Chanderprabhu Jain College of Higher

Studies
&

School of Law
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(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

Class : BBALLBUniversity,
III A+B+C Delhi)
& BALLB III A+B+C

Paper Code : 205

Subject : Law of Crimes

Faculty Name : Anubha Jain

Unit 1

GENERAL INTRODUCTION NATURE AND DEFINITION OF CRIME I.

NATURE OF CRIME WHAT IS A CRIME? We must answer this question at the
outset. In order to answer this question we must know first, what is law because the
two questions are closely interrelated. Traditionally, we know a law to be a
command enjoining a course of conduct. The command may be of a sovereign or
of political superiors to the political inferiors; or it may be the command of a
legally constituted body or a legislation emanating from a duly constituted
legislature to all the members of the society. A crime may, therefore, be an act of
disobedience to such a law forbidding or commanding it. But then disobedience of
all laws may not be a crime, for instance, disobedience of civil laws or laws of
inheritance or contracts. Therefore, a crime would mean something more than a
mere disobedience to a law, "it means an act which is both forbidden by law and
revolting to the moral sentiments of the society." Thus robbery or murder would be
a crime, because they are revolting to the moral sentiments of the society, but a
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they may change, and they do change from time to time with the growth of the
public opinion and the social necessities of the times. So also, the moral values of
one country may be and often are quite contrary to the moral values of another
country. To cite a few instances, heresy was a crime at one time in most of the
countries of the world, because in those days it offended the moral sentiments of
the society. It was punished with burning. But nobody is punished nowadays for
his religious beliefs, not even in a theocratic state. The reason is obvious. Now it
does not offend the moral sentiments of the society. Adultery is another such
instance. It is a crime punishable under our Penal Code, but it is not so in some of
the countries of the West. Then again suttee, i.e., burning of a married woman on
the funeral pyre of her deceased husband, was for a long time considered to be a
virtue in our own country, but now it is a crime. Similarly, polygamy was not a
crime in our country until it was made so by the Hindu Marriage Act, 1955. This
Act, it may be stated, does not apply to Mohammedans or Christians. But
Christians are forbidden to practise polygamy under their law of marriage, while
Mohammedans are yet immune from punishment for polygamy. All these instances
go to show that the content of crime changes from time to time in the same country
and from country to country at the same time because it is conditioned by the
moral value approved of by a particular society in a particular age in a particular
country. A crime of yesterday may become a virtue tomorrow and so also a virtue
 Chanderprabhu Jain College of Higher
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modern times to define it have proved abortive. Therefore, the present writer
agrees with Russell when he observes that "to define crime is a task which so far
has not been satisfactorily accomplished by any writer. In fact, criminal offences
are basically the creation of the criminal policy adopted from time to time by those
R.C Nigam, LAW OF CRIMES IN INDIA 25-37 (1965) sections of the
community who are powerful or astute enough to safeguard their own security and
comfort by causing the sovereign power in the state to repress conduct which they
feel may endanger their position". But a student embarking on study of principles
of criminal law must understand the chief characteristics and the true attributes of a
crime. Though a crime, as we have seen, is difficult of a definition in the true sense
of the term, a definition of a crime must give us "the whole thing and the sole
thing," telling us something that shall be true of every crime and yet not be true of
any other conceivable non-criminal breach of law. We cannot produce such a
definition of crime as might be flexible enough to be true in all countries, in all
ages and in all times. Nevertheless, a crime may be described and its attributes and
characteristics be clearly understood. In order to achieve this object, we propose to
adopt two ways, namely, first, we shall distinguish crime from civil and moral
wrongs, and secondly, we shall critically examine all the definitions constructed by
the eminent criminal jurists from time to time.
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necessary to know clearly what is a wrong of which all the three are species. There
are certain acts done by us which a large majority of civilised people in the society
look upon with disapprobation, because they tend to reduce the sum total of human
happiness, to conserve which is the ultimate aim of all laws. Such acts may be
called wrongs, for instance, lying, gambling, cheating, stealing, homicide,
proxying in the class, gluttony and so on. The evil tendencies and the reflex action
in the society of these acts or wrongs, as we have now chosen to call them, differ in
degree. Some of them are not considered to be serious enough as to attract law's
notice. We only disapprove of them. Such wrongs may be designated as moral
wrongs, for instance, lying, overeating or gluttony, disobedience of parents or
teachers, and so on. Moral wrongs are restrained and corrected by social laws and
laws of religion. There are other wrongs which are serious enough to attract the
notice of the law. The reaction in the society is grave enough and is expressed
either by infliction of some pain on the wrongdoer or by calling upon him to make
good the loss to the wronged person. In other words, law either awards punishment
or damages according to the gravity of the wrong done. If the law awards a
punishment for the wrong done, we call it a crime; but if the law does not consider
it serious enough to award a punishment and allows only indemnification or
damages, we call such a wrong as a civil wrong or tort. In order to mark out the
distinction between crimes and torts, we have to go deep into the matter and study
 Chanderprabhu Jain College of Higher
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distinction between a crime and a tort. First, they constitute greater interference
with the happiness of others and affect the well-being not only of the particular
individual wronged but of the community as a whole. Secondly, because the
impulse to commit them is often very strong and the advantage to be gained from
the wrongful act and the facility with which it can be accomplished are often so
great and the risk of detection so small that human nature, inclined as it is to take
the shortest cut to happiness, is more likely to be tempted, more often than not, to
commit such wrongs. A pickpocket, a swindler, a gambler are all instances.
Thirdly, ordinarily they are deliberate acts and directed xv by an evil mind and are
hurtful to the society by the bad example they set. Since crimes are graver wrongs,
they are singled out for punishment with four-fold objects, namely, of making an
example of the criminal, of deterring him from repeating the same act, of
reforming him by eradicating the evil, and of satisfying the society’s feeling of
vengeance. Civil wrongs, on the other hand, are less serious wrongs, as the effect
of such wrongs is supposed to be confined mainly to individuals and does not
affect the community at large. Secondly, the accused is treated with greater
indulgence than the defendant in civil cases. The procedure and the rules of
evidence are modified in order to reduce to a minimum the risk of an innocent
person being punished. For example, the accused is not bound to prove anything,
nor is he required to make any statement in court, nor is he compellable to answer
 Chanderprabhu Jain College of Higher
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guilt of the accused, the benefit of doubt is always given to the accused. It is said
that it is better that ten guilty men should escape rather than an innocent person
should suffer. But the defendant in a civil case is not given any such benefit of
doubt. Fourthly, crimes and civil injuries are generally dealt with in different
tribunals. The former are tried in the criminal courts, while the latter in the civil
courts. Fifthly, in case of a civil injury, the object aimed at is to indemnify the
individual wronged and to put him as far as practicable in the position he was,
before he was wronged. Therefore he can compromise the case, whereas in
criminal cases generally the state alone, as the protector of the rights of its subjects,
pursues the offender and often does so in spite of the injured party. There are,
however, exceptions1o this rule. Lastly, an act in order to be criminal must be done
with malice or criminal intent. In other words, there is no crime without an evil
intent. Actus non facit reum nisi mens sit rea, which means that the act alone does
not make .a man guilty unless his intentions were so. This essential of the crime
distinguishes it from civil injuries. Criminal and Moral Wrongs: A criminal wrong
may also be distinguished from a moral wrong. It is narrower in extent than a
moral wrong. In no age or in any nation an attempt has ever been made to treat
every moral wrong as a crime. In a crime an idea of some definite gross undeniable
injury to some one is involved. Some definite overt act is necessary, but do we
punish a person for ingratitude, hard-heartedness, absence of natural affection,
 Chanderprabhu Jain College of Higher
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proceeding. The criminal law, therefore, has a limited scope. It applies only to
definite acts of commission and omission, capable of being distinctly proved.
These acts of commission and omission cause definite evils either on definite
persons or on the community at large. Within these narrow limits there may be a
likeness between criminal law and morality. For instance, offences like murder,
rape, arson, robbery, theft and the like are equally abhorred by law and morality.
On the other hand, there are many acts which are not at all immoral, nonetheless
they are criminal. For example, breaches of statutory regulations and bye laws are
classed as criminal offences, although they do not involve the slightest moral
blame. So also “the failure to have a proper light on a bicycle or keeping of a pig in
a wrong place," or the xvi neglect in breach of a bye-law to cause a child to attend
school during the whole of the ordinary school hours; and conversely many acts of
great immorality are not criminal offences, as for example, adultery in England, or
incest in India. However, whenever law and morals unite in condemning an act, the
punishment for the act is enhanced. Stephen on the relationship between criminal
law and morality observes: The relation between criminal law and morality is not
in all cases the same. The two may harmonise; there may be a conflict between
them, or they may be independent. In all common cases they do, and, in my
opinion, wherever and so far as it is possible, they ought to harmonise with and
support one another. Everything which is regarded as enhancing the moral guilt of
 Chanderprabhu Jain College of Higher
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moral sentiment of the public in relation to any offence what a seal is to hot wax. It
converts into a permanent final judgement what might otherwise be a transient
sentiment. The mere general suspicion or knowledge that a man has done
something dishonest may never be brought to a point, and the disapprobation
