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all her jewels and hands it to him. Basavegowda was handed Rs. 11,000 worth of jewels
which he
wrapped in his handkerchief. The wife scolded Basavegowda threatening police action and
arrest. Hearing this enraged the husband and he started hitting her and even broke her rib.
When he picked up a stone to hit her she screamed thus alerting some people nearby. The
husband ran away with the jewels.
The court convicted Basavegowda of extortion since he intentionally put his wife in fear and
dishonestly caused his wife to deliver her jewels to him. He thus committed extortion.
JADUNANDAN SINGH V. EMPEROR
Narain and Sheonandan, the victims were coming from their fields when they were attacked
by the accused, Alakh and Jadunandan. Jadunandan hit Narain with a spear without warning.
After Narain fell, Alakh and Jadunandan hit Sheonandan. Alakh then held Narain and then
Sheonandan whereas Jadunandan forcibly took their thumb impressions on 4 blank sheets
of paper. The issue arose whether extortion had been committed.
The court decided that extortion was not committed by distinguishing between “giving” and
“taking”. According to the court, S. 383 requires the act of voluntarily giving of thumb
impression and not involuntarily forcible taking of the thumb impressions by the accused.
Only voluntary giving of thumb impressions falls within the purview of S. 383. Therefore,
the court acquitted the accused of the charge of extortion but convicted them of causing hurt
and assault under Ss. 324 and 352.
CRIMINAL MISAPPROPRIATION AND CRIMINAL BREACH OF TRUST
CRIMINAL MISAPPROPRIATION
S. 403 of the Indian Penal Code defines Criminal Misappropriation as dishonestly mis-
appropriating or converting to his own use any movable property. Criminal Misappropriation
can be committed only with respect to movable property and not immovable property.
Criminal Breach of Trust is defined in S. 405 of the Indian Penal Code as the act committed
when any person is in any manner entrusted with property, or with any dominion over

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property, and he dishonestly misappropriates or converts to his own use that property, or
dishonestly uses or disposes of that property in violation of any direction of law prescribing
the mode in which such trust is to be discharged, or of any legal contract, express or implied,
which he has made touching the discharge of such trust, or willfully suffers any other person
so to do.
AMBIKA PRASAD SINGH V. THE STATE
Ambika, an accountant in the Indian Railways fudged accounts relating to the ticket
collection. He appropriated Rs. 7, 185.15 from the sum with which he was entrusted. The
court decided that Ambika was guilty of committing criminal breach of trust u/s. 408 as he
was a servant of the Indian Railways and thus liable to greater punishment.
COMMON CAUSE – A REGD. SOCIETY V. UOI
Captain Satish Sharma, the Union Petroleum minister in Prime Minster’s cabinet was
entrusted with the allotment of 15 petrol pumps by following a defined procedure of official
tender. Capt. Satish Sharma, on the other hand, allotted the petrol pumps to relatives of his
personal staff, sons of ministers and members of oil boards. Capt. Satish Sharma was in a
position of trustee w.r.t. the public property and he betrayed the trust of the people by
distributing the petrol pumps
CHEATING
Cheating is defined in S. 415 as whoever, by deceiving any person, fraudulently or

dishonestly induces the person so deceived to deliver any property to any person, or to
consent that any person shall retain any property, or intentionally induces the person so
deceived to do or omit to do anything which he would not do or omit if he were not so
deceived, and which act or omission causes or is likely to cause damage or harm to that
person in body, mind, reputation or property. A dishonest concealment of facts is a deception
within the meaning of this section and amounts to cheating, if property is caused to be
delivered or certain steps are undertaken by the promise at the desire of the promisor which
are harmful to promisee’s mind, body, reputation or property.
AKHIL KISHORE RAM V. EMPEROR

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Akhil Kishore employed 4 clerks and created 18 aliases. He started advertising incantations
and charms in the newspapers by using these false identities. The target of his advertisements
was gullible men and women who want to be successful without putting in the hard work and
effort. Akhil advertised the “Gupt Mantra ad” which was very catchy and went like this, “ No
need to spend lacs when success can be had without any effort or hardship
at all.” “Buy this Gupt Mantra and after saying it 7 times you shall win in life, marriage,
job, litigation etc. Send amount by postage Rs. 270, reward if proved fallible Rs. 100.”
25,000 clients bought the the gupt mantra. Some customers filed complaint of cheating
against Akhil since the gupt mantra instructions involved undergoing a lot of hardship such
as ,”keep staring at the moon without blinking for 15 minutes to use this mantra.” Since no
such direction was mentioned in the advertisement, and feeling cheated that had they known
that they would
have to perform an impossible task of staring at the moon for 15 minutes they would never
have purchased the gupt mantra. The court convicted Akhil for cheating since he created 18
aliases and advertised dishonestly to deceive others of their money by well planned modus
operandi.
SRI BHAGWAN S.S.V.V. MAHARAJ V. STATE OF ANDHRA PRADESH (AP)
Sri Bhagwan was a godman whose devotee turned into his bête noire. The devotee,
Vekatkrishna had attended Sri Bhagwan’s lectures where he represented himself as an
occultist possessing divine healing powers through his touch; and that he particularly
specialized in curing chronic diseases. Venkat approached Sri Bhagwan with his 15 year old
daughter who was dumb by birth. Sri Bhagwan promised to cure her on payment of Rs. 1 lacs
by the end of the year 1994.
However, the child was not cured by 1994. Sri Bhagwan promised to cure the child by
August 1995 by performing a Yagna on payment of Rs. 1,000. Yagya was perfomed but the
chuild was not cured. Vekat started harbouring doubts about the powers of Sri Bhagwan. He
read in newspapers how Sri Bhawan had earned crores of rupees by defrauding gullible
people. Realizing this, Venkat filed an F.I.R under cheating at the police station.

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The court convicted Sri Bhagwan on the principle that when a person declares that he
possesses healing powers, and if on the basis of such promise money is paid to him without
any subsequent cure. S. 420 is committed by such person who makes the representations as
he dishonestly deceives others with the object to deprive them of their property by making
false promises.
DEFAMATION
Defamation is defined in S. 499. Defamation is the act where by words either spoken or
intended to be read, or by signs or by visible representations, the person makes or publishes
any imputation concerning any person intending to harm, or knowing or having reason to
believe that such imputation will harm, the reputation of such person.
C. L. SAGAR V. MAYAWATI
It was alleged that C. L. Sagar met Mayawati in pursuance of securing an election ticket of
Bahujan Samaj Party. Mayawati is alleged to have said,” okay, pay Rs. 60,000 to my P.A.
and I will give you the ticket. C. L. Sagar is alleged to have paid Rs. 50,000 and that he
refused to pay Rs. 10,000 further unless his ticket was handed over to him which is alleged to
have annoyed Mayawati. Mayawati in a political rally is alleged to have vented her anger by
defaming C. L. Sagar by saying, “Badi lambi muchay hain, bade imaandaar bantey ho,
baiman kahin ka.” C. L. Sagar filed a case of defamation against Mayawati.
According to the court, Mayawati’s statement did not amount to defamation as the
complainant did not show to the court that he is the only one in Bahujan Samaj Party with an
unusually long moustache. Thus, the proceedings under defamation were quashed by the high
court.
GAUTAM SAHU V. STATE OF ORISSA
Gautam Sahu developed intimacy with the victim and married her. After a few days, he asked
her to bring Rs. 20,000 from her father as dowry. When she refused, Gautam manhandled her
and threw her out of the house. A panchayat was convened wherein the village elders
requested Gautam to allow the victim to live with him as she was his wife. Gautam not only
refused to take her back but publicly insulted her by calling her unchaste and ugly in front of

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the entire village. The victim registered an F.I.R. with the police alleging defamation. The
court declared that prima facie the offence of defamation was made out and refused quashing
of F.I.R.
DISTINCTION BETWEEN PREPARATION AND ATTEMPT
There is a very fine line between preparation and attempt. While, IPC does not define either
of them, it is very important to distinguish between them because attempt is a crime but
preparation is not. Both, Preparation and Attempt are physical manifestations of the criminal
intention. But attempt goes a lot father than preparation towards the actual happening of
crime. While in Preparation, there is a possibility that the person may abandon his plan, but
attempt leaves no room for that. For example, keeping a pistol in pocket and looking for the
enemy to kill is a preparation because one can abandon the plan anytime, but taking out the
piston and pulling the trigger is attempt because it leaves no room for turning back.. Thus, in
general, Preparation
involves collecting material, resources, and planning for committing an act while attempt
signifies a direct movement towards commission after the preparations are made.
Ordinarily, to constitute an attempt the following elements are needed –
1. mens rea to commit the crime
2. ant act which constitutes the actus reus of a criminal attempt
3. failure in accomplishment
In the case of R vs Cheesman 1862, Lord Blackburn identified a key difference between
the two. He says that if the actual transaction has commenced which would have ended in the
crime if not interrupted, there is clearly an attempt to commit the crime.
However, this is not the only criteria for determining an attempt. The following are four tests
that come in handy in distinguishing between the two –
LAST STEP TEST OR PROXIMITY RULE

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As per this test, anything short of last step is preparation and not attempt. This is because as
long as there is a step remaining for completion of the crime, the person can abandon it. For
example, A obtains poison to kill B and mixes it with food that B is supposed to eat. But he
has not yet given the food to B. Thus, it is still preparation. As soon as he keeps the food on
the table from where B eats everyday, the last step is done and it becomes an attempt.
In the case of R vs Riyasat Ali 1881, the accused gave orders to print forms that looked like
they were from Bengal Coal Company. He proofread the samples two times and gave orders
for correction as well so that they would appear exactly as forms of the said company. At this
time he was arrested for attempt to make false document under section
464. However, it was held that it was not an attempt because the name of the company and
the seal were not put on the forms and until that was done, the forgery would not be
complete.
In the case of Abhayanand Mishra vs State of Bihar AIR 1961, A applied to the Patna
University for MA exam and he supplied documents proving that he was a graduate and was
working as a headmaster of a school. Later on it was found that the documents were
fake. It was held that it was an attempt to cheat because he had done everything towards
achieving his goal.
INDISPENSABLE ELEMENT TEST OR THEORY OF IMPOSSIBILITY
As per this test, all of indispensable elements must be present to equal attempt. For example,
a person has the gun to kill but he forgot the bullets. In this case, it would not be an attempt.
Further, he goes to place where victim should be but is not then he is not guilty of attempt
under this test. In other words, if there is something a person needs to commit the crime but it
is not present, then there is not an attempt.
This test has generated a lot of controversy ever since it was laid in the case of Queen vs
Collins, where it was held that a pickpocket was not guilty of attempt even when he put his
hand into the pocket of someone with an intention to steal but did not find anything.
Similarly, in the case of R vs Mc Pherson 1857, the accused was held not guilty of
attempting to break into a building and steal goods because the goods were not there.

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However, these cases were overruled in R vs King 1892, where the accused was convicted
for attempting to steal from the hand bag of a woman although there was nothing in the bag.
Illustration (b) of section 511 is based on this decision.
BUT FOR INTERRUPTION TEST
If the action proves that the person would have gone through with the plan if not for the
interruption such as arrest, then it is an attempt. For example, a person points a gun at another
and is about to pull the trigger. He is overpowered and was stopped from pulling the trigger.
This shows that if he had not been interrupted, he would have committed the crime and he is
thus guilty of attempt even though the last step of the crime has not be performed.
UNEQUIVOCALITY TEST OR ON THE JOB THEORY
If a person does something that shows his commitment to follow through and commit the
crime then it is an attempt. For example, in the case of State of Mah. vs Mohd. Yakub 1980,
three persons were found with a truck loaded with silver near the sea dock. Further, the sound
of engine of a mechanized boat was heard from a nearby creek. They were convicted of
attempting to smuggle silver. J Sarkaria observed that what constitutes at attempt is a mixed
question of law and the facts of a case. Attempt is done when the
culprit takes deliberate and overt steps that show an unequivocal intention to commit the
offence even if the step is not the penultimate one.
ATTEMPT TO COMMIT MURDER
Section 307 of IPC states that whoever does any act with intention or knowledge, and under
such circumstances, that, if by that act he caused death he would be guilty of murder, 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 hurt is caused to any person by such act the offender
shall be either liable to imprisonment for life.
This means that if a person intentionally does something to kill another and if the other
person is not killed, he would be liable for attempt to murder. However, his action must be
capable of killing. For example, if a person picks up a pebble and throws it on someone

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saying, “I will kill you”, it is not attempt to murder because it is not possible to kill someone
with a pebble. But if someone swings a thick lathi and misses the head of another person, it is
attempt to murder.
Illustrations –
1. A shoots at Z with intention to kill him, under such circumstances that, if death
ensued. A would be guilty of murder. A is liable to punishment under this section.
2. A, with the intention of causing the death of a child of tender years, exposes it is a
desert place. A has committed the offence defined by this section, though the death of
the child does not ensue.
3. A, intending to murder Z, buys a gun and loads it. A has not yet committed the
offence. A fires the gun at Z. He has committed the offence defined in this section,
and if by such firing he wounds Z, he is liable to the punishment provided by the
latter part of the first paragraph of ] this section.
4. A, intending to murder Z by poison, purchases poison and mixes the same with food
which remains in A’s keeping; A has not yet committed the offence defined in this
section. A places the food on Z’ s table or delivers it to Z’s servant to place it on Z’s
table. A has committed the offence defined in this section.
IS INJURY NECESSARY
From the wordings of this section, it is clear that a person is liable under this section even if
no injury is caused to anyone. However, if hurt is caused, the punishment is more severe.
Further, as held in the case of State of Mah. vs Balram Bama Patil 1983, SC held that for
conviction under sec 307, it is not necessary that a bodily injury capable of causing death
must be inflicted but the nature of the injury can assist in determining the intention of the
accused. Thus, this section makes a distinction between the act of the accused and its result.
WHETHER ACT COMMITTED MUST BE CAPABLE OF CAUSING DEATH
In Vasudev Gogte’s Case 1932, the accused fired two shots at point blank range at the
Governor of Bombay. However, it failed to produce any result because of defect in

