CONTENTS

UNIT - I INTRODUCTION
General
Definition of Crime
Doctrine of Mens Rea
Difference between Tort, Crime and Contract
General Explanations
Important Questions

UNIT-II GENERAL EXCEPTIONS AND SOME OFFENCES

General Exceptions
Abetment
Criminal Conspiracy
Offences Against Public Tranquility
False Evidence
Offence Affecting Public Health
Important Questions

UNIT-III OFFENCES AFFECTING THE HUMAN BODY

Offences Affecting Life
Hurt
Wrongful Restraint and Wrongful Confinement
Criminal Force and Assault
Kidnapping and Abduction
Sexual Offences
Unnatural OffencesImportant
Questions

UNIT-IV OFFENCES AGAINST PROPERTY

Theft, Extortion, Robbery & Dacoity
Criminal Misappropriation of Property
Criminal Breach of Trust
Cheating and Mischief
Criminal Trespass
Forgery, Making False Documents
Defamation
Important Questions
UNIT-V OFFENCES RELATING TO MARRIAGE
Special Provision for Women in IPC
Cruelty by Husband or Relatives of Husband
Criminal Intimidation, Insult and Annoyance
Attempt to Commit Offences
Important Questions
Suggested Readings
 UNIT - I
1. Indian Penal Code 1860 is the general penal code of India.
2. The first law Commission of India was constituted in 1834 under the Chairmanship of Lord
Macaulay. This Commission prepared the draft of IPC in 1837.
3. Sir Bernal Peacock and Sir J.W. Colwille revised the draft of IPC.
4. The code was passed on 6th Oct. 1860. It came into force w.e.f. 1st Jan 1862. The code came into force
w.e.f. 1st Oct, 1963 in Goa, Daman, Diu & Pondicherry.
5. The code applies to the whole of India except the state of J&K.

Preamble to the IPC - Whereas it is expedient to provide a general penal code for India, it is enactedas
follows:

The Preamble suggests that:

(i) The code is not exhaustive.
(ii) It is only a general penal code for India.

The Indian Penal Code consists of 511 sections. It defines certain crimes in an elaborative sense. For
convenience we can divide the code in to two parts.

General Provisions (Sec. 1-120)

Specific offences (Sec. 120 - 511)
GENERAL PROVISIONS (SEC. 1-120)

Territorial Sec-53-70 General

Abetment
Exception
Code

General Explanation
Intra Extra Sec. 6-32, 36
Territorial Territorial Sec. 39-52A
(Sec. 1,2) (Sec. 3,4) Joint Liability Sec. 34-38

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Specific Offences (Section 120A to 511)

Criminal Conspiracy (SS120-120B)

Offences Against the State (SS 121-130)

Offence related to Army, ASR, Navy, Force (SS 131-140)

Offence against Public Tranguility (SS 141-160)

Offences by or relating to Public Servants (SS 161-171)

Offence Related to Elections (SS 171 A-171)

Contempt of Public Servants (SS 172-190)

Giving False Evidence, offences Against Pub. Jus. (SS 1910229)

Specific Offences relating to Coin & Govt. Stamps (SS 2300263A)
Offences
Offences Affecting (1) Public Health (2) Safety,
Convenience (Decency & Moral (SS 268-294A)

Offence Related to Religion (SS 295-298)

Offence Against Human Body (SS 299-377)

Offence Against Property (SS 378-462)

Offence Relating to Document and to Property Marts (SS 463 489E)

Criminal Breach of Contract (SS490-492)

Offence Related to Marriage (SS 493-498)

Defamation (SS 499-502)

Criminal Intimidation, Insults, Annoyance (SS 503-510)

Attempts to Commit Offences (SS 511)

DEFINITION OF CRIME

Crime is what the State has by an act of legislature definitely declared as punishable.

The I.P.C. nowhere defines what is Crime. A crime can be said to be an act of commission or omission, contrary to
law, tending to the prejudice of community for which punishments can be inflicted as the result ofjudicial proceeding.
It tends directly to the prejudice of community, while torts tend more directly and immediately to the prejudice of a
private right.

To define Crime is a task which so far has not been satisfactorily accomplished by any writer. So, it would beappropriate
to examine some of the definitions in order to understand the crime in correct Perspective.

"Commentaries on the Laws of England" define crime as - "An act committed or omitted in violation of public law
forbidding or commanding it."

Blackstone - "Acrime is a violation of public rights and duties to the whole community."

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Stephen - modified the definition of Blackstone as - "A crime is a violation of right considered in reference to the evil
tendency of such violation as regards the community at large."

This definition is not fully free from error, it narrows the scope of crime.

The definition given by Blackstone and Stephen further stresses that crimes are those breaches of laws which injure
the community.

Romans define crime as "delicta publica" (Public wrong) and criminal trial as "judica publica (Public Justice).

Kenny pointed out that "all the acts that are injurious to the community are not necessarily crimes." One who commits a
wrong is said to be liable for it. Liability is bond of necessity that exists between wrongdoer and the remedy for wrong.
Penal liability arises when the following two conditions exist -

1. Actus Reus (Guilty Mind)

2. Act Done or Committed

DOCTRINE OF MENS REA

Guilty mind (Mens Rea): The fundamental principle of liability is that an act alone does not amount to acrime. It
must be accompanied by a guilty mind. The Latin maxim "Actus non facit nisi mens sit rea" is acardinal principle
of Criminal Law.

1. The Doctrine of mens rea is based on the Latin maxim "actus non facit nisi men sit rea"

2. The maxim means wrongful act must be done with a guilty mind and then alone criminal liability is to arise.

3. The doctrine originated when criminal law dealt with undefined offences. Today, the offences have been
precisely, strictly and accurately and statutorily defined. In that view of the matter the doctrine becomes
irrelevant or unnecessary in relation to defined offences.

4. Although the doctrine is unnecessarily concerning the defined offences, yet every such definition
incorporates the doctrine through some specific words or expressions forming part of the definition, saying it the
other way.

Doctrine of mens rea and the IPC

1. The doctrine has no general and direct application to the Indian Penal Code. Penal definitions aremeticulous,
precise and comprehensive under the code. Therefore, it is correct to say that there is no general application of the
doctrine.

2. Every penal definition under the act states the following two things:
a) The Act done by the accused person.
b) The required state of mind while doing that act.

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3. In view of the above, no room is left for application of general doctrine of mens rea. The definitions are almost
self sufficient. If the act of the accused falls within the four walls of the definition it would constitute an offence.

Exceptions to the doctrine of mens rea

1. Statutes creating strict liability constitute an exception to the doctrine of mens rea. The exclusionmay be
either express or by necessary implication.

2. Strict liabilities are created in consideration of public health, public safety, public welfare, matters offood and
drugs etc.

3. In the case of Sri Niwas Mal Bairdia, 1947, PC the privy council held that -

a) In case of absolute prohibition the question of means rea becomes irrelevant.

b) Liability without mens rea may be imposed only in exceptional and limited classes of offences and these
offence are comparatively of minor character.
4. In the case of Nathu Lal V/s State of M.P., 1966, Sc the Hon'ble Supreme Court held that.

a. Mens rea is an essential ingredient of an offence, but a legislature may enact a law and therebyexcuse the
requirement of mens rea regarding an offence or a class of offences.

b. Unless mens rea has been excluded expressly or impliedly, every penal provision has to be construed
in conformity to the doctrine of mens rea rather than against it.

c. Merely because a statute is directed to social welfare it cannot be decisively presumed that
requirement of mens rea has been done away with (no conclusive presumption).

d. In some cases, exclusion of mens rea may be presumed. Such a presumption can be raised wherethis is
absolutely clear from the statute that the subject of statute would otherwise be defeated.

5. There is yet another reason for exclusion of mens rea in cases of absolute or strict liability. Strict liability
may be imposed where it is difficult to prove mens rea.

DIFFERENCE BETWEEN TORT, CRIME AND CONTRACT

The wrongs which are completely less serious are considered to be private wrongs and have been labelled as civil
wrongs whereas more serious wrongs, have been considered to be public wrongs and are known as crimes.

According to Blackstone: Wrongs are divisible into two sorts or species - private wrongs and public wrongs. The
former are the infringement or deprivation of private or civil rights belonging to individuals and latter are breach and
violation of public rights or duties, which affect the whole community.

1) Since tort is considered to be a private wrong the injured party himself has to file a suit as a plaintiff. If at any
stage the injured party likes he may agree to a compromise with the tort feasor and withdraw the

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 suit filed by him.

2) In the case of crime, on the other hand, even though the immediate victim is an individual the criminal
wrong is considered be to a public wrong and criminal proceedings are therefore brought by the state and not by
the injured party. Moreover, in certain exceptional cases law does not permit a settlement in the criminal case
between the wrongdoer and the aggrieved party.

3) In the case of tort the ends of justice are met by awarding compensation to the injured party. In thecase of
crime the wrongdoer is punished. The idea of awarding compensation to the injured party under civil law is to
make good the loss suffered by him. The punishment under the criminal law protects thesociety by preventing
the offender from committing further offences and deterring him and other potential offenders from
committing further wrongs.

Sometimes, the same set of facts may constitute both a tort and a crime. The civil and criminal -remedies in such
a case are not alternative but they are concurrent. The wrongdoer may be required to paycompensation under
the law of torts; he may also be liable under criminal law. For example, if A digs a ditch on road resulting in
inconvenience to public at large A has committed the offence of public nuisance undersection 268 IPC. If X, a
passerby, falls into that ditch and thereby gets injured A's act also becomes a tort of private nuisance as against X. A
will be punished under criminal law for the offence of public nuisances, hewill also be liable to compensate X under
torts.

Object of Passing Act: The main purpose of passing this Act was to protect society from those people. ho either for
their benefit do those activities which directly or indirectly affect people at large and to preventthem. So it
became necessary to pass this code.

Title and extent of operation of the code: Section-

1. Section 1 provides-"This Act shall be called the Indian Penal Code, and shall extend to the whole ofIndia
except the state of Jammu & Kashmir."
2. Section 18 of IPC defines India-"India means the territory of India, excluding the state of J&K."
3. Article 1 of the Constitution of India declares-"India shall be a union of states."
4. Thus the state of J&K is part of political India but it is not India for the purposes of IPC.
5. Fazal AIi, C.J.1, as he then was, held that exclusion of a territory postulates the existence of a
territory itself; State of Jammu and Kashmir cannot be taken as a foreign territory.
6. Indian maritime area or the continental shelf is included in the territory of India. Indian maritime area
extends to 12 nautical miles measured from the base line.
7. Any person (irrespective of his citizenship) is subject to IPC as soon as he entered the Indian
Territory.

Territorial Operation of the Code

1. Every person shall be liable to punishment under this code and not otherwise for every act or
omission contrary to the provisions thereof, of which he shall be guilty within India.

Every person within territory of India- Intra territorial operation (Section.2)

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 Indian Territory territory
Continental shelf.

Section.2 Intr Territorial Operation Every person (Irrespective)

of Citizenship
Within territory of India

Guilty Act
Omission A IPC

2. Thus, section 2 provides for territorial operation of the code.

3. The word person has been defined in Sec.11 IPC The word 'person' includes any company or association or
body of persons, whether incorporated or not.

4. Section 11 of I PC defines the word person widely and inclusively. However, it conveys natural persons
alone. Therefore, as a general rule it conveys only natural persons and not a company or corporation.

5. In some cases a company or association or corporation may be liable under this code.

Cases

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1. A company or corporation may be liable for filing fake income tax returns .
2. A Pakistani citizen while staying at Karachi made false representation to a complainant at Bombaythrough
letters for supply of rice. He was arrested while he was in England and brought to Bombay.The Indian Supreme
Court upheld the order and convicted him u/S 420 IPC3.
3. Following are not included in the words 'every person' :

a) President of India A Under Article 361 of the constitution of India.

b) Governors of states

c) Foreign Sovereign, Ambassadors Warships

d) Enemies Alien (dealt in accordance with martial law) if commit an offence, be tried Under IPC.
e) Foreign troops

Extra territorial operation of the code: Sec. 3 & 4.

1. Section-3 provides that an act which, would have constituted offence, if committed in India, may bean
offence if committed beyond India. That would be so if any Indian law provides for that.

2. Section-3 refers to following laws:

a) The extradition Act, 1962, (matters covered therein)
b) Sec. 187 & 188 Cr P.C. (matters covered therein)
3. Section-4 provides that the Act shall apply to following also:
a) Act or omission by the Indian Citizens outside India.

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 b) Offence committed by any person on any ship or aircraft registered in India ..

4. If an Indian citizen has committed a crime outside India, his act is punishable under IPC. The act committed
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by him was not an offence at the place of commission .

Held: That he can be tried and punished, in India.

5. The accused hailed from Multan. On partition he became a Pakistani citizen. He committed an offence in
Pakistan. He came to India and acquired Indian citizenship. The question was whether hewas triable in India for
an offence committed by him in Pakistan as a Pakistani citizen. He cannot betried under IPC as at the time of
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commission of offence he was not Indian citizens .

Certain Laws not to be affected by the code: Section-5The Act

shall not affect the provisions of any Act-
a) Which makes it punishable for deserting or committing mutiny.
b) The Act does not affect any special or local laws.
c) Laws punishing mutiny or desertion by officers, sailors, soldiers, airmen in the service of Govt. of India are
not affected by IPC.

GENERAL EXPLANATIONS (SECTION 1 TO 52A)

The Principle of Common Intention: Section 34 of IPC is related with doctrine of common intention.

Section 34 - Acts done by several persons in Furtherance of Common Intention: "When a criminal actis done by
several persons, in furtherance of the common intention of all, each of such persons is liable forthat act in the same
manner as if it were done by him alone."

From the analysis of Sec. 34 following essentials are made clear:

1. There must be two or more persons.
2. They must have a common intention.
3. Their common intention must have been furthered.

If the above conditions are satisfied, each of the accused person would be liable for the resulted Criminal Act as if it
were done by him alone.

Common Intention
1) Common intention means following:
a) Concerted action.
b) Knowledge of each other's intention and sharing thereof.
c) Prior meeting of minds.
2) Common intention is essential ingredient of Sec. 34. Common Intention must not be confused with

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 same or similar intention.
3) Presence of common intention is a question of facts and circumstances.
4) Common intention must be strictly proved. Courts cannot infer common intention readily.

Furtherance of Common Intention

1) Presence of common intention is not enough. Its furtherance must also be proved.
2) Furtherance suggests participation or performance of some role.

It was held that in a planned murder, one of the persons played the role of keeping of people from coming to
the rescue of deceased. He and others were held guilty of murder u/s 302 read with Section 34.6

3) It is not necessary that the roles should be same. Acts of the accused persons may differ.
4) Word 'Furtherance' enlarges the scope of Sec. 34. The accused persons would be liable for a criminal act
done in furtherance of common intention though it is different from what was commonlyintended.
5) Where one of the accused persons develops an independent intention, the act done in furtherancethereof shall
be his individual act and other co-accused persons would not be liable.
6) In the case of Barendra Kumar Ghosh vs. Emperor 52 IA 4014 (PC) : That act refers to the 'Criminal
act' used in Section 34 which means the unity of criminal behaviour which results in some thing for which an
individual would be punishable if it were all done by himself alone in an offence.Even if the appealant did
nothing as he stood outside the door it is to be remembered that in crimesas in other things "they also serve who
only stand and wait."
7) In the case of Mehboob Shah vs. Emperor AIR 1945 PC 118: Common intention implies a prearranged
plan, prior meeting of minds, prior consultation in between all the persons constituting the group.

Common Intention Must Precede the Criminal Act

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1. Common intention must precede the criminal Act; the time interval between them may be narrow or wide.
In the case of Ram Chander vs. State of Rajasthan 1970 Cr.L.J. 653: It is held that there need notbe a long
interval of time between the formation of the common intention and the doing of the Act.
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2. Common intention may develop even on the spur of moment.

Difference between Common intention, same or similar intention

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1) In Mehboob Shah case , it was held that common intention and same intention are different. Thedifference
or distinction may be few but it is real and substantial.

2) Sec. 34 requires common intention. Concerted Action is the essence of the term. In case of same orsimilar
intention there is no concerted action.

Framing of Charge U/s 34 is not necessary

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 1) Sec. 34 does not create any offence. It is a deemed provision and not a penal provision. It only provides
for a rule of evidence.
2) Since Sec. 34 does not create any substantive offence no charge is required to be framed U/s 34.

The Principle of Common Object (Section 149 IPC):

Every member of an unlawful assembly is guilty of offence committed in prosecution of commonSec. 149
provides:

"If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that
assembly, or such as the members to that assembly knew to be likely to be committed in prosecution of that object, every
person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

Ingredients: The following are the essentials of common object:

a) There must be an unlawful assembly.

b) Any of the members of the unlawful assembly must have committed an offence.
c) Offence must have been committed in prosecution of common object. (It includes the offence the likelihood
of the commission of which was known to the members)

If the above requirements are satisfied all the members of the unlawful assembly would be liable for theoffence
provided they were members at the time of commission of offence.

Unlawful Assembly (Section 141):

According to Section 149 IPC-

An assembly of five or more persons is designated as 'Unlawful Assembly', if the common object of the persons
composing that assembly is:

First - To overawe by criminal force, or show of criminal force, the Union or any State Government or Parliament
or the Legislature of any state, or any public servant in the exercise of the lawful power of suchpublic servant; or

Second - To resist the execution of any law, or of any legal process; or Third - To commit any mischief or criminal
trespass, or other offence; or

Fourth - By means of criminal force, or by show of criminal force, to any person to take or obtain possession of any
property, or to deprive any person of the enjoyment of a right of way, or of the use of water or otherincorporeal right
of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth - By means of criminal force, or show of criminal force to compel any person to do what he is not legallybound to
do, or to omit to do what he is legally entitled to do.

Explanation - An assembly, which was not unlawful when it assembled, may subsequently become an

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unlawful assembly.

Distinction between Common Intention and Common Object (Sec. 34 & sec, 149)

1. Sec. 34 does not create any substantive Sec. 149 creates a substantive
offence. It only provides for a rule of evidence. offence.

2. Common object must be proved to attract Sec. Common intention is necessary to

Common intention means concerted action or attract Sec. 34. 149; common Prior
meeting of mind of knowledge and sharing
of each other's intention.

3. Sec. 34 does not require any unlawful assembly. Unlawful assembly is a condition
President for Application of Sec. 149

4. Sec.34 requires participation or performance Sec. 149 does not require

of some roles by accused of common intention. Participation by all accused persons.
This Sec. imposes liability on
persons who are members of
unlawful assembly at

5.Framing of charge is not necessary as it Framing of charge is necessary as it

contemplates no offence. contemplates a substantive offence.
Difference between Section 34 & Section 149 was laid down in Barendra Kumar Ghosh v Emperor 52 IA 40(PC

Similarity: Both are examples of constructive criminal liability.

Cooperation by Doing One of Several Acts Constituting an Offence Section-37Section – 37

The accused must have cooperated in the commission of the offence by doing any of those acts.The

accused must have done that act either singly or jointly.

If the above conditions are satisfied the accused shall be liable for the commission of that offence.

