NATURE & DEFINITION OF CRIME

➢ Every State should have an efficient system of penal laws in order

to discharge its primary function of keeping peace in the land by
maintaining law and order.
➢ Penal law is an instrument of social control which authorizes the
infliction of state punishment on undesired and harmful human
conduct. It supplies a pragmatic reason for not doing harmful acts
and punishes the perpetrators of those acts.
➢ Professor Wechsler has remarked “this is the law on which men
place their ultimate reliance for protection against all the deepest
injuries that human conduct can inflict on individuals and
institutions. …If penal law is weak or ineffective, basic human
interests are in jeopardy. If it is harsh or arbitrary in its impact, it
works gross injustice to those caught within its coils. The law that
carries that such responsibilities should surely be as rational and
just as law can be.”
➢ Salmond defined a crime as an act deemed by law to be harmful for
society as a whole although its immediate victim may be an
individual.
➢ Sir William Blackstone has defined crime as an act committed or
omitted in violation of public law forbidding or commanding it.
➢ John Austin has defined crime in the words “A wrong which is
pursued by the sovereign or his subordinates is a crime. A wrong
which is pursued at the discretion of injured party and his
representatives is a civil injury.
➢ Professor Kenny has defined Crime as wrongs whose sanction is
punitive and is no way remissible by any private person but is
remissible by the Crown alone, if remissible at all.
➢ Halsbury’s Law of England defines crime as an unlawful act or
default which is an offence against the public and renders the person
guilty liable to legal punishment.
➢ Section 40 of IPC defines an offence as a thing made punishable by
this Code or under any special or local law. According to the
Supreme Court, crime is a revolt against the whole society and an
attack on the civilization of the day.
➢ It is very difficult to give a correct and precise definition to crime.
This difficulty arises due to the changing nature of crime. What is
crime varies according to cultures, social values and beliefs, and
ideology of the ruling social-political power. Professor Kenny
observes that “Any conduct which a sufficiently powerful section of
any given community feels to be destructive of its own interests, as
endangering its safety, stability or comfort, it usually regards as
heinous and seeks to repress it…. Crimes therefore originate in
government policy of the state…so long as crimes continue to be
created by government policy the nature of crime will elude true
definition.”
➢ Only political power of the day decides what a crime is. The
purpose of criminal law is to express a formal social condemnation
of forbidden conduct, buttressed by sanctions calculated to prevent
it.
➢ Sociologists like Roscoe Pound perceive crime as a social
phenomenon and consider criminal law as protecting certain social
interests. Ex; interests in general safety, peace and public order,
interest in conservation of social resources, interest is security of
social institutions etc. Any act which threatens or poses threat to
realisation of these interests is considered as a crime.
➢ The most precise and least ambiguous definition of crime is that
which defines it as behaviour which is prohibited by the Criminal
Code. An act or omission, no matter what the degree of immorality,
reprehensible or indecent, does not amount to a crime unless it is
prohibited by penal law. Ordinarly, a crime is a wrong which affects
the security and well being of the public generally so that public has
an interest in suppressing it.
Crime and Tort – Differences
➢ Tort is a wrongful act committed against an individual. The remedy
lies in the Civil Court. Crime is a wrongful act committed not only
against an individual but also against the public. The State
prosecutes the wrong-doer.
➢ In tort the relief awarded to the person is damages. In criminal law
the person who committed the offence is punished. The punishment
may be corporal or monetary.
➢ Unlike torts Crimes are not generally remissible by private persons
unless law allows the same.
Criminal Law and Ethics
➢ Law is concerned with relationships between individuals rather than
with individual excellence. Ethics deal with absolute ideal whereas
positive law is concerned with current public opinion.
➢ A’s neighbour is dying of starvation. A’s granary is full. There is no
law that requires A to help him.
ELEMENTS OF CRIME
➢ The fundamental principle of criminal liability is that there must be
a wrongful act – Actus reus combined with a wrongful intention –
Mens rea.
“Actus non facit reum nisi mens sit rea”
➢ The above maxim means that ‘an act alone does not make one
guilty unless the mind is also legally blameworthy.’ Similarly mere
actus reus ceases to be a crime as it lacks mens rea. Actus reus
represents the physical aspect of the crime and mens rea, its mental
aspect.
➢ Actus reus has been defines as such result of human conduct as the
law seeks to prevent. Mens rea implies blameworthy mental
condition or ‘mind at fault’ and covers a wide range of mental states
and conditions. No act is per se criminal; it becomes a crime only
when the actor does it with guilty mind.
➢ No external conduct, howsoever serious in its consequences, is
generally punished unless the prohibited consequence is produced
by some wrongful intent, fault or mens rea.
➢ Actus reus connotes an overt act, the physical result of human
conduct. It is different from the act which produced the result. Every
Crime which is legally specified and defined, generally involves the
combined presence of both actus reus and mens rea.
➢ In a murder case the victim’s death is the event which is the actus
reus. The death or the actus reus was probably caused by firing of
the gun, which is the conduct which produced the result. The vicious
intention to cause the actus reus ie death, is called mens rea.
➢ However harmful or painful an event may be it is not actus reus
unless the criminal law forbids it. In other words, the act must be
one that is prohibited by law
ACTUS REUS
 Actus reus includes all the external circumstances and consequences
specified in law as constituting the forbidden situation. Act or
omission can lead to injury or a consequence or event. This event or
consequence is called ‘actus reus.’ A person is liable for causing
that event which law forbids.
 The requirements of actus reus varies depending on the definition of
the crime. Actus reus may be with reference to place, fact, time,
person, consent, state of mind of victim, possession or even mere
preparation. For ex;
Place – In Criminal trespass or House Breaking actus reus is in
respect of place
Time – In House breaking by night or in lurking House-trespass
by night the actus reus is in respect of time
Person – In the offence of kidnapping the actus reus is in respect
of the person
Consent – In the offence of rape, consent is the actus reus.
Possession – In the offence of possession of stolen property
the actus reus is in respect of possession
 Preparation – Section 399 IPC, makes preparation to
commit dacoity an offence

➢ An act means a conscious or willed movement. It is a conduct

which results from the operation of the will. It is only a voluntary
act that leads to an offence. An Act on the part of the accused which
is beyond the control of his mind is called an involuntary act. This
situation is called automatism. Common examples of automatism
are somnambulism, epilepsy, hypoglycemia etc.
➢ Section 32 makes it clear that the word act refer to illegal omissions
also and Section 33 provides that the word act can mean a series of
acts.
 IPC makes punishable omissions, provided they are illegal. Illegal is
defined in Section 43 IPC. An illegal omission would apply to
omissions of everything which a person is legally bound to do. For
ex, a Father or Mother of a Child below 12 years of age would be
liable for culpable homicide if the child dies as a result of
abandonment of the Child.
 An act of omission attracts criminal liability only when a person is
placed under duty to act recognized by the Criminal law and he with
the requisite blameworthy mind, failed to fulfill it. Such legal duties
might arise out of relationship or contracts, or might be imposed by
statutes. In Om Prakash v State of Punjab Supreme Court held that
husbands act of deliberately withholding food to his wife would
amount to attempt to murder under Section 307 IPC.
 Section 36 makes it clear that committing of an offence partly by an
act and partly by omission would also constitute the offence.
➢ Section 39 of IPC defines the term voluntarily. A person is said to
have caused an effect voluntarily when the effect is the probable
consequence of the act done by him. If a particular effect could have
been avoided by due exercise of reasonable care and caution then
the effect of the negligent act is said to have been voluntarily
caused. The question whether the effect of a particular act was
 caused voluntarily, is a question of fact, to be determined on the
basis of facts and circumstances of each case.
➢ In order to create criminal liability it is not sufficient that there is
mens rea and an act; however harmful or painful an event may be it
is not actus reus unless criminal law forbids it. In other words, the
act must be one that is prohibited by law.
➢ The causing of actual harm may or may not be a part of actus reus.
Offences like treason, forgery, perjury and inchoate or incomplete
crimes are per se offences, irrespective of whether they result in
harm.
Causation in Criminal Law
➢ A man is said to have caused the actus reus of a crime, if that actus
would not have occurred without his participation in what was done.
Some causal relationship has to be established between his conduct
and the prohibited result. Causation is the chain between act or
omission and the consequence.
➢ The Harm caused must be a direct result of that act. It must be
causa causans – the immediate cause, and it is not enough that it
may be causa sine qua non – the proximate cause. If the result is too
remote and accidental in occurrence, then there is no criminal
liability.
➢ In Conduct crimes, the very conduct constitutes a crime. However
in result crimes the link between conduct and result should be
established. A person is liable for all the actions provided the chain
of causation is unbroken. Doctrine of causation is based on the
principle that a man can only be held liable for the consequences of
his action.
Principles of Causation
➢ Principle of Reasonable foresight
A man is said to intend the natural consequences of his act. Section
39 states that a man is said to have voluntarily caused an effect, if he
had reasons to believe that an effect is likely to be caused. Section
300(3) and 300(4) contains this principle.
 In R v Roberts the accused attacked a woman who was travelling
with him in his car. The woman jumped out of the car and in that
process hurt herself. The accused was held guilty on the ground that
what the woman did was a natural result of the words and actions of
assailant. It was also held that if the woman had done something
which could not be foreseen by any reasonable man then it would be
a voluntary act of the victim and the chain of causation would be
considered as broken.
➢ Novus actus interveniens
In the course of an incident, another person intervenes. In such an
event the question arises whether the person who intervenes in the
course of event would absolve the person from the guilt by whose
action or omission the event started.
In Joginder Singh v State of Punjab the accused were chasing the
victim for retaliation. The victim jumped into a well and he died due
to drowning. The Supreme Court held that the accused were 15-20
feet away from the victim. There was no evidence to suggest that
the accused had drove victim into the well or they had left him no
option but to jump into the well. Hence the accused were acquitted
off the charges of murder and SC noted that if the accused had left
the victim without any option then the result might have been
different.
➢ In cases where another person has intervened and the latter’s action
was the immediate and direct cause of the crime, the

original wrongdoer whose act had merely given rise to the occasion
of the act of the criminal, will be absolved from liability.
In R v Hilton, the accused was in charge of a steam engine. When
he stopped the engine and went away some unauthorised person set
the engine in motion, resulting in death of the deceased. The Court
held that the death was the consequence of person who set the
engine in motion after the prisoner had gone away. The defence of
intervention was successful.
 In R v Horsey the accused set fire to a stack of straw. The deceased
was found in the buring flames of straw. It was not clear as to how
and when he came there. The accused was also not aware of his
presence. It was held that the accused is not liable because the
deceased persons intervening act led to his demise.
➢ Principle of Minimal Causation
When the death of a person is caused after medical treatment, it
cannot be said that the treatment was not proper or inadequate, or
had better treatment been given, the death would not have taken
place. The intervention of doctor is in the nature of minimum
causation and hence his intervention would have played only a
minor part, if any in causing death.
Section 299 explanation 2 specifically states that if an act causes
death, even if death could have been avoided by proper remedies
and skilful treatment, the act shall be deemed to have caused death
and the person will be criminally liable.
In Rewaram v State of Madhya Pradesh, the accused caused
multiple injuries to his wife. She was admitted to a hospital where
she developed hyperpyrexia. She died days later as a consequence
of hyperpyrexia. SC upheld the conviction of husband for murder
pointing out that hyperpyrexia was a result
of her debilitated condition. Intervening cause of hyperpyrexia was
a direct result of multiple injuries and was not independent or
unconnected with serious injuries sustained.
In R v Blaue the accused made sexual advances to the victim which
she refused. She was stabbed multiple times and was taken to a
hospital. She required blood transfusion which she refused as it was
against her religious beliefs. Court held the accused liable because
the original wound was still an operating cause, and a substantial
cause. The death was held to be the result of that wound albeit that
some other cause of death was also operating. It was also held that
the chain of causation is not broken and the defendants must take
their victim as they find them.
 In R v Holland the defendant gave a cut to the thumb of victim
during a fight. The victim failed to take care of the wound and an
infection set in. He was asked to ampute his arm which also
he refused. Later he died of infection. It was held by the Court that
the accused is liable because he had inflicted the wound without any
justification and it made no difference whether the wound was
instantly mortal or whether it became the cause of death by reason
of the deceased not having adopted the best mode of treatment.
➢ Principle of Ordinary hazard
Imagine a person who is attacked and has received injuries as a
result of attack. While being taken to the hospital, as a result of a
motor accident he is killed. In such a situation attacker will not be
liable for the death of the person because he did not substantially
increase the risk. Being a victim of traffic accident is an ordinary
risk of life. The attacker has not increased the victims risk but his
attack has only placed the victim in a geographical position, where
another agency produced his death. Anyone could die in a traffic
accident.
➢ Negligence should be relevant
In case of negligence the death should be the direct result of the rash
and negligent act. It must be the causa causans – the immediate
cause. In Suleman Rahiman v State of Maharashtra the accused
while driving a jeep struck the deceased as a result of which he died.
The accused had only learners permit. The prosecution argued that
accused is guilty of causing death by rash and negligent act.
However Court held that there was absolutely no evidence to
suggest that the accused had driven the vehicle in a rash and
negligent manner. A person could avoid taking a licence for variety
of reasons. In the absence of evidence to prove that accused drove
the vehicle in a rash and negligent manner, he could not be held
liable under Section 304A of IPC.
Contributory negligence cannot be pleaded as a defence in criminal
law. It does not play a role in the determination of guilt
 however it is a mitigating factor which is considered in the
determination of sentence. Occasionally, the contributory fault of
the victim may be so great that the defendants act is held not to be
the imputable cause of harm.
In R v Dalloway, Dalloway was riding a cart along the road. He
was not holding onto the reins as he should have done. A child ran
out into the road in front of the cart and was killed. Court held
Dalloway not liable for causing death by negligence because expert
evidence was produced which demonstrated that even if Dalloway
had been holding on to the reins tightly, he would not have been
able to stop the cart before it collided with and killed the child.
In State v Mohammad Yusuf a pedestrian alighted from the jeep,
while crossing highway impatiently at night, collided with a two
wheeler and died. The accused was not held liable for the event
because negligent act of the deceased was the main contributory to
the event.
MENS REA
➢ Mens rea denotes a blameworthy mental condition. An act becomes
a criminal only act when it is done with guilty mind. Actus non facit
reum nisi mens sit rea implies act does not make one guilty unless
the mind is also guilty. Ordinarily a crime is not committed, if the
mind of the person doing the act is innocent. However the requisite
state of mind varies from crime to crime.
➢ Criminal law believes that every person is born free and has the
freedom to live in a free manner. Freedom to act freely also means
that every person has the capacity and ability to choose between
right and wrong, good and evil. Once a person exercises his free
will to do or not to do an act, then he is liable for the consequences
of his act. Also if law were to punish persons who acted innocently
and who had no intention whatsoever to cause harm, then there
would be no public acceptance of the same.
➢ Under IPC Culpable Homicide becomes murder when the act which
caused the death is done with the intention of causing death.
Similarly the offence of theft would only be attracted when a
 moveable property is taken away with dishonest intention. Every
actus reus has to be accompanied by a guilty mind or mens rea
inorder to constitute a crime.
➢ Though the word mens rea is not used in IPC its essence is reflected
in almost all the provisions of IPC. Guilt in respect of almost all the
offences created under IPC is qualified by words like intention,
knowledge, dishonestly, fraudulently, maliciously etc.
➢ Chapter IV of IPC deals with General Exceptions, wherein acts
which otherwise would constitute offences, cease to be so under
certain circumstances set out in the Chapter. The Chapter
enumerates the circumstances that appear incompatible with the
existence of required guilty mind or mens rea and thereby exempts
the doers from criminal liability.
➢ Intention
A Person clearly intends a consequence if he wants that
consequence to follow from his action. Intention is the desire to
achieve a cetain purpose. It is the foreknowledge of the act coupled
with the desire for it. Intention is difficult to establish by direct
evidence, as it requires going into a person’s mind to determine
what his intention was. Hence intention is understood from the
attendant circumstances of the case and from the actions of the
accused.
Intention and motive are 2 different things. A motive is something
which prompts a person to form an intention. Motive is called the
ulterior intent, it is the reason for an action; what impels a person
to act such as ambition, envy, fear, jealousy etc. Motive does not
affect criminal liability, however it becomes a relevant factor in
determination of aggravation or mitigation of sentence. A bad
motive cannot be a reason for convicting a person and a good
motive cannot be a reason for acquitting a person. Failure to bring
on record any evidence regarding
motive does not weaken the prosecution case, though existence of
same may strengthen the case.
➢ Knowledge
 Knowledge is awareness on the part of the person concerned of the
consequences of the act. In many cases intention and knowledge
merge into each other and intention can be presumed from
knowledge.
In Hyam v Director of Public Prosecutions it was held by House of
Lords that a person who did an act without intention to cause death,
but who knows that there is a serious risk, that death or grievous
bodily harm will ensue from his acts, and still commits those acts
deliberately and without lawful excuse, with the intention to expose
a potential victim to that risk, can be held liable for murder.

➢ Negligence
A person is negligent if he fails to exercise such care, skill or
foresight as a reasonable man in his situation would exercise. It is
the failure of the person to act with the standard of care expected of
a reasonable or prudent man. A reasonable man in law generally
means the law abiding, cautious, and careful person. However
unlike in civil cases simple lack of care will not result in criminal
liability and in order to attract liability the negligence should be
culpable or gross negligence.
The only state of mind which is deserving of punishment is that in
which there is a deliberate willingness to subject others to harm,
which is actually called recklessness.
➢ Rashness
Rashness is the state of mind of a person who foresees the possible
consequences of his conduct but acts without an intention or desire
to bring them about. He is just indifferent to the consequences.
Tapti Prasad v Emperor
➢ Dishonest Intention
Section 24 of IPC defines dishonestly. It says whoever does a thing
with the intention of causing wrongful gain to oneself or wrongful
loss to another person does the act dishonestly. Wrongful loss and
wrongful gain is defined under Section 23 IPC. Wrongful gain is
 gain by unlawful means of property to which the person gaining is
not legally entitled. Wrongful loss is the loss by unlawful means of
property to which the person losing it is legally entitled.
➢ Fraudulent intention
Section 25 states that a person is said to do a thing fraudulently if he
does that thing with the intent to defraud. The expression defraud
involves 2 elements namely ,deceit and injury to a person deceived.
The injury is something other than economic loss, and it would
include any harm whatever caused to any person in body, mind or
reputation. A benefit or advantage to the deceiver without any loss
to the deceived, will also amount to injury to the deceived.
➢ In G.S.Bansal v Delhi Administration , inorder to obtain back Post
Office National Savings certificates, the accused forged the
signature of his father. His father had passed away. These
certificates were given as security by the deceased person in order
to get license for his ration depot, and he had made an application to
release them before his demise. Accused maintained that he had not
derived any gain or advantage for himself or caused any injury to
anyone else by his act. However SC pointed out that the proper way
of obtaining the document was to wait for 3 months after the death
of the father, and then convince the Post Master General about
being the sole heir of the deceased and then receive the money. SC
held him liable for forgery by holding that by not waiting for 3
months and by avoiding the risk of refusal from the part of Post
Master General he has secured an uneconomic advantage, which
implied, he had obtained the documents fraudulently.
STRICT LIABILITY
➢ The necessity for mens rea has been dispensed with in respect of
social or public welfare legislations. These are laws which are
different from maintaining peace and order in the society. All these
laws have been enacted for the larger good of the society.
➢ In R v Prince , the accused took away a girl below the age of 16 after
the girl had told the accused that she was 18. In the statute there was
no element of mens rea as an element of crime. Court held that what
 he intended to do was an inherently immoral act and his honest and
reasonable belief would not save him. Intention of the legislature
sufficiently appears to have been to punish the abduction, unless the
girl, in fact, was of such an age as to make her consent an excuse,
irrespective of whether he knew her to be too young to give an
effectual consent.
➢ In R v Tolson , the defendant was convicted for the offence of
bigamy for having gone through a marriage within 7 years after

she had been deserted by her husband. It was found out that at the
time of marriage she had a honest and reasonable belief on the death
of her husband. The House of Lords held that
Section should be construed in accordance with the well-known
principle of English criminal law that in order to constitute crime
there must be a mens rea, or guilty intention. In the present case, the
Court held the language of the section is not such as to indicate that
a mens rea is not essential to the crime of bigamy. The proviso of the
section provides a wider exception than the general exception of
mens rea, which would come into operation after 7 years of desertion.
It was held that a bonâ fide belief on reasonable grounds in the death
of the husband at the time of the second marriage afforded a good
defence to the indictment, and that the conviction was wrong.
➢ In Sherras v De Rutzen, the defendant was held liable for
selling liquor to a police constable who was on duty. Section 16(2)
of the Licencing Act which prohibited such conduct did not mention
anything about mens rea. The appeal was allowed and conviction
was quashed. Court held that “there is a presumption that mens rea,
an evil intention, or a knowledge of the wrongfulness of the act, is
an essential ingredient in every offence; but that presumption is
liable to be displaced either by the words of the statute creating the
offence or by the subject-matter with which it deals.” The
conviction was quashed on the ground that unless guilty mind is
required, no amount of care on the part of publican can save him
from conviction. Court held that it would be as easy for the
 constable to deny that he was on duty when asked, or to produce a
forged permission from his superior officer, or to remove his armlet
before entering the public house.
In S.Varadarajan v State of Madras appellant was charged
Section 363 IPC. The girl was on the verge attaining majority when
she abandoned the guardianship of her parents. Section 361 defines
kidnapping from lawful guardianship as “whoever takes or entices
any minor under sixteen years of age if a male, or under eighteen
years of age if a female, or any person of unsound mind, out of the
keeping of the lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to kidnap such
minor or person from lawful guardianship.”
Supreme Court pointed out that there is nothing on evidence to
show that the girl had left the house of her father at the instance or
even a suggestion of the appellant. She was not made to accompany
the appellant by any threat or blandishments. The girl accompanied
him willingly out of her desire to live as his wife. Law did not cast
upon him the duty of taking her back to her father's house or even of
telling her not to accompany him. Appellant was acquitted since he
had not induced the girl and had no role in formation of the
intention to leave the house.
➢ In State of Maharashtra v M H George the Reserve Bank of India
issued a notification on 24 November 1962 placing restrictions on
the transit of such gold to a place outside the territory of India, one
of them being that such gold should be declared in the "Manifest"
for transit. The respondent started his journey on 27 november and
was travelling from Zurich to Manilla via Bombay. He was
carrying 34 kilograms of gold and at Bombay airport Customs
authorities arrested him for violating the notification. Magistrate
found him guilty, but High Court reversed the decision and the
matter came before Supreme Court. It was argued on behalf of the
respondent that, he was not aware of notification by Reserve Bank
hence he cannot be punished due to lack of mens rea. However, the
Court held that besides the mere act of voluntarily bringing gold
 into India, any further mental condition or mens rea was not
necessary considering the language of the Act.
Further, it was also held by Court that the very object and purpose
of the Act and its effectiveness as an instrument for the prevention
of smuggling would be entirely frustrated if a condition of mens rea
is read into the words of the enactment.
It was also held that Courts has to presume requirement of Mens
rea for imposing criminal liability, unless a statute, expressly or be
necessary implication, excludes mens rea.”
In Nathulal v State of MP the appellant was convicted under
Section 7 of Essential Commodities Act for stoking wheat without
necessary license. Appellant pleaded that he was under the bonafide
belief that a licence would be granted to him and that is the reason
why he stored grains after applying for a licence. The Supreme
Court after going through the relevant statutory provisions held that
the object of the Act would not be defeated if mens rea is read as an
ingredient of the offence.

