IPC or Law of Crime Imp Questions With Answers

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IPC-Notes-Full - IPC Questions and Answers
Criminal Law - II (Karnataka State Law University)
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1 Criminal law – Raghuraman K
Criminal Law I
Indian Penal Code
L.L.B, 1st Sem, 1st year
Raghuraman K
Raghuraman.kal@gmail.com

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Contents
QUESTIONS ............................................................................................................................................. 6
UNIT 1 ................................................................................................................................................... 13
Q. Explain mens rea and actus reus, and mens rea in statutory offences ? ..................................... 13
Q. What is meant by Mens Rea. Explain the dictum "ACTUS NON FACIT REUM NISI MENS SIT REA".
How far a motive necessary for determining a crime ? Are there any exceptions to the dictum of
Mens Rea ? Illustrate your answer. .................................................................................................. 13
Q. Explain difference between intention and motive....................................................................... 18
Q. Explain difference between Crime and Tort ( Civil Wrong and Criminal wrong) ......................... 20
Q. Write short notes on concept of crime ........................................................................................ 21
Q. “Ignorance of Fact is an excuse; Ignorance of Law is no excuse”. Elucidate. .............................. 21
Q. Short notes on a)Mistake of fact b) Mistake of law .................................................................... 21
Q. What are elements of a crime and their characteristic ............................................................... 24
Q. `The very definition of crime depends on the values of a given society... What is a sex crime in
India, may be a sweetheart virtue in Scandinavia' Amplify and give a suitable definition of crime.30
Q. Write Short Notes on any two :.................................................................................................... 32
a) Stages in the Commission of Crime. ............................................................................................. 32
Q. Territorial jurisdiction of Indian Penal Code with exceptions ...................................................... 34
Q.How jurisdiction of criminal court is determined and .................................................................. 34
(a) Under what circumstances can an offence committed outside India be tried as an offence
Committed in India. .......................................................................................................................... 34
(b) À' an Indian citizen, commits a murder in Uganda can be he tried and convicted of murder in
any place in India. ............................................................................................................................. 34
Q. Define and explain following expressions :- ................................................................................. 41
(a) "Public Servant" ........................................................................................................................... 41
(b) "Wrongful gain" and "Wrongful loss".......................................................................................... 41
(c) "Dishonestly" and "Fraudulently" ................................................................................................ 41
(d) "Valuable Security" ...................................................................................................................... 41
UNIT 2 ................................................................................................................................................... 48
Q. What are the variations in criminal liability ? .............................................................................. 48
Q. Explain criminal liability of insane person with McNaghtens answers ? ..................................... 51
Q. What is difference between Medical insanity and legal insanity................................................ 54
Q. Write short notes on : .................................................................................................................. 55
1. McNaghtens answers ? ................................................................................................................. 55
2. Mistake of fact : ............................................................................................................................ 56

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3. Principal of first degree ................................................................................................................. 58

4. Necessity : ..................................................................................................................................... 59
Q. Explain parties to crime ................................................................................................................ 60
Q. What is law of joint liability as provided under section 34 I.P.C. ? Whether acts of joint
offenders can be distinguished ? ...................................................................................................... 64
Q. Discuss the law of defence of intoxication under Indian Penal Code. ......................................... 72
Q. Define "Consent". Discuss in which situation defence of consent, can lawfully he raised ? ....... 72
Q. In what circumstances and to what extent will a plea of compulsion or necessity be a sufficient,
defence against the charge of criminal offence ? Does it give absolute protection. ....................... 72
Q. What are the general exceptions to criminal liability .................................................................. 72
Q What do you understand by "Abetment of an Offence" ? Discuss with the help of decided cases
and illustrations ................................................................................................................................ 98
Q Define Unlawful Assembly and Discuss the more aggravated forms of offence related to
unlawful assembly. ......................................................................................................................... 103
Q What is the liability of a member of an unlawful assembly for an act committed by another
member in prosecution of common object? .................................................................................. 105
Q. Discuss the law relating to hiring a person or being hired to join an unlawful assembly. ......... 106
Q. Discuss also the law relating to harbouring persons hired for an unlawful assembly. .............. 106
Q. Write short notes on Mistake of Fact :....................................................................................... 107
Q. Write short notes on criminal liability of minor. ........................................................................ 109
Q. Short notes on Criminal conspiracy ........................................................................................... 109
Q. Distinguish Riot and Affray ......................................................................................................... 112
Q. Differentiate public and private nuisance .................................................................................. 112
UNIT III ................................................................................................................................................ 114
Q Hurt and Grievous hurt ............................................................................................................... 114
Q. Short notes on Grievous Hurt..................................................................................................... 116
Q. Offences related to Public servants ........................................................................................... 119
Q. Short notes on Offences related to religion .............................................................................. 120
Q. Culpable homicide and murder (Section 299 and 300).............................................................. 121
Q. Write short notes of Wrongful restraint and Wrongful confinement ....................................... 124
Q. Wrongful Confinement............................................................................................................... 126
Q. Write notes on Criminal force and Assault ................................................................................ 128
UNIT IV ................................................................................................................................................ 131
Q. Write notes on rape. .................................................................................................................. 131

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Q. What are the ingredients of the offence of rape ? What is the maximum punishment provided
for this offence ? ............................................................................................................................. 135
Q. In what way is the offence of dacoity different from a robbery and theft ? ............................. 135
Q. Write notes on............................................................................................................................ 135
1. Extortion.................................................................................................................................. 135
2. Theft ........................................................................................................................................ 135
3. Robbery ................................................................................................................................... 135
4. Dacoity .................................................................................................................................... 135
Q. Compare Extortion, Theft, Robbery, Dacoity ............................................................................. 139
Q. What do you understand by `custodial rape' ? .......................................................................... 141
Q. Differentiate Kidnapping from lawful guardianship and abduction .......................................... 141
Q. Distinction between kidnapping and abduction ........................................................................ 143
Q. Difference between Theft and Extortion ................................................................................... 144
Q. Difference between Cheating and Criminal Breach of Trust...................................................... 145
Q. Cheating and Forgery ................................................................................................................. 146
UNIT V ................................................................................................................................................. 149
Q. Criminal trespass and mischief : ................................................................................................. 149
Q. Write short notes on House Trespass ........................................................................................ 151
Q. Trespass is classified into ........................................................................................................... 151
1. House trespass (442)............................................................................................................... 151
2. Lurking house trespass (443) .................................................................................................. 151
3. House breaking (445) .............................................................................................................. 151
4. House breaking by night (446) ................................................................................................ 151
Q. Write notes on Attempt to commit suicide ............................................................................... 154
Q. What is criminal misappropriation. Compare with theft. .......................................................... 155
Q. Difference between Criminal breach of trust and Criminal misappropriation .......................... 157
Q. Abetment of suicide ................................................................................................................... 158
Q. What are the ingredients of offence of waging or attempt to wage war against the Government
of India ? How is it punishable ? ..................................................................................................... 159
Q. Define `Sedition' and explain the law relating to it. State the principles laid down in the "Amrit
Bazar Patrika Press Ltd." Case. ........................................................................................................ 161
Q. Write short notes on “Sections covering promoting enemity among classes” ......................... 163
Q. Explain the law relating to offence of giving false evidence. ..................................................... 166
Q. Difference between Perjury and Section 191 of IPC .................................................................. 168
Q. Difference between ‘Giving False Evidence’ and ‘ Fabricating False Evidence’ ......................... 169

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Q. Short notes on Criminal intimidation ......................................................................................... 169

Miscellaneous ..................................................................................................................................... 171
Q. Summary of Right of Private defence......................................................................................... 171

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QUESTIONS
Q. 1 `The very definition of crime depends on the values of a given society... What is a sex
crime in India, may be a sweetheart virtue in Scandinavia' Amplify and give a suitable
definition of crime.
Q. 2 What is meant by Mens Rea. Explain the dictum "ACTUS NON FACIT REUM NISI MENS
SIT REA". How far a motive necessary for determining a crime ? Are there any exceptions to
the dictum of Mens Rea ? Illustrate your answer.
Q. 3 What are the different stages of crime. What is difference between preparation and
attempt.
Q. 4 How jurisdiction of criminal court is determined and
(A) Under what circumstances can an offence committed outside India be tried as an
offence Committed in India.
(B) À' an Indian citizen, commits a murder in Uganda can be he tried and convicted of
murder in any place in India.
Q. 5 Define and explain following expressions :-
(a) "Public Servant"
(b) "Wrongful gain" and "Wrongful loss"
(c) "Dishonestly" and "Fraudulently"
(d) "Valuable Security"
Q. 6 What is law of joint liability as provided under section 34 I.P.C. ? Whether acts of joint
offenders can be distinguished ?
Q. 7 Compare the principle of joint liability for a criminal act committed by several persons
not exceeding four with that of a criminal act committed by several person not less than
five, bringing out clearly the points of distinction if any ?
Q. 8 What are the different kinds of Punishment ? For what offences may a sentence of
death he passed under Indian Penal Code ?
Q. 9 Discuss the nature and duration of sentence of imprisonment in default of payment of

fine.
Q. 10 Writ a short note on "Solitary Confinement."
Q. 11 What is the Law relating to enhanced punishment for subsequent offences ?
Q. 12 Write short notes on :

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(i) Mistake of fact
(ii) Criminal liability of Minor
Q. 13 À' an illiterate boy, servant of 8 years stole a new `Parker' Fountain Pen worth Rs.
200/ from the table of his employee and sold to B, a student of law aged 21 years for Rs. 10/
only. Both À' and `B' are put on trial. The former is charged with theft and latter for
receiving the stolen property. How would you, as a judge, decide the case ?
Q. 14 "Legal insanity is different from Medical insanity" Discuss this statement.
Q. 15 Discuss the law of defence of intoxication under Indian Penal Code.
Q. 16 Define "Consent". Discuss in which situation defence of consent, can lawfully he raised
?
Q. 17 In what circumstances and to what extent will a plea of compulsion or necessity be a

sufficient, defence against the charge of criminal offence ? Does it give absolute protection.
Q. 18 Decide the liability of À' in the following
(a) A received a divine Order in his sleep to sacrifice his child of five years of age. He carries
on the Order and kills his son.
(b) B claimed to be proof against a sharpened instrument and invited À' to get the fact
tested. À' cut B on Arm but B bled to death.
Q. 19 Discuss the law relating to right of private defence ?
Or
Under what circumstances the right of private defense of body extends to causing death.
Q. 20 A is attacked by a mob which attempts to kill him. A in exercise of his right of private
defence fires at the mob, killing one of the several children mingled with the mob. What
offence if any committed by A ?
Q. 21 (A) What do you understand by "Abetment of an Offence" ? Discuss with the help of
decided cases and illustrations.
(B) What offence has been committed in following cases:
(i) A instigates a child `B' to poison `C' and provides poison for the purpose. B by mistake put
the poison on D's plates, which happened to be on the side of C's plate, D took the food and
die.

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(ii) A instigates B to shoot C, B goes to C's house with a gun but finding C's car standing
unattended, steals the car instead of shooting him.
Q. 22 A asked B to help him in committing murder of C. B agrees but nothing is subsequently

done in pursuance of such an agreement. Can A and B be charged with offence of
conspiracy
Or
Define and explain offence of criminal conspiracy.
Q. 23 What are the ingredients of offence of waging or attempt to wage war against the
Government of India ? How is it punishable ?
Q. 24 Define `Sedition' and explain the law relating to it. State the principles laid down in the
"Amrit Bazar Patrika Press Ltd." Case.
Q. 25 Enumerate offences relating to the Army, Navy and Air Force
Q. 26 Wearing garb or carrying token used by soldier, sailor or airman whether a crime ?
Q. 27 Define Unlawful Assembly and Discuss the more aggravated forms of offence related
to unlawful assembly.
Q. 28 What is Riot, distinguish between Riot and Affray.
Q. 29 What is the liability of a member of an unlawful assembly for an act committed by

another member in prosecution of common object?
Q. 30 Discuss the law relating to hiring a person or being hired to join an unlawful assembly.
Discuss also the law relating to harbouring persons hired for an unlawful assembly.
Q. 31 When a person is said to commit the offence of promoting enmity between different
classes ?
Q. 32 Define and Explain Affray.
Q. 33 Enumrate various offences by or relating to Public Servants
Q. 34 What is meant by contempt of Lawful authority of Public Servants ? What offences full
under this ?
Q. 35 Discuss the provision of Indian Penal Code dealing with the offence of giving false
information with intent to cause public servant to use his lawful power to the injury of
another.

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Q. 36 Discuss the difference between provisions of Section 182 and 211 of I.P.C. Can a
person who has been convicted under section 211, be convicted under section 182 on same
facts ?
Q. 37 Explain the law relating to offence of giving false evidence.
Q. 38 What does the offence of fabricating false evidence consist in?
Q. 39 Define "Coin" and "Indian Coin". What do you understand by "Counter felting Coin".
What are the offence relating to them ?
Q. 40 What are various offences relating to weights and measures
Q. 41 What is a "Public Nuisance" ? Distinguish it from a "Private Nuisance".
Q. 42 Enumerate the offence affecting Public health as defined in I.P.C. What punishments
are provided for them ?
Q. 43 What is òbscenity'. Distinguish between òbscenity' and `vulgarity'. What office if any
is made out in following cases:
(i) Atul and Monika were found kissing and embracing each other in a Maruti Van, parked at
40 paces from police post located at a lonely place.
(ii) During the search of Residential house of accused for offence under section 120B, 420,
467, 468 and 471 IPC. One video cassette containing pornographic scene is recovered from
an almirah, key of which was supplied by accused.
Q. 44 What are offences relating to Religion ?
Q. 45 Define `Culpable Homicide and state the circumstances under which culpable
homicide amounts to murder.
Or
When Culpable Homicide does not amounts to murder.
Q. 46 A has a enlarged spleen. B knows this and gives him a kick on the abandon which
ruptures the spleen. A week later, A dies in consequence of the injury received. Discuss the
guilt of B.
Q. 47 (i) A is lawfully arrested by B, a bailiff A is excited to sudden and violent passion by the
arrest and kills to B. (ii) B attempts to horsewhip A in such a manner as to cause grievous
hurt to A. A draws out a pistol. B however persists in the assault A believing in good faith
that he can by no means prevent himself from being horsewhipped shoot B dead.
(iii) A under the influence of passion excited B provocation given by B kills C intentionally.

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State what offence if any, A is guilty of in each of the three cases given above.
Q. 48 Decide the liability of À'
À' and `B' are fighting and B's wife with a lady on her shoulder intervene Section A struck
the lady but it fell on the infant who is killed.
Q. 49 Discuss the criminal liability of À'. À' with the intention to kill B, gives him poisoned
apple, but `B' passes it to `C' a child who eats and die Section
Q. 50 À' was driving a Bus on a Kacha Road at high speed. There were iron sheets placed on
the top of the bus. On the way some of the iron sheets fell down on the head of B and also
injured some other persons walking on the road. B was carried to the Hospital by À'. B died
after a month. Has À' committed any offence ? If so what ?
Q. 51 Discuss the ingredients of offence of Abetment of Suicide.
Q. 52 À' with the intention of causing the death of an illegal child of tender age, exposes it
in a desert place. Thereafter a passer by saves the child from dying. What offence has been
committed by A' ?
Q. 53 Explain briefly the law relating to attempt to commit an offence and examine whether
À' who intends to kill `B' is guilty of attempt to murder in the following cases:
(a) A fires a gun at B but misses his aim.
(b) A shoots at B believing him to be sleeping but infact, B had died of heart failure before
À' shot at him.
Q. 54 Define Hurt and Grievous Hurt.
Q. 55 Distinguish between:
(i) Wrongful Restraining and Wrongful Confinement
(ii) Kidnapping from lawful guardianship and abduction
Q. 56 What do you understand by "Force" and "Criminal Force" ? Discuss the ingredients of
"Criminal Force" and "Assault".
Q. 57 Decide the liability of À'. À' without knowledge of the guardian takes `H', a girl of 16
years, out of the possession of her guardian on the request of the girl. He restores her after
one week to parents
Q. 58 A child hardly 15 hours old was kidnapped by B from the lawful custody of the mother
of that child. 15 days thereafter on secret information police raided the room of C. B has
found present there in the company of C along with that child. It was found that B had not

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delivered a child within 15 days of kidnapping. C was not having any child of her own. What
offence if any is committed by C ? Give detail Section
Q. 59 À' a girl below 18 years of age was in the keeping of her mother. Her father `B' lived
separately. B by deceitful means took À' and kept her with him. Is `B' guilty of kidnapping.
Q. 60 What are the ingredients of the offence of rape ? What is the maximum punishment
provided for this offence ?
What do you understand by `custodial rape' ?
Q. 61 In what way is the offence of decoity different from a robbery and theft ?
Q. 62 À' along with the child was crossing a river bridge. B appears suddenly on the bridge,
picks up the child and threatens to throw it down into the river unless À' gives him his
golden ring and the money bag. When À' refuses to part with the above objects, B put back
the child on the bridge and runs away from the sight. What offence, if any was committed
by B?
Q. 63 Explain criminal misappropriation. Distinguish it from theft.
Q. 64 "A" contracted to construct a house for `B' for Rs. 75,000 which covered cost of
building materials of labor. According to the contract, Rs. 15,000 were to be paid to A as
advance and the balance was to be paid in four equal installments at the completion of
certain stages of construction. Accordingly the advance was paid to A but he did not
construct the house nor did he pay back to B the amount of advance. Can A be held guilty of
criminal breach of trust ?
Q. 65 À' causes cattle to enter upon the field belonging to B intending to cause and
knowing that he is likely to cause damage to the Crops of B. What offence has been
committed by À'.
Q. 66 The accused entered at night into a house to carry on an intrigue with an unmarried
girl on her information that her father was absent. However he was caught by her uncle
before he could get away. Of what offence, if any, the accused is guilty?
Q. 67 Distinguish between :
(a) Theft and Extortion
(b) Cheating and Criminal Breach of trust
(c) Criminal trespass and Mischief.
Q. 68 Distinguish between
(i) Cheating and Forgery

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(ii) Hurt and Grievous Hurt
(iii) Rape and Adultery
Q. 69 Define the offence of forgery ? What are essential ingredients of offence of Forgery ?
Q. 70 What is false document and when a person is said to make false document ?
Q. 71 What breaches of contracts are offence in Indian Penal Code?
Q. 72 `W' the wife, being dissatisfied with her husband `H' left his house and protection
voluntarily and of her free will. She went to `P' who allowed her to stay in his house as
`mistress' what offence if any committed by `P' and `W'.
Q. 73 Discuss the offence of subjecting a married woman with cruelty punishable under
section 498-A IPC.
Q. 74 A married young woman, who was discarded by her husband, lived with her father
and brother in Madras she became intimate with the accused who was her next door
neighbour. The two ran away from Madras and eventually settled in Bombay. The woman's
brother filed a complained against accused for offences under Section 497/498 of Indian
Penal Code. Decide.
Q. 75 `K' sent a notice to `B' demanding payment of price of certain ornaments said to have
been purchased from him by `B' on the occasion of his brother's marriage. In his reply sent
by registered post, `B' denied any such purchase and characterized the demand as `false'.
He further alleged that the false claim has been made because `K' had attempted to outrage
the modesty of a woman whose husband had, at the instance of B, lodged a complaint
against `K'. The reply was received by `K' and he filed a complaint for an offence under
Section 500, I.P.C. against `B'. It was proved that the imputation made against `K' was false
and actuated by illwill and previous enmity. Decide.
Q. 76 What offence, if any, has been committed by À' in following cases:
(i) A maliciously says that B is suffering from plague.
(ii) A, got married a woman thinking that her husband was alive but infact he was dead.
(iii) A, a pickpocket attempts to take the purse of B, who has a loaded pistol in his pocket. A
touches the trigger, the pistol goes off and B is thus shot dead.
Q. 77 Write a short note on : `Criminal Intimidation'

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UNIT 1
Q. Explain mens rea and actus reus, and mens rea in statutory offences ?
OR
Q. What is meant by Mens Rea. Explain the dictum "ACTUS NON FACIT REUM
NISI MENS SIT REA". How far a motive necessary for determining a crime ?
Are there any exceptions to the dictum of Mens Rea ? Illustrate your
answer.
Crime is nothing but an Act which is forbidden by law and is against the moral
sentiments of the society. The fundamental principle of penal liability is based
on a Latin maxim “Actus non facit reum nisi mens sit rea” which means “The
Act and the Intent must concur to constitute a crime”. In simple words, it
means an act done by a person will not be considered as a crime unless it is
done with a guilty mind.
Mens rea : In the entire field of criminal law there is no important doctrine
than that of mens rea. Mens rea is the state of mind indicating culpability,
which is required by statute as an element 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.
Mens rea consists of 2 elements
1. Intent to do an act
2. Knowledge of the circumstances that makes that act, a criminal offence
Mens rea means the intention to do a wrongful act with concomitant

knowledge of the material facts.
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’.

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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.
For example, Jack picks up his watch from the locker room at Tennis club and
goes back home. Later, he realizes that it is not his watch but even then he
retains it in his possession as this watch is better looking and more expensive
than the watch he had earlier. As Jack wanted to retain the watch with himself
thereby dispossessing the true owner of the same so there is both a guilty act
and a guilty mind and that’s when it’s considered to be an offence.
Actus Reus: To constitute a crime the third element, which we have called
actus reus or which Russell has termed as “physical event”, is necessary. Now
what is this actus reus? It is a physical result of human conduct. When criminal
policy regards such a conduct as sufficiently harmful it is prohibited and the
criminal policy provides a sanction or penalty for its commission. The actus
reus may be defined in the words of Kenny to be “such result of human
conduct as the law seeks to prevent.” Such human conduct may consist of acts
of commission as well as acts of omission. Section 32 of our Penal Code lays
down: “Words which refer to acts done extend also to illegal omissions.”
It is, of course, necessary that the act done or omitted to be done must be an
act forbidden or commanded by some statute law, otherwise, it may not
constitute a crime.

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An executioner hangs a condemned prisoner with the intention of hanging him.

Here all the three elements obviously are present, yet he would not be
committing a crime because he is acting in accordance with a law enjoining
him to act.
A surgeon in the course of an operation, which he knew to be dangerous, with

the best of his skill and care performs it and yet the death of the patient is
caused.
He would not be guilty of committing a crime because he had no mens rea to

commit it.
Mens rea in Statutory offences :
In modem law the authority of statute is paramount. A distinction was drawn

between the acts that were in themselves innocent but made punishable by
statute (malum prohibitum) and acts that were intrinsically wrong and immoral
(malum in se).
Generally, Mensrea is an essential ingredient of any criminal offence. Mensrea

by necessary implication may be excluded from a statute only where it is
absolutely clear that the implementation of the object of the statute would
otherwise be defeated.
Indian Penal Code :
Thus we find that under the I.P.C, this general doctrine of mens rea does apply
and is often made use of in interpreting the codified penal law, when even the
definition of the offence is defective or complete or it is not expressly excluded
by the terms of the statute itself.
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

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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.
However, with regard to the prohibitory statutes which are really not criminal
but which are made penal in the interest of public, prosecution need only to
prove the prohibited act and not mensrea.
Strict liability :
Under statutory offences, two types of liability were introduced in 20th century.
They are Strict liability and Absolute liability. Crimes of strict liability are those
in which the necessity for mensrea or negligence is wholly or partly excluded.
The policy of the penal law, in specific cases, chooses to exclude mensrea
altogether or to put the burden of proof of innocent mind on the accused, by
policy, and not based on principle.
Strict liability with the exclusion of mensrea was introduced because
First, Strict responsibility offences are relatively new. They represent

adaptation to an intricate economy, an impersonal market and in modem
inventions .
Secondly, the regulation of public order is considered more important than

singling out wrong doers for punishment and correction.
Thirdly, the good sense of courts has introduced a doctrine of acting at one's
peril with respect to statutory crimes which express the needs of society.
Fourthly, that owing to the great pressure of work upon the criminal Court
now days, it had become impracticable to inquire into mens rea in each
prosecution case
Fifthly, Statutes creating strict liability offences are not meant to punish the
“Vicious will” but are intended to put pressure on the thoughtless and
inefficient to do their whole duty in the interest of the public health or safety
or morals
For example, under strict liability, the following acts are fixed as criminal
wrongs

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1. Public nuisance
2. Various forms of criminal libel
3. Blasphemy
4. Contempt of court
5. Obscene publications
6. Abduction
7. Bigamy
The criminal liability in the above offences are strict, and do not require the
proof of mensrea.
In addition, there are many public welfare offences, which are statutory
offences, which exclude mensrea. Such offences as related to
1. food safety such as adulteration

2. road safety such as traffic laws
3. supply of drugs for human, animal consumption
4. licensed operations such as firearms, ammunition
5. Offenses related to Pollution
Under these categories of offences, the actus reus is enough to fix the criminal
liability, as these offences are related to public interest, social importance,
deterrence. And exclusion of mensrea in statutory offences also results in
faster justice, as the prosecution does not have to struggle to prove mensrea
in complex cases
In M.P. Electricity Board v. Shail Kumari, the defence of 'the act of the
stranger' was not allowed by the Supreme Court as the same could have been
foreseen and the principle of strict liability was recognised in the case.
Jogendra Singh, aged 37 years, was riding on his bicycle on the night of
23.8.1997 while returning after work from his factory. A snapped live electric
wire was lying on the road. There was rain and the road was partially
inundated with water. He could not notice the electric wire and came in
contact with the same and met with instant death due to electrocution.
An action was brought against the M.P. Electricity Board by the widow and
minor son of the deceased. The rule of strict liability was applied and it was
held that the board had statutory duty to supply electricity in the area. If the

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energy transmitted by the board caused injury to or death of a human being

the electricity supplier shall be liable for the same. If the electric wire was
snapped the current should have been automatically cut off. Authorities
manning such dangerous commodities have extra duty to chalk out measures
to prevent such mishaps.
While highlighting the utility of the principle of absolute liability as laid down in
the Oleum Gas Leakage in the M.C.Mehta v. Union of India over that of the
principle of strict liability as propounded in Rylands v. Fletcher, the court in
Jaipur Golden noted that though Rylands v. Fletcher had created a new legal
principle of strict liability in the case of hazardous activities, it was beset with
many limitations. Noting that the dilution of the rule in Rylands v. Fletcher had
often left the individual injured by the activities of the industrial society,
virtually without protection, the court applied the following principle of
absolute liability as evolved in the Oleum Gas Leakage case to enterprises
engaged in dangerous and hazardous activities:
Q. Explain difference between intention and motive

Intention
1. Intention is divisible intent.

Example: A robber robs a person to purchase liquor for himself.
“Robbing” is the “immediate act” and this immediate act is called
“intention.”
2. Intention in criminal law is always bad and evil.
3. Intention is relevant in determining the question of criminal liability.
4. The act is the result of intention. Intention is the immediate act.
Therefore, the criminal law concerns with the intention.
5. The Court did not consider their motive to protect the cows from
slaughter. It considered that the Hindus were guilty of offence, as
their “immediate act” i.e. removal of cows from the possession of the
owner was bad in law according to Sec. 146 IPC.
6. Intention is relevant in criminal and civil liability.
Motive
1. The ulterior object is called motive.

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2. “To purchase wine” is the “ulterior object”. This ulterior object is

called “Motive”.
3. Motives may be good or bad.
4. It is a general rule that man’s motive is irrelevant in determining the

criminal liability.
5. The criminal law does not concern with good motives. End cannot
justify the means and therefore the motive cannot justify the intention.
6. Case-law: Emperor vs. Raghunatha Rai 1892: Some Hindus forcibly

removed two cows from a Mohammedan to save them from slaughter in
view of their religious beliefs and worship for cows. Their object and
motive were good according to their religion.
7. The point of asking for his motive is to find out what personal
advantage he is seeking to gain; and a motive-fewer act is one aimed at
no such personal Advantage.
8. Not by the reasons for which he does it.”
9. In exceptional cases, in civil liability, sometimes motive is relevant,

e.g. defamation malicious prosecution; cheque dishonour, etc.

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Q. Explain difference between Crime and Tort ( Civil Wrong and Criminal
wrong)
First, crimes are graver wrongs than torts. There are three reasons for this
distinction between a crime and a tort.
1. Criminal law is statutory and codified. By contrast, tort law remains

mainly a set of common-law, judge-made doctrines
2. Criminal law is based on liability standards which are very complex, and
cannot be changed easily to adapt to changing conditions. Tort law
provides a more flexible framework for challenging new forms of
wrongdoing, such as clergy malpractice or invasions of privacy.
3. Crimes are public wrongs, whereas torts are private wrongs.
4. Tort requires harm or injury as a pre-requisite for actions to be brought
upon the tort feasor. Criminal law punishes acts that have not yet
caused harm, acts that are considered immoral to society, and harmful
acts.
5. In criminal law, victim fault hardly ever matters. Contributory negligence
is not a criminal law defense, but it is routinely taken into account in tort
law
6. In criminal law, any reasonable doubt regarding the guilt of the accused,
the benefit of doubt is always given to the accused. Tortfeasors not
given any such benefit of doubt.
7. Crimes are tried in the criminal courts, while tortious acts in the civil
courts.
8. State prosecutes violations of criminal law. A victim's consent is neither
necessary nor sufficient for a prosecution to be brought. In tort law, by
contrast, the victim decides whether to bring a tort claim and is free to
choose not to do so
9. 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. Whereas
acts in tort, the tortious acts may or may not require any intent.
10.Criminal law often imposes much more severe sanctions than tort law.

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Q. Write short notes on concept of crime

OR
Q. “Ignorance of Fact is an excuse; Ignorance of Law is no excuse”. Elucidate.