Illustration - 'A' is a jailor. T is a prisoner under his charge. 'A', intends to kill 'Z'. 'A', commits illegal omissions in
supplying food to T. 'Z' is much reduced in strength. However the starvation is not sufficient tocause death. 'A' is
dismissed from service. 'B' is a new jailor. There is no collusion or cooperation between'B' & 'A'. 'B' too, commits
illegal omissions in supplying food to T. 'B' knows that 'Z' may die. T dies of hunger.Determine the Cr. liabilities of 'A'
& 'B'.

'A' is liable for attempt to murder while 'B' is guilty of murder. (as he has knowledge that Z could die).

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IMPORTANT QUESTIONS

Q.1. Discuss the various definitions of crime and explain the essential elements of crime.

Q.2. Explain the doctrine of mensrea and its importance in I.P.C.

Q.3. Explain the maxim "Actus non facit mens sit rea".

Q.4. Whether Common intention is different from same intention. Discuss. Q.5. What is the difference between
common intention and common object?

Q.6. "Mistake of fact is defence but not the mistake of law". Explain the statement.

Q.7. Explain mens rea and its exception with illustration.

Q.8. Distinguish between Tort and Crime.

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 UNIT – II
GENERAL EXCEPTIONS AND SOME OFFENCES

1. Chapter IV of IPC (General Exception) deals with the various offences which a person accused ofan offence
under this court or any special or local law can plead.

2. If an act accused plead an exception within the meaning of this chapter there is a presumption against him
and the burden to rebut that presumption is on him. (K.M. Nanavati vs. State of Maharashtra, AIR 1962, SC
605)

3. Principle enunciated in chapter IV are in fact rules of evidence carrying either conclusive or rebuttable
presumption.

4. Huda calls these principles "conditions of non imputability" Kenny calls them "conditions of exemption
from criminal liability".

GENERAL EXCEPTIONS (SECTION 76 TO 106)

General Exceptions can be divided into two parts:

1. Excusable defences (Sections 76-95)

2. Justifiable defences (Sections 96-106)

Mistake of Fact (Section 76): Act done by a person bound, or by mistake of fact believing himself bound bylaw.

According to section 76 IPC: "Nothing is an offence which is done by a person who is, or who by reason ofa mistakes
of fact and not by reason of a mistake of law, in good faith believes himself to be bound by law to do it."

In the case of Chaman Lal (1940) 21 Lah 521; Mangal Singh, 1981 Cr. LJ 84 (Cal) : Held that for a manifestly
illegal superior order, that is an order which is illegal on the face of it, e.g., to kill an innocent bystander or to torture
an accused in custody or to fire on a group of people who have assembled for a lawful purpose, the superior order
affords no protection to a subordinate.

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In the case of Gopalia Kalliaya : A police-officer came to Bombay from up-country with a warrant to arresta person.
After reasonable inquiries and on well-founded suspicion he arrested the complainant under the warrant, believing in
good faith that he was the person to be arrested. The complainant having proceeded against the police-officer for
wrongful confinement, it was held that the police-officer was guilty of no offenceas he was protected by this section.

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Other Important Cases are:

R. Vs. Prince (1875) LR 154 and R. Vs. Tolson (1889) 23 QBD 168

Act of Judge when Acting Judicially - Section-77: Under this section a Judge is exempted not only inthose cases
in which he proceeds judicially in the exercise of a power which the law gives him, but also incases where he, in good
faith, exceeds his jurisdiction and has no lawful powers. It protects judges from criminal process just as the Judicial
Officers Protection Act, 1850, saves them from civil suits.

Act done Pursuant to the Judgment or Order of Court - Section-78: This section is merely a corollary to Section 77.
It affords protection to officers acting under the authority of a judgment, or order of a Court ofJustice. It differs from
Section 77 on the question of jurisdiction. Here, the officer is protected in carrying outan order of a Court which may
have no jurisdiction at all, if he believed that the Court had jurisdiction; whereas under section 77 the Judge must be
acting within his jurisdiction to be protected by it.

Mistake of Law (Section 79): Act done by a Person Justified or by Mistake of Fact Believing himselfJustified,
by Law.

According to Section 79 IPC - "Nothing is an offence which is done by any person who is justified by law, orwho by
reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in
doing it."

Section 79 is based on the following Maxims -

a) Ignorantia facit excusat
b) Ignorantia legis neminem excusat

Mistake of Law is not Excusable: Mistake of Law is not excusable. Law presumes that everyone knowsthe law of
the land. The presumption had its basis in public policy.

Chaman Lal, 1940 Lahore: Held: The maxim ignorantia juris non excusat has no exceptions. Yet an actdone under
the mistake of law may be a ground for a concessional punishment.

Latif Khan, 1895: Held: A person blindly following orders of his parents, superior or Master cannot avoidliability.
In such cases the maxim respondent superior (let the superior be liable) is inapplicable.

Justified by Law: Justified by Law means 'Not prohibited by Law' -

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Keso Sahu v. Saligram : Where the accuseds while helping the police stopped a cart which they in goodfaith believed
to be incorrect, it was held that they could not be prosecuted for wrongful restraint under Section 341 as their case
was covered by section 791PC.

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Raj Kapoor V/s Laxman : The producer of the film Sat yam Shivam Sundaram was prosecuted u/s 292IPC. The
censor board had in sued a certificate for public exhibition of the film. The producer in good faith believed that now
he was justified in the public exhibition of the film.

Held: In the circumstances of the case the producer may be said to have believed that he was justified by law in the
public exhibition of the film.

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Accident in Doing a Lawful Act - Section-80

1. Accidents are not excusable. Injuries caused by an accidental act may be excused subject to thefulfilment of
requirements of Law.

2. This section exempts the doer of an innocent or lawful act in an innocent or lawful manner and without any
criminal intention or knowledge from any unforeseen evil result that may ensue from accident or misfortune.

3. Nothing is an offence which is done :

a) By accident or misfortune.
b) Without any criminal intention or knowledge
i) In the doing of a lawful act.
ii) In a lawful manner.
iii) by lawful means
4. Illustration: 'A' is at work with a hatchet. The head flies off and kills a man who is standing by. Here,if there
was no want of proper caution on the part of '1\, his act is excusable and not an offence.

Accident of Misfortune

1) An effect may be accidental. It is to be seen whether the act done was intentional or with knowledgeor not. Any
effect caused by an act which was not done with an intention to cause that effect or whichwas done without a
reasonable forcibility of the effect so caused cannot create a liability.

2) Accident and event are not one and the same thing. Accident contemplates something unexpected;it is something
which takes place outside the ordinary course of things.

Lawful Act: Accident may be a good defence only when the act done was lawful and it was done in a lawfulmanner
and by lawful means and with care but without mens rea.

Lack of Care and Cautions:

1) Any injury resulting frorn an act done without due care and caution cannot be said to be accidental or
occurring by misfortune.

2) Rangaswamy, 1952, Nag. 93: Accused fired a shot from an unlicensed gun. The court took a liberalview and
held that shooting with an unlicensed gun does not debar an accused from claiming immunity under this section.

Act likely to cause harm, but done without criminal intent and to prevent other harm Section- 81

1) The principle in Sec. 81 is that where in a grave and sudden emergency one of the two evils is
inevitable, it would be logical as well as legal to direct the events so as to suffer the slighter of them.

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2) Sec. 81 of the code in essence adopts the above principle but it adopts those principles only which are
conditional. The benefit of this section can be availed if done in good faith for the purpose of avoidingother evils.
Lack of mens rea shall be established.

3) Sec. 81 provides:- "Nothing is an offence merely by reason of its being done with the knowledgethat it is
likely to cause harm, if :

4) For the purpose of preventing or avoiding other harm to person or property."The

harm intended to be avoided is to be judged in reference to following:-
a) the nature of the harm intended to be avoided.
b) the imminence of the harm sought to be avoided.

To avail the benefit of Sec. 81 the accused must plead and prove the following:
1) That the act causing harm was not done with an intention of causing harm (although it was knownthat the
act was likely to cause that harm).
2) That he was acting in good faith while doing the act complained of.
3) That the act complained of was done to prevent any other harm to person or property.
4) That in view of the nature of the harm sought to be avoided the act complained of was justifiable or
excusable.

R. V/s Dudley & Stephens, (1884): The question was whether the need for self preservation extends tocausing harm
to an innocent person, and that to what extent it would be justified.
Held: Accordingly, the court convicted the accused persons for murdering the minor boy,
R. V. Martin, (1889) - Sir James Stephen has Criticized : The decision; he suggests that when the twopersons
holding a plank after a ship wrecked, and one of them pushes the other off resulting into death of that person would
not be an offence. At the best it can be said that he has left such person to a chance ofholding some other support.

1. A minimum level of maturity of mind is a must to maintain mens rea. The legislature in its wisdom declared
that a child under seven years of age does not have that much maturity of mind which is a mustfor entertaining a
guilty intent. In that view of the matter, law declares a child under seven years of ageas doli in capex i.e. one
incapable of committing an offence. (Sec. 82)

2. A conclusive presumption of innocence is raised in favour of a child under seven. The fact tha the delinquent
child is under seven can give a complete answer to every question and argument of the prosecution.

Bakhul Shah, 1866 : The accused purchased for one anna, from a child aged six years, two pieces of cloth valued at
fifteen annas, which the child had taken from the house of a third person. It was held that, assuming that a charge
of an offence of dishonest reception of property (section 411) could not be sustained owing to the incapacity of the
child to commit an offence, the accused was guilty of criminal misappropriation, if he knew that the property
belonged to the child's guardians and' dishonestlyappropriated it to his own use.

Section 83
Relates to an act done by a child above seven years of age and under twelve.

15
 It does not contemplate conclusive presumption of innocence of the child.
Benefit is given to a child who has not attained sufficient maturity of understanding to judge thenature
and consequences of his conduct.

Section - 83 is based on Latin Maxim 'Malitia supplet aetaten. (Malice supplies the defect of years). Sec. 83 relates to
exceptional immaturity of understanding. Therefore, the defence has to establish that the accused did not have
sufficient maturity. Generally, it is to be presumed that child had sufficient maturity.

4
Ulla Mahapatra v/s State : Where the accused, a boy over eleven years but below twelve years of age,picked up
his knife and advanced towards the deceased with a threatening gesture, saying that he wouldcut him to bits, and did
actually cut him, his entire action can only lead to one inference, namely, that he didwhat he intended to do and that he
knew all the time that a blow inflicted with a kathi (knife) would effectuatehis intention.

5
Krishna v/s State : Where a child of nine years of age stole a necklace, worth Rs. 2-8-0, and immediatelyafterwards
sold it to the accused for five annas, the accused could be convicted of receiving stolen property, because the act of the
child in selling the necklace showed that he had attained a sufficient maturity of understanding to judge the nature
and consequences of his conduct on that occasion within the meaning of this section.
Act of a Person of Unsound Mind - Section-84

1. Legal insanity - incapable of knowing - Nature of his act or what he is doing is wrong/contrary to law.
2. At least legal insanity is required to give the benefit u/s 84.
3. It contemplates only legal insanity.
4. It does not provide benefit to medically/socially insane person.

Essential Elements of Sec. 84

Nothing is an offence which is done by a person who:
At the time of doing it, by reason of unsoundeness of mind, is incapable of knowing:
1) The nature of the Act; or
2) That he is doing what is either wrong or contrary to law.
Following essentials are made out from the analysis u/s 84.
1. The act complained of must have been done by a person of unsound mind.
2. The accused must have been suffering from instant unsoundness of mind at the time of the act.
3. The accused must have become incapable of knowing the nature of his act or that what he was doing was
wrong or contrary to law.

16
Unsoundness of Mind: Persons of unsound mind are called non compos mentis.

Persons of unsound mind / non compos mentis.

Idiot - Acquired Non campos Non compos

- by birth Insanity mentis by mentis for any
- (Natural Insanity) -Curable/may reason of other reason e.g.
- Incurable be proved if some physical in shock fear
- Tested by not cured ailment. etc.
asking questions.

At the Time of Doing

1. Benefit under Sec. 84 IPC is available only to a person who suffered from legal insanity at the time of alleged
commission of the act complained of.

2. Neta Ram v/s State, 1866: In this case the accused suffered from legal insanity at the date of trial buthe did not
suffer that on the date of alleged commission. The benefit u/s. 84 was not given.

3. Court must ensure that the insanity existed at the given point of time.

English Law as to Insanity: Under English law the principle laid down in Mc Naughton's, case6 where the accused,
Daniel Mc Naughton's, was charged for the murder of Edward Drummond, Secretary to then Prime Minister, Sir
Robert Peel, on January 20, 1843. The accused was suffering from an insane delusion that Sir Robert Peel had injured
him and that he mistook Drummond for Sir Robert. Accordingly, he shot andkilled him. The accused pleaded not guilty
on the ground of insanity. The defence led evidence of accused's insanity, particularly his obsession with the given
morbid delusion. The jury returned a verdict of 'not guilty'on the. ground of insanity. English law now recognized social
and medical insanity.

Criticism u/sec. 84 IPC

1. Sec. 84 is based on the principle laid down in Mc Naughton's case. The principle laid down in the case is no
longer a guiding principle under the English law. Therefore, it is hardly justified to base Sec. 84 IPC on that
decision.

2. Sec. 84 IPC does not recognise medical or social insanity. This is hardly justified. Sec. 84 must be amended to
do justice in cases of partial insanity.

Act of a Person Suffering Intoxication - Section-85 read with Section-86

1. Sections 85&86 provide for law as to intoxication. Voluntary intoxication is no defence. Voluntary
intoxication may be relevant in the determination of particular intention or knowledge required for a given
offence.
2. Intoxication was no defense under English common Law till the beginning of 19th Century. In the later half
of the 19th Century involuntary intoxication was recognised as a defence.

17
3. Intoxication is a kind of insanity. Insanity is a disease while intoxication is an evil. Persons sufferingfrom
insanity deserves mercy but an intoxicated person deserves to be condemned.
4. Under the IPC, intoxication may be a defence provided the intoxicant was administered to the accused
without his knowledge or against his wishes.

Essentials u/sec. 85-

a) At the time of doing it;
b) By reason of intoxication
a) Is incapable of knowing the nature of his ct; or
b) That what he is doing is wrong or contrary to law.
c) Provided that the thing which intoxicated him was administered to him without his knowledge oragainst
his will.

From the Analysis of Section-85 following Essentials are Made Out:

1) The act complained of must be done by an intoxicated person.
2) The accused must be suffering from intoxication at the time of the commission of the Act.
3) The accused must have become incapable of knowing the nature of the act and that what he isdoing is
wrong or contrary to law.
4) The intoxication must be either without his knowledge or against his will.

Presumption of particular intention of knowledge- Section – 86

1) Sec. 86 provides for a presumption of law.

2) Thus where a person does an act requiring a particular knowledge or intention to constitute an offence, such
intention or knowledge is to be presumed against the accused person.

3) There shall be a presumption that accused did entertain the required criminal intent or criminal
knowledge.

4) The presumption is rebutable. Accused may show that he did not entertain the required criminal intention
or knowledge in as much as he was intoxicated against his will or without his knowledge.
7
5) Basudev v/s State of PEPSU : The appellant was charged with the murder of a young boy. The twoof them and
others of the same village went to attend a wedding in another village. All of them went tothe house of the bride
to take the mid-day meal. Some had settled down in their seats and some hadnot. The appellant asked Maghar
Singh, the young boy, to step aside a little so that he might occupy aconvenient seat. But Maghar Singh did not
move. The appellant whipped out a pistol and shot the boy in the abdomen. The injury proved fatal. He was charged
rejecting the plea of the accused to allow him the benefit of section 86 and reduce the charge from murder to culpable
homicide.

8
The Director Public Prosecution v. Beard : In this case the accused was held guilty for his offence ofmurder of a
girl aged thirteen whom the accused raped and placed his hand over her mouth and pressed his thumb on her throat in a
bid to prevent her from screaming. In this endeavour he unintentionally killed her.The Court of Criminal Appeal
found him guilty of manslaughter but the House of Lords restored the conviction for murder.

18
Acts not intended and not known to be likely to cause death or grievous hurt, done by consent - Section-87

Following Two Benefits may be claimed on the Basis of Consent

1. A) Complete exemption from criminal liability. (87, 88, 89).

B) Reduction in criminal liability. (Exception 5-Sec.300)
2. Sec. 87, 88, 89 relate to law as to consent. (complete exemption)
3. Consent is a good defence against offences relating to property.
4. Consent is a good defence even against offence against human body (except cases where death or grievous
hurt is caused).
5. Causing death with consent is not excusable. Nor has a right to consent to self killing.

6. From the analysis of Sec. 87 following essentials are made out.

a) The victim must have consented to, expressly or impliedly to the act of the accused.
b) The person consenting (victim) must have been above 18 yrs at the time of consent.
c) The Act of the accused must have been without an intention or knowledge of likelihood of causingdeath or
grievous hurt.

Act not intended to cause death, done by consent in good faith, for person's benefit - Section-88

1. Nothing would be an offence which was not done with intention to cause death if it was done for aperson's
benefit and in good faith by consent.

2. Sec. 88 does not provide for the age of the person giving consent.

Essentials of Sec. 88

a) The Act of the accused must have been done for the benefit of the victim.
b) The Act must have been under expressed or implied consent of the victim.
c) The Act of the accused must have been in good faith.
d) The accused must not have intended to cause death.

Illustration: 'A' is a surgeon. 'B' is suffering from a serious disease. 'A' not intending to cause B's death though he
knew that death may ensue, makes an operation with B's consent for B's benefit and in good faith. 'A' commits no
offence.

3. In Sec. 88 benefit does not mean only a pecuniary benefit. It may be a benefit of any kind.

4. For the purposes of Sec. 88 any person who is under 12 yrs. of age is not competent to give consentu/s 88
(from Sec. 90)

Act done in Good Faith for Benefit of a Child or Insane Person, by or by Consent of Guardian - Section- 89

19
1. "Nothing is an offence which is done in good faith for the benefit of a person under 12 years or of unsound
mind, if done with the consent of the guardian."

Following essentials are made out

a) The act done by the accused must be in good faith.

b) The victim must be under 12 years or a person of unsound mind.
c) The Act must have been done with the consent of the guardian or any person incharge ofsuch
person.
d) The Act done must have been for benefit of victim.

2. Benefit of Sec. 89 shall not be available in following cases:

a) An act done with the intention of causing death or with an intention of attempting to causedeath.
b) Anything about which the doer knows that death is likely thereby.
c) Anything done with an intention of voluntary act causing grievous hurt or attempt thereof.
d) Abetment of any offence when the offence is not within Sec.89.

Consent known to be given under fear or misconception - Section - 90

1. Consent given under fear or misconception is not a valid consent. Therefore, such a consent cannotbe the
basis of defence.

In Poonai Fattemah vis State SC (1869): 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 the consent was given by the deceasedunder 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 knew that the consent was given in consequence of such misconception and therefore, the
accused was not entitled to protection onthe ground of consent of the deceased.