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ammunition or intervention of leather wallet and currency. It was held that to support
conviction under this section the accused must have done the act with intention or knowledge
that but for any unforeseen intervention, it would cause death. Thus, he was held guilty.
PENULTIMATE ACT NOT NECESSARY
In the case of Om Prakash vs State of Punjab, AIR 1961, SC held that a person can be held
guilty under this section if his intention is to murder and in pursuance of his intention he does
an act towards its commission, even if that act is not the penultimate act. As per J B K
Sharma, the intention of the culprit is the key and it must be gathered from all the
circumstances and not merely from the location, number, and type of injury.
SECTION 307, 308, 309 AND SECTION 511
Attempts are dealt with in IPC in three ways –
1. Some sections such as 196 and 197, deal with the offence as well an attempt for that
offence.
2. Some sections such as 307 and 308 deal exclusively with an attempt of an offence.
3. The attempts for offenses that are not dealt with in above two are covered by section
511.
Thus, a case of attempt to murder may fall under section 307 as well as section 511. There is
a conflict of opinion among the high courts regarding this matter. In the case of R vs Francis
Cassidy 1867, Bombay HC held that section 511 is wide enough to cover all cases of
attempt including attempt to murder. It further held that for application of section 307, the act
might cause death if it took effect and it must be capable of causing death in normal
circumstances. Otherwise, it cannot lie under 307 even if it has been committed with
intention to cause death and was likely, in the belief of the prisoner, to cause death. Such
cases may fall under section 511. However, in the case of Queen vs Nidha 1891, Allahabad
HC expressed a contrary view and held that sec 511 does not apply to attempt to murder. It
also held that section 307 is exhaustive and not narrower than section 511.

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In the case of Konee 1867, it was held that for the application of section 307, the act must be
capable of causing death and must also be the penultimate act in commission of the offence,
but for section 511, the act may be any act in the series of act and not necessarily the
penultimate act. However, this view has now been overruled by SC in the case of Om
Prakash vs State of Punjab AIR 1967, where the husband tried to kill his wife by denying
her food but the wife escaped. In this case, SC held that for section 307, it is not necessary
that the act be the penultimate act and convicted the husband under this section.
MISTAKE OF FACT
Sometimes an offence is committed by a person inadvertently. He neither intends to commit

an offence nor does he know that his act is criminal. He may be totally ignorant of the
existence of relevant facts. The knowledge of relevant facts is what really makes an act evil
or good. Thus, if a person is not aware of the facts and acts to the best of his judgment, his act
cannot be called
evil. Under such circumstances he may take the plea that his acts were done under the
misconception of the facts. Such a mistake of fact is acknowledged as a valid defence in
section 76 and 79 of IPC.
Section 76 – Act done by a person bound or by mistake of fact believes to be bound by law –
Nothing is an offence which is done by a person who is or who by reason of a mistake of fact
and not by a reason of a mistake of law, in good faith believes himself to be bound by law to
do it.
ILLUSTRATION –
A, a soldier fires on a mob upon orders from his superior, in conformity with the commands
of the law. He has committed no offence.
A, an officer of court of justice, upon ordered by that court to arrest Y, after due inquiry,
believing Z to be Y, arrests Z. He has committed no offence.
Section 79 – Act done by a person justified or by a mistake of fact believing himself justified
by law – Nothing is an offence which is done by the a person who is justified by law , or who

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by reason of a mistake of fact and not by reason of a mistake of law in good faith believes
himself to be justified by law, in doing it.
ILLUSTRATION –
A sees Z doing what appears to be murder. A, in the exercise to the best of his judgment,
exerted in good faith of the power which the law gives to all persons of apprehending
murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has
committed no offence though it may turn out that Z was acting in self defence.
DIFFERENCE BETWEEN SEC 76 AND 79
The only difference between sec 76 and 79 is that in section 76, a person believes that he is
bound by to do a certain act while in 79, he believes that he is justified by law to do a certain
act. For example, a policeman believing that a person is his senior officer and upon that
person’s orders fires on a mob. Here, he is bound by law to obey his senior officer’s orders.
But if the
policeman believes that a person is a thief, he is not bound by law to arrest the person, though
he is justfied by law if he arrests the person.
To be eligible in either of the sections, the following conditions must be satisfied –
1. it is a mistake of fact and not a mistake of law that is excusable.
2. the act must be done in good faith.
MEANING OF MISTAKE –
A mistake means a factual error. It could be because of wrong information, i.e. ignorance or
wrong conclusion. For example, an ambulance driver taking a very sick patient to a hospital
may be driving faster than the speed limit in order to reach the hospital as soon as possible
but upon reaching the hospital, it comes to his knowledge that the patient had died long time
back and there was no need to drive fast. However, since he was ignorant of the fact,
breaking the speed limit is excusable for him. A person sees someone remove a bulb from a
public pole. He thinks the person is a thief and catches him and takes him to the police only

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to learn that the person was replacing the fused bulb. Here, he did the act in good faith but
based on wrong conclusion so his act is excusable.
To be excusable, the mistake must be of a fact and not of law. A mistake of fact means an
error regarding the material facts of the situation, while a mistake of law means an error in
understanding or ignorance of the law. A person who kills someone cannot take the defence
of mistake saying he didn’t know that killing is a crime because this is a mistake of law and
not of fact. But, as in Waryam Singh vs Emperor AIR 1926, he can take a defence of
mistake saying he believed that the killed person was a ghost because that would be a mistake
of a fact.
R vs Prince 1875, is an important case where a person was convicted of abducting a girl
under 18 yrs of age. The law made taking a woman under 18 from her guardian without her
guardian’s permission a crime. In this case, the person had no intention to abduct her. She
had gone with the person with consent and the person had no reason to believe that the girl
was under 18. Further, the girl looked older than 18. However, it was held that by taking a
girl without her guardian’s permission, he was taking a risk and should be responsible for it
because the law made it a crime
even if it was done without mens rea. In this case, five rules were laid down which are
guidelines whenever a question of a mistake of fact or mistake of law arises in England and
elsewhere –
1. When an act is in itself plainly criminal and is more severely punishable if certain
circumstances coexist, ignorance of the existence is no answer to a charge for the
aggravated offence.
2. When an act is prima facie innocent and proper unless certain circumstances co-exist,
the ignorance of such circumstances is an answer to the charge.
3. The state of the mind of the defendants must amount to absolute ignorance of the
existence of the circumstance which alters the character of the act or to a belief in its
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4. When an act in itself is wrong, and under certain circumstances, criminal, a person
who does the wrongful act cannot set up as a defence that he was ignorant of the facts
which would turn the wrong into a crime.
5. When a statute makes it penal to do an act under certain circumstances, it is a question

upon the wording and object of the statute whether responsibility of ascertaining that
the circumstances exist is thrown upon the person who does the act or not. In the
former case, his knowledge is immaterial.
The above guidelines were brought in Indian law in the case of The King vs Tustipada
Mandal AIR 1951 by Orissa HC.
In R vs Tolson 1889, a woman’s husband was believed to be dead since the ship he was
traveling in had sunk. After some years, when the husband did not turn up, she married
another person.
However, her husband came back and since 7 years had not elapsed since his disappearance,
which are required to legally presume a person dead, she was charged with bigamy. It was
held that disappearance for 7 yrs is only one way to reach a belief that a person is dead. If the
woman, and as the evidence showed, other people in town truly believed that the husband
died in a shipwreck, this was a mistake of fact and so she was acquitted.
However, in R vs White and R vs Stock 1921, a person was convicted of bigamy. Here, the
husband with limited literacy asked his lawyers about his divorce, who replied that they will
send the papers in a couple of days. The husband construed as the divorce was done and on
that belief
he married another woman. It was held that it was a mistake of law.
GOOD FAITH
Another condition that must be satisfied to take a defence of mistake of fact is that the act
must be done in good faith. Section 52 says that nothing is said to be done or believed in
good faith which is done or believed without due care and attention. Thus, if one shoots an

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arrow in the dark without ascertaining no one is there, he cannot be excused because he failed
to exercise due care.
If a person of average prudence in that situation can ascertain the facts with average
deligence, a person taking the defence of mistake of those facts cannot be said to have taken
due care and thus, is not excusable.
ACCIDENT
Accidents happen despite of nobody wanting them. There is no intention on the part of
anybody to cause accident and so a loss caused due to an accident should not be considered a
crime. This is acknowledged in Section 80 of IPC, which states thus –
Section 80 – Nothing is an offence which is done by accident or misfortune, and without any
criminal intention or knowledge in doing of a lawful act, in a lawful manner by lawful means
with proper care and caution.
Illustration – A works with a hatchet; the head flys off and kills a person standing nearby.
Here, if there was no want of proper caution on the part of A, his act is excusable and is not
an offence.
From section 80, it can be seen that there are four essential conditions when a person can take
the defence of an accident –
1. The act is done by accident or misfortune – Stephen in his digest of criminal law
explains that an effect is said to be accidental if the act that caused it was not done
with an intention to cause it and if the occurance of this effect due to that act is not so
probable that a person of
average prudence could take precautions against it. The effect comes as a surprise to the doer
of average prudence. SInce he does not expect it to happen, he is unable to take any
precaution against it.
For example, a firecraker worker working with Gun powder knows that it can cause
explosion and must take precaution against it. If it causes an explosion and kills a third

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person, he cannot claim defence of this section because the outcome was expected even
though not intended.
However, if a car explodes killing a person, it is an accident because a person on average

prudence does not expect a car to explode and so he cannot be expected to take precautions
against it.
 There must not be a criminal intent or knowledge in the doer of the act – To
claim defence under this section, the act causing the accident must not be done with a
bad intention or bad motive. For example, A prepares a dish for B and puts poison in
it so as to kill B. However, C comes and eats the dish and dies. The death of C was
indeed an accident because it was not expected by A, but the act that caused the
accident was done with a criminal intention.
In Tunda vs Rex AIR 1950, two friends, who were fond of wrestling, were wresting and one
got thrown away on a stone and died. This was held to be an accident and since it was not
done without any criminal intention, the defendant was acquitted.
 The act must be lawful, and done in a lawful manner, and by lawful means – An
accident that happens while doing an unlawful act is no defence. Not only that, but the
act must also be done in a lawful manner and by lawful means. For example,
requesting rent payment from a renter is a lawful act but threatening him with a gun to
pay rent is not lawful manner and if there is an accident due to the gun and if the
renter gets hurt or killed, defence under this section cannot be claimed.
In Jogeshshwar vs Emperor, where the accused was fighting with a man and the man’s
pregnant wife intervened. The accused aimed at the woman but accidently hit the baby who
was killed. He was not allowed protection under this section because he was not doing a
lawful act in a lawful manner by lawful means.
 Proper precautions must be taken while doing the act – The act that causes the
harm must
have been done with proper care and precautions. An accident caused due to negligence is
not excusable. A person must take precautions for any effects that any person with average

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intelligence would anticipate. For example, a owner of a borewell must fence the hole to
prevent children falling into it because any person with average prudence can anticipate that a
child could fall into an open borewell.
In Bhupendra Singh Chudasama vs State of Gujarat 1998, the appellant, an armed

constable of SRPF shot at his immediate supervisor while the latter was inspecting the dam
site in dusk hours. The appellant took the plea that it was dark at that time and he saw
someone moving near the dam with fire. He thought that there was a miscreant. He shouted
to stop the person but upon getting no response he fired the shot. However, it was proven that
the shot was fired from a close range and it was held that he did not take enough precaution
before firing the shot and was convicted.
ACCIDENT IN A ACT DONE WITH CONSENT
Section 87 extends the scope of accident to cases where an act was done with the consent of
the victim. It says thus –
Section 87 – Nothing which is not intended to cause death or grevious hurt and which is not
known to the doer to be likely to cause death or grevious hurt is an offence by reason of any
harm that it may cause or be intended by the doer to cause to any person above eighteen years
of age, who has given consent whether express or implied, to suffer that harm; or by reason
of any harm which it may be known by the doer to be likely to cause to any such person who
has consented to take the risk of that harm.
Illustration – A and Z agree to fence with each other for amusement. This agreement implies
the consent by each to suffer any harm which in the course of such fencing may be caused
without foul play; and if A, while playing fairly, hurts Z, A committs no offence.
This is based on the premise that every body is the best judge for himself. If a person
knowingly undertakes a task that is likely to cause certain damage, then he cannot hold
anybody responsible for suffering that damage. Thus, a person watching another litting up
firecrackers agrees to take
the risk of getting burned and must not hold anybody responsible if he gets burned. In
Nageshwar vs Emperor, a person asked the accused to try dao on his hand believing that his