Or
Q. Short notes on a)Mistake of fact b) Mistake of law

Sections 76 and 79 of Chapter-IV (General Exceptions) of the Indian Penal
Code, 1860 explain the provisions about “Mistake of Fact” and “Mistake of
Law”. These provisions are based upon the common law maxim “Iqnorantia
facti doth excusat; Ignorantia juris non excusat.” (Ignorance of fact is an
excuse, but ignorance of law is not excused.)
Mistake of fact is a good defence in criminal law, which is explained in two

Sections 76 and 79. Both of these Sections are included in General Exceptions
(Chapter-IV).
Meaning:
Mistake: An unconscious ignorance or forgetfulness of a fact, past or present,

material to the contract, or a belief in the present existence of a thing material
to the contract, which does not exist; some intentional act, omission, or error
arising from ignorance, surprise, imposition, or misplaced confidence; in a legal
sense, the doing of an act under an erroneous conviction, which act, but for
such conviction would not have been done.
Mistake of fact: A mistake which takes place when some fact which really exists
is unknown; or some fact is supposed to exist which really does not exist.
Mistake of law: A mistake of law occurs when a person having full knowledge
of facts comes to an erroneous conclusion as to their legal effect.
Sec. 76. Act done by a person bound, or by mistake of fact believing himself
bound, by law:
Nothing is an offence which is done by a person who is, or who by reason of a

mistake of fact and not by reason of a mistake of law, in good faith believes
himself to be, bound by law to do it.
Illustrations:

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(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity
with the commands of the law. A has committed no offence.
(b) A, an officer of a Court of Justice, being ordered by that Court to arrest Y,

and, after due enquiry, believing Z to be Y, arrests Z. A has committed no
offence.
Ingredients:
1. “Mistake of fact and not by reason of a mistake of law”:
This phrase in the Section means that a mistake of fact is excusable, but a
mistake of law is not excusable. It is the duty of every citizen of the land to
know the law of the land, and to behave accordingly. If a person says, “I do not
know the law and due to not knowing the law, I did the offence.” It is not
excusable.
However, if a person did a wrongful act by a mistake of fact with a good faith
and honest belief that he was bound to do, he may be excused. It is presumed
that everyone knows the law of the land.
2. “Good faith”:
The words “good faith” means “the act done with due care and attention”.
They also include the genuine belief of the person. The burden of proof lies
upon the person who wants to take the shelter of good faith.
3. “In good faith believes him to be bound by law”:
This phrase means that the accused should be in good faith and he must be
under confidence that he was bound by law to do that act.
This Section is mainly intended to safeguard the subordinates, who are

compelled to follow the superior’s orders, illustrations (a) and (b) appended to
Section 76 also reveal the same. This Section does not give protection to those
people who act against the law, i.e., mistake of law.
Case : Gopalia Kaliaiay vs. State (1923) 26 Bom)

Brief facts : A, a police officer, of the surrounding district, was ordered to arrest
a wrong-doer. A warrant was issued on the name of wrong-doer. The police

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officer made reasonable inquiries arrested the complainant, believing in good

faith he was the wrong-doer.
The complainant filed a case against the officer alleging that he was wrongfully
confined. The Court held that the police officer was protected under Sec. 76.
Sec. 79. Act done by a person justified or by mistake of fact believing himself
justified by law:
Nothing is an offence which is done by any person who is justified by law, or

who by reason of a mistake of fact and not by reason of a mistake of law in
good faith, believes him to be justified by law, in doing it.
Illustration:
A sees Z commit what appears to A to be a murder. A, in the exercise to the

best of his judgment exerted in good faith, of the power which the law gives to
all persons of apprehending murderers in the fact, seizes Z, in order to bring Z
before the proper authorities. A has committed no offence though it may turn
out that Z was acting in self- defence.
Distinction between Ss. 76 and 79: There is a slight difference between these
two Sections. In Section 76, the person is bound by law; whereas in Section 79,
the person is justified by law Under Sec. 76, the person is bound by a legal
obligation, whereas under Sec. 79, the person is supposed to have legal
justification. Both the Sections require good faith
Case law : Emperor vs. Jagmohan Thukral (AIR 1947 All 99)
Brief Facts: The accused was passing through a forest in a night. He saw the
eyes of an animal besides the bushes and plants and fired with his gun.
Unfortunately two military officers were wounded with that gun fire.
There was a military camp in the forest in that area. The accused did not know
about the military camp. He was tried for the offence under Sec. 307. The
Court held that the accused was protected under Sec. 79.

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Q. What are elements of a crime and their characteristic

The concept of crime involves the idea of a public as opposed to a private
wrong with the consequent intervention between the criminal and injured
party by an agency representing the community as whole. Crime is thus the
intentional commission of an act deemed socially harmful; or dangerous and
the reason for making any given act a crime is the public injury that would
result from its frequent participation. The society therefore takes steps for its
prevention prescribing specific punishments for each crime.
Crime is defined as “an act punishable by law as forbidden by statute or

injurious to the public at large “.
The various characteristics of crime are
1. Crime is conduct that is against the moral sentiments fixed by society
For example, Adultery is a crime under Indian Penal Code, whereas it is

not a crime in many other countries. Murder is an act, not approved by
all of civilized society, and therefore termed as a crime. But there are
many other moral values which changes from society to society.
2. Disobedience of law, where such breach is crime
For example, crossing the road, at unspecified places without traffic

signals is disobedience of traffic laws, and is declared a crime in certain
countries.
3. Violation of public rights due to the whole community
For example, driving under the influence of alcohol violates the rights of
the public at large to walk or drive on the public roads safely.
4. Wrongs pursued by the sovereign or its subordinates
For example, under Indian Penal Code, the State takes cognizance of
offences such as Adultery under Section 497 or Criminal Elopement
under Section 498, only when a complaint is made by the aggrieved
person.
5. Crime does not have an absolute definition. It is the creation of

criminal policy.

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Russel says “It is basically, a creation of criminal policy adopted by those

sections of society who were powerful enough to safeguard their own
security and comfort by causing the sovereign power to repress conduct,
which they feel endangers their position”
Elements of crime :
Crimes can be broken down into elements, which the prosecution must prove
beyond a reasonable doubt. With exceptions, every crime has at least four
elements:
1. a human being
2. who commissions a criminal act, also called actus reus;
3. a criminal intent, also called mens rea;
4. a concurrence of mens rea and actus reus.
And in certain types of wrongful acts, additional elements required are
1. causation and harm or violation of a statute

2. And attendant circumstances.
Human being :
The first element of crime is a human being who- must be under the legal
obligation to act in a particular manner and should be a fit subject for awarding
appropriate punishment.
Section 11 of the Indian Penal Code provides that word ‘person’ includes a
company or association or body of persons whether incorporated or not. The
word ‘person’ includes artificial or juridical persons
Actus reus :
Actus reus involves a voluntary act or failure to perform or omission of an act

that is in violation of a statute or that causes public harm.
Firstly, the act must be voluntary in nature. A voluntary act is a bodily

movement based on a conscious choice. Acts that are not voluntary are not
criminal: reflexes, convulsions, bodily movements during unconsciousness or
sleep, conduct during hypnosis or resulting from hypnotic suggestion or a
bodily movement that otherwise is not a product of the effort or

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determination of the actor, either conscious or habitual. One voluntary act is

enough to fulfil the voluntary act requirement.
Example : Timothy attends a party at a friend’s house and consumes several

glasses of red wine. Timothy then attempts to drive his vehicle home. While
driving, Timothy passes out at the wheel and hits another vehicle, killing its
occupant. Timothy can probably be convicted of one or more crimes in this
situation. Timothy’s acts of drinking several glasses of wine and then driving a
vehicle are voluntary. Thus, even though Timothy got into a car accident while
unconscious, his involuntary act was preceded by conscious, controllable, and
voluntary action.
Secondly, the definition states that actus reus is either an act or an omission of
an act. So, an omission is a failure to act. There are various scenarios where
omission to act is a wrongful act
1. By statute, where by law, a person is obligated to act upon another

person to save him from injury or harm.
Example : Duty to file tax returns or the duty of hospitals to report
gunshot wounds
2. By contract
Example : Physician’s contractual duty to help a patient or a lifeguard’s
duty to save someone who is drowning
3. By duty due to special relationship

Example : Duty of parents to take care of babies and young kids.
Thirdly, the voluntary act must be a wrongful act or prohibited by law.
Example : A person is in possession of banned drugs. The person voluntarily

has in his possession, items or things or substances which are prohibited as per
law. In this particular wrongful act, the person has not committed any bodily
harm or injury to any other person. But he has committed the actus reus, by
possessing banned substances, which by itself is a criminal offence.
Mens rea :

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Crime is nothing but an Act which is forbidden by law and is against the moral
sentiments of the society. The fundamental principle of penal liability is based
on a Latin maxim “Actus non facit reum nisi mens sit rea” which means “The
Act and the Intent must concur to constitute a crime”. In simple words, it
means an act done by a person will not be considered as a crime unless it is
done with a guilty mind.
The entire field of criminal law there is no important doctrine than that of
mens rea. Mens rea is the state of mind indicating culpability, which is required
by statute as an element 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.
Mens rea consists of 2 elements
1. Intent to do an act
2. Knowledge of the circumstances that makes that act, a criminal offence
Mens rea means the intention to do a wrongful act with concomitant

knowledge of the material facts.
Expressions connoting the requirement of a intention include: ‘with intent’,

‘recklessly’, ‘unlawfully’, ‘maliciously’, ‘unlawfully and maliciously’, ‘wilfully’,
‘knowingly’, ‘knowing or believing’, ‘fraudulently’, ‘dishonestly’, ‘corruptly’,
‘allowing’, and ‘permitting’.
Some criminal acts do not require mens rea. These are called strict liability
offenses, and they only require that a criminal act be committed. An example
of this would be statutory rape laws, by which an individual can be held
accountable for sexual misconduct with a minor even if they were not aware of
the age of the victim, or believed the age to be different than it was.
Example, Jack picks up his watch from the locker room at Tennis club and goes
back home. Later, he realizes that it is not his watch but even then he retains it
in his possession as this watch is better looking and more expensive than the

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watch he had earlier. The mental element of “wanting to retain the watch”, is
the mens rea, and the act of “retaining the watch” is the actus reus, in this
case.
Concurrence of Act and Intent
There must be a chronological concurrence between the intent and the actus
reus , or a rational nexus between the mens rea and the actus reus.
Example : For example, A intends to murder B, and goes into B’s house. The
brakes of his car fail and his car hits B, and B dies. A’s intention to murder B,
and the actus reus are not in concurrence to each other, even though B died.
Causation and harm
Criminal law also requires that causation be proved beyond a reasonable

doubt. It must be shown that the acts committed by the perpetrator were the
factual or proximate cause of the harm to the victim. If there are other factors
outside control of the perpetrator that may have contributed to the resulting
harm, it must be determined if it was those other factors or the action of the
perpetrator which was the factual or legal cause of harm.
1. Cause in fact, Example : when the accused A kills B

2. Legal and proximate cause. Example : A secretly puts poison into a drink
which A knows that B will offer to C.
3. Intervening cause Example : A tries to kill B, but B tries to run away, slips
down a staircase and dies.
Attendant circumstances
Attendant circumstances are specified factors that must be present when the
crime is committed. These could include the crime’s methodology, location or
setting, and victim characteristics, among others.
Example: Common law burglary is defined as “breaking and entering a dwelling

house of another at night time with the intent to commit a felony therein.”
1. Mens Rea
a. “With the intent to commit a felony therein.”
Specific intent, “with the intent to”

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2. Actus Reus
a. Conduct/Result
“breaking and entering”
b. Attendant Circumstances
“A dwelling house”
“Of another”
“At night time”
https://grrajeshkumar.com/class-notes-on-criminal-law-i-1st-sem-3-year-ll-b/

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Q. `The very definition of crime depends on the values of a given society...

What is a sex crime in India, may be a sweetheart virtue in Scandinavia'
Amplify and give a suitable definition of crime.
The concept of crime involves the idea of a public as opposed to a private

wrong with the consequent intervention between the criminal and injured
party by an agency representing the community as whole. Crime is thus the
intentional commission of an act deemed socially harmful; or dangerous and
the reason for making any given act a crime is the public injury that would
result from its frequent participation. The society therefore takes steps for its
prevention prescribing specific punishments for each crime.
Crime is defined as “an act punishable by law as forbidden by statute or

injurious to the public at large “.
The various characteristics of crime are
1. Crime is conduct that is against the moral sentiments fixed by society
For example, Adultery is a crime under Indian Penal Code, whereas it is

not a crime in many other countries. Murder is an act, not approved by
all of civilized society, and therefore termed as a crime. But there are
many other moral values which changes from society to society.
2. Disobedience of law, where such breach is crime
For example, crossing the road, at unspecified places without traffic

signals is disobedience of traffic laws, and is declared a crime in certain
countries.
3. Violation of public rights due to the whole community
For example, driving under the influence of alcohol violates the rights of
the public at large to walk or drive on the public roads safely.
4. Wrongs pursued by the sovereign or its subordinates
For example, under Indian Penal Code, the State takes cognizance of
offences such as Adultery under Section 497 or Criminal Elopement

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under Section 498, only when a complaint is made by the aggrieved

person.
5. Crime does not have an absolute definition. It is the creation of

criminal policy.
Russel says “It is basically, a creation of criminal policy adopted by those
sections of society who were powerful enough to safeguard their own
security and comfort by causing the sovereign power to repress conduct,
which they feel endangers their position”
It is difficult to suggest a definition that is suitable to all countries. It would be

easier to know crime through its attributes
Crime is an act wherein
1. a harm is brought about by some anti-social act of a human being which

the sovereign desires to prevent.
2. the preventive measures taken by the sovereign are in form of threat of
sanction or punishment.
3. Legal proceedings governed by special rules of evidence are used to
determine the guilt of the accused.
Elements of crime :
The 4 elements of crime are
1. a human being under a legal obligation to act in a particular way and a fit
subject for the infliction of appropriate punishment:
2. an evil intent or mens rea on the part of such human being
3. actus reus, i.e., act committed or omitted in furtherance of such an
intent; and
4. an injury to another human being or to society at large by such an act

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Q. Write Short Notes on any two :
a) Stages in the Commission of Crime.

If a person commits a crime voluntarily or after preparation the doing of it
involves four different stages. In every crime, there is first intention to commit
it, secondly, preparation to commit it, thirdly, attempt to commit it and
fourthly the accomplishment. The stages can be explained as under-
1. Intention- Intention is the first stage in the commission of an offence and

known as mental stage. Intention is the direction of conduct towards the
object chosen upon considering the motives which suggest the choice. But
the law does not take notice of an intention, mere intention to commit an
offence not followed by any act, cannot constitute an offence. The obvious
reason for not prosecuting the accused at this stage is that it is very difficult
for the prosecution to prove the guilty mind of a person.
2. Preparation- Preparation is the second stage in the commission of a crime.
It means to arrange the necessary measures for the commission of the
intended criminal act. Intention alone or the intention followed by a
preparation is not enough to constitute the crime. Preparation has not been
made punishable because in most of the cases the prosecution has failed to
prove that the preparations in the question were made for the commission
of the particular crime.
If A purchases a pistol and keeps the same in his pocket duly loaded in
order to kill his bitter enemy B, but does nothing more. A has not
committed any offence as still he is at the stage of preparation and it will be
impossible for the prosecution to prove that A was carrying the loaded
pistol only for the purpose of killing B.
Preparation When Punishable- Generally, preparation to commit any

offence is not punishable but in some exceptional cases preparation is
punishable, following are some examples of such exceptional
circumstances-
1. Preparation to wage war against the Government - Section 122, IPC

1860;
2. Preparation to commit depredation on territories of a power at peace
with Government of India- Section 126, IPC 1860;

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3. Preparation to commit dacoity- Section 399, IPC 1860;

4. Preparation for counterfeiting of coins or Government stamps- Sections
233-235, S. 255 and S. 257;
5. Possessing counterfeit coins, false weight or measurement and forged
documents. Mere possession of these is a crime and no possessor can
plead that he is still at the stage of preparation- Sections 242, 243, 259,
266 and 474.
3. Attempt- Attempt is the direct movement towards the commission of a
crime after the preparation is made. According to English law, a person may
be guilty of an attempt to commit an offence if he does an act which is
more than merely preparatory to the commission of the offence; and a
person will be guilty of attempting to commit an offence even though the
facts are such that the commission of the offence is impossible. There are
three essentials of an attempt:-
a. Guilty intention to commit an offence;
b. Some act done towards the commission of the offence;
c. The act must fall short of the completed offence.
Attempt Under The Indian Penal Code, 1860- The Indian Penal Code has dealt
with attempt in the following four different ways-
i. Completed offences and attempts have been dealt with in the same
section and same punishment is prescribed for both. Such provisions are
contained in Sections 121, 124, 124-A, 125, 130, 131, 152, 153-A, 161,
162, 163, 165, 196, 198, 200, 213, 240, 241, 251, 385, 387, 389, 391,
394, 395, 397, 459 and 460.
ii. Secondly, attempts to commit offences and commission of specific
offences have been dealt with separately and separate punishments
have been provided for attempt to commit such offences from those of
the offences committed. Examples are- murder is punished under
section 302 and attempt to murder to murder under section 307;
culpable homicide is punished under section 304 and attempt to commit
culpable homicide under section 308; Robbery is punished under section
392 and attempt to commit robbery under section 393.
iii. Thirdly, attempt to commit suicide is punished under section 309;

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iv. Fourthly, all other cases [where no specific provisions regarding attempt
are made] are covered under section 511 which provides that the
accused shall be punished with one-half of the longest term of
imprisonment provided for the offence or with prescribed fine or with
both.
4. Accomplishment Or Completion- The last stage in the commission of an
offence is its accomplishment or completion. If the accused succeeds in his
attempt to commit the crime, he will be guilty of the complete offence and
if his attempt is unsuccessful he will be guilty of an attempt only. For
example, A fires at B with the intention to kill him, if B dies, A will be guilty
for committing the offence of murder and if B is only injured, it will be a
case of attempt to murder.
Q. Territorial jurisdiction of Indian Penal Code with exceptions

OR
Q.How jurisdiction of criminal court is determined and
(a) Under what circumstances can an offence committed outside India be

tried as an offence Committed in India.
(b) À' an Indian citizen, commits a murder in Uganda can be he tried and
convicted of murder in any place in India.
(B) À' who is citizen of India and has committed a murder in Uganda, can
lawfully be tried in accordance with law in India, wherever he is found in India
by virtue of Section 4 of Indian Penal Code
Illustration to section 4.
A who is citizen of India, commits murder in Uganda. He can be tried and

convicted of murder in any place in India in which he may be found.
(A) Write only part of the answer below of only extra territorial jurisdiction
Indian penal code is applicable to the whole of India. After the abrogation of
Article 370, the Ranbir Penal Code shall be replaced with the Indian Penal
Code, and so I.P.C would be applicable to Jammu & Kashmir and Ladakh also.
1. Intra-territorial jurisdiction :

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Section 2 deals with the intra territorial jurisdiction of the Code. It makes the
Code universal in its application to every person in any part of India for every
act or omission contrary to the provisions of the Code.
a. Personal jurisdiction
‘Every Person’ includes
1. Natural persons
Every person is made liable to punishment, without distinction of nation,
rank, caste or creed, provided the offence with which he is charged has
been committed in some part of India. The use of the expression ‘every
person’ in this section and not ‘any person’ as in sections 3 and 4 (2) is
deliberate.
2. Foreign persons
A foreigner who enters the Indian territories and thus accepts the
protection of Indian laws virtually gives an assurance of his fidelity and
obedience to them and submits himself to their operation. A foreign
national committing an offence within India can be punished.
In the famous case of Mobarik Ali v. State of Bombay,(AIR 1957 SC 857),

a national of Pakistan made certain false representations from Karachi
by letters, telegrams and telephones to the complainant at Bombay on
the belief of which the complainant paid a certain amount of money to
the agent of the Pakistani at Bombay. The Supreme Court held that the
Pakistani national was subject to the jurisdiction of the Indian Courts for
having committed the offence of cheating and as the appellant had
already surrendered to the authorities of India under the provisions of
the Fugitive Offenders Act, 1881 in connection with another case, his
conviction was valid under section 420, Indian Penal Code.
A foreigner, who is a guilty of any offence under this Code, shall be

punishable under this Code, if he has committed any offence in India,
although the alleged offence might have not been an offence in his
motherland.
In State of Maharashtra v. Mayer Hans George (AIR 1965 SC 722), a

German National left Zurich for Manila by a Swiss Plane with 34 Kilos of

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gold. He had not declared it in the manifest for transit. The plane arrived
at Bombay. The passenger had remained in the plane. The Indian custom
authorities, on search, recovered the gold carried by him on his person.
He was prosecuted for importing gold into India under the Foreign
Exchange Regulation Act, 1973.
3. Corporations
A company is liable to be persecuted and punished for criminal offenses.
Although there are earlier authorities to the fact that the corporation
can not commit a crime, the generally accepted modern rule is that a
corporation may be subject to indictment and other criminal process
although the criminal act may be committed through its agent. However,
a corporation can’t be imposed corporal punishments for the offences
which can be committed by human beings only, viz., murder, treason,
perjury, etc.
b. Territorial jurisdiction
All offences committed on Indian territory by every person is punishable
under I.P.C. The definitions of “within India” as per Section 2, defines the
intra- territorial jurisdiction of the Indian Penal Code.
‘within India’ means the intra-territorial jurisdiction of the Indian Penal

Code. This includes
a. the whole land territory of India,

b. the maritime belt of India which presently extends up to twelve
nautical miles in the sea,
c. the whole air space over and the area underneath this total area. The
maritime belt, which is also known as territorial waters, is measured
from the appropriate base line.
d. The Exclusive Economic zone
The Indian Parliament has kept itself abreast with the latest
development in the field of international law and has enacted the
Territorial Waters, Continental Shelf, Exclusive Economic Zone and
other Maritime Zones Act, 1976 Section 3 (2) of which has extended
the territorial waters of India to twelve nautical miles.

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In 1977 the Exclusive Economic Zone has also been extended to two
hundred nautical miles. If any offence relating to property is
committed within this zone, the Indian criminal jurisdiction will
naturally extend to it.
c. Exceptions to the Intra-Territorial Jurisdiction

Section 2 of the IPC mentions “every person” within India. However,
there are certain persons exempted from the jurisdiction of Criminal
Courts. These persons are given certain rights, privileges, etc. This is the
same position in other countries also. Such persons are:
1. Foreign Sovereigns:
They are the persons completely exempted from the jurisdiction of the
Indian Criminal Courts. The principle on which the exemption of every
sovereign from every Court has been deduced is that the exercise of
such jurisdiction would be incompatible with his real dignity. Since a
sovereign is the highest authority of his nation, he is not amenable to
the jurisdiction of other countries. He is totally independent and
represents the dignity of his country.
2. Ambassadors:
Certain immunities and privileges have been granted to Ambassadors of
other countries by the Diplomatic Privileges Act, 1964 of England, the
United Nations (Privileges and Immunities) Act, 1947 (Act No. XLV of
1947) of India, etc., are examples. Therefore, Ambassadors are
exempted from the jurisdiction of the Indian Criminal Courts.
3. Alien Enemies:
An alien enemy is an individual who, due to permanent or temporary
allegiance to a hostile power, is regarded as an enemy in wartime. In
respect of acts of war, alien enemies cannot be tried by criminal Courts.
If an alien enemy commits a crime unconnected with war, he would be
liable under the IPC
The military persons of alien enemies do not come under the jurisdiction
of ordinary Criminal Courts, for the acts done connecting with the war.
However, if they commit theft, robbery, rape, etc., unconnected with
war, they shall be tried by the Indian Criminal Courts.

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4. Warships:
The warships entered into the Indian Sea waters cannot be tried under
the ordinary Indian Criminal Courts. The Public International Law applies
to such men-of-war.
5. President and Governors:

The President of India and the Governors of the States are exempted
from the jurisdiction of the Criminal Courts, by Article 361 of the Indian
Constitution.
Extra-territorial jurisdiction :
Extra territorial jurisdiction applied to all offences
I. Section 3 covers acts committed by Indian citizens outside the territory

of India, which are offences in India, but not in that country.
a. Under Section 3, extra territorial jurisdiction can be applied, and
the accused can be tried under I.P.C, as if the crime was
committed “within India”.
II. Section 4 covers acts committed by any person outside India but the
offender is found in India, then
a. He may be given up for trial in the country where the offence was
committed (extradition) or;
Extradition: It is the surrender by one State to another of a person
desired to be dealt with for crimes of which he has been accused
or convicted and which are justifiable in the Courts of the other
State. Though extradition is granted in implementation of the
international commitment of the State, the procedure to be
followed by the courts in deciding whether extradition should be
granted sand on what terms is determined by the municipal law of
the land. The procedure for securing the extradition from India is
laid down in the Extradition Act, 1962.
b. He may be tried in India (extra territorial jurisdiction)
In the famous case of Mobarik Ali v. State of Bombay,(AIR 1957 SC
857), a national of Pakistan made certain false representations
from Karachi by letters, telegrams and telephones to the
complainant at Bombay on the belief of which the complainant

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paid a certain amount of money to the agent of the Pakistani at

Bombay. The Supreme Court held that the Pakistani national was
subject to the jurisdiction of the Indian Courts for having
committed the offence of cheating and as the appellant had
already surrendered to the authorities of India under the
provisions of the Fugitive Offenders Act, 1881 in connection with
another case, his conviction was valid under section 420, Indian
Penal Code.
III. Section 3 and 4 of IPC and Sect 188 of Cr.PC covers

a. acts committed by foreign persons on Indian citizens, in Indian
ships, vessels or aircraft in high seas or outside the territory of
India.
b. Acts committed on the high seas, which are offences in India is
known as admiralty jurisdiction.
Admiralty jurisdiction :
It is founded on the principle that a ship on the high seas is a
floating island belonging to the nation whose flag she is flying.
Admiralty jurisdiction extends over-
I. Offences committed on Indian ships on the high seas

II. Offences committed on foreign ships in Indian territorial
waters
In Enrica Lexie Case, a fishing boat registered in India, while
fishing off the coast of Kerala was fired at from a passing Italian
ship named Enrica Lexie. As a result of this, 2 out of the 11
fishermen were instantaneously killed. The ship was arrested and
an FIR was registered by the Kerala Police. Later the two Italian
marines were also arrested. They filed a writ petition before
Kerala High Court for quashing the FIR since the incident occurred
at a place which was 20.5 nautical miles from the coast of India.
The writ was quashed as it was held that section 2 of the IPC gave
Kerala Police jurisdiction over this incident. Subsequently Supreme
Court held that the Union of India was entitled to prosecute the
accused but the same was subject to the provisions of Article 100
of UNCLOS 1982 which provides that such cases can only be

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conducted at the level of the Federal/Central Government and are

outside the jurisdiction of the State Governments. Hence the State
of Kerala has no jurisdiction to investigate into the incident and it
is the Union of India which has jurisdiction to proceed with the
investigation. Hence, Supreme Court directed the Central
Government to set up a Special Court to try this case.
Offences committed outside India :
Acts of foreigners committed outside the territory of India, and outside of

admiralty jurisdiction do not constitute an offence under I.P.C.

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Q. Define and explain following expressions :-
(a) "Public Servant"
(b) "Wrongful gain" and "Wrongful loss"
(c) "Dishonestly" and "Fraudulently"
(d) "Valuable Security"
(A)
Acronym: MJ OJACI – GVE PE
-OFFICERMILITARY
-JUDGE
-OFFICER OF COURT
-JURYMAN/ASSESSOR/P’CHAYAT MEMBER OF COURT
-ARBITRATOR OF COURT
-CONFINEMENT
- INFO OFFENCE/PREVENT OFFENCE
- GOVT REVENUE PROCESS(PROPERTY/TAX/PECUNIARY)
-VILLAGE REVENUE PROCESS(PROPERTY/TAX)
-Election
-Public duty
The words “servant of Government” denote any officer or servant, appointed

or employed in India by or under the authority of Government.
The word “Judge” denotes not only every person who is officially designated as
a judge, but also every person, who is empowered by law to give, in any legal
proceeding, civil or criminal, a definitive judgment, or a judgment which, if not
appealed against, would be definitive, or a judgment which, is confirmed by

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some other authority, would be definitive, or Who is one of a body of persons,

which body of persons is empowered by law to give such a judgment.
The words “public servant” denotes a person falling under any of the
descriptions hereinafter following is defined under Section 21 of I.P.C, namely:
1. Every Commissioned Officer in the Military, Naval or Air Forces of India;

2. Every Judge including any person empowered by law to discharge any
adjudicatory functions;
3. Every officer of a Court of Justice (including a liquidator, receiver or
commissioner);
4. Every juryman, assessor, or member of a panchayat assisting a Court of
Justice or public servant;
5. Every arbitrator or other people to whom any cause or matter has been
referred for decision or report by any Court of Justice, or by any other
competent public authority;
6. Every person empowered to keep another in confinement;
7. Every officer whose duty is to prevent offences, give information of
of-fences, bring offenders to justice, or protect the public health, safety
or convenience;
8. Every Government officer who does specified public duty towards
property or revenue process, pecuniary interests or law enforcement of
the pecuniary interests of Government.
9. Every Government officer who does specified public duty towards
property or tax or revenue process, or rights of people of any village,
town or district.
10.Every officer empowered to conduct elections.
11.
a. in the service or pay of the Government or Government servant
doing any public duty.
b. Employees of a Local Governmental Authority, a Governmental
Corporation
1.—Persons falling under any of the above descriptions are public servants,
whether appointed by the Government or not.