excited by it may in time pass away, but the fact that he has been convicted and
punished as a thief stamps a mark upon him for life. In short, the infliction of
punishment by law gives definite expression and a solemn ratification and a
justification to the hatred which is excited by the commission of the offence, and
which constitutes the ll1oral or popular as distinguished from the conscientious
sanction of that part of morality which is also sanctioned by the criminal law. The
crill1inal law thus proceeds upon the principle that it is ll1orally right to hate
crill1inals, and it confirms and justifies that sentill1ent by inflicting upon criminals
punishments which express it. Criminal Law and Ethics: Let us also distinguish
criminal law from ethics. Ethics is a study of the supreme good. It deals with
absolute ideal, whereas positive morality deals with current public opinion, and
law is concerned with social relationship of men rather than with the individual's
excellence of character. The distinction between law and morality has been
discussed already. We may now bring out the distinction between law and ethics
by citing two illustrations. Your neighbour, for instance, is dying of starvation.
Your granary is full. Is there any law that requires you to help him out of your
 Chanderprabhu Jain College of Higher
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All of a sudden she gets an epileptic fit. You do not try to save her. You may have
committed an ethical wrong or a moral wrong, but will you be punished
criminally? However, with the growth of the humanitarian ideas, it is hoped that
the conception of one's duty to others will gradually expand, and a day might arrive
when it may have to conform-to the ideal conduct which the great Persian Poet.
Sheikh Saadi, aimed at, viz.: “If you see a blind man proceeding to a well, if you
are silent, you commit a crime.” This was what the poet said in the 13th century.
But we may have to wait for a few more decades, when we might give a different
answer to the question: “Am I my brother's keeper?" Are Crimes and Torts
Complementary? In the foregoing, we have drawn a clear distinction between
crimes and civil injuries. In spite of those distinctions, however, it should be
remembered that crimes and torts are complementary and not exclusive of each
other. Criminal wrongs and civil wrongs are thus not sharply separated groups of
acts but xvii are often one and the same act as viewed from different standpoint,
the difference being not one of nature but only of relation. To ask concerning any
occurrence, "is this a crime or a tort?" is, to borrow Sir James Stephen's apt
illustration, no wiser than it would be to ask of a man, "Is he a father or a son? For
he may be both." In fact, whatever is within the scope of the penal law is crime,
whatever is a ground for a claim of damages, as for an injury, is a tort; but there is
no reason why the same act should not belong to both classes, arid many acts do.
 Chanderprabhu Jain College of Higher
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inadequate. But we cannot go so far as to agree with Blackstone when he makes a
sweeping observation that "universally every crime is a civil injury." This
observation of Blackstone is proved incorrect in the following three offences which
do not happen to injure any particular individual. First, a man publishes a seditious
libel or enlists recruits for the service of some foreign belligerent. In either of these
cases an offence against the state has been committed but no injury is caused to
any particular individual. Secondly, an intending forgerer, who is found in
possession of a block for the purpose of forging a trade mark or engraving a
banknote or for forging a currency note, commits a serious offence but he causes
no injury to any individual. Thirdly, there are cases where though a private
individual does actually suffer by the offence, yet the sufferer is no other than the
actual criminal himself who, of course, cannot claim compensation against himself,
for example, in cases of attempted suicide. However, in England as elsewhere the
process of turning of private wrongs into public ones is not yet complete, but it is
going forward year to year. For instance, the maiming or killings of another man’s
cattle were formerly civil wrongs but they were made crimes in the Hanoverian
reign. Then again, it was not until 1857 a crime for a trustee to commit a breach of
trust. So also, incest was created a crime in 1908. In fact, the categories of crimes
are not closed. In our own country, since Independence, many acts have now been
enacted into crimes which we could not even have conceived of, for instance,
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crimes more frequently. We must remember that crime is a relative concept and a
changing one too. Different societies have different views as to what constitutes a
criminal act and the conception of a crime may vary with the age, locality and
several other facts and circumstances. For example, people were burned for heresy
a few centuries ago, but in modern times no civilised nation punishes a man on the
ground that he professes a different religious view. Then again, adultery is a crime
according to our penal code, while it is a civil wrong according to English law.
Maine's Dictum and its Criticism: Before we pass on to examine the definitions
constructed from time to time by jurists as regards crime, we may examine the
well-known generalisation of Sir Henry Maine as regards the conception of crime
in ancient communities. He observes: Penal law of ancient communities is not the
law of crimes: it is the law of wrongs. The person injured proceeds against the
wrongdoer by an ordinary civil action and recovers compensation in the shape of
money damages, if he succeeds. xviii In support of this observation, he cites a good
many instances of compounding of murder by payment of blood money. The idea
underlying was that homicide could be purged by the blood money being paid to
the relatives of the deceased. The conception that crimes are wrongs against the
community is of a comparatively modern growth in the European countries and not
in ancient India where it was the dominant feature of the time. The generalisation
of Maine, therefore, does not apply to ancient Indian law, based as it is on a study
 Chanderprabhu Jain College of Higher
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of the Roman law andAn
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requited by payment of compensation. If we examine closely the penal law of the
ancient Hindus, we find that the penalty imposed on the offender was usually not
in the nature of compensation to the injured party. Moreover, Maine's
generalization has recently been pronounced to be incorrect by a modern research
scholar, Sir A.S. Diamond. He observes: Partly from a chapter in Maine's Ancient
Law (Chapter X) has been drawn a widespread conception that there is no
separation in crimes and civil injuries in primitive law. But this is not so: the
distinction is universal, from the time when civil and criminal laws are first found,
until the end of the primitive law. III. DEFINITIONS OF CRIME Now we shall
examine the definitions of crime given to us by the eminent jurists and see how far
they have succeeded in constructing a true definition of crime. Sir William
Blackstone in his classical work, Commentaries on the Laws of England, Volume
IV, which is devoted to “Public Wrongs or Crimes,” attempted to define crime at
two different places in his work. We shall examine both these definitions given by
him. At one place, he states that crime is an act committed or omitted in violation
of a public law forbidding or commanding it. Here in defining crime Blackstone
uses "public law." Now what is meant by public law? It has several accepted
meanings. For instance, Austin takes public law as identical with constitutional
law. In that sense, the definition given by him would cover only political offences
which are only a very small portion of the whole field of crime. If we were to
 Chanderprabhu Jain College of Higher
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life, liberty and property, even then the definition of crime would remain too
narrow. The Germans, on the other hand, interpret "public law" to mean both
constitutional law and criminal law. In this sense, the definition given by
Blackstone ceases to define because we shall be using criminal law in defining a
crime. Then again, some take "public law" to mean positive law or municipal law,
which would mean all laws made by the state. In that sense, the definition given by
Blackstone obviously become too wide, for then crime will include every legal
wrong or violation of law. Therefore, this definition given by Blackstone is not
satisfactory. Now we pass on to the second definition given by the same jurist,
Blackstone. He defines crime as “a violation of the public rights and duties due to
the whole community considered as a community.” This definition has been
slightly altered by the learned editor of Blackstone, Serjeant Stephen, who
expresses it thus: xix A crime is a violation of a right considered in reference to the
evil tendency of such violation as regards the community at large. As regards the
reconstructed definition, it might be observed that it introduces a new error,
namely, it limits crimes to violations of rights only, whereas Blackstone applied it
to a violation of both a right and a duty. Instances of a violation of a duty
amounting to crimes are numerous, for example, being in possession of house-
breaking tools by night or possession of counterfeit coins. Undoubtedly the idea
incorporated in the definition given by Blackstone as well as by his learned editor
 Chanderprabhu Jain College of Higher
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jurists as well. Therefore they called crimes delicta publica and the criminal trials
judicia publica. Indeed, if only a rough, general description of crime were to be
given then public mischief could be made the salient feature of the crime, but this
alone would not suffice for a definition. It would be a vague fact for a definition of
a crime. There are many things which are only breaches of contract and are
injurious to the community but they are not crimes, for example, the negligent
management of the affairs of a company, which may bring about a calamity to the
community greater than that produced by a thief stealing an article. The latter is a
crime, while the former is only a wrong and not a crime. On the other hand, a
conduct may amount to a crime, though instead of bringing an evil to the
community it may bring some good to the community. For instance, constructing a
sloping causeway, though it might facilitate the landing of passengers and goods, is
an offence of common nuisance. Therefore, the definition of crime that it is a legal
wrong, if it tends to cause evil to the community, is not correct. It is, of course, an
instructive general description of it. Some jurists define crime as those legal
wrongs which violently offend our moral feelings. As we have seen already, law
and morality do not always go together. This definition, moreover, breaks down in
man) cases, for example, in treason offences. Such offences are hardly considered
immoral or disgraceful, yet they are very serious offences. Treason, as Sir Walter
Scott says, "arises from mistaken virtue, and therefore, however highly criminal,
 Chanderprabhu Jain College of Higher
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yet it is crime. On the other hand, many grossly cruel and fraudulent breaches of
trust are merely civil wrongs, for example, a man who stands by the river and
watches a child drowning. He is a known swimmer but does not plunge into water