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hand was dao proof due to a charm. He got hurt and bled to death. However, the accused was
acquitted because he was protected under this section. The deceased consented to the risk of
trying dao on his hand.
ACT OF CHILD, INSANITY, INTOXICATION
As mentioned before, to hold a person legally responsible for a crime, in general, evil
intention must be proved. A person who is not mentally capable of distinguishing between
good and bad or of understanding the implications of an action cannot be said to have an evil
intention and thus should not be punished. Such incapacity may arise due to age, mental
illness, or intoxication. Let us look at each of these one by one –
ACT OF CHILD
It is assumed that a child does not have an evil mind and he does not do things with evil
intention. He cannot even fully understand the implications of the act that he is doing. Thus,
he completely lacks mens rea and should not be punished. IPC contains for following
exemptions for a child –
Section 82 – Nothing is an offence which is done by a child under seven years of age.
Section 83 – Nothing is an offence which is done by a child above seven years of age and
below twelve years of age who has not attained the sufficient maturity of understanding to
judge the nature and consequences of this conduct on that occasion.
Through these sections, IPC acknowledges the fact that children under seven years of age
cannot have suffient maturity to commit a crime and is completely excused. In Indian law, a
child below seven years of age is called Doli Incapax. In Queen vs Lukhini Agradanini
1874 , it was held that merely the proof of age of the child would be a conclusive proof of
innocence and would
ipso facto be an answer to the charge against him.
However, a child above seven but below twelve may or may not have sufficient maturity to
commit a crime and whether he is sufficiently mature to understand the nature and

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consequences of the act needs to be determined from the facts of the case. To claim a defence
under section 83, a child must
1. be above seven and below twelve years of age.
1. not have attained sufficient maturity to understand the nature and

consequences of his act.
2. be immature at the time of commission of the act.
Section 83 provides qualified immunity because presumes that a child above seven and below
twelve has sufficient maturity to commit a crime and the burdon is on the defence to prove
that he did not possess sufficient . Thus, in Hiralal vs State of Bihar 1977, the boy who
participated in a concerted action and used a sharp weapon for a murderous attack, was held
guilty in the absence of any evidence leading to boy’s feeble understanding of his actions.
In English law, a boy below 14 years is deemed incapable of raping a woman but no such
protection is offered in India and in Emperor vs Paras Ram Dubey, a boy of 12 years of age
was convicted of raping a girl.
INSANITY
A person may be rendered incapable of judging an action as right or wrong due to several
kinds of deficienty in mental faculty or a disease of mind. Such people are called insane.
Their position is same as childern below the age of discretion. From time to time several
approches have been adopted to understand insanity and to see whether a person was insane
or not at the time of his act.
WILD BEAST TEST
This test was evolved in R vs Arnold 1724. Here, the accused was tried for wounding and
attempting to kill Lord Onslow. By evidence, it was clear that the person was mentally
deranged. J Tracy laid the test as follows, “If he was under the visitation of God and could
not distinguish

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between good and evil and did not know what he did, though he committed the greatest
offence, yet he could not be guilty of any offence against any law whatsoever.”
INSANE DELUSION TEST
This test was evolved in Hadfield’s Case in 1800, where Hadfield was charged with high
treason and attempting the assasination of Kind George III. He was acquitted on the ground
of insane delusion. Here, the counsel pleaded that insanity was to be determined by the fact
of fixed insane delusions with which the accused was suffering and which were the direct
cause of his crime. He pointed out that there are people who are deprived of their
understanding, either permanently or temporarily, and suffer under delusions of alarming
description which overpowers the faculties of their victims.
M’ NAGHTEN’S RULES
In this case, Danial M’Naghten was tried for the murder of a private secretary of the then
prime minister of England. He was acquitted on the ground of insanity. This caused a lot of
uproar and the case was sent to bench of fifteen judges who were called upon to lay down the
law regarding criminal responsibility in case of lunacy. Some questions were posed to the
judges which they had to answer. These questions and answers are knows as M’Naghten’s
Rules which form the basis of the modern law on insanity. The following principals were
evolved in this case –
1. Regardless of the fact that the accused was under insane delusion, he is punishable
according to the nature of the crime if, at the time of the act, he knew that he was
acting contrary to law.
2. Every man must be presumed to be sane until contrary is proven. That is, to establish
defence on the ground of insanity, it must be clearly proven that the person suffered
from a condition due to which he was not able to understand the nature of the act or
did not know what he was doing was wrong.
3. If the accused was conscious that the act was one that he ought not to do and if that
act was contrary to law, he was punishable.

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4. If the accused suffers with partial delusion, he must be considered in the same
situation as to the responsibility, as if the facts with respect to which the delusion
exists were real.
For example, if the accused, under delusion that a person is about to kill him and attacks and
kills the person in self defence, he will be exempted from punishment. But if the accused,
under delusion that a person has attacked his reputation, and kills the person due to revenge,
he will be punishable.
 A medical witness who has not seen the accused previous to the trial should not be
asked his opinion whether on evidence he thinks that the accused was insane.
The Indian Law recognizes the first two principals and incorporates them in section 84.
Section 84 – Nothing is an offence which is done by a person who, at the time of doing it, by
the reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is
doing what is either wrong or contrary to law.
Thus, a person claiming immunity under this section must prove the existence of the
following conditions –
1. He was of unsound mind – Unsound Mind is not defined in IPC. As per Stephen, it
is equivalent to insanity, which is a state of mind where the functions of feeling,
knowing, emotion, and willing are performed in abnormal manner. The term
Unsoundness of mind is quite wide and includes all varieties of want of capacity
whether temporary or permanent, or because of illness or birth defect. However, mere
unsoundness of mind is not a sufficient ground. It must be accompanied with the rest
of the conditions.
2. Such incapacity must exist at the time of the act – A person may become
temporarily out of mind or insane for example due to a bout of epilepsy or some other
disease. However, such condition must exist at the time of the act. In S K Nair vs
State of Punjab 1997, the accused was charged for murder of one and greivious
assault on other two. He pleaded insanity. However, it was held that the words spoken

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by the accused at the time of the act clearly show that he understood what he was
doing and that it was wrong. Thus, he was held guilty.
INTOXICATION
Several times intoxication due to drinking alcohol or taking other substances cause the person
to lose the judgment of right or wrong. In early law, however, this was no defence for
criminal responsibility. In recent times this has become a valid defence but only if the
intoxication was involuntary. Section 85 says thus –
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.
This means that to claim immunity under this section, the accused mus prove the existence of
following conditions –
1. He was intoxicated.
2. Because of intoxication, he was rendered incapable of knowing the nature of the act
or that what is was doing was wrong or contrary to law.
3. The thing that intoxicated him was administered to him without his knowledge or
against his will.
Director of Public Prosecution vs Beard 1920 was an important case on this point. In this
case, a 13 yr old girl was passing by a mill area in the evening. A watchman who was drunk
saw her and attempted to rape her. She resisted and so he put a hand on her mouth to prevent
her from
screaming thereby killing her unintentionally. House of lords convicted him for murder and
the following principles were laid down –
1. If the accused was so drunk that he was incapable of forming the intent required he
could not be convicted of a crime for which only intent was required to be proved.

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2. Insanity whether produced by drunkenness or otherwise is a defence to the crime

charged. The difference between being drunk and diseases to which drunkenness
leads is another. The former is no excuse but the later is a valid defence if it causes
insanity.
3. The evidence of drunkenness falling short of proving incapacity in the accused to

form the intent necessary to commit a crime and merely establishing that his mind
was affected by the drink so that he more readily gave way to violent passion does not
rebut the presumption that a man intends the natural consequences of the act.
SELF DEFENCE
It is said that the law of self defence is not written but is born with us. We do not learn it or
acquire it some how but it is in our nature to defend and protect ourselves from any kind of
harm. When one is attacked by robbers, one cannot wait for law to protect oneself. Bentham
has said that fear of law can never restrain bad men as much as the fear of individual
resistance and if you take away this right then you become accomplice of all bad men.
IPC incorporates this principle in section 96, which says,
Section 96 – Nothing is an offence which is done in the exercise of the right of private
defence.
It makes the acts, which are otherwise criminal, justifiable if they are done while exercising
the right of private defence. Normally, it is the accused who takes the plea of self defence but
the court is also bound take cognizance of the fact that the accused aced in self defence if
such evidence exists.
In Section 97 through 106, IPC defines the characteristics and scope of private defence in
various
situations.
Section 97 – Every person has a right, subject to the restrictions contained in section 99, to
defend –

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first – his own body or body of any other person against any offence affecting the human
body. second – the property, whether movable or immovable, of himself or of any other
person,
against any act which is an offence falling under the definition of theft, robbery, mischief, or
criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal
trespass.
This allows a person to defend his or anybody else’s body or property from being unlawfully
harmed. Under English law, the right to defend the person and property against unlawful
aggression was limited to the person himself or kindred relations or to those having
community of interest e.g. parent and child, husband and wife, landlord and tenant, etc.
However, this section allows this right to defend an unrelated person’s body or property as
well. Thus, it is apt to call it as right to private defence instead of right to self defence.
It is important to note that the right exists only against an act that is an offence. There is no
right to defend against something that is not an offence. For example, a policeman has the
right to handcuff a person on his belief that the person is a thief and so his act of handcuffing
is not an offence and thus the person does not have any right under this section.
Similarly, an aggressor does not have this right. An aggressor himself is doing an offence and
even if the person being aggressed upon gets the better of the aggressor in the exercise of his
right to self defence, the aggressor cannot claim the right of self defence. As held by SC
in Mannu vs State of UP AIR 1979, when the deceased was waylaid and attacked by the
accused with dangerous weapons the question of self defence by the accused did not arise.
The right to private defence of the body exists against any offence towards human body, the
right to private defence of the property exists only against an act that is either theft, robbery,
mischief, or criminal trespass or is an attempt to do the same.
In Ram Rattan vs State of UP 1977, SC observed that a true owner has every right to
dispossess or throw out a trespasser while the trespasses is in the act or process of trespassing
and has not accomplished his possession, but this right is not available to the true owner if the
trespasser has been successful in accomplishing the possession to the knowledge of the true

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owner. In such circumstances the law requires that the true owner should dispossess the
trespasser by taking resource to the remedies available under the law.
RESTRICTIONS ON RIGHT TO PRIVATE DEFENCE
As with any right, the right to private defence is not an absolute right and is neither unlimited.
It is limited by the following restrictions imposed by section 99 –
Section 99 – There is no right of private defence against an act which does not reasonably
cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a
public servant acting in good faith under colour of his office though that act may not be
strictly justifiable by law.
There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction
of a public servant acting in good faith under colour of his office though that direction may
not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities.
Extent to which the right may be exercised – The right of private defence in no case extends
to the inflicting of more harm that it is necessary to inflict for the purpose of defence.
Explanation 1 – A person is not deprived of his right of private defence against an act done
or attempted to be done by a public servant, as such, unless he knows or has reason to believe
that the person doing the act is such public servant.
Explanation 2 – A person is not deprived of his right of private defence against an act done
or attempted to be done by the direction of a public servant, unless he knows or has reason to
believe that the person doing the act is acting by such direction, or unless such person states
the authority under which he acts or if he has authority in writing, unless he produces such
authority if demanded.

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Upon carefully examining this section, we can see that the right to private defence is not
available in the following conditions –
1. when an act is done by a public servant or upon his direction and the act
1. is done under colour of his office – an off duty police officer does not have the
right to search a house and right to private defence is available against him. A
police officer carrying out a search without a written authority, cannot be said
to be acting under colour of his office. If the act of a public servant is ultra
vires, the right of private defence may be exercised against him.
2. the act does not cause the apprehension of death or grievous hurt – for
example, a police man beating a person senselessly can cause apprehension of
grievous hurt and the person has the right of private defence against the
policeman.
3. is done under good faith – there must be a reasonable cause of action on part
of the public servant. For example, a policeman cannot just pick anybody
randomly and put him in jail as a suspect for a theft. There must be some valid
ground upon which he bases his suspicion.
4. the act is not wholly unjustified – The section clearly says that the act may not
be strictly justified by law, which takes care of the border line cases where it is
not easy to determine whether an act is justified by law. It clearly excludes the
acts that are completely unjustified. For example, if a policeman is beating a
person on the street on mere suspicion of theft, his act is clearly unjustified
and the person has the right to defend himself.
However, this right is curtailed only if the person knows or has reasons to believe that the act
is being done by a public servant. For example, if A tries to forcibly evict B from an illegally
occupied premises, and if B does not know and neither does he have any reason to believe
that A is a public servant or that A is acting of the direction of an authorized
public servant, B has the right to private defence.

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In Kanwar Singh’s case 1965, a team organized by the municipal corporation was trying to
round up stray cattle and was attacked by the accused. It was held that the accused had no
right of private defence against the team.
 when the force applied during the defence exceeds what is required to for the purpose
of defence. For example, if A throws a small pebble at B, B does not have the right to
shoot
A. Or if A, a thief, is running back leaving behind the property that he tried to steal, B does
not have the right to shoot A because the threat posed by A has already subsided. In many
situations it is not possible to accurately determine how much force is required to repel an
attack and thus it is a question of fact and has to be determined on a case by
case basis whether the accused was justified in using the amount of force that he used and
whether he exceeded his right to private defence.
In Kurrim Bux’s case 1865, a thief was trying to enter a house through a hole in the wall.
The accused pinned his head down while half of his body was still outside the house. The
thief died due to suffocation. It was held that the use of force by the accused was justified.
However, in Queen vs Fukira Chamar, in a similar situation, a thief was hit on his head by
a pole five times because of which he died. It was held that excessive force was used than
required.
 when it is possible to approach proper authorities – No man has the right to take the
law into his hands and so when he has the opportunity to call proper authorities, he
does not have the right to private defence. It usually happens when there is a definite
information about the time and place of danger. But law does not expect that a person
must run away to call proper authorities. The question whether a person has enough
time depends on the factors such as –
o the antecedent knowledge of the attack.
o how far the information is reliable and precise.
o the opportunity to give the information to the authorities.