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2.—Wherever the words “public servant” occur, they shall be understood of

every person who is in actual possession of the situation of a public servant,
whatever legal defect there may be in his right to hold that situation.
Case Law :
As pointed out by the Supreme Court in Ramesh v. State of Maharashtra, a

public servant is an authority who must be appointed by Government or a
Semi-Government body and should be in the pay or salary of the same.
Secondly, a public servant is to discharge his duties in accordance with the

rules and regulations made by the Government. Applying these two tests it has
been held in the instant case that a Municipal Councillor who is not assisting a
public servant is not a public servant within the meaning of Section 21,
because he does not owe his appointment to any governmental authority.
Such a person is elected by the people and functions undeterred by the

commands or edicts of a governmental authority. For the same reasons a MLA
is also not a public servant. The mere fact that a MLA gets allowance by way of
honorarium does not convert his status into that of a public servant.
It is, therefore, on the facts of a particular case that the Court comes to the
conclusion that a particular person is an officer of the Government or not.
Hence, a teacher who is in service and being paid by the Government and
entrusted with the performance of a public duty to teach boys is a public
servant.
A bill collector employed by a Municipality, and a railway servant are public

servants. Even Railway khalasis of Railway carriage section dealing with the
preparation and issuance of Railway passes have been held to be public
servant in view of Explanation II to Section 21 notwithstanding the defect in
their rights to hold that situation. A member of the Auxiliary Air Force is as
much a public servant as an acting member of Indian Air Force.
The Supreme Court in Ram Avtar v. State of Bihar, has held that any surveyor
while performing his legitimate function under any Revenue or Civil Court, is a
public servant within the meaning of Section 21 of the Indian Penal Code.
(B) Wrongful Gain or Wrongful Loss

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Section 23 of Indian Penal Code provides -
"Wrongful gain". - "Wrongful gain" is gain by unlawful means of property to

which the person gaining is not legally entitled.
"Wrongful loss". - "Wrongful loss" is the loss by unlawful means of property to

which the person losing it is legally entitled.
Gaining wrongfully: - A person is said to gain wrongfully when such person

retains wrongfully, as well as when such person acquires wrongfully. A person
is said to be lose wrongfully when such person is wrongfully kept out of any
property, as well as when such person is wrongfully deprived of property.
Wrongful Gain ; So Two things are essential to constitute wrongful gain and it's
correlative wrongful loss, namely
(1) Use of unlawful means and

(2) Unlawful acquisition.
The existence of one without the other is not sufficient. Term "unlawful" has
double meaning but the word as used in criminal jurisprudence is limited to
convey an act which is prohibited as well as punishable by law. The word
"gain" means not only acquisition but also retention
Wrongful Loss - Term `wrongful loss' is the anti-thesis of wrongful gain. A

person who loses his property by the unlawful means of another is said to
suffer wrongful loss. If therefore he in possession of property to which he is
not legally entitled he cannot be said to suffer wrongful loss in respect of it.
In K.N. Mehra v. State of Rajasthan, AIR 1957 SC 369 it was observed by

Supreme Court that "wrongful gain" or "Wrongful Loss" under section 23 must
(1) relate to property and (2) arise from the exercise of unlawful means--"
(C )Dishonestly and Fraudulently
Dishonestly. - Section 24 of the Indian Penal Code says :-
"Whoever does anything with the intention of causing wrongful gain to one
person or wrongful loss to another person is said to do that thing "dishonestly"

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The word is not to be equated with the commonly used word `dishonestly'
which connotes an element of fraud or deceit.
The word `dishonestly' may be understood
i. to mean unlawful gain or unlawful loss of property.

ii. It is confined to those acts only in which property is involved as the
subject-matter to which the act or the series of acts constituting
dishonestly relates.
iii. the `wrongful gain or wrongful loss of such property should be by
unlawful means.
It is well settled in Ahmed v. State, 1967 Cr LJ 1953 (Raj.)., that an intention to

cause wrongful gain or wrongful loss is not a sine qua non for a thing to be
done dishonestly. Section 24 emphasises on two essential elements (1)
wrongful gain or wrongful loss. Wrongful gain includes wrongful retention of
property as well as acquires such property wrongfully.
Section 24 emphasises on two essential elements (1) wrongful gain or wrongful

loss. Wrongful gain includes wrongful retention of property as well as acquires
such property wrongfully. ‘
Fraudulently. - Section 25, I.P.C., defines "fraudulently" as follows :- A person is

said to do a thing fraudulently if he does that thing with intent to defraud butt
not otherwise." The definition is not logical inasmuch as the word sought to be
defined is defined in its own terms. There is no definition of the word
"defraud". Courts in India, interpreting the word `defraud' have generally
followed the well-known analysis of the word by Sir James Stephen. Sir James
Stephen has drawn attention to two essential elements which constitute fraud
: (i) deceit or an intention to deceive or in some cases mere secrecy, and (ii)
either injury or possible injury or an intent to expose some person to any such
injury by such deceit or secrecy. We may summarise these two elements and
call a fraudulent act an injurious deception.
The difference between these two views is a difference only in the point of
emphasis, the one being an emphasis on motive on the ultimate end and the
other being an emphasis not on such end but on the immediate act.
Dishonestly - Distinguished

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Dishonestly, Fraud
(A) With intention to cause wrongful gain to one person or wrongful loss to
another person. Any act does with intent to defraud but not otherwise.
(B) It consists wrongful gain or wrongful loss., It consists deceit or an intention

to deceive or in some cases mere secrecy.
(C) Either injury or possible injury is not required to be proved., Injury or

possible injury is required to be proved.
No
Dishonestly Fraudulently
1 Meaning: the word dishonestly means having Meaning: Act fraudulent if done with
deviated from honesty. But in Indian penal intend to defraud and no otherwise means
Code Section 24 has given a technical meaning there can be no fraud unless there was an
to the word dishonestly, to include an intention to defraud.
intentional act, to cause wrongful gain and
wrongful loss in another.
2 Definition : Section 24 defines Dishonestly - Definition: Section 25 defines Fraudulently

Whoever does anything with the intention of - A person is said to do a thing fraudulently
causing wrongful gain to one person or if he does that thing with intent to defraud
wrongful loss to another person, is said to do but not otherwise.
that thing “dishonestly”
3 Intention: Intention must be to cause wrongful Intention: In this case. Intention is defraud
gain or wrongful loss to a person. other.
Example: A find ring belonging to B on a table in
B’s room and removes it foe own use , A’s act is
dishonest since it amounts to wrongful gain to
A and wrongful loss to B.
4 Deceit is not an essential element Deceit is an essential element.
5 In this case there must be pecuniary gain or In this case, pecuniary or economic gain or
loss. loss is not always so.
6 Dishonesty may be by innocence. Dishonestly Fraud and innocence can never overlap.
and innocence may coincide. Fraud itself is deception.

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(D)Valuable Security :
A valuable security is a document of value that is to say a document which of

itself creates or extinguishes legal rights or purports to create or extinguish
them
In Prayag Das v. State, AIR 1963 All.131 it was observed that "Valuable
Security" as defined by section 30 of code denotes a document which is or
purports to be document whereby any legal right is created, extended
transferred, restricted, extinguished or released or whereby any person
acknowledges that he lies under legal liability or has not a certain right. Any
document whereby a person acknowledges legal liability is not a valuable
security unless the person in whose favour the acknowledgment is made has a
right to that document.

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UNIT 2
Q. What are the variations in criminal liability ?

Kenny puts three special circumstances in which the criminal guilt is lessened
or entirely excluded. These are "mistake", "intoxication" and "compulsion"'. In
addition insanity is also a defence.
Mistake as a defence at common law :
If mistake is to be considered as a good defence, three conditions are to be

fulfilled.
a) The mistake must be of such a nature that, if the supposed

circumstances were real, there would not have been any criminal
liability attached to the accused.
Mistake negatives mens rea and hence, the accused is not guilty. It does
not negative actus reus.
Case law : 'A' before going to the church, fired off his gun and left it
empty. In his absence, some person took the gun, went out for shooting
and on returning left it loaded, later A returned, took up the gun and
touched the trigger, which went off and killed his wife. A had reasonable
grounds to believe that the gun was not loaded. Hence, he would not be
guilty of murder.
b) The mistake must be reasonable. This is a matter of evidence. But, this is

to be established to the satisfaction of the Court .
Example : A, in order to free his wife from a demon which had possessed
her, held her over fire and with a red hot poker, which scared her. The
wife died in consequence. A had reasonably believed that he would free
her from the devil, with his actus reus. Held, A was guilty of murder.
c) Mistake however reasonable must relate to matters of fact.
The rule is
ignorantia facti excusat : Ignorance of fact excuses
ignorantia juris non excusat. Ignorance of law is no excuse.

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An Italian who kept a lottery house in England was held guilty. His plea
that in Italy the act was legal and that he had mistaken notion of English
law, was rejected by the court.
In India, Sns. 76 and 79 deal with mistake of fact and mistake of law
Intoxication :
The old law in England, dealt with intoxication as one which aggravated the
crime and hence, punishable. But, in the present day, the effect of intoxication
is considered as similar to illness produced by poison etc. Hence, actual
insanity, produced by drinking as in "delirium tremens", is a defence. This
should be established as a fact.
If the intoxication, is caused by a companion and not voluntarily by the accused

himself, then the accused is exempted. However, it is to be established before
the court that the accused was incapable of knowing the nature of his act.
Relevance : Drunkenness may be relevant :
1. to establish a mistake
2. to show the absence of intention or specific intention
3. to show this as part of an offence e.g. drunken person in charge of child
of seven years, or drunken driver causing an accident etc.
4. to show that it has happened in provocation.
A in a fit of passion, is provoked and kills B, who was responsible for the
provocation. In some circumstances, this is culpable homicide and not murder.
The general rule is that intoxication is not a defence but may be relevant as
stated above. The position in India is stated in Sn. 85. I.P.C
Insanity
Insanity of a particular and appropriate kind is regarded as a good defense in

English law. Medical profession has classified these mental variations.
Case law : R.V. Mcnaghten. Mcnaghten had killed Mr. Drummond the private
secretary of Sir Robert Peel, who he believed to be the PM Sir Robert Peel.

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Insanity was the ground of defence. He was acquitted on this ground. This
caused great resentment and the House of Lords stated certain principles as
guidelines.
1. Every person is sane, until proved otherwise.

2. At the time of committing the offence, the accused must also show that
he was suffering from a defect of reason due to disease of mind.
3. If he was conscious that the act was one which he ought not to do, he is
punishable by law
4. M’Naghten rule does not apply to those individuals who retain the
power of reasoning but in moment of confusion or absent mindness fail
to use their power. The actus reus must have been actuated by delusion
directly.
The burden of proof is on the accused to prove his insanity
Section 84 of Indian Penal Code was drafted, which says "nothing is an offence
which is done by a person who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing the nature of the act, or that
he is doing what is either wrong or contrary to law".
Legal insanity:
Legal insanity under IPC Section 84 requires the prosecution to prove all four
tests as given below :
I. Unsoundness of mind existed at the time of offence.

II. This unsoundness was of such a degree which rendered him incapable of
knowing the nature of the act.
III. Even if he' knew the nature of the act he did not know that it was wrong
IV. He did not know that the nature of the act was against the law
Legal insanity needs proof, if the wrong-doer was under unsoundness of mind
at the time of the incidence.
Legal insanity needs clear proof on the ability of the accused to distinguish
between right and wrong;
Legal insanity needs proof, if the accused was mentally aware, and clear that
the criminal act that he carried out is contrary to the law.

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Legal insanity means “the accused’s consciousness in relation to him”.
In Sakaram Ramji's case, the accused was a habitual ganja smoker. He

quarreled with his wife and killed her and the children. The plea that he had a
diseased state of mind due to Ganja, and that he was incapable of knowing
what he was doing, was rejected by the court .Held Guilty of murder.
Q. Explain criminal liability of insane person with McNaghtens answers ?

Facts of the case are as follows Daniel M’Naghten, a Scotsman was tried for
the murder of Edward Drummond. Private Secretary to Sir Robert Peel, the
then Prime Minister Daniel M’Naghten, was under an insane delusion that Sir
Robert Peel had persecuted him and mistaking Drummond for Sir Robert Peel
he shot and killed him. He was tried in London before Tindal C.J. and two other
judges and defended by Mr. Cockbum who later on became the Lord Chief
Justice of England. The accused pleaded insanity in his defence and the medical
evidence produced in substance that the prisoner was affected by morbid
delusions, which carried him beyond the power of his own control, and left
him with no perception of right and wrong, that he was not capable of
exercising any control over acts connected with his delusion. The Chief Justice
in his charge to the jury said that the question for them to be determined was
whether at the time of committing the act he had or had not the use of his
understanding so as to know that he was violating the law of God and man.
The jury acquitted the prisoner on the ground of insanity, but had ordered,
however, that the prisoner be detained in Broadmoor mental institution where
he remained until his death in May 1965.
The trial of M’Naghten and his acquittal caused considerable sensation and
was made the subject of debate in House of Lords and as a result the House of
Lords called on fifteen judges to lay down the law on the subject of criminal
responsibility in cases of alleged lunacy.
The answers given by the judges in M’Naghten case may be summarised in the
following five rules:-
i) That every man liable for his crime is presumed to be sane and
possesses a sufficient degree of reason until the contrary is proved.
ii) In order to establish defence on ground of insanity it must be clearly
shown that at the time of committing the act, the accused was labouring

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under such a defect of reason from disease of mind, as not to know the
nature and quality of the act he was doing, or if he did know it, that he
did not know that what he was doing was wrong.
iii) If the accused was conscious that the act should not be done and if that
act was a criminal offence, he is punishable
iv) Whereas criminal act is done by a man under some insane delusion as
to the surrounding facts, which conceals him from the true nature of
the act he is doing, he will be under same degree of responsibility as he
would have been on the facts as imagined them to be.
v) A medical witness who has not seen the accused before trial should not
be asked on evidence whether he thinks that the accused was insane.
The test thus enunciated by the judge of England in M’Naghten case is known
as “The Right and Wrong Test” and is applied today in England, India, Canada
and practically all the American States.
The McNaghten rule apply as follows

punishable by law
directly.
Section 84 of Indian Penal Code:
Based on this law section 84 of Indian Penal Code was drafted, which says
"nothing is an offence which is done by a person who, at the time of doing it,
by reason of unsoundness of mind, is incapable of knowing the nature of the
act, or that he is doing what is either wrong or contrary to law".
To be exempted under this section only proof of insanity is not enough. It

should be clearly proved that:

lOMoARcPSD|8640486
or against the law
As per I.P.C, the width of scope of insanity has been expanded from “disease of
the mind” to “unsoundness of the mind”.
Indian penal code distinguishes legal insanity from medical insanity. Under
medical insanity, all persons who commit a criminal act go through momentary
fit of insanity or blind rage or lapse of reason, and cannot be excused from any
criminal liability,
Under IPC, the accused must pass the test of legal insanity, by answering that,
if during the time of commission of the offence, the accused suffered an
1. Incapacity to know right and wrong
2. Incapacity to know that his act was contrary to the law
3. Incapacity to know the nature of the act
If the prosecution is able to prove legal insanity as per the three questions
above, then the insanity plea can succeed.
In case of Ram Lal V. State of Rajasthan, Ram Lal lacked motive in killing the 8
years old boy and doctor’s report showed that it was a case of epilepsy with
retarded mental faculty so as to put him in the category of severe sub-
normality. There was no evidence that at the time of murder the accused was
acting in a state of hallucination or under influence of epileptic insanity. On the
contrary, his running away to his village after the occurrence shows that he
was conscious of the fact which was enough to defeat the plea of insanity.
In Surya Prasad V. State of Orissa, the petitioner had been convicted under
section 307 IPC and had been sentenced to undergo Rigorous Imprisonment
for four years on the allegation that he attempted to commit murder by
stabbing a girl aged 15 years but was successful in his attempt. The motive was
that the petitioner persuaded the victim girl to marry him but the girl refused.
The accused raised the plea of insanity. In the present case the accused was
hospitalized for unsoundness of mind three months before the occurrence and

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was recommended by the doctor for examination by a specialist and in the

morning of the occurrence he quarrelled with his mother and pelted brickbats
and after stabbing the victim produced the knife before the police. All these
facts showed that the accused was insane within the meaning of Section 84
and was directed to be released.
Q. What is difference between Medical insanity and legal insanity

Section 84 of Indian Penal Code was drafted, which says "nothing is an offence
which is done by a person who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing the nature of the act, or that
he is doing what is either wrong or contrary to law".
Legal insanity :
Legal insanity under IPC Section 84 requires the prosecution to prove all four
tests as given below :

IV. He did not know that the nature of the act was against the law
Legal insanity needs proof, if the wrong-doer was under unsoundness of mind
at the time of the incidence.
Legal insanity needs clear proof on the ability of the accused to distinguish
between right and wrong;
Legal insanity needs proof, if the accused was mentally aware, and clear that
the criminal act that he carried out is contrary to the law.
Legal insanity means “the accused’s consciousness in relation to him”.
Definition of medical sanity :
Medical insanity deals with the person’s previous and present conduct and
behaviour.

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Medical insanity means “the accused’s consciousness of the bearing of his act
on those affected by it”.
Medical insanity of a person as defined by medical men may not directly imply
that the person is suffering from unsoundness of mind as described in Section
84. Therefore, mere abnormality of mind or partial delusion, irresistible
impulse or compulsive behaviour of a psychopath does not give protection
under Sec. 84.
Q. Write short notes on :
1. McNaghtens answers ?
Facts of the case are as follows Daniel M’Naghten, a Scotsman was tried for
the murder of Edward Drummond. Private Secretary to Sir Robert Peel, the
then Prime Minister Daniel M’Naghten, was under an insane delusion that Sir
Robert Peel had persecuted him and mistaking Drummond for Sir Robert Peel
he shot and killed him. The accused pleaded insanity in his defence and the
medical evidence produced in substance that the prisoner was affected by
morbid delusions, which carried him beyond the power of his own control, and
left him with no perception of right and wrong, that he was not capable of
exercising any control over acts connected with his delusion. The jury
acquitted the prisoner on the ground of insanity, but had ordered, however,
that the prisoner be detained in Broadmoor mental institution where he
remained until his death in May 1965.
The trial of M’Naghten and his acquittal caused considerable sensation and
was made the subject of debate in House of Lords and as a result the House of
Lords called on fifteen judges to lay down the law on the subject of criminal
responsibility in cases of alleged lunacy.
The answers given by the judges in M’Naghten case may be summarised in the
following five rules:- The test thus enunciated by the judge of England in
M’Naghten case is known as “The Right and Wrong Test” and is applied today
in England, India, Canada and practically all the American States.
The McNaghten rule apply as follows

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punishable by law
directly.
Section 84 of Indian Penal Code:
Based on this law section 84 of Indian Penal Code was drafted, which says
"nothing is an offence which is done by a person who, at the time of doing it,
by reason of unsoundness of mind, is incapable of knowing the nature of the
act, or that he is doing what is either wrong or contrary to law".
To be exempted under this section only proof of insanity is not enough. It

should be clearly proved that:
IV. Unsoundness of mind existed at the time of offence.

V. This unsoundness was of such a degree which rendered him incapable of
VI. Even if he' knew the nature of the act he did not know that it was wrong
or against the law
As per I.P.C, the width of scope of insanity has been expanded from “disease of
the mind” to “unsoundness of the mind”.
2. Mistake of fact :
Definition :
“Mistake of Fact” and “Mistake of Law” are based upon the common law
maxim “Iqnorantia facti doth excusat; Ignorantia juris non excusat.” (Ignorance
of fact is an excuse, but ignorance of law is not excused.)
Mistakes of fact arise when a criminal defendant misunderstood some fact

that negates an element of the crime. For instance, if an individual is charged
with larceny but believed that the property he took was rightfully his, this
misunderstanding negates any intent to deprive another of the property. One

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important qualification, however, is that this mistake of fact must be honest

and reasonable.
Essential elements :
Kenny puts three special circumstances in which the criminal guilt is lessened
or entirely excluded. Mistake is one such defence. The justification of
exemption from criminal liability on grounds of mistake of fact is based on the
principle that a man who is mistaken as to the existence of a fact cannot form
the necessary intention required to constitute a crime and is therefore not
responsible in law for his acts.
If mistake is to be considered as a good defence, three conditions are to be

fulfilled.
d) The mistake must be of such a nature that, if the supposed

circumstances were real, there would not have been any criminal
liability attached to the accused.
Mistake negatives mens rea and hence, the accused is not guilty. It does
not negative actus reus.
Case law : 'A' before going to the church, fired off his gun and left it
empty. In his absence, some person took the gun, went out for shooting
and on returning left it loaded, later A returned, took up the gun and
touched the trigger, which went off and killed his wife. A had reasonable
grounds to believe that the gun was not loaded. Hence, he would not be
guilty of murder.
e) The mistake must be reasonable. This is a matter of evidence. But, this is

to be established to the satisfaction of the Court .
Example : A, in order to free his wife from a demon which had possessed
her, held her over fire and with a red hot poker, which scared her. The
wife died in consequence. A had reasonably believed that he would free
her from the devil, with his actus reus. Held, A was guilty of murder.
f) Mistake however reasonable must relate to matters of fact.
The rule is
ignorantia facti excusat : Ignorance of fact excuses

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ignorantia juris non excusat. Ignorance of law is no excuse.
An Italian who kept a lottery house in England was held guilty. His plea
that in Italy the act was legal and that he had mistaken notion of English
law, was rejected by the court.
In India, Sns. 76 and 79 deal with mistake of fact and mistake of law
3. Principal of first degree

Definition
Common law divided guilty parties into principals and accessories. According
to the ancient analysis only the actual perpetrator of the felonious deed was a
principal. Other guilty parties were called "accessories".
Principals in the first degree are the persons those who perpetrate a crime
directly.
1. Principals of first degree are the perpetrators with mens rea, have
caused a socially harmful occurrence either with their own hands, or by
means of some tool or instrument or other non-human agency, or by
means of an innocent agent.
2. If a person instigated the crime, and the offence was committed using an
innocent agent, who by reason of either immaturity of understanding or
of unsoundness of mind or being a minor is legally incompetent to have
the necessary mens rea, the instigator would be the principal in first
degree and the perpetrator would be the innocent agent.
3. The presence of the principals in the first degree at the place where an
offence has taken place is not essential.
4. Corporations are a legal person, and they can be prosecuted for criminal
offense. The identification principle is used to impute to the
Corporation, the actus reus and mens rea of those who represent the
“directing mind and will” of the company. So, the Principal of the first
degree would be the Corporation, represented by the superior officers
who control, speak and act on behalf of the Company.
5. In case of strict liability offense, the corporate employer can be held
vicariously liable for the criminal acts of its employees or agents. For
example, public welfare offences such as health, safety, or pollution

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related offences committed by an agent or employee can be vicariously

imputed to the corporate employer, and the employer would become
the Principal of the first degree.
Case : R v Stringer and Banks,” employees were asked by their employer

to send out letters and participate in financial transactions which they
did not realize would lead to fraudulent transactions. The employer was
the principal offender and the employees were innocent agents.
4. Necessity :
When there are two dangers causing two harms in front of a person, under
unavoidable circumstances, he is put to face them; he is excused to commit
less harm. One of such General Exceptions is the Doctrine of Necessity and
Compulsion, which is explained in Section 81 of IPC. In such circumstances,
where he is compelled to do a willful wrong-doing, but with no criminal intent,
the law excuses a person for such an offence. This is called the Doctrine of
Necessity and Compulsion or Jus necessitates.
This is explained in the famous maxim “Necessitas non habet legem”. It means:
“Necessity knows no laws”. The conditions for applying the doctrine of
necessity are
(i) Self-preservation:
A and B are drowning in the sea clinging to a plank which can support only one.
There would be no mercy or love on the opposite person. Each thinks to save
his own life. In such circumstances, might is right.
(iv) Right of Private Defence:
If A attacks against the person or property of B, or if A attempts to commit

rape against C, B can kill A to protect his person and property and also C can
kill A to protect her chastity.
Sec. 81. Act likely to cause harm, but done without criminal intent, and to
prevent other harm:

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Nothing is an offence merely by reason of its being done with the knowledge
that it is likely to cause harm, if it be done without any criminal intention to
cause harm, and in good faith for the purpose of preventing or avoiding other
harm to person or property.
Essential elements
For the defence to be established under this act, the offender must satisfy the
following
i. The act was done with the knowledge that it is likely to cause harm.
ii. It was done with an intention to prevent other harm.
iii. It was exercised without any criminal intention.
iv. The wrong-doer must act in good faith.
v. The Doctrine of necessity cannot be used for self-preservation, in that
the offender cannot use this doctrine to save himself from death or
injury.
Case : R vs Dudley and Stephen
The two defendants and a boy between the ages of seventeen and eighteen
were cast away in an open boat at sea following a storm. The boat drifted in
the ocean and was considered to be more than one thousand miles from land.
After seven days without food and five without water, S suggested that lots
should be drawn with the loser being put to death to provide food for the
remaining two. Subsequently however, D and S colluded to the extent that the
boy should be killed so that they could survive. They were found guilty of
murder. They were sentenced to death but later their sentence was reduced to
life imprisonment. It was held that necessity is no defense for a crime of self
preservation.
Q. Explain parties to crime

Definition
Common law divided guilty parties into principals and accessories. According
to the ancient analysis only the actual perpetrator of the felonious deed was a

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principal. Other guilty parties were called "accessories", and to distinguish

among these with reference to time and place they were divided into three
classes:
1. accessories before the fact,

2. accessories at the fact, and
3. accessories after the fact.
This concept evolved, and later, the accessory at the fact was labelled as a
Principal in the Second degree.
In English criminal law, the following are the four classes of parties to crime
1. Principal in the first degree.—One who actually commits the offence.

2. Principal in the second degree.—One who aids or abets or conspires
with the persons who commit the offence at the very time of its
commission.
3. Accessory before the fact. — One who being absent at the time of
commission of the offence procures, counsels, commands or abets
another to commit it.
4. Accessory after the fact – One who being absent at the time of
commission of offence, conceals evidence or harbours the accused or
dishonestly withholds information regarding the offence.
Parties to crime in Indian Penal Code
Indian Penal code does not expressly recognize the classification of parties to a
crime. All those who are present at the scene of the crime and participate in
the commission of the crime will be liable as the Principal offender under
specific Sections 130,136, 157, 201, 202, 203, 212, 216, 216A, 411,412,413,414
of the Penal code which provide for a criminal offence for roles played that is
of an accessory after the fact i.e of an assistant to the principal offender after
the commission of the offence. Under the provisions of constructive liability, as
per Section 34 of IPC, if a crime is commissioned by several people, each of
them will be liable for that act, as if that act was done by him alone.

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IPC classifies acts that constitute assistance to the principal offender using such
terms as
1. Harbour
2. Concealment
3. Omission and
4. False statements

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Q. What is law of joint liability as provided under section 34 I.P.C. ?

Whether acts of joint offenders can be distinguished ?
Introduction
The doctrine of joint liability deals with the conditions under which more than
one person incurs responsibility before, during and after committing crimes.
When one is accountable for another’s conduct, it does not matter whether
the defendant’s own conduct, the conduct of the other or others or the
conduct of all taken collectively or both together establish the elements of the
crime charged.
The common law recognized four parties to Crime viz.
1. principals in the first degree- actual perpetrators;

2. principals in the second degree – aiders and abettors, such as get way
drivers, conspirators;
3. accessories before the fact – aiders and abettors not present when the
crimes are committed, such as one who supplies the weapon that a third
person uses in a murder; and
4. accessories after the fact- individuals who give aid and assistance to
criminals who are fugitive.
If they were not convicted before the accomplices were brought on trial,
common law complicity shielded the accomplices even in the face of sure
proof of their guilt.
The concept of joint liability comes under Section 34 of IPC which states that
"When a criminal act is done by several persons in furtherance of 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."
The section can be explained as when two or more persons commit any
criminal act and with the intention of committing that criminal act, then each
of them will be liable for that act as if the act is done by them individually.
Meaning :

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Common Intention : Common Intention as contemplated by Section 34,

requires a prior consent or preplanning. It is intention to commit the crime and
the accused can be convicted only if such intention has been shared by all
accused. Such a common intention should be anterior in point of time to the
commission of crime but may also develop at the instant when such crime is
committed. It is difficult if not impossible, to procure direct evidence of such
intention, in most cases it has to be inferred from the acts or conduct of the
accused and other relevant circumstances
The ingredients of section 34 of IPC are-
1. A criminal act is done by several persons;

2. The criminal act must be to further the common intention of all;
3. There must be participation of all the persons in furthering the common
intention.
Illustration - There are two persons A and B. Both of them decided to rob a
bank to earn some quick money. Both of them decided in advance that they
will not hurt anybody and they will only take the money. After reaching the
bank A tells B to guard the gate of the bank while he takes the money. When A
was taking the money, security guard came running towards A. A out of fear,
stabbed the security guard with a knife due to which he died. After that A ran
with B along with the knife. In this case, even though B had no intention of
killing the security guard but he will also be liable for the murder of security
guard and robbery along with A.
Explanation
Section 34 of Indian Penal Code
1. It gives only a general definition as to what constitutes joint liability, it

does not give any punishment for criminal acts done jointly by two or
more than two persons.
2. This section is only a rule of evidence and it does not create any
substantial offence. Section 34 on its own does not create any distinct
offence and it lays down just a principle of liability that when two or
more persons do something which is contrary to law, then both of them
should be held liable.

