Indian Penal Code (IPC) detailed Notes and Study Material

Present post is a detailed notes on Indian Penal Code (IPC). This notes on IPC is detailed and backed by case laws.

Nature of Crime and Definition of Crime

Definition of crime

Crime is an act or omission prohibited by law. Crime is an act which is both forbidden by the law and is revolting to the moral sentiments of the society.

According to Kenny, “crimes are wrongs whose sanction is positive and in no way remissible by any private person, but remissible by state alone, if remissible at all.”

Kenny’s definition means that punishment of wrongful deeds of people by the state is morally good. However, punishment must be inflicted by the state alone and not by a private vigilante or even by the victim to the offender.

Content of crime changes over the period of time.

Once upon a time heresy or blasphemy used to be a crime punishable by burning the blasphemer at the scaffold. In some states, people of alternate religious beliefs used to be traumatized by the majoritarian theocratic state. But now even theocratic states do not punish persons of alternate religious beliefs.

Polygyny (man having more than one wife) was not an offence among Hindus till 1955. However with the passing of Hindu Marriage Act, 1955 – polygamy in any form was completely outlawed among Hindus. Therefore, content of crime changes with the evolution of time.

Crime is not a civil or a moral wrong

Crime is basically disobedience of penal law. For example, a gambler disobeys the prohibition against gambling. He is liable to be punished. The consequence of violation of law is sufferance of punishment by the offender. The object of criminal law is penal retribution.

Crimes are not civil wrongs. In a civil wrong, the defendant is liable to pay compensation to the plaintiff. This is because the object of civil law is to restore the plaintiff to his/her original position by compensating him/her. The object of civil law is restorative justice.

Moral wrongs are not punishable. Moral wrongs do not create a claim for compensation. There is no liability for a person who commits a moral wrong. For example, disobedience of parents is a moral wrong. The child is not liable for punishment or liable for paying compensation to his/her parents for disobeying them.

Burden of proof in crimes

The burden of proving a crime is on the prosecution. The prosecution must prove the guilt of the accused beyond reasonable doubt. If any doubt is present in the mind of the court, then the court shall have to acquit the accused.

In civil litigation however the burden of proof is different than in criminal litigation. In civil litigation, one must prove the case on preponderance of probabilities. This is an easier burden of proof than in criminal litigation.

The burden of proving crime is more onerous and difficult to discharge in criminal litigation and all benefit of any doubt present in the mind of the court is reaped by the accused.

The task of proving the guilt of accused is performed by the prosecution. The task of proving the innocence of the accused is performed by the defense. The state is the prosecutor in the criminal trial. The state fights the case on behalf of the victim and the society at large. Criminal trials are adversarial in nature. Two adversaries show the guilt and innocence of the accused person to the court upon which the court gives a decision.

Elements of Crime

The elements of crime are described as follows:

The first element of crime is the human being. Only human beings are liable for their criminal acts. Animals or plants are not liable under the Indian Penal Code for causing harm to humans or

each other. A dog biting an 8-year-old boy is not liable for causing simple hurt. Only humans are liable under the Indian Penal Code.

Actus non facit reum nisi mens sit rea

This latin maxim constitutes the second element of crime. It includes the mental element and the physical element. The mental element is called Mens Rea. The physical element is called actus reus. Mens rea means guilty mind. Actus reus means guilty act. The literal translation of actus non facit reum nisi mens sit rea is that act is not guilty and not liable to be punished unless it was performed with a guilty mind. The act is not guilty unless mind is also guilty.

The Indian Penal Code only punishes people who are capable of taking responsibility for their actions.

• Mens rea

Mens rea means guilty mind. Almost all crimes have some mental element. Examples of mens rea include intent, knowledge, rashness, recklessness, reason to believe, fraudulent, dishonest, corruptly, allowing, omitting, maliciously, deliberately, voluntarily etc.

The expression mens rea is nowhere used in the IPC. However essence of mens rea is found through expressions like intent, knowledge and reason to believe etc.

• Actus reus

Actus reus means guilty act. It consists of physical actions which are prohibited by law. Examples of actus reus include theft, extortion, murder, cheating, bribery, forgery, hurt, assault, rioting, cruelty, bigamy etc.

Legal obligation to act in a particular way or to abstain from certain conduct

The Indian Penal Code, 1860 imposes legal obligations to act in a particular way or abstain from certain conduct. The Indian Penal Code punishes wrongful conduct. It punishes conduct which is harmful such as murder, or immoral such as bigamy. The offenders are punished for any violation of penal law.

Injury to human being or society at large

Conduct which is harmful to human beings such as hurt or cruelty to wife is punished by the penal law. Conduct which is harmful to society at large such as drug trafficking and dowry is also punished by special penal laws like Narcotic Drugs and Psychotropic Substances Act, 1985 and Dowry Prohibition Act, 1961.

Injury to human being is defined in Section 44 of the Indian Penal Code. Injury means injury to mind, body, reputation or property. Cruelty is an example of injury to mind; simple hurt is an example of injury to body; defamation is an example of injury to reputation; and mischief is an example of injury to property.

Kinds of Mens Rea

Intention

Intention means desired objective or desire to achieve certain purpose. Humans are able to desire things which they consider are beneficial for them. This human forseeability and desire is sometimes deleterious for other human beings or the society at large.

The Indian Penal Code deals with bad or guilty intentions of human beings. Intention in the IPC is reflected by terms such as intentionally, voluntarily, willfully or deliberately. For example, Section 298 of the IPC deals with deliberate intent to wound religious sentiments.

Transferred Intention

A intends to murder X. For achieving this objective A mixes poison in X’s food and places it on X’s table. However, Y feeling unusually hungry raids X’s lunch and dies. A is liable for Y’s murder even though he did not intend it. This is known as transferred intention and is mentioned in Section 301 of the IPC.

Knowledge

Knowledge is the awareness of consequences of any act or omission. For instance, a bus driver has knowledge that if he doesn’t keep his eyes on the road while driving, an accident may ensue

even if he doesn’t intend it. Here the bus driver has knowledge, but may have no intention to commit an accident.

Negligence is of two kinds – advertent negligence and inadvertent negligence.

Advertent negligence or rashness or recklessness or willful negligence

Advertent negligence is also known as negligence where risk is foreseen yet the risk is undertaken foolishly by thinking no bad consequence shall result. This is common in rash driving wherein the driver in a hurry knows that he is not driving in a proper manner yet takes the risk thinking no bad consequence will result. If an accident ensues the driver is liable for advertent negligence or rashness or reckless. This is also known as willful negligence. The expression advertent means avoidable. The persons knows he can avoid this conduct be refraining from it, yet he goes along to bear the risk in a devil may care attitude. This is known as advertent negligence.

Inadvertent negligence means absence of duty to take care and due precaution. A doctor who leaves the scissors inside the patient’s wound is liable for simple negligence because he did not have knowledge of them being inside when he sew the wound. The doctor thus commits inadvertent or simple negligence because he did not have opportunity to prevent it lest by due care and caution which he failed to do.

Motive

Motive is not mens rea. Motive prompts a man to form an intention. Motive is not an essential element of crime. Motive however is relevant under the Evidence Act. Motive helps in indicating intention. While investigating, the police use motive to find out who must have committed the crime or who has the best reason to commit the crime. Motive helps the investigating agencies to narrow down on the accused. Motive is not the same as intention. Motive and intention are quite different from each other even though they appear to be similar.

For example, when one feels hungry the motive is to satisfy hunger by eating. Whereas intention may be to steal bread if one doesn’t have money to pay for it. This is the difference between motive and intention.

General Exceptions

According to Section 6, IPC, every offence is subject to General Exceptions though these exceptions are not repeated in such penal provisions. This implies that General Exceptions have to be read with every offence irrespective of their absence from the said penal provision.

Mistake of Fact

Mistake of fact is excusable. Mistake of law is inexcusable. Mistake of fact is a bonafide mistake in good faith along with a belief that you are also justified by law to do something. S. 79 of the IPC says that an act done by a person justified, or who believes under a mistake of fact that he is justified by the law is no offence.

For instance, in what appears to be a bank robbery, the good Samaritan in good faith with the belief that he is about to foil an illegal act of bank robbery takes the law in his hands and stabs a supposed bank robber. Later, it turns out that the victim of the stabbing was a movie actor shooting for a scene of bank robbery. Here the good Samaritan shall not be held liable for the stabbing as he acted in good faith under mistake of fact.

State of Orissa v. Ram Bahadur Thapa

A master and his servant (Ram Bahadur) were crossing the jungle from the village. There was a reputation for ghosts in the jungle. Ram Bahadur himself was a believer in ghosts. Ram Bahadur was carrying his Nepali knife called Khukri. Ram Bahadur saw a strange physical occurrence known as will-o’-wisp, which was a strange green light flickering at a distance. There were two women collecting flowers near the will-o’-wisp and Ram Bahadur under a bonafide honest belief that these women were ghosts murdered one woman and grievously wounded the other. Ram Bahadur Thapa was acquitted of all charges and was given the benefit of Section 79 IPC – Mistake of Fact because he acted in good faith under a mistake of fact.

State of Orissa v. Bhagaban Barik

A and B were neighbours on bad terms. A’s cow would routinely graze on B’s fields, and they would have verbal arguments. One day, A again entered B’s fields to retrieve his grazing cow. B was hiding behind a well with a heavy stick. As soon as A entered, B gave a heavy blow on A’s head due to which A died. Here B was not acting under a mistake of fact as he had reason to believe it was A again retrieving his grazing cow from B’s property. B was therefore not acting in good faith. Therefore B was denied benefit of mistake of fact.

Involuntary Intoxication

If at the time of the commission of the act, by reason of intoxication, the person is incapable of knowing the nature of the act, because of an intoxicating substance administered to him, without his knowledge or, against his will, the person shall not be held liable because of S. 85 of the IPC.

Basdev v. State of P.E.P.S.U.

Basdev was in the army. During holidays he went to a wedding in Punjab. Everybody drank alcohol voluntarily in the village on the solemn occasion of marriage. During the wedding, Basdev asked a boy to vacate a chair as he wanted to sit down. On the boy’s refusal to comply, Basdev in an inebriated condition pulled out his service revolver and shot the boy dead. Basdev was held guilty of murder since the general exception of involuntary intoxication u/s. 85 did not apply as Basdev voluntarily drank alcohol. Basdev was thereby punished of murder u.s/302 r.w. S. 86.

Insanity

Section 84 of the IPC provides that the act of a person of unsound mind is no offence, if at the time of doing it by reason of unsoundness of mind he is incapable of knowing the nature of the act or that which is wrong or contrary to law.

Legal insanity is different from medical insanity. Since, unsoundness must be during the commission of the offence. And, the offender should not know the nature of the act, or that it is morally wrong or contrary to law.

Queen Empress v. Kader Nasyer Shah

Kader Shah lost his house and property in a fire and received a mental shock. For 2 months he had sharp pain in his head and could not go to work. One day for no apparent reason, he strangulated an 8 year old boy who was his neighbour’s son. After the boy had died, Kader picked up the corpse and hid it in a deserted house. He pleaded unsoundness of mind. According to the court, Kader was not entitled to the benefit of the general exception u/s. 84 since he knew what he did was wrong as he took due pains to hide the body in a deserted house so that it is not discovered by anyone soon.

Lakshmi v. The State

Lakshmi and Chheddi were brothers. Lakshmi used to take drugs and wine and used to beat his wife and mother. Unempolyed as he was, he used to ask Chheddi for money. One day Chheddi refused and scolded and reprimanded his brother for his bad habits. Lakshmi ran away for one month, and came back one day with a butcher’s knife and murdered Chheddi. Chheddi’s wife saw Lakshmi hurriedly running away after murdering his brother from their house. Lakshmi was held liable for murder and not allowed the benefit of S. 84 unsoundness of mind because

Lakshmi knew what he did was wrong as he ran away immediately after committing the act to avoid getting caught. Therefore, Lakshmi was not legally insane.

Shrikant Anandrao Bhosale v. State of Maharashtra

Shrikant, a paranoid schizophrenic had hereditarily acquired schizophrenia from his ancestors. He was treated for 2 years in the hospital but the mental condition would recur. Preceding the crime, Shrikant had been taken to the hospital 25 times within 1 month. On the day of the incident, Shrikant hit his wife on the head with a grinding stone for no apparent reason. She died of severe blood loss due to brain hemorrhage. Shrikant did not even try to escape. He was held entitled to benefit of S. 84 unsoundness of mind as he was unsound at the time of the incident.

Private Defense

According to S. 96, things done while exercising the right of private defence are not an offence.

According to S. 97, everybody has a right of private defence of his own body and property, and others’ body and property. S. 99 of the IPC puts certain reasonable restrictions on the right of private defence when this right is exercised against a public servant duly discharging his lawful duties. S. 99 also casts a duty on the defender not to inflict more harm than necessary on the assailant meaning thereby that the defender cannot assume the role of the assailant by exceeding his right of private defence. Also u/s. 99 there is no right of private defence is there is time to have recourse to public authorities.

S. 100 of the IPC, provides that subject to restriction under S. 99, the right of private defence extends even to the causing of death or any harm to the assailant if; there is reasonable apprehension of death, grievous hurt, rape, unnatural intercourse, kidnapping/abduction, wrongful confinement or acid attack.

According to S. 101, if the act of the assailant does not fall under various description of offences under Section 100 then the defender can in no case while exercising the right of private defence cause the death of the assailant.

According to S. 102, the right of private defence commences on reasonable apprehension of danger, or arises from attempt or threat even if the act be not yet committed, and it continues till the apprehension or threat of danger is there.

State of Uttar Pradesh v. Ram Swarup

Gangaram lost the auction of Tehbazari of a vegetable market to the victim, Munimji. When Gangaram visited the market, Munimji told Gangaram, “ You won’t get vegetables from here anymore” and got him pushed out of the market by his minions.