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 the proximity of the police station.
In Ajodha Prasad vs State of UP 1924, the accused received information that they were
going to get attacked by some sections of the village. However, they decided that if they
separated to report this to the police they will be in more danger of being pursued and so they
waited together. Upon attack, they defended themselves and one of the attackers was killed. It
was held that they did not exceed the right of private defence.
RIGHT TO PRIVATE DEFENCE OF BODY UP TO CAUSING DEATH
Section 100 of IPC specifies six situations in which the right of private defence of body
extends even to causing death.
Section 100 – The right of private defence of the body extends under the restrictions
mentioned in section 99, to the voluntary causing of death or of any other harm to the
assailant if the offence which occasions the exercise of the right be of any of the descriptions
here in after enumerated, namely –
First – such an assault as may reasonably cause the apprehension that death will otherwise be
the consequence of such assault.
Second – such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault.
Third – An assault with the intention of committing rape.
Fourth – An assault with the intention of gratifying unnatural lust. Fifth – As assault with the
intention of kidnapping or abducting.
Sixth – An assault with the intention of wrongfully confining a person under circumstances
which may reasonably cause him to apprehend that he will be unable to have recourse to the
public authorities for his release.
Even though this section authorizes a person to cause death of another in certain situation, it
is also subject to the same restrictions as given in section 99. Thus, a person cannot apply
more

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force than necessary and must contact the authorities if there is an opportunity.
In Viswanath vs State of UP AIR 1960, when the appellant’s sister was being abducted
from her father’s home even though by her husband and there was an assault on her body by
the husband, it was held that the appellant had the right of private defence of the body of his
sister to the extent of causing death.
To be able to extend this right up to causing death, the apprehension of grievous hurt must be
reasonable. In case of Sheo Persan Singh vs State of UP 1979, the driver of a truck drove
over and killed two persons sleeping on the road in the night. People ahead of the truck stood
in the middle of the road to stop the truck, however, he overran them thereby killing some of
them.
He pleaded right to private defence as he was apprehensive of the grievous hurt being caused
by the people trying to stop him. SC held that although in many cases people have dealt with
the errant drivers very seriously, but that does not give him the right of private defence to kill
multiple people. The people on the road had a right to arrest the driver and the driver had no
right of private defence in running away from the scene of accident killing several people.
Yogendra Morarji vs State of Gujarat 1980 is an important case in which SC observed that
when life is in peril the accused was not expected to weigh in golden scales what amount of
force does he need to use and summarized the law of private defence of body as under –
1. There is no right of private defence against an act which is not in itself an offence
under this code.
2. The right commences as soon as and not before a reasonable apprehension of danger
to the body arises from an attempt or thread to commit some offence although the
offence may not have been committed and it is continuous with the duration of the
apprehension.
3. It is a defensive and not a punitive or retributive right. Thus, the right does not extend
to the inflicting of more harm than is necessary for defence.

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4. The right extends to the killing of the actual or potential assailant when there is a
reasonable and imminent apprehension of the atrocious crimes enumerated in the six
clauses of section 100.
 There must be no safe or reasonable mode of escape by retreat for the person
confronted with an impending peril to life or of grave bodily harm except by inflicting
death on the assailant.
 The right being in essence a defensive right does not accrue and avail where there is
time to have recourse to the protection of public authorities.
DURATION OF THE RIGHT OF PRIVATE DEFENCE OF BODY
Section 102 specifies the duration of the right of private defence of the body as follows –
Section 102 – The right of private defence of the body commences as soon as a reasonable
apprehension of danger to the body arises from an attempt or threat to commit the offence,
though the offence may not have been committed and it continues as long as such
apprehension of danger to the body continues.
The right to defend the body commences as soon as a reasonable apprehension of danger to
the body arises and it continues as long as such apprehension of danger to the body continues.
RIGHT TO PRIVATE DEFENCE OF PROPERTY UP TO CAUSING DEATH
Section 103 of IPC specifies four situations in which the right of private defence of property
extends even to causing death.
Section 103 – The right of private defence of property extends, under the restriction
mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong
doer, if the offence, the committing of which, or attempting to commit which, occasions the
exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely
–
First – Robbery
Secondly – House breaking by night

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Third – Mischief by fire committed on any building, tent, or vessel, which building tent or
vessel is used as a human dwelling or as a place for custody of property.
Fourth – Theft, mischief or house trespass under such circumstances as may reasonably cause
apprehension that death or grievous hurt will be the consequence if such right of private
defence is not exercised.
A person may cause death in safeguarding his own property or the property of some one else
when there is a reason to apprehend than the person whose death has been cause was about to
commit one of the offences mentioned in this section or to attempt to commit one of those
offences.
In case of State of UP vs Shiv Murat 1982, it was held that to determine whether the action
of the accused was justified or not one has to look in to the bona fides of the accused. In cases
where there is a marginal excess of the exercise of such right it may be possible to say that
the means which a threatened person adopts or the force which he uses should not be
weighed in golden scales and it would be inappropriate to adopt tests of detached objectivity
which would be so natural in a court room.
DURATION OF THE RIGHT OF PRIVATE DEFENCE OF PROPERTY
Section 105 specifies the duration of the right of private defence of the property as follows –
Section 105 – The right of private defence of the property commences as soon as a
reasonable apprehension of danger to the property commences. It continues –
in case of theft – till the offender has effected his retreat with the property or either the
assistance of the public authorities is obtained or the property has been recovered.
in case of robbery – as long as the offender causes or attempts to cause to any person death or
hurt or wrongful restraint or as long as the fear of instant death or of instance hurt or of
instance personal restraint continues.
in case of criminal trespass – as long as the offender continues in the commision of criminal
trespass or mischief.

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in case of house breaking by night – as long as the house, trespass which has been begun by
such house breaking, continues.
The case of Amjad Khan vs State AIR 1952, is important. In this case, a criminal riot broke
out in the city. A crowd of one community surrounded the shop of A, belonging to other
community. The crowd started beating the doors of A with lathis. A then fired a shot which
killed B, a member of the crowd. Here, SC held that A had the right of private defence which
extended to causing of death because the accused had reasonable ground to apprehend that
death or grievous hurt would be caused to his family if he did not act promptly.
CULPABLE HOMICIDE AND MURDER ANALOGY
The word homicide is derived from two Latin words – homo and cido. Homo means human
and cido means killing by a human. Homicide means killing of a human being by another
human being. A homicide can be lawful or unlawful. Lawful homicide includes situations
where a person who has caused the death of another cannot be blamed for his death. For
example, in exercising the right of private defense or in other situations explained in Chapter
IV of IPC covering General Exceptions. Unlawful homicide means where the killing of
another human is not approved or justified by law. Culpable Homicide is in this category.
Culpable means blame worthy. Thus, Culpable Homicide means killing of a human being by
another human being in a blameworthy or criminal manner.
Section 299 of IPC defines Culpable Homicide as follows –
Section 299 – Who ever causes death by doing an act with the intention of causing death, or
with the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of Culpable
Homicide.
Illustrations –
1. A lays sticks and turf over a pit, with the intention of there by causing death, or with
the knowledge that death is likely to be thereby caused. Z believing the ground to be

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firm, treads on it, falls in and is killed. A has committed the offence of Culpable
Homicide.
 A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing

it to be likely to cause Z’s death, induces B fires and kills Z. Here B may be guilty of
no offence; but A has committed the offence of Culpable Homicide.
 A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A
not knowing that he was there. Here, although A was doing an unlawful act, he was
not guilty of Culpable Homicide, as he did not intend to kill B, or to cause death by
doing an act that he knew was likely to cause death.
Explanation 1 – A person who causes bodily injury to another who is labouring under a
disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be
deemed to have caused his death.
Explanation 2 – Where death is caused by bodily injury, the person who causes such bodily
injury shall be deemed to have caused the death, although by resorting to proper remedies
and skillful treatment the death might have been prevented.
Explanation 3 – The causing of the death of child in the mother’s womb is not homicide. But
it may amount to Culpable Homicide to cause the death of a living child, if any part of that
child has been brought forth, though the child may not have breathed or been completely
born.
Based upon the above definition, the following are the essential elements of Culpable
Homicide –
1. Death of a human being is caused – It is required that the death of a human being is
caused. However, it does not include the death of an unborn child unless any part of
that child is brought forth.
2. By doing an act – Death may be caused by any act for example, by poisoning or by
hurting with a weapon. Here act includes even on omission of an act for which one is
obligated by law to do. For example, if a doctor has a required injection in his hand

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and he still does not give it to the dying patient and if the patient dies, the doctor is
responsible.
3. Intention or Knowledge – There must be an intention of any of the following –
1. Intention of causing death – The doer of the act must have intended to cause
death. As seen in Illustration 1, the doer wanted or expected someone to die. It
is
important to note that intention of causing death does not necessarily mean intention of
causing death of the person who actually died. If a person does an act with an intention of
killing B but A is killed instead, he is still considered to have the intention.
 Intention of causing such bodily injury as is likely to cause death – The intention
of the offender may not have been to cause death but only an injury that is likely to
cause the death of the injured. For example, A might intended only to hit on the skull
of a person so as to make him unconscious, but the person dies. In this case, the
intention of the person was only to cause an injury but the injury is such that it is
likely to cause death of the person. Thus, he is guilty of Culpable Homicide.
However, if A hits B with a broken glass. A did not know that B was haemophilic. B
bleeds to death. A is not guilty of Culpable Homicide but only of grievous hurt
because he neither had an intention to kill B nor he had any intention to cause any
bodily injury as is likely to cause death.
Or the act must have been done with the knowledge that such an act may cause death – When
a person does an act which he knows that it has a high probability to cause death, he is
responsible for the death which is caused as a result of the act. For example, A knows that
loosening the brakes of a vehicle has a high probability of causing death of someone. If B
rides such a bike and if he dies, A will be responsible for B’s death. In Jamaluddin’s case
1892, the accused, while exorcising a spirit from the body of a girl beat her so much that she
died. They were held guilty of Culpable Homicide.
Negligence – Sometimes even negligence is considered as knowledge. In Kangla 1898, the

accused struck a man whom he believed was not a human being but something supernatural.

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However, he did not take any steps to satisfy himself that the person was not a human being
and was thus grossly negligent and was held guilty of Culpable Homicide.
MURDER (WHEN CULPABLE HOMICIDE AMOUNTS TO MURDER)
Murder is a type of Culpable Homicide where culpability of the accused is quite more than in
a
mere Culpable Homicide. Section 300, says that Culpable Homicide is Murder if the act by
which the death is caused is done
1. with the intention of causing death
2. or with an intention of causing such bodily injury as the offender knows to be likely
to cause the death of the person,
3. or with an intention of causing such bodily injury as is sufficient in ordinary course of

nature to cause death.
4. It is also Murder if the person committing the act knows that the act is so dangerous
that it will cause death or such injury as is likely to cause death in all probability and
he has no valid reason for doing that act.
ILLUSTRATIONS –
A shoots Z with an intention of killing him. Z dies in consequence. A commits Murder.
A intentionally gives Z a sword cut that sufficient in ordinary course of nature to cause death.
Z dies because of the cut. A commits Murder even though he had no intention to kill Z.
A without any excuse fires a loaded canon on a crowd. One person dies because of it. A
commits Murder even though he had no intention to kill that person.
Thus, it can be seen that Murder is very similar to Culpable Homicide and many a times it is
difficult to differentiate between them. J Melvill in the case of R vs Govinda 1876
Bom. analyzed both in the following table –

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Culpable Homicide Murder
A person commits Culpable Homicide if A person commits Murder if the act by which
the act by which death is caused is done – death is caused is done –
1. with the intention of causing death. 1. with the intention of causing death.
2. with an intention to cause such bodily injury as the

2. with an intention to cause such bodily
offender knows to be likely to cause death of the
injury as is likely to cause
person to
whom the harm is caused. 3. with an intention of causing bodily injury

death. to any person and the bodily injury intended to be inflicted is
sufficient in ordinary course of nature to cause death.
3. with the knowledge that

4. With the knowledge that the act is so imminently dangerous that it
such an act is likely to
must in all probability cause death.
cause death.
Based on this table, he pointed out the difference – when death is caused due to bodily injury,
it is the probability of death due to that injury that determines whether it is Culpable
Homicide or Murder. If death is only likely it is Culpable Homicide, if death is highly
probable, it is Murder.
In Augustine Saldanha vs State of Karnataka LJ 2003, SC deliberated on the difference of

Culpable Homicide and Murder. SC observed that in the scheme of the IPC Culpable
Homicide is genus and Murder its specie. All ‘Murder’ is ‘Culpable Homicide’ but not vice-
versa. Speaking generally, ‘Culpable Homicide’ sans ‘special characteristics of Murder is
Culpable Homicide not amounting to Murder’. For the purpose of fixing punishment,
proportionate to the gravity of the generic offence, the IPC practically recognizes three
degrees of Culpable Homicide. The first is, what may be called, ‘Culpable Homicide of the
first degree’. This is the greatest form of Culpable Homicide, which is defined in Section
300 as ‘Murder’. The second may be termed as ‘Culpable Homicide of the second degree’.
This is punishable under the first part of Section

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304. Then, there is ‘Culpable Homicide of the third degree’. This is the lowest type of
Culpable Homicide and the punishment provided for it is also the lowest among the
punishments provided for the three grades. Culpable Homicide of this degree is punishable
under the second part of Section 304.
It further observed that the academic distinction between ‘Murder’ and ‘Culpable Homicide
not amounting to Murder’ has always vexed the Courts. They tried to remove confusion
through the following table –
Culpable Homicide Murder
A person commits Culpable