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3. The Section 34 of IPC is a principle of constructive liability and the

essence of that liability is existence of common intention in the minds of
accused. There is also a canon in the criminal jurisprudence that the
courts cannot distinguish between the conspirators and it is possible for
them to see what part is played by which conspirator in the commission
of the crime, so each person is held jointly liable for the acts of another.
4. Common intention cannot be equated with similar intention or with
the same intention."
5. Since section 34 is itself not an offence, so every time when any criminal
act is done by two or more persons, then both the sections i.e. section
for that criminal offence and section of joint liability is applied.
6. In Ajay Pal Singh v. State of Punjab, 1999(1) RCR (Cri) 437. It was
observed In order to attract the provisions of Section 34, it is necessary
on the part of prosecution to establish that each one of the appellants
shared the common intention which must be prior in time to the actual
assault and any one of them had done the act in furtherance of said
common intention."
7. This section has to be read with various other sections of IPC like
a. section 120A which gives definition of criminal conspiracy,
b. section 120 B which gives punishment for criminal conspiracy and
c. section 149 which deals with unlawful assembly.
Then Section 35 of Code says -
When such an act is criminal by reason of its being done with a criminal
knowledge or intention. - Whenever an act, which is criminal only by reason of
its being done with a criminal knowledge or intention, is done by several
persons, each of such persons who joins in the act with such knowledge or
intention is liable for the act in the same manner as if the act were done by
him alone with that knowledge or intention.
Similarly section 37 of Code also provide the principle of joint liability in

following words :-
Co-operation by doing one of several acts constituting an offence. - When an

offence is committed by means of several acts, whoever intentionally co-

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operates in the commission of that offence by doing any one of those acts,
either singly or jointly with any other person, commits that offence.
Illustrations
A and B agree to murder Z by severally and at different times giving him small
doses of poison. A and B administer the poison according to the agreement
with intent to murder Z. Z dies from the effect of the several doses of poison so
administered to him. Here A and B intentionally co-operate in the commission
of murder and as each of them an act by which the death is caused, they are
both guilty of the offence though their acts are separate.
Q. 7 Compare the principle of joint liability for a criminal act committed by

several persons not exceeding four with that of a criminal act committed by
several person not less than five, bringing out clearly the points of distinction
if any ?
Introduction
The general principle of criminal liability is that it is the primary responsibility

of the person who actually commits an offence and only that person who has
committed crime can be held guilty.
Essential Elements
Section 34 of Indian Penal Code lays down a principle of joint liability in doing
of a Criminal Act. Section 34 of Indian Penal Code lays down:
"When a criminal act is done by several persons in furtherance of 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."
So Section 34 of Indian Penal Code
1. does not create any specific offence.

2. It is a principle of constructive liability.
3. A person could be convicted of an offence read with Section 34 I.P.C.
Section 34 of I.P.C. can be attracted only if accused share common
intention.

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4. The essential constituent of the vicarious criminal liability prescribed by

Section 34 is the existence of common intention.
Common Intention : Common Intention as contemplated by Section 34,

requires a prior consent or preplanning. It is intention to commit the crime and
the accused can be convicted only if such intention has been shared by all
accused. Such a common intention should be anterior in point of time to the
commission of crime but may also develop at the instant when such crime is
committed. It is difficult if not impossible, to procure direct evidence of such
intention, in most cases it has to be inferred from the acts or conduct of the
accused and other relevant circumstances
In Ajay Pal Singh v. State of Punjab, It was observed : "In order to attract the
provision of Section 34, it is necessary on the part of the prosecution to
establish that each one of the appellants shared the common intention, which
must be prior in time to the actual assault and any one of them had done the
act in furtherance of the said common intention. The law has always made a
very categorical distinction between `common intention', `same intention'
and `similar intention'. Common intention cannot be equated with similar
intention or with the same intention." In a recent judgement reported in
2001(2) Recent Criminal Reports 78 (Supreme Court) Suresh and others v.
State of U.P. three judge bench has discussed the provision of Section 34 I.P.C.
in detail:
As per K.T. Thomas, J.:
i. Section 34 is intended to meet a situation wherein all the co-accused

have also done something to constitute the commission of criminal act.
ii. Presence of co-accused at the scene is not necessary requirement to
attract Section 34.
iii. The accused who is to be fastened with liability on the strength of
Section 34 I.P.C. should have done some Act which has nexus with the
offence. The Act need not necessarily be overt, even if it is only a covert
act it is enough provided such covert act is proved to have been done by
co-accused in furtherance of common intention. Even an òmission'. Can
in certain circumstances amount to an act. Hence an act whether overt
or covert is indispensable to be done by co-accused to be fastened with

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the liability of Section 34. But if no such act is done by a person even if
he has common intention with others, Section 34, I.P.C. cannot be
invoked.
iv. There may be other provisions in I.P.C. like Section 120B or Section 109
which could be invoked then to catch such non-participating accused.
Thus participation in the crime in furtherance of the common intention
is sin quo non ( absolutely essential) for Section 34 I.P.C.
v. As per R.P.Sethi and B.N. Aggerwal, J.J. Section 34 I.P.C recognize the
principle of vicarious liability in criminal jurisprudence. It makes a person
liable for action of an offence not committed by him but by other person
with whom he shared" Common intention".
vi. It is a Rule of evidence and does not create a substantive offence......
Dominant feature for attracting Section 34 I.P.C. is the element of
participation in absence resulting in the ultimate "criminal act". The
Àct' referred to in latter part of Section 34 means the ultimate criminal
act with which accused is charged of sharing common intention. The
accused is therefore made responsible for the ultimate criminal act done
by several persons in furtherance of common intention of all.
vii. The Section does not envisage the separate act by all the accused
persons for becoming responsible for the ultimate criminal act.
viii. The word àct' in Section 34 denotes a series of acts as a single act.
Section 149 of Indian Penal Code lays down:
"If an offence is committed by any member of 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."
So Section 149 IPC creates specific and distinct offence. The vicarious liability
of the member of an unlawful assembly will extend only:
a. To the acts done in pursuance of the Common Object of the

unlawful assembly and
b. Such offences as member of unlawful assembly knew to be
likely to be committed in prosecution of that common object.

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c. In Umesh Singh v. State of Bihar, AIR 2000 SC 2111 It was

observed "Vicarious liability extends to members of the
unlawful assembly only in respect of acts done in pursuance of
common object of the unlawful assembly or such offences as
members of the unlawful assembly are likely to commit in the
execution of that common object.
d. An accused, whose case falls within the terms of Section 149
IPC as aforesaid, cannot put forward the defense that he did
not with his own hands commit the offence. Everyone must be
taken to have intended the probable and natural results of the
combination of the acts in which he had joined. It is not
necessary in all cases that all persons forming an unlawful
assembly must do some overt act....
e. The provisions of Section 149 IPC takes the accused out of the
region of abetment and makes them responsible as a
`Principal' for the acts of each and all, merely because he is
member of unlawful assembly."
Distinction Between Vicarious Liability under Section 34 and Section 149.
1. The basis of liability under Section 34 is the existence of common

intention animating from the accused person. Liability under Section
149 is based on the existence of common object or knowledge of the
probability of commission of offence.
2. Common intention as contemplated by Section 34 denotes action in
concert and necessarily postulates the existence of a prearranged plan
implying a prior meeting of mind while common object does not
necessarily require proof of prior meeting of mind.
3. The basis of constructive guilt under Section 149 is mere membership of
an unlawful assembly, the basis under Section 34 is participation in some
action with the common intention of committing a crime.
4. Common intention within the meaning of Section 34 is undefined and
unlimited. Common object is defined and limited to the five unlawful
objects stated in Section 141 of Code.
5. In order to hold a person liable for any offence by application of Section
34, the offence must be committed by two or more than two persons

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For application of Section 149 the offence must be committed by five or

more persons because then only they can form an unlawful assembly.
6. Section 34 enunciates the principle of joint liability but creates no
specific offence. Section 149 creates specific offence.

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Q. Discuss the law of defence of intoxication under Indian Penal Code.
Q. Define "Consent". Discuss in which situation defence of consent, can

lawfully he raised ?
Q. In what circumstances and to what extent will a plea of compulsion or

necessity be a sufficient, defence against the charge of criminal offence ?
Does it give absolute protection.
Q. What are the general exceptions to criminal liability

Note : Any specific defense may be asked. Write only that portion for the
exam
INTRODUCTION
When a person proved with the commission of an offence, and ought to have
been punished by law, if he is exempted from such legal punishment under
special conditions stipulated in the law, it is known as General Exception.
General exceptions have been explained under Sections 76 to 106 of IPC.
SECTION 6 IPC- Every definition of an offence, every penal provision and

illustration should be understood subject to the exceptions contained in the
Chapter titled “General Exceptions”.
These provisions specify the absence of the element mens rea in the acts of
commissions and omissions on the part of the offender of the offence.
The law offers certain defences that exculpate criminal liability. These defenses
are based on the premise that though the person committed the offense, he
cannot be held liable.
BURDEN OF PROOF
According to Section105 of INDIAN EVIDENCE ACT:
When a person is accused of any offence, the burden of proving the existence
of circumstances bringing the case within any of the General Exceptions in the
Indian Penal Code, (45 of 1860), or within any special exception or proviso
contained in any other part of the same Code, or in any law defining the
offence, is upon him, and the Court shall presume the absence of such
circumstances.

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Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he

did not know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges, that by grave and sudden provocation, he

was deprived of the power of self-control. The burden of proof is on A.
Types of exceptions
For committing a wrong, a person must be responsible for doing a wrongful act
without having any justification or excuse for it. In IPC provides some
exceptions as a defence. The defences are generally classified under two
heads:-
a. justifiable
b. excusable.
A justified act is a one which otherwise, under normal conditions, would have
been wrongful but the circumstances under which the act was committed
make it tolerable and acceptable.
The person fulfills all the ingredients of the offence but his conduct is held to
be right under the circumstances.
An excusable act is the one in which though the person has caused harm, it is
held that a person should be excused because he cannot be blamed for the act.
EXCUSABLE ACT – EXCUSABLE GENERAL EXCEPTIONS UNDER INDIAN PENAL

CODE
MISTAKE OF FACT (BOUND BY LAW)- SECTION 76
These provisions are based upon the common law maxim “Iqnorantia facti
doth excusat; Ignorantia juris non excusat.” (Ignorance of fact is an excuse, but
ignorance of law is not excused.)
Nothing is an offence which is done by a person who is, or who by reason of a

mistake of fact and not by reason of a mistake of law in good faith believes
himself to be, bound by law to do it.
Illustrations

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A, a soldier, fires on a mob by the order of his superior officer, in conformity

with the commands of the law. A has committed no offence.
A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and

after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.
ACT DONE BY A PERSON JUSTIFIED, OR BY MISTAKE OF FACT BELIEVING

HIMSELF, JUSTIFIED, BY LAW- SECTION 79
Nothing is an offence which is done by any person who is justified by law, or

who by reason of a mistake of fact and not by reason of a mistake of law in
good faith, believes himself to be justified by law, in doing it.
Illustration
A sees Z commit what appears to A to be a murder. A, in the exercise, to the

best of his judgment exerted in good faith, of the power which the law gives to
all persons of apprehending murderers in the fact, seizes Z, in order to bring Z
before the proper authorities. A has committed no offence, though it may turn
out that Z was acting in self-defence.
Case
In Raj Kapoor v. Laxman, 1980 AIR 605, 1980 SCR (2) 512, the Board of Censors
had given a certificate to the petitioner under the Cinematography Act, 1952
permitting public exhibition of a film. On being charged under section 292 of
the Code, the petitioner contended that once the certificate permitting public
exhibition was given by a competent authority under the Act of 1952 they
could not be held liable even if the film be obscene or tending to deprave or
corrupt public morals.
´The Supreme Court, agreeing with the contention, held that once the
competent authority in good faith issued the necessary certificate, the
petitioner producer and other agencies were protected under this section read
with section 5-A of the Act of 1952 at least because of their bona fide belief
that the certificate is justificatory.
ACCIDENT- SECTION 80

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Nothing is an offence which is done by accident or misfortune, and ´without

any criminal intention or knowledge in the doing of a lawful act in a lawful
manner by lawful means and with proper care and caution.
Illustration
A is at work with a hatchet; the head flies off and kills a man who is standing
by. Here, if there was no want of proper caution on the part of A, his act is
excusable and not an offence.
Case
In State of Orissa v. Khoraghasi, 1978 CrLJ 105 Ori, the accused was a tribal. He
went into the forest to hunt the animals. He shot an arrow with a bona fide
intention that he aimed at an animal. But the arrow caused the death of a
human being. The Orissa Divisional Bench of the High Court acquitted the
accused under Section 80.
ACT OF CHILD UNDER SEVEN YEARS OF AGE –SECTION 82
Sections 82 and 83 exempt the wrongful act of the child from the criminal
liability. “Doli incapax” means “Incapacity of a child”
Presumption of law- Doli Incapax-
A child has no discretion to distinguish right from wrong, thus criminal

intention does not arise. Hence the law grants absolute immunity to such an
infant from wrongful acts.
Nothing is an offence which is done by a child under seven years of age.
Ingredients:
1. *Act done by a child

2. *Under seven years of age
3. *Absolute incapacity for crime under seven years of age.
ACT OF CHILD ABOVE SEVEN AND UNDER TWELVE A YEARS- SECTION 83
Nothing is an offence which is done by a child above seven years of age and
under twelve, who has not attained sufficient maturity of understanding to
judge of the nature and consequences of his conduct on that occasion.

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Ingredients:
1. *Act done by a child

2. *Between 7-12 years of age
3. *Has no sufficient maturity of understanding
4. *To judge the nature and consequences of his conduct
Malitia Supplet Aetatem (Malice Supplies Age)-
A child is presumed to be doli incapax (incapable of crimes); but this

presumption may be rebutted by evidence of ‘mischievous discretion’ or guilty
knowledge that he was doing wrong. If proven to have sufficient maturity of
understanding, liability arises.
Case
Heeralal v. State of Bihar, AIR 1977 SC 2236, a child of eleven years quarrelled
with the deceased. The child threatened the deceased that he would cut him
into pieces. He picked up his knife and actually stabbed the deceased to death.
In the prosecution, the defence was pleaded under Section 83.
The trial Court convicted the boy/accused, and held that the boy was not
entitled to get the immunity under Section 83 because his words, gesture,
assault, keeping a knife in his pocket, stabbing the deceased, etc., showed that
the child had attained sufficient maturity of understanding to judge the
wrongful act and also the consequences of his act. The Supreme Court upheld
the conviction against the accused.
ACT OF AN INSANE PERSON - SECTION 84
Nothing is an offence which is done by a person who, at the time of doing it, by
reason of unsoundness of mind, is incapable of knowing the nature of the act,
or that he is doing what is either wrong or contrary to law.
Ingredients:-
1. *Act done , due to unsoundness of mind-

2. *no free will-
3. *born idiot, temporary failure, mad man, unconscious, intoxicated

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4. *Incapable of knowing the nature of the act, or that it is wrong or

contrary to law
It is based on Mc Nauqhten's rules. In 1843, the accused Mc Naughten killed

Mr. Drummond, the private secretary of the British Prime Minister Sir Robert
Pel, believing under a mistake that he was killing the Prime Minister. He
pleaded insanity and the House of Lords acquitted him of the murder. This
generated a lot of public sentiment and debate and the pressure was so much
that ultimately the House of Lords had to constitute a special committee of its
own judges to finalise the law relating to insanity. Accordingly, some questions
were put before a bench of 14 judges in House of Lords. From the answers
given some rules were framed towards determination 'of criminal
responsibility of insane and were called Mc Naughten rules. It states that "in
order to establish a defence on the grounds of insanity, it must be clearly
proved that at the time of committing the act (or making the omission), the
accused was labouring under such a defect of reason from disease of the mind
as not to know the nature and quality of the act he was doing, or if he knew
what he was doing, that he did not know it was wrong."
ACT OF AN INTOXICATED PERSON - Section 85, 86
Section 85
Nothing is an offence which is done by a person who, at the time of doing it, is,
by reason of intoxication, incapable of knowing the nature of the act, or that
he is doing what is either wrong, or contrary to law; provided that the thing
which intoxicated him was administered to him without his knowledge or
against his will.
The use of the words ‘without knowledge or against his will’ in the proviso
clause of this section indicates that the defence is available when either of the
two requirements, that is to say, lack of knowledge or against his will, is
proved.
The intoxication is against someone’s will when he is forced or coerced to take

the intoxicant, such as where some people by force inject an intoxicant into
the body of the accused.

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In Mirza Ghani Baig v. State of Andhra Pradesh, 1997- Voluntary drunkenness is

no excuse for commission of a crime.
Section 86 -
In cases where an act done is not an offence unless done with a particular
knowledge or intent, a person who does the act in a state of intoxication shall
be liable to be dealt with as if he had the same knowledge as he would have
had if he had not been intoxicated, unless the thing which intoxicated him was
administered to him without his knowledge or against his will.
It mainly says that when a person who was voluntarily intoxicated will be
treated as one who had full control of his mental faculties. He will be treated
as a person who commits the offense in the state of intoxication. The section
also gives provision that deals with the intention of the concerned intoxicated
person having to be committed the criminal act.
Ingredients:-
1. *Act of a person
2. *Incapable of judgment
3. *Due to intoxication
4. *Caused without his knowledge or against his will
In Basdev v. State of Pepsu, 1956, the intoxicated appellant was seated next to
a boy during a meal served at a wedding. He asked the boy to move a little to
so that he would occupy a more convenient seat. The boy refused. He shot him
in the abdomen and killed him on the spot. SC held that so far as attributing
knowledge is concerned, the intoxicated man is treated as if he was sober. So
far as intention is concerned, it is gathered from the general circumstances of
the case and the degree of intoxication.
Judicial action - Section 77, 78
Section 77- Act of Judge when acting judicially
Nothing is an offence which is done by a Judge when acting judicially in the

exercise of any power which is, or which in good faith he believes to be, given
to him by law.

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Illustration:
Judge sentencing a prisoner to death, even wrongly.
Section 78- Act done pursuant to the judgment or order of Court
Nothing which is done in pursuance of, or which is warranted by the judgment

or order of, a Court of Justice, if done whilst such judgment or order remains in
force, is an offence, notwithstanding the Court may have had no jurisdiction to
pass such judgment or order, provided the person doing the act in good faith
believes that the Court had such jurisdiction.
Illustration-
a. Hangman who hangs the prisoner pursuant to order.

b. Police executing search warrant (Gambling Act) though the warrant is
defective in law and illegal.
Absence of Criminal Intent - Section 81-86 & 92-94
Necessity Section 81
Nothing is an offence merely by reason of its being done with the knowledge
that it is likely to cause harm, if it be done without any criminal intention to
cause harm, and in good faith for the purpose of preventing or avoiding other
harm to person or property.
This section deals with the defence of necessity.
Quod Necessitas Non Habiet Leegem i.e. necessity knows no law. Breaking the
words of law is not breaking the law so long as the intent of the law is not
broken.
Act done with knowledge to cause harm in good faith, without any criminal
intention to cause harm, to prevent or avoid harm to person or property, in a
sudden and extreme emergency, if two evils are inevitable, direct events so
that the smaller one occurs.
It gives legal protection to the doctrine of salvage i.e. self-preservation. It

permits a lesser evil to avert a greater evil. It grants immunity to a man with
respect to acts committed under compelling circumstances forced necessity.

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Conditions to be satisfied are:-
a. The act must have been done without any criminal intention to
cause harm;
b. The act must be done in good faith to prevent or avoid harm to
other person or property
c. Harm done in order to avert a greater harm. (Mother’s life to be
saved over a child in the womb.)
Illustration-
A captain of a vessel, without his negligence finds suddenly a small boat within
a short distance, and hits it under forced circumstances to save vessel.
Similarly, pulling down a house to prevent great fire spreading to other areas is
necessity.
Conflict in the application of the Doctrine of Necessity (salvage) in two areas –
i) Necessity and homicide

ii) Necessity and Larceny. (stealing bread to avert
hunger)
A crime cannot be committed in order to avoid a greater harm-
Dudley v. Stephens, 1884- the accused were seamen. Their ship having
capsized in a storm they along with a boy, about seventeen years of age,
managed to float on a wooden plank.
They continued to drift for many days’ without food and drinking water. When
death by starvation of the three was almost imminent, they killed the boy and
continued to eat his flesh for a few days when they were rescued.
On being prosecuted for murder, they pleaded that self-preservation was the
utmost necessity and they had no option except to kill the boy. Both accused
were held guilty of murder and their defence of necessity in the form of self-
preservation of life was rejected and they were sentenced to death.
ACT DONE BY CONSENT Section 87-91
Acts done with the consent of the victim which do not amount to an offence.
Section -87-89 & 92 say under what conditions consent may be pleaded as a

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defence to a criminal charge i.e. when the harm caused to the consenting
individuals should not be punished in the interest of the community.
Section-90-
A consent is not such a consent as is intended by any section of this Code, if

the consent is given by a person under fear of injury, or under a misconception
of fact, and if the person doing the act knows, or has reason to believe, that
the consent was given in consequence of such fear or misconception; or
Consent of insane person if the consent is given by a person who, from

unsoundness of mind, or intoxication, is unable to understand the nature and
consequence of that to which he gives his consent; or
Consent of childunless the contrary appears from the context, if the consent is
given by a person who is under twelve years of age.
What is not consent?
1. *Given under fear of injury or misconception of fact

2. *Given from unsoundness of mind or intoxication
3. *Given by person under 12 years of age
ACT DONE BY CONSENT Section -87
Nothing which is not intended to cause death, or grievous hurt, and which is
not known by the doer to be likely to cause death or grievous hurt, is an
offence by reason of any harm which 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.
These sections extend protection in those cases only where harm is caused in
good faith for the benefit of the consenting party. This section is based on the
maxim, Volenti Non FIit Injuria , whuch means 'he who consents cannot
complain'.
Ingredients:

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1. Act intended or known, to cause death or grievous hurt, causes harm to

person above 18 years, on consent, to suffer.
2. Consenting party should be above 18 years of age.
3. Consent may reduce the gravity of offence or mitigate the rigor of the
punishment.
4. Consent may be Express or implied.
Illustration:
A and Z agrees to fence with each other for amusement. This agreement
implies the consent of 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 commits no offence.
It gives immunity will not justify causing death or grievous bodily injury or
harm likely to cause death, and which is known to the doer. The restriction is
absolute and unconditional.
Cases-
In Ponnei Fatimah’s case (1869), accused Snake charmer persuaded the

deceased to be bitten by a poisonous snake inducing him to believe that he
had the power to protect from any harm accused could not save the deceased
deceased’s consent did not excuse the accused from criminal liability.
Bishamber vs. Roomal – (rape of harijan girl) Self-constituted Panchayat had

the complainant parade through the village with blackened face and gave him
a show-beating to save him from the attack of harijans. Held the action of the
accused Panchayat is with the consent of the complainant.
Act not intended to cause death, done by consent in good faith for person’s
benefit- Section 88
Nothing, which is not intended to cause death, is an offence by reason of any

harm which it may cause, or be intended by the doer to cause, or be known by
the doer to be likely to cause, to any person for whose benefit it is done in
good faith, and who has given a consent, whether express or implied to suffer
that harm, or to take the risk of that harm.

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It grants immunity to persons like doctors from punishments for all acts, done
in good faith and for the benefit of the consenting party, which may cause any
harm except causing death intentionally.
Illustration:
A surgeon operating on a critical patient with the consent of the patient. In this
case there is no malice or negligence on the part of the doctor and the
operation conducted for the benefit of the patient.
Act done in good faith for benefit of child or insane person, by or by consent
of guardian- Section 89
Nothing which is done in good faith for the benefit of a person under twelve
years is an offence
It authorises guardian or other persons having lawful charge of –
i) child below the age of 12 yrs

ii) a person of unsound mind
who are not competent to give consent in law to consent to inflict harm either
himself or by another person, provided,
a. it is done in good faith and

b. for the benefit of the such minor/person of unsound mind, and
c. the act is not either immoral or illegal.
The benefit of Section 89 cannot be claimed in four situation covered under

the four provisos -
i) Intentional causing of death or attempt to cause death – Father, in

good faith, kills his own daughter from falling into the hands of
dacoits, in this case no immunity will be given since the act is
intentional and illegal.
ii) consent to the doing of anything likely to cause death for a purpose
other than prevention of death or grievous hurt .
iii) Causing or attempting to cause grievous hurt except for preventing
death or grievous hurt or infirmity. For example, causing grievous
hurt to a child under Sec-322 of IPC.

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iv) Abetment to commission of any offence.
Illustration-
Father intending monetary benefit to the child of 15 years, abets B to commit

rape on the child. Neither father nor B could be within the exception.
COMMUNICATION MADE IN GOOD FAITH - Section 93
No communication made in good faith is an offence by reason of any harm to

the person to whom it is made, if it is made for the benefit of that person.
Illustration A, a surgeon, in good faith, communicates to a patient his opinion
that he cannot live. The patient dies in consequence of the shock. A has
committed no offence, though he knew it to be likely that the communication
might cause the patient’s death.
It gives protection to a person from criminal liability for making a

communication to one which results in harm to him.
To claim this protection:–
a. the communication must be made in good faith, and

b. It must be made for the benefit of the person.
Illustration-
A doctor communicates in good faith to his patient the gravity of his disease
and the probability of his living. The patient died of shock. Doctor is exempted
from criminal liability.
DURESS Section 94
Act done under compulsion or threat
Except murder, and offences against the State punishable with death, nothing
is an offence which is done by a person who is compelled to do it by threats,
which, at the time of doing it, reasonably cause the apprehension that instant
death to that person will otherwise be the consequence,
Provided the person doing the act did not of his own accord, or from a
reasonable apprehension of harm to himself short of instant death, place
himself in the situation by which he became subject to such constraint.

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Ingredients:-
a. *Act done under compulsion

b. *or threat
c. *Of instant death
Illustrations:-
i)A person who, of his own accord, or by reason of a threat of being beaten,
joins a gang of dacoits, knowing their character, is not entitled to the benefit of
this exception, on the ground of his having been compelled by his associates to
do anything that is an offence by law.
ii)A person seized by a gang of dacoits, and forced, by threat of instant death,
to do a thing which is an offence by law; for example, a smith compelled to
take his tools and to force the door of a house for the dacoits to enter and
plunder it, is entitled to the benefit of this exception.
TRIFLING ACTS, CAUSING SLIGHT HARM- Section 95
Nothing is an offence by reason that it causes, or that it is intended to cause, or

that it is known to be likely to cause, any harm, if that harm is so slight that no
person of ordinary sense and temper would complain of such harm.
This section is based on the maxim, De MIinimis Non Curat Lex i.e. the law will
not take care of trifles.
Ingredients:
a. *It intends to prevent penalisation of negligible criminal wrongs, or

offences of trivial nature.
b. *Though such acts fall within the letter of the law, they are not
punishable within the spirit of law. Such acts are considered innocent.
Illustrations-
a. -To take a sheet of paper from other’s drawer

b. -Pressing a man and causing hurt while getting into a railway
compartment.
c. -Calling a person a liar, though it attracts defamation.

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Q. 8 What are the different kinds of Punishment ? For what offences may a
sentence of death he passed under Indian Penal Code ?
Introduction :
Administration of Justice is the primary functions of the State, is generally

divided into administration of Civil Justice and Administration of Criminal
Justice. The main purpose of Administration of criminal Justice is to punish the
wrongdoer. It is the State which punishes the Criminals. From the ancient
times, a number of theories have been given concerning the purpose of
punishment.
Meaning :
Punishment is a process by which the state inflicts some pain to the persons
or property of person who is found guilty of Crime. In other words punishment
is sanction imposed on an accused for the infringement of the established rules
of law.
Object
The Object of Punishment is to protect society from mischievous and

undesirable elements by deterring potential offenders, by preventing the
actual offenders from committing further offenses and by reforming and
turning them into law abiding citizens.
Theories of Punishments :
Deterrent theory – According to this theory, the object of punishment is not to

only prevent the wrongdoer from doing a wrong a second time, but also to
make him an example to others who have criminal tendencies. Salmond
considers deterrent aspects of criminal justice to be the most important for
control of crime.
Petty crimes like theft were punished with death or mutilation of parts. This
theory has been criticized because of its harsh, severe and inhuman
punishments.

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Preventive theory – Preventive theory is also known as 'theory of

disablement.' According to this theory, punishment is based on the
proposition, "not to avenge crime but to prevent it" The aim of this theory is to
disable the criminal. Offenders are disabled from repeating the crime by
awarding punishments, such as death, exile or forfeiture of an office. By
putting the criminal in jail, he is prevented from committing another crime.
Retributive theory – In Primitive society punishment was mainly retributive.

The person wronged was allowed to have revenge against the wrongdoer. The
Principle of 'an eye for an eye', 'a tooth for a tooth ', a nail for nail, limb for
limb was the basis of criminal administration. The idea behind this theory is to
make the offender realize the suffering / pain. The advocates of this theory
plead that the criminal deserve to suffer. The suffering imposed by the State in
its corporate capacity is considered the political counterpart of individual
revenge.
Reformative theory – According to Reformative theory, the object is of

punishment is the reformation of criminals. This theory seeks to bring about a
change in the attitude of offender so as to rehabilitate him as a law abiding
member of society. Even if an offender commits a crime under certain
circumstances, he does not cease to be a human being. The circumstances
under which he committed the crime may not occur again. Crime is a mental
disease, caused by different anti-social elements. Therefore the mental cure of
criminals rather than awarding punishment will serve the purpose. If the
criminals are educated and trained, they will be competent to behave well in
the society. Indian system of justice follows Reformative theory.
Types of punishments in IPC
Section 53 of the Indian Penal Code prescribes five kinds of punishments are as
follows:
a. Death
b. Imprisonment for life
c. Imprisonment, which is of two descriptions, namely -

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(1) Rigorous, that is with hard labour

(2) Simple
d. Forfeiture of property
e. Fine.
Death :
Death Penalty or capital Punishment is the most serious nature of punishment.