An hour later, Gangaram returned with his 3 sons to the market. His eldest son Ram Swarup was armed with a rifle, while Gangaram carried a dagger. Gangaram’s other two sons were carrying heavy lathis. Gangaram said to Munimji, “ You claim to be the Thekedar of this market? I will show you how Thekedari is done over here!” and all of them proceeded towards Munimji.

Munimji tried to run inside to his room but was shot point blank by Ram Swarup. In the court, Ram Swarup’s plea of right of private defence u/s. 100 “Firstly” was rejected because Ram was under no reasonable apprehension of death or grievous hurt. He was therefore convicted of murder.

James Martin v. State of Kerala

James Martin had a bread-making factory in Kerala. The opposition party in Kerala had organized a state bandh to protest against the policies of the ruling government. Political workers of the opposition part y were going around telling people to abstain from work to make the bandh a success. When they arrived at James Martin’s factory they scolded James Martin’s servant and pushed him and ordered to close down the factory. When James refused, the goons started pelting stones. James Martin at the direction of his father whipped out his rifle and shot dead Basheer, a political worker. James Martin was held not liable as he was acting within his right of private defence u/s. 101 and 103 of the Indian Penal Code as he was under a reasonable

apprehension of grievous hurt and mischief by fire to his property as the bandh activists were carrying explosives and grenades.

Group Liability

Sections 34 and 149 are the relevant provisions of group liability in the Indian Penal Code. Section 34 defines common intention, whereas 149 defines the liability of a group acting in the prosecution of a common object. Common intention means the same intention, whereas common object means similar intention towards achieving an objective. Under the concept of group liability, all the members of the group are equally liable even if the act be committed by one person alone.

Mahbub Shah v. Emperor

X and Y had a dispute and later on an altercation. X called out to his sons, Mahbub and Z who were inside the house, and who brought guns along with them. Z fired the fatal shot to Y, whereas Mahbub Shah fired the shot which had only injured Y’s leg. The issue was whether Mahbub is liable for murder as Z fired the fatal shot and had absconded never to be found. U/s. 34 of the IPC, the provision requires a criminal act, atleast 2 persons and evidence of common intention to prosecute Mahbub u/s. 34/302. Here as no evidence was given of a premeditated concert between Z and Mahbub, only Z could be held liable and not Mahbub for the murder. Accordingly, Mahbub was convicted of grievous hurt, but acquitted of the charge of murder since he did not possess the common intention to kill Y.

Attempt

Attempt is the third or the penultimate stage of a criminal offence. The stages of criminal offences are 1) intention, 2) preparation, 3) Attempt, and 4) Forbidden Consequence prohibited by law. Attempt is generally punishable under Section 511 of the IPC. Whereas specific sections such as 307, 308 and 309 specifically cast the liability of attempt to commit murder, attempt to commit culpable homicide and attempt to commit suicide.

Asgarali Pradhania v. Emperor

Asgarali was a married man with a wife and two children. He was having an affair with a neighbor woman who was a divorcee. Asgarali promised marriage to her and she agreed to have sexual relations with him. After a few months she became pregnant with Asgarali;s child. Asgarali became increasingly nervous and requested the woman to abort the child, but she refused and asked him to come good on his promise of marriage. Asgarali went to medical quack

and purchased Copper Sulphate tablets for aborting the child. The next day he asked her to ingest the Copper Sulphate tablets but she refused. Opon which Asgarali held her throat and made her ingest a few tablets. The issue arose whether Asgarali had attempted to cause miscarriage u/s. 312/511 of the IPC. The Doctors informed the court that Copper Sulphate cannot cause an abortion. Attempt takes place when the accused does everything from his owbn side, yet fails due to some extraneous reason in the commission of an offence. Here, as Copper Sulphate is harmless, the accused cannot be held liable for attempting to commit miscarriage as such miscarriage was impossible. The accused was therefore acquitted.

Queen v. Paterson

H and W were husband and wife respectively. H wanted to marry a second time with X. When the wife, W found about the wedding cards of her husband H’s, marriage with X, she prosecuted her husband of attempt to commit bigamy i.e. u/s. 494/511. According to the court, the act of getting wedding cards published was only preparation and not attempt. Preparation for marriage is not punishable. The husband was acquitted.

Abhayanand Mishra v. State of Bihar

Abhayanand Mishra wanted to take admission in Patna University. However he did not have the requisite Class XIIth qualifications. Abhayanand deposited forged marksheets to Patna University upon which Admit Card for an entrance test was dispatched to him. However, the University clerk discovered his fraud and informed the police. Abhayanand was prosecuted under attempt to cheat i.e. u/s. 420/511 of the IPC. The court decided that Abhayanand had indeed attempted cheating and it was not merely a preparation for cheating since he had done everything from his own side to cheat the University. He had thus crossed over from preparation to attempt. He was held guilty of attempt to cheat.

Om Prakash v. State of Punjab

Bimla married om Prakash in the year 1951. They used to fight a lot and Bimla left her husband. However, on assurance of Om’s parents she returned back to her marital home. When she returned to her marital home, the husband acted very sweetly for a few days but after some time became viciously abusive towards her. He locked her up in the bathroom for days without giving her any food for weeks.

One day Bimla found the door unlocked and escaped and went to a nearby hospital. The Doctor wrote down that she was so emaciated that her cheeks were hollow, she had no strength or muscles left, her bones were protruding and she was looking like a dead body. The issue arose was whether the husband had attempted to murder his wife.

According to the court, the accused Om Prakash did everything in his own capacity to bring about Bimla’s death by starving her, and she did not die because of an extraneous circumstance, wherein she escaped death by sheer luck. S. 307 Illustration (d) provides that attempt to murder need not be the penultimate act. Therefore, Om Prakash was held liable for attempt to murder u/s. 307 of the IPC.

CULPABLE HOMICIDE & MURDER

Homicide is that act of killing a human being. The distinction between Culpable Homicide and Murder is such that Culpable Homicide is the genus whereas Murder is the specie. The relation can be expressed in the following sentence, “all Murder is Culpable Homicide, but all Culpable Homicide is not Murder.”

According to S. 299, whoever causes death by doing an act with the intention of causing death, or by causing an intentional bodily injury likely to cause death, or with the knowledge that he is likely by the act to cause death commits culpable homicide.

Culpable Homicide means the blame for the death of a human being is cast upon the one responsible for the death.

Murder is an aggravated form of Culpable Homicide.

According to S. 300 all culpable homicide is murder, except in cases of special exceptions when:

1. The act is done with the intention of causing death, or

• The act is done with the intention to cause bodily injury which the offender knows is likely to cause death, or
• The act is done with the intention of causing bodily injury as is sufficient in the ordinary course of nature to cause death, or
• With the knowledge that the act is so imminently dangerous, it must in all probability will cause death, or bodily injury likely to cause death, without any excuse for incurring the risk of causing death.

Palani Goundan case

Palani Goundan had an argument with his wife during which he did the following acts:

1. Hit her on the head with a stick due to which she fainted. He had no intention to kill her. But he presumed she had died since she became unresponsive. (No Mens rea + No  Actus reus)
2. After thinking his wife has died (although she had only fainted), Palani, with the purpose of hiding his culpability hung her from the fan to show her eventual death as suicide. (No Mens Rea + Actus Reus)

The decision of the court was that Palani is not liable for Murder. He had never had the intention to kill his wife. Actus reus was there, but mens rea was absent. Therefore as intention to kill was missing, and knowledge of whether she was dead was absent – Palani was acquitted of Murder but was convicted for grievous hurt (S. 320/325) and Destruction of Evidence (S. 201).

In re Thavamani          

Two gardeners while working noticed the landlady wearing a gold necklace. They planned to kill her immediately and steal her chain. The incident comprised of two acts:

1. Hit woman on the head whereby she fainted (Mens Rea + No Actus Reus)

• Thinking she is dead, they with a purpose of hiding her body threw her in the well, whereby she drowned and eventually died. (No Mens Rea + Actus Reus)

They were convicted of murder because the 1^st act supplied the Mens Rea, while the 2^nd act supplied the actus reus. Moreover, the two acts were so closely connected that mens rea and actus reus are said to present concomitantly. Thus, they were convicted for murder.

Emperor case

Mushnooru called Appalla, whom he owed some money to his relative’s house. Mushnooru’s intention was to murder the creditor – Appalla by poisoning him. Mushnooru prepared a Halwa with a cocktail of poisonous arsenic and mercury. It was served on the table, but Appalla did not like it after tasting it and threw it away. After a few minutes the relative’s daughter and daughter’s friend ate the halwa and died. On the other hand, Appalla became very ill but survived.

The court held Mushnooru liable for murder on the basis of S. 301 i.e. transfer of intention even though Mushnooru had no intention to kill the two little girls, however his intention to kill Appalla was transferred to the girls and he was convicted of murder.

Rawalpenta Venkalu case

Five people wanted to kill Moinuddin, so they set fire to his hut in which he was fast asleep. To make sure that Moinuddin dies, they also carefully bolted the door from outside thus locking him up. Moinuddin’s three employees tried to save him, but the Five people overpowered them and did not let them unbolt the door.

The court convicted the accused as all of them had the common intention to kill the victim as they locked the door from outside and actively prevented people from unbolting it. There were thus convicted of murder.

Kapur Singh case

Bachan Singh caused a severe injury to Pritam Singh which caused the amputation of his leg. From that day forth, Pritam Singh’s father Kapur Singh held a grudge against Bachan Singh and Bachan’s father – the eventual victim. One day, Kapur Singh saw Bachan’s father and alongwith his associate who held the victim, inflicted as many as 18 injuries on the arms and legs of the victim with a gandasa (butcher’s knife) with the intention to cause permanent amputation of both his arms and legs. Unfortunately, the victim died.

As there was no intention to kill, Kapur Singh was acquitted of murder under s. 301 clause (1). Kapur Singh was also acquitted of 300 clause (3) as the bodily injuries were not sufficient to cause death since the accused was very careful about inflicting injuries solely for the purpose of amputation.

Kapur Singh was convicted of Culpable Homicide under s. 299 (b) due to Explanation 2 of S. 299 which provides that when death is caused by bodily injury, the person who causes the bodily injury is deemed to have cause the death within the meaning of this section. Thus, the accused Kapur Singh was punished under S. 304 Part I.

State of Karnataka v. Vedanayagam

The accused gave a knife blow on the chest of the victim who died instantly. The accused said he did not intend to kill the victim. However, the Medico Legal Certificate said that the blow was sufficient in the ordinary course of nature to bring about the death.

The accused was convicted of murder under section 300 (3) as he intentionally committed a bodily injury + the bodily injury inflicted was sufficient in the ordinary course of nature to cause death.

Emperor v. Mt. Dhirajia

Dhirajia’s husband used to beat her up regularly. The wife wanted to go to her parent’s house for sometime, however the husband would not let her. At night, when husband woke up, the wife and his 6 month old baby were not there. He immediately realized that his wife must have gone to her parent’s house. He ran and caught up with his wife. The wife on seeing the fast approaching husband panicked as she was scared of him and jumped into the well with their baby. The baby died, whereas Dhirajia survived.

The court acquitted Dhirajia of murder as under 300 (4), Dhirajia had a justifiable excuse to jump in the well to escape her abusive husband. She was therefore entitled to undertake the risk of jumping in the well to escape from her abusive husband. However, Dhirajia was convicted of culpable homicide under 299 (c) since she had knowledge that she was about to cause the death of her baby and because 299 (c) does not provide for any excuse from liability unlike 300 (4).

SPECIAL EXCEPTIONS TO MURDER

The law is based on the principle of reason. Criminal law holds only reasonable and sane men responsible for their crimes. The law takes a lenient view of spur of the moment murders and

punshes them only as culpable homicide. The special exceptions to murder reduce the liability of one responsible for murder to that only of culpable homicide.

According to Exception 1 of S. 300, culpable homicide is not murder when due to the deprivation of the power of self control and under grave and sudden provocation, a person causes death of the person who gives the provocation, or causes the death of any other person by mistake or ccident.

K.M. Nanavati case

Nanavati was a naval officer who had a wife called Sylvia and 3 children. Nanavati used to be away for 6 months in a year on the ship. In his absence, the wife started an affair with a businessman called Prem Ahuja. When nanavati came home, the wife informed him of her love for Prem Ahuja and that she wanted to marry him. Nanavati was very upset but he calmed down and took his wife and children to a movie theatre. On the pretext of some work, he took their leave and went to the cantonment stores and got a revolver + 6 bullets issued in his name. From thereon he went to Prem Ahuja’s house where he abused Prem Ahuja,“ You filthy ****, when I die will you marry my wife and look after my children!”?

To this, Prem replied, “why should I marry everyone I sleep with?”. At this moment Nanavati took out his pistol and shot Prem Ahuja dead. According to the court, Nanavati was not entitled to the benefit of grave and sudden provocation since he had about 3 hours to cool down his anger therefore it was not sudden anymore as he had regained his composure as evinced by his act of taking his family for a movie.

Babu Lal v. state

Babu Lal saw his wife sleeping with her lover. Babulal’s wife promised to never to meet her lover again. On this promise, they changed city and moved to a new house. One day, when Babu suddenly came home early, he saw that his wife and her lover were having lunch in his new house. Enraged, he murdered both his wife and her paramour.

The accused was given the benefit of special exception 1 to S. 300 as he acted without self control under grave and sudden provocation, which was not voluntarily provoked by him. Thus he was only liable for culpable homicide not amounting to murder.