Subject to certain exceptions , Culpable Homicide is Murder if
Homicide if the act by which
the act by which death is caused is done –
death is caused is done –
INTENTION
(a) with the intention of

1. with the intention of causing death; or
causing death; or
with an intention to cause such bodily injury as the offender knows

(b) with an intention to to be likely to cause death of the person to whom the harm is
cause such bodily injury as is caused.with an intention of causing bodily injury to any person and
likely to cause death. the bodily injury intended to be inflicted is sufficient in ordinary
course of nature to cause death.
KNOWLEDGE
(c) with the knowledge that

4. With the knowledge that the act is so imminently dangerous that
such an act is likely to cause
it must in all probability cause death.
death.
Thus, it boils down to the knowledge possessed by the offender regarding a particular victim
in a particular state being in such condition or state of health that the internal harm caused to
him is likely to be fatal, notwithstanding the fact that such harm would not, in the ordinary

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circumstances, be sufficient to cause death. In such a case, intention to cause death is not an
essential requirement. Only the intention of causing such injury coupled with the knowledge
of the offender that such injury is likely to cause death, is enough to term it as Murder.
SITUATIONS WHERE CULPABLE HOMICIDE DOES NOT AMOUNT TO

MURDER
Section 300 also specifies certain situations when the Murder is considered as Culpable
Homicide not amounting to Murder. These are –
(SHORT DETAILS)
1. If the offender does an act that causes death because of grave and sudden provocation
by the other.
2. If the offender causes death while exceeding the right to private defense in good faith.
 If the offender is a public servant and does an act that he, in good faith, believes to be
lawful.
 If the act happens in a sudden fight in the heat of passion.
 If the deceased is above 18 and the death is caused by his own consent.
(FULL DETAILS)
Exception I – Culpable Homicide is not Murder if the offender, whilst deprived of the power
of self-control by grave and sudden provocation, causes the death of the person who gave the
provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos –
1. That the provocation is not sought or voluntarily provoked by the offender as an

excuse for killing or doing harm to any person.
2. That the provocation is not given by anything done in obedience to the law, or by a
public servant in the lawful exercise of the powers of such public servant.

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3. That the provocations not given by anything done in the lawful exercise of the right of
private defence.
Explanation-Whether the provocation was grave and sudden enough to prevent the offence
from amounting to Murder is a question of fact.
ILLUSTRATIONS
1. A, under the influence of passion excited by a provocation given by Z, intentionally

kills, Y, Z’s child. This is Murder, in as much as the provocation was not given by the
child, and the death of the child was not caused by accident or misfortune in doing an
act caused by the provocation.
2. Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y,

neither intending nor knowing himself to be likely to kill Z, who is near him, but out
of sight. A kills Z. Here A has not committed Murder, but merely Culpable Homicide.
 A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the

arrest, and kills Z. This Murder, in as much as the provocation was given by a thing
done by a public servant in the exercise of his powers.
 A appears as a witness before Z, a Magistrate, Z says that he does not believe a word
of A’s deposition, and that A has perjured himself. A is moved to sudden passion by
these words, and kills Z. This is Murder.
 A attempts to pull Z’s nose, Z, in the exercise of the right of private defence, lays hold
of a to prevent him form doing so. A is moved to sudden and violent passion in
consequence, and kills Z. This is Murder, in as much as the provocation was given by
a thing done in the exercise of the right of private defence.
 Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending

to take advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand
for that purpose. B kills Z with the knife. Here B may have committed only Culpable
Homicide, but A is guilty of Murder.

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Exception 2 – Culpable Homicide is not Murder if the offender, in the exercise in good faith
of the right 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 premeditation, and without any intention of doing more harm than is necessary for
the purpose of such defence.
Illustration – Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to

A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no
other means prevent himself from being horsewhipped, shoots Z dead. A has not committed
Murder, but only Culpable Homicide.
Exception 3 – Culpable Homicide is not Murder if the offender, being a public servant or
aiding a public servant acting or the advancement of public justice, exceeds the powers given
to him by law, and causes death by doing an act which he, in good faith, believes to be lawful
and necessary for the due discharge of his duty as such public servant and without ill-will
towards the
person whose death is caused.
Exception 4 – Culpable Homicide is not Murder if it is committed without premeditation in a

sudden fight in the heat of passion upon a sudden quarrel and without the offenders having
taken undue advantage or acted in a cruel or unusual manner.
Explanation-It is immaterial in such cases which party offers the provocation or commits the
first assault.
In a very recent case of Byvarapu Raju vs State of AP 2007, SC held that in a Murder case,
there cannot be any general rule to specify whether the quarrel between the accused and the
deceased was due to a sudden provocation or was premeditated. “It is a question of fact and
whether a quarrel is sudden or not, must necessarily depend upon the proved facts of each
case,” a bench of judges Arijit Pasayat and D K Jain observed while reducing to 10 years the
life imprisonment of a man accused of killing his father. The bench passed the ruling while
upholding an appeal filed by one Byvarapu Raju who challenged the life sentence imposed

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on him by a session’s court and later affirmed by the Andhra Pradesh High Court for killing
his ‘drunkard’ father.
Exception 5 – Culpable Homicide is not Murder when the person whose death is caused,
being above the age of eighteen years, suffers death or takes the risk of death with his own
consent.
Illustration – A, by instigation, voluntarily causes, Z, a person under eighteen years of age to

commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own
death; A has therefore abetted Murder.
HURT AND GRIEVOUS HURT
In normal sense, hurt means to cause bodily injury and/or pain to another person. IPC defines
Hurt as follows –
Section 319 – Whoever causes bodily pain, disease, or infirmity to any person is said to
cause hurt.
Based on this, the essential ingredients of Hurt are –
1. Bodily pain, disease or infirmity must be caused – Bodily pain, except such slight
harm for which nobody would complain, is hurt. For example, pricking a person with
pointed object like a needle or punching somebody in the face, or pulling a woman’s
hair. The duration of the pain is immaterial. Infirmity means when any body organ is
not able to function normally. It can be temporary or permanent. It also includes state
of mind such as hysteria or terror.
2. It should be caused due to a voluntary act of the accused.
When there is no intention of causing death or bodily injury as is likely to cause death, and
there is no knowledge that inflicting such injury would cause death, the accused would be
guilty of hurt if the injury is not serious. In Nga Shwe Po’s case 1883, the accused struck a
man one blow on the head with a bamboo yoke and the injured man died, primarily due to
excessive opium administered by his friends to alleviate pain. He was held guilty under this
section.

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The authors of the code have observed that in many cases offences that fall under hurt will
also fall under assault. However, there can be certain situations, where they may not. For
example, if A leaves food mixed with poison on B’s desk and later on B eats the food causing
hurt, it cannot be a case of assault.
If the accused did not know about any special condition of the deceased and causes death
because of hurt, he will be held guilty of only hurt. Thus, in Marana Goundan’s case AIR
1941, when the accused kicked a person and the person died because of a diseased spleen, he
was held guilty of only hurt.
A physical contact is not necessary. Thus, a when an accused gave food mixed with dhatura
and caused poisoning, he was held guilty of Hurt.
GRIEVOUS HURT
Cases of severe hurt are classified under grievous hurt. The authors of the code observed that
it would be very difficult to draw a line between hurt and grievous hurt but it was important
to
draw a line even if it is not perfect so as to punish the cases which are clearly more than hurt.
Thus, section 320 of IPC defines Grievous Hurt as –
Section 320 – The following kinds of hurt only are designated as “Grievous” –
1. Emasculation
2. Permanent privation of the sight of either eye.
3. Permanent privation of the hearing of either ear.
4. Privation of any member or a joint.
5. Destruction or permanent impairing of powers of any member or joint.
6. Permanent disfiguration of the head or face.
7. Fracture or dislocation of a bone or tooth.

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8. Any hurt which endangers life or which causes the sufferer to be, during the space of
twenty days, in severe body pain or unable to follow his ordinary pursuits.
Thus, it can be seen that grievous hurt is a more serious kind of hurt. Since it is not possible
to precisely define what is a serious hurt and what is not, to simplify the matter, only hurts
described in section 320 are considered serious enough to be called Grievous Hurt. The
words “any hurt which endangers life” means that the life is only endangered and not taken
away.
Stabbing on any vital part, squeezing the testicles, thursting lathi into rectum so that bleeding
is caused, have all been held as Hurts that endanger life and thus Grievous Hurts.
As with Hurt, in Grievous Hurt, it is not a physical contact is not necessary.
DIFFERENCE BETWEEN HURT AND GRIEVOUS HURT
Only hurts that are defined in section 320 are called Grievous Hurt.
Punishment for voluntarily causing Hurt as defined in section 323 is imprisonment of either
description up to 1 year and a fine up to 1000 Rs, while punishment for voluntarily causing
grievous hurt is imprisonment of either description up to 7 years as well as fine.
DIFFERENCE BETWEEN GRIEVOUS HURT AND CULPABLE HOMICIDE
The line separating Grievous Hurt and Culpable Homicide is very thin. In Grievous Hurt, the
life
is endangered due to injury while in Culpable Homicide, death is likely to be caused. Thus,
acts neither intended nor likely to cause death may amount to grievous hurt even though
death is caused.
In case of Formina Sbastio Azardeo vs State of Goa Daman and Diu 1992 CLJ SC, the
deceased was making publicity about the illicit intimacy between N and W. On the fateful
day, N, W, and her husband A caught hold of D and tied him up to a pole and beat him as a
result of which he died. They were not armed with any dangerous weapon and had no
intention to kill him. N and W were held guilty of only causing grievous hurt.

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KIDNAPPING FROM INDIA, KIDNAPPING FROM GUARDIANSHIP, AND

ABDUCTION? DIFFERENTIATE BETWEEN KIDNAPPING AND ABDUCTION.
KIDNAPPING
Kidnapping from India – Kidnapping from India means taking anybody, without his
consent, out of the borders of India. Section 360 defines it as follows –
Section 360 – Whoever conveys any person beyond the limits of India without the consent of
that person or of some person legally authorized to consent on behalf of that person, is said to
kidnanap that person from India.
For example, if A takes B without his consent or without B’s lawful guardians consent to
Pakistan, A would be committing this offence. The essential ingredient of Kidnapping are –
1. The person should be conveyed out of the borders of India.
2. The person should be conveyed without his consent or without the consent of the
person who is legally authorized to consent on his behalf.
Thus, if a person is not capable of giving valid consent as in the case of a minor or a person
with unsound mind, the consent of his lawful guardian is required to take him outside India.
Kidnapping from Lawful guardianship – Kidnapping from lawful guardianship means

taking a child away from his lawful guardian without the guardian’s consent. Section 361
defines it as follows –
Section 361 – Whoever takes or entices any minor under 16 yrs of age if male or 18 yrs of
age if female, or any person of unsound mind, out of the keeping of the lawful guardian of
such minor or person of unsound mind, without the consent of such guardian, is said to
kidnap such minor or person from lawful guardianship.
Explanation – The words lawful guardian in this section include any person lawfully
entrusted with the care or custody of such minor or other person.
Exception – This section does not extend to the act of any person who in good faith believes
himself to be the father of an illegitimate child or who in good faith believes himself to be

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entitled to the lawful custody of such child, unless such act is committed for an immoral or
unlawful purpose.
Based on this section the essential ingredients are –
1. The person should either be a minor or a person of unsound mind – This implies
that the person is not capable of giving consent. In case of male child the age is 16 yrs
while in case of a female child the age is 18 yrs. For a person on unsound mind, age is
immaterial.
2. Such person be taken or enticed away – This means that either force is used or any
enticement that causes the person to leave domain of the lawful guardian is used. For
example, if A shows toffee to a child C thereby causing the child to come out of the
house and follow A, it fall under this category.
3. Such person must be taken or enticed away from the lawful guardian – Only
when the child is under the lawful guardian, can he be kidnapped. This means that the
child should be under the domain of the lawful guardian. For example, an orphan
wandering on the streets cannot be kidnapped because he doesn’t have a lawful
guardian. However, this
does not mean that a child must be with the lawful guardian. For example, a child siting in a
school is also under the dominion of his father and if A takes such a child away, it would be
kidnapping. Further, a lawful guardianship does not necessarily mean a legal guardian. A
legal guardian may entrust the custody of his child to someone else. Taking a child away
from such custody will also fall under this section. For example, A entrusts his child to B, his
servant, to take the child to school. If, C takes the child away from the servant, this would be
kidnapping because the servant has the lawful guardianship of the child.
DISTINCTION BETWEEN TAKEN AWAY AND ALLOWING A CHILD TO

FOLLOW –
In Vardrajan vs State of Madras AIR 1965, SC observed that there is a difference between
taking away a minor and allowing the minor to follow. If a person knowingly does an act
which he has reason to believe will cause the child to leave the guardian, then it would