Some countries abolished it. A death sentence may be awarded under the
Indian Penal Code in the following cases -
a. Waging, or attempting to wage war, or abetting waging of war,

against the Government of India . (Section. 121)
b. Abatment of mutiny, if mutiny is committed. (Section 132)
c. Giving or fabricating false evidence upon which an innocent
person suffers death (Section. 194)
d. Murder (Section 302)
e. Abetment of suicide of a minor, or insane or intoxicated person
(305)
f. Attempt to Murder by a person under sentence of imprisonment
for life, if hurt is caused (Section 307).
g. Kidnapping for ransom etc. (Section 364A)
h. Dacoity with murder (Section 369)
Imprisonment for life -
Life Imprisonment means a sentence of imprisonment running throughout

the remaining period of a convict's natural life (till death). But in practice it is
not so.
According to Section 55 of Indian Penal Code, in every case in which sentence

of imprisonment for life shall have been passed, the appropriate Government
may, without the consent of the offender, commute the punishment for
imprisonment of either description for a term not exceeding fourteen years.
Section 57 states that in calculating fractions of terms of punishment,
imprisonment for life shall be reckoned as equivalent to imprisonment for
twenty years.

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K.M. Nanavati v. State of Maharashtra, (AIR 1962 SC 605)
In this case supreme court held that imprisonment for life means rigorous
imprisonment for life and not simple Imprisonment
Imprisonment - Rigorous and Simple :
1. Rigorous Imprisonment -
Imprisonment may be rigorous with hard labour. such as digging

earth, cutting wood etc.
According to Section 60 of I.P.C in every case in which an offender is

punishable with imprisonment which may be of either description, it shall be
competent to the Court which sentences such offender to direct in the
sentence that such imprisonment shall be wholly rigorous, or that such
imprisonment shall be wholly simple or that any part of such imprisonment
shall be rigorous and the rest simple.
The Indian Penal Code prescribes imprisonment as punishment for -
a. Giving or fabricating false evidence with intent to procure conviction

of capital offence (Section 194)
b. House-trespass in order to commit offence punishable with death
(Section 449)
2. Simple Imprisonment :
Simple imprisonment is imposed for small offences like wrongful

restraint, defamation etc. In case of simple imprisonment the convict will not
be forced to do any hard manual labour. There are some offences which are
punishable with simple imprisonment are as follows :
a. Refusing to take oath (Section 178)

b. Defamation (Section 500)
c. Wrongful restraint
d. Misconduct by a drunken person, etc (Section 510)
Solitary Confinement
Solitary Confinement means keeping a prisoner thoroughly isolated

from any kind of contact with the outside. A harsh and hardened convict may

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be confined in a separate cell to correct his conduct. Court can award this
punishment only when the offence is punishable with rigorous imprisonment.
Solitary confinement may be imposed subject to the following restrictions
a. Solitary confinement should not exceed three months of the

Substantive term of imprisonment
b. It cannot be awarded where imprisonment is not part of the
substantive sentence.
c. It cannot be awarded for the whole of term of imprisonment
d. It cannot also be awarded where imprisonment is in lieu of fine.
e. Solitary confinement should not be ordered unless there are special
features appearing in evidence such as extreme violence or brutality
in the commission of offence
f. According to Section 74 of I.P.C in no case the sentence of solitary
confinement be awarded more than fourteen days at a time. and it
must be imposed at intervals.
In Ramanjulu Naidu v. State, AIR 1947 Madras 381. It was observed that
solitary confinement should not be ordered unless there are special features
appearing in evidence such as extreme violence or brutality in the commission
of offence
Forfeiture of property -
Forfeiture of property means taking away the property of the criminal

by the State. Forfeiture of property is now abolished except in the case of
following offences :
1) Committing depredation on territories of Power at peace with the

Government of India(Section 126)
2) Receiving property taken by war or depredation mentioned in

sections 125 and 126 (Section 127).
Fine
The Courts may impose fine as sole imprisonment or alternative or it

may be imposed in addition to the imprisonment. The Indian Penal Code , 1860
prescribes fine along with imprisonment in respect of certain offences. In

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default of fine, imprisonment may be imposed. Section 64, 66, 67 of Indian

Penal Code provide regarding sentence of imprisonment for non-payment of
fine.
a. Section 64 reads as under - The term for which the Court directs the
offender to be imprisoned in default of payment of a fine shall not
exceed one-fourth of the term of imprisonment which is the maximum
fixed for the offence, if the offence be punishable with imprisonment as
well as fine.
b. Section 66 of Code provide the description of imprisonment for non-
payment of fine as -The imprisonment which the Court imposes in
default of payment of a fine may be of any description to which the
offender might have been sentenced for the offence.
c. Then Section 67 says about the imprisonment non-payment of fine when
offence is punishable with fine only. It reads as - If the offence be
punishable with fine only, the imprisonment which the Court imposes in
default of payment of the fine shall be simple, and the term to be
imprisoned, in default of payment of fine, shall not exceed,
a. for any term not exceeding two months when the amount of the
fine shall not exceed fifty rupees, and
b. for any term not exceeding four months when the amount shall
not exceed one hundred rupees,
c. and for any term not exceeding six months in any other case.
d. Then Section 68 of Code says that imprisonment which is imposed in
default of payment of fine shall terminate whenever that fine is either
paid or levied by process of law
e. and section 69 says - If, before the expiration of the term of
imprisonment fixed in default of payment, such a proportion of the fine
be paid or levied that the term of imprisonment suffered in default of
payment is not less than proportional to the part of the fine still unpaid,
the imprisonment shall terminate.
Q. 19 Discuss the law relating to right of private defence ?
Or

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Q. Under what circumstances the right of private defense of body extends to

causing death ( Answer partly)
Introduction :
Self help is the first rule of criminal law. The Indian Penal Code, 1860 has
given the right of private defence of body and property to every Individual.
Section 96 to 106 of Indian Penal Code states the law relating to the right of
Private Defence of person and property.
It is primary duty of the State to protect life and property of citizens. But
the fact is that State cannot watch each and every activity of the citizens.
There may be situations in which the State cannot help person immediately
when his life or property is in danger. In view of this Indian Penal Code has
given the right of private defence of body and property of every individual.
Right of Private Defence
In the words of Bentham, "The Right of Private Defence is absolutely

necessary for the protection of ones life, liberty and property. "
The law of private defence is based on two main principles -
(a) Everyone has right to defend his own body and property and anothers
body and property.
(b) The Right of Private Defence is not applicable in those cases where
accused himself is an aggressive party.
The Law of Private defence of body consists of set of principles
a. There is no right of private defence against an act, which in itself is not

an offence in this Act
b. The right commences as soon as, and not before reasonable
apprehension of danger arises from an attempt of threat to commit
some offence, although the offence may not have been committed and
it is continuous with the duration of the apprehension
c. It is a defensive and not a retributive or punitive right. The right does not
extend to causing more harm than necessary for defence

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d. The right extends to killing of the potential assailant when there is an

imminent apprehension of atrocious crimes enumerated in Section 100
e. There must be no reasonable mode of escape or retreat, confronted
with the imminent peril to life or grave bodily harm except by inflicting
death on the assailant.
f. The right does not accrue, if there is a recourse to the protection of
public authorities.
The provisions for Self Defence in IPC
Section 96 to 106 of Indian Penal Code, 1860 states the law relating to the right
of Private Defence of person and property. These provisions under the Indian
Penal Code gives authority to a man to use necessary force against wrong doer
for the purpose of protecting ones own body and property and also another's
body and property when immediate aid from the state machinery is not readily
available and in so doing he is not answerable in law for his deeds.
1. Things done in private defence (Section 96) :
Nothing is an offence which is done in the exercise of the right of private

defence.
2. Right of private defence of the body and of property (Section 97) :
Every person has a right, subject to the restrictions contained in Section 99, to
defend -
a. His own body, and the body of any other person, against any offence
affecting the human body;
b. 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.
Section 97 of Indian Penal Code divides the right of private defence into
two parts.
1. first part deals with the right of private defence of person and
2. second part with the right of private defence of property.

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3. The rights of defends is not only to the defence of own body or property
but also extend to defending the body and property of any other person.
Even a stranger can also defend the person or property of another
person and vice versa.
3. Right of private defence against the act of a person of unsound mind,
etc. (Section 98) :
Scope :
Section 98 of Indian Penal Code assumes that the right to private defence
from its very nature admits of no exception since it is the right of preservation
of one's life and property as also another's life and property against the world
at large. The right of defence of the body exists against all attackers, whether
with or without mens rea.
Right of private defence is available against -
(i) Minor;
(ii) Person of unsound Mind;
(iii) Intoxicated Person
(iv) Person having no maturity of understanding
(v) Person acting under misconception.
Illustrations
(a) Z, under the influence of madness, attempts to kill A; Z is guilty of

no offence. But A has the same right of private defence which he would have if
Z were sane.
4. Acts against which there is no right of private defence (Section 99) :
There is no right of private defence against an act
1. against an act if done, or attempted to be done, by a public servant

acting in good faith
2. against an act done, or attempted to be done, under the authority or
direction of a public servant who has authority in writing, and produces
such authority when demanded
3. cases in which there is time to have recourse to protection of the public
authorities

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4. cases where more harm than it is necessary is inflicted for the purpose
of defence.
5. When the right of private defence of the body extends to causing
death (Section 100)
The right of private defence of the body extends to voluntary causing of

death where such an assault
1. may reasonably cause the apprehension that death be the

consequence;
2. may reasonably cause the apprehension that grievous hurt be the
consequence;
3. with the intention of committing rape;
4. with the intention of gratifying unnatural lust;
5. with the intention of kidnapping or abducting
6. with the intention of wrongfully confining a person, without recourse
to the public authorities for his release.
7. may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of throwing or administering acid or an
attempt to throw or administer acid.
To invoke Section 100 of Indian Penal Code following four conditions must
exist.
1. The person exercising the right of private defence must be free from
fault in bringing about encounter.
2. There must be present an impeding peril to life or of great bodily
harm, rape, unnatural lust, kidnapping or abduction, wrongful
confinement etc.
3. There must be no safe or reasonable mode of escape by retreat, or
recourse to public authorities
4. There must have been a necessity for taking the life.
6. When such right extends to causing any harm other than death
(Section 101) :
The right to private defence on acts not covered under Section 100, extends to
voluntary harm caused to the assailant other than death.

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7. Commencement and continuance of the right of private defence of the

body (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.
8. When the right of private defence of property extends to causing death

(Section 103) :
The right of private defence of property extends, under the restrictions

mentioned in section 99, to the voluntary causing of death or of any other
harm to the wrong-doer, if the offence, the committing of which, or the
attempting to commit which, occasions the exercise of the right, be an offence
of any of the descriptions hereinafter enumerated, namely -
1. Robbery ;
2. House-breaking by night;
3. Mischief by fire committed on any building, tent or vessel, which
building, tent or vessel is used as a human dwelling, or as a place for the
custody of property;
4. 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.
9. When such right to causing any harm other than death (Section 104) :
If the offence, the committing of which, or the attempting to commit

which occasions the exercise of the right of private defence, be theft, mischief,
or criminal trespass, not of any of the descriptions enumerated in the last
preceding section, that right does not extend to the voluntary causing of
death, but does extend, subject to the restrictions mentioned in section 99, to
the voluntary causing to the wrong-doer of any harm other than death.
10.Commencement and continuance of the right of private defence of

property (Section 105)
The right of private defence of property against theft commences

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a. when a reasonable apprehension of danger to the property

commences.
The right of private defence of property against theft continues till
a. the offender has effected his retreat with the property or
b. assistance of the public authorities is obtained, or
c. the property has been recovered.
The right of private defence of property against robbery continues
a. as long as the offender causes or attempts to cause to any person

death or hurt or wrongful restraint or
b. as long as the fear of instant death or of instant hurt or of instant
personal restraint continues.
Right of private defence of property against criminal trespass or

mischief continues
a. as long as the offender continues in the commission of criminal

trespass or mischief.
The right of private defence of property against house-breaking by

night continues
b. as long as the house-trespass which has been begun by such

house-breaking continues.
11.Right of private defence against deadly assault when there is risk of
harm to innocent person (Section 106) :
If in the exercise of the right of private defence against an assault

which reasonably causes the apprehension of death, the defender be so
situated that he cannot effectually exercise that right without risk of harm to
an innocent person, his right of private defence extends to the running of that
risk.
Illustration : A is attacked by a mob who attempt to murder him. He cannot

effectually exercise his right of private defence without firing on the mob, and
he cannot fire without risk of harming young children who are mingled with
the mob. A commits no offence if by so firing he harms any of the children.

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Q What do you understand by "Abetment of an Offence" ? Discuss with the

help of decided cases and illustrations
Introduction
Accessories are not the main offenders, but who assist or aid them, are
known as accessories.
English law recognizes three types of accessories:
(1) Accessories before the fact;

(2) Accessories at the fact; and
(3) Accessories after the fact.
Further, when there are two or more parties to a crime, then they are
classed into:
a. Principals in the First Degree, i.e. those who actually commit the
crime or offence with their own hands or through innocent agent;
b. Principals in the Second Degree, i.e. Those who are present at the
commission of the crime and extend aid and assistance for its
commission;
c. Accessories before the fact, i.e., those who through not present in
the scene of occurrence or where the crime in committed, counsel,
procure or command another to commit the crime; and
d. Accessories after the fact, i.e. those who knowing that a person has
committed an offence knowingly receive, relieve, comfort, harbour or
assist him from escaping from the clutches of law.
Principals in the second degree and accessories at the fact are thus two
classifications denoting essentially the same type of offenders, and they
have been classed as abettors .
Meaning of Abetment
In common parlance, the word ‘abet‘ signifies help, co-activity and support
and incorporates within its ambit, illegitimate reason to commit the crime.
So as to bring an individual abetting the doing of a thing under any of the
conditions specified under Section 107 of the Indian Penal Code, it isn’t just
important to demonstrate that the individual who has abetted has

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participated in the means of the transactions yet additionally has been

associated with those means of the transaction which are criminal.
Abetment is constituted as per Section 107 IPC, by:
i. Instigating a person to commit an offence; or

ii. Engaging in a conspiracy to commit it; or
iii. Intentionally aiding a person to commit it.
Section 107 does not make the abetment of an ‘offence’ but of a ‘thing’, which
may or may not be an offence.
Instigation
A person is said to instigate another when he urges forward or provokes,

incites, urges or encourages such person to do an act prohibited by law.
i. Abetment requires a causal nexus between the intention to facilitate

or provoke or encourage the act, the knowledge of the act and the
commission of the act.
a. If a person who lends his support does not know or has no
reason to believe that the act which is aiding or supporting
was in itself a criminal act, then there is no case of abetment
b. There needs to be a close causal connection between
instigation and the act committed. Mere knowledge on part of
a person that his act would facilitate the commission of the
offence also does not make him an abettor
c. The act or omission must take place either prior to or at the
time of, the commission of offence. There can be no abetment
of an offence after it has been committed
d. For an individual to be called liable for Abetment, and so as to
proceed against an individual for a criminal offense under
Section 107, prosecution must claim the component of mens
rea.
i. Exceptions : The Supreme. Court while considering the
validity of the Terrorist and Disruptive Activities
(Prevention Act) 1987,19concurred with the Bombay
High Court judgment stating that ‘when no mens rea is

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essential in the substantive offence, the same is also

not necessary in the abetment thereof’
ii. The following cases, where abetment does not attract are
a. A person who is a silent spectator and takes no active part in
the commission of offence is not abettor A person, for
example, invites another casually or for a. friendly purpose and
that facilitates the murder of the invitee does not make him an
abettor unless the invitation was extended with intent to
facilitate the commission of the murder
b. Advice per se does not necessarily amount to instigation
c. A mere word, without necessary intent to incite a person,
uttered in quarrel or in a spur of the moment or in anger does
not constitute instigation
d. Negligence or carelessness can’t be named to be abetment in
order to punish the liable, according to the arrangement of
penal laws.
iii. Extended use cases of abetment include
a. The offense of abetment by instigation relies on the intention
of the individual who abets and not upon the act which is
finished by the individual who has abetted.
b. When the substantive offence is not established and the
principal offender is acquitted, then generally the abettor
cannot be held guilty.
c. Thus, when the law imposes on a person a duty to discharge,
his illegal omission to act renders him criminally liable as an
abettor. In the case of Tuck v. Robson, a publican( the person
who manages a pub or a bar) by not making any effort to make
his customers leave the premises after the pub was closed, was
said to have aided the crime of abetment of consumption of
the liquor after the hours in which it was permitted.
Conspiracy
Conspiracy and abetment by conspiracy are distinct offences. The distinction

between an offence of abetment by conspiracy and the offence of criminal
conspiracy, so far as an agreement to commit an offence is concerned, is that

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for abetment by conspiracy, mere agreement is not enough. An act or illegal

omission must take place in pursuance of the conspiracy and in order to the
doing of the thing conspired for But in the offence of conspiracy, the very
agreement or plot is an act in itself and is the gist of the offences.
a. Legal principles of conspiracy include

i. The essence of the offence of conspiracy is the fact of
combination by agreement. The agreement may be express
or implied, or in part express and in part implied.
ii. The acrus reus in a conspiracy is the agreement to execute
the illegal conduct, not the execution of it.
iii. The persons who are initially guilty of conspiracy to commit
an offence become guilty of abetting the offence as soon as
an act or illegal omission takes place in pursuance of the
conspiracy.
Illustration: If A and B conspire to rob C, and B not only robs but even kill C, A
cannot be said to abet the killing unless it can be said that A must have
foreseen it as a probable consequences of the conspiracy.
Intentional aiding
Intentional aid consists of any of the following three components:
a. Doing of an act directly assisting the commission of the crime; or

b. Illegally omitting to do a thing which one is bound to do; or
c. Doing an act which may facilitate the commission of the crime by-
another.
Legal principles
a. Mere knowledge on part of a person that his act would facilitate

the commission of the offence also does not make him an abettor
b. Intention to aid the commission of the offence is the gist of the
offence of abetment by aid.
c. A person aiding the commission of an offence under coercion or
fear, therefore, does not come within purview of the provision.
Abettor:

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Section 108 defines Abettor as the person who abets
1. the commission of an offence or

2. the commission of an act which would be an offence if committed
by a person not suffering from any physical or mental incapacity.
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. The
explanation relates to the same person and shows that he may be guilty as an
abettor though as a principal he may be innocent.
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
Explanation 4: The abetment of an offence being an offence, the abetment of

such an abetment is also an offence.
Section 108A puts abetment of offences to be committed outside India on the

same footing as the abetment of offences to be committed in India.
Relevant sections on Abetment
iv. In Section 109 of the Indian Penal Code, the one who abets an
offence is given the same punishment as that of the principal
perpetrator of the crime if the actus reus of the principal offender
has occurred as a result of the inducement made by the abettor.
v. Section 109 of the Penal Code will attract, even if the abettor is
absent when the offense abetted is committed, if the person has
committed any acts as mentioned under Section 107.
vi. Section 110 of the Indian Penal Code gives that even if the individual
abetted commits the offense with an intention different than the
intention possessed by the main perpetrator of the crime, yet the
abettor will be charged with the punishment provided for the offence
abetted.
vii. Section 111 of the Indian Penal Code gives that , if an act of abetment
on a person to execute a specific wrongdoing is committed, and that

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other, in pursuance of such instigation, commissions not just that

wrongdoing but carries out another wrongdoing in advancement of
it, the former is criminally liable as an abettor in regard of such last
mentioned wrongdoing
viii. Under section 112 an abettor may render himself liable for two
offences, when he only intended to bring about one, if the one which
he intended caused another which he ought to have anticipated, and
if the two are distinct offences so as to be subject to distinct
punishments
ix. If a person is present, who if absent would have been liable to be
punished as an abettor, is deemed under section 114 to have
committed the crime
Q Define Unlawful Assembly and Discuss the more aggravated forms of

offence related to unlawful assembly.
Section 141 of Indian Penal Code defines "Unlawful assembly" as:-
An unlawful assembly as per section 141 of Indian Penal Code, 1860 (IPC)
means an assembly of 5 or more persons if the common object of the assembly
is-
1. To overawe by using criminal force or show criminal force, to Central

or any State Government or Parliament or any State Legislature or
any public servant; or
2. To oppose the performance of any law or legal process; or
3. To carry out any mischief or criminal trespass or any other offence; or
4. By use of criminal force takes possession of any property or deprives
any person of the right to the way or the use of water or any
incorporeal right; or
5. With the use or show of criminal force compels any person to do any
illegal act.
As section 141 there has to be
a. at least 5 members and

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b. should have any one or more than one common object as mentioned
above, to constitute an unlawful assembly. The essence of section 141
requires 5 persons and their common object.
c. Being simply present with other members without any common object
does not amount to an unlawful assembly.
d. The mere presence of any person in an assembly without any common
object does not make him the member of the unlawful assembly.
In Bhanwar Singh v. the State of M.P.,[1] the court held that the
common object of an unlawful assembly depends
a. firstly on whether such object can be classified as one of those
described under section 141;
b. secondly, such common object need not be the product of prior
concert but may form on spur of the moment,
c. finally, nature of such common object is a question of fact to be
determined by considering the nature of arms, nature of
assembly, behaviour of members etc.
e. The common object essentially to be examined keeping in view the acts
of the members and the surrounding circumstances of a particular case.
Further, there is always a possibility that an assembly may be turned to
an unlawful one.
f. An assembly which was not unlawful when it assembled, may
subsequently become an unlawful assembly.
Section 142 :
The essential ingredient of section 142 is that
a. as soon as the person is aware of the fact that the assembly is unlawful,
it is to be proved that he remained as the part of such assembly despite
to knowing the fact that it is unlawful. The word ‘continues’ under
section 142 signifies physical presence as a member of an unlawful
assembly, that is, to be physically present in the crowd.
b. This section cannot be attributed to a person who knows that the
assembly is unlawful and is present as a just bystander. In the case of
Apren Joseph, it was held that the test is whether the person knows the

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common object of the assembly and continues to keep its company due
to his own free will.
Section 143 : A person who is a part of an unlawful assembly shall be

punishable with an imprisonment which may extend to 6 months, or with fine,
or with both.
Aggravated unlawful assembly
Section 144 is aggravated form of section 141 and the aggravation consisting in
carrying of lethal arms which by itself a menace to peace and which shows
preparation and an intention to use force.
Section 145 aggravates the punishment, where a person joins or continues in

an unlawful assembly defined in Section 141, which has been commanded by
law to disperse, with a punishment with imprisonment for a term which may
extend to two years, or with fine, or with both.
Dispersal of Unlawful Assembly by use of Civil Force:
The fundamental right under article 19(1)(b) of the Constitution is subject to

reasonable restriction as imposed under article 19(3). Section 129 of Cr.P.C.
aims to protect public peace. Section 129(1) confers power to Executive
Magistrate or any police officer not below the rank of sub-inspector to
command for the dispersal of any unlawful committee or any assembly of 5 or
more persons which is likely to cause a disturbance of the public peace. It shall
be the duty of the members of the assembly to disperse accordingly, as soon
as it is commanded to disperse. The subsection (1) only provides power to
command not the power to use force.
Q What is the liability of a member of an unlawful assembly for an act

committed by another member in prosecution of common object?
Section 149 of Indian Penal Code deals with rule of Constructive liability that is
to say, liability for an act not actually done by accused. Section 149 days :-
"If an offence is committed by any member of an unlawful assembly in

prosecution of common object of that assembly or such as the members of

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that assembly knew to be likely to be committed in prosecution of that object,

every person who at the time of committing of that offence, is member of
same assembly is guilty of that offence."
So section 149 I.P.C. requires primarily that person should be member of

unlawful assembly, that in prosecution of the common object of that assembly,
as offence should be committed by a member of that assembly and offence
should be of such a nature tha member of assembly knew the offence likely to
the committed in prosecution of their common object.
In Shiva Shankar Pandey & other v. State, 2002(4) RCR (Cri) 101 - Supreme
Court observed that vicarious Liability of members of unlawful assembly arises
where offence is committed by another member or members of unlawful
assembly if the commission of such offence is common object of that assembly
of if members of unlawful assembly knew that the offence of nature
committed was likely tot be committed though the common object may be
something different.
Q. Discuss the law relating to hiring a person or being hired to join an

unlawful assembly.
Q. Discuss also the law relating to harbouring persons hired for an unlawful
assembly.
Section 150 of I.P.C. lays down as under :-
The liability for hiring a person to join unlawful assembly is that any such
person shall be treated as member of such assembly and further held liable for
any offence committed by person hired to the same extent as if he had
committed such offence himself.
Being hired to join an unlawful assembly. - The person who is hired to join an
unlawful assembly shall be punishable with imprisonment of either description
for a term which may extend to 6 months or with fine both and if he goes
armed or offers to go armed with any deadly weapon or with anything which,
used as a weapon of offence is likely to cause death, he shall be punished with
imprisonment of either description for a term which may extend to two years,
or with fine or with both.

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The person who hires is punished as above under Section 150, I.P.C., which
deals with persons who are engaged or hired or offer or attempt to be hired or
engaged to do or assist in doing any of the acts which constitute an assembly
of five or more persons into an unlawful assembly.
The liability thus is the same whether one is actually hired or attempts to be
hired. The circumstances in which attempt to be hired is punished is that such
attempt must be to do or assist in doing any act which may render an assembly
an unlawful assembly as defined in the Indian Penal Code.
Harbouring persons hired for an unlawful assembly. - Whoever harbours,

receives, or assembles, in any house or premises in his occupation, or charge,
or under his control any persons, knowing that such persons have been hired,
engaged or employed or are about to be hired, engaged or employed to join or
become members of an unlawful assembly, shall be punished with
imprisonment of either description for a term which may extend to six months,
or with fine, or with both (Section 157).
Q. Write short notes on Mistake of Fact :

Section 76 of Indian Penal Code are para phrase of the English Common law
maxim in its application to criminal law "ignoratia facit excusat ignoratia juris
non excusat" that means in criminal law mistake of fact is a good defense while
mistake of law is no defense. Every man is presumed to know law. The reason
why ignorance of law is never a defense is that if it were a defense, it would
screen offenders and lead to endless complications
Section 76 lays down:
"Nothing is an offence which is done by a person who is or who by reason of

mistake of fact and not by reason of mistake of law in good faith believes
himself to be bound by law to do it."
Section 79 I.P.C. provides :
"Nothing is an offence which is done by any person who is justified by law or

who by reason of mistake of fact and not by reason of mistake of law, in good
faith, believes himself to be justified by law, doing it."

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So Section 76 is analogous to Section 79, the only difference between the two,
being that a person under section 76 believes himself to be bound by law to do
a thing whilst under section 79 he similarly feels justified by law in doing it.
3. Mistake of fact always supposes some error of opinion or implies a total

want of knowledge in reference to the subject matter.
4. Mistake of fact to be an excuse must be mistake in respect of a material
fact, a fact essential to constitute the offence. However a mere mistake of
fact is not enough.
5. It must be an honest mistake of fact and it must not be known to the actor
as a mistake when the deed was done.In R. v. Tolson, (1889) 23 Q. B.D. 168
It was observed "Honest and reasonable mistake stands on the same
footing as absence of reasoning faculty as in infancy".
In this case Accused had gone through the ceremony of marriage within seven
years after she had been deserted by her husband. She believed in good faith
and on reasonable grounds that her husband was dead. It was held that a
bonafide belief on reasonable grounds in the death of the husband at the time
of second marriage afforded a good defense to the charge of bigamy.
Similarly in Chiranji v. State, AIR 1952 Nag. 282 A father kills his own son
believing in good faith, him to be a tiger. It was observed that a hunter
mistakes a man for an animal and fires, here through a mistake a man
intending to do a lawful act, has done that which is unlawful. There has not
been that conjunction between his act and his will, which is necessary to form
a criminal act. If there was no mens rea, there was a mistake therefore it may
be no crime.
Exceptions to mistake of fact
However there are two exceptions to the Rule that mistake of fact is a good
defense.
1. First No one is allowed to plead ignorance of fact, when responsible

inquiry would have elicited the true facts
2. Secondly Mistake of fact is not a good defense in strict liability cases, e.g.
selling adulterated food stuff is an offence under Prevention of Food

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Adulteration Act 1954 and in such like offence, mistake of fact is not
acceptable.
Q. Write short notes on criminal liability of minor.

Section 82 of the Indian Penal Code provides that
"Nothing is an offence which is done by a child under seven years of age".
Section 83 provides
"Nothing is an offence which is done by a child above seven years of age and
under twelve who has not attained sufficient maturity of understanding to
judge the nature and consequences of his conduct on that occasion". Section
82 and 82 lay down a Rule which owing to its origin to the Civil Law, had long
since become established in the criminal system of all civilized countries
Section 82 I.P.C. confers an absolute immunity from criminal liability in case of
child under seven years of age. An infant below 7 is absolutely "doli incapax".
In the ordinary course of nature a person of such age is absolutely incapable of
distinguishing between right and wrong. Section 83 deals with the cases of
qualified immunity because child above 7 but below 12 years of age is
presumed to be possessed with maturity of understanding and capacity to
commit crime. However this presumption is rebuttable and a child between 7
to 12 years of age is qualified to avail the defense of "doli incapax" if it is
proved that he has not attained sufficient maturity to understand the nature
and consequences of his conduct.
In Santosh Ray v. State of W.B., 1992 Cr L J 2493 It was observed "In a child's
life the period between 7 and 12 years of age is rather the twilight period of
transaction to a minimal workable level of understanding of things in the
firmament of worldly affairs and that is why both the Indian Penal Code and
the oaths Act have made special provisions for children below 12 years in
respect of matters dependent on a minimal power of understanding. The
Indian Penal Code provide no protection from culpable liability on ground of
tender age to one who is aged 12 years or more."
Q. Short notes on Criminal conspiracy

To constitute a crime therefore, it is essential that there is actus reus. i.e. an
act or conduct, followed by means rea, which means ill will or criminal intent.