It also held that “Mens rea is an essential ingredient of a criminal

offence, unless the statute expressly or by necessary implication,
excluded mens rea. The mere fact that the object of the statute is to
promote welfare activities or to suppress a grave social evil is by itself
not decisive of the question whether element of guilty mind is
excluded or not. Mens rea by necessary implication may be excluded
from a statute only where it is absolutely clear the implementation of
the object of the statute would otherwise be defeated.” The Court
acquitted the appellant of all charges and allowed his appeal.
➢ The necessity for mens rea has been dispensed with in respect of
social or public welfare legislations enacted for larger good of the
society. Courts in order to ensure that public at large is not put to risk
has enacted strict liability offences in Prevention of Food
Adulteration Act, Protection of Civil Rights Act, Contempt of Courts
Act, SC & ST (Prevention of Atrocities) Act.
➢ The necessity for mens rea has been dispensed with in respect of
social or public welfare legislations. The Conviction for committing
these public welfare offences does not attach to itself the kind of
social stigma and damage to reputation that a conviction under IPC
would attract.
➢ In determining whether a statutory provision does or does not create
an offence of strict liability the following considerations are
relevant:
a) the phraseology of statutory provision
b) object of the statute
c) nature of the public purpose and
d) nature of mischief at which the statute is aimed.
VICARIOUS LIABILITY
➢ The principle of vicarious liability, which plays an important role in
torts is not extended to criminal law. However, there are 2
exceptions to this rule in English common law:
a) A master is vicariously liable for libel published by his servant.
b) A master is vicariously responsible for public nuisance
committed by his servant.
➢ The maxim qui facit per alium facit per se is not a doctrine of
criminal law. A master is punishable under criminal law for acts of
his servants, only where it is proved that he has instigated or
otherwise abetted the acts of the person who committed the crime.
However there are exceptions to the general rule that a master is not
criminally liable for the acts of his servants.
A) Liability under Statute
It is within the power of the legislature to make certain act or
omission penal and fix strict liability upon a person. In such cases
the acts or defaults of the servant or the agent in
ordinary course of employment may make the master or principal
employer criminally liable, although the he was not aware of acts or
defaults and even where they were against his orders. However such
liability must be specifically imposed by the terms of the statute or
at least the fact of implied liability must be sufficiently discernible
from the provisions of the statute.
In Sarjoo Prasad v State of UP the appellant was an employee of a
seller of edible oils. Both the employer and employee were
prosecuted for selling adulterated mustard oil. The Court held that
“the intention of the Legislature is plain. Every person, be he an
employer or an agent is prohibited from selling adulterated food
and infringement of the prohibition is by s. 16 penalised.” The
Court also went on to hold that if the owner of the shop is
punishable without mens rea, the employee can also be punished
without a guilty state of mind.
B) Liability of Licensees
A licensee is responsible for the acts of his employee done within
the scope of his authority, although, contrary to the instructions of
the licensee. In order to fix a licensee with a liability for the acts of
his servants, personal knowledge of the licensee is not always
necessary. In Emperor v Hanmantappa the accused held a
licence under Indian Explosives Act 1884 to manufacture gun
powder. The servant violating the terms of licence took the raw
materials to the house of accused and started manufacturing there.
The accused was charged for the explosion which occurred at his
house. The accused was held liable because what the servant did
was in furtherance of her master’s business and not in pursuance of
any purpose of her own. What she was done was within the general
scope of her employment and the breach of condition of the licence
was committed when she was so engaged.
C) Riot and Unlawful Assembly
Indian Penal Code 1860 provides for vicarious liability under
Section 154 and 155. As per Section 154, whenever any unlawful
assembly or riot takes place in the land of any person, the owner or
occupier of the land, or any person having or claiming any interest
in the land is criminally liable, if the agent or manager of the owner
fails to take necessary action in reporting the matter to the police or
fails to use all lawful means to prevent, disperse or suppress the riot
or unlawful assembly. Similarly under Section 155, the owner or
 occupier who has derived any benefit from the riot or for whose
benefit it has been carried out is made criminally liable, for failure
of his agent or manager to use all lawful means to suppress the
assembly and dispersing the same.
➢ Master is made criminally liable for the acts or omission of his
servant. His liability does not depend upon his knowledge

of the riot. The owners and occupiers of land have been invested by
law with certain duties, which they are expected to discharge by the
virtue of their position as landholders. They are not unconnected
with the use of the land and their responsibility is based upon the
assumption that as land holders, they possess the power of
preventing the gathering of men upon their land.
D) Negligence in performance of duty
Where a person is under a duty to perform an act, which is likely to
cause dangerous results, does not perform it himself, but entrusts it
to some unskillful hands, as a result of which there is a loss of life
or some injury is caused, he may be criminally liable for the same.

Corporate Criminal Liability

➢ Section 11 of IPC defines persons. It says the word person includes
corporations, associations or any body of persons whether
incorporated or not. It was earlier believed that a corporation cannot
be made liable for criminal offences like a natural person since it
lacked physical body and mind.
➢ In the case of Ananth Bandu v Corporation of Calcutta, Calcutta
High Court made it clear that a company is not outside purview of
criminal law. However the Court held that when only imprisonment
is prescribed as punishment, Company cannot be prosecuted
against since it is physically impossible to imprison a company.
➢ This decision is in tone with the principle lex non legit ad
impossibilia, which means law does not compel doing of
impossibilites.
 Originally it was believed that a Corporation cannot be charged of
offences because due to lack of physical body, it cannot be arrested
or compelled to remain present during criminal proceedings. It
lacked mind and hence could not form the necessary mens rea and
no bodily punishment could be inflicted upon it. At a later point of
time Courts began to hold Corporations liable for offences that did
not require mental element. In Queen v Great North of England
Railway Co it was held Corporations could be held liable for
misfeasance. The liability was fixed during the doctrine of
respondent superior.
➢ In State of Maharashtra v Syndicate Transport Co ltd Court made it
clear that for offences resulting in imprisonment as punishment, a
trial cannot be instituted against a company since no effective order
by way of sentence can be passed.
➢ In Assistant Commissioner v Velliappa Textiles it was held that
Company could not be prosecuted for offences involving a sum
Rs One Lakh or more because above one lakh imprisonment was
mandatory. But for a sum which is less than Rs One lakh discretion
was there with the Court to grant either fine or imprisonment.
In Standard Chartered Bank v Directorate of Enforcement the
Supreme Court held that a Company can be imposed with fine
irrespective of the fact that mandatory imprisonment is prescribed.
Court clarified that the legislative intent behind FERA was to punish
Corporations and never intended to remove Corporations from
criminal liabilities. Court also pointed out that when 2 punishments
are prescribed for the same offence, the intention of the legislature
is to impose them to the extent possible and it is not to exonerate
any person from liability.
Nowadays Corporations are held liable for Mens rea offences by
way of alter ego theory or identification theory.

➢ In Lennards Carrying Co v Asiatic Petroleum Co ltd the alter ego

theory was explained. Board of Directors act as the directing mind
and will of the Corporation. Board of Directors are brains of the
 Company which is the body and Company can and does act only
through them. A Corporation can be held criminally liable for
committing an offence by a person who at the relevant time was the
directing mind and will of the Corporation.
➢ In Tesco v Nattrass the test was further explained. It was held a
Corporation must act through a person, and such a person is not
acting for the company but he is acting as the company. He is acting
as the company and his mind which directs his acts directs the
company. Court held a company cannot be held liable for the
actions of a branch manager and it can be held liable for actions of
senior officials who are the directing minds of the company.
➢ In Iridium India Telecom ltd v Motorola Inc, complainant was
Iridium India Telecom who had invested in a telecommunication
project by Motorola Inc which turned out to be a failure. The
complaint was made under Section 120(b) and Section 420.
Criminal proceedings were quashed by Bombay High Court under
Section 482 Crpc. Supreme Court held that a Corporation can be
prosecuted for offences involving Mens rea and it adopted the
directing mind and will test used in UK to determine whose Mens
rea is to be considered as Company’s Mens rea.
JURISDICTION UNDER IPC
➢ The criminal courts in India exercise jurisdiction either because a
crime is committed by any person, national or foreigner within the
Indian territory or because a crime though committed outside or
beyond the territory of India, is committed by an Indian national.
The former is called intra-territorial jurisdiction and the latter is
called extra-territorial jurisdiction.
➢ Section 2 of the Code deals with intra-territorial jurisdiction of
Courts. According to Section 2 the Code applies to every person in
any part of India for every act or omission contrary to the provisions
of the Code. The words “every person” under this section means
and includes a citizen of India as well as a non-citizen. Any person
irrespective of his nationality, rank, caste, or creed is triable by
Indian Courts provided the offences with which he has been charged
have been committed on any part of Indian territory. Any foreigner
who enters the Indian territories accepts the protection of Indian
laws, and submits to
the operation of the laws and to the jurisdiction of the Courts. A
foreigner cannot be allowed to plead that he did not know that the
act he was doing was wrong, because of the act not being an offence
in his own country.
In R v Esop a person, native of Baghdad was charged for
committing an unnatural offence on board an East Indian ship, lying
in St.Katherine’ dock. The act would not have been an offence in his
home country. It was held that he was guilty of the offence and the
fact that the act would not have amounted to an offence in his own
country could not be admitted as a legal defence if his act
constituted an offence in India.
In Mobarak Ali Ahmed v State of Bombay the SC clarified that the
basis of jurisdiction under Section 2 is the locality where the offence
is committed and that the corporeal presence of offender in India is
immaterial. In this case a Pakistani national, while staying at
Karachi made false representations through letters, telephone
conversations and telegrams to the complainant in Bombay and
induced the latter
to part with money. The accused was prosecuted for cheating. SC
held that even though accused was a Pakistani national at the time
of the commission of the offence, he must be held guilty and
punished under IPC, notwithstanding his not being corporeally
present in India at the time.
While under the Code there are no exceptions to the jurisdiction in
favour of any person, certain persons are immune either by virtue of
the provisions of the Constitution or under the law of civilised
nations of the world.
i) Foreign Sovereigns - It is common understanding that between
nations that one sovereign cannot be subject to law of the other.
Sovereignity admits of no superior, therefore it would be
incompatible with the concept of sovereignity to submit to the
jurisdiction of the other.
ii) High dignitaries of the State – By Article 361 of the Constitution
the President of India and the Governors of the
State are exempt from the jurisdiction of the Court.
iii) Ambassadors and Diplomats – Ambassadors and some other
foreign diplomats enjoy immunity from the jurisdiction of the
Courts. They enjoy the same immunity as the Sovereign or the State
which they represent. Their immunity is based on the principle that
they being representatives, of the state which sends them are
admitted upon the faith to be clothed with same independence of
and superiority to all adverse jurisdiction as the sovereign authority
whom they represent would be. For certain purposes the premises of
the foreign missions are not considered as part of this country but as
a part of the country which they represent. Offences committed
within the the premises of the foreign mission cannot be tried by
local courts. If a person enjoying diplomatic immunity grossly
offends misuses his office or does any act detrimental to interest of
the country, the remedy is to make a demand of his recall.
iv) Alien Enemies – Alien enemies cannot be tried by the criminal
courts of India in respect of their acts of war. If an alien enemy
commits a crime unconnected with war as theft, cheating etc he
would be triable by criminal court. For acts of war they shall be
dealt with under martial law.
v) Foreign Army – When armies of any foreign state are stationed
on the Indian soil with the consent of the Indian Govt, they are
immune from the jurisdiction of the local criminal courts.
vi) Warships – Warships of a foreign country can enter territorial
waters of India only with the permission of govt of India. Man of
war (combatant warship) of a state in foreign waters are exempt
from the jurisdiction of the state within whose territorial jurisdiction
they are.
A person is triable by Indian Courts only when the offence has been
committed within India. If the offence is committed outside India it
is punishable under IPC only when covered by Sections 3,4, 108A
of the Code.
 Section 4 confers jurisdiction on Indian Courts to extra-territorial
offences in the following cases:
i) Offences committed by any citizen of India in any place
without and beyond India, (Active nationality principle)
ii) offences committed by any person on any ship or aircraft
registered in india wherever it may be
iii) any person in any place without and beyond India committing
offence targeting a computer resource located in India
When an offence is committed beyond the limits of India but the
offender is found within the territorial limits of India then 2 courses
are open;
a) he may be given up for trial in the country where the offence was
committed i.e, he may be extradited to that country
b) he may be tried in India.

➢ Section 3 of IPC provides that a person liable to be tried for an act

constituting an offence, committed beyond India shall be dealt with
as if he had committed the act within India. The words “ as if such
act had been committed within India” in section 3 creates a fiction
with respect to offences committed beyond India. If an Indian does
an act in a foreign country which is not an offence there, but is an
offence in India, he may be prosecuted in India.
➢ Section 188 of Crpc states that a person having committed an offence
outside India maybe tried at any place within India where he is found.
Section 4 applies only when the acts committed amount to an offence
under the Penal Code.
➢ Offences committed by foreigners outside India do not constitute an
offence under the Code and therefore, no foreigner can be held
criminally liable by Indian Courts for acts committed by him beyond
the territorial limits of the country .
➢ However, if a foreigner initiates an offence in a foreign country
which is completed within the Indian territory, he can be tried by the
Indian Court within whose jurisdiction the offence was completed
provided he is found within the Indian territory.
➢ The jurisdiction to try offences committed on high seas is known as
admirality jurisdiction. It is founded on the principle that a ship on
the high seas is considered as a floating island belonging to country
whose national flag she is flying. Admirality jurisdiction extends
over:
a) offences committed on Indian ships on High Seas
b) offences committed on foreign ships in territorial waters of
India
c) Pirates
Piracy means sailing on the seas for private ends without
authorisation from the govt with the object of committing robbery
or depredations upon property.
A pirate cannot claim immunity from the tribunal of his captor. By
engaging in piracy a person forfeits all his claims to protection from
his country or any other country.
➢ Any offence committed upon any aircraft registered in India,
wherever it may be tried in India.
➢ In Om Hemrajani v State of UP, a Dubai based bank filed a
complaint under Section 415,420 and 120-B IPC. It was alleged that
the petitioner obtained loans and absconded without liquidating the
liability to the bank. The Magistrate took cognizance of the offence
and issued non-bailable warrants. This action was challenged before
the SC. The Court held “The victim who has suffered at the hands of
the accused on a foreign land can complain about the offence to a
Court, otherwise competent which he may find convenient. The Court
where the complaint may be filed and accused either appears
voluntarily or brought before it involuntarily in execution of warrant
would be the competent Court within meaning of Section 188 Crpc
as that Court would find the accused before him when he appears.”

STAGES IN COMMISSION OF CRIME

Intention
Intention stage is not sufficient to incur penal liability. The mere
intention to commit a crime is not punishable, for the devil himself
knows not the thought of a man. It is always possible that a human
being may change his evil intention, therefore only an evil intention
accompanied with an overt act is made punishable in law. After
contemplation the next stage is preparation.
Preparation
Preparation is punishable in certain exceptional cases only because
those cases exclude the possibility of an innocent intention.
Preparation consists in devising or arranging means or measures
necessary for the commission of offence. Ordinarily preparation is
not punishable. The reasons as to why preparation is not punishable
are 4 fold; a) A preparation apart
from its motive is generally a harmless act b) It is impossible in
most cases to show that preparation was directed to a wrongful end
or was done with an evil motive c) making preparation punishable
would create innumerable offences d) Mere preparation does not
affect the sense of security of the individual nor would the society be
alarmed or disturbed as to rouse its sense of vengeance.
Under the Indian Penal Code certain exceptions exist to the rule that
preparation is not punishable. They are;
i) Section 122 – Collecting arms etc with intention of waging war
against the govt of India.
ii) Section 126 – Making preparation to commit depredation on
territories of any power in alliance or at peace with govt of India
iii) Section 235 – Possession of instrument or material for the
purpose of using the same for counterfeiting coin. Making or
selling instrument for counterfeiting of coin.
iv) Section 399 – Making preparation to commit dacoity.
Attempt
An attempt to commit a crime is an act done with the intent to
commit that crime and forming a part of a series of acts which
would constitute its actual commission if it were not interrupted.
The point at which such a series of acts begins cannot be defined
but depends upon the circumstances of each case. An attempt to
commit an offence can be said to begin when the preparations are
complete. Attempt means an act which if not prevented would have
 resulted in full consummation of act attempted. Attempt has also
been defined as the direct movement towards the commission after
preparations have been made. If the actual transaction has
commenced which would have ended in the crime if not interrupted,
there is clearly an attempt to commit the crime. If the attempt had
succeeded the offence charged would have been committed.
➢ IPC treats criminal attempt in 4 different ways. They are;
a) commission of offence and attempt to commit it are dealt with
in the same section and the extent of punishment prescribed is
the same.
Ex: offences against state – Section 121, 124 etc
abetting mutiny – Section 131
offences against public tranquility – Section 152 and 153-A
offences against public justice - section 196, 198, 200
offences relating to extortion, robbery dacoity – Section 385,
387, 389, 391, 397 and 398
criminal trespass – Section 460
b) Attempt to commit offences are dealt with separately and
different punishments are provided for attempts and the
offences.
Ex: attempt to commit murder Section 307, attempt to commit
culpable homicide Section 308, attempt to commit robbery
Section 393
c) Attempt to commit suicide - section 309.
d) Attempt to commit offences for which no express provision
is mentioned in the code – Section 511
Elements of Attempt
There exists 3 essential elements in order to secure conviction for
attempting to commit an offence. They are i) intention or mens rea
to commit an offence ii) an act or step is taken which is more than
preparation to commit an offence iii) for reasons beyond the control
of actor the offence did not materialize.
An attempt to commit an offence commences the moment the
accused, after making necessary preparations, commences to do an
act with necessary intention. Such an act need not be the
penultimate act towards commission of the crime. An attempt to
commit an offence, begins when the state of preparation ends.
In Abhayanand Mishra v State of Bihar the accused applied to Patna
University to take MA examination as a private candidate. He
produced BA certificate and also other certificates evidencing that he
was teaching in a school. However, these certificates were revealed
to be false documents and it was realized that he was not teaching
anywhere. The University prosecuted him for forgery and attempting
to cheat. Appellant argued that he had only reached the preparatory
stage and not crossed into the state of attempt to cheat. SC ruled out
this contention and held that preparation was complete when the
accused prepared the application for submission to the University
and that the moment he had dispatched it, he had entered the realm
of attempt to commit the offence of cheating.
In Sudhirkumar Mukherjee v State of WB accused tried to show false
delivery of limestone to his company in collusion with the supplier.
At the time he was caught, he had not signed the invoice showing
delivery of goods however signature of his superior was forged to the
invoice.
SC held acts of the accused had crossed the stage of preparation and
entered into realm of attempt.
Test for determining whether an act amounts to attempt:
PROXIMITY TEST
The act or a series of acts, in order to be designated as an attempt to
commit an offence, must be sufficiently proximate to the
accomplishment of the intended substantive offence.
In R v Taylor the accused was found in the act of striking a match
behind a haystack, which he extinguished on perceiving that he was
being watched. He was held guilty of attempted arson. But if he had
merely purchased a box of matches, he would not have been found
guilty of attempted arson.
The underlying maxim is cogitationis poenam nemo patitur which
means no man can safely be punished for his guilty purposes, save so
far as they have manifested themselves in overt acts which
themselves proclaim his guilt.
In State of Maharashtra v Mohammad Yakub the accused were
arrested by the official of the Central Excise for attempting to
smuggle silver out of India. Applying the proximity test Supreme
Court held them liable for attempting to export silver out of India. It
was held by Sarkaria J “ they had reached close to the seashore and
had started unloading the silver there, near a creek from which the
engine of a sea-craft was also heard. Beyond the stage of
preparation, most of the steps necessary in the course of export by
sea had been taken. The only step that remained to be taken was to
load it on the sea-craft and move it out of the territorial waters of
India.” So physical proximity of the doer with the commission of
the intended crime can help us determine whether the conduct
amounts to an attempt or not.
TEST OF LOCUS POENITENTIAE
This doctrine refers to the possibility of a person who, having made
preparations to commit an offence, actually backs out of
committing it, owing to a change of heart or out of any other type of
compulsion or fear. The acts of accused would only amount to
preparation if the overt acts done by him are such that, if the offender
changes his mind, and does not proceed further in its progress, the
acts already done would be completely harmless. As long as the steps
taken by the accused leave room for a reasonable expectation that he
might either of his own accord, or for whatever reason, desist from
going ahead with the contemplated act, then he will be treated in law,
as only being in the stage of preparation.
This doctrine was applied by the SC in the case of Malkiat Singh v
State of Punjab. The driver and cleaner of a lorry were intercepted at
Punjab,14 miles away from Delhi-Punjab border. They were carrying
a load of 75 bags of paddy in violation of Punjab Paddy (Export)
Control Order 1959. However, the SC set aside the conviction by
holding that their acts were still at stage of preparation.
Equivocality Test
This test suggests that an act is proximate if and only, if it indicates
beyond reasonable doubt what is the end towards which it is directed.
The act in order to constitute an attempt must be unequivocally refer
to the commission of the crime. An act done towards the commission
of the offence would amount to an attempt if and only if it
unequivocally indicates the intention of the doer to accomplish the
criminal object. SC in Om Prakash v State of Punjab has clarified
that in case of attempt to commit murder by fire arms, till the accused
fires a shot he does not do any act towards the commission of the
offence and once he fires and something happens to prevent the shot
taking effect, the offence of attempt to commit murder is made out.
Social Danger Test
Seriousness of the crime attempted is used as the criteria in deciding
liability. If the resultant consequences would have been grave, crime
of attempt is complete. It is the apprehension of social danger which
the particular crime is calculated to excite, that determines the
liability for an attempt.
ATTEMPT TO COMMIT AN IMPOSSIBLE ACT
At one point it was believed that it would be no crime if a person
attempted to do something, which in fact was impossible to perform.
However, it is now perceived that impossibility of performance of an
act does not per se render the attempt to do it an innocent or an act
free from guilt. Illustrations (a) and (b) of Section 511 shows that a
person can be held guilty of attempting to steal some jewels from an
empty jewel box or something from an empty pocket. These two
illustrations, lay down the rule that a person becomes liable for
attempting to commit an impossible act, if he with the intent to
commit the intended offence, has done everything within his reach to
commit the intended offence but his criminal objective was frustrated
because of reasons unknown to him or circumstances beyond his
control or comprehension. An attempt to commit an offence is
possible even when the intended offence is impossible to commit.
In R v Shivpuri the accused was arrested while in possession of a
suitcase which he believed to contain prohibited drugs. However, on
analysis the substance was found to be mere vegetable powder. He
 was convicted for an offence related to dealing with prohibited
substances. He filed an appeal where he contended that since the
substance was found not to be a prohibited one he could not be
convicted for handling prohibited substances. House of Lords
dismissed the appeal stating that since no proof was required that the
person knew which category of prohibited drugs he was handling, it
was immaterial that the appellant was unsure of exact nature of his
substance , other than the fact that he believed that he was dealing in
heroin or cannabis. The accused was punished for his guilty mind
although the act committed is innocent. The impossibility to do the
offence cannot be a defence in India and in England and a persons
subjective belief to commit a particular crime is sufficient to convict
him.
Principle of Joint Liability
➢ There are certain provisions in IPC (Sect 34 -38, Sect 149) which
determine the liability of person committing a crime in combination
with some others. In all such provisions a joint liability is created
either because the intention is common or the object is common to all
the persons forming a group alleged to have committed a crime.
Sections 34 to 38 and 149 deals with situations where a crime consists
of different acts big or small done by a group of persons where it is
difficult to determine the liability of all those persons who constitute
that group.
Section 34
It states that where a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons is
liable for that act in the same manner as if it was done by him alone.
This section was meant by framers of the
Code to deal with those cases where it may be difficult to
distinguish precisely the part taken by each individual; it was
deemed necessary to declare all the persons liable for the Criminal
Act.
In Barendra Kumar Ghosh v Emperor the appellant was charged
under Section 302 read with Section 34 with the murder of a Post
Master. Accused was one among the several persons who marched
into the Post Office and demanded money from Sub Post Master.
Immediately afterwards they fired at the Post Master and fled in
different directions. The Appellant contended that he cannot be held
liable for murder since he had only waited outside and had not fired
at the Post- Master. The Privy Council held the appellant liable for
Murder and laid down that section 34 deals with the doing of
separate acts, similar or diverse, by several persons; if all are done
in furtherance of a common intention each person is liable for the
result of them all, as if he had done them himself.
In Mahboob Shah v Emperor the deceased along with a few others
proceeded in a boat for cutting and collecting reeds on the bank of
the river. An altercation occurred between a man who tried to
prevent them and the persons travelling on boat and upon hearing
his cry for help the appellant and another came rushing to the spot
with guns. While the appellant missed his shot a person died from
his friends shot. Appellant was convicted for Murder read with Sect
34 and he appealed against it to the Privy Council. The appeal was
allowed by the Privy Council and his conviction was set aside on
the ground that there was no evidence that appellant and his friend
ever entered into a pre-meditated concert to bring about the murder
of deceased in carrying out their intention to rescue the person who
cried for help. It was clarified that “Common intention within the
meaning of Section 34 implies a pre-arranged plan, and to convict
the accused of an offence applying the section it should be proved
that criminal act was done in concert pursuant to the pre-arranged
plan.
Common intention should not be confused with similar intention.
For an intention to be common it must be known to all the members
and must also be shared by them. Common intention exists prior to
the commission of the crime. The distinction between common
intention and similar intention was brought forth in Pandurang v
State of Hyderabad. In this case the victim was attacked by 5
persons including the accused. The conviction of the appellant for
murder read with section 34 was set aside by the SC on the ground
that “several persons can simultaneously attack a man and each can
 individually inflict a separate fatal blow and yet none would have
the common intention required because there was no prior meeting
of minds to form a pre-arranged plan. In such a case each would be
individually liable for whatever injury he caused but none would be
vicariously convicted for the act of others.” The conviction for
murder was set aside and the accused was found guilty of causing
grievous hurt under 326 IPC.
➢ Criminal Act discussed in Section 34 is not the same as an offence.
It includes a series of acts and omissions. It is a transaction
comprising doing of separate acts.
➢ Section 34 is based on the decision in R v Cruise. In this case a
Constable and his assistants had gone to arrest a person ‘A’. There
were 3 other persons B,C, and D. On seeing the Police Constable B,
C and D came out of the house gave him a blow and drove away the
Constable and his assistants. Court evolved the concept of Joint
Liability and held that each member B, C and D were responsible
for the blow, irrespective of whether any of them had actually struck
the blow.
➢ Common intention should be shown to be pre-meditated. It must be
shown there was a prior meeting of mind. Proof of common
intention will rarely be available directly. It has to be understood
from facts of the case.
➢ Common intention can develop during the course of occurence
and could develop on the spot. It was explained in Pandurang case.
Common intention can arise suddenly and it need not be an elaborate
plan. For ex; if a man shouts at bystanders asking them to help him
to kill a particular person, and they through their acts or speeches,
extend their support to him and actually joins him, then there is a
necessary meeting of minds. However hastily formed a pre-arranged
plan has come into existence. Common intention can develop on the
spur of the moment.
➢ Participation is condition precedent to attract joint liability.
Participation must be in doing the act and not merely in planning.
Participation need not in all cases be by physical presence. Accused
 can remain a little away and supply weapons to other accused by
throwing them or with advent of electronic communication he may
be overseeing the act from a distance and giving instructions.
➢ Common intention can be determined from conduct of offenders,
manner in which they arrived at the scene, nature of

weapon, declaration made by them before attack and background of

incident for determining common intention.
To attract the provisions of Section 34 an overt act is not necessary,
a legal omission is enough. Ex; A co-accused standing near the
victim, face to face, saw an armed assailant nearing a victim from
behind with a weapon to inflict a blow. Co-accsed could have
alerted the victim but did not do so with the idea that the blow
should fall on the victim. Hence an act whether overt or covert has
to be done by the accused to be liable under Section 34.
Effect of acquittal of Co-accused – If the acquitted co-accused
reduce the number of accused to that below which a common
intention cannot exist, (one accused), then conviction using Section
34 cannot be resorted to, unless it is proved that he shared a
common intention with persons other than the acquitted persons and
the offence was done in furtherance of that intention.
➢ Section 35 stated that if several persons join in an act, each having a
different intention or knowledge from others, each is liable
according to his own intention or knowledge. Where several
persons join in an act which is criminal only by reason of its being
done with a certain knowledge or intention each person is liable for
the act to the extent of his knowledge or intention. In Adam Ali
Taluqdar, A and B beat C who died. A intended to murder him and
knew the act would cause death. B only intended to cause grievous
hurt and did not know his act was likely to cause death. A was held
guilty of murder and B of causing grievous hurt.
➢ Section 37 deals with intentional co-operation which is different
from common intention. Under Section 37 actual participation in the
actus reus is necessary unlike under Section 34 where accused is
 made constructively liable. Ex: A and B agree to murder Z by
giving him poisons at different times. A and B both gives poison to
Z and Z dies as a result of different doses of poison. A and B
intentionally co-operates in the commission of the offence by means
of several acts.
Distinction between Common Intention and Common Object
➢ Both Sections 34 and 149 deal with constructive criminality.
Common intention denotes a prior meeting of minds, while common
object does not necessarily require proof of prior meetings of minds.
➢ Common intention is undefined while common object is defined
under Section 141 IPC. Section 34 does not create any offence by
itself but Section 149 does so.
➢ Criminal act under Section 34 must be done in furtherance of
common intention. Under Section 149 the criminal act must be done
in prosecution of the criminal object or it would be sufficient if the
members of the assembly knew that offence was likely to be
committed.
➢ Active participation is an essential element under Section 34 while
under Section 149 a mere membership of the unlawful assembly at
the time of commission of the crime would be sufficient. Active
participation is not necessary. There must be at least 5 persons to
attract Section 149 while for Sect 34 its 2.