to save the child. He may be guilty of committing a grossly wicked immoral act
which may arouse universal indignation but he will not be held guilty of
committing a crime nor even a civil wrong. In France, however, he may be held
guilty but not so under English criminal law, or under the Indian Penal Code. Of
course, it would be different with a father who owes a duty to a son while not a
grandfather. Some jurists define crime according to the interference by the state in
such acts. In civil cases the state does not interfere until actual wrong has been
committed, and even then it does not interpose unless proceedings are initiated by
the person actually affected by it. In criminal matters the state maintains an
elaborate police staff to prevent offences and if one is committed an action may be
instituted by the state without the cooperation of the party injured. Of course, to
define crime in this way is only to bring out the contrast between civil xx and
criminal wrongs, which, howsoever genuine it may be, cannot be the correct basis
of a definition for two reasons. First, because civil proceedings are often taken to
obtain injunction against some anticipated wrong which has not yet been
committed while, on the other hand, some criminal acts are so trivial that the police
do not interfere before hand to prevent them. Secondly, there are some crimes for
 Chanderprabhu Jain College of Higher
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indecent details of a judicial proceeding. Austin has, in defining crime, observed:
A wrong which is pursued at the discretion of the injured party and his
representatives is a civil injury: a wrong which is pursued by the sovereign or his
subordinates is a crime. It may be observed that his definition is not of substance
but of procedure only. Moreover, under the Indian Penal Code there are several
offences which cannot be pursued except by the injured party, for example,
offences of criminal elopement under Section 498 of the Penal Code which can
only be tried on a complaint being lodged by the husband. Professor Kenny
modifies Austin and defines crime to be "wrongs whose sanction is punitive and is
in no way remissible by any private person, but is remissible by the Crown alone,
if remissible at all." This definition of crime as given by Professor Kenny is also
open to criticism. Professor Winfield points out that the word "sanction," used in
the definition must means punishment and the word "remissible" must refer to
pardon by the Crown and observes that it is on the word "remissible" that the
definition breaks down, for the only way in which the Crown can remit a
punishment is by pardon. It may be observed that, under English common law,
crimes which are pardonable are only those which are against the public laws and
statutes of the realm. Then again, this definition fails when it is applied to our own
law because there are very many offences under the Indian Penal Code which are
compoundable without even the intervention of the Court or, in other words, where
 Chanderprabhu Jain College of Higher
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the commission or omission of an act which the law forbids or commands under
pain of a punishment to be imposed by the state by a proceeding in its own name.
This definition seems to be less open to criticism than others, Professor Paton
observes: In crime we find that the normal marks are that the state has power to
control the procedure, to remit the penalty or to inflict the punishment. Similarly
Professor Keeton says: A Crime today would seem to be any undesirable act which
the state finds it most convenient to correct by the institution of proceedings for the
infliction of a penalty, instead of leaving the remedy to the discretion of some
injured person. Thus we have seen that all attempts to define crime have proved
abortive and would indeed be a barren research, We can only describe it and may
state that in a crime we find at least three attributes, namely, first, that it is a harm
brought about by some anti-social act of human being, which the sovereign power
desires to prevent; secondly, the preventive measures taken by the state appear in
the form of a threat of a sanction or punishment; and xxi thirdly, the legal
proceedings, wherein the guilt or otherwise of the accused is determined, are a
special kind of proceedings governed by special rules of evidence. IV. TEST OF
CRIMINALITY Now what is the test of criminality or criminal liability? The true
test of criminal liability has had a gradual development. In the very beginning only
the most serious crimes were recognised and were singled out for punishment. The
list of crimes at that time was short. In the next stage we find that the machinery
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An ISO 9001:2008
for administration of justice Certified
was refined Quality Institute
and developed, and procedural laws for
(Recognized
the trial of criminal by Govt.
cases wereofalso
NCT reformed.
of Delhi, Affiliated
In thisto process
GGS Indraprastha
of development we
University, Delhi)
find that certain fundamental principles were evolved. The first was that nobody
should be held liable unless he had the evil intent to commit it, and the second was
that the accused was to be presumed to be innocent unless he was proved to be
guilty. The former principle assumed a Latin garb and became known as actus non
facit reum, nisi mens sit rea, and was first cited as a principle by Lord Kenyon C.J.
in Fowler v. Pedger thus: "It is a principle of natural justice and of our law that
actus non facit reum, nisi mens sit rea." This principle has even in modern times
been accepted to be a leading doctrine of criminal law, for Lord Goddard C.J.
observed in a case in 1949: "actus non facit reum, nisi mens sit rea is a cardinal
doctrine of the Criminal Law." This maxim which has been accepted not only by
the courts of England but also our own courts recognise that there are two
necessary elements in a crime, namely, first, a physical element, and, secondly, a
mental element. The former is known technically as actus reus and the latter as
mens rea. These are the tests of criminality known to our law and to the laws of
England. The actus reus may be an act of commission or an act of omission. It may
be punishable by a statute or by common law. The actus reus may be the
disobedience of the orders of a competent tribunal or may even be of a rule made
by an executive. But in order that the actus reus may be punishable it must
generally be accompanied by a guilty mind. However, in some cases, law awards a
punishment although the actus reus is not consummated. They are known to us as
 Chanderprabhu Jain College of Higher
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attempt, conspiracy or An ISOsome
even 9001:2008
casesCertified Quality Institute
of preparation, which we have discussed at
(Recognized
length elsewhere in thisbywork."
Govt. ofV.
NCT of Delhi, AffiliatedAND
TRADITIONAL to GGS Indraprastha
MODERN APPROACH
University, Delhi)
TO CRIME As we have seen above, the traditional approach to crime had been to
formulate a definition of crime. Therefore, all the eminent jurists beginning with
Blackstone down to Kenny attempted to define crime, but, as we have seen, they
all failed to bring in within the narrow compass of a definition the flexible notion
of a crime, because it was conditioned by the changing moral values and social
opinions of the community from time to time. Moreover, the traditional approach
to crime may have well suited a society which had not developed into a complex
society. The crimes known to them in the beginning at that stage of the society
may have been fewer in number which could have been roped in the four corners
of a definition. With the rise of industrial revolution and rapid means of
communications and modern scientific investigations, crimes also have taken a
new turn. Not only that they have multiplied in number but also they have grown
more complex and even scientific. Formerly, we knew only crimes arising out of
greed, land and lust. But now such crimes have been relegated to the category of
traditional crimes. Modern crimes committed by persons xxii belonging to the
higher social status by beguiling people or practising fraud or misrepresentation or
by adopting other known or unknown ways to amass money by fair means or foul
have all appeared. Therefore, a modern approach to combat such crimes has
become absolutely necessary. Defining crime, being a traditional approach, has to
be given up. The modern conception is that crime is a public wrong, i.e., wrong
 Chanderprabhu Jain College of Higher
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which offends against An
theISO 9001:2008
public Certified
generally. TheQuality
modernInstitute
approach is not to bother
(Recognized
about a definition of a by Govt.but
crime of NCT of Delhi,
to lay stressAffiliated to GGS Indraprastha
on its functions. In other words, the
University, Delhi)
modern approach is a functional approach to crime. The Wolfendon Committee
Report (1958) has spotlighted the functional approach to crime in England, and
lays down clearly both positively and negatively what it should be and what it
should not be. It observes that the function of criminal law is to preserve public
order and decency, to protect citizens from what is offensive or injurious and to
provide sufficient safeguards against exploitation and corruption of others,
particularly those who are young, weak in body or mind, inexperienced, or in a
state of physical, official or economic dependence. This is the positive aspect of
the functional approach to criminal law.This crux of the modern approach lies in
what is its negative aspect which is expressed thus: It is not the function of the law
to intervene in the private lives of citizens or to seek to enforce any particular
pattern of behaviour further than is necessary to carry out the above purposes. The
purposes mentioned here are defined and described in the above paragraph
defining the positive approach. In defining the positive aspect of this approach, two
general terms have been used, namely, "offensive" and "injurious," about which
doubts may be expressed and therefore the committee observes by way of an
explanation thus: Opinions will differ as to what is offensive or injurious or
inimical to the common good and as to what constitutes exploitation or corruption
and those opinions will be based on the prevailing moral, social or cultural
standards. This explanation fits in with the growing needs of the society. Of
 Chanderprabhu Jain College of Higher
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course, it goes withoutAn ISO 9001:2008
saying Certified
that criminal lawQuality Institute
will not concern itself with what a
man does in(Recognized by Govt.
private unless of be
it can NCT of Delhi,
shown to Affiliated to GGS Indraprastha
be so contrary to the public good that
University, Delhi)
the law ought to intervene in its function as the guardian of that public good. Then
again, no useful purpose can be served by legislating against an activity which you
cannot satisfactorily control. Therefore, it becomes clear that private morality or
immorality is not the concern of law. It appears that we are again reverting to what
Blackstone told us about four hundred years ago that crime is a public wrong
because the modern notion of criminal law is concerned with behaviour which is
normally reprehensible and is inimical to law and order. Therefore, a search for a
definition of crime, being a traditional approach to crime, should now in modern
times be given up as being a barren search and instead the real search should be for
the norms, ethics and practical expediency. Herein lies the distinction between the
traditional and the modern approach to criminal law.