HOMICIDE BY RASH/NEGLIGENT ACT

Cherubin Gregory v. State of Bihar

The wall of Smt. Madilen’s toilet had falled down due to incessant rains in Bihar. Madilen and her family started using the accused’s toilet. The accused repeatedly warned Madilen to stay away from his property to no avail. The accused erected a live un-insulated copper wire on the path to his property and switched it on. There was no warning that the wire was live except a lit bulb hanging at some distance. Madilen again came to Cherubin’s property and used the toilet. However, on leaving she touched the copper wire and died by electrocution. The court convicted Cherubin of causing death by rash/negligent act as he took the risk of a reckless act by erecting an un-insulated copper wire on his property when he knew that the property was being visited by his neighbours frequently. He was convicted u/s. 304A.

DOWRY DEATH

S. 304B of the IPC punishes causing dowry death. Dowry death is defined as causing death of a woman by burns, bodily injury or any unnatural cause, whether it be homicide or suicide, within

7 years of her marriage and it is shown that before her death she was subjected to cruelty by the husband, or a relative of the husband, or harassment, which was in connection with a demand for dowry.

Shanti (Smt.) v. State of Haryana

Kailash got married to a man in the Indian army. Soon after her marriage, Smt. Kailash was subjected to demands for dowry from her mother-in-law and sister-in-law. When Kaliash’s father came to pick up his daughter for taking her to a family function, the mother-in-law rebuked Kailash’s father and prevented him from taking his daughter along with him as he had not fulfilled their wishes for dowry. Next day, the father came to know that his daughter Kailash has expired and has been cremated.

The mother-in-law and sister-in-law were convicted of dowry death u/s. 304B of the IPC as the death of Kialiash was unnatural, and caused within 7 years of marriage, moreover, she was subjected to cruelty by her mother-in-law and sister-in-law in connection to a demand for dowry. The accused were also convicted of S. 201 i.e. destruction of evidence as they hid the death of Kailash from her parents and hurriedly cremated her with a view to prevent an autopsy by the police.

HURT AND GRIEVOUS HURT

Hurt

S. 319 of the Indian Penal Code defines simple hurt. Hurt is defined as causing of bodily pain, disease, or infirmity to any person. S. 321 defines voluntarily causing hurt as an act with the intention of causing hurt to any person with the knowledge that he is likely to hurt to a person and causes hurt is said to voluntarily cause hurt. S. 323 defines the punishment for causing hurt.

Grievous Hurt

S. 320 of the Indian Penal Code defines grievous hurt. Grievous hurt is defined as the following kinds of descriptions of hurt: emasculation, permanent privation of the sight of either eye, permanent privation of the hearing of either ear, privation of any member or joint, destruction or permanent impairing of the powers of any member or joint, permanent disfiguration of the head or the face, fracture or dislocation of a bone or tooth, and any hurt that endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. S. 322 defines voluntarily causing grievous hurt. S. 325 defines the punishment for voluntarily causing grievous hurt, whereas S. 326 defines the punishment for causing grievous hurt by dangerous weapons or means.

Rambaran Mahton v. The State

There was a dispute between two brothers. The younger brother came on Rambaran’s property and started abusing him. When the younger brother started abusing their mother, Rambaran lost his cool and pushed his brother to the ground, sat down on his stomach and punched and slapped him many times. The younger brother fainted from the beating. Later, Rambaran tried waking his brother up by offering him water but the brother did not respond and was declared brought dead to the hospital.

The court convicted Rambaran u/s. 325 i.e. punishment for causing grievous hurt as 5 ribs of the victim were found fractured and the spleen was ruptured, which falls under the description of grievous hurt u/s. 320. The court also applied S. 322 i.e. voluntarily causing grievous hurt as Rambaran had the knowledge that he is likely to cause grievous hurt by his punches and slaps.

The court however took a lenient view of the matter as Rambaran had tended to his brother once he cooled down and felt genuinely sorry for the death of his brother.

KIDNAPPING AND ABDUCTION

S. 359 of the Indian Penal Code defines Kidnapping as of two kinds: Kidnapping from India, and Kidnapping from Lawful Guardianship. S. 360 defines Kidnapping from India as conveyance of any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of that person.

S. 361 defines Kidnapping from Lawful Guardianship as enticing any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian. The words lawful guardian in section 361 includes any person lawfully entrusted with the care of custody of such minor or other person.

S. Vardarajan v. State of Madras

17 year old Savitri became friendly with her neighbor Vardarajan. They used to talk to each  other from the balcony. Savitri’s sister Rama noticed them talking and asked Savitri as to why she was speaking with Vardarajan, whereupon Savitri declared to her sister that, “One day I would marry Vardarajan.” At night, Rama complained about Savitri and Vardarajan to her father. When questioned by the father as to Vardarajan, Savitri started crying but kept quiet. The same night, Savitri’s father drove her to their relatives’ house and kept her there intending that she stay away from Vardarajan for 1-2 months.

Next day early morning, Savitri left her relatives’ house and telephoned Vardarajan asking him to come to pick her up. Vardarajan came in a car and Savitri sat next to him and suggested that they should get married immediately. Vardarajan took her to the marriage registrar where they got married in the presence of two witnesses. They left for their honeymoon and upon return to Madras, Vardarajan was arrested by the police u/s. 361 IPC for kidnapping Savitri.

According to the court, Vardarajan was not guilty. This is because Savitri left her relatives’ house on her own. She was not enticed by Vardarajan at all. Savitri harboured intentions of marrying him without any enticement from his side. There was no evidence that the accused enticed Savitri by promising marriage to her. Vardarajan merely complied with Savitri’s wishes of marriage and this therefore cannot be said to be kidnapping as there was no enticement from Vardarajan.

Thakorlal D. Vadgama v. State of Gujarat

Mohini, a 15 year old girl used to live with her mother and father. On Mohini’s birthday, Thakorlal, a wealthy industrialist gave her an extremely expensive Parker pen. However, Mohini’s mother insisted that she return it, and the same was returned. One day, when all of them were on a trip to Mt. Abu, Mohini’s mother saw Thakorlal sleeping with his arm around Mohini which alarmed her. From that day, Mohini’s mother forbade her daughter to meet Thakorlal. However, Mohini would run away from school and go to meet Thakorlal at his bungalow where they would engage in sexual intercourse. One day, Mohini’s mother found out that her daughter was missing school and sent over the police to Thakorlal’s house where he was arrested and Mohini was recovered from his house.

The court convicted Thakorlal of S.361/366 i.e. Kidnapping from lawful guardianship and Kidnapping for illicit intercourse. The court reasoned that Thakorlal had enticed Mohini by giving her expensive gifts and promising her a luxurious life at his house. Therefore, he was

RAPE, SEXUAL AND UNNATURAL OFFENCES

Rape is defined in S. 375 of the IPC. Rape can be committed only by a man against a woman. A woman can however be liable as an abettor to rape. The definition of rape has undergone  changes after the 2013 amendment act. Now the meaning of rape is not merely confined to penile-vaginal penetration. After 2013, rape includes penile-vaginal, penile-oral, penile-anal and digital penetration of a woman. This has significantly enlarged the scope of rape.

Passive Submission and Consent

Rao Harnarain Singh Sheoji Singh v. State

Kalu and Surti were husband and wife living as servant tenants of Rao Harnarain, an advocate. One day, the DSP and Public Prosecutors assembled at Rao Harnarain’s house for a party. Rao Harnarain went over to Kalu and told him to surrender his wife for their sexual pleasures for the night. Kalu protested but gave in once Rao Harnarain threatened to throw them out of their tenancy and employment. When Kalu communicated the immoral request to his wife Surti, she vehemently protested but was coaxed into submitting. Through the night, Surti’s shrieks and cries were heard by Rao Harnarain’s neighbours. She died and her body was hurriedly cremated in the morning. The accused were prosecuted for rape. The defense suggested that Surti had consented to sexual intercourse and therefore the accused were not liable for rape.

The Court however held the accused liable. The court distinguished consent from passive submission. According to the court, Surti passively submitted but never gave her free consent. “A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non- resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by

duress, cannot be deemed as free consent under law.” “Consent means voluntary participation, exercise of intelligence, based on knowledge, moral quality and assent. Submission of body under fear or terror is not consent.”

Gangrape (376D)

Bhupinder Sharma v. State of Himachal Pradesh

A woman went to Solan to purchase medicines for her ailing father. But she could not find the medical store. Two accused were passing by in an autorickshaw and offered to drop her to the medical store like any normal passenger. Instead of taking her to the medical store, the accused took her to a deserted house in the jungle where three more accused were present. Out of the five accused, four had raped her. Before Bhupinder could rape her, she escaped from the house and found a police vehicle on the highway. The police nabbed all the accused. Later, Bhupinder proclaimed his innocence for the crime since he never committed rape on her.

The court convicted Bhupinder under S. 376D Gangrape as it is unnecessary that he should have raped her when he was complicit in the act of rape committed by others. Bhupinder alongwith the other accused was acting in furtherance of common intention to rape the victim, therefore the mere fact that he himself did not physically rape did not amount to innocence for the act. Bhupinder was thus convicted for gangrape alongwith the other accused.

Scope of “Sexual Intercourse” prior to 2013 amendment

Sakshi v. Union of India

A writ petition under Article 32 of the Constitution was filed by the NGO Sakshi for a declaratory relief to widen the scope of sexual intercourse in S. 375 prior to the 2013 amendment. Prior to 2013 amendment, the meaning of sexual intercourse was confined to only

penile-vaginal intercourse. As a consequence of such restricted interpretation of “sexual intercourse”, other sexual acts such as penile-oral, penile-anal and digital penetrations were covered in offences of a much lesser degree. Acts involving penile-oral and penile-anal penetration was covered under S. 377. Whereas, digital penetration was covered under S. 354 i.e. outraging the modesty of woman and not rape.

The court however refused to enlarge the scope of sexual intercourse mentioned in the pre-2013 amendment S. 375 because it feared creating confusion in the country. It thus left it to the legislature to amend the definition of rape.

The legislature finally expanded the meaning of sexual intercourse to include various forms of penetrative sexual acts as rape under S. 375 by enacting the Criminal Laws (Amendment) Act, 2013.

When consent is given under erroneous belief of marriage (S. 375 Fourthly)

Bhupinder Singh v. UT of Chandigarh

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

The court convicted Bhupinder Singh of rape under S. 375 Fourthly as she had consented to sexual intercourse only on the belief that she was lawfully married to Bhupinder whereas Bhupinder knew that his marriage with Manjit was void due to it being his second marriage. Therefore, Bhupinder Singh was convicted of rape under S. 375 Fourthly.

THEFT AND EXTORTION

Theft

S. 378 of the Indian Penal Code defines theft as an act where whoever intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking. But a thing so long as it is attached to the earth, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.

A moving effected by the same act which affects the severance may be a theft. A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.

The consent mentioned in the definition of theft may be express or implied, and may be given either by the person in possession, or by any person having for the purpose authority either express or implied.

Pyarelal Bhargava v. State of Rajasthan

Pyarelal Bhargava was a Superintendent in a government department. At the instance of his friend, Pyarelal removed a file from the office of the Chief Engineer. He gave this file to his friend who changed an affidavit and the next day, Pyarelal again placed the file back in the Chief Engineer’s office so that the loss may not be discovered.

The court convicted Pyarelal for theft under Ss. 378/379 because his intention was dishonest (S.

24) and committed with the intention of causing wrongful loss (S. 23) since his act of removing the file from the Chief Engineer’s office deprived the possession of the Chief Engineer. Even removing temporarily amounts to theft since loss of possession is enough to constitute the offence of theft.

Note: Read Illustration 378 (b) and (l).

Sekar v. Arumugham

Sekar took a loan of 4 lacs from Bank of Madura and purchased a lorry under hypothecation. Clause 14 of the deed of hypothecation gave the bank the right to seize the lorry in the non- payment of the loan or default in payment of loan therein. After some time, Sekar defaulted on the loan. Arumugham, the manager of the bank, ordered the seizure of the lorry and the said lorry was seized. Aggrieved by the seizure, Sekar filed a case of theft against the bank manager.

The court decided that the bank manager was not liable for theft as he did not possess a dishonest intention to cause wrongful loss to Sekar. Clause 14 of the hypothecation deed signed between Sekar and the bank itself gave a right to the bank to seize the lorry in the event of non-payment of the loan amount. The bank therefore rightly seized the lorry and no act of theft was committed.

Extortion

S. 383 of the Indian Penal Code defines extortion as an act whereby whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any property or valuable security, or anything signed or sealed which may be converted into a valuable security.

State of Karnataka v. Basavegowda

Basavegowda married Bhagyamma. 10 days after their marriage, Basavegowda suggested that they attend his friend’s wedding and insisted that she must wear all her jewels. Instead of the wedding, however, he took her to the forest and threatened to kill her unless she removes all her jewels and hands it to him. Basavegowda was handed Rs. 11,000 worth of jewels which he

wrapped in his handkerchief. The wife scolded Basavegowda threatening police action and arrest. Hearing this enraged the husband and he started hitting her and even broke her rib. When he picked up a stone to hit her she screamed thus alerting some people nearby. The husband ran away with the jewels.

The court convicted Basavegowda of extortion since he intentionally put his wife in fear and dishonestly caused his wife to deliver her jewels to him. He thus committed extortion.

Jadunandan Singh v. Emperor

Narain and Sheonandan, the victims were coming from their fields when they were attacked by the accused, Alakh and Jadunandan. Jadunandan hit Narain with a spear without warning. After Narain fell, Alakh and Jadunandan hit Sheonandan. Alakh then held Narain and then Sheonandan whereas Jadunandan forcibly took their thumb impressions on 4 blank sheets of paper. The issue arose whether extortion had been committed.

The court decided that extortion was not committed by distinguishing between “giving” and “taking”. According to the court, S. 383 requires the act of voluntarily giving of thumb impression and not involuntarily forcible taking of the thumb impressions by the accused. Only voluntary giving of thumb impressions falls within the purview of S. 383. Therefore, the court acquitted the accused of the charge of extortion but convicted them of causing hurt and assault under Ss. 324 and 352.