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Such an act with the intention shall have certain external consequences
involving causing harm or injury to the community.
Unlike other criminal offences which require simultaneous occurrence of actus

reus and mens rea, Criminal conspiracy is made punishable only at the stage of
mens rea. Therefore, omission of the act in furtherance of intention is not an
essential aspect of criminal conspiracy.
Criminal conspiracy under section 120A Indian Penal Code (IPC) is a substantive
offence in itself and punishable separately. There have been rare instances
where persons have been tried for commission of the substantive act of
criminal conspiracy.
Requirements under Section 120A, IPC
a. There should be an involvement of 2 or more persons. It is an

established principle that conspiracy requires involvement of 2 persons
and one alone cannot commit the offence of conspiracy.
b. Who are in agreement with one another
c. This agreement relates to causing or getting done-
· an illegal act; or
· a legal act by illegal means.
This agreement would be designated as a conspiracy. ‘Agreement’ is thus the

sine qua non the bottom rock for constituting conspiracy. It reflects the
unlawful combination which in turn reflects the object and purpose of the
conspiracy.
However, most commonly, the charge of criminal conspiracy is slapped on an

accused person along with the charge of a substantive offence under the IPC or
any other law which he may be accused of committing along with other co-
conspirators.
Criminal conspiracy is hatched to commit an illegal act which is an offence

punishable under law.
a. It is not essential that the accused person must do an overt act, and
mere agreement between two or more persons to commit an illegal act
is sufficient to constitute the offence of criminal conspiracy.

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b. It is also not necessary that the object of the conspiracy should have
been achieved for it to be considered as an offence.
c. Even if the conspiracy fails on account of abandonment or detection
before commission of offence, the very act of entering into an
agreement by the co-conspirators is itself an offence and punishable
under the law.
d. the standard of proof for the act of criminal conspiracy is the same as
that of any other criminal offence i.e. beyond reasonable doubt.
e. Criminal conspiracy is therefore called an inchoate offence because it
does not require commission of any act in furtherance of this intention.
Therefore, conspiracy is punishable not for what the conspirators do but
what they agree to do.
Punishment
Section 120B thus categorizes conspiracy into 2 categories.
1. Conspiracy to a serious offence– This is an offense punishable with

imprisonment of more than 2 years- In the absence of any express provisions
in the IPC, it would be punishable in the same manner as if he had abetted the
offence.
2. Conspiracy to commit other offences– Shall be punishable with uniform

punishment, i.e. fine or imprisonment upto 6 months or both.
Exceptions:
a. The prosecution is not required to prove that perpetrators agreed to do

or cause to be done the illegal act;
Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra, AIR

1981 SC 162: (1981) SC Cr 381: (1981) Cr LJ 597.
b. The evidence as to transmission of thoughts sharing the unlawful design

may be sufficient;
Kehar Singh v. State (Delhi Admn.), (1989) Cr LJ 1: AIR 1988 SC 1883.

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Q. Distinguish Riot and Affray

Section 146 of Indian Penal Code defines offence of "Rioting" as: "Whenever
force or violence is used by an unlawful assembly or by any member thereof, in
prosecution of the common object of such assembly, every member of such
assembly is guilty of the offence of rioting."
Section 159 has defined offence "Affray" as: "When two or more persons by
fighting in a public place, disturb the public peace, they are said to "commit
any affray".
Ingredients of affray. –
i. Two or more persons should fight,

ii. fighting place should be a public place,
iii. it should cause the disturbance of the public peace.
Distinction between affray and riot : The two differ from each other in the
following respects:
b. An affray cannot be committed in a private place; a riot may take

place anywhere, i.e., both at a public and a private place
c. An affray can be committed by two or more persons, a riot can be
committed by at least five persons
d. Rioters are those who first constitute an unlawful assembly; an
affray need not be so.
e. The punishment awarded in the case of riot is imprisonment for
two years, but in the case of an affray it is one month or fine up to
Rs. 100 or both.
Q. Differentiate public and private nuisance

Public Nuisance, also known as Common Nuisance is one of the two kinds of
Nuisance, the other one being Private Nuisance. It essentially means an activity
on one’s land that materially affects a class of people. It is a punishable
offence.
Section 3(48) of the General Clauses Act, 1897 and Section 268 of the Indian
Penal Code both deal with Public Nuisance.

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When courts and law reports mention ‘nuisance’ it is usually referred to

Private Nuisance and not Public Nuisance. When statute law refers to a
‘nuisance; it could be both Public Nuisance and Private Nuisance unless stated
otherwise.
Essential elements
1. An act or illegal omission

2. Should cause any common injury, danger or annoyance
3. Should be caused to the people in general who dwell, or occupy the
property, in the vicinity
4. Must necessarily cause an injury, an obstruction, danger or any
annoyance to persons who may have occasion to use any public right.
Public Nuisance Private Nuisance

No
1 Meaning: Meaning:
According to Section 268 of IPC Private Nuisance means any illegal act
Public Nuisance Is a Criminal of omission causing injury or danger to any
Offence. It means any illegal act or individual or his property in particular.
omission causing injury, obstruction,
danger or annoyance to public in
general or public at Large.
2 Definition: Definition :
A person is guilty of a public Private nuisance may be defined as

nuisance who does any act or is guilty unlawful interference with another's use and
of an illegal omission which causes any enjoyment of property or someone's right
common injury, danger or annoyance to over or in connection with property.
the public or to the people in general
who dwell or occupy property in the (Private nuisance is not defined in Indian
vicinity, or which must necessarily Penal Code)
cause injury, obstruction, danger or
annoyance to persons who may have
occasion to use any public right.
(Section 268 Indian Penal Code)
3 Nature: Nature:
It affects the public at large. It affects only Individuals or

determinate body thereof.
4 Right To sue: Right To sue:
Any public motivated or A private individual or his legal

spirited person or organization or representative, to whom or to whose
association can sue. property injury is caused can sue.

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5 Remedy: Remedy:
Injunction restraining from Damages can also be claimed with

doing any illegal act or omission. injunction.
UNIT III
Q Hurt and Grievous hurt
Under the Indian Penal Code (IPC), the offence of hurt can be found in the
‘offences affecting the human body’ chapter. Physical assault is one of the
main offences that finds mention in the IPC. On the basis of seriousness of the
offence, it is divided into the following four categories:
1. Assault (section 351, IPC);

2. Hurt and Grievous Hurt (sections 319, 338, IPC);
3. Culpable Homicide, (sections 299, 304, IPC) and
4. Murder (sections 300, 302, IPC)
5. Hurt ( Sections 319 to 338 IPC)
The offence of hurt has been defined in Section 319 of the Indian Penal Code,
1860.
“Whoever causes bodily pain, disease or infirmity to any person is said to cause
hurt.”
Essential Ingredients
The offences of hurt and assault might sound similar but there are some basic
differences between them. While enacting these provisions, the authors of IPC
deliberately kept these offences separate. This is because bodily hurt can take
place even by acts which are not assaults. For example, a person may dig a
hole and conceal it to make somebody fall and get hurt, but this is not an
assault.

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It is interesting to note that hurt is referred to as battery under English Law. As

is evident from the above definition of hurt, in order to constitute hurt, it is
essential to cause
b. Bodily pain,
c. Disease, or
d. Infirmity to another
In addition, aggravated crimes under grievous hurt, are classified on specific

methods or tools used to commit the act are added under various sections
a. Causing hurt using dangerous weapons (324, 326)

b. Causing grievous hurt using acid ( 326 A, 326B )
c. Causing hurt by means of poison (328)
Bodily pain
The first thing that needs to be noted here is that it is hurt only if it is bodily
pain and not mental pain. There is a difference between hurt and pain. A
person might be in a lot of emotional pain due to the acts of another, however,
under IPC since there is no bodily pain, the other person cannot be charged
with hurt.
The second thing that should be underscored here is that while bodily pain is
necessary for hurt, physical contact is not. In other words, if an act does not
involve any physical contact but results in the causing of bodily pain, it is still
hurt.
The last important point to be referred to here is the situation where hurt
leads to death.
Case Law
Dhani Ram v. Emperor
If the injury is not serious and there was no intention to cause death, nor had
the accused knowledge that it was likely to cause death, or grievous hurt, the
accused would be guilty of causing hurt only, even though death is caused.
Disease

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Hurt is not just restricted to bodily pain. Even communication or transfer of a

particular disease by one person to another can be subsumed within the
definition of hurt under the IPC. But it is fascinating to note here there are
contradictory orders passed by various courts on this issue.
Case Law
R v. Clarence
This case related to the transfer of sexual disease from husband to wife. The
Court held that the husband was not guilty of hurt even though he had
infected his wife with gonorrhoea inspite of knowing his condition and being
aware that she would not have had sexual intercourse with him had she known
his condition.
Infirmity
The general sense of the word ‘infirmity’ refers to some sort of weakness.
However, in the present context infirmity refers to a temporary mental
impairment, hysteria or terror. A case law will help understand this provision
better.
Case Law
Jashanmal Jhamatmal v. Brahmanand Sarupananda[6]
The essence of this case is as follows. The accused landlord, in order to frighten
the tenant’s wife, uttered a violent scream in the middle of the night and
waved a pistol in front of the woman. The woman was shocked, hence
collapsed, and was seriously ill for considerable time. It was held that this was
within the meaning of temporary impairment or hysteria and hence the
accused had caused infirmity and in turn, hurt.
Q. Short notes on Grievous Hurt

Grievous hurt under Section 320 is basically an aggravated form of simple hurt
under Section 319. The following eight kinds of hurt only can be grievous hurt:
ACRONYM : EEE MM DD 20 days
a. Causing hurt by emasculation (castration of male sexual organs);

b. Permanent privation of one’s eyes;

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c. Permanent privation of one’s ear;

d. Privation of one’s members or joints;
e. Destruction or permanent impairing of the powers of one’s members or
joints;
f. Permanent disfiguration of one’s head or face;
g. Fracturing or dislocating one’s bones or teeth;
h. Causing any hurt which endangers one’s life or causes him to suffer
severe bodily pain for 20 days or makes him unable to follow his
ordinary pursuits.
Whenever hurt amounts to any of these eight kinds of injuries, it becomes

grievous hurt. The prosecution or victim must be able to prove the existence of
these injuries.
Punishment for voluntarily causing grievous hurt
If an offender intentionally and voluntarily causes grievous hurt, Section 325

punishes him with imprisonment up to 7 years. The punishment may also
include a fine.
Punishment for causing hurt with dangerous weapons
The offence of simple hurt aggravates when an offender commits it with

dangerous weapons or methods. For example, he may cause hurt using
instruments of shooting (guns), stabbing or cutting (knives). He may even use
fire, heated substances, poison, explosives, corrosive substances, etc. He may
also use any other instrument which is likely to cause death.
Since simple hurt gets aggravated when these kinds of weapons or means are
used, the punishment for these offences becomes severe. While the
imprisonment sentence for simple hurt extends to 1 year, it goes up to 3 years
for these offences. The court can also levy a fine in addition to imprisonment.
Grievous hurt by throwing acid :
The most notable effects of an acid attack are the lifelong bodily
disfigurement. The acid attack is a form of violent assault by throwing
corrosive substance onto the body of another person with the intention to
disfigure the body. Mainly acid are thrown at the face of victim, burning them,

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and damaging skin tissue, often exposing and sometimes dissolving the bones.
The long consequence of such type of attack is that it makes the person blind,
as well as permanent scarring of the face and body. The acid attack makes the
life of the person worse and it also affects their social, economic and
psychological life.
According to the Section 326A of Indian Penal Code “Acid” includes any
substance which has acidic or corrosive character or burning nature that is
capable of causing bodily injury leading to scars or disfigurement or temporary
or permanent disability. The long term consequences of these attacks may
include blindness, as well as permanent scarring of face and body, along with
far-reaching social, psychological, and economic difficulties. Section 326A and
Section 326B of Indian Penal Code includes punishment which is given to an
accused which read as follow:
Section 326A lays down the punishment for acid throwing. The minimum
punishment is 10 years imprisonment. It can extend up to life imprisonment
with fine.
Section 326 B lays down the punishment for attempted acid throwing. The
minimum punishment is 5 years imprisonment. It can extend up to 7 years
imprisonment with fine.
After the leading case of Laxmi v UOI, the Supreme Court passed an order to
put ban on selling of acid in shops. For preventing acid attacks,
a. the Supreme Court has completely prohibited the counter sale of the
chemical unless the seller maintains a recording of the address and
other details of the buyer, and the quantum.
b. Dealers can now only sell the chemical after the buyer showed a
government issued photo identity card and after specifying the purpose
of purchase.
c. The seller should submit the details of sale to the local police within
three days of the transaction.
d. Acid should not be sold to any person under 18 and all stocks must be
declared with the local sub-divisional magistrate (SDM) within 15 days.
e. Undeclared stocks could be confiscated and the defaulter fined up to
Rs.50, 000.

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f. Acid attack is now a non-bailable and cognizance offence.
Laxmi of 22 years old, who was an acid attack survivor was waiting for a bus in
Delhi’s tony Khan Market in 2005, when two men poured acid on her after she
refused to marry one of them, leaving her disfigured. Though the victim and
her parents were poor they were fortunately helped by a benefactor who bore
the medical expenses approximating to Rs. 2.5 Lakhs.
Q. Offences related to Public servants

Following are the various offences by or relating to Public Servants (Sec 166 to
171) – Disobey incorrect document trade, bidding impersonating wear
1. Public servant disobeying law, with intent to cause injury to any person. -
Whoever, being a public servant, knowingly disobeys any direction of the law
as to the way in which he is to conduct himself as such public servant,
intending to cause, or knowing it to be likely that he will, by such disobedience,
cause injury to any person, shall be punished with simple imprisonment for a
term which may extend to one year, or with fine, or with both.[Section 166]
A, being an officer directed by law to take property in execution, in order to

satisfy a decree pronounced in Z's favour by a Court of Justice, knowingly
disobeys that direction of law, with the knowledge that he is likely thereby to
cause injury to Z. A has committed the offence defined in this section.
2. Public servant framing an incorrect document with intent to cause injury. -

Whoever, being a public servant, and being, as such public servant, charged
with the preparation or translation of any document or electronic record,
frames, prepares or translates that document or electronic record in a manner
which he knows or believes to be incorrect, intending thereby to cause or
knowing it to be likely that he may thereby cause injury to any person, shall be
punished with imprisonment of either description for a term which may extend
to three years, or with fine, or with both.[Section 167]
3. Public servant unlawfully engaging in trade. - Whoever, being a public

servant, and being legally bound as such public servant not to engage in trade,
engages in trade, shall be punished with simple imprisonment for a term which
may extend to one year, or with fine, or with both.[Section 168]

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4. Public servant unlawfully buying or bidding for property. - Whoever, being a

public servant, and being legally bound as such public servant, not to purchase
or bid for certain property, purchases or bids for that property, either in his
own name or in the name of another, or jointly, or in shares with others, shall
be punished with simple imprisonment for a term which may extend to two
years, or with fine, or with both; and the property, if purchased, shall be
confiscated.[Section 169]
5. Personating a public servant. - Whoever pretends to hold any particular

office as a public servant, knowing that he does not hold such office or falsely
personates any other person holding such office, and in such assumed
character does or attempts to do any act under colour of such office, shall be
to two years, or with fine, or with both.[Section 170]
6. Wearing garb or carrying token used by public servant with fraudulent

intent. - Whoever, not belonging to a certain class of public servants, wears
any garb or carries any token resembling any garb or token used by that class
of public servants, with the intention that it may be believed, or with the
knowledge that it is likely to be believed, that he belongs to that class of public
servants, shall be punished with imprisonment of either description for a term
which may extend to three months, or with fine which may extend to two
hundred rupees, or with both.[Section 171]
Q. Short notes on Offences related to religion

Offences relating to religion are :- ( 295 to 298 IPC) (Defile outrage disturb
trespass utter)
(1) Injury or defiling place of worship with intent to insult the religion of
any class. (Section 295).
(2) Deliberate and malicious acts intended to outrage religious feelings
of any class by insulting its religion or religious beliefs. (Section 295-
A).
(3) Disturbing religious assembly (Section 296).
(4) Trespassing on burial places or offering indignity to human corpse.
(Section 297)

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(5) Uttering words or making sound and gesture with deliberate intent
to wound religious feeling. (Section 298).
The principle underlying these offences :
The principle underlying these offences is that every man should not be
suffered to profess his own religion and that no man should be suffered to
insult the religion of another. It is the bounden duty of a secular democratic
Government to see that no disruption tendencies are allowed to appear owing
to religions which is prone to it in the hands of fanatics.
Q. Culpable homicide and murder (Section 299 and 300)

Introduction
The word homicide has been derived from the Latin word ‘homo’ which means
a man and ‘caedere’ which means to cut or kill. Thus, homicide means the
killing of a human being. All cases of homicide are not culpable (punishable).
Law distinguishes between lawful and unlawful homicide. For instances, killing
in self-defense in pursuance of a lawful authority or by reason of mistake of
fact is not culpable. Likewise, if death is caused by accident or misfortune or
while doing an act in good faith and without any criminal intention for the
benefit of the person killed, the man is excused from criminal responsibility for
homicide
Culpable homicide under Section 299 has certain ingredients. To attract this
section, death of a human being must have been caused by doing an act,
(i) with the intention of causing death;or

(ii) with the intention of causing such bodily injury as is likely to
cause death; or
(iii) with the knowledge that such act done is likely to cause death.
‘Knowledge’ and ‘intention’ must not be confused. The provision in defining

first two categories does not deal with the knowledge whereas it does in
relation to the third category.
Herein “likely” would mean probably and not possibly.
Illustrations

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1. Yash is diagnosed with terminal illness and needs certain drugs to live from
day to day. Aman confines him in a room and denies him his medication. As a
result, Yash dies. Aman is guilty of culpable homicide.
2. Ganda mows over a pedestrian deliberately. The pedestrian bleeds on the

road and no one helps him and he dies as a result of Ganda’s actions. Ganda
cannot take the defence that if the pedestrian had taken medical treatment at
the right time, he would have lived.
Ingredients of Culpable Homicide
Acts
The act should be of such a nature that it would put to peril someone’s life or
damage someone’s life to such an extent that the person would die. In most
cases the act would involve a high degree of violence against the person. For
instance, stabbing a person in vital organs, shooting someone at point blank
range, or administering poison include instances which would constitute
culpable homicide.
Intention
The act committed with the Intention of causing death. Thus where you push
someone for a joke and the person falls on his head has a brain injury and dies,
there was no intention of causing death but when you pushed the person
deliberately with the idea that the person falls and dies, in that case the act is
with the intention of causing death.
To prove intention in acts where there is bodily injury is likely to cause death.
The act has to be can be of two types
1. Firstly, where bodily injury itself is done in a fashion which cause death.
For example, bludgeoning someone on head repeatedly, with a blunt

instrument.
2. Secondly, in situation where there are injuries and there are investigating
events between the injuries and the death provided the delay is not so blatant,
one needs to prove that injuries were administered with the intention of
causing death.

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Knowledge
Knowledge is different from intention to the extent that where a person may
not have the intention to commit an act which kills, he knows that the act
which he commits will take someone’s life or is likely to take someone’s life will
be considered having the knowledge that he is likely by such act to cause
death. A doctor uses an infected syringe knowingly on a patient thereby
infecting him with a terminal disease. The act by itself will not cause death, but
the doctor has knowledge that his actions will lead to someone’s death.
Culpable Homicide amounting to Murder
Section 300 deals with Culpable Homicide amounting to murder. In others

words the section states that culpable homicide is murder in certain situations.
This makes us come to two conclusions namely,
1. For an act to be classified as murder it must first meet all the conditions of
culpable homicide.
2. All acts of murder are culpable homicide, but all acts of culpable homicides
are not murder.
Murder under Section 300 has certain ingredients. To attract this section,
death of a human being must have been caused by doing an act, Subject to
certain exceptions culpable homicide is murder of the act by which the death is
caused is done
Intention
a. With intention of causing death; or

b. With the intention of causing such bodily injury as the offender
knows to be likely to cause death of the person to whom the harm
is caused; or
c. With the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary
course of nature to cause death; or
Knowledge

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d. With the knowledge that the act is so imminently dangerous that

it must in all probability cause death or such bodily injury as is
likely to cause death, and without any excuse or incurring the risk
of causing death or such injury as is mentioned above
The main points of difference between culpable homicide and murder are:
1. Culpable homicide is wider than the term murder. Culpable homicide is

therefore considered as the genus while as murder is regarded as a species.
All murders are culpable homicide but all culpable homicides are not
regarded as murder.
2. Murder is an aggravated form of culpable homicide.
3. In murder, the offender has a definite knowledge that the act would result
in the death while as in culpable homicide the knowledge is not so definite.
4. The probability of causing death is higher in murder than culpable
homicide.
Q. Write short notes of Wrongful restraint and Wrongful confinement

Introduction
Under the Constitution of India, in Articles 19 and 21, every person throughout
the territory of India is conferred with the right to freedom of movement and
is guaranteed personal liberty. In furtherance of this objective set up by the
Constitution, the Indian Penal Code lays down penal sanctions in case a person
violates the freedom of movement or personal liberty of another. This is done
so as to safeguard an individual’s right to liberty against deprivation by another
individual or groups other than State (as fundamental rights only place an
obligation on the state).
Section 339 and 340 of Indian Penal Code define Wrongful Restraint and
Wrongful Confinement respectively. The Indian Penal Code, 1860 makes
wrongful restraint and wrongful confinement punishable under Section 339 to
348.
Wrongful Restraint
Definition
According to Section 339 of the Indian Penal Code;

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“Whoever voluntarily obstructs any person so as to prevent that person from

proceeding in any direction in which that person has a right to proceed, is said
wrongfully to restrain that person.”
Further, the section also lays down an exception, which is that if a person in
good faith believes himself to have a lawful right to obstruct and so obstruct a
private way over land or water, then it does not amount to wrongful restraint.
To understand this, let us look at the following illustration-
Chitra is walking on a public road on which she has a right to pass. Rajesh
obstructs this path despite knowing that he had no right to stop the path. As
Chitra was prevented from passing, Rajesh can be said to have wrongfully
restrained Chitra.
Ingredients
To establish the offence of wrongful restraint the complainant must prove all
the following essential:
a. That there was an obstruction;

b. That the obstruction prevented the complainant from proceeding
in any direction;
c. That the person/complainant so proceeding must have a right to
proceed in the direction concerned.
Objective
The objective of this section is to ensure that the freedom of a person is

protected. When a person has a right to proceed in a particular direction then
the law must ensure that such right is available to the person. Even if there is a
slight unlawful obstruction, it is deemed to be wrongful restraint.
It is neither necessary that the obstruction caused must be physical nor is the
presence of the accused essential for the restraint to be wrongful under this
section.
The presence of assault is not required for the act to amount as wrongful
restraint. Even use of mere words to cause obstruction to the path of a person
may constitute as an offence under this section.

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When a person obstructs another by-
Causing it to appear to that other person that to proceed would be;
a. impossible
b. difficult
c. dangerous
Or by actually causing it to be impossible, difficult or dangerous for that other

person to proceed
Lastly, it must be noted that in order to invoke this section and to prove the
offence under this section, it is essential for the complainant to prove his right
of way over the land.
Punishment
Section 341 of the Indian Penal Code imposes punishment against the
wrongdoer under Section 339 with simple imprisonment for a term which may
extend to one month or with fine which may extend to five hundred rupees, or
with both.
The classification of the offence under this section is that the offence is
Cognizable, Bailable and Triable by any Magistrate, it is also compoundable by
the person restrained or confined.
Case law
In the case of Shoba Rani vs. The King (1950-51 CrLJ 668 Cal.), the landlord was
accused of preventing his tenant who was the tenant from using the
bathroom. By stopping the tenant from using something that he had the right
to use, the landlord was had committed wrongful restraint under Section 339.
Q. Wrongful Confinement
Definition
According to Section 340 of the Indian Penal Code;
“Whoever wrongfully restrains any person in such a manner as to prevent that

person from proceeding beyond certain circumscribing limits is said to have
committed the offence of wrongful confinement.”

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Illustrations:
a. Radhika causes Anamika to go within a walled space and locks Anamika

in. Anamika is thus prevented from proceeding in any direction beyond
the circumscribing line of the walls and so Radhika has wrongfully
confined Anamika.
b. Gabbar places men with firearms at the outlets of a building and tells
Veeru that they will fire at him if he attempts to leave the building. Here,
Gabbar has wrongfully confined Veeru.
Ingredients
The essential ingredients of the offence of wrongful confinement are:
a. The accused should have wrongfully restrained the complainant (i.e. all
ingredients of wrongful restraint must be present)
b. Such wrongful restraint was to prevent the complainant from
proceeding beyond certain circumscribing limits beyond which he or she
has the right to proceed.
Punishment
Section 342 of the Indian Penal Code states that whoever wrongfully confines
any person shall be punished with imprisonment of either description for a
term which may extend to one year, or with fine which may extend to one
thousand rupees, or with both The classification of this offence is that it is
cognizable, Bailable and Triable by any Magistrate. Further, it is Compoundable
by the person confined with the permission of the court.
Cases
In the case of State of Gujarat vs. Keshav Lai Maganbhai Gujoyan (1993 CrLJ
248 Guj), it was discussed by the court that “For a charge of wrongful
confinement, proof of actual physical restriction is not essential. It is sufficient
if the evidence shows that such an impression was produced in the mind of the
victim, a reasonable apprehension in his mind that he was not free to depart. If
the impression creates that the complainant would be forthwith seized or
restrained if he attempts to escape, a reasonable apprehension of the use of
the force rather than its actual use is sufficient and important.”

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Types of Wrongful Confinement (Section 342 to 347)
Acronym : In 3 or 10 days Writ of Liberation being a Secret is Extorted of

Property by forcing a Confession
a. Wrongful confinement for three or more days ( Section 343)

b. Wrongful confinement for ten or more days (Section 344)
c. Wrongful confinement of person for whose liberation writ has been
issued (Section 345).
d. Wrongful confinement in secret (Section 346)
e. Wrongful confinement to extort property, or constrain to illegal act
(Section 347)
f. Wrongful confinement to extort confession, or compel restoration of
property (Section 348)
Q. Write notes on Criminal force and Assault

Force. - A person is said to use force to another if he causes the motion,
change of motion, or cessation of motion to that other, or if he causes to any
substance such motion, or change of motion or cessation of motion, as brings
that substance into contact with part of that other's body or with anything
which that other is wearing or carrying on with anything so situated that such
contact affects that other's sense of feeling : provided that the person causing
the motion, or change of motion or cessation of motion, causes the motion,
change of motion, cessation of motion, in one of the three ways hereinafter
described :
Firstly. - By his own bodily power.
Secondly. - By disposing any substance in such a manner that motion or change

or cessation of motion take place without any further act on his part or the
part of any other person.
Thirdly. - By inducing any animal to move, to change its motion or to cease to

move (Section 345).
Criminal Force. - Whoever, intentionally uses force to any person without that
person's consent, in order to the committing of any offence, or intending by
the use of such force to cause or knowing it to be likely that by the use of such

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force he will cause injury, fear or annoyance to the person whom the force is
used, is said to use criminal force to that other person (Section 350).
The section says that the force becomes criminal
1. when it is used without consent and in order to the committing of an

offence or
2. when it is intentionally used to cause injury, fear or annoyance to
another to whom the force is used.
The term criminal force includes what in English law is called battery. It will
however be remembered that criminal force may be so slight as not to amount
to an offence and it will be observed that the criminal force does not include
anything that the doer does by means of another person. The definition of
criminal force is so used as to include force of almost every description of
which a person is the ultimate object.
Ingredients Of Criminal Force
Thus the ingredients of criminal force are :-
(1) the intentional use of force to any person;

(2) such force must have been used without that person's consent;
(3) the force must have been used :-
(a) in order to the committing of an offence :
(b) with the intention to cause, or knowing it to be
likely that it will cause injury, fear or annoyance to
the person to whom it is used.
Definition of Assault
Àssault' has been defined in Section 351 as : "Whoever makes any gesture, or
any preparation intending or knowing it to be likely that such gesture or
preparation will cause any person present to apprehend that he who makes
that gesture of preparation is about to use criminal force to that person, is said
to commit an assault."
Explanation. - Mere words do not amount to an assault. But the words which a
person uses may give to his gesture of preparation such a meaning as may
make those gestures of preparation amount to assault.

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Assault has two ingredients:-
a. Making any gesture or preparation by a person in the presence of

another.
b. Intention or knowledge of likelihood that such gesture or preparation
will cause the person to apprehend that the person making it, is about to
use criminal force to him.
Thus, assault has been defined to consist in those overt acts of preparation,
which indicate an intention to use criminal force, that of themselves are
intended or known to warn the other of the approach. The explanation
excludes mere words or empty boaster which are intended to frighten another
by threats of terrible pains and penalties, but which the speaker as well as the
listener know, and not intended to be put in execution.
Stephen v. Myers:
In Stephen v Myers (1830), the Claimant was a chairman at a meeting sat at a

table where the Defendant was sat. There were six or seven people between
the Claimant and Defendant. The Defendant was disruptive and a motion was
passed that he should leave the room. The Defendant said he would rather pull
the chairman out of his chair and immediately advanced with his fist clenched
towards the Claimant but was stopped by the man sat next to the chairman. It
seemed that his intention was to hit the Claimant. The Defendant argued that
there was no assault as he had no power to carry out his threat as there were
people in between. The court said that not every threat is an assault. There
needs to be a means of carrying that threat into effect: it must a realistic threat
of personal violence . The judge directed the jury (as juries were still in use at
the time) that if the Defendant could have reached the chairman and hit him
there was an assault. But if the Defendant did not have the intention of hitting
the Claimant, or it was not realistic that he could reach the Claimant, then
there is no assault. The jury found for the Claimant.

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UNIT IV
Q. Write notes on rape.