THEORIES OF PUNISHMENT
 Deterrent Theory
According to deterrent theory the object of punishment is not only to
prevent the wrongdoer from doing a wrong a second time but also to
make an example out of him to other persons who have criminal
tendencies. The aim of punishment is not revenge but terror. An
exemplary punishment should be given to criminal so that the others
may learn a lesson from him. The result of this theory was that severe
and inhuman punishments were imposed even for minor offences.
 Preventive theory
 The object of punishment is to prevent the offender from repeating
the offences. It aims at disabling the criminal from doing a crime. An
example of preventive theory is cancellation of driving licence.

 Reformative theory
According to this theory, the object of punishment is to bring about
the moral reform of the offender. The advocates of this theory suggest
that by sympathetic and loving treatment of offenders change can be
brought about in their characters. Severe punishments will only
debase them. Hanging a criminal is merely an admission of the fact
that human beings have failed to reform the erring citizen. This theory
requires circumstances of the crime to be taken into consideration and
every effort should be given to criminal to improve himself. Mild
imprisonment with probation is the only mode of punishment
approved by the advocates of reformative punishment.

 Retributive theory
This theory suggests that the purpose of punishment is to satisfy the
desire for vengeance. In primitive society punishment was mainly
retributive. The principle of an “eye for an eye, tooth for tooth” was
recognized and followed. In modern societies, retribution serves only
a subsidiary purpose. According to this theory, punishment is an end
in itself.

 Expiatory theory
Punishment is a form of expiation. The penalty of wrongdoing is a
debt which the offender owes to victim. When the offender endures
the punishment, the debt is paid off. This theory concentrates on the
victim rather than the criminal. The victim is paid compensation by
the criminal so that the spirit of vengeance is satisfied and victims
 financial needs are also taken care of. This theory is considered as
related to retributive theory and sometimes as a part of it.
PUNISHMENTS UNDER THE CODE
 Section 53 enumerated various kinds of punishments to which the
offenders are liable under the Penal Code. They are;
1) Death 2) Imprisonment for Life 3) Rigorous and Simple
imprisonment 4) Forfeiture of Property 5) Fine.
Generally the Code lays down the maximum punishment that can be
imposed for an offence. The punishment in a particular case shall,
within the maximum limits fixed by the Code, be awarded in the
discretion of the Court.
 The sentence should neither be disproportionately severe nor should
it be too lenient so as to fail to serve its purpose in producing effect
on the offender and as an eye opener to others.
i) Death Penalty - In our country under Criminal Procedure Code death
sentence used to be a rule and imprisonment was an exception.
However, later this position was reversed and now the Criminal
Procedure Code 1973, in its Section 354(3) provides that in case of
death penalty special reasons are to be stated. Now imprisonment is
the rule and capital sentence is the exception. In Jagmohan v State
of UP it was argued that death penalty was unconstitutional and
hence invalid as a mode of punishment. It was argued that death
penalty cannot be considered as a reasonable restriction on right to
life. Supreme Court held that death penalty is valid. The deprivation
of life is constitutionally permissible if that is done according to
procedure established by law.
 In Bachan Singh v State of Punjab, the Supreme Court while
upholding the validity of death penalty expressed the opinion that it
ought to be imposed only in the rarest of rare cases, where the
alternative option is unquestionably foreclosed. The aggravating
circumstances which justify the award of death penalty have been
summed up as;
1) Murder involves previous planning and extreme brutality
2) murder involves exceptional depravity
 3) murder was committed by a member of armed forces or any
public servant while he was on duty etc.
 In Machhi Singh v State of Punjab, the SC laid out certain factors
which could justify the imposition of death penalty. They are
1) Murder is committed in extremely brutal manner
2) Motive for commission of murder evinces total depravity
3) Murder is committed of a member of SC/ST or minority
community with a view to terrorize the members of the caste or
group.
4) When the crime is enormous in proportion
5) When the victim of murder is an innocent child, helpless woman
or a person rendered helpless by old age or infirmity.
In Sher Singh v State of Punjab Supreme Court clarified that
unreasonable delay may be taken into consideration in mitigation of
punishment. However, delay in execution of death sentence
exceeding two years by itself does not entitle a person under sentence
of death to demand quashing the sentence and converting it into a
sentence of life imprisonment.
 In IPC the following offences can be awarded death sentence;
1) Waging war against govt of india – Sect 121 or abetment of mutiny
– Sect 132
2) Perjury resulting in conviction and death of an innocent person –
Sect 194
3) Murder – Sect 302
4) Abetment of suicide of Child or insane person – Sect 305

5) Attempted murder by a life convict – Sect 307(2)

6) Dacoity with murder – Sect 396
ii) Life Imprisonment – A Sentence of imprisonment for life means a
sentence for the entire remaining life of the accused unless the
sentence is remitted by the appropriate government either in whole or
in part. There is no provision either in the IPC or in the Code of
Criminal Procedure whereby life imprisonment could be treated as
14 or 20 years.
 By way of Section 432 of CrPC appropriate govt may suspend or
remit the sentence of a person convicted of an offence however
Section 433-A mandates that where a sentence of imprisonment for
life is imposed on conviction of a person for an offence for which
death is one of the punishments provided by law, or where a sentence
of death imposed on a person has been commuted under section 433
into one of imprisonment for life, such person shall not be released
from prison unless he had served atleast fourteen years of
imprisonment.

Imprisonment for life is to be treated as rigorous imprisonment for

life. The sentence of imprisonment for life was substituted for
transportation. Transportation to overseas penal settlements implied
hard labour for the concerned convicts and the punishment of
deportation beyond sea was considered as the most dreaded
punishment.
III) Imprisonment – Imprisonment is of two descriptions namely,
rigorous and simple. In case of rigorous imprisonment, a convict is
put to hard labour such as grinding corn, digging earth, drawing
water, construction of roads and dams, cutting fire-wood, making
furniture etc. In the case of simple imprisonment, a prisoner is
merely confined to jail and is not put to any work.
The offences in which an offender is punished with rigorous
imprisonment without the alternative of simple imprisonment are
Section 194 and Section 449.
 An offender is punished with Simple Imprisonment only in the
following offences: Section 172- 174 , Section 175, Section 178,
Section 228, Section 291, Section 341, Section 509 Section 510 etc.
 In State of Gujarat v Hon’ble High Court of Gujarat, it was held by
the Supreme Court that imposition of hard labour on prisoners
undergoing rigorous imprisonment was legal. It was also observed by
the Court that the prisoner should be paid equitable wages for the
work done by them.
 In Case of offences like rape, or attempting to commit robbery or
dacoity while armed with deadly weapons, the minimum term of
imprisonment is fixed by IPC.
 Section 61 and 62 were discussing about forfeiture of property as a
punishment, however, these sections were abolished by IPC
Amendment Act of 1921. Now absolute forfeiture of all property of
offender has ceased to be a form of punishment.

IV) Fine - Fine is forfeiture of money by way of penalty. A Court

has wide discretion in quantifying the fine to be imposed, where no
amount of fine is stipulated in a penal provision. The Court also has
to ensure that the amout of fine imposed should be within the means
of the accused to pay though he must be made to feel the pinch of it.
Section 63 states that where no sum is expressed as fine, the sum
imposed shall not be excessive.
 Section 64 confers a general power on the Courts to award the
sentence of imprisonment in default of payment of fine in all cases
in which fine can be imposed to induce the offender to pay the fine.
 Section 65 discusses the limit to imprisonment for non-payment of
fine, when imprisonment and fine awardable. When the court
sentences an accused for a punishment, which includes a fine
amount, it can specify that in the event the convict does not pay the
fine amount, he would have to suffer imprisonment for a
further period as indicated by the Court, which is generally referred
to as default sentence. Section 65 IPC fixes the maximum period that
can be imposed as default sentence in case the convicted person does
not pay the fine amount, as one-fourth of the maximum period fixed
for the offence the accused person is convicted of.
 Section 66 states that the imprisonment which the court imposes in
default of payment of fine may be of any description to which the
offender might have been sentenced for the offence.
 Section 67 states that when the offence is punishable with fine only,
then default sentence would be of the nature of simple imprisonment.
When the amount of fine not paid is less than 50 rupees the default
 sentence cannot exceed 2 months, when the fine amount is less than
100 but exceeding 50 rupees the default sentence cannot exceed 4
months and when the amount is more than 100 rupees default
sentence cannot exceed 6 months.
 Section 68 states that default sentence would automatically come to
an end whenever the fine is either paid or levied by a process of law.
Section 69 makes it clear that a proportional payment or levying of
fine causes a proportional reduction in the term of imprisonment.
Section 70 states that the period during which a warrant for realization
of fine could be executed is six years or during imprisonment. The
death of the offender does not discharge from liability any property
which would after his death be legally liable for his debts.
Solitary Confinement - Solitary Confinement means keeping the
prisoner isoalted from any kind of intercourse with the outside world.
It is inflicted in order that a feeling of loneliness may reform the
criminal. It should be very rarely exercised in most exceptional cases
of unparallel atrocity. Section 73 discusses about Solitary
Confinement. When any person is convicted of an offence for which
under IPC Court can sentence him to rigorous imprisonment , the
Court may, order the offender to

to be kept in solitary confinement. If the term of imprisonment is

less than 6 months, the maximum period of solitary confinement is
one month. In case of imprisonment more than 6 months but not
exceeding one year, the maximum period of solitary confinement is
2 months. If the term of imprisonment has exceeded one year the
maximum period of solitary confinement that can be awarded is 3
months.
Section 74 states that solitary confinement cannot exceed fourteen
days at a time and it should be imposed at intervals of equal duration
as that of the confinement. In case of imprisonment exceeding 3
months, solitary confinement cannot exceed 7 days in one month.
General Exceptions
 Chapter IV of IPC comprising Sections 76 to 106, exempts certain
persons from criminal libality. An act or omission of an accused even
though prima facie falls within the terms of the section defining an
offence, does not constitute an offence if it is covered by any of the
exceptions enumerated in Chapter IV of the Code.
 A wrong doer who has committed an actus reus with the requisite
mens rea, may escape from liability because he has a general
exception to offer as an answer to the prosecution. The general
exceptions, limit and override offences and penal provisions in the
Code. The term General exceptions is used to convey that these
exceptions are available to all offences.
 General Exceptions can be classified into Excusable and Justifiable.
In Excusable, the law excuses certain classes of persons, even though
their acts constitute an offence. The
second category is where the acts committed, though are offences are
held to be justifiable under certain circumstances and hence
exempted from the provisions of the IPC. Acts of infants, insane or
intoxicated persons, and acts done under the mistake of fact or by
accident fall under the first category of exceptions. Acts done out of
necessity, Judicial acts, acts under duress, acts done in private defence
of body or property fall under the second category.
 In Excusable defences, the act is excused for want of necessary
requirements of guilty mind, while in the latter the act done is
justified on account of some other meritorious considerations. Thus
in the first category of defences the actus-reus is treated as non-
criminal because of absence of mens rea while in the second category
of defences the act is done with requisite mens rea but there exists
other circumstances which justify the act. In Excusable defences the
focus is on the actor while in Justifiable defences, the focus is on the
act.
 This Chapter has been framed in order to obviate the necessity of
repeating in every penal clause a considerable number of limitations.
Instead of qualifiying every offence with exceptions, a separate
chapter has been enacted which is applicable to entire code. This was
 done to avoid the obvious inconvenience in repeating the exceptions
in every offence. Section 6 of IPC makes it clear that every definition
of an offence, every penal provision, and every illustration shall be
understood subject to the exceptions contained in the Chapter
General Exceptions.
 Every provision of IPC has to be read along with the Chapter on
General Exceptions before coming to any conclusion on the liability
or culpability of a person accused of a crime.
 Section 40 of IPC defines the word ‘offence’ as denoting a thing
punishable under the IPC as well as under a special or local law. Thus
it follows that Chapter on General Exceptions is applicable not only
to the IPC, but also to penal provisions in other special and local Acts.
The title ‘General Exceptions’ is adopted to convey that these
exceptions are available to accused of all offences.
 It is the fundamental rule in Criminal Law that a person is innocent
until proven guilty. There is a presumption of innocence in favour of
the accused and the burden of proving every aspect of the crime – the
actus reus, the mens rea, the causation and the motive – is solely on
the prosecution. The Standard of proof required is that the
prosecution has to prove the guilt of the accused beyond reasonable
doubt.
 Section 105 of Indian Evidence Act, places the burden on the accused
to prove that the case falls within one of the general exceptions. It
provides that the Court shall presume the absence of such
circumstances, which may bring the accused within the exceptions
set out in Chapter IV of IPC. It is the duty of the accused to show that
the circumstances bringing the case within the exception are present.
 The Standard of proof required from the part of the accused is not as
high as that of prosecution. He can discharge his burden of proof as
soon as he proves the preponderance of probability.
 He need not prove beyond reasonable doubt that case falls under an
exception. Once a prima facie case of the existence of circumstances
that bring the case within any of the general exception is made out,
the burden once again shifts on the prosecution to prove beyond
 reasonable doubt the guilt of the accused and to establish that the
general exception relied on by the accused does not exist.
I) MISTAKE OF FACT
Section 76 – Act done by a person bound, or by mistake of fact
believing himself bound, by law.
Illustration – A, an officer of 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.
Section 79 – Act done by a person justified or by mistake of fact
believing himself justified by law.
Illustration – A sees Z commit what appears to A 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 act, seizes Z in order to bring Z before the proper authorities.
A has committed on offence though it may turn out that Z was acting
in self-defence.

 Ignorantia facit excusat, means ignorance of fact is an excuse.

Ignorance means lack of knowledge, or wrong opinion or judgement
caused by insufficient knowledge. Mistake of fact to be an excuse
must be with respect to a material fact, a fact essential to constitute a
particular offence. Mistake may be successfully pleaded in defence
only if the belief is in good faith. Mistake is a defence because when
an act is done by reason of mistake of fact, mens rea necessary to
constitute the crime is absent or negatived.
 Mistake of law means mistake as to the existence or otherwise of any
law on a particular subject as well as mistake as to what the law is.
The words “by reason of mistake fact and not by reason of mistake
of law” used in Section 76 denote the paraphrasing of latin maxim
“ignorantia juris non-excusat.” This principle is based on another
rule of evidence that “every man is presumed to know the law.”
 In Gopalia Kallaiya a Police Officer arrested the Complainant under
a warrant believing in good faith that he was the person to be arrested.
The Complainant brought an action for wrongful confinement. It was
held that the Police Officer was not guilty because he was protected
by Section 76.
 In Bhawoo Jivaji v Mulji Dayal, the accused, a Police Constable saw
the Complainant early in the morning, carrying under his arm three
pieces of cloth. He suspected the cloth to be stolen and therefore
questioned the complainant. Answers given by him were not
satisfactory. He also refused to allow the Constable to inspect the
cloth. The Constable thereupon arrested the complainant. The Cloth
was found not to be stolen and therefore he prosecuted the Constable
for wrongful restraint and Confinement. He was given benefit of
Section 76.
 In State v Mc. Donald a rail conductor under the honest belief that a
passenger had not paid the fare, forcibly ejected a passenger from a
Train. It was held that he cannot be held liable under Criminal Law.

 In Barronet case 2 Frenchmen were convicted for Murder even

though they did not know that by law of England killing an adversary
in fair trial amounted to Murder.
 Section 52 of IPC says that nothing is said to be done or believed in
good faith which is done or believed without due care and attention.
Good faith in each case must be considered with reference to general
circumstances. In determination of good faith, a reference to the
capacity, intelligence and position of the accused as well as
circumstances under which a person acts becomes relevant.
 Under Section 79 the person under the mistake considers himself to
be justified by Law to act in a particular way. Under Section 76,
person under the mistake considers himself bound by law to act in a
particular way. Under Section 79 an act may not be justified by law,
yet if it is done under a mistake of fact, in the belief in good faith that
it is justified by law, it will not be an offence.
 In State of Orissa v Ram Bahadur Thap, the respondent was a Nepali
Servant who came to a village with his Master for trade purposes. The
villagers had strong belief in ghosts and the respondent and his
Master were curious to see them. At midnight they went out to see
ghosts and they found strange light at distance. The Nepali servant
attacked the figures thinking they were ghosts. But they were women
collecting flowers. He was charged with Section 302 and 326 but was
acquitted under Section 79 of IPC. It was held by the Court that
“Standard of care and caution must be judged according to capacity
and intelligence of person whose conduct is in question.” Servant was
acting in good faith, since he was a firm believer of ghosts and the
place was notorious for ghosts.
 In Chirangi an accused owing to a defect in his vision and the effect
of a fall bonafidely believed that his son was a tiger and caused fatal
injuries to him with an axe in a moment of delusion. He was not
convicted for the offence of murder.
 In State of Orissa v Khora Ghasi, the accused while guarding his
maize field shot an arrow at a moving object in the bonafide belief
that it was a bear and in the process he caused the death of a man who
was hiding there. He was held not liable since he was acting under a
mistake of fact.
 In Rajkapoor v Laxman, the petitioner was the producer of a film
called Satyam Shivam Sundaram. He was prosecuted under Sect 292
IPC alleging film was obscene and indecent. It was contended by the
Producer that film was duly certified by Board of Censors under
Cinematograph Act and no prosecution can be legally sustained.
Court held Petitioner had obtained a certificate for public exhibition,
and they acted under the bonafide belief that certification justified
their public exhibition. They were entitled for protection under
Section 79 IPC.

II) Judicial Acts

 Section 77 provides that nothing is an offence which is done by a
Judge when acting judicially in exercise of any power which in good
 faith he believes to be given to him by law. This section provides
protection to Judges while acting judicially. This section affords
protection to a Judge in those cases in which he proceeds irregularly
in exercise of a power given him to by law and also in cases where
he in good faith exceeds his jurisdiction and has no lawful powers.
The question of good faith is relevant only when a Judge acts without
jurisdiction, but when there is a jurisdiction the immunity extends
even to acts which constitute even an abuse of it.
 Section 78 is a corollary to Section 77. This section offers protection
to officers acting under the authority of judgment or order of a Court
of Justice. An officer is protected under this section if he executes an
order of a court which has no jurisdiction at all provided that he in
good faith believes that Court had jurisdiction.
III) Accident
 Section 80 states that nothing is an offence which is done by
accident and without any criminal intention or knowledge in the
doing of a lawful act with proper care and caution. Section 80 is
based on the principle that criminal law cannot punish a person for
his mistake or misfortune. Ingredients of Section 80 are:
i) the act must be an accident
ii) act must be done without any criminal intention or knowledge
iii) accident must be the outcome of a lawful act done in a lawful
manner by lawful means
iv) act must have been done with proper care and caution
 An act that that was intended by or known to the doer cannot be an
accident. Injuries caused due to accidents in games and sports are
covered by this Section. In Tunda v Rex dealt with a case where 2
friends, who were fond of wrestling participated in a wrestling
match. One of them sustained injuries which resulted in his death.
In the absence of any foul play it was held

that the act of causing death was purely an accident and the accused
was protected under Section 80. One of the primordial requirements
under Section 80 is that the act must have been done with proper care
 and caution and the standard of care should be that of a prudent and
reasonable man. If an act is done without proper care and caution, the
accused will not be entitled to the benefit of Section 80.
 In Sita Ram v State of Rajasthan, the accused was digging the earth
with a Spade. The deceased came to collect the mud. The Spade hit
the deceased on the head and he succumbed to injuries. The accused
pleaded that it was an accident. The Rajasthan High Court held that
the accused was aware that other workers would come and pick up
the mud. The accused did not take proper care and caution and acted
negligently. He was convicted under Section 304A IPC.
 In Jageshwar v Emperor the accused was beating a person with his
fists, when the latter’s wife with a two months child on her shoulder
interfered. The accused hit the woman but the blow struck the child
on his head. The baby died from the effects of the blow. It was held
that though the Child was hit by accident, the accused was not doing
a lawful act in a lawful manner and therefore the defence under
Section 80 could not be availed.
 If a person ‘A’ shoots at a fowl with the intention to kill it and kills
‘z’ who was hiding behind a bush, whose presence A was not aware
of, then A will not be guilty of any offence and can claim the benefit
of Section 80.
IV) Section 81 – Necessity
 The Indian Law on defence of necessity is described in Section 81.
An act which would otherwise be a crime may in some cases be
excused if the person can show that it was done only in order to avoid
consequences which would have inflicted inevitable and irreparable
evil.

 The ingredients of the defence of necessity are as follows:

i) The act constituting the offence is known by the wrong-doer to be
likely to cause harm, but it is done without any criminal intention to
cause harm.
ii) The act must have been done in good faith
 iii) The act must have been done for the purpose of preventing or
avoiding more harm
iv) The harm aimed to be prevented or avoided may relate to person
or property.
The evil inflicted by it should not be disproportionate to the evil
avoided. Section 81 permits the infliction of a lesser evil in order to
prevent a greater evil. It is based on the principle that in case of a
sudden and extreme emergency where one of the two evils is
inevitable, it is lawful to direct events so that the smaller shall occur.
In order to avail of the defence under this section it is necessary that
criminal act is done without evil intention.
 Section 81 is based on the maxim ‘Necessitas Vincit Legem’ which
means necessity overcomes the law. It grants immunity to accused
who chooses lesser evil, inorder to avert the bigger evil. Law is being
broken to achieve a greater good. Under Section 81 even if the
accused has knowledge that he is likely to cause harm such
knowledge cannot be held against him.
 Illustration – A in a fire pulls down houses in order to prevent the fire
from spreading. He does it with the intention of saving human life and
property. A will not be guilty of any offence if the harm was imminent.
 It is to be noted that necessity is not a defence against murder.
Necessity is different from Private defence because in Private defence
the act is done against the aggressor. In R v Dudley and Stephens, a
ship broke down and 3 members of the crew took shelter in a life
boat. They had no food and water and on the 20 th day the two
members decided to kill the cabin boy who was the weakest among
them. The defendants consumed blood and flesh of the victim and
kept themselves alive. They were
subsequently rescued by another ship and faced trial for murder. The
Court held them liable for murder and laid out the principle that self-
preservation is not an absolute necessity. There is no necessity that
justifies homicide and no person has the right to take another’s life
to preserve ones own.
 In United States v Holmes the accused was a member of the crew of
a boat after shipwreck. Fearing that the boat would sink, he threw 16
male passengers overboard. The accused was convicted.
V) Section 82 and 83 – Infancy
 Section 82 states that nothing is an offence which is done by a Child
under seven years of age. Section 83 states that act of child above
seven and under twelve years of age will not be an offence provided
the child has not attained sufficient maturity of understanding to
judge the nature and consequences of his conduct.