CRIMINAL MISAPPROPRIATION AND CRIMINAL BREACH OF TRUST

Criminal Misappropriation

S. 403 of the Indian Penal Code defines Criminal Misappropriation as dishonestly mis- appropriating or converting to his own use any movable property. Criminal Misappropriation can be committed only with respect to movable property and not immovable property.

Criminal Breach of Trust is defined in S. 405 of the Indian Penal Code as the act committed when any person is in any manner entrusted with property, or with any dominion over property, and he dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do.

Ambika Prasad Singh v. The State

Ambika, an accountant in the Indian Railways fudged accounts relating to the ticket collection. He appropriated Rs. 7, 185.15 from the sum with which he was entrusted. The court decided that Ambika was guilty of committing criminal breach of trust u/s. 408 as he was a servant of the Indian Railways and thus liable to greater punishment.

Common Cause – A Regd. Society v. UOI

Captain Satish Sharma, the Union Petroleum minister in Prime Minster’s cabinet was entrusted with the allotment of 15 petrol pumps by following a defined procedure of official tender. Capt. Satish Sharma, on the other hand, allotted the petrol pumps to relatives of his personal staff, sons of ministers and members of oil boards. Capt. Satish Sharma was in a position of trustee w.r.t. the public property and he betrayed the trust of the people by distributing the petrol pumps

CHEATING

Cheating is defined in S. 415 as whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. A dishonest concealment of facts is a deception within the meaning of this section and amounts to cheating, if property is caused to be delivered or certain steps are undertaken by the promise at the desire of the promisor which are harmful to promisee’s mind, body, reputation or property.

Akhil Kishore Ram v. Emperor

Akhil Kishore employed 4 clerks and created 18 aliases. He started advertising incantations and charms in the newspapers by using these false identities. The target of his advertisements was gullible men and women who want to be successful without putting in the hard work and effort. Akhil advertised the “Gupt Mantra ad” which was very catchy and went like this, “ No need to spend   lacs   when   success   can   be   had   without   any   effort   or    hardship    at    all.” “Buy this Gupt Mantra and after saying it 7 times you shall win in life, marriage, job, litigation etc. Send amount by postage Rs. 270, reward if proved fallible Rs. 100.”

25,000 clients bought the the gupt mantra. Some customers filed complaint of cheating against Akhil since the gupt mantra instructions involved undergoing a lot of hardship such as ,”keep staring at the moon without blinking for 15 minutes to use this mantra.” Since no such direction was mentioned in the advertisement, and feeling cheated that had they known that they would

have to perform an impossible task of staring at the moon for 15 minutes they would never have purchased the gupt mantra. The court convicted Akhil for cheating since he created 18 aliases and advertised dishonestly to deceive others of their money by well planned modus operandi.

Sri Bhagwan S.S.V.V. Maharaj v. State of Andhra Pradesh (AP)

Sri Bhagwan was a godman whose devotee turned into his bête noire. The devotee, Vekatkrishna had attended Sri Bhagwan’s lectures where he represented himself as an occultist possessing divine healing powers through his touch; and that he particularly specialized in curing chronic diseases. Venkat approached Sri Bhagwan with his 15 year old daughter who was dumb by birth. Sri Bhagwan promised to cure her on payment of Rs. 1 lacs by the end of the year 1994.

However, the child was not cured by 1994. Sri Bhagwan promised to cure the child by August 1995 by performing a Yagna on payment of Rs. 1,000. Yagya was perfomed but the chuild was not cured. Vekat started harbouring doubts about the powers of Sri Bhagwan. He read in newspapers how Sri Bhawan had earned crores of rupees by defrauding gullible people. Realizing this, Venkat filed an F.I.R under cheating at the police station.

The court convicted Sri Bhagwan on the principle that when a person declares that he possesses healing powers, and if on the basis of such promise money is paid to him without any subsequent cure. S. 420 is committed by such person who makes the representations as he dishonestly deceives others with the object to deprive them of their property by making false promises.

DEFAMATION

Defamation is defined in S. 499. Defamation is the act where by words either spoken or intended to be read, or by signs or by visible representations, the person makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person.

C. L. Sagar v. Mayawati

It was alleged that C. L. Sagar met Mayawati in pursuance of securing an election ticket of Bahujan Samaj Party. Mayawati is alleged to have said,” okay, pay Rs. 60,000 to my P.A. and I will give you the ticket. C. L. Sagar is alleged to have paid Rs. 50,000 and that he refused to pay Rs. 10,000 further unless his ticket was handed over to him which is alleged to have annoyed Mayawati. Mayawati in a political rally is alleged to have vented her anger by defaming C. L. Sagar by saying, “Badi lambi muchay hain, bade imaandaar bantey ho, baiman kahin ka.” C. L. Sagar filed a case of defamation against Mayawati.

According to the court, Mayawati’s statement did not amount to defamation as the complainant did not show to the court that he is the only one in Bahujan Samaj Party with an unusually long moustache. Thus, the proceedings under defamation were quashed by the high court.

Gautam Sahu v. State of Orissa

Gautam Sahu developed intimacy with the victim and married her. After a few days, he asked her to bring Rs. 20,000 from her father as dowry. When she refused, Gautam manhandled her and threw her out of the house. A panchayat was convened wherein the village elders requested Gautam to allow the victim to live with him as she was his wife. Gautam not only refused to take her back but publicly insulted her by calling her unchaste and ugly in front of the entire village. The victim registered an F.I.R. with the police alleging defamation. The court declared that prima facie the offence of defamation was made out and refused quashing of F.I.R.

Distinction between Preparation and Attempt

There is a very fine line between preparation and attempt. While, IPC does not define either of them, it is very important to distinguish between them because attempt is a crime but preparation is not. Both, Preparation and Attempt are physical manifestations of the criminal intention. But attempt goes a lot father than preparation towards the actual happening of crime. While in Preparation, there is a possibility that the person may abandon his plan, but attempt leaves no room for that. For example, keeping a pistol in pocket and looking for the enemy to kill is a preparation because one can abandon the plan anytime, but taking out the piston and pulling the trigger is attempt because it leaves no room for turning back.. Thus, in general, Preparation

involves collecting material, resources, and planning for committing an act while attempt signifies a direct movement towards commission after the preparations are made.

Ordinarily, to constitute an attempt the following elements are needed –

1. mens rea to commit the crime
2. ant act which constitutes the actus reus of a criminal attempt
3. failure in accomplishment

In the case of R vs Cheesman 1862, Lord Blackburn identified a key difference between the two. He says that if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.

However, this is not the only criteria for determining an attempt. The following are four tests that come in handy in distinguishing between the two –

Last Step Test or Proximity Rule

As per this test, anything short of last step is preparation and not attempt. This is because as long as there is a step remaining for completion of the crime, the person can abandon it. For example, A obtains poison to kill B and mixes it with food that B is supposed to eat. But he has not yet given the food to B. Thus, it is still preparation. As soon as he keeps the food on the table from where B eats everyday, the last step is done and it becomes an attempt.

In the case of R vs Riyasat Ali 1881, the accused gave orders to print forms that looked like they were from Bengal Coal Company. He proofread the samples two times and gave orders for correction as well so that they would appear exactly as forms of the said company. At this time he was arrested for attempt to make false document under section

464. However, it was held that it was not an attempt because the name of the company and the seal were not put on the forms and until that was done, the forgery would not be complete.

In the case of Abhayanand Mishra vs State of Bihar AIR 1961, A applied to the Patna University for MA exam and he supplied documents proving that he was a graduate and was working as a headmaster of a school. Later on it was found that the documents were

fake. It was held that it was an attempt to cheat because he had done everything towards achieving his goal.

Indispensable Element Test or Theory of Impossibility

As per this test, all of indispensable elements must be present to equal attempt. For example, a person has the gun to kill but he forgot the bullets. In this case, it would not be an attempt. Further, he goes to place where victim should be but is not then he is not guilty of attempt under this test. In other words, if there is something a person needs to commit the crime but it is not present, then there is not an attempt. 

This test has generated a lot of controversy ever since it was laid in the case of Queen vs Collins, where it was held that a pickpocket was not guilty of attempt even when he put his hand into the pocket of someone with an intention to steal but did not find anything. Similarly, in the case of R vs Mc Pherson 1857, the accused was held not guilty of attempting to break into a building and steal goods because the goods were not there.

However, these cases were overruled in R vs King 1892, where the accused was convicted for attempting to steal from the hand bag of a woman although there was nothing in the bag. Illustration (b) of section 511 is based on this decision.

But For Interruption Test

If the action proves that the person would have gone through with the plan if not for the interruption such as arrest, then it is an attempt. For example, a person points a gun at another and is about to pull the trigger. He is overpowered and was stopped from pulling the trigger. This shows that if he had not been interrupted, he would have committed the crime and he is thus guilty of attempt even though the last step of the crime has not be performed.

Unequivocality Test or On the job Theory

If a person does something that shows his commitment to follow through and commit the crime then it is an attempt. For example, in the case of State of Mah. vs Mohd. Yakub 1980, three persons were found with a truck loaded with silver near the sea dock. Further, the sound of engine of a mechanized boat was heard from a nearby creek. They were convicted of attempting to smuggle silver. J Sarkaria observed that what constitutes at attempt is a mixed question of law and the facts of a case. Attempt is done when the

culprit takes deliberate and overt steps that show an unequivocal intention to commit the offence even if the step is not the penultimate one.

Attempt to commit murder

Section 307 of IPC states that whoever does any act with intention or knowledge, and under such circumstances, that, if by that act he caused death he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act the offender shall be either liable to imprisonment for life.

This means that if a person intentionally does something to kill another and if the other person is not killed, he would be liable for attempt to murder. However, his action must be capable of killing. For example, if a person picks up a pebble and throws it on someone saying, “I will kill you”, it is not attempt to murder because it is not possible to kill someone with a pebble. But if someone swings a thick lathi and misses the head of another person, it is attempt to murder.

Illustrations –

1. A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
2. A, with the intention of causing the death of a child of tender years, exposes it is a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
3. A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of ] this section.
4. A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’ s table or delivers it to Z’s servant to place it on Z’s table. A has committed the offence defined in this section.

Is Injury necessary

From the wordings of this section, it is clear that a person is liable under this section even if no injury is caused to anyone. However, if hurt is caused, the punishment is more severe. Further, as held in the case of State of Mah. vs Balram Bama Patil 1983, SC held that for conviction under sec 307, it is not necessary that a bodily injury capable of causing death must be inflicted but the nature of the injury can assist in determining the intention of the accused. Thus, this section makes a distinction between the act of the accused and its result.

Whether act committed must be capable of causing death

In Vasudev Gogte’s Case 1932, the accused fired two shots at point blank range at the Governor of Bombay. However, it failed to produce any result because of defect in ammunition or intervention of leather wallet and currency. It was held that to support conviction under this section the accused must have done the act with intention or knowledge that but for any unforeseen intervention, it would cause death. Thus, he was held guilty.

Penultimate Act not necessary

In the case of Om Prakash vs State of Punjab, AIR 1961, SC held that a person can be held guilty under this section if his intention is to murder and in pursuance of his intention he does an act towards its commission, even if that act is not the penultimate act. As per J B K Sharma, the intention of the culprit is the key and it must be gathered from all the circumstances and not merely from the location, number, and type of injury.

Section 307, 308, 309 and Section 511

Attempts are dealt with in IPC in three ways –

1. Some sections such as 196 and 197, deal with the offence as well an attempt for that offence.
2. Some sections such as 307 and 308 deal exclusively with an attempt of an offence.
3. The attempts for offenses that are not dealt with in above two are covered by section 511.

Thus, a case of attempt to murder may fall under section 307 as well as section 511. There is a conflict of opinion among the high courts regarding this matter. In the case of R vs Francis

Cassidy 1867, Bombay HC held that section 511 is wide enough to cover all cases of attempt including attempt to murder. It further held that for application of section 307, the act

might cause death if it took effect and it must be capable of causing death in normal circumstances. Otherwise, it cannot lie under 307 even if it has been committed with intention to cause death and was likely, in the belief of the prisoner, to cause death. Such cases may fall under section 511. However, in the case of Queen vs Nidha 1891, Allahabad HC expressed a contrary view and held that sec 511 does not apply to attempt to murder. It also held that section 307 is exhaustive and not narrower than section 511.

In the case of Konee 1867, it was held that for the application of section 307, the act must be capable of causing death and must also be the penultimate act in commission of the offence, but for section 511, the act may be any act in the series of act and not necessarily the penultimate act. However, this view has now been overruled by SC in the case of Om Prakash vs State of Punjab AIR 1967, where the husband tried to kill his wife by denying her food but the wife escaped. In this case, SC held that for section 307, it is not necessary that the act be the penultimate act and convicted the husband under this section.

Mistake of fact

Sometimes an offence is committed by a person inadvertently. He neither intends to commit an offence nor does he know that his act is criminal. He may be totally ignorant of the existence of relevant facts. The knowledge of relevant facts is what really makes an act evil or good. Thus, if a person is not aware of the facts and acts to the best of his judgment, his act cannot be called

evil. Under such circumstances he may take the plea that his acts were done under the misconception of the facts. Such a mistake of fact is acknowledged as a valid defence in section 76 and 79 of IPC.

Section 76 – Act done by a person bound or by mistake of fact believes to be bound by law – Nothing is an offence which is done by a person who is or who by reason of a mistake of fact and not by a reason of a mistake of law, in good faith believes himself to be bound by law to do it.

Illustration –

A, a soldier fires on a mob upon orders from his superior, in conformity with the commands of the law. He has committed no offence.

A, an officer of court of justice, upon ordered by that court to arrest Y, after due inquiry, believing Z to be Y, arrests Z. He has committed no offence.

Section 79 – Act done by a person justified or by a mistake of fact believing himself justified by law – Nothing is an offence which is done by the a person who is justified by law , or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it.