9
In Dasrath Paswan vIs State : The accused had failed at an examination for three successive years. He
was very much upset at these failures. Accordingly he decided to end his life. He informed of his decision to his
wife who was a literate woman of 19 years of age. His wife asked him to kill her first and then kill himself In
consequence of this pact the accused killed his wife but was arrestedbefore he could kill himself It was held
that the wife had not given her consent under fear of injury ormisconception of fact. Here the accused would not
be liable for murder but for culpable homicide not amounting to murder as the case is covered by exception 5 to
section 300 of the Code.

2. Consent would not be valid when given by a person of unsound mind or an intoxicated person unable to
understand the nature and consequences of that to which he consents.

3. Consent by a child under 12 is also not valid (unless the contrary appears from the context).

20
Exclusion of Acts which are offence independently of harm caused- Section – 91

1. Sec. 91 relates to acts which are offences even without any harm. In such cases consent will be of no use.
Therefore Sec. 91 relates to cases where consent is no defence.

2. Sec. 91 is therefore an exception to Sections 87, 88 & 89.

3. Following are certain acts which are offences though no harm resulted from such acts:
a) Causing miscarriage
b) Public nuisance
c) Acts against the public safety and morality.

4. Essentials of Sec. 91:

a) The accused must have done some act.
b) The act must be an offence independent of any injury.

If the above requirements are satisfied the accused would be liable notwithstanding that the Act wasconsented
to.

Act done, in good faith for benefit of a person without consent - Section-92

1. Act done for another's benefit and in good faith though without consent is no offence though harm might have
resulted.

2. Sec. 88 & 89 excuse an act done for a person's benefit but a valid consent would be necessary under these
two sections. Therefore, cases are not covered u/s 88 or 89 may still be covered u/s 92.

3. Sec. 92 shall apply in following cases:

a) When it is not possible for the victim to give consent.
b) When the victim is incapable of giving consent.
c) When it is not possible to obtain consent from guardian or person in lawful charge.
d) Sec. 92 generally protects medical personnel. The medical men become guardians in the face ofnecessity. A
temporary emergency confers guardianship to them. In such a case every person maytake necessary steps.

4. Benefit of Sec. 92 shall not be available in the following cases.:

a) where the death is caused intentionally.
b) where there is knowledge that death may be caused.
c) where the hurt is caused voluntarily or where it is attempted voluntarily.
d) Where abetment of the above is made.

Where there was a knowledge of likely death benefit of Sec. 92 may still be available in following cases
a) when the intention was to prevent death or grievous hurt.
b) When the intention was to cure a serious disease or physical infirmity.

21
Despite voluntary hurt or attempt thereof benefit of Sec. 92 may still be available in following cases:
a) where intention was to prevent death.
b) where intention was to prevent hurt.

Communications Made in Good Faith - Section- 93

1) Communication made in good faith for the benefit of a person does not create any criminal liability.

2) Sec. 93 provides

"No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it
is made for the benefit of that person".

Illustration: 'A' is a surgeon. 'A' in good faith communicates to the patient his opinion that he (patient) cannot live.
The patient dies in consequence of the shock. 'A' has committed no offence though he knewthat death might be caused

Essentials of Section 93
a) Accused must have made a communication.
b) The communication must have been made for the benefit of the person to whom it was made.
c) The communication must have been made in good faith.

The communication of the above kind would not create any criminal liability notwithstanding the harm caused
thereby.

Act to which a person is compelled by threats - Section- 94

1. Sec. 94 is based on the Latin maxim actus me invito factus non estmens actus' (Act done by me against my
will is not my act).

2. Any act done under the threat of instant death is no offence. The following acts are not excusable u/s 94; an
offence against the state is punishable with death.

3. The policy underlining u/s 94 is as under:

a) if you have to choose between your death and that of any other you choose your own death.
b) Accept your own death instead of committing against the state any offence punishable with death.
4. Compulsion arising out of necessity is not within the preview of Sec. 94.

Essentials of Section 94
a) The accused must have done some act.
b) The accused must have been under the threat of instant death.
c) The act must not be any of the following:
i) Death
ii) Any offence against the state punishable with death.

5. The accused must not have of his own accord or from a reasonable apprehension of a harm shorter

22
 than death, placed himself under such constraint.

A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, cannotclaim the
benefit of Sec. 94 if he was aware of the character of those persons. (dacoits). (Exp I to Sec. 94)

6. Persons seized by a gang of dacoits and forced by threat of instant death to do an offence is entitledto benefit of
Sec. 94 (Exp II to Sec. 94)

7. Any compulsion arising out of necessity is not within purview of Sec. 94; therefore, a thief cannotplead that
he was dying of hunger.

8. An act done under the compulsion of instant death is no offence. Therefore, attempt to murder or abetment
of murder may be excused u/s 94. Any other offence may also be excused.

Sec. 94 relates to compulsion and not necessity. Necessity could be considered u/s 81 but not in 94. Act causing
slight harm - Section- 95

1. Sec. 95 IPC is based on the Latin maxim' de minimis non curat lex' (law does not take care of trifles or
trivialities).

2. The underlining princjple of Sec. 95 is that law does take care of incivilities.

3. Acts which fall within the letters of law because of defect of languages but which do not fall within thespirit of
law, are not punishable.

4. Sec. 95 covers the acts which constitute offence but which are of very low degree in terms of criminality.
Therefore such acts are taken to be innocent.

5. Whether or not the act of the accused is criminal is to be determined by the courts. There is no fixed standard
therefor. The court is to be objective in determining the same. The court must analyze the facts and circumstances.
Triviality is therefore justiceable.

6. Sec. 95 provides: "Nothing is an offence by reason that it causes, or that it is intended to cause or that it is
known to be likely to cause any harm, that no person of ordinary sense or temper would complain of such harm."

7. Shiv Ghulam Lata vis State, SC 1875: A policeman was dismissed. He filed a review petition before a
higher officer. The higher official refused to entertain. Annoyed by the same the dismissed policeman struck
the higher official at his chest by an umbrella. The injury was negligible. The accusedwas punished u/s 323. IPC.
The police force is a disciplined force, therefore, such a behaviour or conduct cannot be excused.

Right of Priate Defence GeneralGeneral

1. To protect the body and property of citizens is the primary duty of the state. Self defence and self help is the
primary duty of an individual.

2. It is not possible for the state to protect the life and property of every citizen.

23
3. In view of limitations of the State and the necessity of the protection of life and property, the stategives
preventive right to the individual to defend himself by personal violence within the limits prescribed by law
(statutory limitations).

Nature of Right of Private Defence

1. It is a right based on necessity, expediency and public policy. It is preventive I compensatory. It is subject to
statutory limitations.
2. This legal right can be exercised only against an offence
3. This right is purely a preventive right. It is not retributive or punitive.
4. A defender may exercise Right of Private Defence not only for his body or property but also for the
protection of body or property of any other person including a stranger (Indian Law).
5. Sections-96, 97, 98 & 99 relate to Right of Private Defence of body as well as of property. In fact,these
sections are general in character.
6. Sections-100,101,102 & 106 relate to Right of Private Defence against body. These sections are tobe read
with clause-I of Sec. 97.
7. Sections-103, 104 & 105 relate to Right of Private Defence against property. These sections are tobe read
with clause 1I of Sec. 97.
In fact this section is part of an integrated scheme of Right of Private Defence.
Under this code the section is subject to an implied limitation that statutory limitations must not havebeen
unguessed.

Right of Private Defence of The Body and of Property – Section - 97

It is a substantive provision.

1. It comprises two clauses. Its first clause confers Right of Private Defence against body. "Every person has
right subject to restrictions contained in Sec. 99, to defend his own body and the body of anyother person, against
any offence affecting the human body."

2. The second clause confers Right of Private Defence against property.

Right of private defence against the act of a person of unsound mind etc. - Section-98

This section makes the Right of Private Defence more practicable and effective.

This section declares that right could be available against the acts of following persons also:
a) Child
b) Person suffering from want of maturity of understanding.
c) Person of unsound mind.
d) Intoxicated person.
e) Person reacting under misconception.

24
Acts against which there is no right of private defence - Section-99
It provides for following four limitations:

a) As a general rule, there is no Right of Private Defence against the act of public servant.
b) There is no Right of Private Defence against the act of a person acting under the directions of apublic
servant.
c) There is no Right of Private Defence in cases in which there is time to have recourse to the
protection of Public Authorities.
d) The Right of Private Defence in no case extends to the inflicting of more harm than it is necessary forthe
purpose of defence.

There is no Right of Private Defence against acts of a public servant if the defender knows or has reason to believe that
person concerned is a public servant.

A person would be deprived of Right of Private Defence against the public servant only if the public servant was acting
in good faith under colour of his office and there is no apprehension of death or of grievous hurt. The same rules apply to
the act of person acting under the directions of a public servant u/s 21 IPC.

When the right of private defence of the body extends to causing death- Section- 100

It provides for certain assaults against which the defender may voluntarily cause death or any other harm to the assailant

Sec. 100 lists certain assaults on the face of which the defender may voluntarily cause death or any other harm to the
assailant. Sec. 100 is subject to Sec. 99. Following are the assaults listed u/s 100 :
a) Assault reasonably causing apprehension that death will otherwise be the consequence of such assault.
b) Assault reasonably causing apprehension that grievous hurt will otherwise be the consequence of such
assault.
c) Assault with an Intention to commit rape.
d) Assault for gratifying unnatural lust.
e) Assault with an intention to commit kidnapping or abduction.
f) Assault for committing wrongful confinement (under circumstances causing reasonableapprehension
that defender would be unable to have recourse to public authorities for his release).

When such right extends to causing any harm other than death - Section- 101
It is residuary in nature
The assaults not covered u/s 100 would fall u/s 101.
Section 101 is also subject to Section 99.

Commencement and Continuance of the Right of Private Defence of the Body - Section-102 It takes into account
following two points:

25
a) When does Right of Private Defence against body commence.
b) How long Right of Private Defence against body continues. Section 102 Provides for following tworules
1. The Right of Private Defence against body commences as soon as a reasonable apprehension of danger to the
body arises from the attempt or threat thereof, though the offence may not have beencommitted.

Ram Parves vis State, 1975, SC: It was held that Right of Private Defence is a preventive right,thus if
may be exercised even before the actual assault.

2. Right of Private Defence remains till there is a reasonable apprehension of danger.

When the right of private defence of property extends to causing death

Section – 103

1) Right of private defence against property extends, under restrictions contained in Sec. 99, to the voluntary
causing of death or of any other harm to the wrongdoer. It would be in regard to following offences only:
a) Robbery
b) House breaking by night
c) Mischief by fire (committed on any building, tent or vessel used as human dwelling or as a place ofcustody of
property.)
d) Theft, mischief or house trespass (If the circumstances reasonably cause apprehension that deathor grievous
hurt will be the consequence if such right is not exercised.)

When the right of private defence of property extends to causing any harm other than death

Section - 104
1. It is a residuary clause.
2. Provisions of Sec. 104 are to be read with Sec. 99
3. Sec. 104 provides: "If the offence or attempt thereof be a theft, mischief or criminal trespass as described
in Sec. 103, the Right of private defence does extend to the voluntary causing to the wrongdoer of any harm
other than death."

Commencement and continuance of Right of Private Defence of Property Section- 105

Section 105
1. It considers following two points:
a) When does the Right of private defence of property commence.
b) How long does the Right of private defence of poperty continues.
2. The Right of private defence of property commences when a reasonable apprehension of danger tothe
property commences (C1.1 of Sec.1 05)
3. Right of private defence against theft, continuance provided in CI.2 to Sec. 105.
4. Right of private defence against theft continues till the offender has effected his retreat with the property
or either the assistance of public authorities is obtained, or the property has been

26
 recovered (C1.2 to Sec. 105).

5. The meaning of the words "till the offender has effected his retreat with the property", is not verycertain. It
is difficult to say as to when the offender be taken to have effected his retreat with the property.

5. Right of private defence against theft continues till the property has been recovered. Even thisclause is
not very clear. It is not clear as to what of recovery of property is contemplated.

7. Right of private defence against robbery continues as long as offender causes or attempts to causeto any person
death or hurt or wrongful restraint or as long as the fear of instant death or of instanthurt or of instant personal
restraint continues (C1.3 of Sec-105).

8. The right of private defence of property against robbery continues as long as the offender causes or attempts to
cause to any person death or hurt or wrongful restraint or as long as the fear of instantdeath or of instant hurt or
of instant personal restraint continues (CIAof Sec-1 05).

9. The right of private defence of property against criminal trespass or mischief continues as long asthe offender
continues in the commission of criminal trespass or mischief (C1.5 of Sec-1 05).

Right of private defence against deadly assault when there is risk of harm to innocent person -
Section- 106

a) It extends the Right of Private Defence against an assault of body to the maximum possible limits.
b) Therefore, the defender can defend himself even by risking an innocent person.

Abetment (Sec. 107-120)

Abetment of a thing – Section -107 When the Abetment succeeds, both the abettor and the doer areliable for the
same offence.

General
a) Sec. 107 defines the word Abetment. Sec. 108 defines Abettor. Sec. 1 08-Aprovides for abetment in India of
offences committed outside India.

b) Sec. 109 is the first penal provision under the code. It is residuary. It provides for punishment for such of
the successful abetments which as not punishable under any other section of the code.

c) Sec. 110-120 provides for specific cases of abetment.

These sections are only amplification of Sec. 107 & Sec. 108.

Definition and Essentials of Abetment - Section 107:

1. Sec. 107 defines abetment as under:

A person abets the doing of a thing who:

a) Instigates any person to do that thing; or,

27
 10
Rasookoollah v/s State : Where, of several persons constituting an unlawful assembly, some only were
armed with sticks, and A, one of them was not so armed, but picked up a stick and used it, B (the master of A),
who gave a general order to beat, was held guilty of abetting the assault madeby them.

11
Sheo Dial Mal v/s State : Where one person instigates another to the commission of an offence bymeans of a
letter sent through the post, the offence of abetment by instigation is completed as soon as the contents of such
letter become known to the addressee.

b) Engages with one or more other person or persons in any conspiracy for the doing of that thing.

(If an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing ofthat thing);
or,

Queen v/s Mohit Pandey (1871)-Where accused admitted that he told the woman to say "Ram Ram", and
she would become satti, it was held that this amounted to connivance in suicide on thepart of husband.

Intentionally aids by an act or illegal omission, the doing of that thing.

12
Muthammal vIs State : A priest, who officiated at a bigamous marriage was held to have intentionally
aided it but not the persons who were merely present at the celebration or who permitted its celebration in
their house, where such permission affords no particular facility for theact.

3. Exp I to Sec. 107 explains the term instigation. It provides : "A person who, by willful misrepresentation,
or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures,
or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."

3. Exp II to Sec. 107 explains intentional aid. It provides : "Whoever, either prior to or at the time of
commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the
commission thereof, is said to aid the doing of that act."

4. Abetment may be committed even by conspiracy. Sec. 107 does not explain the term conspiracy. The
definition of term 'conspiracy' has been provided U/s 120-A, probably for that reason no explanation was thought
to be required.

In case of abetment through conspiracy it is enough that accused was engaged in a conspiracy. The concert needs
to be proved. This is sufficiently explained by Exp. V to Sec. 108. It provides. "It is not necessary for abetment
by conspiracy that abettor should concert the offence with the doer. This is sufficient if he engages in conspiracy
in pursuance of which the offence is committed."

Who is Abettor- Section – 108

1. A person who abets for the commission of an offence, is an abettor. A person who abets an act would also
be an abettor.

28
2. The Abetment of an illegal omission may be an offence although the abettor may not himself be bound to
do that act (Exp I to Section 108)

3. To constitute the offence of the abetment it is not necessary that the act abetted should be committed or that
the requisite effect to constitute the offence should be caused. Exp II to Section 108)

4. It is not necessary the person abetted: (III to Sec.)

a) Should be capable by law of committing an offence, or,

b) That the person abetted should have some guilty intention or knowledge as that of abettor; or,
5. Abetment is an offence. Therefore, the abetment of an abetment is also an offence. It is not necessary that
the abettor should concert the offence with the doer in case of abetment by means of conspiracy. It is enough
that abettor has engaged in the conspiracy pursuant to which the offence iscommitted. (Exp V to Sec. 108)

Abetment in India of Offences Committed Outside India - Section 108-A: A person abets an offencewithin the
meaning of this code who, in India, abets the commission of any act without and beyond India,which would constitute
an offence if committed in India.

Punishment for Abetment – Section -109

1. Sec. 109 is residuary. Therefore it can be invoked only in those cases where there is no expressprovision
for punishment of the abetment committed.

2. It applies in cases of successful abetments.

3. It provides for the same punishment for the abettor which is provided for the offender.

Punishment of Abetment (when person abetted does act with different intention from that of Abettor) -
Section- 110

a. The accused must have abetted an offence.

b. The person abetted must have done some act with a different intention or knowledge from that of the abettor.
c. If the above requirements are satisfied the abettor is liable to punishment provided for the offencewhich
would have been committed if the act would have been done as per his intention or knowledge.
(liability of abettor shall not extend).

Liability of Abettor when One Act Abetted and Different Act done - Section- 111

1. The Accused must have abetted an act.

2. The person abetted must have committed a different act
3. The abettor shall be liable for such different act.
(in the same manner and to the same extent as if he had directly abetted it)

a) Act done was a probable consequence of the abetment.

b) The Act must have been committed under the influence of instigation or aid or in pursuance of a

29
 conspiracy.

When Abettor is Liable for Cumulative Punishment – Section – 112

1. Sec. 112 is to be read with Sec. 111

2. Where the abettor is liable U/s 111 (in addition to) he shall be liable for cumulative punishment ordouble
punishment.

3. Under this section the abettor is liable to cumulative punishment for the following:
a) For abetment of act abetted by him.
b) For the Act which has actually been done.

When the Abettor would be Liable for a Different Effect - Section- 113
1. The accused must have abetted a particular act (for causing a particular effect)
2. The person abetted must have committed the same act which was abetted. (but with a different effect
from one intended by the abettor).

3. The likelihood of the causing of such different effect must have been in the knowledge of the abettor.

Presence of Abettor at the time of Commission of Offence - Section- 114: When the abettor is presentwhen the act
or offence abetted is committed, he is deemed to be the doer of the act or the offence.

Abetment of Offence Punishable with Death or Imprisonment for life- Section –115

1. Sec. 115 provides for punishment for abetment of an offence punishable with death or life
imprisonment.
2. Imprisonment of either description which may extend to 14yrs and also fine.
3. If, as a result of abetment the offence is not committed and no harm is caused the punishment mayextend up
to 7 yrs and with fine.
4. If in consequence of the abetment hurt is caused to any person, imprisonment may extend up to 14yrs.

Abetment of Offence Punishable with Imprisonment - Section- 116

1. Sec. 116 is residuary (109 & 115 are also residuary).

2. Sec. 116 applies to unsuccessful abetment-(Sec. 115 also applies in cases of unsuccessfulabetment-
but Sec. 109 applies in cases of successful abetment).
3. Sec. 116 provides for punishment of abetment of an offence punishable with imprisonment. The section
provides for following punishment:

th
a) Up to ¼ of the imprisonment provided for the offence or with fine or with both.
b) Up to ½th of the imprisonment provided for the offence or with fine or with both. (If hurt iscaused).
4. If the abettor or person abetted is a Public servant whose duty is to prevent offence, punish mengiven in (b)
(1/2/fine/both) shall be given to the abettor or abetted irrespective of whether harm was caused or not.