CONSTITUENT ELEMENTS OF CRIME ELEMENTS OF A CRIME The two

elements of crime are mens rea and actus reus. Apart from these two elements that
go to make up a crime, there are two more indispensable elements, namely, first, “a
human being under a legal obligation to act in a particular way and a fit subject for
the infliction of appropriate punishment,” and secondly, “an injury to another
human being or to the society at large.” Thus the four elements that go to constitute
a crime are as follows: first, a human being under a legal obligation to act in a
particular way and a fit subject for the infliction of appropriate punishment:
secondly, an evil intent or mens rea on the part of such human being; thirdly, actus
 Chanderprabhu Jain College of Higher
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An or
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an injury to(Recognized by Govt.
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at large Indraprastha
by such an act. A Human
University, Delhi)
Being: The first element requires that the act should have been done by a human
being before it can constitute a crime punishable at law. The human being must be
“under a legal obligation to act, and capable of being punished.” . Mens Rea: The
second element, which is an important essential of a crime, is mens rea or guilty
mind. In the entire field of criminal law there is no important doctrine than that of
mens rea. The fundamental principle of English Criminal jurisprudence, to use a
maxim which has been familiar to lawyers following the common law for several
centuries, is “actus non facit reum nisi mens sit rea”. Mens rea is the state of mind
indicating culpability, which is required by statute as an element of a crime. It is
commonly taken to mean some blameworthy mental condition, whether constituted
by intention or knowledge or otherwise, the absence of which on any particular
occasion negatives the intention of a crime. The term ‘mens rea’ has been given to
volition, which is the motive force behind the criminal act. It is also one of the
essential ingredients of criminal liability. As a general rule every crime requires a
mental element, the nature of which will depend upon the definition of the
particular crime in question. Even in crimes of strict liability some mental element
is required. Expressions connoting the requirement of a mental element include:
‘with intent’, ‘recklessly’, ‘unlawfully’, ‘maliciously’, ‘unlawfully and
maliciously’, ‘wilfully’, ‘knowingly’, ‘knowing or believing’, ‘fraudulently’,
‘dishonestly’, ‘corruptly’, ‘allowing’, and ‘permitting’. Each of these expressions
 Chanderprabhu Jain College of Higher
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is capable of bearing a An ISO 9001:2008
meaning, which Certified
differs Quality Institute
from that ascribed to any other. The
meaning of (Recognized
each must by
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University, Delhi)
same expression may bear a different meaning in different contexts. Under the
IPC, guilt in respect of almost all offences is fastened either on the ground of
intention or knowledge or reason to believe. All the offences under the Code are
qualified by one or the other words such as wrongful gain or wrongful loss,
dishonestly, fraudulently, reason to believe, criminal knowledge or intention,
intentional co-operation, voluntarily, malignantly, wantonly. All these words
describe the mental condition required at the time of commission of the offence, in
order to constitute an offence. Thus, though the  Edited from: R. C. Nigam, LAW
OF CRIMES IN INDIA 38-43 (1965); V. Suresh and D. Nagasaila (eds.), P.S.
ATCHUTHEN PILLAI’S CRIMINAL LAW 42-47 (9th edn., 2006) xxiv word
mens rea as such is nowhere found in the IPC, its essence is reflected in almost all
the provisions of the code. The existence of the mental element or guilty mind or
mens rea at the time of commission of the actus reus or the act alone will make the
act an offence. Generally, subject to both qualification and exception, a person is
not criminally liable for a crime unless he intends to cause, foresees that he will
probably cause, or at the lowest, foresees that he may cause, the elements which
constitute the crime in question. Although the view has been expressed that it is
impossible to ascribe any particular meaning to the term mens rea, concepts such
as those of intention, recklessness and knowledge are commonly used as the basis
for criminal liability and in some respects may be said to be fundamental to it:
 Chanderprabhu Jain College of Higher
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Intention: To intend is An ISO 9001:2008
to have in mind aCertified Quality Institute
fixed purpose to reach a desired objective;
it is used to(Recognized
denote theby state
Govt. of
of NCT of Delhi,
mind of a Affiliated
man who to GGS Indraprastha
not only foresees but also
University, Delhi)
desires the possible consequences of his conduct. The idea foresees but also desires
the possible consequences of his conduct. The idea of ‘intention’ in law is not
always expressed by the words ‘intention’, ‘intentionally’ or ‘with intent to’. It is
expressed also by words such as ‘voluntarily’, ‘wilfully’ or ‘deliberately’ etc.
Section 298 IPC makes the uttering of words or making gestures with deliberate
intent to wound the religious feelings punishable under the Act. ON a plain reading
of the section, the words ‘deliberate’ and ‘intent’ seem synonymous. An act is
intentional if, and in so far as it exists in idea before it exists in fact, the idea
realizing itself in the fact because of the desire by which it is accompanied.
Intention does not mean ultimate aim and object. Nor is it a synonym for motive.
Transferred intention: Where a person intends to commit a particular crime and
brings about the elements which constitute that crime, he may be convicted
notwithstanding that the crime takes effect in a manner which was unintended or
unforeseen. A, intends to kill B by poisoning. A places a glass of milk with poison
on the table of B knowing that at the time of going to bed B takes glass of milk. On
that fateful night instead of B, C enters the bedroom of B and takes the glass of
milk and dies in consequence. A is liable for the killing of C under the principle of
transferred intention or malice. Intention and Motive: Intention and motive are
often confused as being one and the same. The two, however, are distinct and have
to be distinguished. The mental element of a crime ordinarily involves no reference
 Chanderprabhu Jain College of Higher
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to motive. Motive is An ISO 9001:2008
something Certified
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(Recognized
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fixed Delhi, Affiliated to GGS
of the mindIndraprastha
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University, Delhi)
or determination to act in a particular manner and it is distinguishable from motive
which incites or stimulates action. Sometimes, motive plays an important role and
becomes a compelling force to commit a crime and, therefore, motive behind the
crime become a relevant factor for knowing the intention of a person. In Om
Prakash v. State of Uttranchal [(2003) 1 SCC 648] and State of UP v. Arun Kumar
Gupta [(2003) 2 SCC 202] the Supreme Court rejected the plea that the prosecution
could not signify the motive for the crime holding that failure to prove motive is
irrelevant in a case wherein the guilt of the accused is proved otherwise. It needs to
be emphasised that motive is not an essential element of an offence but motive
helps us to know the intention of a person. Motive is relevant and important on the
question of intention. xxv Intention and knowledge: The terms ‘intention’ and
‘knowledge’ which denote mens rea appear in Sections 299 and 300, having
different consequences. Intention and knowledge are used as alternate ingredients
to constitute the offence of culpable homicide. However, intention and knowledge
are two different things. Intention is the desire to achieve a certain purpose while
knowledge is awareness on the part of the person concerned of the consequence of
his act of omission or commission, indicating his state of mind. The demarcating
line between knowledge and intention is no doubt thin, but it is not difficult to
perceive that they connote different things. There may be knowledge of the likely
consequences without any intention to cause the consequences. For example, a
 Chanderprabhu Jain College of Higher
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An ISO
mother jumps into a well 9001:2008
along Certified
with her child Quality
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(Recognized
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husband. Delhi, Affiliated
child dies tobut
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mother survives. The
University, Delhi)
act of the mother is culpable homicide. She might not have intended to cause death
of the child but, as a person having prudent mind, which law assumes every person
to have, she ought to have known that jumping into the well along with the child
was likely to cause the death of the child. She ought to have known as prudent
member of the society that her act was likely to cause death even when she may
not have intended to cause the death of the child. Recklessness: Intention cannot
exist without foresight, but foresight can exist without intention. For a man may
foresee the possible or even probable consequences of his conduct and yet not
desire this state of risk of bringing about the unwished result. This state of mind is
known as ‘recklessness’. The words ‘rash’ and ‘rashness’ have also been used to
indicate this same attitude. Negligence: If anything is done without any advertence
to the consequent event or result, the mental state in such situation signifies
negligence. The event may be harmless or harmful; if harmful the question arises
whether there is legal liability for it. In civil law (common law) it is decided by
considering whether or not a reasonable man in the same circumstances would
have realized the prospect of harm and would have stopped or changed his course
so as to avoid it. If a reasonable man would not, then there is no liability and the
harm must lie where it falls. The word ‘negligence’, therefore, is used to denote
blameworthy inadvertence. It should be recognized that at common law there is no
criminal liability for harm thus caused by inadvertence. Strictly speaking,
 Chanderprabhu Jain College of Higher
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negligence may not beAn ISO 9001:2008
a form of mens Certified
rea. It isQuality
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in the nature of a legal fault.
However, it(Recognized by Govt. of NCT
is made punishable for ofa Delhi, Affiliated
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purpose of hoping to improve
University, Delhi)
people’s standards of behaviour. Criminal liability for negligence is exceptional at
common law; manslaughter appears to be the only common law crime, which may
result from negligence. Crimes of negligence may be created by statute, and a
statute may provide that it is a defence to charges brought under its provisions for
the accused to prove that he was not negligent. Conversely, negligence with regard
to some subsidiary element in the actus reus of a crime may deprive the accused of
a statutory defence which would otherwise have been available to him. Advertent
negligence is commonly termed as wilful negligence or recklessness. In other
words, inadvertent negligence may be distinguished as simple. In the former the
harm done is foreseen as possible or probable but it is not willed. In the latter it is
neither foreseen nor willed. In each case carelessness, i.e. to say indifference as to
the consequences, is present; but in the former this indifference does not, while in
the latter it does prevent these xxvi consequences from being foreseen. The
physician who treats a patient improperly through ignorance or forgetfulness is
guilty of simple or inadvertent negligence; but if he does the same in order to save
himself trouble, or by way of a scientific experiment with full recognition of the
danger so incurred, his negligence is wilful. It may be important to state here that
the wilful wrong doer is liable because he desires to do the harm; the negligent
wrong doer is liable because he does not sufficiently desire to avoid it. He who will
excuse himself on the ground that he meant no evil is still open to the reply: -
 Chanderprabhu Jain College of Higher
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perhaps you did not, An
butISOat9001:2008
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you might have avoided it if you had
sufficiently (Recognized by so;
desire to do Govt. of NCT
and you ofare
Delhi,
heldAffiliated
liable tonot
GGS Indraprastha
because you desired the
University, Delhi)
mischief, but because you were careless and indifferent whether it ensured or not.
It is on this ground that negligence is treated as a form of mens rea, standing side
by side with wrongful intention as a formal ground of responsibility. Actus Reus:
To constitute a crime the third element, which we have called actus reus or which
Russell1 has termed as “physical event”, is necessary. Now what is this actus
reus?2 It is a physical result of human conduct. When criminal policy regards such
a conduct as sufficiently harmful it is prohibited and the criminal policy provides a
sanction or penalty for its commission. The actus reus may be defined in the words
of Kenny to be “such result of human conduct as the law seeks to prevent.”3 Such
human conduct may consist of acts of commission as well as acts of omission.
Section 32 of our Penal Code lays down: “Words which refer to acts done extend
also to illegal omissions.” It is, of course, necessary that the act done or omitted to
be done must be an act forbidden or commanded by some statute law, otherwise, it
may not constitute a crime. Suppose, an executioner hangs a condemned prisoner
with the intention of hanging him. Here all the three elements obviously are
present, yet he would not be committing a crime because he is acting in accordance
with a law enjoining him to act. So also if a surgeon in the course of an operation,
which he knew to be dangerous, with the best of his skill and care performs it and
yet the death of the patient is caused, he would not be guilty of committing a crime
because he had no mens rea to commit it. As regards acts of omission which make
 Chanderprabhu Jain College of Higher
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School of Law
An ISO 9001:2008
a man criminally responsible, the rule Certified
is that noQuality
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(Recognized
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omission Delhi, it
unless Affiliated
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he was under a legal
University, Delhi)
obligation to act. In other words, some duty should have been imposed upon him
by law, which he has omitted to discharge. Under the Penal Code, Section 43 lays
down that the word “illegal” is applicable to everything which is an offence or
which is prohibited by law, or which furnishes a ground for a civil action; and a
person is said to be “legally bound to do whatever it is illegal in him to omit.”
Therefore, an illegal omission would apply to omissions of everything which he is
legally bound to do. These indicate problems of actus reus we have discussed in
detail elsewhere. However, the two elements actus reus and mens rea are distinct
elements of a crime. They must always be distinguished and must be present in
order that a crime may be constituted. The mental element or mens rea in modern
times means that the person’s conduct must be voluntary and it must also be 1
Russell, op. cit, p. 27 2 It includes not only the result of active conduct (i.e. a
deed), but also the result of inactivity. 3 Kenny, Outlines of Criminal Law (17th
Ed.), p. 14. xxvii actuated by a guilty mind, while actus reus denotes the physical
result of the conduct, namely, it should be a violation of some law, statutory or
otherwise, prohibiting or commanding the conduct. Injury to Human Being: The
fourth element, as we have pointed out above, is an injury to another human being
or to society at large. This injury to another human being should be illegally caused
to any person in body, mind, reputation or property. Therefore, it becomes clear
that the consequences of harmful conduct may not only cause a bodily harm to
 Chanderprabhu Jain College of Higher
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School of Law
An ISO
another person, it may 9001:2008
cause harm toCertified Qualityor
his mind Institute
to his property or to his
(Recognized by
reputation. Sometimes, byGovt. of NCT conduct
a harmful of Delhi, Affiliated
no injury to GGS Indraprastha
is caused to another human
University, Delhi)
being, yet the act may be held liable as a crime, because in such a case harm is
caused to the society at large. All the public offences, especially offences against
the state, e.g. treason, sedition, etc. are instances of such harms. They are treated to
be very grave offences and punished very severely also. We may state again that
there are four essential elements that go to constitute a crime. First, the wrongdoer
who must be a human being and must have the capacity to commit a crime, so that
he may be a fit subject for the infliction of an appropriate punishment. Secondly,
there should be an evil intent or mens rea on the part of such human being. This is
also known as the subjective element of a crime. Thirdly, there should be an actus
reus, i.e. an act committed or omitted in furtherance of such evil intent or mens rea.
This may be called the objective element of a crime. Lastly, as a result of the
conduct of the human being acting with an evil mind, an injury should have been
caused to another human being or to the society at large. Such an injury should
have been caused to any other person in body, mind, reputation or property. If all
these elements are present, generally, we would say that a crime has been
constituted. However, in some cases we find that a crime is constituted, although
there is no mens rea at all. These are known as cases of strict liability. Then again,
in some cases a crime is constituted, although the actus reus has not consummated
and no injury has resulted to any person. Such cases are known as inchoate crimes,
like attempt, abetment or conspiracy. So also, a crime may be constituted where
 Chanderprabhu Jain College of Higher
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An ISO are
only the first two elements 9001:2008 Certified
present. Quality
In other Institute
words, when there is intention
(Recognized
alone or even by Govt.
in some cases of NCT
there mayofbe
Delhi, Affiliated toalone
an assembly GGS Indraprastha
of the persons without
University, Delhi)
any intention at all. These are exceptional cases of very serious crimes which are
taken notice of by the state in the larger interests of the peace and tranquillity of
the society.
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An ISO 9001:2008 Certified Quality Institute