Illustration –

A sees Z doing what appears to be murder. A, in the exercise to the best of his judgment, exerted in good faith of the power which the law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence though it may turn out that Z was acting in self defence.

Difference between sec 76 and 79

The only difference between sec 76 and 79 is that in section 76, a person believes that he is bound by to do a certain act while in 79, he believes that he is justified by law to do a certain act. For example, a policeman believing that a person is his senior officer and upon that person’s orders fires on a mob. Here, he is bound by law to obey his senior officer’s orders. But if the

policeman believes that a person is a thief, he is not bound by law to arrest the person, though he is justfied by law if he arrests the person.

To be eligible in either of the sections, the following conditions must be satisfied –

1. it is a mistake of fact and not a mistake of law that is excusable.
2. the act must be done in good faith.

Meaning of Mistake –

A mistake means a factual error. It could be because of wrong information, i.e. ignorance or wrong conclusion. For example, an ambulance driver taking a very sick patient to a hospital may be driving faster than the speed limit in order to reach the hospital as soon as possible but upon reaching the hospital, it comes to his knowledge that the patient had died long time back and there was no need to drive fast. However, since he was ignorant of the fact, breaking the speed limit is excusable for him. A person sees someone remove a bulb from a public pole. He thinks the person is a thief and catches him and takes him to the police only to learn that the person was replacing the fused bulb. Here, he did the act in good faith but based on wrong conclusion so his act is excusable.

To be excusable, the mistake must be of a fact and not of law. A mistake of fact means an error regarding the material facts of the situation, while a mistake of law means an error in understanding or ignorance of the law. A person who kills someone cannot take the defence of mistake saying he didn’t know that killing is a crime because this is a mistake of law and not of fact. But, as in Waryam Singh vs Emperor AIR 1926, he can take a defence of mistake saying he believed that the killed person was a ghost because that would be a mistake of a fact.

R vs Prince 1875, is an important case where a person was convicted of abducting a girl under 18 yrs of age. The law made taking a woman under 18 from her guardian without her guardian’s permission a crime. In this case, the person had no intention to abduct her. She had gone with the person with consent and the person had no reason to believe that the girl was under 18. Further, the girl looked older than 18. However, it was held that by taking a girl without her guardian’s permission, he was taking a risk and should be responsible for it because the law made it a crime

even if it was done without mens rea. In this case, five rules were laid down which are guidelines whenever a question of a mistake of fact or mistake of law arises in England and elsewhere –

1. When an act is in itself plainly criminal and is more severely punishable if certain circumstances coexist, ignorance of the existence is no answer to a charge for the aggravated offence.
2. When an act is prima facie innocent and proper unless certain circumstances co-exist, the ignorance of such circumstances is an answer to the charge.
3. The state of the mind of the defendants must amount to absolute ignorance of the existence of the circumstance which alters the character of the act or to a belief in its non- existence.
4. When an act in itself is wrong, and under certain circumstances, criminal, a person who does the wrongful act cannot set up as a defence that he was ignorant of the facts which would turn the wrong into a crime.
5. When a statute makes it penal to do an act under certain circumstances, it is a question upon the wording and object of the statute whether responsibility of ascertaining that the circumstances exist is thrown upon the person who does the act or not. In the former case, his knowledge is immaterial.

The above guidelines were brought in Indian law in the case of The King vs Tustipada Mandal AIR 1951 by Orissa HC.

In R vs Tolson 1889, a woman’s husband was believed to be dead since the ship he was traveling in had sunk. After some years, when the husband did not turn up, she married another person.

However, her husband came back and since 7 years had not elapsed since his disappearance, which are required to legally presume a person dead, she was charged with bigamy. It was held that disappearance for 7 yrs is only one way to reach a belief that a person is dead. If the woman, and as the evidence showed, other people in town truly believed that the husband died in a shipwreck, this was a mistake of fact and so she was acquitted.

However, in R vs White and R vs Stock 1921, a person was convicted of bigamy. Here, the husband with limited literacy asked his lawyers about his divorce, who replied that they will send the papers in a couple of days. The husband construed as the divorce was done and on that belief

he married another woman. It was held that it was a mistake of law.

Good faith

Another condition that must be satisfied to take a defence of mistake of fact is that the act must be done in good faith. Section 52 says that nothing is said to be done or believed in good faith which is done or believed without due care and attention. Thus, if one shoots an arrow in the dark without ascertaining no one is there, he cannot be excused because he failed to exercise due care.

If a person of average prudence in that situation can ascertain the facts with average deligence, a person taking the defence of mistake of those facts cannot be said to have taken due care and thus, is not excusable.

Accident

Accidents happen despite of nobody wanting them. There is no intention on the part of anybody to cause accident and so a loss caused due to an accident should not be considered a crime. This is acknowledged in Section 80 of IPC, which states thus –

Section 80 – Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in doing of a lawful act, in a lawful manner by lawful means with proper care and caution.

Illustration – A works with a hatchet; the head flys off and kills a person standing nearby. Here, if there was no want of proper caution on the part of A, his act is excusable and is not an offence.

From section 80, it can be seen that there are four essential conditions when a person can take the defence of an accident –

1. The act is done by accident or misfortune – Stephen in his digest of criminal law explains that an effect is said to be accidental if the act that caused it was not done with an intention to cause it and if the occurance of this effect due to that act is not so probable that a person of

average prudence could take precautions against it. The effect comes as a surprise to the doer of average prudence. SInce he does not expect it to happen, he is unable to take any precaution against it.

For example, a firecraker worker working with Gun powder knows that it can cause explosion and must take precaution against it. If it causes an explosion and kills a third person, he cannot claim defence of this section because the outcome was expected even though not intended.

However, if a car explodes killing a person, it is an accident because a person on average prudence does not expect a car to explode and so he cannot be expected to take precautions against it.

• There must not be a criminal intent or knowledge in the doer of the act – To claim defence under this section, the act causing the accident must not be done with a bad intention or bad motive. For example, A prepares a dish for B and puts poison in it so as to kill B. However, C comes and eats the dish and dies. The death of C was indeed an accident because it was not expected by A, but the act that caused the accident was done with a criminal intention.

In Tunda vs Rex AIR 1950, two friends, who were fond of wrestling, were wresting and one got thrown away on a stone and died. This was held to be an accident and since it was not done without any criminal intention, the defendant was acquitted.

• The act must be lawful, and done in a lawful manner, and by lawful means – An accident that happens while doing an unlawful act is no defence. Not only that, but the act must also be done in a lawful manner and by lawful means. For example, requesting rent payment from a renter is a lawful act but threatening him with a gun to pay rent is not lawful manner and if there is an accident due to the gun and if the renter gets hurt or killed, defence under this section cannot be claimed.

In Jogeshshwar vs Emperor, where the accused was fighting with a man and the man’s pregnant wife intervened. The accused aimed at the woman but accidently hit the baby who was killed. He was not allowed protection under this section because he was not doing a lawful act in a lawful manner by lawful means.

• Proper precautions must be taken while doing the act – The act that causes the harm must

have been done with proper care and precautions. An accident caused due to negligence is not excusable. A person must take precautions for any effects that any person with average intelligence would anticipate. For example, a owner of a borewell must fence the hole to prevent children falling into it because any person with average prudence can anticipate that a child could fall into an open borewell.

In Bhupendra Singh Chudasama vs State of Gujarat 1998, the appellant, an armed constable of SRPF shot at his immediate supervisor while the latter was inspecting the dam site in dusk hours. The appellant took the plea that it was dark at that time and he saw someone moving near the dam with fire. He thought that there was a miscreant. He shouted to stop the person but upon getting no response he fired the shot. However, it was proven that the shot was fired from a close range and it was held that he did not take enough precaution before firing the shot and was convicted.

Accident in a act done with consent

Section 87 extends the scope of accident to cases where an act was done with the consent of the victim. It says thus –

Section 87 – Nothing which is not intended to cause death or grevious hurt and which is not known to the doer to be likely to cause death or grevious hurt is an offence by reason of any harm that it may cause or be intended by the doer to cause to any person above eighteen years of age, who has given consent whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.

Illustration – A and Z agree to fence with each other for amusement. This agreement implies the consent by each to suffer any harm which in the course of such fencing may be caused without foul play; and if A, while playing fairly, hurts Z, A committs no offence.

This is based on the premise that every body is the best judge for himself. If a person knowingly undertakes a task that is likely to cause certain damage, then he cannot hold anybody responsible for suffering that damage. Thus, a person watching another litting up firecrackers agrees to take

the risk of getting burned and must not hold anybody responsible if he gets burned. In Nageshwar vs Emperor, a person asked the accused to try dao on his hand believing that his hand was dao proof due to a charm. He got hurt and bled to death. However, the accused was acquitted because he was protected under this section. The deceased consented to the risk of trying dao on his hand.

Act of child, insanity, intoxication

As mentioned before, to hold a person legally responsible for a crime, in general, evil intention must be proved. A person who is not mentally capable of distinguishing between good and bad or of understanding the implications of an action cannot be said to have an evil intention and thus should not be punished. Such incapacity may arise due to age, mental illness, or intoxication. Let us look at each of these one by one –

Act of child

It is assumed that a child does not have an evil mind and he does not do things with evil intention. He cannot even fully understand the implications of the act that he is doing. Thus, he completely lacks mens rea and should not be punished. IPC contains for following exemptions for a child –

Section 82 – Nothing is an offence which is done by a child under seven years of age.

Section 83 – Nothing is an offence which is done by a child above seven years of age and below twelve years of age who has not attained the sufficient maturity of understanding to judge the nature and consequences of this conduct on that occasion.

Through these sections, IPC acknowledges the fact that children under seven years of age cannot have suffient maturity to commit a crime and is completely excused. In Indian law, a child below seven years of age is called Doli Incapax. In Queen vs Lukhini Agradanini 1874 , it was held that merely the proof of age of the child would be a conclusive proof of innocence and would

ipso facto be an answer to the charge against him.

However, a child above seven but below twelve may or may not have sufficient maturity to commit a crime and whether he is sufficiently mature to understand the nature and consequences of the act needs to be determined from the facts of the case. To claim a defence under section 83, a child must

1. be above seven and below twelve years of age.
   1. not have attained sufficient maturity to understand the nature and consequences of his act.
   1. be immature at the time of commission of the act.

Section 83 provides qualified immunity because presumes that a child above seven and below twelve has sufficient maturity to commit a crime and the burdon is on the defence to prove that he did not possess sufficient . Thus, in Hiralal vs State of Bihar 1977, the boy who participated in a concerted action and used a sharp weapon for a murderous attack, was held guilty in the absence of any evidence leading to boy’s feeble understanding of his actions.

In English law, a boy below 14 years is deemed incapable of raping a woman but no such protection is offered in India and in Emperor vs Paras Ram Dubey, a boy of 12 years of age was convicted of raping a girl.

Insanity

A person may be rendered incapable of judging an action as right or wrong due to several kinds of deficienty in mental faculty or a disease of mind. Such people are called insane. Their position is same as childern below the age of discretion. From time to time several approches have been adopted to understand insanity and to see whether a person was insane or not at the time of his act.

Wild Beast Test

This test was evolved in R vs Arnold 1724. Here, the accused was tried for wounding and attempting to kill Lord Onslow. By evidence, it was clear that the person was mentally deranged. J Tracy laid the test as follows, “If he was under the visitation of God and could not distinguish

between good and evil and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever.”

Insane Delusion Test

This test was evolved in Hadfield’s Case in 1800, where Hadfield was charged with high treason and attempting the assasination of Kind George III. He was acquitted on the ground of insane delusion. Here, the counsel pleaded that insanity was to be determined by the fact of fixed insane delusions with which the accused was suffering and which were the direct cause of his crime. He pointed out that there are people who are deprived of their understanding, either permanently or temporarily, and suffer under delusions of alarming description which overpowers the faculties of their victims.

M’ Naghten’s Rules

In this case, Danial M’Naghten was tried for the murder of a private secretary of the then prime minister of England. He was acquitted on the ground of insanity. This caused a lot of uproar and the case was sent to bench of fifteen judges who were called upon to lay down the law regarding criminal responsibility in case of lunacy. Some questions were posed to the judges which they had to answer. These questions and answers are knows as M’Naghten’s Rules which form the basis of the modern law on insanity. The following principals were evolved in this case –

1. Regardless of the fact that the accused was under insane delusion, he is punishable according to the nature of the crime if, at the time of the act, he knew that he was acting contrary to law.
2. Every man must be presumed to be sane until contrary is proven. That is, to establish defence on the ground of insanity, it must be clearly proven that the person suffered from a condition due to which he was not able to understand the nature of the act or did not know what he was doing was wrong.
3. If the accused was conscious that the act was one that he ought not to do and if that act was contrary to law, he was punishable.
4. If the accused suffers with partial delusion, he must be considered in the same situation as to the responsibility, as if the facts with respect to which the delusion exists were real.

For example, if the accused, under delusion that a person is about to kill him and attacks and kills the person in self defence, he will be exempted from punishment. But if the accused, under delusion that a person has attacked his reputation, and kills the person due to revenge, he will be punishable.

• A medical witness who has not seen the accused previous to the trial should not be asked his opinion whether on evidence he thinks that the accused was insane.

The Indian Law recognizes the first two principals and incorporates them in section 84.

Section 84 – Nothing is an offence which is done by a person who, at the time of doing it, by the reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law.

Thus, a person claiming immunity under this section must prove the existence of the following conditions –

1. He was of unsound mind – Unsound Mind is not defined in IPC. As per Stephen, it is equivalent to insanity, which is a state of mind where the functions of feeling, knowing, emotion, and willing are performed in abnormal manner. The term Unsoundness of mind is quite wide and includes all varieties of want of capacity whether temporary or permanent, or because of illness or birth defect. However, mere unsoundness of mind is not a sufficient ground. It must be accompanied with the rest of the conditions.
2. Such incapacity must exist at the time of the act – A person may become temporarily out of mind or insane for example due to a bout of epilepsy or some other disease. However, such condition must exist at the time of the act. In S K Nair vs State of Punjab 1997, the accused was charged for murder of one and greivious assault on other two. He pleaded insanity. However, it was held that the words spoken by the accused at the time of the act clearly show that he understood what he was doing and that it was wrong. Thus, he was held guilty.