30
 Concealment of Design to Commit Offence: 5-118

S-118 S-119 S-120

Offence concealed concealment by concealing design
punishable with public servant to commit offence
which it is his punishable imprisonment duty to prevent
- death
- life Imprisonment

Abetment not specified under chapter -V:

131 - Abetment of mutiny
132 - Abetment of mutiny and mutiny committed in consequence thereof
133 - Abetment of assault by soldier, sailor, airman on his superior officer when in execution of his office.134 -
Abetment and assault committed in consequence of such abetment. 135 - Abetment of desertion.
138 - Abetment of act of insubordination by soldiers, sailors, or airmen. 305 - Abetment of suicide of child orinsane
person
306 - Abetment of suicide.

Criminal Conspiracy (Section 120A-120B)

1. Sec. 120-A defines criminal conspiracy. Criminal conspiracy is a substantive offence. It is differentfrom
abetment.
2. Sec. 120-B provides for punishment for criminal conspiracy. Sec. 120-B provides for two different
punishments for criminal conspiracy.
3. The Criminal conspiracy falls U/s 120-B(1) is liable to be punished as abetment. U/s. 120-B para (2) Criminal
conspiracy is punishable with imprisonment for a term not exceeding six months or with fine or with both.
4. U/s. 120-B para (2) Criminal conspiracy falling under it is a non-cognizable, bailable, non
compoundable offence.

Definition and Essentials of Criminal Conspiracy - 5ection-120-A

1) Sec. 120-Adefines Criminal conspiracy as an agreement. It provides:

a) an illegal act or,
b) an act which is not illegal by illegal means,
2) An agreement to commit an offence amounts to a criminal conspiracy but any other agreement shall not
amount to criminal conspiracy unless it is

a) Some Act, besides the agreement

b) By one or more parties to the agreement
c) In pursuance of that agreement.

It is immaterial whether the illegal act is the ultimate object of the agreement or is merely incidental to that

31
object.

3) An act which is not an abetment through conspiracy (S.107 IPC) may be a criminal conspiracy.
4) Criminal conspiracy is essentially an agreement. Therefore, a minimum of two persons would be
necessary. Further such persons must be natural persons.

Wenhark V/s Margan, 1882: Held: Husband and wife are considered as one person. Defamatory statements by
husband to his wife against a third person will not constitute defamation.

Mouji v/s State, SC 1957: Husband and wife are taken to be one person. Therefore, any agreement between them
cannot be designated as criminal conspiracy.

Criticism: Husband and wife are one person, it is just a rule of courtesy and not a rule of law. Husband andwife are two
independent natural persons with separate rights and obligations under the law. Extension of the rule to criminal cases
is hardly in conformity with the considerations of public policy.

Punishment for Criminal Conspiracy - Section- 120-8

1. Whoever is a party to a criminal conspiracy to commit an offence punishable with death or life
imprisonment or rigorous imprisonment for a term exceeding two years shall be punishable as abettor of
that offence.

(If there is no express provision for punishment for criminal conspiracy)

2. All other cases of criminal conspiracy are liable to be punished U/s 120-B(2) Imprisonment

of either description not exceeding 6 months or with fine or with both.

OFFENCES AGAINST PUBLIC TRANQUILITY

Rioting And Affray GeneralGeneral

1) Sec. 146 defines rioting Sub. Sections 147 & 148 provide for punishment for the offence of rioting. Sec. 147
provides for punishment for simpler forms of rioting. Sec. 148 provides for punishment for aggravated forms of
rioting.

2) Sec. 159 defines the offence of Affray. Sec. 160 provides for punishment for offence of affray.

Definition and Essentials of Rioting - Section-146 : "Whenever force or violence is used by an unlawfulassembly or
by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty
of the offence of rioting."

From the analysis of Sec. 146, following essentials of rioting are made out:

a) There must be an unlawful assembly.

b) Force or violence must have been used by any member of such assembly in prosecution ofcommon
object of that assembly.

32
 If the above requirements are satisfied, every member of that assembly would be guilty of
committing rioting.
c) Unlawful assembly - five or more persons are designated as an unlawful assembly if they have anyof the
seven common objects enumerated in Sec. 141.
d) Use of force or violence by any member of unlawful assembly in prosecution of its common objectmakes
all the members liable for rioting.
e) Here the word 'force' is to be used in the sense it has been defined in (Sec. 349-IPC) (Ganikhan, 46,I.C.) &
Oudh-IC-lndian cases.
The word 'force' in Sec. 146 is limited to men or persons.
f) The word 'violence' is comparatively a wider term than 'force'. Violence extends to men as well as toproperty.
Therefore, the word violence shall cover use of force even against things. (Samar-ud-din, 1912, Calcutta)
g) Rasool, 1889. In this case Plauden J. observed that it is the use of force which distinguishes the rioting from
unlawful assembly.
h) Use of force or violence is necessary for constituting rioting. The prosecution is bound to establishthat use of
force or violence was made by a member of unlawful assembly in prosecution of common object.
Punishment for Rioting - Section- 147, 148

1. Sec. 147 provides for punishment for simple rioting. Under it, the person found guilty is punishable with
imprisonment of either description for 2 yrs or with fine or with both.

2. Sec. 148 provides for punishment for aggravated forms of rioting. Under it, the person found guilty is liable to
punishment up to 3yrs or fine or with both.

Sec. 148 is attracted where rioting is committed being armed with deadly weapon. The section is also
attracted in cases in which the thing used as a weapon of offence is likely to cause death.

Rioting is a cognizable and a bailable offence. It is non compoundable.

Definition and Essentials of Affray - Section- 159

1. Sec. 159 defines Affray as under: "Where two or more persons, by fighting in a public place, disturb the
public peace, they are said to commit an affray."

A mere verbal wrangle is not fighting. So to constitute fighting there must be use of limbs andviolence
by both parties.

From the analysis of Sec. 159, the following essentials of affray are made out:

a) There must be two or more persons.

b) There must have been a fighting between such persons.
c) The fight must have been at a public place.
d) Such fight must have resulted in the disturbance of public peace.

33
2. Two persons may be enough for affray. An unlawful assembly is not necessary.

3. Fight is an essential ingredient of affray. Fight suggests active opposition and conflict. It is serious inso far as
consequences are concerned.

A mere use of threatening words is not enough. The fight presupposes an attack. A scuffle with the use of
violence is a fight.

4. Fight must have been at a public place. A place is a public place if people may frequent it without any
hindrance. It is not material whether the public has a right to frequent that place or not.

5. Madan Mohan, 1883: Held: A Railway platform is not a public place when no other train exceptgoods
train is to arrive there.

13
6. Joghe vis State : Held: Where one of the parties is beating the other and that other did not offerany
resistance or opposition, it would not constitute a fight.

7. Besides, the prosecution must establish that disturbance of public peace has occasioned onaccount of
fight. A mere public inconvenience does not constitute disturbance in public peace.

A general Sensation and obstruction or disturbance is necessary.

Punishment for Affray - Section- 160: The person found guilty is liable to be punished with imprisonmentof either
description which may extend to one month or with a fine up to Rs. 100 or with both.

Affray is a cognizable, bailable and non compoundable offence.

Distinction between Rioting & Affray

Rioting Affray
1) Definition u/s 146 1) Definition u/s 159
2) Punishment u/s 147 & u/s 148 2) Punishment u/s 160
3) More serious offence 3) Less serious comparatively.
4) Unlawful assembly required 4) Requires two persons only.
5) Use of force or violence in prosecution of 5) Fighting at public place.
common object. (Public place not necessary)

FALSE EVIDENCE (SEC. 192)

DISTINCTION BETWEEN "GIVING FALSE EVIDENCE" AND "FABRICATING FALSE EVIDENCE":

The distinction between giving false evidence and fabricating false evidence lies in the following five
important points:

1. First of all, it is the intentional giving of false evidence or the intentional fabrication of false evidencethat is
punishable. The law will not punish a witness who, through ignorance or mistake, or through carelessness or
inadvertence, foolishly makes a false statement.

The intention forms the essence of both offences. But there is a difference between the two as regards

34
 the kind of intention. In the case of giving false evidence, only general intention is sufficient. It is sufficient if
the false evidence is intentionally given, i.e., if the person making the statement makes it advisedly knowing it
to be false and with the intention of deceiving the person conducting the proceeding and leading such person to
believe that what he states is true. In the case of fabricating false evidence, a particular intention is essential. The
offence cannot be committed unless the accusedfabricates evidence with a particular intention, viz., to use a false
circumstance, entry or document inevidence in a proceeding and to procure the formation of a material point.

2. Secondly, the offence of giving false evidence is committed by a person who is bound by an oath or by an
express provision of law to state the truth or to make a declaration upon any subject. In the case offabricating false
evidence, this ingredient is not necessary.

3. Thirdly, in the case of giving false evidence, the false statement need not be made on a material point. The
offence is complete if any false statement is made. But in the case of fabricating false evidence, the evidence
fabricated must be on a material point; otherwise the offence cannot be committed.

4. Fourthly, the question of the effect of the evidence on the officer before whom the evidence is givenis of no
consequence in the case of giving false evidence, but this is an important point to be consideredin fabricating false
evidence. If the accused gives any information which he knows or believes to be false he shall be punished.

Offences affecting Public Health (Section 268-278)

There are ten offences against public health. These fall in groups, viz.- Public nuisance: S. 268.
1. Acts likely to spread infection: Ss. 269-271.
2. Adulteration of food or drink: Ss. 272-273.
3. Adulteration of drugs: Ss. 274-276 and
4. Fouling water and vitiating atmosphere: Ss. 277-278.
A common nuisance is not excused on the ground that it causes some convenience or advantage: S. 268.

Kinds of Nuisance: It is to be remembered that nuisance is of two kinds- public and private.

A private nuisance is some unauthorized use of a man's own property causing damage to the property of another, or some
unauthorised interference with the property or proprietary rights of another, causing damage, but not amounting to
trespass. Private nuisance includes obstruction to light and air, wrongful escape of foul gas, or noise, water, filth,
germs etc. Thus, if one's neighbor plays rock-and-roll music at full blast well past midnight, this may cause
considerable inconvenience and annoyance, and one would havea civil cause of action against such a music-minded
neighbor. But, one cannot criminally prosecute the neighbor, the act being a private nuisance, and not a public
nuisance, which alone is made punishable under the Code.

A public nuisance or common nuisance is an offence against the public, either by doing a thing which tends to the
annoyance of the whole community in general, or by neglecting to do anything which the commongood requires.
Acts which seriously interfere with the health, safety, comfort or convenience of public generally, or which tend to
degrade public morals, have always been considered to be public nuisance.

35
Thus, a public nuisance cannot be committed with respect to a particular individual or individuals. When the nuisance
affects the public or a section of the public residing in the neighborhood or persons exercising a public right, it is
indictable, and there is no excuse to say that it causes some convenience or advantage.Acts which seriously interfere
with the health, safety, comfort or convenience of the public generally, or which tend to degrade public morals, are
always punishable as public nuisance. Thus, blasting stones neara public road, on working a printing press at night in a
residential quarter of a city, or keeping gaming housesor slaughtering animals in a public place, are instances of public
nuisances for remedying which, both a civilsuit, as also a criminal prosecution, will lie.

Public and private Nuisance Distinguished: There are five points of distinction between the two:

a) As to the Nature of the Right Involved: A public or common nuisance affects the public at large, orsome
considerable portion thereof, whilst a private nuisance affects only one person or a determinatebody of persons.
In other words, while a public nuisance is an offence against public rights, safety orconvenience, a private
nuisance is a violation of the private right of a person to the comfortable occupation of property.

b) As to who can Sue: Public nuisance does not create a civil cause of action for any person. An action cannot
be maintained by a private individual in his own name in respect of public nuisance, except abatement, damages
and injunction. Private nuisance, on the other hand, is actionable at thesuit of any person in possession of land who
is injured by reason thereof.

c) As to Acquisition of Right of Nuisance: Whilst no length of time can legalize a public nuisance, a right to
continue a private nuisance may be acquired by prescription.

d) Remedies Available: An action for damages lies in respect of a private nuisance, but not in respect of public
nuisance, unless the plaintiff has sustained special damage. In the case of a public nuisance,the action generally is
for declaration and injunction.

e) Abatement: While a private nuisance may be abated by the person injuriously affected thereby, apublic
nuisance cannot be so abated by him.

Abatement of Nuisance: A private person can, under certain circumstances, abate a private nuisance,i.e., take the
law into his own hands, and stop it in a reasonable manner. But a public nuisance cannot be abated by private
individuals. There is no statutory provision in India justifying a private person or a member of the public in demolishing a
building and causing loss to another by way of abating a nuisance.

In Narsihulu v. Nagur14, the complainants rebuilt their house which abutted on a public street. A portion of the
superstructure was an encroachment on a portion thereof. The accused gathered there for the purpose ofabating what
they considered to be a public nuisance, and demolished a portion of the superstructure which stood on the encroached
portion. The harm caused by the encroachment was not of such a nature or soimminent as to justify the accused to
take the law into their own hands and demolish the superstructure. Itwas held that, as the accused had no right of
abating the public nuisance, the demolition of the superstructure by them had no justification in law, the loss caused
to the complainants by such demolitionwas wrongful loss within the meaning of S. 23, and the accused were guilty of
the offence of mischief.

Ingredients of Section 268: The following are the two ingredients of S. 268:

36
 a. Doing any act or being guilty of an illegal omission. Illegal omission.-It is to be rememberedthat every
omission causing a nuisance is not punishable. The omission must be illegal. The word illegal is defined
in S. 43 as applicable to everything which is an offence or which is prohibited by law or which
furnishes ground for a civil action.
b. Such act or illegal omission-

i. must cause any common injury, danger or annoyance. (i) to the public. or (ii) to thepeople
in general who dwell or occupy property in the vicinity, or

ii. must necessarily cause injury, obstruction, danger or annoyance to persons whomay have
occasion to use any public right.

Common Injury, Danger etc.: The injury contemplated in this section must be common, i.e., it must affectthe
public, and not any solitary individual. There is no nuisance where there is no annoyance to the public.

Acts likely to spread infection (5s. 269-271): Acts likely to spread infection (and which are made
punishable) are two:

1) Negligent or malignant act likely to spread infection or any disease dangerous to life: Ss. 269-270.

2) Willful disobedience to a quarantine rule: S 271

IMPORTANT QUESTIONS

Q.1. Discuss the offence of criminal conspiracy and distinguish it from abetment and conspiracy.

Q.2. What is abetment? Discuss the various modes of abetment.

Q.3. Mistake of fact is defence but not the mistake of law.

Q.4. State the extent to which Mc Naughtier rules have been incorporated in Sec. 84 of I.P.C

Q.5. State the law relating to criminal liability of insance person and intoxicated person.

Q.6. Criminal conspiracy can be executed in the dark. Discuss the statement in the light of Section 120-A of
IPC.

Q.7. What is nuisance? Distinguish Public nuisance and Private nuisance.

Q.8. Point out difference between fabricating false evidence and giving false evidence.

37
 UNIT - III
OFFENCES AFFECTING THE HUMAN BODY

Offences affecting life (Section 299-377)Culpable

Homicide & Murder

General: Following are the main offences affecting human life:

a) Culpable homicide.
b) Murder Culpable homicide

Culpable homicide

1. Culpable homicide is called manslaughter under English law. Under US Law it is called seconddegree
murder.

2. Under Us law, murder is called first degree murder.

3. Culpable homicide has following two kinds :

a) Culpable homicide not amounting to murder. (Culpable homicide Simplicitor)
b) Culpable homicide amounting to murder (Murder)

4. Both in Culpable homicide (not amounting to murder) and in murder, death of a human being takesplace.
The degree of criminality is different in the two offences.

5. Culpable homicide as defined in Sec. 299 & Sec. 300 specifies the additional requirements whichaggravate
culpable homicide to make it a murder.

6. Every murder is primarily a culpable homicide. In fact, murder is only a species of culpable
homicide, which is a genus.

7. Sir Tames Stephan has criticized the definitions of the offences-culpable homicide and the murder.He is of
the view that the definitions are not well drawn.

8. These definitions are the weakest part of the code.

(Homo-man, cido- cut)

9. a) Culpable homicide is defined u/s 299 and is punishable u/s 304 of the code.

b) Murder is defined u/s 300. Sec. 300 is to be read with Sec. 299. Murder is punishable u/s 302 IPC.
10. 80th culpable homicide and murder are cognizable, non bailable and non compoundable. 80th are

38
 exclusively triable by court of session.

Definition of Culpable Homicide - Section- 299: Whoever causes death by doing an act with the intention of causing
death, or with the intention of causing such bodily injury as is likely to cause death, or with theknowledge that he is
likely by such act to cause death, commits the offence of culpable homicide.

From the analysis of Sec. 299, following essential elements of culpable homicide are made out:
a) The accused must have committed some act
b) The act must have been committed with any of the following intentions or knowledge:
i) Intention to cause death.
ii) Intention to cause such bodily injury as is likely to cause
iii) Knowledge that the death is likely to be caused thereby.
c) The victim must have died in consequence of the act of the accused person.

Death caused by an act done with the intention of causing death constitutes culpable homicide of the first degree. This
is the gravest form of culpable homicide. It constitutes murder. (If the case does not fall under any of the exceptions to
Sec. 300).

Illustration: (a) of Bare Act: A lays sticks and turf over a pit, with the intention of thereby causing death or with the
knowledge that the death is likely to be thereby caused. 'Z' believing the ground to be firm, treads onit, falls in and is
killed. '/\ has committed the offence of culpable homicide.

Death resulting from an act done with the intention of causing such bodily injury as is likely to cause death constitutes
culpable homicide in the second degree. It is not invariably murder. It would be murder if it satisfies the requirements
of clause II or III to sec. 300. (If the case does not fall in any of the exceptions toSec. 300)

Illustration: (b) of Bare Act: A knows Z to be behind a bush. 8 does not know it A, intending to cause, or knowing
it to be likely cause's death, induces 8 to fire at the bush. 8 fires and kills Z. Here 8 may be guilty of no offence but A has
committed the offence of culpable homicide.

Death caused by an act done with the knowledge that death was likely to be caused thereby constitutes culpable
homicide of third degree. This culpable homicide is also not a murder invariably. It may amount to murder if the
requirements of clause IV to Sec. 300 are satisfied. (If the case does not fall under any of the exceptions to Sec. 300)

Illustration: (c) of Bare Act: A, by shooting at a fowl with the intent to kill and steal it, kills 8 who is behind a bush, A
not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide,
as he did not intend to kill 8 or to cause death by doing an act that he knew was likely tocause death.

Explanation 1 to Sec. 299: A person who causes bodily injury to another who is labouring under a disorder,disease or
bodily infirmity, and thereby accelerates the death of the other, shall be deemed to have causedhis death. (culpable
homicide of second degree)

Explanation 2 to Sec. 299: Where death is caused by bodily injury, the person who causes such bodily

39
injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the
death might have been prevented, (will amount to culpable homicide of second degree).