(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
An ISO 9001:2008 Certified Quality Institute

(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
An ISO 9001:2008 Certified Quality Institute

(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

University, Delhi)
Class : BALLB

Paper Code 205

Subject :IPC 1

UNIT 2

Introduction
Sections 96 to 106 of the penal code state the law relating to the right of private
defence of person and property. The provisions contained in these sections give
authority to a man to use necessary force against an assailant or wrong-doer for the
purpose of protecting one’s own body and property as also another’s body and
property when immediate aid from the state machinery is not readily available; and
in so doing he is not answerable in law for his deeds.

Self-help is the first rule of criminal law. The right of private defence is absolutely
necessary for the protection of one’s life, liberty and property. It is a right inherent in
a man. But the kind and amount of force is minutely regulated by law. The use of
force to protect one’s property and person is called the right of private defence[i].

150 years ago, during colonialism, an enthusiastic Macaulay proposed a right of

private defence in his draft code with the ambitious project of encouraging a ‘manly
spirit’ among the ‘natives’. The ideal Indian would stand his ground in the face of
danger and not hesitate to defend his own body or property or that of another. He
would respond with defensive force to prevent certain crimes, even to the extent of
 Chanderprabhu Jain College of Higher
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causing death. As a general idea, the right of private defence permits individuals to
An ISO 9001:2008 Certified Quality Institute
use defence
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
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An ISO 9001:2008 Certified Quality Institute
Private Defence: Meaning And Types
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
The expression ‘private defence’ that has been used in the Indian Penal Code, 1860,
has not been defined therein. Thus, it has been the prerogative of the judiciary to
evolve a workable framework for the exercise of the right. Thus in India, the right of
private defence is the right to defend the person or property of himself or of any
other person against an act of another, which if the private defence is not pleaded
would have amounted to a crime. This right therefore creates an exception to
criminal liability. Some of the aspects of the right of private defence under the IPC
are that no right of self-defence can exist against an unarmed and unoffending
individual, the right is available against the aggressor only and it is only the person
who is in imminent danger of person or property and only when no state help is
available. The right of private defence is a natural right which is evinced from
particular circumstances rather than being in the nature of a privilege[iii].

However, the most important principle is that the right of private defence requires
that the force used in the defence should be necessary and reasonable in the
circumstances. But, in the moments of disturbed mental condition, this cannot be
measured in golden scales. Whether the case of necessity exists must be determined
from the viewpoint of the accused and his act must be viewed in the light of the
circumstances as they appear on such occasion. Specific limitations have also been
provided for when the right cannot be validly exercised and also the provision
specifies clearly the cases in which the right can extend to the causing of death of the
aggressor. The reasonable apprehension can only be justified if the accused had an
honest belief that there is danger and that such belief is reasonably warranted by the
conduct of the aggressor and the surrounding circumstances. This brings in an iota of
an objective criterion for establishing ‘reasonableness.’ The imminence of danger is
also an important prerequisite for the valid exercise self-defence[iv]. Thus, there
should be a reasonable belief that the danger is imminent and that force must be
used to repel it.

Nature Of The Right

 Chanderprabhu Jain College of Higher
Studies
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School of Law
An to
It is the first duty of man ISOhelp
9001:2008 Certified
himself. Quality
The right Institute
of self-defence must be fostered
in the citizens of every by
(Recognized free country.
Govt. of NCTThe rightAffiliated
of Delhi, is recognized in every system of law
to GGS Indraprastha
and its extent varies in inverse ratio University, Delhi)
to the capacity of the state to protect life and
property
 Chanderprabhu Jain College of Higher
Studies
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School of Law
of the citizens. It is theAn ISO 9001:2008
primary duty of Certified
the state Quality Institutethe life and property of
to protect
the individuals, but no state,
(Recognized noofmatter
by Govt. NCT ofhow
Delhi,large its resources,
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to GGS Indraprastha
a policeman to dog the steps of every rouge inDelhi)
University, the country. One thing should be clear
that there is no right of private defence when there is time to have recourse to the
protection of police authorities. The right is not dependent on the actual criminality
of the person resisted. It depends solely on the wrongful or apparently wrongful
character of the act attempted and if the apprehension is real and reasonable, it
makes no difference that it is mistaken. An act done in exercise of this right is not an
offence and does not, therefore, give rise to any right of private defence in return[v].

Private Defence In The Indian Legal

System
Jeremy Bentham, an English Legal Luminary, once opined, “This right of defense is
absolutely necessary. The vigilance of the Magistrates can never make up for
vigilance of each individual on his own behalf. The fear of the law can never restrain
bad men so effectually as the fear of the sum total to individual resistance[vi]. Take
away this right and you become, in so doing, the accomplice of all bad men.” This
right is based on two principles,

 It is available against the aggressor only, and

 The right is available only when the defender entertains
reasonable apprehension.

There are three tests for ascertaining reasonable apprehension; they are the
objective, subjective and expanded objective tests. While objective test emphasizes
as to how in a similar circumstance an ordinary, reasonable, standard and average
person will respond, the subjective test examines the mental state based on
individual attitude. However, expanded objective test, being a combination of
aforesaid two tests, bases its inquiry to determine whether or not the individual
acted as a reasonable person. Right of private defence serves a social purpose and
the right should be liberally construed. Such a right is not only a restraining influence
 Chanderprabhu Jain College of Higher
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School of Law
on corrupt characters but also encourages manly spirit in a law abiding citizen. It
An ISO 9001:2008 Certified Quality Institute
should not be narrowly
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
 Chanderprabhu Jain College of Higher
Studies
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School of Law
An ISO
construed as it necessitates 9001:2008
the occasionsCertified
for theQuality Institute
exercise of this right as an effective
means of protection against
(Recognized wrong
by Govt. doers.
of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)

The Right to private defence of a citizen, where one can practically take law in his
own hands to defend his own person and property or that of others, is clearly
defined in Section 96 to Section 106 of the Indian Penal Code.