 Section 82 presumes that a Child below 7 years is doli incapax, ie, he

is incapable of committing a crime and cannot be guilty of an offence.
This presumption is recognized based on the fact that a child below 7
years of age lacks the adequate mental ability to understand the nature
and consequences of his act. He is unable to form the required mens
rea. This presumption cannot be rebutted by adducing evidence that
the child had the capacity of understanding the consequences of his
act.
 Section 83 presumes that a child above 7 years of age but below 12
years of age is doli capax ie, capable of committing a crime
depending upon maturity of his understanding. The defence should
prove that child was not only below 12 when he committed crime in
question but also had not attained sufficient maturity required to
understand the nature and consequences of his conduct. In the
absence the Court presumes that the child accused intended to do
what he really did. Above the age of 12 there is no immunity from
criminal liability.
 Whether the child had sufficient maturity of understanding is to be
inferred from the nature of the act and his subsequent conduct. As
Section 82 exempts a Child under seven years of age from any
criminal liability, it is illegal for the police officer to arrest a boy
under 7 years of age.
 In England a Child below the age of 10 is absolutely immune from
criminal liability. For a child above 10 years of age and below 14
 there is a rebuttable presumption of doli incapax. The presumption is
that child is incapable of committing a crime which can be proved
wrong by evidence of “mischievous discretion” ie knowledge that
what was done was morally wrong.
 In Ulla Mahapatra the accused a boy of 11 years but below 12 years
picked up a knife and threatened to cut the deceased to pieces and did
actually kill him. Court reached the conclusion that he did what he
intended to do and he knew of consequences of his action. He was
held liable.
VI) Section 84 – Insanity
 A person may lack sufficient mental capacity to form a criminal intent
because of immaturity of age or because of some disease of mind.
Such persons who cannot distinguish between right and wrong
because of some defect of mental faculty are not punishable by any
criminal prosecution. No act is a crime if the person who does it, is
at the same time when it is done prevented either by defective mental
power or by any disease affecting his mind a) from knowing the
nature and quality of the act or b) from knowing that the act is wrong.
 The India law relating to insanity is derived from the M’Naghten
rules. The accused Daniel M’Naghten suffered from the delusion that
Sir Robert Peel, the then PM of England had injured him. He shot and
killed Edward Drummond Secretary to PM mistaking him to be PM.
The accused pleaded insanity and he was held not guilty because he
was suffering from delusion.
 The verdict was made a subject of debate in House of Lords and
inorder to make the law on the topic clear House of Lords issued what
came to be known as M’Naghten rules. The following are the main
principles enunciated by House of Lords.
i) Every person is presumed to be sane and to possess a sufficient
degree of reason to be responsible for his crimes, until the contrary is
established.
ii) To establish the defence of insanity, it must be clearly proved that
at the time of committing of the crime, the person was so insane as
 not to know the nature and quality of act he was doing, or if he did
know it, he did not know what he was doing was wrong.
iii) If the accused was conscious that the act was one which he ought
not to do and if that act was at the same time contrary to law, he would
be punishable.
 The term unsoundness of mind is not defined in IPC. The Indian
law is contained in Section 84 which has the following ingredients.;
i) Act must be done by a person of unsound mind
ii) Such person must be incapable of knowing a) nature of the act or
b) that the act was contrary to law or c) that the act was wrong.
iii) Such incapacity must be by reason of unsoundness of mind of the
offender.
 A man who is deprived by disease affecting the mind, of the power
of passing a rational judgment on the moral character of act he meant
to do is entitled to the benefit of Section 84. The incapacity of mind
should exist at the time of doing of the act which constitutes the
offence. It is only legal insanity and not medical insanity which
absolves a person from criminal liability.
 Law is concerned only with legal insanity and not medical insanity.
A person is legally insane when he is incapable of knowing the nature
of the Act or that what he was doing was wrong or contrary to law.
For the purposes of claiming the benefit of defence of insanity in law,
the appellant would have to prove that his cognitive faculties were so
impaired, at the time when the crime was committed, as not to know
the nature of the Act.
 Every person, who is mentally diseased, is not ipso facto exempted
from criminal responsibility. There can be no legal insanity unless
the cognitive faculties of the accused as a result of unsoundness of
mind is completely impaired. A partial delusion, irresistible impulse
or compulsive behaviour of a psychopath offers no protection under
Section 84 of IPC.
 In State of Madhya Pradesh v Ahmadullah, the accused had murdered
his Mother-in-law against whom he had a grudge. It
 was proved in Court that he had scaled over the wall of the house
with the aid of a torch light and entered the room were deceased
was sleeping. All this showed careful planning and calcualtion and
hence the plea of insanity was rejected and the accused was
convicted.
 In Ashiruddin Ahmed v King the accused had a dream that he had
been in heaven and he was directed to sacrifice his son. He took his
son to the Mosque and stabbed him in the throat and killed him. He
himself revealed the same thing to his maternal uncle. Court held that
accused thought what he was doing was right, even though he knew
what he was doing was contrary to law. Out of the 3 elements in
Section 84 the III element whether he knew the act was wrong was
found in favour of the accused. He made the sacrifice believing it to
be right. Hence he was given the benefit of Section 84.
 In Jailal v Delhi Administration the accused was a railway employee
who was identified as suffering from acute Schizophrenia. After
treatment he joined back in service. One day by the time he reached
office he was marked absent. He took leave for one day and went
back home. In the afternoon he entered neighbours house and stabbed
and killed a one and a half old girl and injured 2 others. It was
identified that he had a relapse of Schizophrenia. Court held him
liable because he knew what he was doing was wrong and contrary
to law. He concealed the Murder weapon, bolted the front door and
tried to run away through the back door. He also threw brickbats at
the Crowd. His conduct immediately after the occurrence showed his
consciousness of guilt.
VI) Intoxication
 Voluntary drunkenness is no defence for the commission of the crime.
A person by consuming alcohol and becoming intoxicated voluntarily
impairs his own self control and good judgment.

 Section 85 gives immunity to a person intoxicated involuntarily. A

person seeking protection under Section 85 should prove that a) he
was incapable of knowing the nature of the act b) he did not know
 what he was doing was either wrong or contrary to law c) that the
thing which intoxicated him was administered to him without his
knowledge or against his will.
 If the intoxicant administered was not sufficient to make a person
incapable of understanding the nature of the act committed by him,
then he is not entitled for protection under Section 85. He should lose
his ability to understand the nature of the act committed by him as a
result of intoxicant administered against his will. He should either be
forced or coerced into consuming an intoxicant or he must be totally
unaware of the fact that whatever was administered to him had
intoxicating effect.
 In R v Tandy the appellant was an alcoholic who strangled her

11 year old daughter after drinking almost a whole bottle of Vodka.

She was convicted. Court held that having chosen to drink Vodka, it
could not be said that her resulting abnormality of mind was
induced involuntarily.
Section 86 states that in case of voluntary drunkenness knowledge
is to be presumed in the same manner as if there was no drunkenness.
In the latter part of the section word intention is omitted which means
whether the accused was having intention while committing an act
cannot be presumed. A drunken man is attributed the knowledge of a
sober man while judging his action.
 In R v Kingston the accused invited a 15 year old boy to his flat and
rendered him unconscious. Then he invited Kingston to abuse the boy
in that state. The whole incident was photographed by the accused.
Kingston contended that he too was drugged. Even though he was
drugged the Court convicted him, because he had the requisite
intention. A drugged intent is still an intent.
 In Enrique F.Rio a person in state of extreme intoxication caused a
fatal injury in abdomen of his friend where he was not capable of
forming necessary intention under Section 300, he was not convicted
under Section 302 but was convicted under Section 304 Part II by
virtue of imputed knowledge under Section 86.
 In Basdev v State of Pepsu, the appellant was a military officer. He
went to a wedding where he requested the victim a boy of 15 or 16
years of age to step aside a little so that he can occupy a convenient
seat. Boy refused to do so and and the accused shot him with a pistol.
The injury proved fatal. Court held that although the accused was
under the influence of alcohol, he was capable of forming the
necessary intention. He was talking, moving independently and he
made a choice for his own seat and also tried to get away after the
incident. All this showed that he had capacity to form the necessary
intention and hence offence was not reduced from murder to culpable
homicide not amounting to murder.

 In Bablu/Mubarik Hussain v State of Rajasthan, the accused killed

his 3 daughters and son by strangulation. Accused took the defence
that he was in a state of drunkenness and did not know the
consequences of what he did. Evidence of drunkenness falling short
of proved incapacity in accused to know the nature of the Act and
merely establishing that his mind is affected by drink does not rebut
the presumption that a man intends the natural consequences of his
act. Supreme Court confirmed the death sentence.
VII) Section 87 -92 Consent
 Section 87 states that any harm other than death or grievous hurt even
though intended or known by the doer to be likely to be caused will
not be an offence if the harm is caused with the consent of a person
above 18 years of age.
 Section 90 describes what is not a consent. Consent inorder to be a
defence must be a valid consent ie it must be a consent
 given by a person who is capable of giving a good and valid consent
and it must be freely given by such person. Consent is not free when
it is obtained by fraud, misrepresentation, coercion or undue
influence. A consent is not a valid one when it is given under fear of
injury or misconception of fact. Misconception refers to
misconception as to true nature of the act or regarding the effect or
consequences of act.
 In the following cases consent is not free consent
i) Consent given by a person under fear of injury
ii) Consent given under a misconception of fact
iii) Consent given by a child under 12 years of age
iv) Consent given by a person of unsound mind
v) Consent given by an intoxicated person
The degree of unsoundness or intoxication in order to vitiate a
consent must be the same as that would furnish a defence to a criminal
charge on the ground of insanity or intoxication.
 A person consenting under a misconception of fact arising out of
misrepresentation of fact or fraud practiced on him cannot be said to
have consented. In Poonai Fattemah case the accused who professed
to be a snake charmer, persuaded the deceased to allow himself to be
bitten by a poisonous snake, inducing him to believe that he had
power to protect him from harm. It was held that consent was given
by the deceased under a misconception of fact arising out of the
misrepresentation made by the accused that he had power by charms
to cure snake bites and the accused was not entitled to protection on
the ground of consent of the deceased.
 In R v Flattery the accused professed to give medical advice. A girl
of 19 years consulted him and he advised surgical operation was
necessary. Under the pretence of performing surgery he had sexual
intercourse with the girl. Since she submitted to what was done under
the belief that he was merely treating her, the accused was guilty of
rape.
 Section 87 is based on the roman maxim Volunti non fit injuria. It
states that Consent is a good defence to all offences against property
and to all offences against human body which do not involve the
causing of death or grievous hurt. Under this Section any harm other
than death or grievous hurt intended or known by the doer to be likely
to be caused will not be an offence if the harm is caused to any person
with his consent.
 The person giving the consent should be above 18 years of age and
the consent can be express or implied. The defence of consent is
based on the proposition that every person is the best judge of his own
interest. Every man is free to suffer any injury to his person or
property. However Consent does not justify causing death or grievous
hurt. If consent is obtained for the performance of a dangerous act,
which results in death of the person consenting, the accused will be
liable for mitigation of punishment only. For ex; a man suffering
from extreme unbearable pain may prefer his death and may ask
another
person to shoot him, but if that other person shoots him he will be
guilty but under exception 5 to section 300 his offence will be reduced
to culpable homicide not amounting to murder.
 Section 87 ordinarily provides protection to certain games like
fencing, boxing, football etc. In games bodily harm is not the
intention of either party. However in order to avail the benefit of this
defence proper caution and perfect fair play must be used.
Section 88 - Under Section 88, a person for whose benefit an act is
done, may consent that another shall do that act, even if death may
probably ensue although death is never intended by the doctor.
Illustration – A, a Surgeon knowing that a particular operation is
likely to cause death of Z, who suffers a disease, in good faith for Z’s
benefit, performs that operation with Z’s consent. Even if death
ensues A cannot be punished.
 In order that the defence under this section may be availed it is
necessary to show that act was done for the benefit of the person.
Consent must be given by a person above 12 years of age. Under
 this section the wrong-doer is protected even though he has done
with the intention of causing grievous hurt.
 The act which results in harm or injury must be one done in good
faith i.e. it should be not an act done without due care and attention.
Persons not qualified as medical practitioners cannot claim the
benefit of this section as they can hardly be deemed to act in ‘good
faith’. In Jaggan Khan v State the accused a Homeopathic doctor
administered to a patient suffering from guinea worm 24 drops of
stranonium and a leaf of dhatura without studying its effects and the
patient died. His act could not be said to be in good faith and
therefore he was not protected under Section 88.
 In Suraj Bali’s a lady was operated upon by a person for cataract
with the result that she lost her eyesight. The operation was
performed with the consent of the patient and in good faith for her
benefit. It was performed in accordance with the recognized Indian
method for treatment for cataract. It was held that defence under
Section 88 was available.
Section 89 – This section gives power to the guardian of an infant
under 12 years of age, or an insane person to consent to the infliction
of harm to the infant or the insane person, provided it is done in good
faith and for his benefit. Under Section 89 the consent is one of the
guardian or other person having lawful charge of the infant.
Illustrations – i) A, a parent who whips the child moderately for the
benefit of child has committed no offence
ii) A, in good faith for his child’s benefit has his Child undergo a
surgery knowing it to be likely that the operation will cause child’s
death but not intending to cause child’s death. A has committed no
offence.
iii) A in good faith, for his child’s pecuniary benefit handicaps his
child. A cannot avail of this defence since section 89 does not
include pecuniary benefit.
A School Master who for the purpose of enforcing discipline inflicts
moderate punishment upon a minor pupil is protected under Section
89.
 Section 92 – Section 92 deals with situations where the person
harmed is not physically in a position to give consent or it is not
practical or possible to get the consent of the guardians, as it is an
emergency situation. Like in Section 89, the act is done without the
consent of the person harmed. In view of this some additional
safeguards are provided as provisos in both these sections: i) benefit
of the sections will not be extended to intentional causing of death ii)
where the doer is aware of the risk of death the act will be protected
only if it was intended to prevent death or grievous hurt etc.
 Illustrations – i) Z is carried off by a tiger. A fires at the tiger knowing
it to be likely that the shot may kill Z, in good faith intending Z’s
benefit. Even if A causes a mortal wound he will not be liable.
ii) A a Surgeon sees a Child suffer an accident which is likely to prove
fatal unless an operation is performed. There is no time to apply to
child’s guardian. A performs the operation in good faith for the
benefit of the Child. A has committed no offence.
 Section 91 – It constitutes a situation, wherein despite the consent
given, an act constitutes an offence not by reason of the harm caused
or intended to be caused, but by reason that the act consented is per
se illegal. For ex, causing miscarriage of a woman is an offence unless
it is done for the purpose of saving the life of woman. Thus
miscarriage if caused, even if it is done with the consent of the woman
it will not be covered under Section 87, 88 and 89. So in cases where
the acts committed, albeit with consent, are per se illegal, irrespective
of the harm caused, then such acts will not be protected under
Sections 87,88 and 89.
VIII) Section 93 – Communications made in good faith
 Section 93 states that 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 the person. For ex, if 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.
IX) Section 94 – Offence committed out of Compulsion
 The principle is founded on the maxim, actus me invito factus non est
meus acts ie an act which is done by me against my will is not my
act. The benefit of this section will extend to all offences under the
Code except murder and offences against the State punishable with
death.
 Inorder to avail the benefit of this section, the threat under which the
act was done must be a threat of instant death. If the threat is anything
other than ‘instant death’ then this section will
not apply. Where the threat is to be effected at a future point in time
then it cannot be pleaded as an excuse. Whether the threat was real or
not, if the circumstances show that at the time of doing the offence,
the accused was under a reasonable apprehension that instant death
will be caused to him, then that is sufficient for him to be excused
from criminal liability.
 In Queen Empress v Latif Khan it was held that mere order of a
superior police officer is not sufficient to justify a subordinate police
officer in torturing a person to extract a confession from him, unless
the subordinate police officer can show that he was compelled to act
under fear of instant death.
 The proviso to the Section provides that the person doing the act
should not, of his own accord, place himself in such a situation of
being placed under compulsion. For ex; if a person joins a gang of
dacoits of his own accord or by reason of threat of being beaten, he
will not get the benefit of this section.
X) Trivial Acts
 Section 95 is based on the principle that law does not concern itself
with trifles (de minimis non curat lex). Section 95 aims to prevent
penalisation of negligible wrongs or offences of trivial character.
Section 95 will come into play only when the act complained of
amounts to an offence and no person of ordinary sense and temper
would complain of it. Whether an act which amounts to an offence
is trivial or not, depend upon the nature of the injury, the position of
the parties, the relation between them, the situation in which they are
 placed, the knowledge or intention with which the offending act is
done.
 In R D Bajaj v K P S Gill the accused slapped the posterior of an IAS
officer in a dinner party in the full presence of other ladies and guests.
FIR was registered under Section 354 and 509 IPC and High Court
quashed the same. Supreme Court disagreed with the HC and held
when offences relate to modesty of a woman, under no circumstances
can it be termed trivial.
XI) Right of Private Defence
 The law of private defence of body and property in India is codified
in Sections 96 to 106 of Indian Penal Code which is based on the
idea that right of self-preservation is basic human instinct. Section
96 states that nothing is an offence which is done in exercise of right
of private defence. Section 97 states that every person has a right to
defend his own body and body of any other person along with right
to defend movable or immovable property of himself or any other
person.
 Right to private defence is exercised only to repel unlawful
aggression and not to punish the aggressor of the offence committed
by him. Private defence is basically preventive in nature and not
punitive. It is neither a right of aggression nor it can be used
maliciously.
 A person is not entitled to use the violence that is disproportionate to
the injury which is to be averted and it cannot be used when the need
to defend no longer survives.
 The exercise of right of private defence is subject to the restrictions
mentioned in Section 99. The right of private defence can be
exercised only to repel unlawful aggression and not to retaliate. The
right under Sect 96 is one of defence and not of retribution or reprisal.
Right of private defence cannot be exercised when a person is
carrying out a lawful act.
 Section 98 states that right of private defence is available against the
act of a person of unsound mind, or against an intoxicated person or
against a person acting under a misconception of fact and even
 against a child. Section 98 ensures that a person does not lose his
right of private defence merely because the opposite party is legally
incompetent to commit an offence. Section 98 is based on the fact
that right of private defence arises from human instinct of self-
preservation and not from any supposed criminality of the person
who poses danger to body and property.
 Illustration - 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.
 Section 105 Indian Evidence Act requires that 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
is on him and the Court shall presume the absence of such
circumstances. The burden of establishing the plea of self-defence is
on the accused and the burden stands discharged by showing
preponderance of probabilities in favour of the plea. The accused
need not prove the existence of right of private defence beyond
reasonable doubt. It is enough for him to show that the preponderance
of probabilities is in favour of his plea.
 Right of private defence is essentially a defensive right which cannot
be used for retributive purposes. A right to defend does not include a
right to launch an offensive and it cannot be used as a retaliatory
measure.
 Limits of Right of Private Defence – The first two paragraphs of
Section 99 lays down that there is no right of private defence against
an act done or attempted to be done by a public servant in good faith,
unless it causes a reasonable apprehension of death or grievous hurt.
Similarly, right of private defence is available against an act done by
the direction of a public servant when it causes a reasonable
apprehension of death or grievous hurt. The act should be done in
good faith under the colour of his office though that act or direction
may not be strictly justifiable by law.
 The right of private defence is not available when there is time
available for having recourse to state authorities. Harm caused under
 Private defence cannot exceed quantum of harm that may be
necessary for the purpose of defence. The restriction on right of
private defence rests on the theory that it is good for the society that
a public servant should be protected in the execution of his duty even
where he is in error.

 Right of private defence is given to a person to repel an imminent

danger to his body and property when the state help is not available
to him. The necessity of self help disappears when he has ample
opportunity to have recourse to state authorities. The right of self-
defence of either body or property can only be at the time when there
is imminent danger or harm. If parties had advance intimation of the
impending harm, then their remedy is to approach the appropriate
authorities. Similarly, if the alleged harm is already done, then again
their remedy is to take recourse to law and not to take law unto their
hands.
 Right of private defence can in no case extend to inflicting more harm
than it is necessary to inflict for the purpose of defence. The violence
a person is entitled to use in defending himself or his property should
not be unduly disproportionate to the injury which is to be averted.
He must stop using the force as soon as the threat has disappeared.
The right does not allow an individual to chase and kill his assailant
who is running away.
Section 100 – Right of private defence of body extends to causing
death of the assailant in the following occasions;
i) an assault which creates a reasonable apprehension of death
ii) an assault which creates a reasonable apprehension of grievous
hurt
iii) an assault with the intention of committing rape
iv) an assault with intention of gratifying unnatural lust
v) an assault with the intention of kidnapping or abduction
vi) an assault with the intention of wrongfully confining a person
vii) an attempt to throw acid which may cause the reasonable
apprehension of grievous hurt.
 This right is always subject to the restrictions in Section 99. The
apprehension of death or grievous hurt must be real or reasonable and
not an illusory or imaginary. The apprehension must be present and
imminent and not remote or distant.
 The accused should be under a bona fide fear that death or grievous
hurt would otherwise be the consequence of the assault if he does not
defend. The reasonable apprehension of the accused should be
judged from the subjective point of view of the accused and it cannot
be subjected to microscopic scrutiny.
 The right under Section 100 can be exercised even before the person
had sustained a serious injury. Person apprehending the danger is not
required to wait for sustaining injury. Supreme Court has clarified
that abduction in Clause (5) means abduction simpliciter as defined
in Section 362 of IPC. The victim need not pause and consider
whether the abductor has further intention as provided in Section 364-
369.
 Section 101 - This section says that right of private defence extends
to causing any other harm and not death in all other situation except
as provided in Section 100. In other words,
the right of private defence of body will extend to causing death of
the assailant, only in the situation mentioned in Section 100. In all
other situations, the right of private defence of body will only extend
to causing harm, short of death.
 Section 102 provides that the right of private defence commences as
soon as a reasonable apprehension of danger to the body arises from
an attempt or threat to commit the offence. The right of private
defence lasts as long as the reasonable apprehension of danger to the
body continues. A person cannot get the benefit of Section 102, if he
continues his attack even when the apprehension of danger becomes
past. Right of private defence continues as long as such apprehension
of danger to the body continues. Thus right of private defence is co-
terminus with reasonable apprehension of danger.
 The right of private defence is available when one is suddenly
confronted with immediate necessity of averting an impending
danger.
 Section 106 IPC provides that when there is a deadly assault on a
person which causes a reasonable apprehension of death and his right
of private defence cannot be effectively exercised without causing
harm to an innocent person, then in such situations, any harm caused
to innocent persons is also protected by law. If an innocent person is
killed or injured, law protects the man exercising the right of private
defence.