The principle underlining explanation II is that one who supplies the primary cause of death is to be held liable for
deemed death. In such cases the secondary cause of death is to be ignored.

Constructive doer is liable as the actual doer is. The above principle has its basis in public policy. Explanation 3 to
Sec. 299 : The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable
homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not
have breathed or been completely born.

1
1. Nirbhaya Singh v/s State : A constable who had a loaded but defective gun with him wanted toarrest an
accused who was going on a bullock cart by climbing on the cart and there was a scuffle between him and the
accused and in course of which the gun went off and killed the constable.

2. Held: The accused Nirbhaya Singh was not liable for culpable homicide because the intention or knowledge
contemplated in Sec. 299 could not be proved.

2
3. Joginder Singh v/s State : Where a person being pursued could not be held guilty of culpable homicide.
Where a person being pursued closely on his heels in an open field by his enemies who had already killed one
of his relations in the incident jumped into a well in order to save himself andin the process met with his death,
it was held that the act of the accused did not constitute an actwhich was done with the intention or knowledge
specified in Sec. 299, IPC, and as such they had to be acquitted.

3
4. Basappa v/s State : Where a person was attacked by his enemies on a roof and given a few cutswith a
dangerous weapon and in order to avoid the attack he jumped from the roof to his death, it was held that even
if the death was caused by his own act of jumping, the accused were guilty of murder as jumping was
necessitated by their act.

4
5. Punchanun Tanti v/s State : The accused, having received great provocation from his wife, pushed her
with both arms so as to throw her with violence to the ground, and after she was down, slapped her with his
open hand. The woman died on account of the rupture of her spleen which was diseased. It was held that he was
guilty of causing hurt.

6. Chatur Nath v/s States: In the course of an altercation between the accused and the complainanton a dark
night, the former aimed a blow with his stick at the head of the latter. To ward off the blow,the complainant's
wife, who had a child on her arm, intervened between them. The blow missed its aim, but fell on the head of the
child, causing severe injuries, from the effects of which

it died. It was held that inasmuch as the blow, if it had reached the complainant, would have causedsimple
hurt, the accused was guilty of simple hurt only

Culpable Homicide when Amounts to Murder - Section- 300: Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is done with the intention of causing death. (Sec.300
para1).

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is

40
caused is done with the intention of causing bodily injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused (Sec. 300 para 2).

Except in the cases hereinafter excepted culpable homicide is murder, if the act by which the death is caused is done
with the intention of causing bodily injury to any person and the bodily injury intended is sufficient in the ordinary
course of nature to cause death (Sec. 300 para 3).

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is
known to the doer to be so imminently dangerous that it must in all probability, cause death orsuch bodily injury as
is likely to cause death and commits such act without any excuse for incurring the riskof causing death of such injury
as aforesaid (Section 300 para 3).

Culpable Homicide when it does not amount to Murder:

1. Culpable homicide would not amount to murder in the following cases:
a) Culpable homicide would not amount to murder if it does not satisfy the additional requirements ofthe
corresponding clause of Sec. 300.

b) Culpable homicide would not amount to murder if it falls under any of the five exceptions to Sec.300.

2. Following are the exceptions to Sec. 300.

a) Grave and suddedn provocation
b) Exceeding in the exercise of right of Private defence.
d) Public servant exceeding powers given to him by law.
e) Causing of death in a sudden fight, without premeditation.
f) Consent of the deceased above the age of 18.

Grave and Sudden Provocation : Culpable homicide is not murder if the offender whilst deprived of powerof self-
control by grave and sudden provocation causes the death of person who gave the provocation or of any other person by
mistake or accident.

It only reduces criminal liability. No complete exception from criminal liability.

Exception 1: to Sec. 300 is subject to following limitations:

a) The provocation must not be sought or voluntarily provoked as an excuse for killing or doing harm toany
person.

a. Provocation is not given by:

a. Anything done in obedience to the law.
b. Anything done by a public servant in lawful exercise of his powers.
c. Anything done in the lawful exercise of the right of private defence.

Whether the provocation was grave and sudden to prevent the offence from amounting to murder is a question of
fact.

41
 6
Artificial Provocation – KM Nanawati v/s State of Bombay
Held :
1. In India, words and gestures may, under certain circumstances, cause grave and suddenprovocation.

2. The mental background created by previous acts of the victim may be taken into accountwhen the
plea taken is of grave and sudden provocation.

3. Nature of the act of the victim is also to be taken into consideration. The court has to see whether a
reasonable man belonging to the same class of society to which the accused belongs, if placed in the
same situation, would suffer provocation of a nature so as to lose hisself-control.

4. The fatal blow should be clearly traceable to the passion arising from the provocation. A fatal blow after
the passion has cooled down cannot be the basis of sudden and grave provocation. Where there was
time and scope for premeditation and calculation, the benefitof exception 1 cannot be given.

State v/s Ullah, 1950, Cuttack: Held: Mere words howsoever provocative cannot so provoke a reasonable man as to
induce him to commit a violence.

(This case was overruled in KM Nanawati's case, 1962, SC)

Exception II - Exceeding the limits prescribed by law in exercise in good faith of Right of Private defence:
Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or
property exceeds the power given to him by law and causes the death of the personagainst whom he exercises the right.

Benefit of exception can be availed if it is further shown that the offender, without premeditation and without any
intention of doing more harm than is necessary, has caused the death in question.

1. Culpable homicide is not a murder if the offender, being a public servant or aiding a public servantacting for
the advancement of public justice, exceeds the power given to him by law, and causes death.

2. Benefit of exception can be claimed only if the act done was in good faith and only in the belief that the act
done was lawful and necessary in the due di,scharge of his duties. Further, it has to be shownthat the offender did
not have any ill will towards the deceased.

Exception IV- Death Caused in a Sudden Fight:

1. Culpable homicide is not murder if it is committed without premeditation in a sudden fight inheat of
passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in
a cruel or unusual manner.

2. Here it is immaterial as to which party offers provocation or commits the assault.

Exception V: Culpable Homicide with Consent: Culpable homicide is not murder if the person whosedeath is
caused, being above age of 18 years, suffers death or takes the risk of death with his own consent.

42
Distinction between Culpable Homicide and Murder:

1. The main point of distinction between murder and culpable homicide is degree of criminality. Degree of
criminality is higher in case of murder in comparison to culpable homicide.

2. Every murder is primarily and necessarily a culpable homicide. But every culpable homicide is not
necessarily a murder. In other words culpable homicide is a genus, while murder is only a speciesthereof.

3. Murder has been defined u/s 300. It is punishable U/s 302. Culpable homicide is less serious an offence and
is punishable u/s 304 IPC.

4. The distinction between culpable homicide and murder is very fine but is appreciable. In order todistinguish
the two offences the key words occurring in the different clauses of Sec. 300 must betaken note of.

5. R V/s Govinda, (1876, Bombay): In this case Melvile J. distinguished the offence of culpable homicide
from murder by undertaking a comparison between the corresponding clauses of the two sections.

6. State v/s R. Punnaya, 1977, SC:

a) The code practically recognizes three degrees or kinds of culpable homicide.

b) Culpable homicide in the first degree has been defined as murder in Sec. 300. It is the gravest form of
culpable homicide.
c) Second culpable homicide is termed as culpable homicide in second degree. It is punishable underclause I of
Sec. 304.
d) Culpable homicide in the third degree is the lowest from. It is punishable under clause II of Sec. 304.
e) The courts must first see whether the death complained of has resulted from the act of the accused.If the act of
the accused in question is in affirmative Sec. 300 should be taken into consideration.
f) If the case is not covered u/s 300 it would not be a murder. Further, if case falls in any of the
exceptions to Sec. 300 again it would not be a murder.
g) The above guidelines, if kept in mind, would facilitate the task of the court.

Punishment:

1) Culpable homicide (not amounting to murder) is punishable u/s 304. Culpable homicide of the first and
second degrees are punishable under clause I to Sec. 304. The punishment provided is life imprisonment or
imprisonment of either description which may extend up to 10yrs and fine.

Culpable homicide of third degree is punishable with an imprisonment of either description which mayextend
up to 10yrs or with fine or with both.

43
2) Murder is punishable u/s 302 IPC. Life imprisonment is the general punishment to be given formurder.
In the rarest of the rare case murder may be punished with death.

The rarest of the rare cases are the cases in which the offender commits murder in the most cruel and unusual
manner.
Culpable Homicide by Causing Death of Person other than Person whose Death was Intended : Section- 301

1. The accused must have intended or known to be likely to cause death.

2. The offender must have caused death of a person by the act though he neither intended nor knew tobe likely to
cause death of a person actually killed.
3. In the above case, the accused would be liable to be punished as if he had caused the death of theperson
whose death he intended or known or likely to be caused.
4. The principle incorporated in Sec. 301 is generally known as Doctrine of Transfer of Malice.
5. A person whose case, falls u/s 301 is to be punished U/s 302 or 304 as the case may be.

Punishment for Murder Committed by a Person under Life Imprisonment. The section provides fordeath as
the only punishment - Section- 303

Mithu V/s State of Punjab7: This section has been struck down by the Supreme Court as void and unconstitutional
being violative of both Arts. 14 and 21 of the Constitution. It regards life-convict to be a dangerous class without any
scientific basis and thus violates Art. 14 and similarly by completely cutting out judicial discretion it becomes a law which
is not just, fair and reasonable within the meaning of Art. 21.

a) It was declared unconstitutional as it deprives the court of its discretionary power and compels the judge to
act like a machine.

b) Death penalty given by Court of Session shall not be executed unless it is confirmed by the High Court.

c) Doctrine of transfer of malice is also known as Doctrine of transmigration of malice.

Hurt (Section 319)

1. Sections 319-338 provides for hurt and its different aspects.

2. Sec. 319 defines the term 'hurt'. Sec. 320 lists certain kinds of hurts which have been designated asgrievous.
3. Hurt is causing:
a) bodily pain; or
b) bodily disease; or
c) bodily infirmity, to a person.

Grievous Hurt - Section- 320: The following kinds of hurt only are designated as grievous:

44
1. Emasculation (making a person sexually incapable or weak)
2. Permanent privation of the sight of either eye.
3. Permanent privation of the hearing of either ear.
4. Privation of any member or joint.
5. Any hurt which endangers life or which causes the sufferer to be in bed during the space of twentydays in
severe bodily pain, or unable to follow his ordinary pursuits.

There is no importance of intention u/s 319 or 320.

Voluntarily causing Hurt – Section – 321, 323, 334

1. Whoever does any act with the intention of causing hurt to any person and does cause hurt to any person
voluntarily commits hurt.

2. Whoever does any act with the knowledge that he is likely to cause hurt to any person, and does cause hurt,
is said voluntarily to cause hurt.

b) Such an act must have been done:

i) With the intention of causing hurt; or
c) Must have thereby caused hurt to any person.

The offence u/s 321 is punishable u/s 323 (Imprisonment of either description up to one year or fine up toRs. 1000/-
or both). It is non-cognizable, bailable, compoundable and triable by a Magistrate.

Section- 334: Provides where the hurt is caused under provocation.

If the voluntary causing of hurt is referable to grave and sudden provocation, the punishment may be reduced to
imprisonment of either description up to 1 month or fine up to Rs. 500 or both.

1) Whoever does any act with the intention of causing grievous hurt to any person and does cause grievous
hurt to any person voluntarily commits grievous hurt.

2) Whoever does any act with the knowledge that he is likely to cause grievous hurt to any person, anddoes cause
grievous hurt is said voluntarily to cause grievous hurt.

a) The accused must have done some act.

b) Such an act must have been done:
i) With the intention of causing grievous hurt; or
ii) With the knowledge that hurt was likely to be caused thereby; and

c) Must have thereby caused grievous hurt to any person.

The offence u/s 322 is punishable u/s 325 (Imprisonment, of either description up to 7yrs and also fine.)It is

cognizable, bailable and compoundable offence. It is triable by Magistrate.

45
Section- 335: If the voluntarily causing of grievous hurt is referable to grave and sudden provocation thepunishment
into be reduced to imprisonment, of either description up to four years or with fine up to Rs.2000 or both.

Sub. Sec. 334 & 335 are to be read with exception 1 to Sec. 300 (requirements (proviso) to exception 1 toSec. 300 also
apply to Section 334 and 335).

Wrongful Confinement and Wrongful Restraint

Sec.- 339-Wrongful restraint Sec.-

340-Wrongful confinement
Law is not after form but is after effect.
Wrongful confinement is called False imprisonment under the law of torts (It is a civil wrong also). Form of
obstruction is immaterial. It is sufficient that a person is wrongfully abstained fromexercising his
right to go.

General :

1. Chapter XVI (Sections 299-377) provides for offences affecting the human body.

2. Sections 339 and 340 of Chapter XVI define wrongful restraint and wrongful confinement respectively.

3. Every wrongful confinement is primarily a wrongful restraint. However, every wrongful restraint isnot
necessarily a wrongful confinement. Therefore, wrongful restraint is a genus and wrongful confinement is
its species.
4. Wrongful restraint is punishable U/s 341. (simple imprisonment up to one month or fine up to Rs.500 or
both). Wrongful confinement is punishable U/s342. (imprisonment up to 1 year or fine up toRs. 1000 or both)

Wrongful Restraint - Section- 339 read with Sec.- 341: Whoever voluntarily obstructs any person so asto prevent
that person from proceeding in any direction in which that person has a right to proceed, is said to wrongfully restrain
that person.

Sec. 339 allows one exception. Therefore, it is not a wrongful restraint to obstruct a private way to a land or water which
a person in good faith believes himself to have a lawful right to obstruct.

Essential Elements:

1) The complainant must have a right to proceed in any direction.

2) The accused must have made a voluntary obstruction.
3) On account of the obstruction the complainant must have been obstructed from proceeding in a direction
in which he had a right to proceed.

4) The accused must not have made restriction under a belief in good faith that he had a legal right.

46
Right to Obstruct: The form, kind or reason of the obstruction is not relevant. Law is after the consequence and not after
the form of obstructions.

Penal laws are to be strictly construed as they have direct a impact on the personal liberty and life of the accused.

1) Shan Mugham, 1971 Cr. LJ 182: Held: Sec. 339 contemplates physical obstruction. Other
obstructions may also be covered under it.

2) Arumuga Nadar, 1910 : Held: During the absence of complainant and his wife the accused put alock at the
outer door of the house. The accused is guilty of wrongful restraint.

3) Gopala Reddi vis Laxmi Reddy, 1947: The accused obstructed a bus in which the passengerswere
traveling. Accused was held liable for wrongful restraint.

4) Ram Lal, 1912: Held: There would be no wrongful restraint if the passengers sitting in the bus canget down
and proceed without being obstructed.

Punishment for Wrongful Restraint: Section- 341 - Simple imprisonment up to one month or with fine upto Rs. 500
or with both.

Wrongful confinement – Section -340

a) Sec. 340 provides: Whoever wrongfully restrains any person in such a manner as to prevent thatperson from
proceeding beyond certain circumscribing limits, is said wrongfully to confine that person.
Following essential elements are made out from the analysis of Sec. 340:
a) The accused must have committed a wrongful restraint within the meaning of Sec. 339.
b) By such wrongful restraint the victim must have been prevented from proceeding beyond certain
circumscribing limits.

2) GM Rangacharya, 1985 : Held: For wrongful confinement no wall, wire or enclosure is necessary.
Confinement may be effected even in an open land.

3) Malice is not essential for wrongful confinement.

The time/period of confinement is also not material except in the matter of punishment (to determine punishment).
A person may be wrongfully confined even without being aware of that (no knowledge of confinement).

Punishment for Wrongful Confinement - Section- 342: Imprisonment of either description up to one year or with
fine up to Rs. 1000 or with both.

Wrongful confinement is also a tort. Under law of torts, it is known as false imprisonment or false arrest. The victim any
institute civil as well as criminal proceedings simultaneously.

Distinction between Wrongful Restraint and Wrongful Confinement

47
Wrongful Restraint
a) It is partial restraint of the personal liberty of a person.
b) It does not imply wrongful confinement.
c) It does not require any limits or boundary.
d) In wrongful restraint movement in only one or some direction is obstructed leaving thereby a choicefor
victim to move in any other direction.

Wrongful Confinement
a) It is absolute or total restraint or obstruction of personal liberty.
b) It implies wrongful restraint.
c) It requires certain circumscribing limits which are always necessary.
d) In wrongful confinement movement in all directions is obstructed and a person is either not allowedto move
or is compelled to move against his wishes.

CRIMINAL FORCE AND ASSAULT

1. Sections (299-377) provide for offences against human body.

2. Sections (349-358) provide for criminal force and assault.
3. 349 defines force.
350- defines criminal force

Whoever
1) Intentionally uses force to any person, without that person's consent.

Uses that force :

1) Knowledge that he is likely to cause injury, fear or annoyance to that person is said to use criminalforce to
that other.

4. Section 351- defines assault:

Whoever;
- makes any - gesture
- preparation

With intention
knowledge
A such gesture/preparation will cause

any person present to apprehend that he is about to use criminal force to that person is said to commit anassault.

- Mere words do not amount to assault.

Words+gestures/prep-assault.

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 - 352-punishment assault

Criminal force Aotherwise than on

Gave provocation

Imprisonment up to 3 months or RS.500/- fine or both.

353 - Assault to deter punishment from discharge of his duty:
Imprisonment up to 2yrs or fine or both
354 - Assault to woman to outrage her modesty
Imprisonment up to 2yrs or with fine or with both.355
- to dishonour
358 - Assault on grave provocation2
months/fine/both
356- to commit theft- simple imprisonment up to 2
months/with fine/with both 1 month/fine/both
357 – to wrongfully confine a person
2 months/100/B

KIDNAPPING AND ABDUCTION

General
1. Sec. 359 provides for two kinds of kidnapping:
a) Kidnapping from India (Sec. 360)
b) Kidnapping from lawful guardianship. (Sec. 361)
2. Both the offences are punishable U/s 363.
3. Sec. 362 defines Abduction. Abduction by itself is no offence. Kidnapping from India - Section- 360

Kidnapping has following two kinds:

1. Kidnapping has following two kinds:
a) Kidnapping from India.
b) Kidnapping from lawful guardianship.
2. Sub. 360 defines kidnapping from India. It provides:

"Whoever conveys any person beyond the limits of India without the consent of that person, or of some person
legally authorized to consent on behalf of that person, is said to kidnap that person from India."

From the analysis of Sec. 360 following essentials are made out:
1. The accused must have conveyed the victim.
2. The conveying must have been beyond the limits of India.

49
3. Such conveying must have been without the legally authorized on his behalf to consent.
4. Kidnapping from India may be committed against a person of any age. The conveying must havebeen of a
natural person.
5. The word 'person' has been used in narrower sense in Sec. 360. Here the word 'person' is restricted
to natural persons. Any company or body of persons or association are not persons for the purposesof Sec. 360.
6. The word conveying has not been defined in the code. Ordinarily it suggests carrying away orgetting
carried away.