Intoxication

Several times intoxication due to drinking alcohol or taking other substances cause the person to lose the judgment of right or wrong. In early law, however, this was no defence for criminal responsibility. In recent times this has become a valid defence but only if the intoxication was involuntary. Section 85 says thus –

Section 85 – Nothing is an offence which is done by a person who at the time of doing it is by reason of intoxication, incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law : provided that the thing which intoxicated him was administered to him without his knowledge or against his will.

This means that to claim immunity under this section, the accused mus prove the existence of following conditions –

1. He was intoxicated.
2. Because of intoxication, he was rendered incapable of knowing the nature of the act or that what is was doing was wrong or contrary to law.
3. The thing that intoxicated him was administered to him without his knowledge or against his will.

Director of Public Prosecution vs Beard 1920 was an important case on this point. In this case, a 13 yr old girl was passing by a mill area in the evening. A watchman who was drunk saw her and attempted to rape her. She resisted and so he put a hand on her mouth to prevent her from

screaming thereby killing her unintentionally. House of lords convicted him for murder and the following principles were laid down –

1. If the accused was so drunk that he was incapable of forming the intent required he could not be convicted of a crime for which only intent was required to be proved.
2. Insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The difference between being drunk and diseases to which drunkenness leads is another. The former is no excuse but the later is a valid defence if it causes insanity.
3. The evidence of drunkenness falling short of proving incapacity in the accused to form the intent necessary to commit a crime and merely establishing that his mind was affected by the drink so that he more readily gave way to violent passion does not rebut the presumption that a man intends the natural consequences of the act.

Self Defence

It is said that the law of self defence is not written but is born with us. We do not learn it or acquire it some how but it is in our nature to defend and protect ourselves from any kind of harm. When one is attacked by robbers, one cannot wait for law to protect oneself. Bentham has said that fear of law can never restrain bad men as much as the fear of individual resistance and if you take away this right then you become accomplice of all bad men.

IPC incorporates this principle in section 96, which says,

Section 96 – Nothing is an offence which is done in the exercise of the right of private defence.

It makes the acts, which are otherwise criminal, justifiable if they are done while exercising the right of private defence. Normally, it is the accused who takes the plea of self defence but the court is also bound take cognizance of the fact that the accused aced in self defence if such evidence exists.

In Section 97 through 106, IPC defines the characteristics and scope of private defence in various

situations.

Section 97 – Every person has a right, subject to the restrictions contained in section 99, to defend –

first – his own body or body of any other person against any offence affecting the human body. second – the property, whether movable or immovable, of himself or of any other person,

against any act which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

This allows a person to defend his or anybody else’s body or property from being unlawfully harmed. Under English law, the right to defend the person and property against unlawful aggression was limited to the person himself or kindred relations or to those having community of interest e.g. parent and child, husband and wife, landlord and tenant, etc. However, this section allows this right to defend an unrelated person’s body or property as well. Thus, it is apt to call it as right to private defence instead of right to self defence.

It is important to note that the right exists only against an act that is an offence. There is no right to defend against something that is not an offence. For example, a policeman has the right to handcuff a person on his belief that the person is a thief and so his act of handcuffing is not an offence and thus the person does not have any right under this section.

Similarly, an aggressor does not have this right. An aggressor himself is doing an offence and even if the person being aggressed upon gets the better of the aggressor in the exercise of his right to self defence, the aggressor cannot claim the right of self defence. As held by SC in Mannu vs State of UP AIR 1979, when the deceased was waylaid and attacked by the accused with dangerous weapons the question of self defence by the accused did not arise.

The right to private defence of the body exists against any offence towards human body, the right to private defence of the property exists only against an act that is either theft, robbery, mischief, or criminal trespass or is an attempt to do the same.

In Ram Rattan vs State of UP 1977, SC observed that a true owner has every right to dispossess or throw out a trespasser while the trespasses is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing the possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking resource to the remedies available under the law.

Restrictions on right to private defence

As with any right, the right to private defence is not an absolute right and is neither unlimited. It is limited by the following restrictions imposed by section 99 –

Section 99 – There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office though that act may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised – The right of private defence in no case extends to the inflicting of more harm that it is necessary to inflict for the purpose of defence.

Explanation 1 – A person is not deprived of his right of private defence against an act done or attempted to be done by a public servant, as such, unless he knows or has reason to believe that the person doing the act is such public servant.

Explanation 2 – A person is not deprived of his right of private defence against an act done or attempted to be done by the direction of a public servant, unless he knows or has reason to

believe that the person doing the act is acting by such direction, or unless such person states the authority under which he acts or if he has authority in writing, unless he produces such authority if demanded.

Upon carefully examining this section, we can see that the right to private defence is not available in the following conditions –

1. when an act is done by a public servant or upon his direction and the act
   1. is done under colour of his office – an off duty police officer does not have the right to search a house and right to private defence is available against him. A police officer carrying out a search without a written authority, cannot be said to be acting under colour of his office. If the act of a public servant is ultra vires, the right of private defence may be exercised against him.
   1. the act does not cause the apprehension of death or grievous hurt – for example, a police man beating a person senselessly can cause apprehension of grievous hurt and the person has the right of private defence against the policeman.
   1. is done under good faith – there must be a reasonable cause of action on part of the public servant. For example, a policeman cannot just pick anybody randomly and put him in jail as a suspect for a theft. There must be some valid ground upon which he bases his suspicion.
   1. the act is not wholly unjustified – The section clearly says that the act may not be strictly justified by law, which takes care of the border line cases where it is not easy to determine whether an act is justified by law. It clearly excludes the acts that are completely unjustified. For example, if a policeman is beating a person on the street on mere suspicion of theft, his act is clearly unjustified and the person has the right to defend himself.

However, this right is curtailed only if the person knows or has reasons to believe that the act is being done by a public servant. For example, if A tries to forcibly evict B from an illegally occupied premises, and if B does not know and neither does he have any reason to believe that A is a public servant or that A is acting of the direction of an authorized

public servant, B has the right to private defence.

In Kanwar Singh’s case 1965, a team organized by the municipal corporation was trying to round up stray cattle and was attacked by the accused. It was held that the accused had no right of private defence against the team.

• when the force applied during the defence exceeds what is required to for the purpose of defence. For example, if A throws a small pebble at B, B does not have the right to shoot

A. Or if A, a thief, is running back leaving behind the property that he tried to steal, B does not have the right to shoot A because the threat posed by A has already subsided. In many situations it is not possible to accurately determine how much force is required to repel an attack and thus it is a question of fact and has to be determined on a case by

case basis whether the accused was justified in using the amount of force that he used and whether he exceeded his right to private defence.

In Kurrim Bux’s case 1865, a thief was trying to enter a house through a hole in the wall. The accused pinned his head down while half of his body was still outside the house. The thief died due to suffocation. It was held that the use of force by the accused was justified.

However, in Queen vs Fukira Chamar, in a similar situation, a thief was hit on his head by a pole five times because of which he died. It was held that excessive force was used than required.

• when it is possible to approach proper authorities – No man has the right to take the law into his hands and so when he has the opportunity to call proper authorities, he does not have the right to private defence. It usually happens when there is a definite information about the time and place of danger. But law does not expect that a person must run away to call proper authorities. The question whether a person has enough time depends on the factors such as –
  • the antecedent knowledge of the attack.
  • how far the information is reliable and precise.
  • the opportunity to give the information to the authorities.

• the proximity of the police station.

In Ajodha Prasad vs State of UP 1924, the accused received information that they were going to get attacked by some sections of the village. However, they decided that if they separated to report this to the police they will be in more danger of being pursued and so they waited together. Upon attack, they defended themselves and one of the attackers was killed. It was held that they did not exceed the right of private defence.

Right to private defence of body up to causing death

Section 100 of IPC specifies six situations in which the right of private defence of body extends even to causing death.

Section 100 – The right of private defence of the body extends under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions here in after enumerated, namely –

First – such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.

Second – such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.

Third – An assault with the intention of committing rape.

Fourth – An assault with the intention of gratifying unnatural lust. Fifth – As assault with the intention of kidnapping or abducting.

Sixth – An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Even though this section authorizes a person to cause death of another in certain situation, it is also subject to the same restrictions as given in section 99. Thus, a person cannot apply more

force than necessary and must contact the authorities if there is an opportunity.

In Viswanath vs State of UP AIR 1960, when the appellant’s sister was being abducted from her father’s home even though by her husband and there was an assault on her body by the husband, it was held that the appellant had the right of private defence of the body of his sister to the extent of causing death.

To be able to extend this right up to causing death, the apprehension of grievous hurt must be reasonable. In case of Sheo Persan Singh vs State of UP 1979, the driver of a truck drove over and killed two persons sleeping on the road in the night. People ahead of the truck stood in the middle of the road to stop the truck, however, he overran them thereby killing some of them.

He pleaded right to private defence as he was apprehensive of the grievous hurt being caused by the people trying to stop him. SC held that although in many cases people have dealt with the errant drivers very seriously, but that does not give him the right of private defence to kill multiple people. The people on the road had a right to arrest the driver and the driver had no right of private defence in running away from the scene of accident killing several people.

Yogendra Morarji vs State of Gujarat 1980 is an important case in which SC observed that when life is in peril the accused was not expected to weigh in golden scales what amount of force does he need to use and summarized the law of private defence of body as under –

1. There is no right of private defence against an act which is not in itself an offence under this code.
2. The right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or thread to commit some offence although the offence may not have been committed and it is continuous with the duration of the apprehension.
3. It is a defensive and not a punitive or retributive right. Thus, the right does not extend to the inflicting of more harm than is necessary for defence.
4. The right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of section 100.

• There must be no safe or reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant.
• The right being in essence a defensive right does not accrue and avail where there is time to have recourse to the protection of public authorities.

Duration of the right of private defence of body

Section 102 specifies the duration of the right of private defence of the body as follows –

Section 102 – The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed and it continues as long as such apprehension of danger to the body continues.

The right to defend the body commences as soon as a reasonable apprehension of danger to the body arises and it continues as long as such apprehension of danger to the body continues.

Right to private defence of property up to causing death

Section 103 of IPC specifies four situations in which the right of private defence of property extends even to causing death.

Section 103 – The right of private defence of property extends, under the restriction mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong doer, if the offence, the committing of which, or attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely –

First – Robbery

Secondly – House breaking by night

Third – Mischief by fire committed on any building, tent, or vessel, which building tent or vessel is used as a human dwelling or as a place for custody of property.

Fourth – Theft, mischief or house trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised.

A person may cause death in safeguarding his own property or the property of some one else when there is a reason to apprehend than the person whose death has been cause was about to commit one of the offences mentioned in this section or to attempt to commit one of those offences.

In case of State of UP vs Shiv Murat 1982, it was held that to determine whether the action of the accused was justified or not one has to look in to the bona fides of the accused. In cases where there is a marginal excess of the exercise of such right it may be possible to say that the means which a threatened person adopts or the force which he uses should not be weighed in golden scales and it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room.

Duration of the right of private defence of property

Section 105 specifies the duration of the right of private defence of the property as follows – Section 105 – The right of private defence of the property commences as soon as a reasonable apprehension of danger to the property commences. It continues –

in case of theft – till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained or the property has been recovered.

in case of robbery – as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instance hurt or of instance personal restraint continues.

in case of criminal trespass – as long as the offender continues in the commision of criminal trespass or mischief.

in case of house breaking by night – as long as the house, trespass which has been begun by such house breaking, continues.

The case of Amjad Khan vs State AIR 1952, is important. In this case, a criminal riot broke

out in the city. A crowd of one community surrounded the shop of A, belonging to other community. The crowd started beating the doors of A with lathis. A then fired a shot which killed B, a member of the crowd. Here, SC held that A had the right of private defence which extended to causing of death because the accused had reasonable ground to apprehend that death or grievous hurt would be caused to his family if he did not act promptly.

Culpable Homicide and Murder analogy

The word homicide is derived from two Latin words – homo and cido. Homo means human and cido means killing by a human. Homicide means killing of a human being by another human being. A homicide can be lawful or unlawful. Lawful homicide includes situations where a person who has caused the death of another cannot be blamed for his death. For example, in exercising the right of private defense or in other situations explained in Chapter IV of IPC covering General Exceptions. Unlawful homicide means where the killing of another human is not approved or justified by law. Culpable Homicide is in this category. Culpable means blame worthy. Thus, Culpable Homicide means killing of a human being by another human being in a blameworthy or criminal manner.

Section 299 of IPC defines Culpable Homicide as follows –

Section 299 – Who ever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of Culpable Homicide.

Illustrations –

1. A lays sticks and turf over a pit, with the intention of there by causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of Culpable Homicide.

• A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z’s death, induces B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of Culpable Homicide.
• A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of Culpable Homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death.

Explanation 1 – A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.

Explanation 2 – Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.

Explanation 3 – The causing of the death of child in the mother’s womb is not homicide. But it may amount to Culpable Homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

Based upon the above definition, the following are the essential elements of Culpable Homicide –

1. Death of a human being is caused – It is required that the death of a human being is caused. However, it does not include the death of an unborn child unless any part of that child is brought forth.
2. By doing an act – Death may be caused by any act for example, by poisoning or by hurting with a weapon. Here act includes even on omission of an act for which one is obligated by law to do. For example, if a doctor has a required injection in his hand and he still does not give it to the dying patient and if the patient dies, the doctor is responsible.
3. Intention or Knowledge – There must be an intention of any of the following –
   1. Intention of causing death – The doer of the act must have intended to cause death. As seen in Illustration 1, the doer wanted or expected someone to die. It is

important to note that intention of causing death does not necessarily mean intention of causing death of the person who actually died. If a person does an act with an intention of killing B but A is killed instead, he is still considered to have the intention.