Ingredients of the offence of rape. A man is said to commit "rape" who, except
in the case hereinafter expected, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:
First. Against her will.
Secondly. Without her consent.
Thirdly. With her consent, when her consent has been obtained by putting her
or any person in whom she is interested in fear of death, or of hurt.
Fourthly. With her consent, when the man knows that he is not her husband,
and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married.
Fifthly. With her consent, when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration by him personally
or through another of any stupefying or un- wholeness substance, she is
unable to understand the nature and consequences of that to which she gives
consent.
Sixthly. With or without her consent, when she is under sixteen years of age.
Explanation. Penetration is sufficient to constitute the sexual intercourse

necessary to the offence of rape.
Exception. Sexual intercourse by a man with his own wife, the wife not being
under fifteen years of age, is not rape.
In Phul Singh v. State of Haryana, A.I.R. 1980 SC 249, it was observed:

"Ordinarily, rape is violation, with violence, of the private person of a woman
an outrage by all canons
Punishment for rape. Section 376 (1) of I.P.C. says:
“ Whoever, except in the case provided for Sub- Section (2) commits rape shall
be punished with imprisonment of either description for a term which shall not
be less than seven years but which may be for life or for a term which may

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extend to ten years and shall also be liable to fine unless the woman raped is
his own wife and is not under twelve years of age, in which case, he shall be
to two years or with fine or with both:”
In addition, Section 376 covers acts of rape by public servants, under subclause
(2).
Custodial rape. The Criminal Law (Amendment) Act, 1983 (known as the anti-
rape law amendment) received the assent of the President on 25th December,
1983. It provides for penalties varying from seven years' rigorous
imprisonment to life term to those found guilty of committing rape. The
amended provision makes sexual intercourse by a person in the question of a
custodian of his victim termed "custodial rape" as an offence punishable with
imprisonment of at least ten years which may extend to life and also to fine.
The following are the categories of "custodial rape":
1. A police officer committing rape in the local area to which he is

appointed, or in any police station whether or not situated in such
local area, or a woman in his custody or in the custody of a police
officer subordinate to life.
2. A public servant taking advantage of his official position and
committing rape on a woman in his custody as such public servant or
in the custody of a public servant subordinate to him.
3. Any person being on the management or on the staff of a jail,
remand home or other place of custody or of a women's or children's
institution, taking advantage of his official position and committing
rape or any inmate of the institution.
4. Any person concerned with management or being on the staff of a
hospital, committing rape on a woman who is receiving treatment in
that hospital.
5. Rape on a woman knowing her to be pregnant and gang rape, i.e.,
where a woman is raped by three or more persons acting in
furtherance of a common intention to rape, has been made
punishable and treated on par with "custodial rape".

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The factors like the character or reputation of the victim are wholly alien to the
very scope and object of Section 376 and can never serve either as mitigating
or extenuating circumstances for imposing the sub-minimum sentence with
the aid of the proviso to Section 376(2).
Explanation 1. Where a woman is raped by one or more in a group of persons

acting in furtherance of their common intention, each of the persons shall be
deemed to have committed gang rape within the meaning of this Sub- Section .
Explanation 2. "Women's or children's institution" means an institution,

whether called an orphanage or a home for neglected women or children or a
widows' home or by any other name, which is established and maintained for
the reception and care of women or children.
Explanation 3. "Hospital" means the precincts of the hospital and includes the
precincts of any institution for the reception and treatment of persons during
convalescence or of persons requiring medical attention or rehabilitation. (
Section 376).
Amendments in Criminal Amendment Act 2013 :
Thus, the Criminal Law (Amendment) Act of 2013 added more situations where
the woman is a vulnerable position, in addition to the custodial rape situations
that had been added by the 1983 amendments.
The Criminal Law (Amendment) Act expanded the scope of aggravated rape.
The following situations were added to aggravated rape:
a. Rape by a member of the armed forces in an area where he is

deployed by the Central
b. or State Government
c. Rape by a relative, guardian or teacher, or by a man in a position
of trust towards the
d. woman
e. Rape during communal or sectarian violence
f. Rape on a woman incapable of giving consent
g. Rape by a man who is in a position of control or dominance over
the woman
h. Rape on a woman suffering from mental or physical disability

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i. If the man causes grievous bodily harm or maims or disfigures or

endangers the life of
j. the woman while committing rape
k. If the man commits rape repeatedly on the same woman
l. Rape on a girl under sixteen years of age.
A charge under Section 376(2), IPC continues to attract the presumption under
Section 114A of the Indian Evidence Act. Further, although the minimum
punishment was retained at 10 years, the maximum punishment was
increased to imprisonment for the rest of the person’s natural life.
Causing death during the commission of rape is now punishable under Section
376A of the IPC. If in the course of committing non-aggravated rape or
aggravated rape, the man inflicts an injury that causes the death of the
woman, or causes the woman to be in a persistent vegetative state. If
convicted for the offence under 376A, the minimum punishment is
imprisonment for twenty years and the maximum punishment is death.
Section 376B IPC deals with non-consensual sexual intercourse by a husband

with his wife, when they have separated. Such separation may be either
through a decree of separation or otherwise. Although marital rape is not an
offence under the IPC, to the limited extent provided by Section 376B, a
husband may be prosecuted and punished for the rape of his wife, during
separation. The Criminal Law (Amendment) Act, 2013 introduced a minimum
punishment of two years, and a maximum punishment of seven years for the
offence.
Section 376 C incorporates what used to be Sections 376B, 376C and 376D pre-
2013. The section criminalizes sexual intercourse by certain categories of men
with women under their charge or custody. One of the prerequisites to invoke
Section 376C is that the sexual intercourse should not amount to rape. The
punishment under this section is lesser than that for rape – the minimum
punishment is five years imprisonment and the maximum is ten years.
The wording of Section 376D that defines gang rape is slightly different from
what it was pre-2013. The section now says that where a woman is raped by
one or more persons constituting a group or acting in furtherance of a

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common intention, each of those persons shall be deemed to have committed

the offence or rape.
Section 376E was introduced into the IPC by the Criminal Law (Amendment)
Act, 2013. It deals with repeat offenders of rape, who have been previously
committed under the Sections, 376 under other subclauses.
Q. What are the ingredients of the offence of rape ? What is the maximum
punishment provided for this offence ?
Q. In what way is the offence of dacoity different from a robbery and theft ?
Q. Write notes on
1. Extortion
2. Theft
3. Robbery
4. Dacoity
Section 383 of Indian Penal Code. "Extortion"
Whoever intentionally puts any person in fear of any injury to that person, or
to any other, and thereby dishonestly induces the person so put in fear to
deliver to any person any property or valuable security, or anything signed or
sealed which may be converted into a valuable security, commits "extortion".
Illustrations
b. A threatens to publish a defamatory libel concerning Z unless Z gives him

money. He thus induces Z to give him money. A has committed
extortion.
c. A threatens Z that he will keep Z's child in wrongful confinement, unless
Z will sign and deliver to A a promissory note binding Z to pay certain
monies to A. Z signs and delivers the note. A has committed extortion.
Ingredients
1. The Person accused threatened the victim, by putting him in fear,

2. Forces the victim to deliver –

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a. a property, or
b. a valuable security, or
c. a instrument signed or sealed, which is in the nature of a valuable
security,
3. The said victim, or any other Person, would be subjected to harm to
reputation, or harm to property, or bodily harm, or a mental alarm had
caused to the said victim by such inducement.
Punishment:
The section states that whoever either puts or attempt to put any person in
fear of injury in order to the committing of extortion, shall be punished with
simple or rigorous imprisonment for a term extending up to two years, or with
fine, or with both.
Section 378 defines “Theft” as :
"Whoever, intending to take dishonesty any moveable 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."
Robbery is an aggravated form of either theft or extortion.
Section 22 of IPC has provided the definition of movable property; means that
any corporeal property except land and things permanently attached to the
earth.
1. Only movable property can be stolen as it is impossible to take

immovable property away.
2. Immovable property can be converted into movable property and once
it has been converted such property can be stolen.
The essentials of theft are:
3. There must be a dishonest intention to take the property. If the

intention of the offender is not to cause a wrongful loss/gain then even
if the property is taken away without consent the act would not amount
to theft.

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4. The property must be moveable, i.e., it must not be attached to the

earth.[2] As soon as the property is severed from earth, it is capable of
becoming the subject of theft. For example: A cuts down a tree on Z’s
ground, with the intention of dishonestly taking the tree out of Z’s
possession without Z’s consent. Here, as soon as A has severed the tree
to such taking, he has committed theft.[3]
5. The property must be taken out of the possession of another. A thing
which is in possession of nobody cannot be the subject of theft.
6. The property must be taken away without consent.
7. Physical movement of the property is a must; however it is not
necessary that it is moved directly. For example: If the accused cuts the
string that ties the necklace owing to which the necklace falls, it would
be held that he has caused sufficient movement of the property as
required for it to amount to theft.
Electricity
Electricity has been ruled to be immovable property according to the case of

Avtar Singh v. State of Punjab but stealing of electricity has been made a
punishable offence. The punishment for theft is provided under section 35 of
Electricity Act, 2003 as up to three years of imprisonment with or without a
fine.
Data
Theft of personal data has become one of the biggest issues of the current age.
Data is intangible since it is only information thus it is incorporeal and does not
come under the definition of theft given in Section 378 of IPC. If data is stored
on some tangible object like a hard drive, then theft of such an object would
be covered under this Section.
Crops
Growing crops are attached to the earth and hence cannot be considered
movable property but once they are converted into movable property by
removing them from the earth, it can be considered as theft.
Human Body

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The human body cannot be considered to be movable property and hence

Section 378 cannot be applied in case of theft of human body. But in case of
instances where the body has been preserved or the skeleton has been kept,
then such property is covered by Section 378 and falls under the definition of
movable property.
Section 379- Punishment for theft
A person committing the crime of theft may be imprisoned for a period of time
that may extend up to 3 years or a fine or both.
Section 390 of I.P.C. defines “Robbery” as
"theft is `robbery' if in order to the committing of theft or in committing 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."
Thus, theft becomes robbery when the following conditions are satisfied;
1. When five or more persons conjointly commit or attempt to commit a

Robbery
2. When the offender voluntarily causes or attempts to cause:
3. Death, wrongful restraint or hurt or
4. Fear of instant death, instant wrongful restraint or instant hurt.
5. And the above act(s) is done
6. While committing the theft
7. To commit the theft
8. While carrying away the property obtained by theft or
9. While attempting to carry away property obtained by theft.
Section 391 I.P.C. defines "Dacoity" as "When five or more persons conjointly
commit or attempt to commit a Robbery or where the whole number of
persons conjointly committing or attempting to commit a robbery and persons
present and aiding such commission or attempt, amount to five or more, every
person so committing, attempting or aiding is said to commit "dacoity".

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10.So Dacoity is different from Robbery, in respect of the number of

offenders Dacoity is more severely punishable because the offence is
considered to be graver than Robbery by reason of terror it causes by
the presence of greater number of offenders
11.Dacoity includes robbery and because Robbery is aggravated form of
theft or extortion, therefore Dacoity includes theft and extortion also.
Therefore every case of dacoity is primarily a case of robbery, but vice
versa is not correct.
Illustrations
(a) A holds Z down and fraudulently takes Z's money and jewels from Z's
clothes without Z's consent. Here A has committed theft, and in order to the
committing of that theft, has voluntarily caused wrongful restraint to Z. A has
therefore committed robbery.
(b) A meets Z on the high roads, shows a pistol, and demands Z's purse. Z in
consequence, surrenders his purse. Here A has extorted the purse from Z by
putting him in fear of instant hurt, and being at the time of committing the
extortion in his presence. A has therefore committed robbery.
(d) A obtains property from Z by saying- "Your child is in the hands of my gang,
and will be put to death unless you send us ten thousand rupees". This is
extortion, and punishable as such; but it is not robbery, unless Z is put in fear
of the instant death of his child.
Section 392 of Indian Penal Code "Punishment for Robbery"
Whoever commits robbery shall be punished with rigorous imprisonment for a

term which may extend to ten years, and shall also be liable to fine; and, if the
robbery be committed on the highway between sunset and sunrise, the
imprisonment may be extended to fourteen years.
Q. Compare Extortion, Theft, Robbery, Dacoity
Basis Theft Extortion Robbery Dacoity

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The moveable
property is Consent is There is no
The property is
taken away obtained consent, or it is
Consent taken without
without the wrongfully by wrongly
consent.
consent of the coercion. obtained.
owner.
It maybe is
Robbery may be
It may be either committed on
committed on the
It is of moveable of movable or immovable
Subject Matter immovable property
property. immovable property only
only when it is in the
property. when it is in the
form of extortion.
form of extortion
Extortion also To commit

Theft is
can be It can be committed dacoity, there
Number of committed by
committed by by one or more must be five or
Offenders one or more
one or more persons. more offenders
persons.
persons. involved.
This element
There no does exist on Force/compulsion Force/compulsio
Force/Compulsion element of force the person may or may not be n may or may not
or compulsion. being put in fear used. be used.
of injury.
The element of The element of fear

The element of The element of
fear is present exists only when the
Element of Fear fear is absent in fear could exist in
in cases of robbery is in the
cases of theft. cases of dacoity.
extortion. form of extortion.
Similarly, if
If robbery is dacoity is
committed in the committed in the
The property is There is the
form of theft, then form of theft,
Delivery of Property not delivered by delivery of
there is no delivery then there is no
the victim. property.
of property by the delivery of
victim. property by the
victim.
Given under Given under Given under Section Given under

Punishment Section 379 of Section 384 of 392 of the IPC. Section 395 of
the IPC. the IPC. Rigorous the IPC.
Imprisonment imprisonment up to

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Imprisonment up to 3 years or ten years and fine. Rigorous

up to 3 years or fine or both. imprisonment up
fine or both. If robbery is to 10 years and
committed on a fine.
highway between
sunset and sunrise,
then the period of
imprisonment can
be extended up to
14 years.
Q. What do you understand by `custodial rape' ?

See above
Q. Differentiate Kidnapping from lawful guardianship and abduction
Offence of kidnapping from lawful guardianship
Section 361 of the IPC defines ‘Kidnapping from Lawful Guardianship’.
The section penalises kidnapping of minors or of persons of unsound mind: in

case of males, the offence is committed if a minor below sixteen years of age is
‘taken’ or ‘enticed’ and in case of females, the offence is accomplished if the
same act is committed against a minor below eighteen years of age. There is
no age barrier for persons of unsound mind under the section.
Meaning :
"taking" implies neither force or misrepresentation and if girl is of less than 18

years of age, taken away from keeping of lawful guardian, even at her own
wishes, the offence of kidnapping is established.
Èntice' involves an idea of enticement by exciting hope or desire. Words

"takes" and "entice" are comprehensive enough and are of widest import so
that no one, who is responsible for removing the child from the keeping of his
or her guardian whether physically or by inducement, may escape from the
penalty of the law.

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"Lawful guardian" as used in Section 361 is different from "Legal guardian" a

guardian may be lawful without being legal, Explanation to Section 361 makes
it clear that lawful guardian is one to whom care and custody of child is
lawfully entrusted.
"keeping" in Section 361 means within protection and care and it is not
necessary that minor should be in physical possession of the guardian.
The offence of Kidnapping under this section can be fragmented into the
following major components:
a. Taking or enticing of a minor or a person of unsound mind by a person

b. The minor must be taken or enticed out of the keeping of lawful
guardian
c. The guardian’s consent must be absent Section 361 intends to protect
the interests of minors and at the same time, shields the custody rights
of their lawful guardians.
d. 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
believed himself to be entitled to the lawful custody of such child unless
such act is committed for immoral or unlawful purpose
In State of Haryana v. Raja Ram, AIR 1973 SC 819 It was observed "The gist of
offence of kidnapping is taking or enticing away of minor out of keeping of
lawful guardian. Kidnapping within the meaning of Section is effected not only
by taking or enticing away a person but also by alluring such person to go away
from the protection of the guardian."
Abduction :
Section 362 defines Abduction and points out that there are two essential
elements necessary to complete Abduction, i.e.
(a)Compelling an individual by force or inducing by deceitful means and
(b) thereby causing such person to go from any place.
1. Abduction is not an offence per se but becomes punishable when it is

done with an intention to commit another offence.

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2. Abduction is an offence if it is done with the intention to commit

murder, wrongfully confine a person, induce a woman to compel her
marriage, subject a person to grievous hurt, slavery, etc, steal from a
person below 10 years.
3. The term ‘by force’ suggests that there should be actual use of force
and not a mere show/threat of force.
4. The term ‘deceitful’ suggests means and methods by which a person
is misled or led to believe in something false.
5. The offence of abduction is committed as many times as the person
is moved from one place to another
Q. Distinction between kidnapping and abduction

No.
Kidnapping Abduction
1
Section 359, I.P.C. : Section 362 of Indian Penal Code defines,
Abduction: “Whoever by force compels, or by
Kidnapping is of two kinds: any deceitful means induces any person to go
1) kidnapping from India, and from any place, is said to abduct that person.
2) kidnapping from lawful guardianship.
2 There are two types of kidnapping It is only of one kind

1) kidnapping from India
2) kidnapping from lawful guardianship
3 It is committed against minor (below 16 Anybody can be abducted

years of age if male and below 18 years of
age if female) and person of unsound mind
of any age.
4 Intention of the accused is immaterial Intention of accused is very important
5 In kidnapping consent of the person is In case of abduction, consent of person abducted

immaterial is very much materialistic and is good evidence.
6 Kidnapping is not continuing offence. The Abduction is a continuing process in which a

offence is complete when the person is person kidnapped moves from place to place.
removed from lawful guardianship
7 Kidnapping is a substantive offence. Abduction itself is not punishable, but it is made

Whoever kidnaps any person from India or criminal offence only when it is committed with
from lawful guardianship shall be punished one or other intents specified in Sections 363A,
with imprisonment of either description for 364, 364A to 369 of the Indian Penal Code
a term which may extend to seven years,
and shall also be liable to fine. Abduction in order to murder
Abduction in order to compel a woman to marry
Aggravated forms include Abduction so as to grievously hurt a person
Abduction so as to wrongfully confine a person
Kidnapping for purpose of murder

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Kidnapping for purpose of begging

Kidnapping for ransom
Kidnapping so as to compel a woman to
marry
In Gurdas v. State, AIR 1953 Punjab 258 It was observed: In `kidnapping'

consent of the person enticed is immaterial. In àbduction' consent of person
removed, if freely and voluntarily given condones it. In `kidnapping' the intent
of the offender is irrelevant, but in àbduction' it is the all important factor.
Kidnapping from lawful guardianship is not a continuing offence for as soon as
the minor is removed out of his or her guardianship the offence is completed,
but the person is abducted not only when he is removed from one place to
another.
Q. Difference between Theft and Extortion

(a) Theft and extortion : Section 378, I.P.C. defines the offence of theft
as: 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. Section 383,
I.P.C. defines the offence of extortion as: 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.
Distinction Between Theft and Extortion
(i) In theft the offender takes property without the consent of the
owner, extortion is committed by wrongfully obtaining of consent.
(ii) Only moveable property may be the subject matter of theft, the
property obtained by extortion is not limited only to moveable one, even
immovable property may be subject matter of extortion.
(iii) In theft property is taken by offender, in Extortion the property is

delivered to offender.(iv) In theft no force or threat is used or fear is
caused in taking the property, in Extortion, the property is obtained by

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intentionally putting a person in fear of injury to that person or any

other and thereby dishonestly inducing him to part with his property.
(b) Cheating and Criminal Breach of Trust Section 405 of I.P.C. has
defined the offence of "Criminal Breach of Trust" as:
"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 such trust is to
be discharged or of any legal contract, express or implied, which he had
made touching the discharge of such trust, or willfully suffers any other
person so to do commits `Criminal Breach of Trust'. Section 415 of Code
has defined the offence of `Cheating'
"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, reputation or property is said to "Cheat". In Hridaya Ranjan Pd.
Verma v. State, AIR 2000 SC 2341 Supreme Court observed that
"Definition of cheating set forth two separate classes of acts which the
person deceived may be induced to do. In first place he may be induced
fraudulently or dishonestly to deliver any property to any person.
Second class of acts set forth in the Section is doing or omitting to do
anything which the persons deceived would not do or omit to do if he
were not so deceived.
Q. Difference between Cheating and Criminal Breach of Trust

(1) In cheating possession of the property is obtained by practicing deception
or fraudulent means. In criminal breach of trust the offender is lawfully
entrusted with the property, but he dishonestly misappropriates or converts to
his own use that property, or suffer any other person so to do.
(2) Cheating involves practicing of deception for acquiring property. There is

neither fiduciary relationship nor any conversion of property. In criminal

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breach of trust there is the conversion of property held by a person in a

fiduciary relationship.
Q. Cheating and Forgery

Cheating: Offence of cheating is defined in Section 415 of Indian Penal Code,
which provide as under:
"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, to intentionally induces the person so
deceived to do or omit to do anything which he would not do or omit if he
were not so deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or property, is said
to "cheat".
Constituents of Cheating
Acting Dishonestly
The term ‘acting dishonestly’ has been defined under section 24 of Indian
Penal Code. It is defined as, “when the doing of any act or not doing of any act
causes wrongful gain of property to one person or a wrongful loss of property
to a person, the said act is done dishonestly.”
Property
Property has a much wider meaning. It does not only include money but other
things as well which can be measured in the terms of money. The property
should be in a complete ownership of the person and he must have the full
right to enjoy its possession.
Fraudulently
Being fraudulent means which involves deception mainly criminal deception. It

is characterized by fraud. According to section 25 “a person is said to do a thing
fraudulently if he does that thing with intent to defraud but not otherwise.”
Mens Rea

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Mens rea is the intention or action to constitute a crime. It is a mental state of

an offender while committing a crime. It has to be proved beyond any doubt
that the accused has actively contributed in a crime and that crime has
affected another person’s property.
Explanation A dishonest concealment of facts is a deception within the

meaning of this Section ."
In G.V. Rao v. L.H.V. Prasad and other, AIR 2000 SC 2474 Supreme Court
observed " Section 415 I.P.C. has two parts while in the
1. first part, the person must "dishonestly" or "fraudulently" induces the

complainant to deliver any property,
2. in the second part the person should intentionally induce the
complainant to do or omit to do a thing.
3. That is to say, in the first part, inducement must be dishonest or
fraudulent.
4. In second part inducement should be intentional... a guilty intention in
an essential ingredient of the offence of cheating.
5. It is not correct that offence of cheating necessarily relates to property
only.
a. While the first part of definition relates to property,
b. second part of Section 415 speaks of intentional deception which must
be intended not only to induce the person deceived to do or omit to do
something but also to cause damage or harm to that person in body,
mind reputation or property."
Punishment
Cheating is punishable under this section with imprisonment up to 1 year or

fine or both. Imprisonment depends upon the quantum of the act done. If the
act is not that grave, imprisonment won’t be imposed and will charge with fine
only.
Forgery
Section 463 of the Indian Penal Code defines the offence of `forgery'
as: "Whoever make any false document or part of a document with intent to

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cause damage or injury, to the public or to any person, or to support any claim
or title, or to cause any person to part with property, or to enter into any
express or implied contract or with intent to commit fraud or that fraud may
be committed, commits forgery."
In order to constitute forgery,
b. the first essential ingredient is that the accused should have made a
false document, or a part of such document.
c. Section 464 of the Code lays down the circumstances under which a
person is said to make a false document. In the absence of proof of this
ingredient, a person cannot be made liable for an offence under Section
463 of the Code.
d. The circumstances are -
a. to cause damage or injury to the public or any person; or
b. to support any claim or title; or
c. to cause any person to part part with his property; or
d. to enter into any express or implied contract; or
e. to commit any fraud or that fraud may be committed
e. In addition to establishing that the document is a false document, it
must be further proved that it was forged by the accused with one of the
intents mentioned above.
f. The mere making of a false document without any of the intents
referred to above would not constitute an offence under Section 463.
g. It is not necessary that the document should be used by the accused.
h. It may also be stated that Section 463 defines a forgery simpliciter,
whereas Section 465 to 471 define an aggravated form of forgery.
Illustrations :
a. A picks up a cheque on a banker signed by B, payable to bearer, but

without any sum having been inserted in the cheque. A fraudulently fills
up the cheque by inserting the sum of ten thousand rupees. A commits
forgery.

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UNIT V
Q. Criminal trespass and mischief :

Section 425, I.P.C. lays down that "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."
Mischief comprises two elements mental and physical.
b. The mental element consists of intention, express or implied, to cause

wrongful loss or damages and the physical element is in the act of
destruction or causing injurious change to the property.
c. The mere causing loss is not enough for a conviction of the offence of
mischief.
d. Criminal intention to cause or the knowledge of the likelihood of causing
such wrongful loss should also be established.
e. A person cannot be prosecuted for the offence of mischief where the
dispute between the parties is purely of a civil nature.
Criminal trespass covers
1. Criminal trespass (441 IPC)
Section 441, I.P.C. provides that "whoever enter 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 such person, or with intent to commit an offence, is
said to commit criminal trespass"
The essential ingredients of ‘Criminal trespass’ therefore are-
a. Entry into or upon property in the possession of another;

b. If this entry is lawful, then unlawfully remaining upon such property;
c. Such entry or unlawful remaining must be with intent-
a. to commit an offence; or

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b. to intimidate, insult or annoy the person in possession of the

property.
Meaning
“whoever enters” denotes that there must be an actual personal entry by the
Accused person. Such an entry has to be unauthorized and not necessarily by
force or against the will or consent of the person who is in possession of the
property.
“property” is general in nature and would therefore be wide enough to

include both movable as well as immovable property. Therefore, criminal
trespass could also be committed if the accused was trying to get into the car
of the possessor of the Car.
“possession of another” implies that the entry by the accused shall be in such
property which is in possession of the other and not the trespasser. The
provision does not require you to be owner of the property. You could also be
in possession of the said property which has been trespassed into.
a. It is also not essential that the owner of the said property or the person
having possession over the said property was present in the property
when the trespasser entered the premises. It would still amount to
trespassing even if the owner or possessor were not present inside the
property.
b. “Intention” is a very important factor when considering criminal
trespass. Trespassing into the property with a criminal intent to insult,
intimidate or annoy the person in possession of the property is the
essence of Criminal Trespass. There is a metaphorical allusion to the
term ‘intent’ implying ‘aim’, meaning thereby, the object for which the
effort was made. It is therefore the dominant motive without which the
action wouldn’t have taken place.
Punishment :

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Punishment for criminal trespass has been provided under Section 447, IPC
which states that a person who is held guilty of criminal trespass shall be
punished with imprisonment of upto 3 months, or fined upto five hundred
rupees, or both.
For other aggravated forms of criminal trespass, the punishments have further
been articulated under the IPC.
Q. Write short notes on House Trespass
Q. Trespass is classified into
1. House trespass (442)
2. Lurking house trespass (443)
3. House breaking (445)
4. House breaking by night (446)

“Section 442. House-trespass- Whoever commits criminal trespass by entering
into or remaining in the building, tent or vessel used as a human dwelling or
any building used as a place for worship, or as a place for the custody of
property, is said to commit ‘house-trespass’.
Explanation– The introduction of any part of the criminal trespasser’s body is

entering sufficient to constitute house trespass.”
House-trespass is thus an aggravated form of criminal trespass, similar to

Section 380, where theft in a building is make an aggravated form of theft.
House-trespass is different from criminal-trespass because it is restricted to
the trespasser trespassing in a house, vessel or tent which is being used as a
human dwelling, or any other worship place or place for custody of property.
However, the term ‘building’ has not been given a fixed connotation. What
constitutes a building or a house dwelling or a place for the custody is a
question of fact.
Since it is an aggravated form of criminal-trespass, the aspect of intention

remains the same. Intention is house trespass also is to annoy, insult or

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intimidate the possessor of the property. This thus formulates the second
essential of house-trespassing.
Punishment
House trespassing could amount to the offence being punishable by death

(u/s. 449), with imprisonment for life (u/s. 450) or with imprisonment (u/s
451). Whether the object of house trespass has been achieved or not is
immaterial. In order to be committing the offence, it does not actually mean
commission of the offence to attract higher punishment provided under the
above mentioned sections.
Lurking House-trespass (443 IPC) is an aggravated form of house-trespass

having been committed in a surreptitious manner. It is defined u/s. 443, IPC as
follows-
The essential difference between house-trespass and lurking house-trespass is

the trespasser taking some active precautions or effective steps to conceal all
his identity or presence from the person who has a right to prevent that
person from entry or who has a right to throw out upon entry.
House breaking (445 IPC)
If criminal trespass as defined above has been committed in a violent

manner, it would then be designated as house-breaking. The same has been
defined under Section 445, IPC. When a trespasser invades into a house or
makes a forceful entry, it would amount to breaking into the house. The ways
of entering into the house defined under this Section are-
1. Through the passage made by the accused himself or his accomplice of

the house-trespasser.
2. Through any passage not meant for human entrance.
3. Through any passage opened by himself or the abettor.
4. By opening any locks to seek entry into, or exit from the house.
5. By using criminal force.
6. By entering or quitting through any passage fastened against such
entrance or exit.