Right of Private Defence of Property

 A trespasser who is in ‘settled possession’ of the land gets the right to
defend his property against an attack even by true owner. The person
exercising this right should be in actual physical possession of
property. True owner has every right to dispossess or throw out a
trespasser while the trespasser is in the process of trespassing
however if he has been successful, then true owner can dispossess
trespasser only by taking recourse to remedies available under law.
 Section 103 IPC enumerates cases in which the right of private
defence of property extends to causing the death. A person may cause
death in safeguarding his own property or the property of some one
else when there is a reason to apprehend that the aggressor was about
to commit one of the following offences;
i) Robbery
ii) House-breaking by night
iii) Mischief by fire on a place used as human dwelling (building,
tent or vessel) or as a place for custody of property
iv) Theft, mischief or house trespass which creates a reasonable
apprehension of death or grievous hurt
 As per Section 104 if theft, mischief or house-trespass does not create
any reasonable apprehension of death or grievous hurt then the right
of private defence of property extends to voluntary causing of any
harm other than death.
 The right of private defence of property does not extend to causing
death of the person who committed merely criminal trespass. Only a
house trespass which creates a reasonable apprehension of death or
grievous hurt would justify death of the assailant as it is enumerated
under Section 103.
 Section 105 states the right of private defence of property commences
when a reasonable apprehension of danger to property commences.
The right of private defence of property in theft continues until the
offender has effected his retreat with the property or either assistance
of the public authorities is obtained.
 Right of private defence of property against criminal trespass or
mischief continues as long as the offender continues in the
commission of the criminal trespass or mischief. Right of private
defence of property against robbery continues as long as fear of
instant death or of instant hurt or instant personal restraint continues
.
Case Laws
 In Jai Dev v State of Punjab, certain villagers who were not happy
with strangers cultivating in their area tried to take forcible
possession of land. They were armed with weapons. The appellants
used their rifles against the villagers. As soon as one person was shot
dead all the other villagers started to run away. The appellants used
their rifles against the villagers who were at a distance. Court held
them guilty of murder under Section 302. While exercising the right
of private defence, force must be stopped as soon as the threat had
disappeared. Court held there was no justification for using force
against villagers who were already running away.
 In Munney Khan v State of MP the deceased picked up a quarrel with
appellants brother. The deceased threw the brother on the ground and
sat on his chest and gave him fist blows. The appellant stabbed the
deceased in back with a knife. Court held the force used had exceeded
the minimum required to save the
 person. Since the death was caused by exceeding the right of private
defence of body the accused was punished under Section 304 IPC.
 In State of UP v Ram Swarup and anr it was held by the Court that
right of private defence is available to a person in face of imminent
peril and to those who act in good faith. It is not available to a person
who stage manages a situation wherein right can be used as a shield
to justify an act of aggression. The accused had gone to the market
with a pre-conceived design to pick up a quarrel, hence he cannot
claim right of private defence.
 In James Martin v State of Kerala Court took the view that a person
who is apprehending death or bodily injury cannot weigh in golden
scales the no of injuries required to disarm the assailants. Slight or
marginal overstepping should not be detected. Hypertechnical
approach has to be avoided. It was
held by the Court that person facing a reasonable apprehension of
threat to himself cannot be expected to modulate his defence step by
step with arithmetical exactitude.
 In Viswanath v State of UP Supreme Court made it clear that the
benefit of Section 100 would be granted whenever there is an assault
with the intention of abducting. It was held even against Abduction
Simpliciter right of private defence under Section 100 is available.
 In Mohinder Pal Jolly v State of Punjab the agitating workers were
shot by the Manager of the factory. Court held right of private defence
of property can extend to causing death only when there is an
apprehension of death. The accused was found to have acted in excess
of right of private defence. He was held liable for Culpable Homicide
not amounting to Murder.
 In Amjad Khan v State communal riot broke out in a town and out of
fear families of appellants took shelter in a building. The
mob reached their building and started to beat the door with lathis.
Appellants fired 2 shots which killed a member of the mob. Court
extended him the benefit of Section 100.
 In Cherubin Gregory v State of Bihar the victim was using the
washroom at accused’s house due to some damage of wall at victims
 house. Accused protested against this and fixed a copper wire across
the floor and connected it to a power supply. Deceased while on the
way to washroom touched the wire and got electrocuted. Court
dismissed the plea of right of private defence of property because the
act of accused cannot be brought under Section 99 or Section 103
IPC.
Abetment
 A person who does not commit a crime, may however, command
urge, encourage, induce or help a third party to bring about it and
thereby be guilty of offence of abetment. The term ‘abet’ in general
usage means to assist, advance aid and promote. Thus any act of an
individual, which aids, helps or assists another to commit a crime,
falls within the offence of abetment. It indicates that there is a
distinction between person abetting the commission of an offence and
the principal offender.
 Under English Law, persons who themselves are not the main
offenders, but who assist or aid them are called accessories. English
law recognizes 3 types of accessories.
i) Accessories before the fact,
ii) Accessories at the fact and
iii) Accessories after the fact.
 Accessories before the fact are those who though not present in the
scene of occurrence, counsel procure or command another to commit
the crime. Accessories after the fact are those who knowing that a
person has committed an offence knowingly receive, relieve harbour
or assist him from escaping the clutches of law.
 Principals in the first degree are persons who perpetrate a crime
directly or through an innocent agent. Accessories at the fact/
Principals of second degree do not actually participate in the
commission of crime but they remain present at the occurrence of the
crime and thereby aid, assist or abet the commission of the crime.
 However the IPC does not recognize such a classification of parties
to a crime. IPC makes separate provisions to cover liability of persons
who helps an accused to flee from justice. Section 107 of IPC
 discusses about abetment and Sect 108 discusses the definition of
abettor.
 Under Section 107 abetment is constituted in 3 different ways
i) Abetment by instigation
ii) Abetment by Conspiracy
iii) Abetment by intentionally aiding a person to commit an offence.
Abetment by Instigation
 Instigation means the act of inciting another to do a wrongful act. One
may abet the commission of an offence by counselling, encouraging,
procuring or commanding another to do an act. It means to provoke,
incite urge or encourage to do an act. Instigation means some active
suggestion to stimulate the commission of an offence. Instigation can
also be caused by wilful misrepresentation or concealment provided
he had a duty to reveal the material fact.
 A mere request to do a thing may also amount to instigation. If A
offers bribe to B, a public servant, then A has done abetment even if
B refuses to accept bribe.
 Advice per se does not amount to instigation however instigation is
direct where there is a command. For ex, If A orders his servant B to
beat C, A would be liable for instigating B to cause hurt to C.
 In Queen v Mohit a woman prepared herself to commit sati in the
presence of the accused persons. They followed her upto the pyre and
stood by her encouraging her through slogans. It was held that all
those who followed her to the pyre and stood by her chanting slogans
would be guilty of abetment.
 Instigation may be in any form. Instigation can be by conduct or by
words. 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. In K Prema S Rao v Yadla Srinivasa Rao and
anr the Supreme Court held that a continued and persistent demand,
associated with physical torture and harassment, by husband of a
deceased wife for transfer of a piece of land as stridhan amounts to
abetment of Suicide by willful conduct.
 Abetment by Conspiracy
 Conspiracy and abetment by conspiracy are 2 distinct offences. For
abetment by conspiracy mere agreement is not enough. An act or
illegal omission must take place in pursuance of the Conspiracy. But
for the offence of Conspiracy, the very agreement is an act in itself
and is the gist of the offence. 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.
Abetment by Intentional Aiding
 Intentional aid can be by doing an act which directly assists the
commission of the crime or by illegally omitting to do a thing which
one is bound to do. An act which aids the commission of a crime will
amount to abetting an offence only if the act was done with the
intention to aid the commission of the offence. The word ‘intentional
aid’ warrant active complicity. A mere
giving aid does not amount to abetment by aid if he does not know
that the offence was being committed or contemplated. Intention to
aid the commission of the offence is the gist of the offence of
abetment by aid. A person aiding the commission of an offence
under coercion or fear, therefore, does not come within purview of
the provision.
 In order to attract intentionally aiding the act must have been done.
The third type of abetment would only be attracted when the offence
has been committed. To hold a person guilty of abetment by illegal
omission, it is required to prove that his omission led to a breach of
legal obligation. Illegal omission should be of an act that the person
is in law expected to do. In Kali Churn Gangooly a Head Constable
of Police perceiving that his subordinates were about to torture a
prisoner for extorting confession, left the place so as not to be a
witness of what occurred. It was held that he was guilty of abetment
of offence that was committed in his absence.
 The charge of abetment by intentional aid fails when the person
alleged to have committed the offence is acquitted of that offence. If
the perpetrator commits no offence then aiding by another person
becomes impossible.
Section 108 - Abettor
 Section 108 explains that to constitute the offence of abetment it is
not necessary that the act abetted should be committed or it is not
necessary that the person abetted should be capable by law of
committing an offence.
Illustrations
i) A instigates B to set fire to a house. B in consequence of the
unsoundness of his mind sets fire to the house. B has committed no
offence but A is guilty of abetting the offence.
ii) A induces B to believe that a property belonging to Z, is actually
his property. B in good faith acting under the misconception takes the
property out of Z’s possession and gives it to A. B is not liable for
theft but A is liable for abetting theft.

 Explanation 4 to Section 108 makes it clear that abetment of abetment

is an offence. For ex, A instigates B to instigate C to murder D. B
does not instigate C. He refuses to do so. But even then A will be
liable for abetment. The abetment of an abetment is an offence
though the second abetment is ineffective. A paid Rs 50 to B to be
handed over to C, a medical officer as bribe. B did not pay the money.
A was held guilty of abetment of an offence.
 Explanation 5 states that all persons joining in any conspiracy need
not be aware of every secret or every minute detail of it. A number of
persons may be involved in a conspiracy and each one of them may
play distinct roles. For ex, A and B conspired together for making
and engraving a plate for the purpose of forgery. A placed an order
with C for the manufacture of plate. C never saw B. Here both A and
B would be liable for abetment by conspiracy.
 Section 108-A provides that abetment is punishable provided the
abetment is committed in India though the person abetted is on a
foreign territory or offence abetted is committed outside India.
 Section 109 states that if the abetted act is committed in consequence
of such abetment the abettor shall be punished with the punishment
provided for the offence. This section provides for the same
punishment to the abettor as that which may be inflicted on the
principal offender provided that the act abetted is committed in
consequence of the abetment.
Illustration - A and B conspire to poison Z. A procures the poison
and delivers it to B in order that he may administer it to Z. B
administers the poison to Z in the absence of A causing death of Z.
Here B is guilty of murder. A is guilty of abetting the offence by way
of conspiracy and is liable to punishment for murder.
 Section 115 states that whoever abets the commission of an offence
punishable with death or imprisonment for life shall, if that offence
be not committed in consequence of the abetment, be punished with
imprisonment for a term which may extend to 7 years.
Illustration - A instigates B to murder Z. The offence is not
committed. Here A would be liable for imprisonment for a term which
may extend to 7 years. If B had murdered Z, A would have been
subject to punishment of death or imprisonment for life.
 Section 116 states that whoever abets an offence punishable with
imprisonment shall, if that offence be not committed in consequence
of the abetment, be punished with imprisonment of any description
for a term which may extend to 1/4th of the longest term provided for
the offence. If the abettor or the abetted person is a public servant the
term may extend to ½ of the longest term provided for the offence.
Illustration – A, a public officer whose duty is to prevent robbery,
abets the commission of robbery, but it was not committed. A is liable
for one-half of the longest term of imprisonment provided for that
offence.
 Section 111 states that when an act which is different from that which
was abetted, is committed the abettor shall be liable for the abetment
 of that offence, if the act done was a probable consequence of the
abetment.
 If a person instigates another to perpetrate a crime and the other in
course of doing the crime commits another crime in furtherance of it,
the former is responsible as an abettor for the latter crime, if it was
one which a reasonable man would have known to have to be
committed in order to carry out the original crime.
Illustration – i) A instigates a Child to put poison into the food of Z.
The child as a result of instigation puts the poison into the food of Y,
which is by the side of that of Z. A is liable in the same manner and
to the same extent as if he had instigated the child to put the poison
into the food of Y.
ii) A instigates B to burn Z’s house. B sets fire to the house and at the
same time commits theft of property there. A is not guilty of abetting
theft, for theft was a distinct act and not a probable consequence of
the burning.
 Section 114 introduces a statutory fiction whereby an abettor is
treated as if he had actually committed the offence himself, by reason
of his presence at the time and place of the offence. For ex, If A
incites B to kill C then A is liable for abetment; if the offence abetted
is committed and if he is present at the commission of the offence he
is deemed to have committed the offence and is liable as a Principal.
 The effect of Section 114 is to confine the punishment for abetment,
as provided in sections 109, 115 and 116, to persons who abet an
offence and are absent when the offence abetted takes place. Section
114 may be said to be wider than Section 34 in one respect. An
instigator working through an innocent agent would not be liable
under Section 34, while he could be liable under Section 114.
 The presence required does not mean that the person should be an eye
witness of the crime. The word present means sufficiently near to
render assistance. He need not necessarily be present during the
whole of the transaction.
Criminal Conspiracy
 Section 120-A defines Criminal Conspiracy. When 2 or more persons
agree to do an illegal act, or a legal act through illegal means, such
an agreement is designated as Criminal Conspiracy.
Such an agreement is an advancement of the intention which each
person has conceived in his mind. An agreement implies the meeting
of two minds with reference to a particular matter, and so long as
matters are discussed and views are interchanged, but the plan of
action has not been settled by concurrence of any two or more of the
conspirators, the stage of criminal conspiracy would not be
considered to have been reached.
 Supreme Court has clarified that association of the accused with the
main accused or even his knowledge about conspiracy would not
make the accused a conspirator because agreement is the sine qua
non of offence of conspiracy. An agreement to commit a civil wrong
would also amount to Conspiracy.
 A Conspiracy consists not merely in the intention of two or more but
in the agreement of two or more to do an unlawful act by unlawful
means. The purpose of making such agreements punishable is to
prevent the commission of the substantive offence before it has even
reached the stage of attempt. If in furtherance of the Conspiracy
certain persons are induced to do an unlawful act without the
knowledge of the conspiracy or the plot, they cannot be held to be
conspirators.
 The Supreme Court in State of Tamil Nadu v Nalini (Rajiv Gandhi
Assasination case ) culled out several principles governing
conspiracy. The broad principles laid down were –
i) Under Section 120- A IPC offence of criminal conspiracy is
committed when two or more persons agree to do or cause to be done
an illegal act or legal act by illegal means. When it is a legal act by
illegal means overt act is necessary.
 ii) It would not amount to conspiracy when some of the accused
merely entertained a wish, howsoever horrendous it may be, that
offence be committed.
iii) Conspiracy is hatched in private or secrecy. It is rarely possible
to establish conspiracy by direct evidence. Both the existence of
conspiracy and its objects have to be inferred from the circumstances
and the conduct of the accused.
iv) Persons could be members of single conspiracy even though each
is ignorant of the identity of the many others who may have diverse
roles to play. What part each conspirator is to play may not be known
to everyone. It is not necessary that all conspirators should agree to
the common purpose at the same time. They may join with other
conspirators at any time before the consummation of the intended
objective, and all are equally responsible.
iv) Criminal Conspiracy is a partnership in crime, and there is in
each conspiracy a joint or mutual agency for the prosecution of a
common plan. Everything said, written or done by any of the
conspirators in execution of the common purpose is deemed to have
been said, done or written by each of them.
 In CBI v V C Shukla (Hawala Case) it was alleged that Jain brothers
had bribed politicians from different parties to obtain favours in
matters of certain contracts. The Supreme Court after perusal of the
material placed before it held that evidence could not prove that two
politicians were parties to it. This left in the Conspiracy only one
other party. Hence the charges were held to be unsustainable.
However a person may be indicted alone for conspiring with persons
who are unknown, dead uncaught, incapable of committing the crime
or immune or have been pardoned.
 Conspiracy is an offence which can be proved either by direct or
circumstantial evidence. Direct evidence of conspiracy is the
exception rather than the rule. So the facts about Conspiracy are
generally inferred from circumstances. It is not essential that all
members know all the details of the conspiracy.
 Section 120-B states that whoever is a party to a criminal conspiracy
to commit an offence punishable with rigorous imprisonment of 2
years or more then he shall be punished in the same manner as if he
had abetted the offence. A person who is a party to a conspiracy to
commit an offence other than the type discussed above shall be
punished with imprisonment not exceeding 6 months.
 Criminal Conspiracy is a continuing offence. It implies that even
those persons who were not party to the initial agreement or did not
take part in the meeting at the time of formation of agreement, but
who subsequently joined the conspiracy at a later point in time are
made liable. Criminal conspiracy lasts until the object of the
conspiracy has been achieved or the conspirators have given up their
efforts to achieve the objective. A Conspirator may come and leave
the conspiracy at any time during the pendency of the conspiracy.
Any such conspirator would be liable for the subsequent acts of other
conspirators.
Offences against Human Body
Culpable Homicide and Murder
 Homicide is the killing of a human being by a human being. It may
be either lawful or unlawful. Lawful homicide includes several cases
falling under Chapter IV of Penal Code dealing with general
exceptions. Unlawful homicide is of the following kinds ;
i) Murder ii) Culpable homicide not amounting to murder iii)
Causing death by negligence iv) Suicide.
 In IPC Section 299 define Culpable Homicide and Section 300
defines murder. Culpable homicide is the genus and murder is its
specie. All murders are culpable homicide, but all culpable homicide
are not murders. The true distinction between culpable homicide and
murder is only the difference in degrees of intention and knowledge.
The greater the degree of intention and knowledge the case would fall
under murder.
 A lesser degree of intention or knowledge the case would fall under
culpable homicide. Culpable homicide sans special characteristic of
murder is culpable homicide not amounting to murder.
 i)The first stage is to establish whether the accused had done an act
which has caused the death of another person.
ii)The second stage is to establish whether the act would amount to
culpable homicide. It has to be ascertained that the act done by the
accused is not falling under any of the exceptions of IPC.
iii)Once it is established that the act would amount to culpable
homicide, the next stage of enquiry is to ascertain whether the act
would fall under any of the 4 clauses in Section 300 IPC.
iv) If the act is established as Murder then there must be a further
enquiry as to whether the act will fall under of the 5 exceptions
provided in Section 300. If it falls under any of the exceptions, then it
will be culpable homicide not amounting to murder.

 The probability of the result of an act is an important matter for the

Court to consider while determining whether the result was intended.
The greater the probability of consequence the more likely it is that
consequence was foreseen and if that consequence was foreseen the
greater the probability is that the consequence was intended.
 The apex court has clarified that the manner of causing injuries, the
part of the body where they were inflicted, the weapon used and the
conduct of accused are relevant factors in determining whether the
offence committed is one of murder or culpable homicide not
amounting to murder.
Section 299
 Whoever causes death by doing an act with i) the intention of causing
death, or with ii) intention of causing such bodily injury as is likely
to cause death, or with iii) knowledge that he is likely by such act to
cause death, commits the offence of culpable homicide.
 The first test to decide whether a particular act or omission would be
covered by definition of culpable homicide is to verify whether the
act done by the accused has caused death of another person. The
relevant consideration for such verification is to see whether the death
is caused as a direct result of the act committed by the accused. It is
not necessary that the person whose death has been caused must be
 the very person whom the accused intended to kill. The offence of
culpable homicide is complete as soon as any person is killed by the
accused whose mental state is of the kind mentioned in above section.
 Death may be caused by illegal omission also. An omission is illegal
if it be an offence, if it be such a wrong as would be a good ground
for civil action etc. Ex; a jail doctor voluntarily causes death of a
patient by omitting to supply him medical care. Death may also be
caused by effect of words.

 Intention to cause death - Intention is inferred from the acts of the

accused and circumstances of the case. Thus a deliberate firing by a
loaded gun at one leads to inference that the intention was to cause
death. The existence of intention is not to be inferred unless death
follows as a natural and probable consequence of the Act. A
consequence is deemed to be intended to though it is not desired when
it is foreseen as substantially certain.
 Intention of causing such bodily injury as is likely to cause death - It
only means an intention to cause a particular injury, which injury as
it turns out to be, is one likely to cause death. It is not necessary that
consequences of injury are foreseen. The difference between the two
expressions “intention of causing death” and “intention of causing
such bodily injury as is likely to cause death” is a degree of
criminality. The latter is a lower degree of criminality than the former.
But there is no distinction in punishment.
 Knowledge that he is likely by such act to cause death – Knowledge
refers to the personal knowledge of the person who does the act.
Knowledge is to be gathered from the act of the accused and the
circumstances of the case. What is necessary is death must be the
direct consequence of the act of the accused. In Ketabdi Mundul the
accused kicked his wife about 9 years of age on her back with
barefoot, she fell down and died immediately. Court held the husband
liable for Culpable Homicide not amounting to murder because no
reasonable man could be ignorant of likelihood of the act causing
death.
 In Ganesh Dooley a snake charmer exhibited in public a venomous
snake, whose fangs he knew had not been extracted. He placed the
snake on the head of a spectator just to show his own skill. The
spectator in trying to push off the snake was bitten, and died in
consequence. He was held guilty of culpable homicide not amounting
to murder.
 In Chaturnatha A and C had an altercation and the former aimed a
blow at C. To ward off the blow C’s wife who had a child on her
hand intervened between them. The blow missed its aim and fell on
the head of the Child causing death. The accused was held guilty of
Simple Hurt only because the wife had intervened and the blow if it
had fell upon the complainant would have caused only simple hurt.
 A hits B on his chest, who is a patient of tuberculosis of the lung and
he dies as a result of injury, which was otherwise ordinary. It was not
an injury which would have caused death of B if he was not a patient
of tuberculosis. A was not aware of this fact and he was held
responsible only for causing grievous hurt.
 In Sobha A caused simple injury to D and D subsequently died of
septic meningitis which developed on account of the use of wrong
remedies and neglect in treatment. It was held that the accused cannot
be held liable under Section 304.
Section 300 – Murder
It says that Culpable Homicide is Murder if it is done with:
i) intention to cause death
ii) intention to cause bodily injury, knowing that the injury caused is
likely to cause death
iii) intention of causing bodily injury sufficient in the ordinary
course of nature to cause death
iv) knowledge that the act is so imminently dangerous that in all
probability it will cause death or bodily injury likely to cause death.
Culpable Homicide will not be murder, if it is:
i) done on grave and sudden provocation
ii) done on exceeding the right of private defence of person or
property
 iii) an act done by a Public Servant in excess of powers conferred
on him
iv) done during a sudden fight without premeditation
v) caused to a person above 18 years of his age with his consent

Act done with intention of causing death – Sect 300(1)

 Intention to cause death can be inferred from the act. Intention can be
proved only by its external manifestations. When injuries are inflicted
on vital parts of the body with sharp edged instruments then the
intention to kill can be attributed to the offender. It is pertinent to
note that first clause of 300 is identical to first clause of 299 which is
also ‘doing an act with the intention of causing death.’ Therefore an
act falling under Section 299(1) will also fall under Section 300(1)
and in both instances it will amount to Murder.
Intentional causing of bodily injury with knowledge that it will cause
death – Section 300(2)
 Section 300(2) will apply if there is the intention to cause bodily harm
and next, there is ‘subjective knowledge’ that death will be the likely
consequence of intended injury. Section 300(2) contemplates a
situation where the offender has certain special
special knowledge regarding the peculiar situation or health condition
of the particular victim that the intentional bodily injury is likely to
be fatal. The essence of Section 300(2) is the knowledge of the
accused that the act is likely to cause death.

Intentional causing of injury sufficient in ordinary course of nature

to cause death - Section 300(3)
 The word sufficient in the ordinary course of nature to cause death
means there is a high probability of causing death. It must be proved
that there was an intention to inflict that particular bodily injury. The
injury should not be accidental or unintentional. The injury caused
 must be sufficient to cause death in ordinary course of nature. This is
purely an objective enquiry. It is not necessary that the offender had
subjective knowledge that such bodily injury would be sufficient in
ordinary course to cause death. The accused who intentionally

caused the injury, may not be aware that injury was sufficient to cause
death or was likely to cause death. But if his intention to cause the
injury is established and the injury caused is sufficient to cause death
in the ordinary course of nature, then the accused is guilty of culpable
homicide amounting to murder.

Knowledge that Act is so imminently dangerous so as to cause death

–Section 300 (4)
 Section 300(4) contemplates the commission of a reckless act, which
is imminently dangerous. The act is so imminently dangerous that
that it is likely to cause death or such bodily injury which is likely to
cause death. Such imminently dangerous act was done without any
reason or justification. Under Section 300(4) the knowledge of the
offender as to the probability of death of a person approximates to a
practical certainty. Knowledge on the part of the offender must be of
highest degree of probability.

 In State of Madhya Pradesh v Ram Prasad the accused poured

kerosene oil over the wife and set her on fire. She suffered extensive
burn injuries and died as a result of the injuries. Supreme Court relied
on Section 300(4) and held though this section is invoked where there
is no intention to cause death of any particular person, the clause
may on its terms be used in those cases where there is such
callousness towards the result. He was held liable under Section
300(4) as when the accused poured kerosene and set fire to his wife,
he would have known that the act would result in her death.
 Section 300 also provides 5 exceptional situations, the existence
which will remove a case from the purview of Section 300. In other
 words, even if a case falls within any of the four clauses of Section
300, if it falls within the 5 exceptions, then it will cease to be murder.
It will merely be culpable homicide not amounting to murder.
Exception 1 – Grave and Sudden Provocation
 In order that provocation must be pleaded in partial defence to a
charge of murder, 4 elements are necessary
i) There must be provocation
ii) Provocation must be grave and sudden
iii) By reason of such grave and sudden provocation the offender
must have been deprived of the power of self-control
iv) the death of the person who gave provocation or of any other
person, by mistake or accident must have been caused.
Provocation must be sudden. It is sudden when there was no time for
the passion to cool down. If the act was done after the first
excitement, had passed away, and there was time to cool, it is murder.
Provocation is grave if it is sufficient to rouse a persons passion.
Provocation should not have been sought for voluntarily by the
offender. Provocation should not be a result of an act done in
obedience of law or by the act of a public servant in lawful exercise
of power.
Provocation cannot be a result of anything done in exercise of the
right of private defence.
 In K M Nanavati v State of Mahrashtra the accused was a naval
officer. He was married with 3 children. His wife confessed to him
that she had developed intimacy with the deceased. The accused shot
the victim after visiting his ship to take his weapon. Supreme Court
held that provisions of Exception 1 to Section 300 were not attracted.
The accused was convicted for murder because three hours had
lapsed after his wife’s confession and he had sufficient time to regain
his self-control. Supreme Court held that the fatal blow should be
clearly traced to the influence of passion arising from provocation
and not after the passion had cooled down by lapse of time.
Exception 2 – Exceeding the right of private defence
 The fact that a person has exceeded his right of private defence acts
as a mitigating factor in reducing the offence from that of

from that of murder to Culpable homicide not amounting to murder.

Before this exception can be availed of it has to be proved that the
accused had the right of private defence. The exceeding of right of
private defence should be done without pre-meditation and without
any intention of doing more harm than is necessary.
 In Omkarnath v State of UP the accused party attacked the deceased
party while they were fleeing. It was held that the right of private
defence had ended and accused were found guilty of Murder and not
entitled to benefit of Exception 2 to Sect 300.
 In Mohinder Pal Jolly v State of Punjab the deceased were workers
in factory of the accused. On the day of the incident workers had
raised provocative slogans and caused damage to property of
accused. Accused caused the death of victim by firing a shot from
his revolver. SC held accused had right of private defence but he had
exceeded it and hence benefit of Exception 2 was extended to him.
Exception 3 – Act of Public Servant
 Exception 3 covers a situation where a public servant exceeds his
lawful powers in the discharge of his duty and thereby causes death.
The act should have been done in good faith and he should not have
any ill-will towards the person whose death was caused.
 In Dakhi Singh v State A suspected thief was arrested by a Police
Constable and was being taken in a train. The thief escaped from the
running train. The Constable pursued him. When he was not in a
position to apprehend him, he fired at him. But, in that process, he hit
the fireman and killed him. It was held that the case was covered by
this exception.
Exception 4 – Sudden Fight
 This exception covers acts done without premeditation in a sudden
fight. This might also cover situations covered under first exception.
However, the term sudden fight implies mutual
 provocation and aggravation. It implies mutual attack in which both
the parties participate. An actual attack by one party and retreat by
another does not constitute fight. Fight postulates bilateral transaction
in which blows are exchanged by both the parties. When the
aggression is only on one side it cannot be a fight. The murder should
have been committed without premeditation in the heat of passion
during a sudden fight. It should have been committed without the
offender having taken undue advantage or acted in a cruel or unusual
manner.
 In Somiruddin v Emperor a feast was held at the house of a person
where some persons refused to dine with the a guest on social
grounds. The deceased person and the accused quarreled and they
exchanged blows using sticks. The deceased gave a blow to the head
of the accused while accused snatched up a knife and inflicted
wounds on the deceased using it. It was held that benefit of exception
4 was extended and the accused was held guilty of culpable homicide.
Exception 5 – Death by Consent
 Culpable Homicide is not murder when the person whose death is
caused, being above the age of 18 years, suffers death or takes risk of
death with his own consent. Death should be caused with the consent
of the deceased and such consent was free and voluntary not given
through fear or misconception of facts.
 In Ujagar Singh the accused killed his stepfather who was an old
man with the latters consent, his motive being to implicate his
enemies. It was held that the offence was covered by 5th exception to
Section 300 IPC and punishable under first part of Sect 304 IPC.
 In Dasrath Paswan v State of Bihar the accused who was a student
of X class, failed his examination thrice in succession. He was upset
and frustrated by these failures and decided to end his life. The wife
requested him to kill her first.
In pursuance of the pact, he killed his wife but was arrested before he
could end his life. The Patna High Court, relying upon the Exception
5 to Section 300, IPC convicted him under Section 304 pt I.
 The true difference between culpable homicide not amounting to
murder and Murder is only in the degrees of intention and knowledge.
Act with greater degree of intention and knowledge, would cause the
case to fall under Murder.
 There are practically 3 degrees of culpable homicide recognised in
the IPC.
I)Culpable Homicide of first degree which is made punishable with
death or imprsionment for life - Section 302
II) Culpable Homicide of the second degree, which is made
punishable with imprisonment upto 10 years or imprisonment for life
- Sect 304 pt I
III) Culpable Homicide of third degree which is punishable with
imprisonment upto 10 years or fine – Section 304 pt II
Section 304-A
 Section 304-A is applicable when death is caused by doing a rash or
negligent act and such act must not amount to culpable homicide. To
impose criminal liability under this section it is necessary that the
death should have been the direct result of a rash or negligent act of
the accused, the act must be the causa causans.
 Rash act is acting with consciousness that illegal and mischievous
consequence may follow but with the hope that they will not and
often with the belief that the actor has taken sufficient precautions to
prevent their happening. Negligence means that the actor has not
exercised the caution required of him. A negligent person is not aware
of the consequences and effects of his act because he has not
exercised caution. It means doing of something which a prudent and
reasonable man would not do.