• Intention of causing such bodily injury as is likely to cause death – The intention of the offender may not have been to cause death but only an injury that is likely to cause the death of the injured. For example, A might intended only to hit on the skull of a person so as to make him unconscious, but the person dies. In this case, the intention of the person was only to cause an injury but the injury is such that it is likely to cause death of the person. Thus, he is guilty of Culpable Homicide. However, if A hits B with a broken glass. A did not know that B was haemophilic. B bleeds to death. A is not guilty of Culpable Homicide but only of grievous hurt because he neither had an intention to kill B nor he had any intention to cause any bodily injury as is likely to cause death.

Or the act must have been done with the knowledge that such an act may cause death – When a person does an act which he knows that it has a high probability to cause death, he is responsible for the death which is caused as a result of the act. For example, A knows that loosening the brakes of a vehicle has a high probability of causing death of someone. If B rides such a bike and if he dies, A will be responsible for B’s death. In Jamaluddin’s case 1892, the accused, while exorcising a spirit from the body of a girl beat her so much that she died. They were held guilty of Culpable Homicide.

Negligence – Sometimes even negligence is considered as knowledge. In Kangla 1898, the accused struck a man whom he believed was not a human being but something supernatural. However, he did not take any steps to satisfy himself that the person was not a human being and was thus grossly negligent and was held guilty of Culpable Homicide.

Murder (When Culpable Homicide amounts to Murder)

Murder is a type of Culpable Homicide where culpability of the accused is quite more than in a

mere Culpable Homicide. Section 300, says that Culpable Homicide is Murder if the act by which the death is caused is done

1. with the intention of causing death
2. or with an intention of causing such bodily injury as the offender knows to be likely to cause the death of the person,
3. or with an intention of causing such bodily injury as is sufficient in ordinary course of nature to cause death.
4. It is also Murder if the person committing the act knows that the act is so dangerous that it will cause death or such injury as is likely to cause death in all probability and he has no valid reason for doing that act.

Illustrations –

A shoots Z with an intention of killing him. Z dies in consequence. A commits Murder.

A intentionally gives Z a sword cut that sufficient in ordinary course of nature to cause death. Z dies because of the cut. A commits Murder even though he had no intention to kill Z.

A without any excuse fires a loaded canon on a crowd. One person dies because of it. A commits Murder even though he had no intention to kill that person.

Thus, it can be seen that Murder is very similar to Culpable Homicide and many a times it is difficult to differentiate between them. J Melvill in the case of R vs Govinda 1876

Bom. analyzed both in the following table –

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

death.	whom the harm is caused. 3. with an intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in ordinary course of nature to cause death.
3. with the knowledge that such an act is likely to cause death.	4. With the knowledge that the act is so imminently dangerous that it must in all probability cause death.

Based on this table, he pointed out the difference – when death is caused due to bodily injury, it is the probability of death due to that injury that determines whether it is Culpable Homicide or Murder. If death is only likely it is Culpable Homicide, if death is highly probable, it is Murder.

In Augustine Saldanha vs State of Karnataka LJ 2003, SC deliberated on the difference of Culpable Homicide and Murder. SC observed that in the scheme of the IPC Culpable Homicide is genus and Murder its specie. All ‘Murder’ is ‘Culpable Homicide’ but not vice-versa. Speaking generally, ‘Culpable Homicide’ sans ‘special characteristics of Murder is Culpable Homicide not amounting to Murder’. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of Culpable Homicide. The first is, what may be called, ‘Culpable Homicide of the first degree’. This is the greatest form of Culpable Homicide, which is defined in Section 300 as ‘Murder’. The second may be termed as ‘Culpable Homicide of the second degree’. This is punishable under the first part of Section

304. Then, there is ‘Culpable Homicide of the third degree’. This is the lowest type of Culpable Homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable Homicide of this degree is punishable under the second part of Section 304.

It further observed that the academic distinction between ‘Murder’ and ‘Culpable Homicide not amounting to Murder’ has always vexed the Courts. They tried to remove confusion through the following table –

Culpable Homicide

Murder

A person commits Culpable Homicide if the act by which death is caused is done –	Subject to certain exceptions , Culpable Homicide is Murder if the act by which death is caused is done –
INTENTION
(a) with the intention of causing death; or	1. with the intention of causing death; or
(b) with an intention to cause such bodily injury as is likely to cause death.	with an intention to cause such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused.with an intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in ordinary course of nature to cause death.
KNOWLEDGE
(c) with the knowledge that such an act is likely to cause death.	4. With the knowledge that the act is so imminently dangerous that it must in all probability cause death.

Thus, it boils down to the knowledge possessed by the offender regarding a particular victim in a particular state being in such condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not, in the ordinary circumstances, be sufficient to cause death. In such a case, intention to cause death is not an essential requirement. Only the intention of causing such injury coupled with the knowledge of the offender that such injury is likely to cause death, is enough to term it as Murder.

Situations where Culpable Homicide does not amount to Murder

Section 300 also specifies certain situations when the Murder is considered as Culpable Homicide not amounting to Murder. These are –

(Short Details)

1. If the offender does an act that causes death because of grave and sudden provocation by the other.
2. If the offender causes death while exceeding the right to private defense in good faith.

• If the offender is a public servant and does an act that he, in good faith, believes to be lawful.
• If the act happens in a sudden fight in the heat of passion.
• If the deceased is above 18 and the death is caused by his own consent.

(Full Details)

Exception I – Culpable Homicide is not Murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos –

1. That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
2. That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
3. That the provocations not given by anything done in the lawful exercise of the right of private defence.

Explanation-Whether the provocation was grave and sudden enough to prevent the offence from amounting to Murder is a question of fact.

Illustrations

1. A, under the influence of passion excited by a provocation given by Z, intentionally kills, Y, Z’s child. This is Murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
2. Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed Murder, but merely Culpable Homicide.

• A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This Murder, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers.
• A appears as a witness before Z, a Magistrate, Z says that he does not believe a word of A’s deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is Murder.
• A attempts to pull Z’s nose, Z, in the exercise of the right of private defence, lays hold of a to prevent him form doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is Murder, in as much as the provocation was given by a thing done in the exercise of the right of private defence.
• Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand for that purpose. B kills Z with the knife. Here B may have committed only Culpable Homicide, but A is guilty of Murder.

Exception 2 – Culpable Homicide is not Murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Illustration – Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed Murder, but only Culpable Homicide.

Exception 3 – Culpable Homicide is not Murder if the offender, being a public servant or aiding a public servant acting or the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the

person whose death is caused.

Exception 4 – Culpable Homicide is not Murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.

Explanation-It is immaterial in such cases which party offers the provocation or commits the first assault.

In a very recent case of Byvarapu Raju vs State of AP 2007, SC held that in a Murder case, there cannot be any general rule to specify whether the quarrel between the accused and the deceased was due to a sudden provocation or was premeditated. “It is a question of fact and whether a quarrel is sudden or not, must necessarily depend upon the proved facts of each case,” a bench of judges Arijit Pasayat and D K Jain observed while reducing to 10 years the life imprisonment of a man accused of killing his father. The bench passed the ruling while upholding an appeal filed by one Byvarapu Raju who challenged the life sentence imposed on him by a session’s court and later affirmed by the Andhra Pradesh High Court for killing his ‘drunkard’ father.

Exception 5 – Culpable Homicide is not Murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Illustration – A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own death; A has therefore abetted Murder.

Hurt and Grievous Hurt

In normal sense, hurt means to cause bodily injury and/or pain to another person. IPC defines Hurt as follows –

Section 319 – Whoever causes bodily pain, disease, or infirmity to any person is said to cause hurt.

Based on this, the essential ingredients of Hurt are –

1. Bodily pain, disease or infirmity must be caused – Bodily pain, except such slight harm for which nobody would complain, is hurt. For example, pricking a person with pointed object like a needle or punching somebody in the face, or pulling a woman’s hair. The duration of the pain is immaterial. Infirmity means when any body organ is not able to function normally. It can be temporary or permanent. It also includes state of mind such as hysteria or terror.
2. It should be caused due to a voluntary act of the accused.

When there is no intention of causing death or bodily injury as is likely to cause death, and there is no knowledge that inflicting such injury would cause death, the accused would be guilty of hurt if the injury is not serious. In Nga Shwe Po’s case 1883, the accused struck a man one blow on the head with a bamboo yoke and the injured man died, primarily due to excessive opium administered by his friends to alleviate pain. He was held guilty under this section.

The authors of the code have observed that in many cases offences that fall under hurt will also fall under assault. However, there can be certain situations, where they may not. For example, if A leaves food mixed with poison on B’s desk and later on B eats the food causing hurt, it cannot be a case of assault.

If the accused did not know about any special condition of the deceased and causes death because of hurt, he will be held guilty of only hurt. Thus, in Marana Goundan’s case AIR 1941, when the accused kicked a person and the person died because of a diseased spleen, he was held guilty of only hurt.

A physical contact is not necessary. Thus, a when an accused gave food mixed with dhatura and caused poisoning, he was held guilty of Hurt.

Grievous Hurt

Cases of severe hurt are classified under grievous hurt. The authors of the code observed that it would be very difficult to draw a line between hurt and grievous hurt but it was important to

draw a line even if it is not perfect so as to punish the cases which are clearly more than hurt. Thus, section 320 of IPC defines Grievous Hurt as –

Section 320 – The following kinds of hurt only are designated as “Grievous” –

1. Emasculation
2. Permanent privation of the sight of either eye.
3. Permanent privation of the hearing of either ear.
4. Privation of any member or a joint.
5. Destruction or permanent impairing of powers of any member or joint.
6. Permanent disfiguration of the head or face.
7. Fracture or dislocation of a bone or tooth.
8. Any hurt which endangers life or which causes the sufferer to be, during the space of twenty days, in severe body pain or unable to follow his ordinary pursuits.

Thus, it can be seen that grievous hurt is a more serious kind of hurt. Since it is not possible to precisely define what is a serious hurt and what is not, to simplify the matter, only hurts described in section 320 are considered serious enough to be called Grievous Hurt. The words “any hurt which endangers life” means that the life is only endangered and not taken away.

Stabbing on any vital part, squeezing the testicles, thursting lathi into rectum so that bleeding is caused, have all been held as Hurts that endanger life and thus Grievous Hurts.

As with Hurt, in Grievous Hurt, it is not a physical contact is not necessary.

Difference between Hurt and Grievous Hurt

Only hurts that are defined in section 320 are called Grievous Hurt.

Punishment for voluntarily causing Hurt as defined in section 323 is imprisonment of either description up to 1 year and a fine up to 1000 Rs, while punishment for voluntarily causing grievous hurt is imprisonment of either description up to 7 years as well as fine.

Difference between Grievous Hurt and Culpable Homicide

The line separating Grievous Hurt and Culpable Homicide is very thin. In Grievous Hurt, the life

is endangered due to injury while in Culpable Homicide, death is likely to be caused. Thus, acts neither intended nor likely to cause death may amount to grievous hurt even though death is caused.

In case of Formina Sbastio Azardeo vs State of Goa Daman and Diu 1992 CLJ SC, the deceased was making publicity about the illicit intimacy between N and W. On the fateful day, N, W, and her husband A caught hold of D and tied him up to a pole and beat him as a result of which he died. They were not armed with any dangerous weapon and had no intention to kill him. N and W were held guilty of only causing grievous hurt.

Kidnapping from India, kidnapping from guardianship, and abduction? Differentiate between Kidnapping and Abduction.

Kidnapping

Kidnapping from India – Kidnapping from India means taking anybody, without his consent, out of the borders of India. Section 360 defines it as follows –

Section 360 – Whoever conveys any person beyond the limits of India without the consent of that person or of some person legally authorized to consent on behalf of that person, is said to kidnanap that person from India.

For example, if A takes B without his consent or without B’s lawful guardians consent to Pakistan, A would be committing this offence. The essential ingredient of Kidnapping are –

1. The person should be conveyed out of the borders of India.
2. The person should be conveyed without his consent or without the consent of the person who is legally authorized to consent on his behalf.

Thus, if a person is not capable of giving valid consent as in the case of a minor or a person with unsound mind, the consent of his lawful guardian is required to take him outside India.

Kidnapping from Lawful guardianship – Kidnapping from lawful guardianship means taking a child away from his lawful guardian without the guardian’s consent. Section 361 defines it as follows –

Section 361 – Whoever takes or entices any minor under 16 yrs of age if male or 18 yrs of age if female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation – The words lawful guardian in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception – This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

Based on this section the essential ingredients are –

1. The person should either be a minor or a person of unsound mind – This implies that the person is not capable of giving consent. In case of male child the age is 16 yrs while in case of a female child the age is 18 yrs. For a person on unsound mind, age is immaterial.
2. Such person be taken or enticed away – This means that either force is used or any enticement that causes the person to leave domain of the lawful guardian is used. For example, if A shows toffee to a child C thereby causing the child to come out of the house and follow A, it fall under this category.
3. Such person must be taken or enticed away from the lawful guardian – Only when the child is under the lawful guardian, can he be kidnapped. This means that the child should be under the domain of the lawful guardian. For example, an orphan wandering on the streets cannot be kidnapped because he doesn’t have a lawful guardian. However, this

does not mean that a child must be with the lawful guardian. For example, a child siting in a school is also under the dominion of his father and if A takes such a child away, it would be kidnapping. Further, a lawful guardianship does not necessarily mean a legal guardian. A legal guardian may entrust the custody of his child to someone else. Taking a child away from such custody will also fall under this section. For example, A entrusts his child to B, his servant, to take the child to school. If, C takes the child away from the servant, this would be kidnapping because the servant has the lawful guardianship of the child.