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

Right of private defence cannot be said to be an offence in return. The right of self-
defence under Section 96 is not ,absolute but is clearly qualified by Section 99 which
says that the right in no case extends to the inflicting of more harm than it is
necessary for the purpose of defence. It is well settled that in a free fight, no right of
private defence is available to either party and each individual is responsible for his
own acts. The right of private defence will completely absolve a person from all guilt
even when he causes the death of another person in the following situations, i.e

 If the deceased was the actual assailant, and

 If the offence committed by the deceased, which occasioned the cause of the
exercise of the right of private defence of body and property falls within
anyone of the six or four categories enumerated in Sections 100 and 103 of
the penal code.

Section 97 talks about Right of private defence of the body and of Property: – Every
person has a right, subject to the restrictions contained in Section 99, to defend-

First-His own body, and the body of any other person, against any offence affecting
the human body;
 Chanderprabhu Jain College of Higher
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School of Law
Secondly-The property, whether movable or immovable, of himself or of any other
An ISO 9001:2008 Certified Quality Institute
person, against any act which is an offence falling under the definition of theft,
robbery, mischief or criminal
(Recognized by Govt. trespass, or which
of NCT of Delhi, is an
Affiliated attempt
to GGS to commit theft,
Indraprastha
University, Delhi)
robbery, mischief for criminal trespass.
 Chanderprabhu Jain College of Higher
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School of Law
An ISO
This Section limits exercise of 9001:2008 Certified
the right of privateQuality Institute
defence to the extent of absolute
necessity. It(Recognized
must not by
be Govt.
moreof than
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necessary for Indraprastha
to GGS defending aggression.
There must be reasonable apprehension of Delhi)
University, danger that comes from the aggressor.
This Section divides the right of private defence into two parts, i.e. the first part deals
with the right of private defence of person, and the second part with the right of
private defence of property[vii].

Section 99 lays down the acts against which there is no right of private defence: –
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 color of his office, though that act, may not
be strictly justifiable by law.

Section 99 lays down the conditions and limits within which the right of private
defence can be exercised. The first two clauses provide that the right of private
defence cannot be invoked against a public servant or a person acting in good faith in
the exercise of his legal duty provided that the act is not illegal[viii]. Similarly, clause
three restricts the right of private defence if there is time to seek help of public
authorities. And the right must be exercised in proportion to harm to be inflicted. In
other words, there is no right of private defence:

 Against the acts of a public servant; and

 Against the acts of those acting under their authority or direction;
 When there is sufficient time for recourse to public authorities; and
 The quantum of harm that may be caused shall in no case be in excess of harm
that may be necessary for the purpose of defence.
 Section100 specifies when the right of private defence of the body extends to
causing death: –

The right of private defence of the body extends, under the restrictions mentioned in
the last preceding section, 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 hereinafter enumerated, namely: —
 Chanderprabhu Jain College of Higher
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School of Law
First-Such an assault as
An may reasonably
ISO 9001:2008 causeQuality
Certified the apprehension
Institute that death will
otherwise be(Recognized
the consequence
by Govt.of
of such assault;
NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
Secondly-Such an assaultAnasISO 9001:2008
may Certified
reasonably causeQuality Institute
the apprehension that grievous
hurt will otherwise be the
(Recognized by consequence
Govt. of NCT ofof suchAffiliated
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University, Delhi)

Thirdly- An assault with the intention of committing rape;

Fourthly- An assault with the intention of gratifying unnatural

lust; Fifthly- An assault with the intention of kidnapping or

abducting;

Sixthly- An assault with the intention of wrongfully confining a person, under

circumstances that may reasonably cause him to apprehend that he will be unable to
have recourse to the public authorities for his release.

Seventhly – an act of throwing acid or attempting to throw acid.

To invoke the provisions of Section 100 of I.P.C., four conditions must exist:-

 The person exercising the right of private defense must be free from fault in
bringing about the encounter,
 There must be an impending peril to life or of great bodily harm,
 There must be no safe or reasonable mode of escape by retreat,
 There must have been a necessity for taking life.

Section101 prescribes when such right extends to causing any harm other than
death:-

If the offence be not of any of the descriptions enumerated in the last preceding
section, the right of private defence of the body does not extend to the voluntary
causing of death to the assailant, but does extend, under the restrictions mentioned
in Section 99, to the voluntary causing to the assailant of any harm other than
death[ix].
 Chanderprabhu Jain College of Higher
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School of Law
Section102 is very important
An ISOas it deals with
9001:2008 theQuality
Certified commencement
Institute and continuance of
the right of private defence
(Recognized of the
by Govt. body:
of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)

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
 Chanderprabhu Jain College of Higher
Studies
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School of Law
such apprehension of An ISO 9001:2008
danger to the bodyCertified Quality Institute
continues. The apprehension of danger
must be reasonable, notbyfanciful.
(Recognized Govt. of For
NCTexample, one cannot
of Delhi, Affiliated shoot
to GGS one’s enemy from a
Indraprastha
long distance, even if he is armed with a dangerous
University, Delhi) weapon and means to kill. This is
because he has not attacked you and therefore there is no reasonable apprehension
of attack. In other words, there is no attack and hence no right of private defence
arises. Moreover the danger must be present and imminent[x].

Section103 specifies when the right of private defence of property extends to

causing death: –

The right of private defence of property extends, under the restrictions mentioned in
Section 99, to the voluntary causing of death or of any other harm to the wrong-
doer, if the offence, the committing of which, or the attempting to commit which,
occasions the exercise of the right, be an offence of any of the descriptions
hereinafter enumerated, namely: Robbery, House-breaking by night, Mischief by fire
committed on any building, tent or vessel, which building, tent of vessel is used as a
human dwelling, or as a place for the custody of property, 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.

Section 103 provides the right of private defence to the property whereas Section
100 is meant for exercising the right of private defence to the body of a person. It
justifies homicide in case of robbery, house breaking by night, arson and the theft,
mischief or house trespass which cause apprehension or grievous harm. If a person
does not have possession over the property, he cannot claim any right of private
defence regarding such property[xi]. Right to dispossess or throw out a trespasser is
not available to the true owner if the trespasser has been successful in accomplishing
his possession to his knowledge. This right can be only exercised against certain
criminal acts that are mentioned under this section.
 Chanderprabhu Jain College of Higher
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Section104 tells us when such right extends to causing any harm other than death:-
An ISO 9001:2008 Certified Quality Institute

(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

If the offence, the committing of which, or the attempting to commit which,
University, Delhi)
occasions the exercise of the right of private defence, be theft, mischief, or criminal
trespass, not of any of the descriptions enumerated in the last preceding section,
that right does not extend to the voluntary causing of death, but does extend,
subject to the restrictions
 Chanderprabhu Jain College of Higher
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School of Law
mentioned in section 99,An ISO 9001:2008
to the Certified
voluntary Quality
causing toInstitute
the wrongdoer of any harm
other than (Recognized
death. ThisbySection
Govt. ofcannot be said
NCT of Delhi, to be
Affiliated givingIndraprastha
to GGS a concession to the
accused to exceed their right of private defence
University, Delhi) in any way[xii]. If anyone exceeds
the right of private defence and causes death of the trespasser, he would be guilty
under Section 304, Part II. This Section is corollary to Section 103 as Section 101 is a
corollary to Section 100.

Section105 prescribes the commencement and continuance of the right of private

defence of property: –

The Right of private defence of property commences when a reasonable

apprehension of danger to the property commences. The right of private defence of
property against theft continues till the offender has affected his retreat with the
property or either the assistance of the public authorities is obtained, or the
property has been recovered[xiii]. The right of private defence of property against
robbery continues as long as the offender causes or attempts to cause to any person
death or hurt or wrongful restraint of as long as the fear of instant death or of
instant hurt or of instant personal restraint continues

 The right of private defence of property against criminal trespass or mischief

continues as long as the offender continues in the commission of criminal
trespass or mischief.
 The right of private defence of property against house-breaking by night
continues as long as the house-trespass which has been begun by such house-
breaking continues.

Section106 talks about right of private defence against deadly assault when there is
risk of harm to innocent person: –

If in the exercise of the right of private defence against an assault, which reasonably
causes the apprehension of death, the defender be so situated that he cannot
 Chanderprabhu Jain College of Higher
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School of Law
effectually exercise that right without risk of harm to an innocent person his right or
An ISO 9001:2008 Certified Quality Institute
private defence extends to the running of that risk.
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

Evolution of the Right of Private Defence

University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
In Roman law, homicide Anwas
ISO considered
9001:2008 Certified
to be anQuality Institute
act by which the life of a human-
being was taken away.byThere
(Recognized Govt. ofwere two
NCT of degrees
Delhi, Affiliatedofto criminal homicide, namely,
GGS Indraprastha
murder and manslaughter, and two degrees
University, of homicide that did not expose a
Delhi)
person to punishment, namely, justifiable and excusable. Self-defence was placed in
the category of justifiable homicide. In self-defence violence was lawful: ‘Vim enim vi
defendere omnes leges emniaque jure permittunt’ (A man, therefore, incurs no
liability, if he kills another’s slave who attacks him.)[xiv]. The Justinian code and the
Twelve Tables reiterated this right of private defence- the Code holding that no
greater force than what was sufficient to ward off the threatened danger was
permitted and the Tables on the other hand, allowing killing in such a case without
restrictions regarding it to be permissible self-redress rather than self-defence.

Under English law the status of the right of self-defence underwent a series of
changes through the ages. In the ancient period, there was absolute liability even for
homicide committed se defendendo. In the Medieval period, the theory of pardon
developed and it became excusable, whereas in the Modern Age, homicide
committed in self-defence is treated as justifiable, because it is presumed that such
an act is not backed with evil intent. In the early days, the law regarded the word and
the act of the individual but it did not search the heart of the man. It was the age of
strict liability[xv]. Man was held responsible for his acts irrespective of his intentions.
His mental state was not taken into account when determining liability for the
commission of the crime. It was the external conduct and the injury upon which
liability was imposed. The accidental injuries and the injuries inflicted during self-
defence, also attracted liability. Thus, criminal liability was not related to the evil
intention of the actor.