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amount to taking away the child, however, if child follows a person even when a person does
not do any act meant to entice a child to leave his guardian, he cannot be held responsible.
For example, if a child follows an icecream vendor, without any enticement from the vendor,
while the guardian fails to keep the watch, the vendor cannot be held guilty under this
section.
In Chajju Ram vs State of Punjab AIR 1968, a minor girl was taken away out of the house
for only about 20 – 30 yards. it was held that it was kidnapping because distance is
immaterial.
Kidnapping is complete as soon as the minor or the person with unsound mind leaves the
custody of the guardian. It is not a continuing offence. Thus, when a child is kidnapped from
place P1 and taken to place P2 and then from P2 to P3, kidnapping was done only once.
ABDUCTION
Section 362 of IPC defines Abduction as follows –
Section 362 – Whoever by force compels, or by any deceitful means induces, any person to
go from any place is said to abduct that person.
It means compelling a person, or to induce him to go from where he is to another place. The
essential ingredients are –
A person goes from one place to another – A person cannot be abducted at the same place
where he is. For abduction to take place, the person should physically move from one place
to another.
Either by forcible compulsion or by inducement – The movement of the person must be

because of some compulsion or because of some inducement. For example, A threatens B on
gun point to go from his house to another city. Here, A has compelled B to go from his house
and is thus guilty under this section.
Here, the age of the abducted person is immaterial. Thus, even a major can be abducted if he
is forced to go from one location. But if a minor is abducted, it may amount to Kidnapping as

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well. Further, it is a continuing offence. As long as a person is forced to go from place to

place, abduction continues.
DIFFERENCES AMONG KIDNAPPING FROM INDIA, KIDNAPPING FROM

LAWFUL GUARDIAN, AND ABDUCTION –
Kidnapping from Kidnapping from lawful guardian

Abduction (Section 362)
India (Section 360) (Section 361)
A person is compelled by force or

A person is taken out A person is taken away from the
induced by deception to go from
of the limits of India. lawful guardian.
any place.
The person must be less than 16 yrs of

Age of the person is
age if male, less than 18 if female, or Age of the person is immaterial.
immaterial.
of unsound mind.
It is not a continuing
It is not a continuing offence. It is a continuing offence.
offence.
The person is Consent of the person kidnapped is Person moves without his
conveyed without his consent or the consent is obtained by

immaterial.
consent. decietful means.
It can be done without It can be done without use of It is always done by the use of force
use of force. force or deception. or deception.
THEFT
In general, theft is committed when a person’s property is taken without his consent by
someone. For example, A enters the house of B and takes B’s watch without B seeing and
puts it in his pocket with an intention to take it for himself. A commits theft. However,
besides the ordinary meaning conveyed by the word theft, the scope of theft is quite
wide. Section 378 of IPC defines theft as follows –

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Section 378 – Whoever, intending to take dishonestly any movable property out of the
possession of any person without that person’s consent, moves that property in order to such
taking, is said to commit theft.
Based on this definition, the following are the essential constituents of Theft –
1. Dishonest intention to take property – There must be dishonest intention on the part
of the offender. As defined in Section 24 of IPC, dishonestly means that there must be
a wrongful loss to one or wrongful gain to another. For example, A quietly takes
money from B’s purse for his spending. Here, A causes wrongful loss to B and is thus
guilty of theft. However,if the intention of the offender is not to cause a wrongful loss
or wrongful gain, he does not commit theft even if he takes the property without
consent. For example, A gives his watch to B for repairing. B takes the watch to his
shop. A, who does
not owe any debt to B for which B has the right to retain the watch, follows B and forcibly
takes back the watch. Here, A does not commit theft because he has no dishonest intention.
Similarly, when A, believing, in good faith, a property in possession of B, to be his, takes it
from B, it is not theft.
In K. N. Mehra v. State of Rajasthan AIR 1957 S. C. 369, SC held that proof of intention
to cause permanent deprivation of property to the owner, or to obtain a personal gain is not
necessary for the purpose of establishing dishonest intention. Thus, In Pyarelal Bhargava vs
State AIR 1963, a govt. employee took a file from the govt. office, presented it to B, and
brought it back to the office after two days. It was held that permanent taking of the property
is not required, even a temporary movement of the property with dishonest intention is
enough and thus this was theft.
 Property must be movable – An immovable property cannot be stolen or moved

from the possession so a theft cannot happen in respect of an immovable property.
However, as per Explanation 1 of section 378, as long as a thing is attached to earth,
not being movable, is not subject of theft. However, as soon as it is severed from the
earth, it is capable of being the subject of theft. Further, Explanation 2 says that a
moving affected by the same act that causes severance, may be theft.

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For example, a tree on A’s land is not capable of being the subject of theft. However, if B,
with an intention to take the tree, cuts the tree, he commits theft as soon as the tree is severed
from the earth.
In White’s case, 1853, a person introduced another pipe in a gas pipeline and consumed the
gas bypassing the meter. Gas was held to be a movable property and he was held guilty of
theft.
 Property must be taken out of possession of another – The property must be in

possession of someone. A property that is not in possession of anybody cannot be a
subject of theft. For example, wild dogs cannot be a subject of theft and so if someone
takes a wild dog, it will not be theft. It is not important whether the person who
possess the thing is the rightful owner of that thing or not. If the thing is moved out of
mere possession of someone, it will be theft. For example, A, a coin collector, steals
some coins from B, a fellow coin collector. A finds out that they were his coins that
were stolen earlier. Here, even though B was not the rightful owner of the coins, he
was still in
possession of them and so A is guilty of theft.
In HJ Ransom vs Triloki Nath 1942, A had taken a bus on hire purchase from B under the
agreement that in case of default B has the right to take back the possession of the bus. A
defaulted, and thereupon, B forcibly took the bus from C, who was the driver of the bus. It
was held that the C was the employee of A and thus, the bus was in possession of A.
Therefore, taking the bus out of his possession was theft.
 Property must be taken without consent – In order to constitute theft, property

must be taken without the consent of person possessing it. As per Explanation 5,
consent can be express or implied. For example, A, a good friend of B, goes to B’s
library and takes a book without express consent of B, with the intention of reading it
and returning it. Here, A might have conceived that he had B’s implied consent to
take the book and so he is not guilty of theft. Similarly, when A asks for charity from
B’s wife, and when she gives A some clothes belonging to B, A may conceive that
she has the authority to give B’s clothes and so A is not guilty of theft.

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In Chandler’s case, 1913, A and B were both servants of C. A suggested B to rob C’s store.
B agreed to this and procured keys to the store and gave them to A, who then made duplicate
copies. At the time of the robbery, they were caught because B had already informed C and to
catch A red handed, C had allowed B to accompany A on the theft.
Here, B had the consent of C to move C’s things but A did not and so A was held guilty of
theft.
 Physical movement of the property is must – The property must be physically

moved. It is not necessary that it must be moved directly. As per Explanation 3,
moving the support or obstacle that keeps the property from moving is also theft. For
example, removing the pegs to which bullocks are tied, is theft. Further, as per Explanation
4, causing an animal to move, is also considered as moving the things that move in
consequence. For example, A moves the bullock cart carrying a box of treasure. Here, A is
guilty of moving the box of treasure.
In Bishaki’s case 1917, the accused cut the string that tied the necklace in the neck of a
woman, because of which the necklace fell. It was held that he caused sufficient movement of
the property as needed for theft.
THEFT OF ONE’S OWN PROPERTY
As per the definition of theft given in section 378, it is not the ownership but the possession
of the property that is important. A person may be a legal owner of a property but if that
property is in possession, legally valid or invalid, of another, it is possible for the owner to
commit theft of his own property. This is explained in illustration j of section 378 – A gives
his watch to B for repairs. B repairs the watch but A does not pay the repairing charges,
because of which B does not return the watch as a security. A forcibly takes his watch from
B. Here, A is guilty of theft of his own watch.
Further, in illustration k, A pawns his watch to B. He takes it out of B’s possession, having
not payed to B what he borrowed by pawning it, without B’s consent. Thus, he commits theft
of his own property in as much as he takes it dishonestly.

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In Rama’s Case 1956, a person’s cattle was attached by the court and entrusted with another.
He took the cattle out of the trustee’s possession without recourse of the court. He was held
guilty of theft.
EXTORTION
In Extortion, a person takes the property of another by threat without any legal justification.
Section 383 defines extortion as follows –
Section 383 – Whoever intentionally puts any person in fear of any injury to that person, or
to any other, and thereby dishonestly induces the person so put in fear to deliver to any
person any property or valuable security or anything signed or sealed, which may be
converted into a valuable security, commits extortion.
For example, A threatens to publish a defamatory libel about B unless B gives him money. A
has committed extortion. A threatens B that he will keep B’s child in wrongful confinement,
unless B will sign and deliver to A a promissory note binding B to pay certain moneys to A.
B signs and delivers such noted. A has committed extortion.
The following are the constituents of extortion –
1. Intentionally puts any person in fear of injury – To be an offence under this

section, putting a person in fear of injury intentionally is a must. The fear of injury
must be such that is capable of unsettling the mind of the person threatened and cause
him to part with his property. Thus, it
should take away the element of freeness and voluntariness from his consent. The truth of the
threat under this section is immaterial. For example, A’s child is missing and B, who does not
have A’s child, threatens A that he will kill A’s child unless A pay’s him 1 lac Rs, will
amount to extortion. Similarly, guilt or innocence of the party threatened is also immaterial.
In Walton’s case 1863, the accused threatened to expose a clergyman, who had criminal
intercourse with a woman of ill repute, unless the clergyman paid certain amount to him. He
was held guilty of extortion.

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However, in Nizamuddin’s case 1923, a refusal by A to perform marriage and to enter it in

the register unless he is paid Rs 5, was not held to be extortion.
 Dishonestly induces a person so put in fear to deliver to any person any property
– The second critical element of extortion is that the person who has been put to fear,
must deliver his property to any person. Dishonest inducement means that the person
would not have otherwise agreed to part with his property and such parting causes
him a wrongful loss. Further, the property must be delivered by the person who is
threatened. Though, it is not necessary to deliver the property to the person
threatening. For example, if A threatens B to deliver property to C, which B does, A
will be guilty of extortion.
The delivery of the property by the person threatened is necessary. The offence of extortion is
not complete until delivery of the property by the person put in fear is done.
Thus, Duleelooddeen Sheikh’s case 1866, where a person offers no resistance to the
carrying off of his property on account of fear and does not himself deliver it, it was held not
to be extortion but robbery.
Extortion can also happen in respect of valuable security or anything signed that can become
a valuable security. For example, A threatens B to sign a promissory note without the amount
or date filled in. This is extortion because the note can be converted to valuable security.
In Romesh Chandra Arora’s case 1960, 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.
In R S Nayak vs A R Antuley and another AIR 1986, it was held that for extortion, fear or
threat must be used. In this case, chief minister A R Antuley asked the sugar cooperatives,
whose cases were pending before the govt. for consideration, to donate money and promised
to look into their cases. It was held that there was no fear of injury or threat and so it was not
extortion.
Theft (Section 378) Extortion (Section 383)

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The property is taken by the offender The property is delivered to the offender by consent
without consent. although the consent is not free.
There is an element of threat or instillment of fear because

There is no element of threat.
of which the consent is given.
Only movable property is subject to

Any kind of property can be subjected to extortion.
theft.
Offender takes the property himself. Property is delivered to offender.
ROBBERY
Robbery is a severe form of either theft or extortion. In certain circumstances, a theft or an

extortion gravitates to robbery. Section 390 defines robbery as follows –
Section 390 – 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
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, or 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.
Thus, a theft becomes a robbery when the following two conditions are satisfied –
1. when someone voluntarily causes or attempts to cause
1. death, hurt, or wrongful restraint or
2. fear of instant death, instant hurt, or instant wrongful restraint

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3. the above act is done
1. in order to the committing of theft or
2. committing theft or
3. carrying away or attempting to carry away property obtained by theft.
For example, A holds Z down, and fraudulently takes Z’s money from Z’s clothes, without
Z’s consent. A has committed theft and in order to commit that theft, he voluntarily caused
wrongful restraint to Z. Thus, A has committed robbery.
Robbery can be committed even after the theft is committed if in order to carrying away the
property acquired after theft, death, hurt, or wrongful restraint or an instant fear of them is
caused. The expression “for that end” implies that death, hurt, or wrongful restraint or an
instant fear of them is caused directly to complete the act of theft or carrying away the
property. In Hushrut Sheik’s case 1866, C and D were stealing mangoes from tree and were
surprised by B. C knocked down B and B became senseless. It was held to be a case of
robbery.
Further, the action causing death, hurt, or wrongful restraint or an instant fear of them must
be voluntary. Thus, in Edward’s case 1843, a person, while cutting a string tied to a basket
accidentally cut the wrist of the owner who tried to seize it. He was held guilty of only theft.
An extortion becomes a robbery when the following three conditions are satisfied –
1. when a person commits extortion by putting another person in fear of instant death,
hurt, or wrongful restraint, and
2. such a person induces the person put in such fear to deliver the property then and
there and
 the offender is in the presence of the person put in such fear at the time of extortion.
For example, A meets Z on high road, 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

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fear of instant hurt and being present at the time of committing the extortion in his presence,
A has committed robbery.
In another example, A meets Z and Z’s child on the high road. A takes the child and threatens
to fling it down a precipice, unless Z delivers his purse. Z in consequence, delivers the purse.
Here, A has extorted the purse from Z by causing Z to be in fear of instant hurt of his child
who is present there. Thus, A has committed robbery.
For extortion to become robbery, the fear of instant death, hurt, or wrongful restraint is must.
Thus, when A obtains property from Z by saying, “Your child is with my gang and will be
put to death unless you send us ten thousand rupees”, this is extortion but not robbery
because the person is not put in fear of instant death of his child.
In presence of the person – The offender must be present where a person is put in fear of
injury to commit the offence of robbery. By present, it means that the person should be
sufficiently near to cause the fear. By his presence, the offender is capable of carrying out his
threat immediately.
Thus the person put in such fear delivers the property in order to avoid the danger of instant
death, hurt or wrongful restraint.
In Shikandar vs State 1984, the accused attacked his victim by knife many times and
succeeded in acquiring the ear rings and key from her salwar. He was held guilty of robbery.
DACOITY
As per section 391, a Robbery committed by five or more persons is dacoity.
Section 391 – When five or more persons conjointly commit or attempt to commit 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.
Conjointly implies a collective effort to commit or attempting to commit the action. It is not
necessary that all the persons must be at the same place but they should be united in their

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efforts with respect to the offence. Thus, persons who are aiding the offence are also counted
and all are guilty of dacoity.
It is necessary that all the persons involved must have common intention to commit the
robbery. Thus, dacoity is different from robbery only in the respect of number of people
committing it and is treated separately because it is considered to be a more grave crime.
In Ram Chand’s case 1932, it was held that the resistance of the victim is not necessary. The
victims, seeing a large number of offenders, did not resist and no force or threat was used but
the offenders were still held guilty of dacoity.
In Ghamandi’s case 1970, it was held that less than five persons can also be convicted of
dacoity if it is proved as a fact that there were more than 5 people who committed the offence
by only less than five were identified.
However, if 5 persons were identified and out of them 2 were acquitted, the remaining three
cannot be convicted of dacoity.