The offence u/s 360 is punishable u/s 363. Punishment of either description which may extend up to 7 yrs and
also fine.

Kidnapping from Lawful Guardianship - Section 361

1. Sec. 361 provides: "Whoever takes or entices any minor under 16 yrs of age if is a male of under 18yrs of age if
is 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."

2. From the analysis of Sec. 361 following essentials are made out:

a) The accused must have taken or enticed a minor. (under 16 yrs in case of a male or under 18 yrs ofage in case
of a female) or a person of unsound mind.
b) Such taking or enticing must have been out of the keeping of the lawful guardian.
c) Such taking or enticing must have been without the consent of lawful guardian.

3. The word lawful guardian has been used in wider sense in Sec. 361. The explanation to Sec. 361 provides:

"Lawful guardian includes any person lawfully entrusted with the care or custody of the minor or other person."

4. Exception: Sec. 361 does not extend to the acts of following persons:
a) A person who in good faith believes himself to be the father of the illegitimate child.
b) A person who in good faith believes himself to be entitled to the lawful custody of such child.

The above persons may also be held liable for offence defined u/s 361 if their act is unlawful and for an immoral
purpose.

5. There is difference in ages of minors on the basis of their sexes. In case of male minor the age isunder 16yrs.
In case of female minor the age is under 18 yrs. of age.

Taking or Enticing

1. Taking or enticing suggests inducement or external influence. It has its basis in temptation or creation of a
false expectation. In it the act of the victim is not voluntary.

50
2. Taking or enticing suggests an active role of the accused persons.

8
1. Varadrajan v/s State of Madras : Held: Taking or enticing a minor is entirely different from permitting a
minor to accompany a person. The two expressions are not synonymous. In taking or enticing external
influence or inducement is necessary.

9
2. Nemai Chattroj vIs Emperor : X took away J, a minor girl, from her husband's house and keep herin his own
house for two days. One M removed her to his house and kept her for twenty days. Thereafter, M
clandestinely removed J to V's house and took her to Calcutta.

Held : Y could not be convicted of kidnapping J from lawful custody. Y cannot be said to have takenor enticed
J out of the keeping of her guardian.

3. Baldeo v/s State, 1870 : The accused met a girl aged about 14 years, who was living with a Brahmin woman in
the sarai of a village, where they maintained themselves on begging. The girl was persuaded by a goldsmith-
named Ghasi and was married to his son. But as she was no given enough food to eat, she lent herself to the
persuasion of the accused to quit Ghasi's house and to go with him for which he was prosecuted.

High Court held that since Ghasi from whose house the girl was abducted was not her lawful guardian, as
he had not been lawfully entrusted with the care and custody of the minor, the accused was not liable for
kidnapping.

4. Rasool vIs State, 1976, Alld: Held: It would be no defence to say that the victim was 0 immoralcharacter
or that she had consented.

Abduction – Section 362

1) Sec. 362 provides: "Whoever by force compels, or by any deceitful means induces, any person togo from any
place, is said to abduct that person."

2) One who commits abduction is not a criminal. Abduction by itself is no offence, it is only a helping or accessory
act.

3) Abduction is punishable only if it is committed by some criminal intention. Abduction in the circumstances
as contemplated by Sec. 364 to 368 may be punishable.

4) Allah Rakhyo, 1934, Sindh Held: To constitute abduction compelling by force or inducement bynecessary
means is necessary. For abduction it must be proved that the change of the mind of the victim was by external
influence.

5) Fatnaya, 1942, Lahore : Held: Taking a woman forcibly and against her desire constitutes abduction not
withstanding that the purpose was to take her to her husband.

6) Ganga Devi, 1914, Alld-: Held: Every time there is a fresh abduction when a person abducted istaken to a
fresh place. Thus abduction is a continuous act.

51
Punishable abductions

1) Abduction in order to murder (Sec. 364)

2) Abduction with intent secretly and wrongfully to confine a person (sec. 365)
3) Abduction of a woman to compel her marriage etc. (Sec. 366)
4) Abduction in order to subject a person to grievous hurt or slavery etc. (Sec. 367)
5) Wrongfully concealing or keeping in confinement abducted person (Sec. 368)
6) Abducting a child under 10 yrs of age with intent to steal from its person (Sec. 369)

Kidnapping Abduction

1) Minor - 16 - male 1) Any age

- 18 - female
unsound mind 2) Refers to the person kidnapped/ abductedneed
not be in the keeping of any body.

2) Removed out of lawful custody, no 3) Force, compulsion or deceitful means used.Kidnapping

of an orphan

3) Simple taking or enticing away of 4) Consent, if free and given voluntarily, a

unsound mind minor or condones the offence.

4) Consent of person taken immaterial. 5) Intention is important because abduction is

not an offence unless committed withcertain
intent

5) Intention of kidnapper is irrelevant.

6) Not a continuing offence; complete 6) Continuing offence so long as person isthe

moment a person is deprived of moved from one place to other
lawful guardianship

7) Substantive offence 7) Auxiliary offence, not punishable by itself

Till intention specified

SEXUAL OFFENCES

Rape: Section 375, IPC lays down that the sexual intercourse must be under circumstances falling under any of the
six clauses. A man is said to commit 'rape' who has sexual intercourse with a woman:

i) Against her will; or

ii) without her consent; or
iii) with her consent by putting her in fear of death or of hurt; or

iv) with her consent, when the man knows that he is not her husband and that her consent is

52
 given because she believes that he is another man to whom she is lawfully married; or

v) with her consent, when, at the time of such consent, by reason of unsoundness of mind orintoxication
or the administration by him personally or through another of any stupefying or unwholesome
substance she is unable to understand the nature and consequences of thatto which she gives consent;
or

Explanation: Penetration is sufficient to constitute sexual intercourse. Exception - Sexual intercourse by aman with
his own wife is not rape, if the wife is above 15 years of age.

It may be noted that if the woman is under 16 years of age, it is immaterial that the act be done with her consent or
even at the invitation of woman herself (or that she had sex experiences already), for the policyof the law is to protect
children of such immature age against sexual intercourse. This is also known as 'statutory rape'.

A 'man' is defined by Sec. 10 of the Code as a male human being of any age. Thus, a boy above 12 years of age is capable
of committing rape under this section, whereas a boy below 12 but above 7 years of ageenjoys a qualified immunity.

Punishment for Rape: S. 376 provides the punishments for various categories of rape as follows:

Rigorous imprisonment for not less than 10 years and upto life (i. e. life-imprisonment) and fine, for the following
persons, viz., whoever:

a) being a police officer commits rape-

i) within the limits of the police station to which he is appointed; or
ii) in the premises of any station house whether or not situated in the police stationto which
he is appointed; or
iii) on a woman in his custody or in the custody of a police officer subordinate to him;

b) being a public servant, takes advantage of his official position and commits rape on a woman in hiscustody as
such public servant or in the custody of a public servant subordinate to him; or

c) being on the management or on the staff of a jail, remand home or other place of custody established by or
under any law for the time being in force, or of a women's or children's institution,takes advantage of his
official position and commits rape on any inmate of such jail, remand home,place or institution; or

d) being on the management or on the staff of a hospital, takes advantage of his official position andcommits
rape on a woman in that hospital; or

e) commits rape on a woman knowing her to be pregnant; or

f) commits rape on a woman when she is under twelve years of age; or
g) commits gang rape.

In all the above cases, the minimum period of imprisonment is 10 years. However, in a fit case, the Court

53
may impose a sentence of simple or rigorous imprisonment for a term of less than 10 years, for adequate and special
reasons to be mentioned in the judgment.

Simple or rigorous imprisonment for not less than 7 years and upto life (i. e. life-imprisonment) and fine in all other cases,
except where the woman raped is his own wife and is not under 12 years of age, in which case the maximum
imprisonment is 2 years or fine, or both.

Here also, the Court may impose a sentence of less than 7 years, for adequate and special reasons to bementioned in
the judgment.

It is also clarified that when a woman is raped by one or more of a group of persons, acting in furtherance of their common
intention, each of such persons is deemed to have committed "gang rape". Various ingredients explained.-From the
definition given above, it is clear that "rape" is forcible ravishment of a woman, and the essence of the crime consists
in the act being done against the will or without the consentof the woman. Clauses (b) to (d) are only explanatory of non-
consent.

Against her Will: An act done against a woman's will when she is in full possession of her senses and reason, is
aware of what is being done and objects or resists.

Without her Consent: This occurs when the woman is incapable of knowing the nature of the act and thuslegally
unable to give rational consent or being aware of its nature, thinks that it is being done under circumstances which
make it an innocent act.

Man: A man of any age may commit the offence. Under the English law, a boy under 14 years of age, owingto physical
immaturity, is presumed to be incapable of committing this offence. But this presumption has noapplication in India.

Fear of Death: This means fear of death of herself or of any other person in whom she is interested. Thus, if a person
obtains consent of a woman by putting her in fear of death of her infant, such consent is not valid.

Intercourse with a Girl under Sixteen: The policy of the law is to protect a girl of immature age againstsexual
intercourse; hence, connection with even a girl under 16 would be rape, even though she consents to the act.

Explanation: The degree of penetration is immaterial. But some penetration, however slight is essential. It is not
essential that the hymen should be ruptured, or that there should be emission of semen. Without some penetration,
there can be no rape, though the act may amount to an attempt to rape.

Exception: A man cannot be guilty of rape of his own wife, if she is over the age of 15 years, on account of the
matrimonial consent she has given which she cannot retract. But he has no right to enjoy her person without regard
to the question of her safety.

Physical Incapacity: A person who, through impotency or otherwise, is physically incapable of committing rape cannot
be guilty of its attempt, but he may be found guilty under sec. 354 of indecent assault.

Can a Husband Abet Rape on his Own Wife? : A husband, no doubt, has a right to the person of his wife,and he
cannot be charged for forcible connection, but he has no right to invite others to ravish her. If he doesso, he can be said to
abet the offence.

54
Rape by Husband: It should be remembered that the distinction between rape by a husband on his wife and rape by
a man on any other woman lies in the age of the woman. If the woman is under 15 years of age,any man who has sexual
intercourse with her, be he her husband or not, and be it with her consent or not,would be guilty of the offence of rape.
For, under the exception to S. 375, a husband is not guilty of rape onhis wife if she is above 15 years: but under the
other clause of that section, subject to the exception of thehusband's case, a man is guilty of rape if he has sexual
intercourse with a woman who is under 16 years of age, even though the act be done with her consent or even at the
invitation of woman herself, for the policyof the law is to protect children of such immature age against sexual
intercourse. This is also known as statutory rape.

Rape, Assault and Criminal Force Distinguished

1. The offence of assault or criminal force to a woman (S. 354) is of lesser gravity than the offence ofrape: (S.
376).

2. In rape, there is sexual intercourse with a woman; in assault or criminal force to a woman, there isonly assault
or criminal force to a woman with the intention or knowledge that her modesty will be outraged.

Intercourse by a Man with his Separated Wife (5. 376-A) - Under S. 376 : A, if a man has sexual intercourse
with his own wife, who is living separately from him, under any decree of separation, or under any custom or usage,
and such intercourse is without her consent, he is punishable with imprisonment upto2 years and fine.

Intercourse by Public Servant with Woman in his Custody - (5. 376-8): If a public servant, taking advantage of
his official position, induces or seduces any woman in his custody to have sexual intercourse with him, and such
intercourse does not amount to "rape", he is punishable with imprisonment upto 5 years and fine.

Intercourse by Superintendent of Jailor Remand Home - (5. 376-C): If a superintendent or manager of a jail, remand
home or of a women's or children's institution, taking advantage of his official position, inducesor seduces any female
inmate of such jail, remand home or institute to have sexual intercourse with him,and such intercourse does not
amount to - "rape", he is punishable with imprisonment up to 5 years andfine.

Intercourse by any Member of the Management or Staff of Hospital - (5. 376-0): Whoever being on the management
of a hospital or being on the staff of a hospital, takes advantage of his position and has sexual intercourse with any
woman in that hospital, and such intercourse does not amount to "rape", he is punishable with imprisonment upto 5
years and fine.

Note : Sections 376 –Ato 376-0 (above) were inserted by the Criminal Law (Amendment) Act, 1993)

UNNATURAL OFFENCE (SECTION 377)

Lastly, the sixth kind of offence against the human body is of unnatural offence. Section 377 defines unnatural
offences as under:

55
Whosoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal,shall be
punished with imprisonment for life, or 10 years and fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this
section: Section 377.

This section provides punishment for what is known as sodomy, buggery and bestiality. The offence consists in a
carnal intercourse committed against the order of nature by a man with man, or in the samemanner with a woman, or
by a man or woman in any manner with a beast. As in rape, penetration, however slight, is essential. Consent is immaterial
in a case under this section. The person who takes a passive part is equally guilty as an abettor with the person actively
participating in the act.

IMPORTANT QUESTIONS

Q.1. "Without culpable homicide there can not be a murder." Discuss. Explain culpable homicide not
amounting to murder.

Q.2. Define culpable homicide and explain its essential ingredients with the help of suitable illustration.

Q.3. Distinguish between culpable homicide and murder.

Q.4. Define criminal force and distinguish from assault.

Q.5. Define kidnapping and abduction and distinguish between them. Are they continuing offences?

Q.6. Discuss the law relating to grave and sudden provocations as laid down in IPC and state the extentto which it
mitigates the responsibility of the accused for the offence of murder. Refer to case laws.

56
 UNIT – IV
OFFENCES AGAINST PROPERTY
THEFT, ROBBERY, EXTORTION, DACOITY
Theft (378-382)

Theft Simplicitor (378)

Agaravated Form of theft
Punishment of 378 (379)

Theft in Dwelling Theft by Clerk/ Theft with preparation to

house (380) Servant/Agent (381) Commit violence (382)
Theft
General

1. Sec. 378-462 provides for offences against the property.

2. The offences under this chapter may be broadly classified into following three classes:
a) Offences in which victim is deprived of his property (for ex. Theft, robbery, extortion, dacoity)
b) Offences in which victim suffers damage to his property (for ex. Mischief)
c) Offences which violate proprietary rights of victim. (for ex. Trespass)
3. In theft the victim is deprived of his property. Theft is a wrong against possession. Therefore, a person may
be held guilty of theft of his own property. Res null ins cannot be the subject matter oftheft (in no one's
possession). Natural (naturally independent and free) creatures free in their natural forms not being in anyone's
possession cannot be subjected to theft.

4. Movables alone are the subject matter of theft. An immovable property after being converted to movable
form can be subjected to theft.

5. A man, whether living or dead is not a property. Therefore, he cannot be subjected to theft. However,the human
body, human skeleton or any organ of human being preserved in any laboratory or scientific institution etc
are regarded as property and as such liable to theft.
6. Electrical energy is not a movable property. But on account of legal fiction created u/s 39 of the Indian
Electricity Act, 1910, dishonest use of electrical energy may amount to theft.
7. Land is not a movable property. Therefore, it cannot be subjected to theft.
8. Moving of a movable property with a view to take it dishonestly out of the possession of someone without
his consent constitutes theft. Intention to take permanently is not necessary to constitutetheft. Therefore,
accused cannot plead intention to return as a defence.
Theft is a wrong against possession of property (not against ownership).Where
anything is in no one's possession it cannot be said to be stolen.
Only moveable property can be stolen. But immovable can be converted into moveable and then
57
 theft committed.

Sec. 23-wrongful gain/wrongful loss Sec. 24-dishonest intention/mens rea.

Mischief against property
Human being is not a property, though animal may be.Dead
body is not a property.
Preserved human body/human parts could be stolen.
Electricity-not moveable-fiction juris (legal fiction) thus can be stolen.

Essentials of Theft: On the basis of section 378 of IPC the following are the essentials of theft.
1. Dishonest intention to take property
2. The property must be movable
3. It should be taken out of the possession of another person
4. It should be taken without the consent of that person; and
5. There must be some movement of the property in order to accomplish the taking of it.

A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes
capable of being the subject of theft as soon as it is severed from the earth-

Explanation 1: A moving effected by the same act which effects the severance may be a theft Explanation2: A person
is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any
other thing, as well as by actually moving it-

Explanation 3 : Bisakhi, (1917) PR No. 29 of 1917- The accused cut the string which fastened a neckornament to
the complainant's neck and forced the ends of the ornament slightly apart in order to remove the same from her neck
with the result that in ensuing struggle between the accused and the complainant the ornament fell from her neck and
was found on the bed later on. The accused was held guilty of theft as there has been in the eyes of law sufficient moving
of the ornament to constitute theft.

A person, who by any means, causes any animal to move, is said to move that animal, and to move everything which,
in consequence of the motion so caused, is moved by that animal -

Explanation 4: The consent mentioned in the definition may be express or implied, and may be given either by the
person in possession, or by any person having for that purpose authority either expressed orimplied-

Explanation 5: Judah, (1925) 53 Cal. 174 - In a case an electric kettle was given to a repairer for repairs,the repairer
did not complete the work within the stipulated time or even within a reasonable time thereafter and the owner forcibly
removed the kettle from the repairer's shop without payment of the sum demandedby the latter for work already done
to it. Here the owner was not held guilty of theft, as his intention was not tocause wrongful loss to the repairer or wrongful
gain to himself within meaning of section 24 of the Code, but to recover his property after lapse of a reasonable time.

Hands, (1887) 16 Cox 188 - An 'automatic box' was fixed against the wall of a public passage and anybody who dropped
a penny piece coin into the slit and pushed in the knob could get a cigarette out of it. The

58
accused dropped into the slit in the box a brass disc about the size and shape of a penny and thus obtaineda cigarette,
which he took to the other accused. It was held that both the accused were guilty of larceny.

1
H.J. Ransom v. Triloki Nath - B had taken a bus on hire, purchase system from a company which hadreserved the
right of seizing the bus in case of default in payment of installments. The company took possession of the bus by
force from the driver of the bus who was B's servant. It was held that the possession of the driver was possession of
the master and the company was not entitled to recover possession of the bus even though default in payment of
installment had taken place. The question whether ownership had or had not passed to the purchaser is wholly
immaterial as this section deals with possession and not ownership. Therefore, the agents of the company who had taken
possession of the bus forcibly were liable under this section.

Illustration: 'A\ intending to commit theft enters the house of 'B' at night and removes from one of the roomsa heavy
box to the courtyard where he opens it. He does not find in the box anything worth taking and leaving it there goes
away. In this case A will be liable for attempting theft and also for house trespass underSection 442 of IPC.
Intention to Return /intention to take only temporarily: It is no defence to a charge of theft that the accusedintended to
take only temporarily or that he had an intention to return.

Illustration : "A” takes an article belonging to 'Z' out of his possession without his consent with an intention of keeping
it until he obtains reward form 'Z'. 'A' is guilty of theft.

Naushe Ali Khan, 1911, Alld : The accused snatched away the books of a child who was coming out of theschool gate,
saying that the same would be returned to him (child) if he came to the house of the accused. The accused had
committed the theft.