However, in the 13th century there was a shift from strict liability and emphasis was
laid on the mental element. During this period, killing was justified in a few
exceptional cases. One who killed in misadventure, or in self-defence was still guilty
of a crime, although he deserved a pardon from the King[xvi]. During the Medieval
period, though the accused obtained pardon yet he forfeited his goods for the crime
committed in self-defence. The moral sense of the community could not tolerate
 Chanderprabhu Jain College of Higher
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School of Law
indefinitely the idea that a blameless self-defender was a criminal. Ultimately, the
An ISO 9001:2008 Certified Quality Institute
jury was allowed to give a verdict of not guilty in such cases. Pardon of the King soon
became a formality in such
(Recognized cases
by Govt. and thus
of NCT grew
of Delhi, the concept
Affiliated of excusable homicide.
to GGS Indraprastha
University, Delhi)
The act of pardon was a kind of excuse[xvii]. The word excuse itself denoted the
condonation of wrong committed by the offender. Blackstone perceived the essence
of
 Chanderprabhu Jain College of Higher
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School of Law
excuses to be ‘the wantAnorISO 9001:2008
defect Certified
of will’. Quality
This all Institute
changed in the modern period. In
modern times, there isby
(Recognized a Govt.
presumption
of NCT ofthat
Delhi,there is no
Affiliated mensIndraprastha
to GGS rea in the homicides
committed in self-defence and as such it hasDelhi)
University, become a justifiable general defence in
law. Thus, now no criminal liability is attached to the accused in such cases. This is in
conformity with the provisions of Article 2 of the European Convention on Human
Rights.

Thus, in modern times every evolved legal system has accepted the right of self-
defence as a universal one.

Private Defence In Various Legal

Systems
English Law

As the common law system does not provide a statutory definition of self-defence, it
is often the opinions of legal authorities that are relied upon. Black’s Law Dictionary
enumerates two elements that are necessary to constitute self-defence, namely=

 Accused does not provoke difficulty, and

 There must be impending peril without convenient or reasonable mode of
escape.

On the other hand Glanville Williams’ analysis of the elements is more

comprehensive: –

 The force is threatened against the person,

 The person threatened is not the aggressor,
 The danger of harm is imminent,
 The force is unlawful,
 The person threatened must actually believe that a danger exists, that the use
of force is necessary and that the kind and amount of force being used is
 Chanderprabhu Jain College of Higher
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School of Law
required in the circumstances, and that the above beliefs are reasonable[xviii].
An ISO 9001:2008 Certified Quality Institute

(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
American Law An ISO 9001:2008 Certified Quality Institute

(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

University, Delhi)
The position under American law is also very similar. Great importance is given to the
following concepts when dealing with the concept of self-defence.

 Requirement of reasonableness (a reasonable and honest belief is essential),

 Only that amount of force should be used which reasonably appears necessary
to prevent the threatened harm.

Thus, it can be seen that in the various legal systems of the world, there are certain
common established principles pertaining to self-defence.

Judicial View on Private Defence

The protection of life and property is axiomatic in every civilized society and because
it is impossible for the State to do so on every occasion – as law enforcement officers
cannot be omnipresent, the individual is given the right of private defence. The right
of private defence legally accords to the individuals the right to take reasonably
necessary measures to protect themselves under special circumstances. Notably, on
the execution of the private defence provisions in the Penal Code, the framers said
“we leave it still in a very imperfect state…we are inclined to think that it must
always be one of the least exact parts of every system of criminal law[xix].” This
suggests that they recognized the necessity for latent ambiguity to allow judges the
flexibility to read and apply the provisions so as to achieve fairness.

However, the local courts have overlooked this discretion conferred upon them and
instead opted for a far too restrictive (and even unreasonable) interpretation of the
provisions to the extent where private defence is hardly adequate as a defence,
defeating the intention of the provision. The inconsistency between the judicial
interpretation and the intention of the Code framers is exemplified in the
interpretation of “reasonable apprehension” under Sections 100 and 102[xx].
Evidently, the local courts have adopted a strict objective approach in determining
 Chanderprabhu Jain College of Higher
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School of Law
“reasonable apprehension”, ignoring its inherent ambiguity. This is in contrast to the
An ISO 9001:2008 Certified Quality Institute
current English law that judges the nature of the danger wholly according to that of
the accused’s perceptionby(purely
(Recognized Govt. ofsubjective test).
NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
Darshan Singh v. State ofAn ISO 9001:2008 Certified Quality Institute
Punjab[xxi]
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
The Supreme Court laid down Guidelines for Right Of Private Defence for Citizens. It
observed that a person cannot be expected to act in a cowardly manner when
confronted with an imminent threat to life and has got every right to kill the
aggressor in self defense. A bench comprising Justices Dalveer Bhandari and Asok
Kumar Ganguly, while acquitting a person of murder, said that when enacting
Section 96 to 106 of the IPC, the Legislature clearly intended to arouse and
encourage the spirit of self-defense amongst the citizens, when faced with grave
danger.“ The law does not require a law-abiding citizen to behave like a coward
when confronted with an imminent unlawful aggression. As repeatedly observed by
this court, there is nothing more degrading to the human spirit than to run away in
face of danger. Right of private defense is thus designed to serve a social purpose
and deserves to be fostered within the prescribed limit[xxii].”

The court laid down ten guidelines where right of self-defence is available to a
citizen, but also warned that in the disguise of self-defence, one cannot be allowed
to endanger or threaten the lives and properties of others or for the purpose of
taking personal revenge. The apex court concluded by saying that a person who is
under imminent threat is not expected to use force exactly required to repel the
attack and his behaviour cannot be weighed on “golden scales.”

The Court declared their legal position under the following 10 guidelines[xxiii]:

1. Self-preservation is a basic human instinct and is duly recognized by the

criminal jurisprudence of all civilized countries. All free, democratic and
civilized countries recognize the right of private defense within certain
reasonable limits.
2. The right of private defense is available only to one who is suddenly
confronted with the necessity of averting an impending danger and not of self-
creation.
3. A mere reasonable apprehension is enough to put the right of self-defense
 Chanderprabhu Jain College of Higher
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School of Law
into operation. In other words, it is not necessary that there should be an
actual commissionAn of
ISOthe
9001:2008
offenceCertified
in order Quality Institute
to give rise to the right of private
defense. It is enough
(Recognized if ofthe
by Govt. NCTaccused
of Delhi,apprehended
Affiliated to GGSthat such an offence is
Indraprastha
contemplated and it is likelyUniversity,
to be committed
Delhi) if the right of private defense is
not exercised.
 Chanderprabhu Jain College of Higher
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An ISO 9001:2008
4. The right of private defense Certified Quality Institute
commences as soon as a reasonable
apprehension
(Recognizedarises and
by Govt. it isof Delhi,
of NCT co-terminus with
Affiliated to GGSthe duration of such
Indraprastha
apprehension. University, Delhi)
5. It is unrealistic to expect a person under assault to modulate his defense step
by step with any arithmetical exactitude.
6. In private defense the force used by the accused ought not to be wholly
disproportionate or much greater than necessary for protection of the person
or property.
7. It is well settled that even if the accused does not plead self-defense, it is open
to consider such a plea if the same arises from the material on record.
8. The accused need not prove the existence of the right of private defense
beyond reasonable doubt.
9. The Indian Penal Code confers the right of private defense only when the
unlawful or wrongful act is an offence.
10.A person who is in imminent and reasonable danger of losing his life or limb
may, in exercise of self defense, inflict any harm (even extending to death) on
his assailant either when the assault is attempted or directly threatened.

Yogendra Moraji v. State[xxiv]

The Supreme Court discussed in detail the extent and the limitations of the right of
private defence of body. One of the aspects emphasized by the court was that 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. This aspect has create quite a confusion as it indirectly suggests that
once should first try to see the possibility of a retreat than to defend by using force,
which is contrary to the principle that the law does not encourage cowardice on the
part of one who is attacked. But another viewpoint is that this retreat theory in fact
is an acceptance of the English common law principle of defence of body or property
under which the common law courts always insisted to look first as to whether the
accused could prevent the commission of crime against him by retreating.

Nand Kishore Lal v. Emperor[xxv]

 Chanderprabhu Jain College of Higher
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School of Law
An ISO
Accused who were Sikhs, 9001:2008
abducted Certified
a Muslim Quality Institute
married woman and converted her to
Sikhism. Nearly a year by
(Recognized after the
Govt. abduction,
of NCT of Delhi,the relatives
Affiliated of Indraprastha
to GGS the woman’s husband
came and demanded that she return. University,
TheDelhi)
accused refused to comply and the
woman
 Chanderprabhu Jain College of Higher
Studies
&

School of Law
herself expressly statedAnher
ISO 9001:2008 Certified
unwillingness Quality
to rejoin herInstitute
Muslim husband. Thereupon
the husband’s relatives by
(Recognized attempted to of
Govt. of NCT take herAffiliated
Delhi, away by force.Indraprastha
to GGS The accused resisted
the attempt and in so doing one of University,
them inflicted
Delhi)a blow on the head of the woman’s
assailants, which resulted in the latter’s death. It was held that the right of the
accused to defend the woman against her assailants extended under this section to
the causing of death and they had, therefore, committed no offence.

Mohinder Pal Jolly v. State of Punjab[xxvi]

Workers of a factory threw brickbats from outside the gates, and the factory owner
by a shot from his revolver caused the death of a worker, it was held that this section
did not protect him, as there was no apprehension of death or grievous hurt.