Distinction between taken away and allowing a child to follow –

In Vardrajan vs State of Madras AIR 1965, SC observed that there is a difference between taking away a minor and allowing the minor to follow. If a person knowingly does an act which he has reason to believe will cause the child to leave the guardian, then it would amount to taking away the child, however, if child follows a person even when a person does not do any act meant to entice a child to leave his guardian, he cannot be held responsible. For example, if a child follows an icecream vendor, without any enticement from the vendor, while the guardian fails to keep the watch, the vendor cannot be held guilty under this section.

In Chajju Ram vs State of Punjab AIR 1968, a minor girl was taken away out of the house for only about 20 – 30 yards. it was held that it was kidnapping because distance is immaterial.

Kidnapping is complete as soon as the minor or the person with unsound mind leaves the custody of the guardian. It is not a continuing offence. Thus, when a child is kidnapped from place P1 and taken to place P2 and then from P2 to P3, kidnapping was done only once.

Abduction

Section 362 of IPC defines Abduction as follows –

Section 362 – Whoever by force compels, or by any deceitful means induces, any person to go from any place is said to abduct that person.

It means compelling a person, or to induce him to go from where he is to another place. The essential ingredients are –

A person goes from one place to another – A person cannot be abducted at the same place where he is. For abduction to take place, the person should physically move from one place to another.

Either by forcible compulsion or by inducement – The movement of the person must be because of some compulsion or because of some inducement. For example, A threatens B on gun point to go from his house to another city. Here, A has compelled B to go from his house and is thus guilty under this section.

Here, the age of the abducted person is immaterial. Thus, even a major can be abducted if he is forced to go from one location. But if a minor is abducted, it may amount to Kidnapping as well. Further, it is a continuing offence. As long as a person is forced to go from place to place, abduction continues.

Differences among Kidnapping from India, Kidnapping from lawful guardian, and Abduction –

Kidnapping from India (Section 360)	Kidnapping from lawful guardian (Section 361)	Abduction (Section 362)
A person is taken out of the limits of India.	A person is taken away from the lawful guardian.	A person is compelled by force or induced by deception to go from any place.
Age of the person is immaterial.	The person must be less than 16 yrs of age if male, less than 18 if female, or of unsound mind.	Age of the person is immaterial.
It is not a continuing offence.	It is not a continuing offence.	It is a continuing offence.
The person is	Consent of the person kidnapped is	Person moves without his

conveyed without his consent.	immaterial.	consent or the consent is obtained by decietful means.
It can be done without use of force.	It can be done without use of force or deception.	It is always done by the use of force or deception.

Theft

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

Section 378 – Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.

Based on this definition, the following are the essential constituents of Theft –

1. Dishonest intention to take property – There must be dishonest intention on the part of the offender. As defined in Section 24 of IPC, dishonestly means that there must be a wrongful loss to one or wrongful gain to another. For example, A quietly takes money from B’s purse for his spending. Here, A causes wrongful loss to B and is thus guilty of theft. However,if the intention of the offender is not to cause a wrongful loss or wrongful gain, he does not commit theft even if he takes the property without consent. For example, A gives his watch to B for repairing. B takes the watch to his shop. A, who does

not owe any debt to B for which B has the right to retain the watch, follows B and forcibly takes back the watch. Here, A does not commit theft because he has no dishonest intention. Similarly, when A, believing, in good faith, a property in possession of B, to be his, takes it from B, it is not theft.

In K. N. Mehra v. State of Rajasthan AIR 1957 S. C. 369, SC held that proof of intention to cause permanent deprivation of property to the owner, or to obtain a personal gain is not necessary for the purpose of establishing dishonest intention. Thus, In Pyarelal Bhargava vs State AIR 1963, a govt. employee took a file from the govt. office, presented it to B, and brought it back to the office after two days. It was held that permanent taking of the property is not required, even a temporary movement of the property with dishonest intention is enough and thus this was theft.

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

For example, a tree on A’s land is not capable of being the subject of theft. However, if B, with an intention to take the tree, cuts the tree, he commits theft as soon as the tree is severed from the earth.

In White’s case, 1853, a person introduced another pipe in a gas pipeline and consumed the gas bypassing the meter. Gas was held to be a movable property and he was held guilty of theft.

• Property must be taken out of possession of another – The property must be in possession of someone. A property that is not in possession of anybody cannot be a subject of theft. For example, wild dogs cannot be a subject of theft and so if someone takes a wild dog, it will not be theft. It is not important whether the person who possess the thing is the rightful owner of that thing or not. If the thing is moved out of mere possession of someone, it will be theft. For example, A, a coin collector, steals some coins from B, a fellow coin collector. A finds out that they were his coins that were stolen earlier. Here, even though B was not the rightful owner of the coins, he was still in

possession of them and so A is guilty of theft.

In HJ Ransom vs Triloki Nath 1942, A had taken a bus on hire purchase from B under the agreement that in case of default B has the right to take back the possession of the bus. A defaulted, and thereupon, B forcibly took the bus from C, who was the driver of the bus. It was held that the C was the employee of A and thus, the bus was in possession of A. Therefore, taking the bus out of his possession was theft.

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

In Chandler’s case, 1913, A and B were both servants of C. A suggested B to rob C’s store. B agreed to this and procured keys to the store and gave them to A, who then made duplicate copies. At the time of the robbery, they were caught because B had already informed C and to catch A red handed, C had allowed B to accompany A on the theft.

Here, B had the consent of C to move C’s things but A did not and so A was held guilty of theft.

• Physical movement of the property is must – The property must be physically moved. It is not necessary that it must be moved directly. As per Explanation 3, moving the support or obstacle that keeps the property from moving is also theft. For

example, removing the pegs to which bullocks are tied, is theft. Further, as per Explanation 4, causing an animal to move, is also considered as moving the things that move in consequence. For example, A moves the bullock cart carrying a box of treasure. Here, A is guilty of moving the box of treasure.

In Bishaki’s case 1917, the accused cut the string that tied the necklace in the neck of a woman, because of which the necklace fell. It was held that he caused sufficient movement of the property as needed for theft.

Theft of one’s own property

As per the definition of theft given in section 378, it is not the ownership but the possession of the property that is important. A person may be a legal owner of a property but if that property is in possession, legally valid or invalid, of another, it is possible for the owner to commit theft of his own property. This is explained in illustration j of section 378 – A gives his watch to B for repairs. B repairs the watch but A does not pay the repairing charges, because of which B does not return the watch as a security. A forcibly takes his watch from B. Here, A is guilty of theft of his own watch.

Further, in illustration k, A pawns his watch to B. He takes it out of B’s possession, having not payed to B what he borrowed by pawning it, without B’s consent. Thus, he commits theft of his own property in as much as he takes it dishonestly.

In Rama’s Case 1956, a person’s cattle was attached by the court and entrusted with another. He took the cattle out of the trustee’s possession without recourse of the court. He was held guilty of theft.

Extortion

In Extortion, a person takes the property of another by threat without any legal justification. Section 383 defines extortion as follows –

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

For example, A threatens to publish a defamatory libel about B unless B gives him money. A has committed extortion. A threatens B that he will keep B’s child in wrongful confinement, unless B will sign and deliver to A a promissory note binding B to pay certain moneys to A. B signs and delivers such noted. A has committed extortion.

The following are the constituents of extortion –

1. Intentionally puts any person in fear of injury – To be an offence under this section, putting a person in fear of injury intentionally is a must. The fear of injury must be such that is capable of unsettling the mind of the person threatened and cause him to part with his property. Thus, it

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

However, in Nizamuddin’s case 1923, a refusal by A to perform marriage and to enter it in the register unless he is paid Rs 5, was not held to be extortion.

• Dishonestly induces a person so put in fear to deliver to any person any property – The second critical element of extortion is that the person who has been put to fear, must deliver his property to any person. Dishonest inducement means that the person would not have otherwise agreed to part with his property and such parting causes him a wrongful loss. Further, the property must be delivered by the person who is threatened. Though, it is not necessary to deliver the property to the person threatening. For example, if A threatens B to deliver property to C, which B does, A will be guilty of extortion.

The delivery of the property by the person threatened is necessary. The offence of extortion is not complete until delivery of the property by the person put in fear is done. Thus, Duleelooddeen Sheikh’s case 1866, where a person offers no resistance to the carrying off of his property on account of fear and does not himself deliver it, it was held not to be extortion but robbery.

Extortion can also happen in respect of valuable security or anything signed that can become a valuable security. For example, A threatens B to sign a promissory note without the amount or date filled in. This is extortion because the note can be converted to valuable security.

In Romesh Chandra Arora’s case 1960, the accused took a photograph of a naked boy and a girl by compelling them to take off their clothes and extorted money from them by threatening to publish the photograph. He was held guilty of extortion.

In R S Nayak vs A R Antuley and another AIR 1986, it was held that for extortion, fear or threat must be used. In this case, chief minister A R Antuley asked the sugar cooperatives, whose cases were pending before the govt. for consideration, to donate money and promised to look into their cases. It was held that there was no fear of injury or threat and so it was not extortion.

Theft (Section 378)	Extortion (Section 383)
The property is taken by the offender without consent.	The property is delivered to the offender by consent although the consent is not free.
There is no element of threat.	There is an element of threat or instillment of fear because of which the consent is given.
Only movable property is subject to theft.	Any kind of property can be subjected to extortion.
Offender takes the property himself.	Property is delivered to offender.

Robbery

Robbery is a severe form of either theft or extortion. In certain circumstances, a theft or an extortion gravitates to robbery. Section 390 defines robbery as follows –

Section 390 – In all robbery there is either theft or extortion.

When theft is robbery – Theft is robbery if, in order to the committing of the theft or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint.

When extortion is robbery – Extortion is robbery if the offender at the time of committing the extortion is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or of instant hurt, or of instant wrongful restraint to that person, or to some other person, and by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

Thus, a theft becomes a robbery when the following two conditions are satisfied –

1. when someone voluntarily causes or attempts to cause
   1. death, hurt, or wrongful restraint or
   1. fear of instant death, instant hurt, or instant wrongful restraint
   1. the above act is done
      1. in order to the committing of theft or
      1. committing theft or
      1. carrying away or attempting to carry away property obtained by theft.

For example, A holds Z down, and fraudulently takes Z’s money from Z’s clothes, without Z’s consent. A has committed theft and in order to commit that theft, he voluntarily caused wrongful restraint to Z. Thus, A has committed robbery.

Robbery can be committed even after the theft is committed if in order to carrying away the property acquired after theft, death, hurt, or wrongful restraint or an instant fear of them is caused. The expression “for that end” implies that death, hurt, or wrongful restraint or an instant fear of them is caused directly to complete the act of theft or carrying away the property. In Hushrut Sheik’s case 1866, C and D were stealing mangoes from tree and were surprised by B. C knocked down B and B became senseless. It was held to be a case of robbery.

Further, the action causing death, hurt, or wrongful restraint or an instant fear of them must be voluntary. Thus, in Edward’s case 1843, a person, while cutting a string tied to a basket accidentally cut the wrist of the owner who tried to seize it. He was held guilty of only theft.

An extortion becomes a robbery when the following three conditions are satisfied –

1. when a person commits extortion by putting another person in fear of instant death, hurt, or wrongful restraint, and
2. such a person induces the person put in such fear to deliver the property then and there and

• the offender is in the presence of the person put in such fear at the time of extortion.

For example, A meets Z on high road, shows a pistol, and demands Z’s purse. Z in consequence surrenders his purse. Here, A has extorted the purse from Z by putting him in fear of instant hurt and being present at the time of committing the extortion in his presence, A has committed robbery.

In another example, A meets Z and Z’s child on the high road. A takes the child and threatens to fling it down a precipice, unless Z delivers his purse. Z in consequence, delivers the purse. Here, A has extorted the purse from Z by causing Z to be in fear of instant hurt of his child who is present there. Thus, A has committed robbery.

For extortion to become robbery, the fear of instant death, hurt, or wrongful restraint is must. Thus, when A obtains property from Z by saying, “Your child is with my gang and will be put to death unless you send us ten thousand rupees”, this is extortion but not robbery because the person is not put in fear of instant death of his child.

In presence of the person – The offender must be present where a person is put in fear of injury to commit the offence of robbery. By present, it means that the person should be sufficiently near to cause the fear. By his presence, the offender is capable of carrying out his threat immediately.

Thus the person put in such fear delivers the property in order to avoid the danger of instant death, hurt or wrongful restraint.

In Shikandar vs State 1984, the accused attacked his victim by knife many times and succeeded in acquiring the ear rings and key from her salwar. He was held guilty of robbery.

Dacoity

As per section 391, a Robbery committed by five or more persons is dacoity.

Section 391 – When five or more persons conjointly commit or attempt to commit robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting, or aiding is said to commit dacoity.

Conjointly implies a collective effort to commit or attempting to commit the action. It is not necessary that all the persons must be at the same place but they should be united in their efforts with respect to the offence. Thus, persons who are aiding the offence are also counted and all are guilty of dacoity.

It is necessary that all the persons involved must have common intention to commit the robbery. Thus, dacoity is different from robbery only in the respect of number of people committing it and is treated separately because it is considered to be a more grave crime.

In Ram Chand’s case 1932, it was held that the resistance of the victim is not necessary. The victims, seeing a large number of offenders, did not resist and no force or threat was used but the offenders were still held guilty of dacoity.

In Ghamandi’s case 1970, it was held that less than five persons can also be convicted of dacoity if it is proved as a fact that there were more than 5 people who committed the offence by only less than five were identified.

However, if 5 persons were identified and out of them 2 were acquitted, the remaining three cannot be convicted of dacoity.