Pyare Lal, 1963, SC 1094: The Accused was working in a government office. He removed certain file, made it
available to an outsider and then returned it to the office after two days. It was held by the SupremeCourt that the
accused was guilty of theft.
Extortion - Section- 383: Fear of injury is the main ingredient (that separates it from theft)
1) Subject matter of extortion-
a) Movable
b) Immovable
c) Any other (such as valuable security)
2) Similarity with theft-
a) Dishonest Intention
b) Deprivation.
3} Extortion-vitiated consent. Theft-lack of consent.4}
Delivery of property is essential in extortion.
5) Delivery-change/transfer of possession.
6) If there is no delivery there is no extortion but there is attempt to extortion.
1. Ch. XVII (Sub. Sec. 378-462) provides for offences against property.
2. Offences defined and made punishable UlChXVl1 may be broadly classified into following three
categories:

59
 a) Offences causing deprivation of property.
b) Offences causing damage to the property affected.
c) Offences which violate any of the proprietary rights of the victim.
3. Theft, extortion, robbery and dacoity are most common offences in which a person suffers
deprivation of his property.
4. Offence of extortion is defined U/s383 IPC. Extortion is punishable U/S 384 IPC. Extortion is a
cognizable and non bailable offence. It is non-compoundable.
5. The subject matter of extortion could be any property or valuable security or anything signed or sealed
which may be converted into a valuable security.
6. Dishonest intention is one of the essential elements of extortion. Extortion consists in obtainingdelivery
of some property by putting a person in fear of injury.
7. Extortion becomes a robbery in the circumstance provided for in sec. 390.

Definition and Essentials of Extortion - Section- 383 : "Whoever, intentionally puts any person in fear ofinjury to
that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person, any
property or valuable security or anything signed or sealed which may be converted into a valuable security, commits
extortion."

From the analysis of Sec. 383 the following essentials of offence of extortion are made out:

1. The accused must have put any person directly or indirectly in an intentional fear of injury.
2. The accused must have obtained delivery directly or indirectly from the person so put in fear.
3. The accused must have done it with a dishonest intention.
4. The accused must have obtained directly or indirectly the delivery of one or more of the following:
a) Any property.
b) Valuable security.
c) Anything signed or sealed which may be converted into valuable security.

Subject Matter
1. Any property, valuable security or anything signed or sealed convertible into valuable security maybe the
subject matter of extortion.

2. Property means any property, movable or immovable, corporeal or incorporeal.

3. Valuable Security is a document. However, all documents are not valuable security. Sec. 30 IPC.
4. Valuable security is a document. The word document has been defined u/s 29 IPC.
5. Sec. 29 provides anything signed or sealed and convertible into valuable security may be thesubject
matter of extortion.

Chandrakala vIs Ramkrishna, 1985, SC 1268 - Where the head-master of a school called a lady teacherto a place
where he was alone and induced her to sign there blank papers by threatening an attack on her modesty, the Supreme
Court held that it amounted to an offence under this section.

Fear of Injury: Fear of injury is one of the essentials of extortion. IPC defines the word injury. Sec. 44 provides:

"The word injury denotes any harm whatever illegally caused to any person in body, mind, reputation or

60
property."

Delivery:

1. The word delivery is not defined in the code. Ordinarily, delivery suggests change of possession.
2. Enforcing delivery of any property or valuable security etc. by putting a person in fear of injury is theessence
of extortion. There can be no extortion where no delivery was effected.

Labh Shankar, 1955: Held: Offence of extortion is not completed unless the actual delivery of the
possession of the property by the person put in fear.

D. Sheikh, 1886: The accused entered into a person's house. The house owner was badly frightened. Outof fear he
offered no resistance. Accused picked up certain properties from there and left. The house owner had not delivered
anything himself to the accused.

Held: Since no delivery was made, it was no extortion. Accused was held liable for robbery through theft.

Distinction between Theft & Extortion:

Theft Extortion
1. In theft, property is taken away without the 1. In extortion, the consent of the
consent of the owner. owner i s o b t a i n e d but w r o n g f u l l y.

2. Theft may be only in respect of movable 2. The property may be either

Property movable or immovable.

3. There is no element of force. 3. Property is obtained by putting a

person in fear of injury and thereby
inducing him to part with his property.

4. There is no delivery of property by 4. There is delivery of the property.

the owner.

Punishment for Extortion - Section- 384: Imprisonment of either description up to 3 yrs with fine or withboth.

When Theft is Robbery - Section- 390 : Every robbery is, primarily, a theft or extortion.Thus

robbery is an aggravated form of theft or extortion.

"Theft is robbery, if:

1. a) In order to the committing of the theft; or

b) In committing the theft; or
c) In carrying away or attempting to carry away property obtained by theft.

61
2. The offender for that end,
3. Voluntarily causes or attempts to cause to any person
- Death or hurt or wrongful restraint, or
- fear of instant death or fear of instant hurt or fear of instant wrongful restraint.
- hurt includes both simple hurt and grievous hurt.

When Extortion is Robbery - Section- 390: "Extortion is robbery, if :

1. The offender, at the time of committing the extortion, is in the presence of the person put in fear; and
2. Commits the extortion by putting in fear of instant death, or instant hurt or of instant wrongful
restraint and to that person or to some other person.
3. By so putting in fear, induces the person to deliver up then and there the things extorted."
The offender is said to be present which is sufficiently near to put the person in position of instant death, instant
hurt or instant wrongful restraint.

Punishment for Robbery - Section- 392: Rigorous Imprisonment upto 10 yrs and also fine.

- If robbery committed at night (after sunset and before sunrise) on the highway-Rigorous Imprisonment
up to 14yrs. and also fine.

Dacoity - Section- 391General

1. Sec. 391 IPC defines dacoity. This section accepts the alternative forms of dacoity. It is to be readwith 390.
2. Sec. 391 provides:

When:
a) five or more persons conjointly commit or attempt to commit a robbery; or
b) where the whole number of persons conjointly committing or attempting to commit a robbery, and persons
present and aiding such commission or attempt, amount to five or more, every person so committing
attempting or aiding is said to commit dacoity.

Conjointly

1. The word conjointly refers to united or concerted action.

2. D.D. Inzal, 1951 Assam
Held : the word conjointly implies a common intention of the accused persons.
3. N.L. Tulsi, 1956, A.P.

Held: The prosecution must establish that the person committing robbery and those attempting robbery were at least
five in number and that they were participating in furtherance of common intention. Commonintention must be clearly
established.

Whether less than five persons may be convicted of Dacoity :

1. Lingayya, 1958, A.P.: Where there were only five named accused who committed the dacoity andout of
five two were acquitted holding that only three took part in the offence, it was held that the

62
 remaining three could not be convicted of dacoity, as the offence of dacoity could not be committed byless than
five persons.

2. Ghamandi, 1970: Where in spite of the acquittal of a number of persons, it is found as a fact thatalong with
the persons convicted there were other unidentified persons who participated in the offence, bringing the total
number of participants to five or more, it was held that the conviction of the identifiedpersons, though less than
five, was perfectly correct.

Punishment for Dacoity - Section- 395: Life imprisonment or rigorous imprisonment up to 10yrs and alsofine.

Aggravated forms of Dacoity

1. Dacoity with murder (Sec.396) - Death or life imprisonment.
2. Dacoity with attempt to caused death or grievous hurt. (sec. 397) Shall not be less than 7yrs.)
3. The preparation was to commit robbery.

Preparation to Commit Dacoity – Section -399

Ingredients

1. The act of the accused persons amounted to preparations;

2. The presence of five or more person making preparations;
3. The preparation was to commit robbery.

The offence is cognizable, non-bailable, non-compoundable, punishable to the extent of rigorous imprisonment
up to 10 years and fine, and triable by the Court of Sessions.

CRIMINAL MISAPPROPRIATION OF PROPERTY (SECTION-403)

Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punishedwith
imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Illustration 1

a) A takes property belonging to Z out of Z's possession in good faith, believing, at the time when he takes it, that
the property belongs to himself. A is not guilty of theft; but if A, after discovering hismistake, dishonestly
appropriates the property to his own use, he is guilty of an offence under thissection.

b) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes away a book without Z's express
consent. Here, if it was under the impression that he had, is implied consent to take the book for the purpose of
reading it, A has not committed theft. But, if A afterwards sells the book for hisown benefit, he is guilty of an
offence under this section.

c) A and B, being joint owners of a horse, A takes the horse out of B's possession, intending to use it.Here, as 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 an offence under this

63
 section.
Explanation1: A dishonest misappropriation for a time only is a misappropriation within the meaning of thissection.

Illustration 2: A finds a Government promissory note belonging to Z, bearing a blank endorsement. A, knowing
that the note belongs to Z, pledges it with a banker as a security for a loan, intending at a future timeto restore it to Z. A
has committed an offence under this section.

Explanation 2: A person who finds property not in the possession of any other person, and takes such property for
the purpose of protecting it for, or of restoring it to, the owner, does not take or misappropriate it dishonestly, and is not
guilty of an offence; but he is guilty of the offence above defined, if he appropriates itto his own use, when he knows
or has the means of discovering the owner, or before he has used reasonable means to discover and give notice to the
owner and has kept the property a reasonable time to enable the owner to claim it.

It is not necessary that the finder should know who is the owner of the property, or that any particular personis the owner
of it: it is sufficient if, at the time of appropriating it, he does not believe it to be his own property,or in good faith believes
that the real owner cannot be found.

CRIMINAL BREACH OF TRUST (SECTION 405)

General

1. Sec. 405 defines criminal breach of trust. Criminal Breach of Trust simpliciter is punishable u/s4061PC
2. Section 407, 408 & 409 provide for aggravated forms of criminal breach of trut.

- 407 - Criminal breach of trust by a carrier

- 408- Criminal breach of trust by servant/agent.
- 409- Criminal breach of trust by public servant, banker etc.

Essentials of Criminal Breach of Trust

1. The accused must have been entrusted with property, or he must have been given any dominion
(possession and control) over property.

2. The accused must have dishonestly:

- Misappropriated it; or
- Must have converted it to his use; or
- Must have used or disposed of the property in violation of the law or contract touching the dischargeof the
trust; or
- Must have suffered knowingly the same.

Deductions made for Provident Funds: Explanation. I to Sec. 405

a) A person (employer of an establishment) who deducts the employee's contribution from the wages

64
 payable to the employee for credit to a Provident Fund or Family Pension Fund shall be deemed to have been
entrusted with the amount so deducted.
b) If the employer makes default in payment of such contribution to the concerned funds, he shall bedeemed
to have dishonestly used them.

Deductions for Employees State Insurance Fund: Explanation II to Sec. 405 : A person (employer of an establishment)
who deducts the employees contribution from the wages payable to the employees for credit to an Employees' State
Insurance Fund shall be deemed to have been entrusted with the amount.

Dishonest Misappropriation of Property: Sec. 403 defines dishonest misappropriation of property and also
provides for punishment for an aggravated form of dishonest misappropriation of property.

Essential Elements :
1) Dishonest intention
2) Movable property

Punishment Sec-403
Imprisonment of either description up to 2 years or with fine or both.

Misappropriation or conversion to own use.

Dishonest Misappropriation of Property possessed by Deceased person at the time of his death: Sec. 404

Possession ceases as soon as the death of possessor occurs.

1. If the offender was clerk or servant of the deceased he would be liable to Imprisonment up to 7 yrsand also
fine.
2. If the offender was someone else he would be liable to punishment up to 3yrs and also fine.

CHEATING AND MISCHIEF

415 – Defines cheating

Whoever,
by deceiving any personInduces
that person-
- fraudulently; or
- dishonestly
to deliver any property to any person, or

to consent that any person shall retain any property, or intentionally induces the person so deceived to do/omit to do
anything causing

damage or
- harm to
- body
- mind

65
 - reputation
- property of that person
- is said to cheat.

-- punishment for cheating is Imprisonment up to 1yr/fine/both.

Mischief - Section- 425

1. Sec. 425 IPC defines mischief. Mischief simplicities is punishable U/s 426 IPC
2. Sections 427-440 provide for specific cases of mischief in different sets of facts and circumstances.

- Quantum of punishment depen,ds on value of property affected by mischief.

- Under Chapter XVII: of offences against the property, mischief is an offence in which victim suffersdamage
to his property.

Definition and Essentials of Mischief – Section -425Whoever:

1. With intent to cause, or knowing that he is likely to cause,
2. Wrongful loss or damage to the public or to any person,
3. A) causes destruction of the property; or
a) Any such change in it or its situation as to destroy or diminish its value or utility or affect it injuriously,is said
to commit mischief.
It is not necessary that the offender should intend to cause loss or damage to the owner
(Explanation 1 to Sec. 425)
b) Mischief may be committed by an act which affected a property under joint ownership of the
offender and the victim. (Explanation 1 to Sec. 425)

Punishment - Section- 426 : Imprisonment of either description up to 3 months or with fine or with both.
Section- 436 : Mischief by fire or explosive substance with intent to destroy a house etc.

Punished with imprisonment for life, or with imprisonment of either description for a term which may extendto ten
years, and also be liable to fine.

CRIMINAL TRESPASS

Criminal Trespass and Other Allied offences

Section/Definition Penal Clause Offence

441 447 Criminal trespass
442 448 House trespass
443 453 Lurking House trespass
444 456 Lurking House trespass by night
445/456 453 House breaking

66
446 456 House breaking by night

Criminal Trespass- Section – 441

1. Sec. 441 defines Criminal Trespass. It is a cognizable offence; this is a bailable and compoundableoffence.
2. U/s 447 it is punishable with imprisonment of either description up to 3 months or with fine up to Rs.500 or
both.

Essentials of Criminal Trespass: (Illegal Means)

1. The accused must have entered into or upon property in possession of another.
2. The accused must have entered with any of the following intentions:

a. To commit an offence.
b. To intimidate, insult or annoy any person in possession of the property. Possession
of property is the essential ingredient of criminal trespass.

There is yet another or alternative form of criminal trespass. It has following essentials:

a. The accused must have entered into or upon the property in another's possession lawfully. The
accused must have unlawfully remained there with any of the following intentions to commit an
offence.
b. To intimidate, insult or annoy any person in possession of the property.

House Trespass - Section-442 read with Section-448Essentials

of House Trespass:

1. The accused must have committed a criminal trespass.

2. Such criminal trespass must have been made by entering into or remainingin any
building, tent or vessel.
3. Such building tent or vessel must be used as human dwelling or as a placefor
worship or as a place for the custody of property.

Punishment for House Trespass - Section- 448: Imprisonment of other description up to 1 year or fine upto Rs. 1000
or both. (The introduction of any part of body would be enough to convict the person for housetrespass)

Lurking House Trespass : Section – 443 read with section – 453

Essentials

1. The house trespasser must have taken precaution to conceal the housetrespass.
2. The precaution to conceal must have been taken by some person who has aright to
exclude or evict the trespasser.

Punishment - Section- 453: Imprisonment of either description up to 2yrs and also fine (fine compulsory).

67
Lurking House Trespass by Night - Section- 444 read with Sec.- 456 : Whoever commits lurking housetrespass
after sunset and before sunrise is said to commit lurking house trespass by night.

Punishment – Section – 456 : imprisonment of either description up to 3 yrs and also fine.

House Breaking - Section - 445 read with Section - 453

i) House breaking is a kind of house trespass.

ii) House trespass may amount to house breaking if the offender (house trespasser) effects his entry or
makes his exit in any of the six ways specified u/s 445.
iii) Sec. 445 lists following 6 ways:
a. Entry or quitting through a passage made by himself or by the abettor.
b. Any passage not intended to be used for entry or exit.
c. A passage opened for committing house trespass.
d. A passage by opening lock.
e. Making a way by scaling to exit or enter.
f. Entry or exit by use of criminal force or assault or threat thereof.

House breaking is an aggravated form of house trespass. In the matter of exit following should be
considered:

a) The offender must have been in the house for committing an offence.
b) The offender must have made his exit in any of the ways after committing the offence.

Example:

a) 'A' makes a hole in the wall and thrusts his hand through that.
Ans.: House trespass.

Self made way :

'
b) A' commits a house trespass through window. It is house breaking.'
c) A' finds the key of Z's house. 'N opens the door of the house and enters. It is house breaking.
Punishment: Imprisonment of 2 yrs and also with fine.

House breaking by Night - Section- 446 read with Sec.- 456 : Whoever commits house breaking aftersunset and
before sunrise is said to commit house breaking by night.

Punishment: Imprisonment up to 3yrs and also fine.

FORGERY, MAKING FALSE DOCUMENTS

463 - Defines forgery

68
 Whoever
Makes any false-
- document, r
- part of a document

With intent to:

a) cause - damage
Injury.
to Public; or
any other person.
b) to support a claim
title; or
c) to cause any person to part with property; or
d) To enter into any express or implied contract; or
e) With intent to commit fraud or that fraud may be committed, commits forgery.

465 - Punishment for forgery

Imprisonment of either description up to 2yrs/fine/both.

466 - Forgery of record of court or of public up to 7yrs and also fine. 470 - Forged documentA false

document made-
- wholly
- in part by forgery.

471 - Using a forged document as genuine. Punished in the same manner as if he had forged suchdocument.

482- Punishment for using false document. Imprisonment up to one year/fne/both

DEFAMATION
SECTION 499- GENERAL

1. Defamation is a civil as well as a criminal wrong. Therefore, the person aggrieved may file civil aswell as
criminal proceedings simultaneously.

2. Although defamation is both civil and criminal wrong, yet the essential ingredients are different foreach. So
the exceptions are also different for each.

3. Civil Law recognizes following two kinds of defamation-

a) Libel
b) Slander
Criminal Law does not recognize the above kinds.
4. Chapter XXI (499-502) provides for defamation. Section 499 IPC defines defamation. Section 500provides
for punishment for defamation. Sections 501 and 502 provide for specific cases of

69
 defamation.
5. Defamation consists in making or publishing any imputation. The imputation must be with
necessary mens rea.
6. All imputations do not constitute defamation. Only that imputation constitutes defamation whichharms
reputation of a person.
-Intention
-knowledge harm to reputation
-reason to believe

Definition and Essentials of Defamation -

Words - oral
Means - written
visible representation (eg: cartoon, caricature, signs and gestures)

Whoever-
(1) By words either spoken or intended to be read, or by signs or by visible representation,
(2) makes or publishes any imputation concerning any person,
(3) Intending to harm, or knowing or having reason to believe that such imputation will harm the
reputation of such person is,
(4) Exception in cases hereinafter excepted, said to defame that person. Defamation of aDeceased
Person: Section 499 - Explanation I :

Defamation of a Decesed Person : Section 499- Explanation I:

1. Defamation of a dead person is not a civil wrong or a tort. But the same may amount to an offence u/s 499
IPC.
2. An imputation concerning a deceased person may be a defamation if it could have harmed the reputation
of the deceased person if he were alive and if it intended to hurt the feelings of his family ornear relatives.
3. Making an imputation against a deceased person is not only uncivilized but also immoral.

Imputation against a company or association or collection of persons - Explanation II to

Section 499: An imputation concerning a company or an association or collection of persons as such mayamount to
defamation.

Imputation in the form of an alternative or ironical expression - Explanation 11\to Section 499:

An imputation in the form of an alternative or ironical explanation may be a defamation.