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(2011) 3 MLJ (Crl) 368 Ramesh Babu and Ors Vs State, rep. by Inspector of Police, Ariyalur
Police Station, Perambalur District Indian Penal Code (45 of 1860), Sections 498- A and
304–B – Indian Evidence Act (1 of 1872), Section 32 – Death by stove bursting – Conviction
and sentence – No offence proved against in-laws who stay at a different place – Dying
declaration recorded by Magistrate – Record of statement by Police Constable, to be third
statement – No certification by Doctor to show mental capacity of third Statement – Third
statement not a dying declaration – No proof of demand of dowry or cruelty – Death due to
accidental fire – Conviction set aside. RATIO DECIDENDI: A third statement made by a
dying person which is not certified by the Doctor to show the mental capacity of such person
to give that statement cannot be a dying declaration and a conviction based on such dying
declaration is unsustainable when already two statements have been recorded by the Doctor
and the Magistrate. 2011 CIJ 395 CTJ(1) Bhagwan Dass Vs State (NCT) of Delhi Code of
Criminal Procedure, 1973 (2 of 1974) - Sec.354 – Murder – Honour killing – Sentence –
Death – Appellant had allegedly killed his daughter by strangulation because of her extra
marital affairs with another male – Based upon circumstantial evidence, trial Court convicted
him which was upheld by the High Court against which the appellant preferred SLP – While
the appellant argued that the evidence of the witnesses were not believable and the charge
against him was not proved, State contended that the chain of circumstances proved the
charges – Held, the appellant was the lone person available in the house who could have
committed the offence and had necessary motive – After the occurrence, without informing
the police, he tried to perform last rites and has also given confession to the police which
resulted in the recovery of incriminating material – Honour killing deserved death sentence as
it was of rarest of the rare one – Conviction and sentence was confirmed and the appeal was
dismissed. Code of Criminal Procedure, 1973 (2 of 1974) –Sec.161, 162 – Criminal trial –
Witness – Statement to police – Contradiction – Appreciation – Usage – When a prosecution
witness turns hostile, his / her statement to the police could be used to contradict her. Code of
Criminal Procedure, 1973 (2 of 1974) – Sec.354 – Murder – Honour killing – Sentence –
Death – Honour killings, for whatever reason, come within the category of rarest of rare cases
deserving death punishment. Ratios: a. When a prosecution witness turns hostile, his /her
statement to the police could be used to contradict her. b. Honour killings, for whatever
reason, come within the category of rarest of rare cases deserving death punishment. 5
SUPREME COURT CITATIONS CRIMINAL CASES 2011 CIJ 442 CTJ (1) SK. Yusuf Vs
183
State of West Bengal Indian Evidence Act, 1872(1 of 1872) – Sec.3, 27, 114 – Criminal trial
– Charge – Proof – Circumstantial evidence – Last seen theory – Abscondance – Extra
judicial confession – Appellant was accused of murdering a girl and burying the body –
Based upon his extra judicial confession, abscondance for few days after the occurrence and
the fact that he was last seen in the place of occurrence, he was convicted by the trial Court
which was confirmed in appeal against which he preferred SLP – While the appellant
contended that his last seen in the place of occurrence and abscondance would not raise any
presumption of guilt and the extra judicial confession could not be believed which was
resisted by the respondent – Held, there was no evidence to the effect that the deceased was
last seen with the accused immediately before her death – His mere availability in the place
of occurrence at the probable time of occurrence would not raise any adverse presumption –
Extra judicial confession was not corroborated and there were material contradictions – Mere
abscodance could not be taken as any adverse factor against the appellant – As the chain of
circumstantial evidence were not complete, appeal was allowed and the appellant was
acquitted. Indian Evidence Act, 1872(1 of 1872) – Sec.3, 114 – Criminal trial – Charge –
Proof – Circumstantial evidence – Last seen theory – Mere presence of the accused near the
place of occurrence immediately before the time of occurrence would not raise any adverse
presumption against him. But, his presence alongwith the victim in that place at that time
would raise such presumption. Indian Evidence Act, 1872(1 of 1872) – Sec.3, 114 – Criminal
trial – Charge – Proof – Extra judicial confession – Extra–judicial confession is a very weak
type of evidence and requires appreciation with great caution – To base conviction, extra-
judicial confession must be established to be true and made voluntarily and in a fit state of
mind and the words of the witness must be clear, unambiguous and clearly convey that
accused is the perpetrator of the crime – The “extra-judicial confession can be accepted and
can be the basis of a conviction if it passes the test of credibility”. Indian Evidence Act,
1872(1 of 1872) – Sec.3, 114 – Criminal trial – Charge – Proof –Circumstantial evidence –
Abscondance – In case a person is absconding after commission of offence, such a
circumstance alone may not be enough to draw an averse inference against him. Indian
Evidence Act, 1872(1 of 1872) – Sec.3, 114 – Criminal trial-Charge – Proof – Appreciation
of evidence – Circumstantial evidence – In case of criminal prosecution, the prosecution case
must stand or fall on its own legs and cannot derive any strength from the weakness of the
defence case – To convict an accused based upon circumstantial evidence, thee must be a
184
chain of evidence so complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show that in all human probability the
act must have been done by the accused. Indian Evidence Act, 1872(1 of 1872) – Sec.3, 27,
114 – Criminal trial – Charge – Proof – Confession – Recovery – Weapon – Recovery of a
weapon based on the statement of the accused would not raise any inference against the
accused, if there is no evidence connecting the weapon with the crime alleged to have been
committed by the accused. Ratios: a. Mere presence of the accused near the place of
occurrence immediately before the time of occurrence would not raise any adverse
presumption against him. But, his presence along with the victim in that place at that time
would raise such presumption. b. Extra–judicial confession is a very weak type of evidence
and requires appreciation with great caution. 6 c. To base conviction, extra-judicial
confession must be established to be true and made voluntarily and in a fit state of mind and
the words of the witness must be clear, unambiguous and clearly convey that accused is the
perpetrator of the crime. d. The “extra-judicial confession can be accepted and can be the
basis of a conviction if it passes the test of credibility”. e. In case a person is absconding after
commission of offence, such a circumstance alone may not be enough to draw an adverse
inference against him. f. In case of criminal prosecution, the prosecution case must stand or
fall on its own legs and cannot derive any strength from the weakness of the defence case. g.
To convict an accused based upon circumstantial evidence, there must be a chain of evidence
so complete as not to leave any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human probability the act must have been
done by the accused. h. Recovery of a weapon based on the statement of the accused would
not raise any inference against the accused, if there is no evidence connecting the weapon
with the crime alleged to have been committed by the accused. (2011) 6 Supreme Court
Cases 450 STATE OF KERALA AND ANR Vs C.P. RAO Prevention of Corruption Act,
1988 - Ss. 7, 13(2) and 13(1)(d) – Trap case for taking bribe – Standard of proof and
corroboration – Reiterated, mere recovery of tainted money, divorced from circumstances
under which it is paid, is not sufficient to convict accused – When there is no corroboration of
testimony of complainant regarding demand of bribe by accused, it has to be accepted that
complainant’s version is not corroborated and, therefore, evidence of complainant cannot be
relied on. Prevention of Corruption Act, 1988 – Ss. 7, 13(12) and 13(1)(d) – Trap case for
taking bribe for awarding pass marks in examination – Acquittal confirmed – Complainant
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not being available for examination during trial – PWs 1 and 2 giving evidence that accused
shouted that complainant was thrusting money (alleged bribe) into his pocket – PWs 1 and 2
also giving evidence about previous animosity of college authorities and respondent– accused
– Although undue favour for alleged bribe was for awarding pass marks, as per prevailing
examination system respondent–accused alone (without the approval of others) could not
have given such marks – Hence, respondent rightly acquitted by High Court. Criminal Trial –
Appeal against acquittal – Effect on presumption of innocence of accused – Reiterated,
presumption of innocence of accused is strengthened by acquittal rendered by High Court.
2011 CIJ 452 CTJ (1) A. Shankar Vs State of Karnataka Code of Criminal Procedure, 1973(2
of 1974) – Sec.378 – Indian Evidence Act, 1872(1 of 1872) – Sec.3 – Criminal trial –
Acquittal – Appeal – Appreciation of evidence – Omission – Contradiction – Appellant was
accused of murdering a person with scissors and acquitted by the trial Court against which
the State preferred appeal – High Court differed with the conclusion of the trial Court and
convicted the appellant against which he preferred appeal – While the appellant contended
that the High Court committed serious error in differing from the appreciation of evidence
done by the trial Court, respondent resisted the same – Held, in case of appeal against
acquittal, the High Court could reverse the acquittal only when the conclusion of the trial
Court was perverse – As the reasoning given by the trial Court was well considered and the
High Court had not given cogent reason for 7 differing with the conclusion of the trial Court,
appeal was allowed, the judgment of conviction passed by the High Court was set aside and
the appellant was acquitted. Indian Evidence Act, 1872 (1 of 1872) – Sec. 3 – Criminal trial –
Appreciation of evidence – Omission – Contradiction – In all criminal cases, normal
discrepancies are bound to occur in the depositions of witnesses due to normal errors of
observation, namely, errors of memory due to lapse of time or due to mental disposition such
as shock and horror at the time of occurrence – In criminal trials, minor contradictions,
inconsistencies, embellishments or improvements on trivial matters which do not affect the
core of the prosecution case, should not be made a ground on which the evidence can be
rejected in its entirety – In case of criminal trials, the trial court has to form its opinion about
the credibility of the witness and record a finding as to whether his deposition inspires
confidence – In criminal trial, mere marginal variations in the statements of a witness cannot
be dubbed as improvements as the same may be elaborations of the statement made by the
witness earlier – In criminal trials, omissions which amount to contradictions in material
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particulars, i.e., materially affect the trial or core of the prosecution’s case, render the
testimony of the witness liable to be discredited. Ratios: a. In all criminal cases, normal
discrepancies are bound to occur in the depositions of witnesses due to normal errors of
observation, namely, errors of memory due to lapse of time or due to mental disposition such
as shock and horror at the time of occurrence. b. In criminal trials, minor contradictions,
inconsistencies, embellishments or improvements on trivial matters which do not affect the
core of the prosecution case, should not be made a ground on which the evidence can be
rejected in its entirety. c. In case of criminal trials, the trial court has to form its opinion about
the credibility of the witness and record a finding as to whether his deposition inspires
confidence. d. In criminal trial, mere marginal variations in the statements of a witness cannot
be dubbed as improvements as the same may be elaborations of the statement made by the
witness earlier. e. In criminal trials, omissions which amount to contradictions in material
particulars, i.e., materially affect the trial or core of the prosecution’s case, render the
testimony of the witness liable to be discredited. f. In exceptional circumstances the appellate
court under compelling circumstances could reverse the judgment of acquittal of the court
below if the findings so recorded by the court below are found to be perverse, i.e., the
conclusions of the court below are contrary to the evidence on record or its entire approach in
dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its
judgment is unreasonable based on erroneous law and facts on the record of the case. 2011
CIJ 478 CTJ (1) Elavarasan Vs State Rep. by Inspector of Police Indian Penal Code (45 of
1860) – Sec.84, 302 304 – Indian Evidence Act, 1872 (1 of 1872) – Sec.8, 105 – Criminal
trial - Murder-Culpable homicide – Mens rea – Intention – Proof - Burden of proof – Insanity
– Abscondance – Relevancy – Appellant, in a fit of anger, assaulted his wife with sharp
edged weapon and when his mother intervened, he attacked his mother also – On hearing the
noise, his child woke up and cried and the appellant assaulted her with blunt edged weapon –
After the assault, the appellant bolted the lock from inside and on the next day, the police
broke open the door, arrested the appellant from the house and found the daughter died and
others injured – In the trial, the appellant raised the plea of insanity which was not accepted
by the trial Court and convicted him for an offence under Sec.302 IPC and the appeal to the
High Court was also dismissed – In the further appeal, the appellant raised the defence of
insanity and contended that his availability in the place of occurrence after the occurrence and
earlier treatment for mental illness proved the defence which was resisted by the State – Held,
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in all the crimes in which the intention was an essential element, the accused could escape
from the punishment if he was able to prove insanity either from the evidence of the
prosecution or defence witnesses – 8 Mere absence of fleeing from the scene of occurrence
would not be a decisive factor to prove the insanity of the appellant – Medical treatment for
mental illness would not be a defence unless such illness prevented the accused from
deciding right or wrong – The conduct of the appellant showed that he was not having an
intention to murder his daughter but had knowledge of the consequences of his act –
Conviction was altered to Sec.304(2) IPC and the appeal was partly allowed. Indian Penal
Code (45 of 1860 ) – Sec.84, 302, 304 – Indian Evidence Act, 1872 (1 of 1872) – Sec.105 –
Criminal trial – Murder - Culpable homicide – Intention - Burden of proof – Insanity –
Abscondance – The burden of proving the commission of an offence is always on the
prosecution and that the same never shifts – If intention is an essential ingredient of the
offence alleged against the accused the prosecution must establish that ingredient also –
Intention or the state of mind of a person is ordinarily inferred from the circumstances of the
case – The burden of bringing his / her case under Section 84 of the IPC lies squarely upon
the person claiming the benefit of that provision. Indian Evidence Act, 1872 (1 of 1872) –
Sec.105 – Criminal trial – Mensrea – Intention - Burden of proof - Defence – Presumption –
In criminal trial, the Court shall presume the absence of circumstances which may bring the
case of the accused within any of the general exceptions in the Indian Penal Code or within
any special exception or provision contained in any part of the said Code or in law defining
the offence. Indian Evidence Act, 1872 (1 of 1872) – Sec.105 – Criminal trial – Exception –
Proof - Burden of proof – Evidence - In criminal trial, it is open to an accused to rely upon
the material brought on record by the prosecution to claim the benefit of the exception. Indian
Penal Code (45 of 1860) – Sec.84 - Indian Evidence Act, 1872 (1 of 1872) – Sec. – Criminal
trial – Murder – Culpable homicide - Mens rea – Intention –Proof - Burden of proof-Insanity
– In criminal trial, while determining whether the accused is entitled to the benefit of Section
84 I.P.C. the Court has to consider the circumstances that proceeded, attended or followed the
crime and those circumstances must be established by credible evidence. Indian Penal Code
(45 of 1860) – Sec.84, 302, 304 – Indian Evidence Act, 1872 (1 of 1872) – Sec.8 - Criminal
trial – Accused – Conduct – Abscondance – Relevancy – In criminal trial, the post event
conduct of the accused is relevant to determine the culpability of the offender in the light of
other evidence available on record – In criminal trial, the conduct of the accused in not
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fleeing from the scene of occurrence would not in itself show that the accused was insane at
the time of the commission of the offence. Ratios: a. The burden of proving the commission
of an offence is always on the prosecution and that the same never shifts. b. If intention is an
essential ingredient of the offence alleged against the accused the prosecution must establish
that ingredient also. c. Intention or the state of mind of a person is ordinarily inferred from
the circumstances of the case. d. The burden of bringing his/her case under Section 84 of the
IPC lies squarely upon the person claiming the benefit of that provision. e. In criminal trial,
the court shall presume the absence of circumstances which may bring the case of the
accused within any of the general exceptions in the Indian Penal Code or within any special
exception or provision contained in any part of the said Code or in law defining the offence.
f. In criminal trial, it is open to an accused to rely upon the material brought on record by the
prosecution to claim the benefit of the exception. 9 g. In criminal trial, while determining
whether the accused is entitled to the benefit of Section 84 I.P.C the Court has to consider the
circumstances that proceeded, attended or followed the crime and those circumstances must
be established by credible evidence. h. In criminal trial, the post event conduct of the accused
is relevant to determine the culpability of the offender in the light of other evidence available
on record. i. In criminal trial, the conduct of the accused in not fleeing from the scene of
occurrence would not in itself show that the accused was insane at the time of the
commission of the offence. 2011 (6) SCALE 612 SUNIL RAI @ PAUA & ORS. Vs UNION
TERRITORY, CHANDIGARH CRIMINAL LAW – I.P.C. – SECTION 302/34 – Appeal
against convictions – Circumstantial evidence - Three accused migrant workers, working as
rickshaw pullers, were put on trial for murder of deceased – Prosecution case that deceased
was last seen being chased by three appellants yelling at him and shouting that they would
not spare him – Appellant 1 had his money and clothes stolen by someone breaking open the
lock of the box under the passenger seat of his rickshaw – Suspecting deceased, appellant 1
caught hold of deceased by his neck and asked him to return his money and clothes otherwise
he would kill him – Allegations that three accused went after him yelling and shouting – 12
hours later, at about 8.30 in the morning, body of deceased was found lying in a badly injured
condition near the local bus stand – On the issue of last seen, prosecution examined PW.9,
PW.14 and PW.15 – Vacillations in deposition of PW.9 – PW.14 and PW.15 declared hostile
– Inherent improbability in alleged extra judicial confession made before President of
Rickshaw Puller Union – Disclosure made by appellant 1 did not indicate the place where the
189
assault took place – Trial Court convicted all three appellants – On appeal, High Court
confirmed their convictions – Whether convictions of appellants were sustainable – Allowing
the appeal, Held. 2011 (6) SCALE 658 ABHAY SINGH CHAUTALA Vs C.B.I
PREVENTION OF CORRUPTION – PREVENTION OF CORRUPTION ACT, 1988 –
SECTION 13(1)(e), 13(2) & 19 – I.P.C. – SECTION 109 – Cr.P.C. – SECTION 482 –
Sanction to prosecute – Necessity of – Public servant who has abused some other office than
the one he is holding – Concept of ‘doubt’ or ‘plurality of office’ – If a person continues to be
a public servant but in a different capacity or holding a different office than the one which is
alleged to have been abused, there will be no question of sanction – Relevant time is the date
on which cognizance is taken – If on that date, the accused is not a public servant, there will
be no question of any sanction – Prosecution case alleging that both the accused while
working as Members of Legislative Assembly, had accumulated wealth disproportionate to
their known source of income – On investigation, it was found that in the check period of
7.6.2000 to 8.3.2005, appellant had amassed wealth worth 1,19,69,82,619/- which was
522.79% of appellant’s known sources of income – During the check period, appellant was
Member of Legislative Assembly – There was no sanction to prosecute u/s 19 of the Act
against appellants – An objection regarding absence of sanction was raised before the Special
Judge – Special Judge held that allegations in the charge sheet did not contain the allegation
that appellants had abused their current office as member of Legislative Assembly and,
therefore, no sanction was necessary – Appellants did not continue to hold the office that he
had allegedly abused on the date of cognizance – Whether there was any necessity granting
sanction to prosecute appellants – Dismissing the appeal, Held. 10 2011 (7) SCALE 710
SAYAJI HANMAT BANKAR Vs STATE OF MAHARASHTRA CRIMINAL LAW –
I.P.C. – SECTION 299, 300 EXCEPTION 4 & 304 PART–I – Killing wife by throwing
kerosene lamp on her – Alteration of conviction from Section 302, IPC to Section 304 Part-I,
IPC – Appellant accused came home under the influence of liquor and abused his wife –
There was petty quarrel between appellant and the deceased and in that quarrel the appellant
hit her left knee with a water pot made of brass and thereafter threw a burning kerosene lamp
upon her – At that time, she was wearing nylon sari which immediately caught fire and she
was engulfed by flames – Deceased was immediately taken to the hospital by her parents
where her dying declaration was recorded – In her dying declaration while implicating her
husband, it had also been mentioned that the accused also tried to douse the fire – It was
190
established that he had received burn injuries to the extent of 18 % - Trial Court convicted
appellant u/s 302, IPC – On appeal, High Court affirmed judgment and order passed by the
trial Court – Whether the act on part of accused showed his intention to commit the murder or
such bodily injury as was likely to result in her death – Held, No – Accused held liable to be
convicted for offence u/s 304-I, IPC – Allowing the appeal in part, Held. (2011) 7 Supreme
Court Cases 776 Vishram Singh Raghubanshi Vs State of Uttar Pradesh Contempt of Court –
Nature and Scope – Contempt by advocates – Appellant contemnor, advocate of 30 years’
standing using uttermost foul language and trying to overawe Judge physically to obtain
favourable order – Also defying Judicial Officer concerned to make a reference of contempt
to High Court – Acceptance of apology – Conditions for. Held, apology cannot be accepted
as a matter of course and court can reject same where it is found that words used were
calculated and intended to cause insult, and where apology lacked penitence, regret or
contrition – On facts held, apology tendered by appellant shows no repentance or remorse –
Besides, apology was tendered belatedly, only under pressure, after framing of charges, and
to escape punishment – Hence, such apology is unacceptable – Magistrate concerned directed
to take appellant into custody forthwith to serve out his sentence of three months’ SI – Words
and Phrases – “Apology” – Contempt of Courts Act, 1971 – Ss. 10, 12 and 2(c) – Advocates
– Bar Council of India Rules, S. 1, Ch. II (Pt. IV) Contempt of Court – Criminal Contempt –
General principles – Scandalise or lower authority of court – Defamation vis-à-vis contempt
– Maintainability of contempt proceedings – Considerations – Seriousness of irresponsible
acts of contemnor and degree of harm caused to administration of justice, held, determine
whether matter should be tried as criminal contempt – Further held, court has to consider
whether wrong was done to Judge personally or to public – Act will be an injury to public if
it creates apprehension in minds of people regarding integrity, ability or fairness of Judge or
deters litigants from placing complete reliance upon courts’ administration of justice, or if it
is likely to cause embarrassment to Judge himself in discharge of his duties – Contempt of
Courts Act, 1971, Ss. 10, 2 (a) and 2 (c). Contempt of Court – Nature and Scope – Power of
superior court to punish for contempt of inferior/subordinate court – Exercise of contempt
jurisdiction – Purpose of – Held, superior courts have duty to protect judicial officers of
subordinate courts, taking note of growing tendency of maligning reputation of judicial
officers by unscrupulous practicing advocates who either fail to secure desired orders or do
not succeed in browbeating for achieving ulterior purpose – Contempt of Courts Act, 1971, S.
191
10. 11 Advocates – Professional standards and ethies – Held, an advocate in a profession