Hurt and Grievous Hurt

 Section 319 defines Hurt. It is defined as whoever causes bodily pain,
disease or infirmity to any person is said to cause hurt. Bodily pain
implies that the pain must be physical as opposed to mental pain.
Mentally or emotionally hurting somebody will not be ‘hurt’.
Infirmity denotes an unsound or unhealthy state of the body. The
 infirmity may be a result of a disease or as a result of consumption of
some poisonous, deleterious drug or alcohol.
 Section 323 states that voluntarily causing hurt is punishable with
Imprisonment which may extend to one year. However if an act
comes within the purview of Section 334, which deals with causing
hurt on provocation then a lesser punishment of maximum
imprisonment of one month is provided.
 There may be cases where the act may even result in death. But if the
intention of the accused as gathered from the surrounding
background facts was only to cause hurt, then accused will be
punishable only for causing hurt.
 Section 320 defines Grievous hurt. The following kind of hurt only
are designated as ‘Grievous’.
i) Emasculation
ii) Permanent privation of sight of either eye
iii) Permanent privation of hearing of either ear
iv) Privation of any member or joint
v) Destruction or permanent impairing of powers of any joint or
member
vi) Permanent disfiguration of head or face
vii) Fracture or dislocation of a bone or tooth
viii) Any hurt which endangers life or any hurt which causes the
sufferer to be during space of 20 days in severe bodily pain.
 Act neither intended to cause death nor likely to cause death will only
amount to grievous hurt even though death is caused. In Gornvulue
the accused in his bid to steal snatched the nose-

ring of a woman resulting in cutting of the nostrills and the death of

the woman. He was held guilty for causing grievous hurt and not for
murder because death was entirely unexpected and cutting of the
nostrills was to facilitate robbery.
 Section 325 states that whoever voluntarily causes grievous hurt shall
be punished with imprisonment of either description for a term which
may extend to 7 years and shall also be liable to pay fine. However
 Section 335 states that, if the grievous hurt was caused on sudden
provocation, then punishment may extend only to 4 years
imprisonment.
 Section 326 states that whoever voluntarily causes grievous hurt by
any instrument of shooting, stabbing or by means of fire or by means
of any heated or explosive substance or by means of any animal shall
be punished with imprisonment for life or with imprisonment of
either term description which may extend to ten years.

Wrongful Restraint and Wrongful Confinement

 Section 339 deals with the offence of Wrongful Restraint. It means
voluntary obstruction of a person to prevent him from proceeding in
any direction in which he has a right to proceed. Wrongful restraint
is partial restraint of the personal liberty of a man. A person may
cause wrongful restraint to another by causing it to appear to other
person that it is impossible, difficult or dangerous to proceed. For ex
; A threatens to set a dog at z if z goes along a path along which z
has a right to go. The dog is not savage but A makes z feel that it is
savage and thereby prevents z from going along that path.
 Wrongful restraint can also be caused by threat or by mere words
provided it has the effect of bringing about the result of desired
obstruction. What is required under this section is obstruction to free
movement of a person, the method used for such obstruction is
immaterial. For ex ; A who went outside for shopping finds his house
locked by B from outside. A is prevented
from getting into his house where he has a right to enter. This act
would amount to Wrongful Restraint.
 Wrongful Restraint is an offence which is complete as soon as the
person proceeding is obstructed and the fact that he is allowed to get
down the vehicle and then proceed is immaterial. In Gopal Reddi v
Lakshmi Reddi it was held that voluntary obstruction of a cart in
which persons are travelling would amount to wrongful restraint and
the fact that persons may get down and then be left at liberty to
proceed on their way is immaterial.
 Illustrations
 A was on the roof of a house. B removes the ladder and thereby
detains A on the roof.
 A and B were co-owners of the well. A prevented B from taking
water out of the well
 In Vijay Kumari v S.R.Rao the complainant was a lady teacher who
was not allowed into her room at the hostel. However the School
authorities were found not guilty since her licence had already
terminated. Necessary pre-condition for wrongful restraint is that a
person must have a right to proceed, which in this case the teacher
did not have.
 Section 341 discusses the punishment for wrongful restraint.
Whoever wrongfully restrains any person shall be punished with
simple imprisonment for a term which may extend to one month or
with fine which may extend to 500rs or both.
 Section 340 discusses wrongful confinement. In wrongful
confinement a person is kept within certain circumscribing limits,
beyond which he is not allowed to proceed. Unlike in wrongful
restraint there is total restraint in case of wrongful confinement. In
wrongful confinement a person is restrained from proceeding in any
direction beyond a certain area; in wrongful restraint, he is restrained
from proceeding in some particular direction.

Illustration
A places men with firearms at the outlets of a building, and tells Z
that they will fire at Z if he attempts to leave the building. A
wrongfully confines Z.
 In Shamlal Jairam v Emperor a head constable detained several
persons for investigation. They were made to stay in circumscribed
limits and their meals were either brought to them or they were sent
under escort to their houses for meals and were brought back. It was
held that above circumstances created a belief in the minds of these
 persons that they could not depart without being seized immediately
which led to the conviction of the Constable.

KIDNAPPING & ABDUCTION

 Section 359 of IPC states Kidnapping is of 2 types. 1) Kidnapping
from India and 2) Kidnapping from lawful guardianship. Section 360
describes Kidnapping from India. For an offence under Section 360
the victim may be male or female, whether major or minor. This
offence consists of the following ingredients : 1) Conveying of any
person beyond limits of India ii) Such conveying must be done
without the consent of that person.
 Section 361 defines Kidnapping from lawful guardianship.
Ingredients of this Section are : 1) Taking away or enticing away a
minor or a person of unsound mind. 2) Such minor must be under age
of 16 years if a male or under age of 18 years if a female 3) the taking
or enticing must be out of the keeping of the lawful guardian of such
minor or person of unsound mind 4) taking or enticing must also be
without consent of the guardian.
 In Varadarajan v State of Madras a minor girl who had left the
protection of her father voluntarily joined the accused. The SC
observed that there is distinction between taking and allowing a
minor to accompany a person. The accused was held not to have taken
her away from keeping of her lawful guardian. To attract Kidnapping
it was held some kind of inducement or an active participation by him
in the formation of intention of the minor is necessary.
 Enticing mean that while the person kidnapped might have left the
keeping of the lawful guardian willfully, still the state of mind that
brought about that willingness must have been induced by the
accused.
 The offence is complete when the minor is actually taken from the
lawful guardianship and the act of taking is not a continuous process.
Therefore, the subsequent takers would not be kidnappers because at
the time of taking by them minor is not in the keeping of guardian.
 The Knowledge of the accused that the person kidnapped was below
the statutory limit is immaterial. Where a girl under the statutory
age of 18 years is kidnapped, it would be no defence that the
accused did not know the girl to be under that age or that from her
appearance he might have thought that she was of a greater age.
 Keeping means within the protection or care of the guardian. A minor
is said to be in the keeping of a person where he depends upon him
for his or her maintenance, support or sustenance. If a minor boy or
girl goes out in the street or on the playground by himself, or goes on
a visit to the market or for a fanfare either with or without the
knowledge of the guardian, he is still said to be in the legal keeping
of her parents.
 There is difference between lawful guardian and legal guardian. For
kidnapping guardian must be lawful and not be a legal guardian.
Therefore when the father of a child sends her to school with his
servant or a friend, the servant or such friend is the lawful guardian.
 Punishment for Kidnapping – Sect 363- Whoever kidnaps any person
from India or from lawful guardianship, shall be punished with
imprisonment of either description for a term which may extend to 7
years, and shall also be liable to fine.
 Section 363 A deals with kidnapping a minor for purposes of begging.
Such persons can be given imprisonment of either description upto
10 years. It also states that whoever maims any minor inorder that
such minor may be employed for begging shall be punishable with
imprisonment for life.
 Section 364 deals with Kidnapping or abducting in order to murder.
Such persons can be punished with imprisonment for life or rigorous
imprisonment for a term which may extend to 10 years.
 Section 364A deals with kidnapping or abducting for ransom and
such persons can be punished by death or imprisonment for life.
 Section 365 deals with kidnapping or abducting a person with intent
to secretly confine him – Imprisonment upto 7 years.
 Section 366 deals with kidnapping or abducting a woman to compel
her marriage or with intention of having illicit intercourse with her –
Imprisonment upto 10 years
 Section 366B – Importing of girls into India from any country
outside India with the intention that she will be forced to illicit
intercourse - Imprisonment upto 10 years.
 Section 367 – Kidnapping or abducting a person in order to subject
the person to grievous hurt – Imprisonment upto10 years
 Section 369 – Kidnapping or abducting a child under 10 years with
the intent to steal from it – Punishment up to 10 years.
 Section 362 defines the term abduction. The essential ingredients of
abduction are: 1) Forcible compulsion or inducement by deceitful
means 2) the object of such compulsion or inducement must be going
of a person from any place.
 It must be noted that abduction per se is not an offence. It is an offence
when it is accompanied by certain intent to commit another offence.
Thus abduction is an offence only if it is done with intent to :
a) murder – Sect 364
b) secretly and wrongfully confining a person – Sect 365
c) induce a woman to compel her marriage – Sect 366
d) subject a person to grievous hurt – Sect 367
e) Steal from a person under 10 years – Sect 369.
f) to obtain ransom – Section 364A.

Sexual Offences
 Section 375 defines rape. Section 375 (a) to (d) describes the different
acts which constitute offence of rape. Section 375(a) says that
penetration by a man of his penis to any extent into vagina, mouth or
anus of a woman is rape. 375(b) provides that insertion to any extent
of any object or any part of body other than penis into vagina or anus
of a woman is rape. 375(c) provides that if a man is manipulating any
part of the body of a woman so as to cause penetration of penis into
vagina anus or any part of body of such woman would amount to
 rape. 375(d) provides that if a man applies his mouth to vagina, anus
it amounts to rape.
 Any of the above mentioned acts to be considered as rape, should be
falling under any one of the 7 circumstances stated in this section.
i) Against her will
ii) without her consent
iii) with her consent, when the consent was obtained by putting her
or any person in whom she is interested, in fear of death or of hurt.
iv) 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
v) with her consent when at the time of giving such consent, by
reason of unsoundness of mind or intoxication she is unable to
understand the nature and consequences of her action
vi) with or without her consent, when she is under 18 years of age
vii) when she is unable to communicate consent.
 There are 2 exceptions. Exception 1 provides that medical procedure
or intervention shall not constitute rape. Exception 2 provides that
sexual intercourse by a man with his own wife, the wife being 18
years, is not rape. (Independent Thought v UOI)
 Second Circumstance makes it clear that Consent of the woman must
have been obtained prior to the act. This operates in a situation where
a woman is imbecile that she is incapable of giving a rational consent.
The expression “against her will” implies that act is done inspite of
her opposition. Every act done against the will of a woman is done
without her consent. But an act done without the consent of a woman
is not necessarily against her will.
 Section 376(1) provides for the punishment of rape. It states that
except in the cases provided in 376(2) a person who commits rape
shall be punished with rigorous imprisonment for a term not less than
7 years and which may extend to imprisonment for life.
 Section 376(2) describes certain circumstances where a higher
punishment is prescribed for the offence of rape. If offence of rape
is committed under situations mentioned in 376(2)(a) – 376(2)(n) the
 minimum punishment prescribed is 10 years imprisonment and it can
go upto life imprisonment.
Section 376 (2)(a) – Rape committed by a Police Officer
Sub-section 2(b) – Rape committed by a Public servant
Sub-section 2(c) – Rape committed by member of armed forces
Sub-section 2(d) – Rape committed by member of
staff/management of a jail remand home etc
Sub-section 2(e) – Rape committed by a member of
staff/management of hospital on a woman in that
hospital
Sub-section 2(f) – Rape committed by a relative, guardian or
teacher of the woman
Sub-section 2(g) – Rape committed during communal or
sectarian violence
Sub-section 2(h) – Rape committed by a man knowing her to be
pregnant
Sub-section 2(i) – Rape committed on a woman below 16 years
Sub-section 2(j) – Rape committed on a woman who is
incapable of giving her consent
Sub-section 2(k) – Rape committed by a man who is in a
position of dominance or control over such a
woman
Sub-section 2(l) – Rape committed on a woman who is suffering
from mental or physical disability
Sub-section 2(m) – Rape committed by a man who causes
grievous hurt or maims or disfigures the victim
Sub-section 2(n) – Rape committed repeatedly on the same
woman
Section 376 A provides punishment for rape causing death or
persistent vegetative state. The minimum punishment is 20 years
and it can go upto life imprisonment or death.
Section 376AB provides punishment for rape of a woman under 12
years of age. Minimum punishment is 20 years and it can go upto
life imprisonment or death.
 Section 376B provides punishment to a husband who has sexual
intercourse with his wife without her consent while she is living
separately. Minimum term provided is 2 years and it can go upto 7
years.
Section 376C provides punishment to a person who has sexual
intercourse with a woman by abusing his position of authority or
fiduciary relationship, such sexual intercourse not amounting to
offence of rape. Minimum term provided is 5 years but it can go
upto 10 years.
Section 376D provides punishment to Gang rape. Each of such
person shall be punished with a minimum term of 20 years. The
maximum period provided is imprisonment for life.
Section 376DA – Gang rape of a woman below 16 years of age –
Imprisonment for life
Section 376 DB – Gang rape of a woman below 12 years of age-
Minimum punishment is imprisonment for life and it can go upto
Capital Punishment.

 The amendments carried out in the year 1983 by Criminal law

Amendment Act, 1983 have amended the law relating to rape. It
stipulated a minimum mandatory punishment of 7 years and widened
the definition of rape. These changes were a result of countrywide
criticism against the judgment of the SC in Tukaram v State of
Maharashtra. (Mathura Rape Case). Mathura was an 18 year old
harijan girl living with her brother. She developed a relationship with
one Ashok and they decided to get married. On her brothers
complaint, both of them were brought to the Police Station. After
recording their statements

all others were asked to leave except Mathura. One of the Constables
raped her and another one sexually molested her. The Bombay High
Court convicted both the Constables and held that there was a
difference between consent and passive submission and held that
mere passive or helpless surrender of body to another’s lust cannot
be equated with desire or will. However the SC disbelieved
 Mathura’s version and held that the absence of injuries indicated that
alleged intercourse was a peaceful affair. Accordingly both the
accused were acquitted of charges of rape. To nullify the effect of SC
judgment in Mathura Case Section 114A was introduced in the
Evidence Act.
 Section 114A now states that in a prosecution for rape under
subsection 2(a) – 2(n) of Section 376, where sexual intercourse by
accused is proved, and the question is whether it was without the
consent of the woman alleged to have been raped, and such woman
states in her evidence before the Court that she did not consent, the
Court shall presume that she did not consent.
Unnatural Offences – Section 377
 This section is intended to punish certain unnatural offences like
sodomy and bestiality. The offence consists in having carnal
knowledge against the order of nature by a person with man, or in the
same manner unnatural manner with a woman, or by a man or woman
in any manner with an animal.
 In Naz Foundation v Govt of NCT of Delhi it was held that Section
377 IPC to the extent it criminalises consensual sexual acts of adults
in private is violative of Article 21, 14 and 15 of the Constitution. The
provision was found to be violative of constitutional values and
notion of human dignity. It was argued by NAZ that private
consensual relations were protected under Article 21 and it was also
violative of Article 14 because it was unreasonable and arbitrary to
criminalise non-procreative sexual relations. The Delhi HC accepted
these arguments and held Section 377 grossly violates right to privacy
and liberty
embodied in Article 21 insofar it criminalises consensual acts
between adults in private.
In Suresh Kumar Kaushal v NAZ Foundation SC read down the
judgment of HC and held that only a miniscule fraction of country’s
population constitute homosexuals and noticed that over the last 150
years less than 200 persons were prosecuted under Section 377. It
 concluded that Section 377 did not suffer from any
unconstitutionality.
However in Navtej Singh Johar v UOI it was declared that insofar as
Section 377 criminalises consensual sexual acts of adults in private,
it is violative of Article 14, 15 19 and 21 of the Constitution. Court
noted that history owes an apology to members of LGBT community
for the ostracism they suffered through centuries. Court held that
reading down Section 377 is necessary considering the role of SC as
sentinel on the qui vive with respect to FR.
Theft
 Section 378 defines the offence of Theft. “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.”
 The following 5 elements are the essential ingredients of theft:
i) It should be a movable property
ii) In the possession of anyone
iii) Dishonest intention to take it out of his possession
iv) without his consent
v) Moving it in order to such taking.
 Intention is the essence of offence of theft. Intention must be
dishonest and it must so exist at the time of taking of the property.
Dishonest intention exists when the taker of the property intends to
cause wrongful gain to one person or wrongful loss to another.
 If ‘A’ in good faith believing property of ‘B’ to be his own property
takes that property out of B’s possession then A will not be liable for
the offence of theft. A is entitled to claim benefit of mistake of fact
under Section 79 of IPC.
 Taking need not be permanent or with an intention to appropriate the
thing taken. In Pyarelal v State of Rajasthan ( AIR 1963 SC 1094)
the accused working in a Govt office removed a file to his house,
made it available to an outsider and then returned it to the office after
2 days. He was held guilty of theft.
 A person can be convicted of stealing his own property. Ex: If A owes
money to Z for repairing his watch and if A takes the watch out of Z’s
possession without his consent to avoid payment of repairing, he
commits the offence of theft.
Similarly, If A having pawned his watch to Z, takes it out of Z’s
possession without his consent not having paid what he borrowed on
the watch, he commits the offence of theft.
 Anything which is permanently attached with earth or is permanently
fastened with anything which is permanently attached with earth is
known as immovable property. All other things are movable
property. Explanations 1 and 2 make it clear that things attached to
land may become movable property by severance from the earth and
the act of severance may itself be constitute theft.
Explanation 1 – A thing so long as it is attached to earth, not being
movable property is not subject of theft; but it becomes capable of
being subject of theft as soon as it is severed from the earth
 Electricity running in electric wire is not movable property and
therefore, dishonest abstraction of electricity does not amount to
offence of stealing.
 The property must be in possession of prosecutor, whether he is the
owner of it or is in possession of it in some other manner. Thus there
can be no theft of wild animals but theft is
possible of tamed animals, birds or fishes etc.
 The offence of theft is complete when the there is dishonest removing
of the property. For ex: A meets a bullock carrying a box of treasure.
He drives the bullock in certain direction, in order that he may
dishonestly take the treasure. As soon as the bullock begins to move,
A has committed the offence of theft.
Illustrations
 Z going on a journey entrusts his plate to A the keeper of a warehouse,
till Z shall return. A carries the plate to a goldsmith and sells it. Here
the plate was not in Z’s possession and hence A would not be liable
for theft but for criminal breach of trust.
 A finds a ring on the road, not in the possession of anyone. A by taking
it does not commit any theft, though he can be liable for criminal
misappropriation of property.
 A sees a ring belonging to Z lying on a table in Z’s house. A hides the
ring in another place with the intention of selling it
afterwards. A has committed the offence of theft.
 A is the paramour of Z’s wife. She gives a valuable property to A
which A knows to belong to her husband. If A takes the property
dishonestly he commits theft.
CASE LAW
 In K.N.Mehra v State of Rajasthan 2 airforce cadets stole an aircraft
from Indian Airforce Academy and landed at a place in Pakistan.
They later met the Indian High Commissioner and informed him that
they had lost their way. However they were prosecuted successfully
for the offence of theft in India. Prosecution proved dishonest
intention by showing that they had took off in a different aircraft, one
hour earlier than the scheduled time and without waiting for co-pilot.
They also refused to respond to wireless messages from Indian
aerodrome. The accused were held guilty of the offence of theft in the
above mentioned circumstances.
 Section 379 discusses about the punishment for theft. Imprisonment
can extend to 3 years and fine also can be imposed.
Aggravated forms of theft
 Section 380 deals with theft in any building, tent or vessel used as a
human dwelling or used for the custody of property. Punishment may
go up to 7 years imprisonment.
 Section 381 deals with theft committed by a clerk or servant. Severe
punishment is prescribed when a clerk or servant commits theft
because he has greater opportunities of committing this offence
owing to the confidence reposed in him.
 Section 382 deals with offence of theft after preparation to cause
death, hurt or restraint in order to the committing of theft. For ex : A
commits theft on property in Z’s possession and while committing
theft he has a loaded pistol for hurting Z in case of any resistance. It
 is not necessary that injury should be caused because if hurt is caused
during theft offence would be punishable as robbery.
Extortion
 Section 383 discusses the offence of Extortion. For an offence under
this section the extortioner must put another person under fear of
injury and thereby dishonestly induce that person to deliver property.
The property obtained by extortion is not limited to movable property,
even immovable property can be the subject-matter of extortion. The
thing delivered under this section may be any property or valuable
security, or anything signed or sealed which may be converted into a
valuable security.
 The word ‘injury’ is defined in Sect 44. It means ‘any harm whatever
illegally caused to any person, in body, mind reputation or property.’
Hence the fear of injury need not be bodily harm or hurt. It includes
injuries to mind, reputation or property of the person.

 The major distinction between theft and extortion is that offence of

extortion is carried out by overpowering will of the owner. In theft
property is taken without consent of the person. Besides the property
which is obtained by extortion, is not limited to movable property.
 In Purshottam Jethanand v State of Kutch accused was a police
officer who had the duty to verify Passports of certain persons. In
course of his duty he demanded payment to return the Passport. SC
held that there was a fear of injury created by withholding of Passport
and held him liable for Section 384 IPC.
 In R.S.Nayak v A.R.Antulay the CM asked the Sugar Cooperatives
whose demands were pending before the govt to make donations. SC
held that these facts do not constitute extortion. It was clarified that
for an offence of extortion, fear or threat must be used. The accused
should make a threat or omit to do what he is legally bound to do.
Illustration
 A threatens to publish a defamatory libel concerning Z unless Z gives
him money. He induces Z to give him money. A has committed
extortion.
 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 money to A. Z signs and delivers the note. A has committed
extortion.
 A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign
or affix his seal to a blank paper and deliver it to A. Z signs and
delivers the paper to A. The paper so signed may be converted into
a valuable security and hence A has committed the offence of
extortion.
 Extortion becomes robbery if the offender commits extortion by
causing fear of instant death, hurt or wrongful restraint. In Robbery
property can be removed by force, without delivery.
 Section 384 discusses punishment for extortion. Whoever commits
extortion shall be punished with imprisonment extending to 3 years.
 Section 385 discusses punishment for putting a person in fear of
injury in order to commit extortion, where actual delivery of property
has not taken place. It recognizes the distinction between an inchoate
and a consummated offence. Punishment prescribed is imprisonment
upto 2 years.
 Section 386 discusses punishment for extortion by putting a person
in fear of death of grievous hurt. The punishment may go upto 10
years imprisonment.
 Section 388 discusses punishment for extortion by accusing another
person of having committed or attempted to commit an offence
punishable with death or with imprisonment upto 10 years. The
punishment may extend to 10 years imprisonment.
Robbery
 Section 390 defines Robbery. Robbery is an aggravated form of either
theft or extortion. There cannot be any robbery if there is no theft or
extortion.
 Theft becomes Robbery - When someone voluntarily causes or
attempts to cause:
a) death or hurt or wrongful restraint or
 b) fear of instant death or instant hurt or
instant wrongful restraint
During commission of theft or while carrying away or attempting to
carry away stolen property
 For an offence of robbery, death, hurt or wrongful restraint may be
caused either in committing theft or in order to committing of theft or
in order to carry away the property obtained by theft.
 Thus where the accused abandoned the property obtained by theft and
threw stones at his pursuers to deter them from continuing the
pursuits, he was guilty of theft and not robbery.
In another instance D was relieved of his wrist watch by A in a
railway station when the train was about to stop. As D raised an alarm
B gave him a slap and both A and B jumped out of the train. Here
both A and B will be liable for robbery since they acted in furtherance
of common intention. Similarly if the accused snatches the nose-ring
of a woman and during the action wounds her, he would be liable for
the offence of Robbery.
 Extortion becomes Robbery – when a person commits extortion by
putting another person in fear of instant death, instant hurt or instant
wrongful restraint to that person or to some other person. The
offender, at the time of committing the extortion is in the presence of
the victim.
 Where a Police Officer obtains from B certain ornament by putting
him under the fear that he will immediately be put into prison and
will not be released for months, the Police Officer is guilty of
Robbery under this Section.
 In State of Maharashtra v Vinayak Utekar the accused snatched gold
buttons from shirt of a person and ran away. He was caught by the
informant to whom he caused a knife-blow. The Court held the
accused guilty under Section 390 for robbery.
 Section 392 discusses the punishment for Robbery. Whoever
commits robbery shall be punished with rigorous imprisonment for a
term which may extend to 10 years and shall also be liable to fine. If
 the Robbery is committed on highway between sunset and sunrise,
the imprisonment may be extended to 14 years.
 Section 393 states that attempt to commit robbery is punishable with
rigorous imprisonment for a term which may extend to 7 years.
Dacoity
 Section 391 defines the offence of Dacoity. Robbery committed by 5
or more persons is Dacoity. 5 or more persons must either conjointly
commit or attempt to commit robbery, then only the offence of
Dacoity is constituted. For application of this section it is necessary
that all the persons should share the common intention of committing
robbery. Dacoity is different from robbery only in respect of number
of offenders.
 Every case of Dacoity is primarily a case of robbery. In dacoity the
number of participants must be 5 or more but in robbery the number
of participants is always less than 5. If the convicted persons are less
than 5 dacoity would not hold.
 Section 395 discusses the punishment for Dacoity. Whoever commits
Dacoity shall be punished with imprisonment for life or with rigorous
imprisonment for a term which may extend to 10 years.