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It therefore means either entering in a house through a passage which is not

otherwise meant for access or entering by force.
Aggravated forms of house breaking or lurking house trespass
There are further aggravated forms lurking house trespass or house breaking
u/s.454, 455 and 459, IPC.
Section 454
deals with lurking house-trespass or house breaking in order to commit the

offence punishable with imprisonment. This section provides for a higher term
of imprisonment of either description.
Section 455
talks about lurking house- trespass or breaking with the intention of causing
hurt, assault or wrongful restraint. Such an offence is publishable with
imprisonment which may extend to ten years and also fine.
Section 459
discusses the offence of causing grievous hurt or attempt to cause death whilst
lurking house trespass or house breaking. The prescribed punishment for this
offence is imprisonment for life or for a term which may extend to 10 years
along with fine. Such grievous hurt or attempt to cause death must be done is
the course of commission of lurking house- trespass/ breaking and not after
the completion of the same.
Housebreaking by the night
Similarly, house breaking by the night is defined u/s 446, IPC
Section 456
Further, if the house-breaking happens by the night, i.e. after sunset and
before sunrise, it would be punishable u/s. 456 with an imprisonment for a
term upto 3 years along with fine.
Sections 461 and 462 punish the offence of dishonestly breaking open a
receptacle containing property. This would include lockers, boxes, safes etc.
meaning thereby, places used for storing. For the offence under Section 461

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shall get completed the moment the accused dishonestly breaks open the
receptacle containing property. And when this receptacle is entrusted is the
accused and the accused tries to break open the receptacle, it shall become
punishable u/s. 462. The element of ‘trust’ is what distinguishes Section 461
from Section 462. The punishment for the offence u/s 462 is simple or rigorous
imprisonment for a term upto 3 years with or without fine.
Illustrations
1. A group enters into A’s agricultural property without his permission or

knowledge and started to live there. They further sold the agricultural produce
of the land. A could file a suit of trespass and damages in this situation.
Q. Write notes on Attempt to commit suicide

Introduction
Right to life, which is described under Article 21 of the Constitution also aids in
giving citizens a right to live a life of dignity. A life with full control over it is
supposedly guaranteed by the Constitution. The conflict, however, begins
here. Liberty is guaranteed to an individual but no such right is given to end his
life with his own will.
This debate has been the subject in cases of P. Rathinam v. Union of India and
Smt. Gian Kaur v. State of Punjab. In P. Rathinam, the Supreme Court held the
right to die as an aspect of Article 21. It was held that section 309 was violative
of Article 21 of the Constitution inasmuch as right to live includes right to die
or right not to live a forced life and the section interferes with that right. The
court agreed with the reasoning given by Bombay High Court in the case of
Maruti Shripati Dubal v. State of Maharashtra.
The court held that right to die cannot be construed from right to life under
Article 21. The court stated, “Right to life is a natural right embodied in Article
21 but suicide is an unnatural termination or extinction of life and, therefore,
incompatible and inconsistent with the concept of right to life

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In India, attempt to commit suicide is punishable u/s 309 of the Indian Penal
Code. Section 309 of the Indian Penal Code thus reads as:
“Whoever attempts to commit suicide and does any act towards the
commission of such offence shall be punished with simple imprisonment for a
term which may extend to one year or with fine or with both.”
Abetment to suicide is also punishable. Section 306 makes punishable

abetment of suicide. Before a person can be convicted of abetting the suicide
of any other person, it must be established that such other person committed
suicide. In the absence of proof of any direct or indirect acts of incitement to
the commission of suicide or a conspiracy or any act facilitating the
commission of suicide, Section 306 can not be said to be attracted. But as
direct evidence is hardly available, it is the circumstantial evidence and
conduct of accused are to be taken into consideration for adjudicating upon
truthfulness or otherwise of prosecution case
Section 306 of Indian Penal Code should be read with section 114-A of Indian
Evidence Act. Section 113A of Act says that if a woman had been subject to
cruelty as defined in Section 498A IPC Court may presume having regard to all
circumstances of the case, that such suicide has been abetted by her husband
or his relative provided suicide has been committed within 7 years of her
marriage.
Q. What is criminal misappropriation. Compare with theft.

Section 403 of IPC defines dishonest misappropriation of property as
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.
According to the above definition there are three essentials of criminal

misappropriation:
1. Dishonest intention
2. Misappropriation or conversion of property for own use

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3. Movable property
Dishonest intention
Dishonest intention plays a very important role in the criminal

misappropriation of property. It is not necessary that dishonest intention
should be present at the time of getting possession of the property, the
possession of the property may come lawfully or innocently but subsequent
change of intention and utilisation of property for personal use will bring the
act in the category of criminal misappropriation.
Illustration (a) - A takes property belonging to Z out of Z’s possession, in good

faith, believing, at any time when he takes it, that the property belongs to
himself. A is not guilty of theft; but if A, after discovering his mistake,
dishonestly appropriates the property to his own use, he is guilty of an offence
under this section.
Misappropriation or conversion of property for own use
Misappropriation means taking possession of another property and its

wrongful utilisation. The essence of offence is that some property belonging to
others which comes under the possession of the accused, innocently, is
misappropriated or converted by the accused to his own use misappropriation
or conversion need not be permanent it may be only for some time.
MOVABLE PROPERTY
Word ‘any property’ means movable property. Movable property are subject
matter of criminal misappropriation. This movable property is like movable
property of ‘theft’ but there is a difference in getting possession of the
property under theft and criminal misappropriation. In case of theft property is
taken away where as in case of criminal misappropriation it may be innocent
taking or lawful taking at the beginning but subsequently it is dishonestly
misappropriated. Finder of the goods are also liable under the section in
certain cases.
Distinction between Theft and Criminal Misappropriation
1. The first and main difference is that initial taking theft is always
wrongful. But in criminal misappropriation it may be lawful and

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innocent. It is subsequent change of intension which convert lawful

taking into unlawful.
2. In case of theft there is invasion of possession of another persons by
wrongdoer. Whereas in case of criminal misappropriation there is no
such infringement of right of possession. In criminal misappropriation
offender is already in possession of the property and it is his unlawful
misappropriation which creates offence.
3. In theft mere moving by is an offence. In criminal misappropriation may
not be an offence even it may be lawful.
4. In theft property is moved without the consent of the owner where as in
case of criminal misappropriation person might have come into the
possession of the property with the consent of the owner.
5. Dishonest intension is common to both. In theft this is shown by moving
of the property while in criminal misappropriation it is effected by actual
misappropriation.
6. In case of theft dishonest intension precede taking while it follows the
taking in criminal misappropriation.
Q. Difference between Criminal breach of trust and Criminal

misappropriation
No.
Criminal Misappropriation Criminal breach of Trust
Definition : Definition :
1
Section 403 of the Indian Penal Code Section 405 of the Indian Penal Code
defines Criminal misappropriation and prescribes defines Criminal breach of trust -
the punishment for the offence -
“Whoever, being in any manner entrusted
“Whoever, being in any manner entrusted with with property, or with any dominion over
property, or with any dominion over property, property, dishonestly misappropriates or
dishonestly misappropriates or converts to his own converts to his own use that property, or
use that property, or dishonestly uses or disposes dishonestly uses or disposes of that property
of that property in violation of any direction of law in violation of any direction of law
prescribing the mode in which such trust is to be prescribing the mode in which such trust is
discharged, or of any legal contract, express or to be discharged, or of any legal contract,
implied, which he has made touching the express or implied, which he has made
discharge of such trust, or willfully suffers any touching the discharge of such trust, or
other person so to do, commits “criminal breach of willfully suffers any other person so to do,
trust”. commits “criminal breach of trust”.
Ingredients : Ingredients:
2
To constitute the offence of misappropriation the To constitute criminal breach of trust
following ingredients must be present – following ingredients must be present.
1) The accused misappropriated that property and 1) The accused must be entrusted with

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converted the same to his own use dishonestly property or with dominion over property;
2) The movable property belonged to that 2) The person who entrusted must –
complainant.
i) dishonestly misappropriate or convert to
his use that property or
ii) dishonestly use or dispose of that

property or willfully suffer any other person
to do so
a) in violation of any directions of law

prescribing the mode in which such property
is to be discharged \.
b) any legal contract made touching

discharge of such trust.
The property comes into the possession of the The property comes into possession of the
3 accused in some natural manner. accused either by an express entrustment or
by some process. There is conversion of
property held by a person in fiduciary
capacity.
4 It can be only movable property It can be of any movable as well as

immovable property.
5 There is no contractual relationship There is contractual relationship
6 Non-cognizable, bailable, compoundable with Non-cognizable, bailable, non-compoundable

permission of Court and triable by any Magistrate. and triable by the Magistrate of the First
Class.
Q. Abetment of suicide
Section 306 IPC
punishes abetment of suicide. Suicide is an act of taking one’s own life

voluntarily and intentionally. This section was inserted in order to prevent
sati which was a prevalent custom in those days. The relatives of the
widows used to instigate them to commit sati. In the matter of an offence
under section 306, IPC abetment must attract the definition thereof in
section 107, IPC.
Section 306 creates a specific offence and
1. the liability arises only when the suicide is committed.

2. It will not apply in case of an attempted suicide.

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3. Section 113A of Indian Evidence Act, 1882 lays down provision for the
presumption as to abetment of suicide by a married woman, when it
is shown that the suicide is committed within seven years from the
date of her marriage and she was subjected to cruelty.
4. However, the Commission of Sati (Prevention) Act, 1987 provides
very stringent punishment in case of Abetment of Sati. The object of
enacting this Act was to provide for the more effective prevention of
the commission of sati and its glorification as the preamble stated
that sati or the burning or burying alive of widows or women is
revolting to the feelings of human nature and nowhere enjoined by
any of the religions of India as an imperative duty. Under the Sati Act,
any person abetting the commission of sati, either directly or
indirectly, shall be punishable with death or imprisonment for life
and shall also be liable to fine
Punishment
Abetment of Suicide,
Imprisonment of either description for a term which may extend to ten

years, and shall also be liable to fine.
IPC Abetment of Sati, Sati Act
Sentence of Death or imprisonment for life and liable to fine
Case law :
In Neni v. State of Rajasthan, 51 the deceased was being harassed by her in

laws for not bringing sufficient dowry and this became the cause of her
committing suicide. The dead body was hurriedly cremated without informing
her parents. It was held that presumption of abetment under the Evidence Act
was attracted and the conviction of accused persons under section 306 read
with section 201 was held proper.
Q. What are the ingredients of offence of waging or attempt to wage war

against the Government of India ? How is it punishable ?
Section 121 to 123

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Section 121 of Indian Penal Code provides :-
"Whoever, wages war against the Government of India or attempts to wage

such war or abets the waging of such war shall be punished with death or
imprisonment of life and shall also be liable to fine."
So Section 121 of I.P.C. deals with the offence of waging, attempting to wage
and abetting the waging of war against Government of India.
a. The abetting of waging of war, thus is as much an offence of treason as

the waging war itself. The expression "Waging war" in section 121 can
only mean "waging war in the manner usual in War.
b. It is not necessary that as a result of the abetment the War should be
waged in fact.
c. But main purpose of the instigation should be the "Waging of War". It
should not merely remote and incidental purpose, but the thing
principally aimed at by the instigator (Vasu Nair v. Trav-Co. State, 1955
Cri. L.J. 414).
Section 121-A of code lays down "Whoever within or without India conspires
to commit any of the offences punishable by Section 121 or conspires to
overawe, by means of criminal force or the shown of criminal force, the
Central Government or any State Government shall be punished with
imprisonment for life or with imprisonment of either description which may
extend to ten years and shall also be liable to fine.
Explanation - To constitute a conspiracy under this section it is not necessary

that any act or illegal omission shall take place in pursuance thereof."
Section 121-A deals with conspiring to wage war against Central or State
Government. This Section embraces two kinds of conspiracy -
(1) Conspiring within or without India to commit an offence

punishable under section 121 and
(2) Conspiracies to overawe by means of criminal force or show of
criminal force, the Central or State Government.
For Section 121-A

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a. it is not necessary that any act or illegal omission must take place in
pursuance of conspiracy.
b. The agreement in itself is enough to constitute the offence.
c. It is also not necessary that a person should be participant in conspiracy
from start to finish (Raghubir Singh v. State, 1987 Cri.L.J. 157).
Section 122 of Code deals with punishment for collecting arms etc. with
intention of waging war against government, which is imprisonment of life or
imprisonment of either description up to 10 years and fine also.
Section 123 makes punishment for offence of concealing existence of designs

to wage war against Government or facilitation thereof, upto 10 years and
fine.
Q. Define `Sedition' and explain the law relating to it. State the principles
laid down in the "Amrit Bazar Patrika Press Ltd." Case.
Section 124A defines the offence of sedition. The section has had a chequered
career and a historical genesis would reveal the various changes it has
undergone through legislative amendments and judicial interpretation.[1] This
section corresponded to section 13 of Marclay’s Draft Penal Code, 1837.
Section 124-A of Indian Penal Code provides regarding "Sedition", it says -
Whoever by words, either spoken or written, or by signs, or by visible

representation, or otherwise, brings or attempts to bring into hatred or
contempt, or excites or attempts to excise disaffection towards, the
Government established by law in India, shall be punished with imprisonment
for life, to which fine may be added, or with imprisonment which may extend
to three years, to which fine may be added, or with fine.
Explanation 1. - The expression "disaffection" includes disloyalty and all feeling

of enmity.
Explanation 2. - Comments expressing disapprobation of the measures of the

Government with a view to obtain their alteration by lawful means, without
exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section.

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Explanation 3. - Comments expressing disapprobation of the administrative or

other action of the Government without exciting or attempting to excite
hatred, contempt or disaffection, do not constitute an offence under this
section.
So sedition consists in acts, words or writing intended or calculated in the

circumstances of the time to disturb the tranquillity of the State by creating ill-
will, discontent, disaffection, hatred or contempt towards the constitution, of
Parliament or the Government or the established institutions of country by
exciting ill-will between different classes or encouraging any class of them to
endeavour to disobey, defy or subvert the law or to do any act of violence.
Types of Sedition
Five heads of sedition can be enumerated depending upon the object of the
accused:-
a. Exciting disaffection against the King, Government, Constitution,

Parliament or administration of justice;
b. Promoting any alteration in Church or State by unlawful means;
c. Inciting disturbance of the peace;
d. Raising discontent among the King’s subjects; and
e. Exciting class hatred[2]
In Queen Empress vs. Bal Gangadhar Tilak (22 Bom. 112)
In this famous case, Bal Gangadhar Tilak, the well known Freedom Fighter, was
convicted and the conviction was affirmed on appeal by the Privy Council.
In Re. Amrita Bazar Patrika Press Ltd. (ILR 47 Cal. 1919)
Amrita Bazaar Patrika was the oldest Indian-owned English daily. It played a
major role in the evolution and growth of Indian journalism and made a
striking contribution to creating and nurturing the Indian freedom struggle.
Sisir Kumar Ghosh, the founder of Amrit Bazaaar Patrika also launched
vigorous campaigns against restrictions on civil liberties and economic
exploitation. He wanted Indians to be given important posts in the
administration. Both he and his brother Motilal were deeply attached to Bal
Gangadhar Tilak.

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In Amrita Bazar Patrika, two articles “To whom does India belong” and “Arrest
of Mr. Gandhi – More Outrages” in its issues dated 10th and 12th April, 1919.
The Government of Bengal ordered the forfeiture of the security of Rs. 5,000/-
of the Patrika, as it thought those articles excited the disaffection towards the
Government under Sec. 124-A.
The keeper of the Press appealed to the High Court for setting aside the order
of forfeiture. The application was dismissed.
After the Constitution of India came into operation an important question

relating to the constitutionality of section 124A, IPC vis a vis article 19 was
raised in few cases leading to a conflict of decisions in High Courts. In Tara
Singh v State of Punjab, section 124A was struck down as unconstitutional
being contrary to freedom of speech and expression guaranteed under article
19(1)(a). In order to avert this newborn constitutional difficulty, the
Constitutional First (Amendment) Act, 1951 added in article 19(2) the terms ‘in
the interest of justice’ and ‘public order’ thereby including legislative
restrictions on freedom of speech and expression.
Q. Write short notes on “Sections covering promoting enemity among

classes”
Introduction
A person is said to promote enmity between classes when he, by words, either
spoken or intended to be read or by sign or by visible representations or
otherwise promotes or attempts to promote feelings of enmity or hatred
between different classes of the citizens of India.
It does not amount to an offence as here defined to point out, without

malicious intention and with an honest view to their removal, matters likely to
promote such enmity.
Principle and Scope:

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Section 153-A was enacted to supplement the law of section which found to be
in sufficient to prevent the conflict of classes for which it was obviously
inadequate. The section may however he said to deal with defamation of a
class as distinguished from the defamation of a person punishable under
section 500 of the Code or Section 295-A which deals with the defamation of
religion.
The essential ingredients of Section 153-A are :-
i. That the accused promoted or attempted to promote feelings or

enmity and hatred between different religious, racial or language
groups or castes or communities or that the accused has done an
act which is prejudicial to the maintenance of harmony between
such groups or castes or communities and which is likely to
disturb public tranquillity.
ii. That he promoted or attempted to promote feelings of enmity of
hatred by words or signs or visible representations or otherwise or
had acted prejudicially to the maintenance of harmony which
disturbs or is likely to disturb public tranquillity.
The section supplements the law of sedition. The section means that no
subject of the Government is entitled to write or say or do anything whereby
the feelings of one class of citizens of India will be inflamed against another
class of his subject.
a. It is not confined to the promotion of feelings of enmity, etc. on the

grounds of religion only but takes in promotion of such feelings on the
other grounds as well, such as race, place of birth, residence, language,
caste or community.
b. The word “spoken” or “written” must be such as to promote hatred,
feelings of enmity etc.
c. Intention is not a necessary ingredient of Section 153-A, and if the words
are likely to have the effect contemplated by the section, it is not
necessary further to establish that the writer had the intention to
promote such hatred.

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d. Where the language employed is patently scurrilous and offensive, the

requisite intention under Section 153-A and Section 259-A must be
presumed.
e. Under this section success of an attempt is not necessary.
f. A person cannot escape from the consequences of uttering words, with
intent to promote feelings mentioned in the section, solely because the
person to whom they are addressed may be too wise or too temperate
to be influenced by them.
g. Articles creating hatred and enmities between two communities cannot
be protected in the guise of political thesis or historical truth.
h. Adverse criticism against a Government or Ministry does not fall within
the purview of this section.
i. The ‘classes’ contemplated must be not only clearly defined and
separable but also numerous. To bring any body of persons within the
description of a ‘class’ of citizens, the body of persons must possess a
certain degree of importance numerically, and must be ascertained with
certainty and distinguished from any other class. Every group of persons
cannot be designated as a class.
Validity of section
The Punjab High Court following the ruling of the Supreme Court in Ramesh
Thappar’s case held Section 153-A to be void as it is in restriction of the
fundamental rights set out in Article 19 of the Constitution and is not saved by
the restriction made by Clause (2) of Article 19.
The Supreme Court in Kedar Nath v. State of Bihar, declared that the provisions
of Section 153-A of the Code are not unconstitutional.
The Allahabad High Court, following Kedar Nath’s case, held that the section is
not ultra vires Article 19(l)(a) of the Constitution. The addition of the words “in
the interest of public order” in Article 19(2) by the Constitution (First
Amendment) Act, 1951, makes the ambit of the protection very wide and any
provision which has been enacted in the interest of public order would be
valid.

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Q. Explain the law relating to offence of giving false evidence.

Sections 191, 192 and 193 of the IPC deal with giving or fabricating false
evidence. What amounts to giving false evidence has been defined u/s 191.
“The salient features of the former section are as follows:
i. Intentionally making a false statement

ii. Declaration by a person who is under a legal obligation to speak the
truth.
Meaning
“ Declaration “, It was held in Mehrban Singh, that
i. a declaration means a formal statement made in writing and required by

law to be made in writing. To invoke the section the statement must be
a false statement and the person making it must know or believe it to be
false or must not believe it to be true to this section.
ii. A false verification of a written statement filed in a suit is an offence
under this section.
Legal principles
i. The giving of false evidence amounts to the practicing of fraud upon the
court.
ii. Thus, to make a statement of false evidence within the meaning of this
section, it must be established that the person was legally bound by an
oath or an express provision of law (A) to state the truth, or (B) to make
a declaration upon any subject.
iii. The offence can be committed even when the plaintiff or the defendant
is not legally bound to do so but binds himself by an oath voluntarily. In
other words, he enters the witness box voluntarily, and makes an
affidavit to make a truthful sentence, but states something false.
iv. It was held in Fateh Ali v Queen Express[5] that to hold a person liable
u/s 191 it is necessary that the accused should be legally bound by an
oath before a competent authority.
v. Under it sanction of an oath is not necessary. There must be a specific
provision of law compelling a person to state the truth. When the

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accused is not bound by an express provision of law to state the truth,

he cannot be charged with giving false evidence
Historical Back Ground
The problem of hostility has been in news much due to witness turning hostile
in high profile case such as
Best Bakery case
” in Gujarat , "Jessica lal murder case” in delhi and more recently case "
Babulal Nagar case
” in Rajasthan . The repeated problem of large number of witnesses turning

hostile in these high profile cases had leadto a groeing demand for making
change s in our law to effectively deal with the problem of dealing of witness
turning hostile. As a result ,the central government introduced in the Rajya
sabha code of criminal procedure (Amendment) Bill 2006 but that could not
see the light of day for best reasons known to our parliamentarians but prima-
faci, the reason seems to be that the heat generated has settled/ subsidized as
there have never convictions later on in these vary cases, which caused public
resentment against the hostile witness.

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Q. Difference between Perjury and Section 191 of IPC

Perjury Section 191
Two witnesses are required to prove perjury. The section is silent.

The false statement must be material to the
The section is silent.
case.
The section includes any statement made under
It must be before a competent tribunal in oath or otherwise, in pursuance of a legal duty to
reference to a judicial proceeding. make it whether in a judicial proceeding or
otherwise.
The false statement must be necessarily Oath is not an essential ingredient. The person
made under an oath or solemn. must be under a legal duty to speak the truth.
Section 192
Meaning
Section 192 defines the offence of fabricating false evidence. The essence of
the offence consists in
i. making a false entry in a book of record or

ii. electronic record or
iii. in a document containing a false statement so as to cause a judge, a
public servant or an arbitrator to entertain an erroneous opinion on any
material point.
Illustrations
A puts jewels into a box belonging to Z, with the intention that they may be
found in that box, and that this circumstances may cause Z to be convicted of
theft. A has fabricated false evidence.
The Section is generally worded and
i. applies to any "circumstances" whether it is caused by forgery or fraud.

Offence of fabricating false evidence, is closely allied to the more
general offence defined under section 191 still it presents some
distinguishing features.

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Q. Difference between ‘Giving False Evidence’ and ‘ Fabricating False

Evidence’
Giving False Evidence Fabricating False Evidence
General intention. Particular intention.
Committed by a person who is bound by a legal duty

The section is silent.
to state the truth.
The false statement need not be material to the The fabricated evidence must be material to
case. the case.
There should be a proceeding. It is not required.
Q. Short notes on Criminal intimidation

Section 503 of Indian Penal Code has defined the offence of Criminal
Intimidation as :
"Whoever threatens another with any injury to his person 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 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." The most important ingredient of the offence of
criminal intimidation as defined under Section 503 I.P.C. is that there should be
intention to cause alarm or to cause the person threatened to do any act which
he is not legally bound to do.
In Ramesh Chandra Arora v. State AIR 1960 SC 154 Accused took indecent
photographs of a girl and threatened her father that if "hush money" is not
paid to him he would publish the photographs Supreme Court while holding
the accused guilty of criminal intimidation observed: "This Section is in two
parts; the first part refers to the act of threatening another with injure to his
person, reputation or property or to the person or reputation of any one in
whom that person is interested; the second part refers to the intent with

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which the threatening is done and it is of two categories: one is intent to cause
alarm to the person threatened, and the second is to cause that person to do
any act which he is not 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."
In order to constitute this offence, it is not necessary that the threat should be
addressed directly to the person intimidated, it is sufficient if it is intended to
be and is communicated to such person. Further, it is immaterial whether the
person threatened was actually frightened by the threat.

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Miscellaneous
Q. Summary of Right of Private defence

Note : Shorter way to remember the whole thing. Note the points written
from a, to u.
Essential elements
Section 96 - Nothing is an offence which is done in the exercise of the right of

private defence.
Essentials of Private defence-
a. -Right inherent in man, which is the duty to help himself.

b. -Right is exercised when there is real and immediate threat
c. -If life is threatened by grave danger, need not wait for State aid, unless
aid is available
d. -Right is protective or preventive and not punitive
e. -Not for self-gratification
f. -Should not be deliberate or for retaliation of past injury
g. -Right commences as soon as reasonable apprehension of danger arises
and continues till the apprehension continues
h. -The protective measures must be proportionate to injury or threat
i. -The right ends with the necessity for it
j. -The aggressor cannot claim the right to self-defence
k. -No private defence against private defence
l. One who goes to beat the other cannot claim the right
m. Even if private defence is not claimed, court may consider the plea based
on material on record.
RIGHT OF PRIVATE DEFENCE -Section 97, 98
Section 97
Section 97 - Right of private defence of the body and of property.
Every person has a right, subject to the restrictions contained in section 99, to
defend—

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j. Right to defend
a. his own body,
b. and the body of any other person, against any offence affecting
the human body;
k. Right to defend property,
a. whether movable or immovable,
b. of himself or
c. of any other person,
d. 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, rob-bery, mischief or criminal trespass.
Section 98
To exercise the right,
l. the physical or mental capacity of the attacker is no bar (whether with or

without mens rea) and is available against
a. Minor;
b. Person of unsound Mind;
c. Intoxicated Person
d. Person having no maturity of understanding
e. Person acting under misconception.
RIGHT OF PRIVATE DEFENCE OF BODY - Section 99
There is no right of private defence against an act
m. 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.
n. 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.

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o. There is no right of private defence in cases in which there is time to

have recourse to the protection of the public authorities.
p. The right of private defence in no case extends to the inflicting of more
harm than it is necessary to inflict for the purpose of defence.
Illustrations:
1. A person is not deprived of the right of private defence against an

act done, or attempted to be done, by a public servant, as such,
unless he knows or has reason to believe, that the person doing
the act is such public servant.
2. A person is not deprived of the right of private defence against an
act done, or attempted to be done, by the direction of a public
servant, unless he knows, or has reason to believe, that the
person doing the act is acting by such direc-tion, 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.
Section 100 When right of private defence extends to causing death
i) Assault causing apprehension of death

ii) Assault causing apprehension of grievous hurt
iii) Assault with intention of committing rape
iv) Assault with intention to gratify unnatural lust
v) Assault with intention of kidnapping or abducting
vi) Assault with intention of wrongfully confining a person
Section 101 In other circumstances the defender may cause any harm except
death
q. If the offence be not of any of the descriptions enumerated in the last

preceding section, the right of private defence of the body does not
extend to the voluntary causing of death to the assailant, but does
extend, under the restrictions mentioned in section 99, to the voluntary
causing to the assailant of any harm other than death.
Section 102 Right commences as soon as reasonable apprehension of danger

to body arises and continues till the apprehension continues

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Section 103- When the right of private defence of property extends to

causing death
r. Right extends to causing death if

a. Robbery
b. House breaking by night
c. Mischief by fire to any building, tent or vessel used as human
dwelling or as place of custody of property
-Section 105- Commencement and continuance of the right of private

defence of property
It fixes the time when the right of private defense of property commences and
when it comes to an end.
s. This right commences as soon as a reasonable apprehension of danger

to property commences and its continuation depends upon the nature
of offence.
t. It continues, in case of –
a. theft – till the offender retreated, or procurement of assistance of
public authorities or till the property is recovered.
b. robbery – as long as the offender causes or attempts to cause any
person death or hurt or instant personal restraint continues.
c. criminal trespass or mischief – as long as the offender continues in
the commission of criminal trespass or mischief.
d. House-breaking by night – as long as such house trespass that
began continues.
Section 106 In case of reasonable apprehension of death if defender cannot

exercise the right without risk of harm to innocent person, he may even run
that risk.
u. If in the exercise of the right of private defence against an assault which

reasonably causes the apprehension of death, if the defender cannot
right without risk of harm to an innocent person, his right of private
defence extends to the running of that risk.
Illustration

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A is attacked by a mob who attempt to murder him. He cannot effectually

exercise his right of private defence without firing on the mob, and he cannot
fire without risk of harming young children who are mingled with the mob. A
commits no offence if by so firing he harms any of the children.

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IPC-Notes-Full - IPC Questions and Answers

Criminal Law - II (Karnataka State Law University)

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1 Criminal law – Raghuraman K

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2 Criminal law – Raghuraman K

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3 Criminal law – Raghuraman K

3. Principal of first degree ................................................................................................................. 58

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4 Criminal law – Raghuraman K

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5 Criminal law – Raghuraman K

Q. Short notes on Criminal intimidation ......................................................................................... 169

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6 Criminal law – Raghuraman K

Q. 4 How jurisdiction of criminal court is determined and

Q. 5 Define and explain following expressions :-

(a) "Public Servant"

(b) "Wrongful gain" and "Wrongful loss"

(c) "Dishonestly" and "Fraudulently"

(d) "Valuable Security"

Q. 9 Discuss the nature and duration of sentence of imprisonment in default of payment of

Q. 10 Writ a short note on "Solitary Confinement."

Q. 11 What is the Law relating to enhanced punishment for subsequent offences ?

Q. 12 Write short notes on :

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7 Criminal law – Raghuraman K

(i) Mistake of fact

(ii) Criminal liability of Minor

Q. 14 "Legal insanity is different from Medical insanity" Discuss this statement.

Q. 15 Discuss the law of defence of intoxication under Indian Penal Code.

Q. 17 In what circumstances and to what extent will a plea of compulsion or necessity be a

Q. 18 Decide the liability of `A' in the following

Q. 19 Discuss the law relating to right of private defence ?

(B) What offence has been committed in following cases:

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8 Criminal law – Raghuraman K

Q. 22 A asked B to help him in committing murder of C. B agrees but nothing is subsequently

Define and explain offence of criminal conspiracy.

Q. 25 Enumerate offences relating to the Army, Navy and Air Force

Q. 28 What is Riot, distinguish between Riot and Affray.

Q. 29 What is the liability of a member of an unlawful assembly for an act committed by

Q. 32 Define and Explain Affray.

Q. 33 Enumrate various offences by or relating to Public Servants

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9 Criminal law – Raghuraman K

Q. 37 Explain the law relating to offence of giving false evidence.

Q. 38 What does the offence of fabricating false evidence consist in?

Q. 40 What are various offences relating to weights and measures

Q. 41 What is a "Public Nuisance" ? Distinguish it from a "Private Nuisance".

Q. 44 What are offences relating to Religion ?

When Culpable Homicide does not amounts to murder.