should be diligent and his conduct should conform to requirements to law by which an
advocate plays a vital role in preservation of society and justice system – Any violation of
professional ethics by an advocate is unfortunate and unacceptable – Dangerous trend of
making false allegations against judicial officers and humiliating them should be curbed with
heavy hands – In present case, contemnor advocate, of 30 yrs’ standing sent to jail for 3
months’ SI, for such conduct. (2011) 5 MLJ 903 (SC) Rangammal Vs Kuppuswami and Anr
Indian Evidence Act (1 of 1872), Section 101 – Burden of proof – Appeal against dismissal
of second appeal – Execution of sale deed by de facto guardian on behalf of minor without
permission of Court – Legality of - Filing of suit for partition by 1 st respondent – Share of
appellant included in schedule of partition suit – Appellant in physical and peaceful
possession of property – Plaintiff / 1 st respondent claiming disputed property by virtue of a
sale deed allegedly executed by appellant who was minor at time of execution of deed -
Plaintiff / 1 st respondent failed to prove any legal necessity of minor for execution of sale
deed without permission of Court – Appellant not liable to discharge burden to disprove sale
deed, when 1 st respondent failed to discharge his burden of genuineness of sale deed – Suit
of partition collusive in nature – Appellant entitled to extent of share in schedule to suit
property – Appeal allowed. RATIONES DECIDENDI: I. Burden of proving existence of any
fact always lies on that person who asserts that such facts exist in view of Section 101 of the
Indian Evidence Act. II. A plaintiff in a suit for partition in entitled to include only those
properties for partition to which family has clear title and unambiguously belong to members
of joint family which is sought to be partitioned and if someone else’s property is included in
schedule of suit for partition, and the same is contested by a third party who is allowed to be
impleaded by order of the trial Court, the initial burden of proof will be on the plaintiff to
establish that disputed property belongs to the joint family which is to be partitioned.

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Law of Crimes – I (Indian Penal Code) LB-302 BA.LL.B/BBALL.B.

HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA

COURSE CONTENTS AND READING MATERIAL

COURSE CONTENT DEVELOPED, READINGS SUGGESTED & EDITED BY:

Law of Crimes: Introduction

1.1 Introduction; nature and scope of Criminal Law

2.1 Group Liability

1. Gaur, K.D.; Criminal Law: Cases and Materials, (Universal, 2015)

SALIENT FEATURES OF THE I.P.C.

Objective of the Indian Penal Code

Indian Penal Code Format

1. What exactly Indian Penal code is?

2. How and when did it originate?

3. What is its applicability?

4. How does it work?

5. To what extend it s the law enforcement agencies?

6. What is modus operandi of judges while applying the relevant sections?

These questions are answered as follows-

Importance of The Penal Code

IPC: A REFLECTION OF DIFFERENT SOCIAL AND MORAL VALUES

APPLICABILITY OF I.P.C.- TERRITORIAL AND PERSONAL

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6. President and Governors.

NATURE AND DEFINITION OF CRIME

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DISTINCTION BETWEEN MORAL, CIVIL AND CRIMINAL WRONGS

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Stephen on the relationship between criminal law and morality observes:

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CONSTITUENT ELEMENTS OF CRIME

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Expressions connoting the requirement of a mental element include: ‘with intent’,

of intention or knowledge or reason to believe All the offences under the

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Advertent negligence is commonly termed as wilful negligence or recklessness. In other

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SECTION 34 &149-COMMON INTENTION AND COMMON

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1. Mistake [76, 79]

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them one by one. Mistake of fact Sometimes an offence is committed by a person

Meaning of Mistake - A mistake means a factual error. It could be because of wrong

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