 Section 396 discusses the punishment for committing Murder in

course of commission of Dacoity. If any one of 5 or more persons
conjointly committing dacoity then every offender would be liable
for murder committed by one of them. Punishment may go upto
death or imprisonment for life.
 Section 399 makes preparation to commit dacoity an offence.
Whoever makes any preparation to commit dacoity shall be punished
with rigorous imprisonment for a term which may extend to 10 years.
 Section 402 makes mere assembly of 5 or more persons to commit
dacoity is an offence. Punishment may extend to 7 years.
CRIMINAL MISAPPROPRIATION OF PROPERTY
 Section 403 defines the offence of Criminal Misappropriation of
Property. The gist of this offence is dishonest misappropriation or
conversion of a movable property for ones own use. The essence of
 offence under this section is that some property belonging to another
which comes into accused innocently, is misappropriated or
converted by the accused by for his own use. Misappropriation means
setting apart for ones own use. Under this section it is not necessary
that property should be taken with dishonest intention, but offence of
misappropriation is constituted because of subsequent dishonest
conversion or appropriation. Misappropriation or conversion need
not be permanently, it may be even for some time.
 Explanation 2 to Section 403 clarifies that a person who finds
property not in possession of any other person, and takes such
property for purpose of protecting it or for restoring it to the owner is
not guilty of any offence.
Illustration
 A sees Z drop his purse with money in it. A picks up the purse with
the intention of restoring it to Z and appropriates it to his own use. A
is guilty of an offence under this section.
 A finds a valuable ring, not knowing to whom it belongs. A sells it
immediately without attempting to discover the owner. A is guilty of
an offence under this section.
 A takes property belonging to Z out of Z’s possession in good faith. 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 criminal
misappropriation.
 A and B are joint owners of a horse. A takes the horse out of B’s
possession, intending to use it. Since A has a right to use the horse,
he does not dishonestly misappropriate it. But if A sells the horse and
appropriates the whole proceeds to his own use, he is guilty of
criminal misappropriation.
 Where A had taken loan from B and the debt was paid by A but A
again paid the money by mistake and if B discovers the mistake and
appropriates it for his own use, he would be guilty of
misappropriation.
 In Ram Krishna the accused was a govt servant employed to receive
money on behalf of the govt and pay it into treasury. He retained some
 money for several months but on fearing detection paid the amount
to treasury. He was held guilty of criminal misappropriation.
 In another case A was an illiterate lady who wanted to ascertain
whether she had the right railway ticket. She handed over her ticket
to another person B who ran away with it. B was liable for criminal
misappropriation.
 A thing abandoned cannot be misappropriated. For constituting an
offence under this section property appropriated must be owned by
somebody.
 In theft offender dishonestly takes property which is in the possession
of person whereas in misappropriation the possession has been
obtained innocently, but where by a subsequent change of intention
the retaining becomes wrongful and fraudulent. The punishment for
criminal misappropriation of property is imprisonment upto 2 years.
 Section 404 deals with dishonest misappropriation of property of a
deceased person, which is an aggravated form of offence under
Section 403. The punishment provided is 3 years and if the
misappropriation is done by a clerk or servant the imprisonment is 7
years.
Z dies in possession of furniture and money. His servant A, before the
money comes into possession of any person entitled dishonestly
misappropriates it. A would be liable under Section 404.
CRIMINAL BREACH OF TRUST – Sect 405
 Section 405 to 409 deals with Criminal Breach of Trust. The essential
ingredients of CBT are:
a) accused must be entrusted with property or dominion over
it
b) he must have dishonestly misappropriated the property or
converted it for his own use.
The principal ingredients of Criminal Breach of Trust are
entrustment and dishonest misappropriation. The only difference
between Criminal Misappropriation and CBT is that in respect of
Criminal Breach of Trust, the accused is entrusted with property or
with dominion over it.
 The word entrustment implies that person handing over any property
to another continues to be the owner of the property. The person
handing over the property must have confidence in the person taking
the property so as to create a fiduciary
relationship.
Illustrations
 A is a warehouse owner. Z going on a journey entrusts his furniture
to A. A dishonestly sells the goods. A has committed the offence of
Breach of Trust.
 A is a revenue officer entrusted with public money and has to pay the
money into govt treasury. A dishonestly appropriates the money. A
has committed the Breach of Trust.
 A, a carrier is entrusted by Z with property to be carried by land or
water. A dishonestly misappropriates the property. A has committed
CBT.
 A, being executor to the will of a deceased person, dishonestly
disobeys the law which directs him to divide the effects according to
Will, and appropriates them to his own use. A has committed the
offence of CBT.

Case Laws
 In State of UP V Babu Ram the accused a SI had gone to investigating
a theft case in a village. He saw a person under suspicious
circumstances carrying something in his dhoti folds which was later
identified as currency notes. The accused took the bundle and
returned it later. The amount returned was short by Rs.250. The SC
held that currency notes were handed over to SI for a particular
purpose and if the accused had taken the amount it would amount to
CBT.
 In Kundanlal v State of Maharashtra the accused were given 6 gold
bangles for repair. He pledged the bangles with a bank to raise loan
and did not return the bangles. He was convicted for CBT as he
dishonestly misappropriated the property entrusted to him.
 As seen in criminal misappropriation even a temporary
misappropriation is sufficient to attract conviction of CBT.
 Section 406 deals with punishment for Breach of Trust. Whoever
commits Breach of Trust shall be punished with imprisonment of
either description for a term which may extend to 3 years.
 Section 407 – CBT committed by carrier, wharfinger,
warehousekeeper etc- Imprisonment upto 7 years.
 Section 408 – CBT committed by Clerk, servant etc – Imprisonment
upto 7 years
 Section 409 – CBT committed by a Public Servant, banker, attorney
agent etc – Imprisonment upto 10 years or Life Imprisonment.
 As seen in misappropriation, acts of Breach of Trust done by persons
who enjoy special trust is treated more harshly than breach of trust
committed by a stranger.
Cheating
 A person is said to cheat when he by deceiving another person
fraudulently or dishonestly induces the person so deceived to deliver
any property to him. Inducing a person to do or omit to do any thing
which he would not do or omit if he was not so deceived is also
cheating if the act or omission is likely to cause harm to that person
in body, mind or reputation.
Illustration
i) A, by falsely pretending to be in Civil Service, intentionally
deceives Z, and thus dishonestly induces Z to let him have on credit
goods for which he does not mean to pay. A cheats.
ii) A by pledging a stone as diamond which he knows is not diamond,
intentionally deceives Z and thereby dishonestly induces Z to lend
money. A cheats.
iii) A sells and conveys an estate to B. A knowing that he no longer
has any right over the property sells the same property to Z without
disclosing the fact of previous sale and receives money from Z. A
cheats.
 A willful representation of a fact with intent to defraud constitutes an
offence of Cheating. Duping Young girls and inducing them to
 consent to sexual intercourse based on a false promise of marriage
would attract the offence of cheating. In Sudhanshu Shekar v State
of Orissa the accused sexually exploited the prosecutrix and put
sindur on her acknowledging her as his wife but promised to publicly
accept her after he gets a job. But later he refused to accept her as his
wife. He was guilty of offence of Cheating.
However it is necessary to prove that the promise to marry by
the accused was false when he made it.
 The difference between offence of Cheating and Extortion is that in
extortion the consent is obtained by intimidation but in cheating it is
obtained by deception. If a person tricks another one to deliver him
money which is subsequently misappropriated the offence would be
cheating. The offence will not amount to CBT because element of
entrustment is absent.
 It is necessary for the offence of Cheating to be made out that, at the
time of inducement the accused knew that his representation was
false and it was made with the intention of deceiving the other person.
If this is not proved the dispute is only civil in nature. The
complainant has to show that at the time alleged false representation
was made or the inducement was offered by the accused, the accused
had no intention of honoring the same. If the accused had no intention
to pay, but merely said that he would do so in order to induce the
complainant to part with the goods, then a case of cheating could be
established.
 In Swami BSSVVV Maharaj v State of AP the representation made by
the accused was that he had divine healing powers through his
touches and therby he induced the complainant to shell out money
was held to be dishonest inducement. In such cases Court shall
presume Cheating and the burden of proof is upon the accused to
rebut the presumption.
 Section 415 defines the offence of cheating which is made punishable
by Section 417 and 420. Section 417 provides punishment for simple
case of cheating where by person induced has not part with property.
Section 420 deals with cheating whereby a person is dishonestly
 induced to deliver any property or where he is induced to alter or
destroy a valuable security.
 Section 417 provides for imprisonment for a term which may extend
to a year but an offender under Section 420 becomes liable for
imprisonment upto 7 years.
 Section 416 deals with cheating by personation. A person is said to
cheat by personation if he cheats by pretending to be some other
person or by knowingly substituting one person for another. The
offence is committed whether the individual personated is real or
imaginary person. Section 419 deals with punishment for cheating by
personation – 3 years imprisonment

Mischief
 Mischief is defined in Section 425 of IPC. It means causing
destruction of property or any change in its situation that destroys or
diminishes it value or utility with the intention or knowledge that he
is likely to cause wrongful loss or damage to public or to another
person. It is punishable under Section 426- Imprisonment upto 3
months.
Illustration
i) A causes cattle to enter upon a field belonging to Z, intending to
cause and knowing that he is likely to cause damage to Z’s crop. A
has committed Mischief.
ii) A voluntarily throws into river a ring belonging to Z, with the
intention of thereby causing wrongful loss to Z. A has committed
mischief.
iii) A voluntarily burns a valuable security belonging to Z intending
to cause wrongful loss. A has caused Mischief.
 The mere fact that any loss or damage was caused to the property
would, by itself, not be sufficient cause to constitute mischief, unless
the intention of the offender was to cause wrongful damage or there
was knowledge that a particular act will result in wrongful loss or
damage. For ex a person who blocks the canal through which
complainant had a right to take water to his own land would be liable
for mischief.
 In Byomkesh Bhattacharya v Lakshmi Narayan the accused persons
prevented supply of water to the complainant’s house by using a
valve. The question was whether this would amount to change in
property such that it diminishes the value or utility thereof. High
Court held that change in property does not necessarily mean a
change in character, composition or form. It was clarified that if
something is done to the property contrary to its natural use and
serviceability that destroys or diminishes its value or utility, it will
amount to mischief. Here stoppage of water resulted in diminution
of value of pipe line and hence mischief was committed.
Aggravated forms of Mischief
 Section 429 - Mischief by killing or maiming cattle or animal of value
of 50rs and upwards – Imprisonment upto 5 years
 Section 430 – Mischief by causing diminution of supply of water –
Imprisonment upto 5 years
 Section 431 – Mischief by making any road, river, bridge etc less safe
for travelling – Imprisonment upto 5 years
 Section 434 – Mischief by destroying or moving a landmark fixed
by public authority – Imprisonment upto one year
 Section 436 - Mischief by fire or explosive substance on a place of
worship, or a place of human dwelling or a place used to store
property – Imprisonment for life.
 Section 440 – Mischief committed after preparation to cause death,
hurt or wrongful restraint – Imprisonment upto 5 years.

Criminal Trespass
 Section 441 IPC defines the offence of Criminal Trespass. Whoever
enters into or upon property in possession of another with intent to
commit an offence or to intimidate, insult or annoy any person in
possession of such property is liable for the offence of Criminal
trespass. If a person having lawfully entered into property,
unlawfully remains there with intent to commit an offence or with
intent to intimidate, insult or annoy any person in possession of such
property is said to commit criminal trespass.
 Criminal trespass depends upon intention and not upon the nature of
the act. For example if a person with intent to save his family and
property from imminent destruction commits criminal trespass on his
neighbor’s land he is not guilty of criminal trespass.
 A enters a house with intention of committing theft. However moved
poverty of the house he leaves. A will be liable for criminal trespass.
 The punishment for criminal trespass is discussed in Section 447.
Whoever commits criminal trespass shall be punished with
imprisonment upto 3 months or fine or with both.
Aggravated forms of Criminal Trespass
 Section 442 – House trespass
If any person commits criminal trespass by entering into or remaining
in any building, meant for human dwelling, or for custody of property
or as a place of worship, then he is liable for the offence of House
trespass.
Section 448 discusses the punishment for House trespass. Maximum
period of imprisonment is one year.
 Section 443 – Lurking House trespass
 House trespass is committed after taking precautions to conceal his
identity or presence from the person who has a right to exclude or
eject him.
 Section 444 discusses lurking house trespass by night. Whoever
commits lurking house-trespass after sunset and before sunrise, is
said to commit lurking house-trespass by night.
 Section 445 discusses House-breaking. A person is said to commit
house-breaking if he effects his entrance or quits the house, in any of
the 6 ways described herein:
i) If he enters or quits through a passage made by himself.
A commits house-trespass by making a hole through the wall of Z’s
house. A has committed House-breaking
ii) If he enters or quits through any passage not intended by any
person for human entrance.
A commits house-trespass by entering into Z’s house through a
window. A has committed House-Breaking
iii) If he enters or quits through any passage which he has opened in
order to committing of any house-trespass by any means by which
that passage was not intended by the occupier of the house to be
opened.
iv) If he enters or quits by opening any lock in order to committing
of house-trespass
A commits house-trespass by entering Z’s house through the door
having opened a door which was fastened. A has committed house-
breaking.
v) If he effects his entrance or departure by using criminal force or
committing assault
Z is standing in door way. A forces a passage by knocking Z down
and commits house-trespass by entering the house. This is house-
breaking.
vi) If he enters or quits by any passage which he knows to have been
fastened against such departure or entrance and to have been
unfastened by himself or any abettor.
 Section 446 discusses House-breaking by night. Whoever commits
house-breaking after sunset and before sunrise is said to commit
house-breaking by night.
Defamation
 Section 499 IPC defines the offence of Defamation. The ingredients
of the offence of defamation are :
i) making or publishing an imputation concerning any person
ii) means of such imputation are words, writing, signs or visible
representation
iii) such imputation must have been made with the intention of
harming the reputation of that person or with the knowledge that such
imputation will harm his reputation.
 Reputation is the estimation in which a person is held by others. A
person’s own opinion of himself is not his reputation but it rather
means the opinion of others about him. It is the opinion of community
against a person. The esteem in which one is held in the society is
one’s reputation.
 Publication is one of the most essential ingredients of defamation. A’s
communication of defamatory matter about B, directly to B will not
be publication. On the other hand, when A says something or writes
something disparaging about the character of B to C, A has published
something disparaging. Making a defamatory statement and
communicating it to a person other than the person concerning whom
it is written is said to be publication.
 In England, slander is criminally actionable only when it is seditious
or blasphemous. Libel is criminally actionable only when it has
tendency to provoke breach of peace. The IPC recognizes no such
distinction and both are punishable if there is publication of
defamatory material.
 The term publication includes repetition or republication of a libel
already published. IPC makes no exception in favour of a second or
third publication as compared with the first. The
 The publisher of a defamatory matter is responsible even though he
republishes the defamatory matter.
 Publication can be by i) words spoken ii)written 3)signs and 4)visible
representation. Visible representation would include a statue, a
caricature, and effigy etc.
Explanation I
It may amount to defamation to impute anything to a deceased
person, if the imputation would harm the reputation of that person if
living and is intended to be hurtful to the feelings of his family or
other near relatives.
Explanation II
It may amount to defamation to make an imputation concerning a
company or an association or collection of persons. Defamation of an
unidentifiable class does not come within the ambit of this
explanation. If a person were to describe lawyers as thieves or police
force as corrupt, there would not be
defamation because the class is too large and the generalization too
sweeping to affect any of its members. The alleged defamation could
not be referred to a determinate or identifiable section or class of
lawyers as distinguished from the rest of the members of lawyers’
fraternity.
 Contrary to the general rule that anyone can file a criminal complaint
irrespective of whether the complainant is the victim or not, in case
of defamation the complaint can be filed only by the aggrieved party.
Explanation 3 - Defamation by innuendo
 An imputation in the form of an alternative or expressed ironically,
may amount to defamation. When the particular passage is prima
facie non-defamatory, the complainant can show that it is really
defamatory of him from the circumstances and nature of the
publication. Prosecution should establish that words though innocent
in appearance, were intended in a defamatory sense. The explanation
by which the passage is said to be defamatory is called innuendo.
Explanation 4
 No imputation is said to harm a person’s reputation unless that
imputation lowers the intellectual or moral character of that person,
or lowers the character of that person in respect of his caste or calling,
or causes it to be believed that body of that person is in a loathsome
state.
Exceptions Provided in Section 499
 The 10 exceptions to Section 499 state the instances in which an
imputation prima facie defamatory, may be excused. They are
occasions when a man is allowed to speak out or write matters, which
would ordinarily be defamatory.
i) Imputation of truth for public good
No amount of truth will justify a libel unless it is established that its
publication is for public good. Truth when set up as a defence must
extend to the entire defamation and not only a part of it.

ii) Fair criticism of Public Servants

Any person occupying a public position renders himself open to
criticism for his actions while discharging his functions. Such
criticism must be in good faith and it must relate to actions of Public
Servants. Good faith presupposes a reasonable degree of care and
caution in making an imputation. The criticism to be fair must be
based on facts truly stated and it must be an expression of writers real
opinion made in good faith. Section 52 of IPC defines good faith.
Nothing is said to be done in good faith which is done without due
care and attention. However if the facts upon which the publication
is sought to be excused, do not exist, the foundation of plea fails. A
Man cannot invent facts and comment upon the facts so invented.
iii) Fair comment on public conduct of men other than public servants
This exception deals with men who do not occupy any office

but may play an active role in opposing or supporting the measures

in which community is developed in. The conduct of publicists can
be commented upon in good faith. The accused should prove that his
expression of opinion was fair and honest and the alleged fact on
which opinion was based was true.
iv) Report of Proceedings of Courts of Justice
The report should be made without malice and it should be fair and
accurate. The report should be a substantially true one.
v) Comment on Cases
This exception protects bona fide comments on cases adjudicated, but
not when they are still sub-judice. It is open to one to show that error
was committed by Judges or jury. The comments must be confined to
the merits of the case, conduct of parties, and the expression must be
in good faith. A critic cannot call a judge a fool but he can point out
that judge had misunderstood or misapplied the law.

vi) Literary Criticism

The object of this exception is that public should have the benefit of
free criticism of all public performances submitted to its judgment.
The author should have published his work which means he has
impliedly invited public criticism. The criticism must relate to merits
of the performance and it must be made in good faith.
A says of a book published by Z “Z’s book is foolish; Z must be a weak
man.” A is within the exception if he makes the comment in good
faith.
vii) Censure by one in authority
It allows a person under whose authority others have been placed
either by their own consent or by the law, to censure in good faith
those who are placed under his authority.
A HOD censuring those under him in good faith; A parent censuring
a child in good faith in presence of other children; a teacher
censuring a student in front of other students; a judge censuring in
good faith the conduct of a witness etc.
viii) Accusation preferred in good faith to authorised person
This refers to a complaint made to a superior officer about conduct of
his subordinate. The accusation must be made to a person who has
authority over the party accused and the accusation must be preferred
in good faith.
 A is complaining about the conduct of B who is a servant of Z, to Z.
ix) Imputation made in good faith by person to protect his or other’s
interest
It covers cases of caution intended for good of the person to whom it
is conveyed or for public good in good faith. In Harbhajan Singh v
State of Punjab the accused published an article alleging that the
CM’s son was a leader of the smugglers and the cases against him
were being shelved up. The accused was able to prove the elements
of good faith and public good.

Since both the elements were proved SC acquitted the accused.

A, a shopkeeper in good faith warns B who manages his business –
“Sell nothing to Z unless he pays ready money for I have no opinion
of his honesty”
A , a Magistrate in making a report to his own superior casts an
imputation on the character of Z in good faith. A is protected.
X) Caution intended for good of person to whom conveyed
A is warning his friend B that C his dismissed servant, who now seeks
employment under B is a dishonest man and ought not to be trusted.
A is protected as long as the caution was in good faith.
 Section 500 IPC states that whoever defames another shall be
punished with simple imprisonment for a term which may extend to
two years or with fine or with both.
 Section 501 IPC criminalizes the act of printing or engraving matters
with the knolwedge that such matter is defamatory – 2 years
imprisonment.

 Subhramanian Swamy v UOI – Section 499 was held constitutionally

valid and stated that criminalization of defamation was to protect
individual dignity and it is a reasonable restriction on the freedom of
speech and expression.
 In M.J.Akbar v Priya Ramani former Union Minister M.J.Akbar
prosecuted journalist Priya Ramani for criminally defaming him. At
the height of the #MeToo movement in 2018, Ms. Ramani accused
Mr. Akbar of sexual harassment. In response, he filed a criminal
defamation case against her in October 2018. Mr. Akbar claimed that
Ms. Ramani’s tweet and her article accusing him of sexual
harassment were defamatory, and lowered his reputation. He also said
that Ms. Ramani didn’t produce any evidence to prove her story.
However, Ms. Ramani pleaded truth as her defence in relation to the
allegations of sexual harassment against Mr. Akbar. Delhi Court
dismissed his complaint and acquitted Priya holding that “women
have the right to put their grievances in any platform of their choice
even after decades.”

OFFENCES AGAINST THE STATE

 Section 121 discusses the offence of waging war, or attempting to
wage or abetting waging of war against govt of India. All states have
the same right of preservation as their subjects. Any person taking
part in organised armed attack on the constitutional authorities and
the object of attack being subversion of Govt and establishment of
another in its place would be guilty of waging war. The offence is
punishable with death or imprisonment for life.
 In State of NCT of Delhi v Navjot Sandhu the imposition of
punishment of death on accused on who abetted Parliament attack
under Section 121 was held proper. Court held that the target chosen
was Parliament the objective behind which was to launch a war
against govt of India.
 Section 121 A - Conspiring to commit an offence under Section 121
or conspiring to overawe central or state govt - Imprisonment for
life
 Section 122 deals with collecting men, arms and ammunition with the
intention to wage war against the state. The offence is punishable with
imprisonment for life or for a term not exceeding 10 years.
 Section 124-A deals with the offence of Sedition. It means through
words or signs a person has brought or tried to bring hatred or
contempt towards the government. It means attempting to excite
disaffection towards the government. Explanations 2 and 3 clarify
that expressing disapprobation of measure of government without
exciting or attempting to excite hatred or contempt towards the
government do not constitute an offence under this section.
 In Kedarnath v State of Bihar the constitutional validity of Section
124-A was upheld. It was clarified that that words, deeds or writings
constituted would constitute an offence under Sect 124-A, only when
they had the intention or tendency to disturb public tranquility, to
create public disturbance or to promote disorder.
 Comments however strongly worded expressing disapprobation of
actions of government without inciting those feelings which generate
inclination to cause public disorder by acts of violence would not be
penal. Disloyalty to government established by law imply excitement
to public disorder or use of violence.
 In 1995, the Supreme Court, in Balwant Singh v State of Punjab,
acquitted persons from charges of sedition for shouting slogans such
as “Khalistan Zindabaad” and “Raj Karega Khalsa” outside a cinema
after Indira Gandhi’s assassination. Instead of looking at the
“tendency” of the words to cause public disorder, the Court held that
mere sloganeering which evoked no public response did not amount
to sedition, for which a more overt act was required; the accused did
not intend to “incite people to create disorder” and no “law and order
problem” actually occurred.
 Sedition or attempt to cause sedition is punishable by imprisonment
for life or with imprisonment which may extend to 3 years.

Offences against Public Tranquility

 Section 141 deals with unlawful assembly. An assembly of 5 or more
persons is designated an unlawful assembly if the common object of
that assembly is:
1) to overawe by criminal force central/state govt or any public
servant in exercise of his powers
II) To resist the execution of law or legal process
III) To commit mischief, criminal trespass or any other offence
IV) By criminal force to take or obtain possession of any
property or to deprive any person of any incorporeal right
V) By criminal force to compel any person to do what he is
not legally bound to do or to omit what he is legally entitled to do.
 Section 142 makes it clear that if a person remains in an
unlawful assembly after he became aware that the assembly was
unlawful, he shall be deemed to be a member of unlawful assembly.
In order to attract Sect 142 one should either intentionally join an
assembly knowing that it is an unlawful assembly or continue to be a
member after being aware of the fact that an assembly though not
unlawful at its inception has subsequently turned out to be so.
Continues means physical presence with the knowledge of unlawful
character of the assembly.
 Section 143 states that whoever is a member of an unlawful assembly,
shall be punished with imprisonment which may extend to 6 months.
 Section 146 defines the offence of Rioting. Whenever force or
violence is used by a member of an unlawful assembly every member
of such assembly is guilty of offence of rioting. Section 147 states
that whoever is guilty of rioting shall be punished with imprisonment
which may extend to 2 years.