An Imputation harmful to the reputation: Explanation. IV to Section 499

1) All imputations are not harmful to the reputation.
2) Only those imputations are harmful to the reputation which lower a person in the estimation of others.
3) Imputations are considered to harm a person's reputation:
a) One which lowers the moral or intellectual character of a person; or
b) One which lowers a person's morale concerning his caste or his calling, or
c) One which lowers the credit of a person; or

70
 d) One which causes it to believe that person's body is in a loathsome state or in a disgracefulstate.

Defamatory Statements Against a Class:

1. Class defamation is no defamation under civil law.
2. When a class or collection of persons is in the form of an association or company or any juristic entity, it
may amount to defamation under criminal law. However, class defamation is no defamation in criminal law
generally.
3. Section 499 recognizes ten exceptions. Burden of proof would lie on the accused person (Section 105
Evidence Act.)
4. Following are the exceptions u/s 499:

a) Imputation of truth if it is required for public good.

b) Expression of opinion in good faith concerning conduct of a public servant in discharge of his public
functions or as to his character apparent from such conduct.
c) Expression of opinion in good faith as to a person's conduct on any public question and on his character
apparent from such conduct.
d) Substantially true report of court's proceedings or results of court's proceedings.
e) Expression of opinion in good faith as to decision in a civil or criminal case or as to any witness, partyor agent
concerning their conduct and character as apparent from such conduct.
f) Explanation of opinion in good faith as to merits of public performance or respecting the character ofthe
author as apparent from such performance.
g) Censure passed in good faith on a person under authority of a person who has authority to pass ingood faith
either under law or under a contract.
h) Accusation preferred in good faith to authorized persons.
i) Accusation/ prosecution-preferred-IawfuI authority /court.
j) Imputation in good faith against the character for protection of interests of the person making it, or ofany other
person, or public servant.
k) Caution intended for good of a person to whom conveyed, or for public good.

Punishment for Defamation - Section - 500: Simple imprisonment, up to two years or fine or with both.

Specific cases of defamation - Section - 501: Printing or engraving any matter known or having goodreason to
believe to be defamatory is punishable. (Imprisonment simple up to 2 years/fine or both.)

Section - 502 : Selling or offering to sale any printed or engraved substances containing defamatory matterknowing it to
be so is punishable u/s 502 (simple Imprisonment up to 2yrs with fine or with both)

IMPORTANT QUESTIONS

Q.1. What is criminal mis-appropriation of property and how it is distinguished from criminal breach oftrust?
Explain.

Q.2. Define dacoity and distinguish it from robbery.

Q.3. What is theft when it amounts to extortion?

Q.4. Discuss when theft become robbery and when extortion becomes robbery.

71
Q.5. Define criminal force and distinguish it from assault?

Q.6. Explain cheating and mischief with the help of illustration.

Q.7. Write short notes on-

a) Criminal Traspass b) House Trespass c) Forgery

Q.8. Define defamation. Explain its essentials with relevant cases in law.

72
 UNIT - V
OFFENCES RELATING TO MARRIAGE

493 - Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.

- Causes any woman, not lawfully married to him, to believe that she is lawfully married to him;
- She cohabits or has sexual intercourse with him in that belief.
- Imprisonment up to ten years and fine also.
- 494-Marrying again during lifetime of husband or wife. (Bigamy)

Imprisonment of either description up to 7yrs and fine.

Exception

1) Where the first marriage is declared void by a court of competent jurisdiction.

2) Where the former husband or wife has been continually absent for 7 years and not heard of by thespouse.
But he/she must disclose the fact of first marriage to parties to the second marriage.

495 - Marrying again during lifetime of husband or wife, with concealment of former marriage for person with
whom subsequent marriage is contracted.
Imprisonment of either description which may extend to 10yrs and fine.

497- Adultery
- Sexual intercourse with a person
- Who is,
whom he knows,
whom he has reason to believe

- to be wife of another man

- without consent of, connivance of that man
- such sexual intercourse not amounting to offence of Rape.

Imprisonment of either description of a term which may extend up to 5 years or with fine or with both.

- Wife shall not be punishable as an abetter.

73
498 – Enticing, taking away or detaining a married woman with a criminal intent:Whoever

Takes away
Entices aay A Any woman,

Who is
Whom he knows

Whom he has reason to believe

- to be the wife of any other man, with intent that she may have illicit intercourse with any person, shallbe
punished with imprisonment for a term which may extend to two years, or with fine, or with both.

SPECIAL PROVISION FOR WOMEN IN IPC

In IPC there are many provisions according to which a men can be punished. A women can not commit suchoffence or
in sum offences only a women may become the victim.

For example: Section 304A is related with dowry death. An offence under this section may be committedagainst a
married women hence a man can not be victim under this section.

Section 498A is related with cruelty against a married women by her husband or his relatives. Under thissection only
a married lady may be subjected to physical torture or mental harrisment. The husband or his relatives may commit
offence under this section.

Section 497 is related with adultary. For the offence of adultary a man in promiscuity with a married lady may be
accused under this section. The married women is treated as victim cease not participis

Section 375 and 376 are related with rape. In India this offence may be committed only against a women not against a
men. Hence a man may be punished for such offence.

CRUELTY BY HUSBAND OR RELATIVE OF HUSBAND (SECTION 498A)

Dowry Death (5-304-8) - General
1. Section 304-8 has been inserted by the Amendment Act No. 43 of 1986.
2. Section 304-8 is to be read with Section 2 of the Dowry Prohibition Act. 1961.
3. Dowry Death is a cognizable, non-bailable, and non compoundable offence. It is triable exclusively by the
Court of Sessions.

Essential Elements Section 304-8(1)

1. The death of a married woman must have been caused.
2. Such death must have been by burns or bodily injury or otherwise than under the normal
circumstances.
3. The death must have resulted within 7 years of the marriage of the victim.
4. Soon before her death the victim must have been subjected to cruelty or harassment by her

74
 husband or any of her husband's relatives.
5. Such cruelty or harassment must be in connection with or for any demand for dowry.

Death resulting in the above circumstances shall be called dowry death and the person causing such death shall be deemed
to have caused such death.

Burden of Proof: Section 113-B Indian Evidence: Section 304-8(1) is to be read with S-113-8 of Evidence Act
u/s 1138. The burden of proving that the accused husband or his relative has not caused thedowry death lies on such
accused person.

The presumption of guilt U/s 1138 is rebutable.

Punishment for Dowry death: Section 304-B(2)

1. Imprisonment of either description for a minimum period of 7 yrs.

2. The extent of Imprisonment may extend to life imprisonment also. Imprisonment up to 3 years andfine.

Explanation-defines guilty.
Any willful conduct of such nature
a) any willful conduct
of such nature

as is likely to drive the woman to commit suicide or to cause grave injury or danger to life of the woman
Limb
b) Harassment Health

Mental Physical

To coerce her or any other person related to her-

1. to meet any unlawful demand for

any Property.
Valuable Security.

2) On account of failure by her or person related to her to meet such demand.

CRIMINAL INTIMIDATION, INSULT AND ANNOYANE (SECTION 503)

Whoever,
Threatens Another

Or any person in whom that person is interested

With any injury to Person

Reputation
Property.

75
With intention to Harm
Cause

That person to do any act which he is not legally bound to do.

to omit any act which that person is legally entitled to do

As the means of avoiding execution of such threat

Commits criminal intimidation.

- Explanation-Aperson in whom the other person is interested includes a deceased person also.
- S-506-punishment for criminal intimidation-imprisonment of either description up to 2yrs/fine/ both.

If threat be to cause -
Imprisonment which may death/grievous hurt
extend to 7 years or destruction of any property by fire
fine or both. Any offence punishable with death/life
Imprisonment punishable with Imprisonment up to 7yrs.

509 - Word, gesture, or act intended to insult the modesty of a woman.

Simple imprisonment up to one year/or fine or both.

51 0 - Misconduct in public by a drunken person-in a

public place
In any place which IS a trespass for him to enter causes annoyance to any personsimple
Imprisonment up to 24hrs/fine up to Rs. 10/both.

Insult: Section 504 lays down that whoever intentionally insults, and thereby gives provocation to anyperson,
intending, or knowing it to be likely that such provocation will cause him.
a) to break the public peace, or
b) to commit any other offence,
shall be punishable with imprisonment upto two years, or with fine, or both.

This section provides a remedy against the use of an abusive and insulting language. However, mere breach of
good manners would not be an offence under this section.

C was the daughter of P. and was married to M. After her marriage, some misunderstanding arose betweenP and M in
respect of certain advances alleged to have been made by C to P. P became very angry andwrote a letter to C in which
he stated that as he has got only old and torn shoes he had placed an order forbetter ones and that as soon as he gets them
he will send them over to her and her husband.

Here, no offence is disclosed, as there is no likelihood of any breach o the peace.

Uttering any word or making any sound or gesture or exhibiting any object, intending to insult the modesty of a woman
or intruding upon her privacy is punishable with imprisonment upto one year, or with fine, or both: S. 509.

76
Mahomed C. Chisty1, - The accused followed in his carriage the complainant's unmarried daughter at various places
and laughed and grinned and stared at her while passing and re-passing in his carriage, and stood up in it and shouted her
name, and so on. The Court held that the accused was rightly convicted under
S. 509 of the Code.
2
Tarak Das Gupta , - The accused, a University graduate, sent by post, to the complainant, an English nurse, a letter
containing indecent overtures and suggesting that the complainant should take certain action in order to show
whether she accepted the terms mentioned in the letter. It was held that the accused wasguilty under section 509,
I.PC.

A reference may also be made to Mrs. R. D. Bajaj v. K. P. S. Gill case

(S. 354), where the Supreme Court held that an allegation of the complainant that she was slapped on her posterior by
the Director-General of Police, at a gathering comprising the elite of the society, did make out acase for a prosecution
under S. 354 and S. 509 of the Indian Penal Code.

Difference between defamation and Insult:

1. In the former, a person's reputation is concerned, not so in the latter. All defamation in a way involves some
idea of insult, but all insults do not necessarily amount to defamation.

2. In defamation, the defamatory matter must be published to some person other than the person defamed: an
insult is directly addressed to the person insulted. In other words, publication is not a sinequa non in the offence of
insult as it is in defamation. If a defamatory matter is directly addressed to theperson defamed, it is not defamation,
but may amount to insult, and if such matter is likely to provoke abreach of the peace, it falls with the purview of S.
504 of the Code.

Difference between Assault and Insult: Insult, however deliberate and intentional, is only punishable asan offence
when it tends to provoke a breach of the peace or the commitment of any other offence. Theoffence is not made to
depend upon the sensitive feeling of the person insulted, but on the intention or knowledge of the offender. But an
assault need not have intended to do any such thing. Mere words do not amount to an assault, but something else is
required in addition, whereas, insult may be given by mere words. Insult provokes in the party to whom it is given,
a tendency to commit a breach of the peace whileassault endangers in his mind an apprehension of the use of criminal
force to himself.

Provisions of the Code as to Insults Offered to Persons other than Public Servants: The following are the six
provisions of the Penal Code with regard to insults offered to persons - other than public servants:

1. Destroying, damaging or defiling any place of worship, or any object held sacred by any class of persons,
with the intention of thereby insulting the religion of any class of persons, or with the knowledge that any
class of persons is likely to consider such destruction etc., as an insult to theirreligion: S. 295.

2. Deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or
religious beliefs: S. 295A.

3. Trespassing on burial places etc., with the intention of wounding the feelings of any person, or insulting the
religion of any person: S. 297.

77
 4. Entering upon another's property, or unlawfully remaining there, with intent to insult any person in
possession thereof: S. 441.

5. Intentional insult with intent to provoke breach of the peace: S. 504.

6. Uttering words, making any sound or gesture, or exhibiting any object intending to insult the
modesly of a woman: S. 509.

Statements Conducing to Public Mischief (Section 505): Section 505 makes it an offence to make, publish or
circulate any statement, rumour or report:

i) with intent to cause any officer, soldier, sailor or airman in the Army, Navy or Air Force, to
mutiny, or to disregard or fail in his duty; or
ii) with intent to cause fear or alarm to the public, whereby any person may be
iii) induced to commit an offence against the State or public tranquility; or
iv) with intent to incite any class of persons to commit any offence against any class.
[Punishment: Imprisonment for two years or fine, or both.]

Divine Displeasure (Section 508) : Any act or omission caused by inducing a person to believe that he will be rendered
an object of Divine displeasure, if he does not do or omits to do the things which it is the object of the offender to cause
him, to do or omit, is punishable by Section 508. (Punishment: Imprisonment forone year, or fine, or both.]

Misconduct in Public by Drunken Person (Section 510): Intoxication alone is not made punishable bythe Code.
But a person who, in state of intoxication, appears in any public place, or in any place which it is a trespass in him to
enter, and there conducts himself in such a manner as to cause annoyance to any person, is liable to punishment
under Section 510. [Punishment: Imprisonment for 24 hours, or fine of Rs.10, or both.]

ATTEMPT TO COMMIT OFFENCES

- Difference between preparation and attempt.

- At what stage preparation becomes attempt.
- Attempt is possible though the offence is impossible.
- Whether attempt to murder comes within the purview of Section 511 or whether it falls only u/s 307.
- Punishment for attempt is half the punishment for such offence.
- Residuary, if there is no provision for attempt of any offence then only Section 511 is attracted.
o offence punishable with life imprisonment.
o any act in furtherance of doing of the offence
o no specific provision for attempt.
o Punishment
General :
1. Section 511 provides for punishment for attempt to commit an offence punishable with life
imprisonment (for which there is no specific provision for punishment).

2. Section 511 is a residuary section. It does not cover such attempts as have been madepunishable
under some specific provision of the code. In other words Section 511 is not

78
 exhaustive.

3. Section 511 makes it punishable even those attempts of offences which were physically
impossible to be committed.

Stages of a Crime
1) Intention to commit offence.
2) Preparation to commit offence.
3) Attempt to commit offence.
4) Offence itself.

Criminal intention is not punishable. The underlying principle is that law takes note of the external acts of men and it
does not peep into the hearts of people.

Preparation to commit an offence is also not punishable. The reason is that a person may change his intention even
after making the preparation. Sections 122, 126 & 399 IPC are exception to it. These sections provide for punishment
for preparation to commit certain offences.

Stage of attempt begins after the preparation is over. There are practical difficulties in determining whether the act of
the accused is a mere preparation or a punishable attempt. In principle the two terms are distinguishable. But in
certain cases it becomes difficult to determine.

Distinction between Preparation and Attempt

a. Preparation is a stage subsequent to the criminal intention but it precedes attempt.

b. Attempt is a stage subsequent to the preparation. Offence is committed if attempt succeeds.
c. Stage of preparation is generally not punishable (except U/s 122, 126, 399) whereas attempt to commit an
offence is punishable.
d. Preparation suggests devising or arranging means and measures.
Attempt suggests advancement towards criminal plan and an action in pursuance thereof. (Direct movement
towards commission of offence after preparation)
e. Distinction between preparation and attempt cannot be stated in abstract. Judges are too often notunanimous
on the question.
f. State of Maharastra v/s Mod. Yakub: Whether the act of the accused constituted an attempt is amixed
question of facts, and circumstances of law.
g. In preparation, withdrawal from the act is possible but in attempt there is no chance of withdrawal. - whether an
act is an attempt or preparation depends on facts and circumstances of a case. Held:Proximity is enough to
constitute attempt. Penultimate act is not necessary.
h. Om Prakash v/s State, 1961, SC: Held: If the act of the accused is sufficiently approximate to theoffence, it
may amount to an attempt.

An Act forwards the committal of offence:

1. To constitute indictable attempt, it must be shown that accused did commit an act towards the committal of
an offence in his attempt.

2. The expression "does any act towards the committal of offence" simply mean an act immediate and

79
 direct or proximate towards the offence. It is not necessary that such act should be penultimate. It is enough
that it is sufficiently near or proximate.

Essentials of Sections- 511

1. The accused must have attempted to commit an offence punishable with life imprisonment or
imprisonment or to cause such an offence to be committed.
2. The accused, in such attempt, must have done any act towards the commission of the offence.
3. There must not be any express provision under the code for the punishment of such attempt.

In a case if the above requirements are satisfied, the accused would be liable to be convicted and punished u/s 511.

The person found guilty of attempt shall be punishable with up to half of the imprisonment for the offence or with fine
provided for the offence or with both.

Bhagiratha Vs. DL DL admn, 1985, SC – Held:

a) Life imprisonment means imprisonment for the whole of life.

b) Where a fraction of life imprisonment is to be computed, life imprisonment shall be taken to be aperiod of
20 yrs.

Attempt to cause an Offence Punishable with life Imprisonment or Imprisonment to be Committed: This
expression suggests attempt to abet an offence. Therefore, attempt of an abetment is also punishableu/s 511. Abetment
is a substantive offence. Therefore, its attempt is also punishable.

IMPORTANT QUESTIONS

Q.1. What are the offences relating to 'Marriage' under I.P.C.?

Q.2. Explain dowry death, its ingredients with the help of illustrations.

Q.3. Define criminal intimidation. Discuss its essentials.

Q.4. Discuss different stages of crime. Distinguish between preparation and attempt to commit a crime.

Q.5. "An attempt is an intended, apparent and unfinished crime". Explain and state the essentialelements
of an attempt to commit a crime.

Q.6. Write a short note on bigamy and adulteries.

SUGGESTED READINGS

1. Gaur KD. "The Indian Penal Code", 3rd Ed., Universal Publications, New Delhi.
2. Mishra, S.N. "The Indian Penal Code", 13th Ed., Central Law Publications, Allahabad.
3. Ratan Lal Dhiraj Lal "Indian Penal Code", 28th Ed., Wadhwa Publications, Lucknow.
4. Tandon M.P. "The Indian Penal Code", Allahabad Law Agency, Allahabad.

80
 5. Parajape NV "Indian Penal Code", Central Law Publication, Allahabad.
6. Babel Basantilal "Indian Penal Code", Central Law Agency, Allahabad.
7. Chaturvedi M.D. "Indian Penal Code", Allahabad Law Agency, Allahabad.
8. Shamshul Huda "Lectures on Indian Penal Code".

References :

1. Syndicate Transport Co., 1963, Bombay

2. Mobarak Ali Ahmed vis State of Bombay 1958 SCR 328
3. Firoz vis State, 1964
4. Shankarlal Vs State of Gujrat, 1965, SC 1260
5. Rishi Deo Pande VIs State of UP, 1955, SC
6. DM Bhil VIs St of Maharashtra, 1985, SC7.
(1945) 47 Com LR 941
8. 1977 Cr. LJ 1725 (Orissa)
9. 1980, SC 605
10. 1950, Cuttack 93 11.
1883, Madras 373
12. Patiala & Punjab State Union 1965, SC13.
(1920) AC 479
14. (1869) 12 WR (Cr.) 51
15. (1894) 16AII389
16. 972Cr. LJ 1474 (MP)
17. AIR 1979, SC 1876
18. 1960, Cr LJ 1222
19. (1866) 5 WR (Cr) 97
20. 191921 80m LR 1101
21. 1962, Bom LR 488 (SC)
22. 1965, SC 942 9 1900 Calcutta

81
NOTES
NOTES