 Section 149 states that every member of the unlawful assembly is

guilty of offence committed in prosecution of the common object or
the act done was something which the accused knew would be likely
to be committed in prosecution of common object. Prosecution need
not establish any specific overt act to any of the accused for fastening
liability with aid of Section 149.
 In K.C.Mathew v State of Travancore-Cochin people gathered at
dead of night with crackers, sticks and choppers to rescue persons
who were guarded by armed police. It was held that they must have
known that murder will be committed and conviction for murder-
cum-rioting was justified.
 An assembly which at its commencement is lawful, may
subsequently become unlawful. The expression in prosecution of
common object is interpreted as meaning in order to attain the
common object. Common object is determined keeping in view the
nature of the assembly, arms carried by members and behaviour of
members at or near the scene of incident.
 Section 153A criminalizes promoting enmity between classes.
Whoever by words signs or visible representations promotes or
attempts to promote disharmony or feelings of enmity between
different groups on grounds of religion, race, place of birth residence,
language caste or community or does any act which is prejudicial to
maintenance of harmony between different groups will be liable
under this section.
 In Bilal Kaloo v State of AP the accused was member of a group
whose ultimate aim was to liberate Kashmir from India. He was
accused of propagating that in Kashmir, Muslims were being
subjected to atrocities by Indian Army. However SC identified that
Sect 153A cannot be invoked because ‘he was merely inciting the
feeling of one community without any reference to any other
community or group.’
 Section 153B – whoever by words or by signs imputes that any class
of persons by reason of their religion language or caste cannot be
faithful to the Constitution of India or cannot uphold integrity of India
shall be imprisoned with a term of 3 years.

 Section 159 defines the offence of Affray. When two or more

persons, by fighting in a public place, disturb the public peace, they
are said to commit an “affray.” It is punished by one month
imprisonment. (Sect 160).To constitute Affray fighting must take
 place in a public place. The place where the public are in the habit of
going is deemed to be public for the purposes of this offence. A
railway platform, a theatre hall, a public urinal, a market, a public
ferry and a passenger train are all public places.
Some fight at public place is necessary to constitute the
offence. Mere exchange of abusive, threatening words without
exchange of blows does not amount to fight. Fighting means quarrel
accompanied by a use of force. Such fighting must disturb public
peace also by creating a general alarm.
An affray cannot be committed in a private place unlike a riot.
A Riot requires a minimum of 5 pesons but affray requires only 2
persons. Riot can happen only when there is an unlawful assembly.
FALSE EVIDENCE
 Section 191 defines the offence of False evidence. Whoever being
legally bound by an oath or by an express provision of law to state
the truth, or being bound by law to make a declaration upon any
subject, makes a statement which is false or which he does not believe
to be true is said to give false evidence.
A being bound by an oath to state the truth, states that he believes a
certain signature to be of the handwriting of Z, when he does not
believe it to be the handwriting of Z. A has given false evidence.
The falsity of the statement must be known to the maker at the time
of making of the statement. The burden of proving falsity of
statement is on the prosecution.
 Section 192 defines the offence of fabricating false evidence. It
means causing any circumstance to exist, or making any false entry
in any book or record or making a document containing a false
statement with the intention that it may appear as

evidence in a judicial proceeding or in a proceeding taken by law

before a public servant or an arbitrator. Such an act is done with the
intention that it may cause any person who in such proceeding is to
form an opinion upon the evidence, to entertain an erroneous opinion
touching any material point.
 A puts jewels into a box belonging to Z, with the intention that they
may be found in that box, and that this circumstance may cause Z to
be convicted of theft.
The evidence fabricated must be intended to be used in a judicial
proceeding and the offence is complete as soon as fabrication is
complete. It would be immaterial that the proceedings had not
commenced or the evidence fabricated has not been actually used.
 Section 193 – Punishment for giving/fabricating false evidence to be
used in a judicial proceeding – 7 years imprisonment
Punishment for giving/fabricating false evidence in any other case –
3 years imprisonment.
OFFENCES AGAINST PUBLIC JUSTICE
 Section 201 deals with causing disappearance of evidence, or giving
false information to screen offender. The accused had knowledge that
an offence has been committed and i)he caused disappearance of
evidence of commission with the intention of screening the offender
or ii) he had given false information with the intention of screening
the offender.
In Suleman Rahiman v State of Maharashtra the accused who was
driving a jeep struck the deceased as a result of which he sustained
serious injuries. The accused cremated the body of the victim and he
was charged with Section 304A and 201 IPC. Since there was no
evidence to show that the accused had driven the jeep in a rash
manner no offence under Sect 304 A was made out. When no offence
under Sect 304A was made out there was no question of causing
disappearance of evidence by cremating the body.
 In Kalawati v State of HP the accused Kalawati developed extra-
marital relationship with another person and this person murdered her
husband. Kalawati made a statement that some unknown dacoits had
invaded her house, killed her husband and robbed her of her jewels.
Kalawati was acquitted of the charge of murder but she was held
liable for the offence under Section 201. SC clarified that “Sect 201
is not restricted to case of a person who screens the offender it can
be applied to a person guilty of the main offence, though as a matter
 of practice, a court will not convict a person both of main offence and
under Sect 201.”
 The accused would be punished depending on the seriousness or
graveness of crime. If the offence from which offender is shielded is
one punishable by death, then imprisonment of 7 years can be
imposed. If the offence screened is punishable with Life
Imprisonment, then sentence prescribed is imprisonment upto 3
years. If the offence shielded is one in which punishment prescribed
is less than 10 years then sentence prescribed is 1/4 th part of longest
term of imprisonment.

OFFENCES AFFECTING PUBLIC HEALTH DECENCY AND

MORALS
 Section 268 defines the offence of Public Nuisance. Public nuisance
is a common annoyance and it cannot be excused on the ground that
it causes some convenience. In Public Nuisance the act or omission
causes any common injury or danger to people in general or who
dwell or occupy property in the vicinity, or it can be an act/omission
which necessarily cause injury, obstruction danger or annoyance to
person who may have occasion to use any public right.
 It is no defence to a charge of public nuisance that act was done in
one’s own property or that it had been done from time immemorial.
Public nuisance is based on the principle embodied in civil law sic
utere tuo ut rem publicum non laeds which mean enjoy your property
in such a way as not to injure the rights of the public.
 The actual causing of injury is not necessary. It is sufficient if the act
or illegal omission is of such a nature that it must necessarily cause
injury, danger or annoyance to anyone who may have the occasion to
use a public right, such as persons entitled to use a highway or a
navigable river.
 Even a lawful trade may sometimes become a nuisance, if it interferes
with the comfort and peace of the neighbours or if it becomes a health
hazard. In Gobind Singh v Shanti Sarup a baker had constructed an
 oven and a chimney where he baked his products. Smoke emitted by
the chimney was very high and a very strong wind could carry the
flames over a distance and cause a conflagration. It was held to be
injurious to health of the people.
 The negligent blasting of stone in a quarry so as to endanger safety
of persons living in the vicinity is a public nuisance. In Byramji
Edalji’s case certain Jains complained against the accused’s act of
cutting meat on the verandah of his house in
sight of the complainants who were neighbours of the accused. The
exposure of meat although revolting to feelings of Jains, was held to
be not sufficient to constitute a nuisance. But if in such a case the
slaughter had been made in public, so that groans and blood of
slaughtered beasts heard and seen by passerby, such an act would
constitute the offence of Public Nuisance.
 In K Ramakrishnan v State of Kerala, the Kerala High Court held that
tobacco smoking in public places in the form of cigarettes or beedis
falls within the mischief of Public Nuisance. Relying on Article 21 of
Indian Constitution, the High Court declared that public smoking of
tobacco is unconstitutional.
 If any portion of a public road is encroached upon, it would cause
obstruction to persons who may have occasion to use the highway
and the act would constitute Public Nuisance. If a prickly pear is
allowed to be spread on the road used by public it would amount to
public nuisance. One who appropriates a
part of a street by building over it or one who fills up a drain or a
person who places bamboo stockade across a navigable river
obstructing the passage of river etc would constitute the act of
Public Nuisance.
 Nuisance are of 2 types, Public or Private. Public nuisance will affect
the public and cause annoyance to all citizens while private nuisances
are those which are done to hurt or cause annoyance to another or the
lands of other. Since Private Nuisance affects only certain persons
they do not form the subject matter of public prosecution. Where
however, besides being injurious to a private person they are
 detrimental to the public, they are treated as Public Nuisance and are
punishable by Public Prosecution.
 Section 269 - Negligent Act likely to spread infection of disease
dangerous to life – Imprisonment upto 6 months.
 Section 279 – Rash driving or riding in a public way – 6 months.
Obscenity
Section 292 and 293 deals with obscenity. Section 292 (1) explains
the scope of obscenity and 292(2) punishes a person who sells,
distributes, or publicly exhibits an obscene book, pamphlet, painting
drawing etc.
Section 292(1) says that a thing is obscene if it has the tendency to
deprave and corrupt those whose minds, who are likely to see, read
or hear it.
In Bobby International v Om Pal Singh Hoon there was a demand to
ban exhibition of film Bandit queen on the ground that it showed
scenes of rape and nudity. SC held that scenes of rape and nudity
shown in the film did not amount to obscenity as they were not
intended to arouse prurient or lascivious thoughts but revulsion
against perpetrators and pity for the victim.
 The test for obscenity was laid down by the SC in the case of Ranjit
D Udeshi v State of Maharashtra. Hicklin’s test laid down in Rv
Hickin was adopted as the test for obscenity. Hicklin’s test said that
if the matter has a tendency to deprave and corrupt the minds of
those who are open to such immoral influences then it is obscene.
However in Aveek Sarkar v State of W.B this test was
substituted for Contemporary Community Standard Test. In this case
Sports World a widely circulated magazine in India reproduced an
article with a photograph where world renowned Tennis Player Boris
Becker had posed nude with his fiancee to send out a message against
Apartheid. A complaint was filed alleging that unless these kind of
obscene photographs are censured and banned the dignity of the
womanhood would be in jeopardy. SC clarified that the photograph
should be appreciated in the light of message it wants to convey and
there
 nothing obscene about it. They also held that Hicklin test is not the
correct test to be applied and obscenity is something which has to be
determined from point of view of an average person, by applying
contemporary community standards. Only those materials which
have a tendency to excite lustful thoughts can be held to be obscene
but it will be judged from view point of an average man.
 Offence under Section 292 is punishable with imprisonment upto 2
years and upon subsequent conviction the punishment can go upto 5
years.
 Section 292 contains certain exceptions they are:
a) publication, painting, representation, writing etc for public good as
it is in the interest of science, literature or art
b) any representation sculptured engraved, painted in any ancient
monument or in any temple.

OFFENCES RELATING TO RELIGION

 Section 295 deals with destruction, damage or defilement of any
place of worship, or any object held sacred by a class of persons. Such
destruction must be done with the intention of insulting the religion
of a class of persons or with the knowledge that a class of persons is
likely to consider such destruction an insult to their religion.
Punishment can be given upto 2 years.
 Section 295-A deals with deliberate and malicious acts intended to
outrage religious feelings of any class, by insulting its religion or
religious beliefs. The insult or attempt to insult can be by words either
spoken or written or by signs or by visible representation.
The Court has reiterated in many cases that the basic requirement of
Article 295-A is that the accused must act deliberately or maliciously.
Where a person willfully does an act which is injurious to another
without lawful excuse, it is said he has done the act maliciously.
Offence under Section 295A shall be punished with imprisonment for
a term which may extend to 3 years.
 Section 296 deals with disturbing the performance of a lawful
religious assembly. The assembly may be engaged in the performance
 of religious worship or religious ceremonies. A religious procession
is also regarded as lawful assembly engaged in performance of
religious worship. This section does not cover individual worship.
Offence is punishable with imprisonment up to one year.

OFFENCES RELATED TO DOCUMENTS

FORGERY
 Section 463 defines the offence of Forgery. It is defined as making
of a false document or false electronic record with intent to cause
damage or injury to public or any person, or to support any claim or
title, or to cause any person to part with property or with the intent to
commit fraud.
 Making of a false document is defined in Section 464. 1)A person
who makes signs, seals or executes a document or part of a document
with dishonest or fraudulent intention has made a false document 2)
A person who without lawful authority dishonestly or fraudulently
alters a document in any material part after it has been made or
executed by another person has has made a false document 3) A
person who dishonestly or fraudulently causes any person to sign,
seal or alter a document knowing that such person by reason of his
unsoundness of mind
Intoxication cannot understand the contents of the document or
the nature of alteration has made a false document.
Illustrations
◦ A has a letter of credit upon B for rupees 10,000 written by Z. A
in order to defraud B, adds a cipher and makes the amount
1,00,000. A has committed forgery.
◦ A, without Z’s authority affixed Z’s seal to a document purporting
to be a conveyance of an estate from Z to A. A has committed
forgery.
◦ A leaves with B his agent a cheque on a banker wihout inserting
the sum payable and authorizes B to fill up the cheque with a sum
 not exceeding Rs.10000. B fills up the cheque by inserting twenty
thousand rupees. B has committed the offence of forgery.
◦ Z’s will contains a direction to divide his property between A, B
and C. A dishonestly scratches out B’s name. A is liable for
forgery.

 Z dictates his will to A. A intentionally writes down a different

legatee from the one named by Z and represents to Z he has
prepared the will according to his directions, thereby inducing him
to sign the will. A has committed the offence of forgery.
 A writes a letter and signs it with B’s name without B’s authority,
certifying that A is a man of good character and uses it to obtain
alms. A has committed the offence of forgery.
 Explanation 1 – A man’s signature of his own name may amount to
forgery. For ex; A signs his own name to a bill of exchange, intending
that it may be believed that bill was drawn by another person of the
same name.
 Explanation 2 – The making of a false document in the name of a
fictitious person, intending it to be believed that the document was
made by a real person, or in the name of a deceased person, intending
it to be believed that document was made by person in lifetime, may
amount to forgery.

 In G.S.Bansal v Delhi Administration the father of the accused had

deposited some amount as security to obtain a licence to ration depot.
The accused after death of his father, affixed signature of his Father
to the form demanding return of security amount and received the
amount. He was charged with the offence of Forgery. SC held that
there were 2 ways by which he could obtain the money i) after
obtaining a succession certificate he could make an application ii)
after waiting for a period of 3 months he could satisfy the Post Master
 General about it complete formalities and recover money. SC noted
that in the first way he would incur expense to obtain succession
certificate and in the second he would have to wait for 3 months.
Thus by circumventing the process accused gained both financially
and also ‘non-economic advantage’. So here he had made the
document both dishonestly and fraudulently and he was liable for
Forgery.

 Section 465 - Punishment for Forgery – Imprisonment up to 2 years

 Section 466 deals with forgery of following type of documents:
a) Court recordings and Pleadings
b) Register of Birth, death, baptism, marriage or register kept by a
public servant
c) Certificate or document purporting to be made by a public
servant in his official capacity.
d) Power of Attorney
Imprisonment upto 7 years.
 Section 467 – Forging a document which purports to be a valuable
security or will, or which give authority to any person to make or
transfer any valuable security or which gives authority to any person
to receive the principal, interest or dividends on a valuable security
is punishable by life imprisonment.

ASSAULT AND CRIMINAL FORCE

 Criminal Force is defined in Section 350 IPC. Criminal Force is said
to be used over a person when intentionally he is subjected to force
without his consent, with intention to commit an offence, or with
intention to cause injury, fear or annoyance to him.
Illustration
 Z is sitting in a moored boat. A unfastens the moorings and causes
the boat to shift down the stream. If A has done this without Z’s
consent in order to commit any offence or knowing that he is likely to
cause annoyance, injury or fear he has used criminal force on Z.
 Z is riding a horse. A lashes at Z’s horse without Z’s consent and it
quicken its pace. Here A has caused change of motion to Z by
inducing the animal and A has used criminal force on Z.
 A incites a dog to spring upon Z, without Z’s consent. Here if A intends
to cause injury, fear or annoyance to Z, he uses criminal force

 Assault is defined in Sect 351 IPC. Any person who makes any
gesture, knowing it to be likely that such gesture will cause the other
person to apprehend use of criminal force is said to commit an assault.
Mere words do not constitute assault. But use of words accompanied
with gesture and preparation may cause another to apprehend that
criminal force is about to be used.
 There must be some threatening physical act done by the accused by
which he causes another to apprehend that criminal force is about to
be used against him. The person threatening must be in a position to
carry his threat into effect. Assault is something less than the use of
criminal force. In assault there is merely apprehension of use of force
and no use of actual force.
 Sect 352 – Assault or criminal force otherwise than on grave
provocation – Imprisonment upto 3 months.
 Sect 353- Assault/ crimnal force to deter a public servant from
discharge of his duty – Imprisonment upto 2 years.
 Section 354 punishes whoever assaults or uses criminal force on any
woman with the intention or knowledge of outraging her modesty.
Punishment provided is 5 years imprisonment.
 The test for ascertaining whether modesty has been outraged is
whether the action of the offender is capable of shocking the sense of
decency of a woman. What constitutes modesty is nowhere defined.
It is a virtue attached to a woman owing to her sex.
 In State of Punjab v Major Singh the victim was a seven and a half
months old child. It was argued before the Court that since the Child
concerned had not developed sufficient sex instinct, it could not be
said that her modesty was violated. SC refused to buy this contention.
It held that “she may be an idiot, she may be under the spell of
 anaesthesia, she may be sleeping, she may be unable to appreciate the
significance of the act, nevertheless the offender is punishable. It was
also held from the very birth she possess the modesty which is the
attribute of her sex.
In R.D Bajaj v KPS Gill & Anr the petitioner was an IAS officer.
During a party the accused touched her inappropriately. The HC
quashed the FIR on the ground that the kind of harm allegedly
caused was trivial in nature and Sect 95 was attracted. SC held that
quashing of FIR was illegal and held that when an offence relates to
modesty of a woman, under no circumstances could it be termed as
trivial.
 Section 354-A deals with sexual harassment and punishment for
sexual harassment. It criminalizes the following offences:
1) Physical contact and advances involving unwelcome and explicit
sexual overtures
2) A demand or request for sexual favours
3) Showing pornography against the will of the woman
4) making sexually coloured remarks.
The offences from Sub-section (1) to (3) shall be punished with
imprisonment which may extend to 3 years and offence under Sub-
section (4) is punished by one year imprisonment.
 Section 354B criminalizes the use of criminal force with the
intention of disrobing a woman. The minimum punishment is 3
years but maximum is 7 years.
 Section 354C punishes the offence of Voyeurism. It provides that any
man who watches or captures the image of a woman engaging in a
private act commits an offence. Private act includes an act of
watching carried out in a place which in the circumstance woud
reasonably be expected to provide privacy.
Explanation 2 makes it clear that where the victim consents to
capture the images or any act, but not to their dissemination to third
persons and where such image or act is disseminated, such
dissemination shall be an offence under this section.
 Upon first conviction the minimum punishment provided is one year
and it may go upto 3 years and on subsequent conviction the
minimum punishment is 3 years and it may extend to 7 years.
 Section 354D punishes the offence of Stalking. Any man who
follows a woman and contacts or attempts to contact such woman to
foster personal interaction repeatedly despite a clear indication of
disinterest by such woman would be criminally liable. Also any man
who monitors the use by a woman of internet, e-mail or any other
form of electronic communication is also made liable for this offence.
 Upon First conviction he shall be punished for a period of 3 years and
upon subsequent conviction he shall be punished for a period of 5
years.
OFFENCES RELATED TO MARRIAGE
 Section 493 – Cohabitation caused by a man deceitfully inducing a
belief of lawful marriage.
This Section punishes a man who induces a woman to think she is
lawfully married to him and as a result of which she submits herself
to cohabitation or sexual intercourse with him. The offence is
punishable for a term which may extend to 10 years.
 Section 494 punishes the offence of Bigamy. This section is
applicable to all religions except Muslims. In case of Muslims it
applies only to females but not to males because under Muslim
Personal Law a male can have 4 wives at a time but a female is not
permitted to have more than one husband at one time.
It requires the following ingredients: 1) Accused was already married
and that marriage was a valid one 2) the person whom he or she has
married is alive 3) Accused marries again

 In Sarla Mugdal v UOI the question whether a Hindu Husband would

be guilty of offence of bigamy under Sect 494 IPC, when he
originally married under Hindu Law and subsequently converts to
Islam and marries for a second time came up for consideration. SC
clarified that Spouses cannot escape liability under Sect 494 IPC by
resorting to conversion to Islam or any other religion. It was clarified
 that if a marriage is solemnised under a particular personal law, it
cannot be dissolved by the application of another personal law to
which one of the spouses converts. One spouse by changing his or
her religious beliefs cannot forcefully enforce his or her newly
acquired personal law on a party to whom it is alien. [Also refer Lily
Thomas v UOI]
 Section 497 criminalized the offence of Adultery. A man who is
having sexual intercourse with a married woman without the consent
of her husband was made liable for the offence of Adultery.

 In order to attract this Section the man should know or have reasons
to believe that such woman is the wife of another man. Another
requirement of law is that adultery complained of has not been
committed either with the consent or connivance of husband.
 The woman although married should be a willing partner to sexual
intercourse. If the accused has sexual intercourse without the consent
of woman then it would amount to rape. Section 497 expressly
exempted women from prosecution and from being charged as an
abettor. The contemplation of law was that the wife, who is having an
illicit relationship with another man is a victim.
 In Joseph Shine v UOI SC struck down the offence of Adultery. Loss
of moral commitment in a marriage creates a dent in the relationship,
but it is left to each individual to deal with the problem — some may
forgive while others may seek
divorce. Punishing the wife’s lover is unlikely to re-kindle
commitment, the judgment said. Section 497 treats a married woman
as the commodity of her husband, the Bench held. Adultery is not a
crime if the cuckolded husband connives or consents to his wife’s
extra-marital affair. Section 497 treats a married woman as her
husband’s “chattel”. The provision is a reflection of the social
dominance of men prevalent 150 years ago, the judgment said. The
Bench, held that Section 497 is based on the Doctrine of Coverture.
This doctrine, not recognised by the Constitution, holds that a woman
 loses her identity and legal right with marriage, is violative of her
fundamental rights.
 Section 498A deals with cruelty by husband or relatives of husband
towards a woman with the intention of coercing her to meet any
unlawful demands for any property. The object of Section 498A is to
prevent torture to a woman by her husband or relatives in connection
with demand for dowry.

 Section 498A, 304B of IPC and Section 113B was introduced in

Evidence Act for curbing the rampant evil of Dowry. Section 113B of
Evidence Act provides that if it was shown that soon before the death
of a woman she was subjected to cruelty or harassment by a person
in connection with demand for dowry, then it shall be presumed that
such person who harassed the woman had caused the death of the
person.
 The offence under Sect498A is restricted to only acts of commission
or omission done by the husband or his relatives. The ‘relative’ has
not been defined but a friend however close he is to the family of
husband, cannot be prosecuted under this section. Imprisonment
period – 3 years.
 In Reema Aggarwal v Anupam & Ors it was argued that a person
who marries another lady during the subsistence of his earlier legal
marriage is not ‘husband’ within the meaning of Sect 498A and hence
the second wife cannot invoke this section for
cruelty and harassment caused to her by him or relatives. However
SC rejected the contention and held any person who has undergone
some or other form of marriage and thereby assumed for himself the
position of husband can be made liable under Sect 498A.
In John Idiculla & Anr v State of Kerala it was held by the Kerala HC
if the second wife whose marriage is not strictly legal but she is
treated as wife by the Husband, relatives or society commits
matrimonial cruelty on legally wedded wife, she cannot be alleged to
 wriggle out of criminal liability under Sect 498A. She can be
considered as relative of the husband for the purpose of Sect 498A.
 The explanations to Sect 498A clarifies what amounts to cruelty. A)
any willful conduct which is likely to drive the woman to commit
suicide or to cause any grave injury or danger to life, limb or mental
or physical health of the woman is cruelty.
B) Harassment of woman with a view to coerce her or her relatives,
to meet unlawful demand for any property or valuable security, is
cruelty.
 Cruelty includes both mental and physical cruelty. What amounts to
cruelty is a question of fact. When there is no intent to on the part of
husband of a woman or his relatives to injure her, a conduct though
willful and hurts her feelings, does not amount to cruelty. The word
‘harassment’ means to torment a person through constant
intimidation. SC has clarified that Cruelty is a continuing offence
and hence every act of cruelty would be a new starting point of
limitation.
 In Sushil Kumar Sharma v UOI the constitutional validity of Sect
498A was challenged on the ground that it has been misused.SC
repelled the arguments and held mere possibility of abuse of a
statutory provision does not per se make a provision of law
objectionable and ultravires of the Constitution.

Criminal Intimidation and Annoyance

 Criminal intimidation (Sect 503) occurs when a person is threatened
with injury to person, reputation or property with the intent to cause
alarm to that person, or to cause that person to do an act which he is
not legally bound to do.
 Even though the offence of Intimidation is akin to offence of
extortion as defined in Sect 383, there exists several differences:
 i) In Extortion offence is committed in presence of offender.
In intimidation it need not be so.
ii) In extortion the delivery of property is the essence. In
intimidation there is no delivery of any property. The immediate
purpose is to induce the threatened person to do something.
 In order to be liable for criminal intimidation, injury threatened to be
caused must be illegal. Thus if a shopkeeper is threatened with
picketing it would amount to intimidation.

 Sect 506 describes the punishment for intimidation. Period of

imprisonment is 2 years. However the punishment can go upto 7
years of imprisonment if intimidation falls in following categories :
a) threat to cause death or grievous hurt
b) threat to cause destruction of property by fire
c) threat to cause offences punishable by death, Life
imprisonment or imprisonment which may
extend to 7 years.
◦ Section 504 – Intentional insult with intent to provoke breach of
peace – Imprisonment up to 2 years.
An act of insulting another by itself, does not amount to an
offence, unless it contains essential ingredient, the intention or
knowledge that the insult would provoke another person to cause
breach of peace or commit another offence.

Aadithya Menon
5th Semester BA
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