Mithu Pandey v. State[xxvii]

Two persons armed with ‘tangi’ and ‘danta’ respectively were supervising collection
of fruit by labourers from the trees that were in the possession of the accused
persons who protested against the act. In the altercation that followed one of the
accused suffered multiple injuries because of the assault. The accused used force
resulting in death. The Patna High Court held that the accused were entitled to the
right of private defence even to the extent of causing death.

Jassa Singh v. State of Haryana[xxviii]

The Supreme Court held that the right of private defence of property would not
extend to the causing of the death of the person who committed such acts if the act
of trespass is in respect of an open land. Only a house trespass committed under
such circumstances as may reasonably caused death or grievous hurt is enumerated
as one of the offences under Section 103.

Conclusion
 Chanderprabhu Jain College of Higher
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School of Law
In general, private defence is an excuse for any crime against the person or property.
An ISO 9001:2008 Certified Quality Institute
It also applies to the defence of a stranger, and may be used not only against
culpable but(Recognized
against innocent aggressors.
by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
 Chanderprabhu Jain College of Higher
Studies
&

School of Law
The defence is allowedAnonly
ISO 9001:2008
when it isCertified Quality Institute
immediately necessary-against threatened
violence. A (Recognized
person whobyacts
Govt.under
of NCTaofmistaken belief
Delhi, Affiliated in the
to GGS need for defence is
Indraprastha
protected, except that the mistake must beDelhi)
University, reasonable. In principle, it should be
enough that the force used was in fact necessary for defence, even though the actor
did not know this; but the law is not clear. There is no duty to retreat, as such, but
even a defender must wherever possible make plain his desire to withdraw from the
combat. The right of private defence is not lost by reason of the defender’s having
refused to comply with unlawful commands.

The force used in defence must be not only necessary for the purpose of avoiding
the attack but also reasonable, i.e. proportionate to the harm threatened; the rule is
best stated in the negative form that the force must not be such that a reasonable
man would have regarded it as being out of all proportion to the danger[xxix].

The carrying of firearms and other offensive weapons is generally forbidden, but (1)
a thing is not an “offensive weapon” if it is not offensive per se and is carried only to
frighten; (2) a person does not “have it with him” if he merely snatches it up in the
emergency of defence.

The right of defence avails against the police if they act illegally, but the defender
cannot take benefit from a mistake as to the law of arrest or self-defence[xxx]. The
traditional rule is that even death may be inflicted in defence of the possession of a
dwelling.

The occupier of premises may use necessary and reasonable force to defend them
against a trespasser, or one reasonably thought to be a trespasser; and it seems that
even a licensee (such as a lodger) can eject trespassing strangers. It is a statutory
offence to set spring guns or mantraps, except in a dwelling house between sunset
and sunrise. It has not been decided whether the exception operates to confer an
exemption from the ordinary law of offences against the person. Such defences as
 Chanderprabhu Jain College of Higher
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School of Law
spikes and dogs are lawful if reasonable [xxxi]. Guard dogs must, by statute, be kept
An ISO 9001:2008 Certified Quality Institute
under full control, except in private houses or on agricultural land.
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
Thus, we can see the right of private defence is very helpful in giving citizens a
weapon which in a case that it’s not misused is subject to certain restrictions, helps
them protect their and others’ lives and property.
 Chanderprabhu Jain College of Higher
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(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

[i] http://www.legalserviceindia.com/article/l470-Private-Defence.html.
University, Delhi)

[ii]https://www.academia.edu/1437252/Private_Defence_in_Collection_of_Essays_
m arking_the_150th_Anniversary_of_the_Indian_Penal_Code_Ashgate_2011.

[iii] www.legalsutra.com/…/right…private-defence/Criminal-Law-Right-of-Private-
defence.

[iv]http://laws.puchd.ac.in/includes/theses/2010/201010121558
57- Summary%20%20Dharam%20Pal%20Punia.pdf .

[v] http://www.legalserviceindia.com/article/l470-Private-Defence.html.

[vi] www.e-lawresources.co.uk/Public-and-private-defences.php.

[vii] http://www.legalserviceindia.com/article/l470-Private-Defence.html.

[viii] www.indiankanoon.org/.

[ix] www.legalsutra.com/…/right…private-defence/Criminal-Law-Right-of-Private-
defence.

[x] http://www.legalserviceindia.com/article/l470-Private-Defence.html.

[xi] www.e-lawresources.co.uk/Public-and-private-defences.php.

[xii] scienceblogs.com/deltoid/2000/01/01/selfdefence/ .

[xiii] http://www.legalserviceindia.com/article/l470-Private-Defence.html.

[xiv] http://www.legalserviceindia.com/article/l470-Private-Defence.html.

[xv]http://www.icidr.org/ijalsg_vol3no1_april2012/The%20Pragmatic%20Nature%20
of%20Private%20Defence%20under%20Criminal%20Jurisprudencein%20Nigeria.pd f.
 Chanderprabhu Jain College of Higher
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An ISO 9001:2008 Certified Quality Institute
[xvi] scienceblogs.com/deltoid/2000/01/01/selfdefence/.
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
[xvii] www.e-lawresources.co.uk/Public-and-private-defences.php.
University, Delhi)

[xviii] http://www.icidr.org/ijalsg_vol3no1_april2012/The%20Pragmatic%20Nature%
20of%20Private%20Defence%20under%20Criminal%20Jurisprudencein%20Nigeria.
pdf.

[xix] https://www.academia.edu/1437252/Private_Defence_in_Collection_of_Essays
_ marking_the_150th_Anniversary_of_the_Indian_Penal_Code_Ashgate_2011.

[xx] http://www.legalserviceindia.com/.

[xxi] Criminal Appeal 1057 of

2002 http://indialawyers.wordpress.com/2010/01/17/supreme-court-lays-down-
guidelines-for-right-of-private-defence-for-citizens/ .

[xxii] http://www.legalserviceindia.com/article/l470-Private-Defence.html.

[xxiii] http://indialawyers.wordpress.com/2010/01/17/supreme-court-lays-
down- guidelines-for-right-of-private-defence-for-citizens/.

[xxiv] AIR 1980 SC 660.

[xxv] AIR 1924 Pat 789.

[xxvi] AIR 1979 SC 577.

[xxvii] 1967 CrLJ 102 (Pat).

[xxviii] 2002 CrLJ 563(SC).

[xxix] http://www.jdsupra.com/legalnews/right-of-private-defense-in-india-07062/.

[xxx] scienceblogs.com/deltoid/2000/01/01/selfdefence/

[xxxi]http://www.legalserviceindia.com/article/l470-Private-

Defence.html.
 Chanderprabhu Jain College of Higher
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(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

University, Delhi)

The Criminal Defense of Intoxication

The Criminal Defense of Intoxication

Intoxication is a defense available to criminal defendants on the basis that,

because of the intoxication, the defendant did not understand the nature of his
or her actions or know what he or she was doing. The intoxication defense
applies in very limited circumstances and typically depends on whether the
intoxication was voluntary or involuntary and what level of intent is required by
the criminal charge.

Involuntary Intoxication

Involuntary intoxication occurs when someone is tricked into consuming a

substance like drugs or alcohol, or when someone is forced to do so. For
instance, a woman who has a date rape drug placed in her drink without her
knowledge is involuntarily intoxicated. Involuntary intoxication may also occur
as a result of an allergy to, or the unintended effects of, a legal prescription
medication.

If a charged crime is a specific intent crime, meaning that the criminal

defendant must have had the specific intent to commit the crime in question,
involuntary intoxication can be a defense to criminal charges if it prevents the
defendant from forming the intent that is required. For instance, the defendant
may not understand the nature of his or her actions or may be deemed
incapable of obtaining the state of mind necessary to commit the crime. A
common example is the crime of assault, which requires an intent to cause
harm. If an individual becomes violent as a result of an involuntary intoxication
 Chanderprabhu Jain College of Higher
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and commits an assault, he or she may be able to argue that the intoxication
prevented him or her An ISOforming
from 9001:2008
theCertified
intent Quality Institute
to cause harm.
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
An can
Involuntary intoxication ISO 9001:2008
also be aCertified
defense Quality
to a Institute
general intent crime if the
defendant can establish
(Recognized that the
by Govt. involuntary
of NCT intoxication
of Delhi, Affiliated to GGS acted similarly to an
Indraprastha
insanity defense and prevented the defendant
University, Delhi) from understanding the nature
of his or her actions or differentiating between right and wrong.

Voluntary Intoxication

Establishing a defense of voluntary intoxication is much more difficult than

involuntary intoxication. Under prevailing legal standards, voluntary
intoxication is an applicable defense only for certain crimes, and, even in
those circumstances, juries are far less likely to accept a defense of
intoxication when the defendant brought the intoxication upon himself or
herself.

Unlike involuntary intoxication, voluntary intoxication is never a defense to a

general intent crime. However, voluntary intoxication may be used as a
defense to specific intent crimes if, as with involuntary intoxication, it prevents
the defendant from forming the criminal intent necessary to commit the crime.

Thus, a defendant could argue voluntary intoxication as a defense

to burglary because he was so intoxicated that he was unable to form an
“intent to commit a crime therein.” However, in most states, the crime of
voluntary intoxication is an affirmative defense, which means that the burden
is on the defendant to prove that he or she lacked the necessary intent.

In some cases, the defense of voluntary intoxication does not completely

absolve the defendant of liability but instead reduces the overall culpability for
the crime. Thus, the defendant might find charges reduced to a lesser crime if
he or she successfully proves that intoxication limited his or her intent or
comprehension of the crime.

tatement of Problem
 Chanderprabhu Jain College of Higher
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What is the nature and scope of intoxication
An ISO 9001:2008under Section
Certified 85 Institute
Quality and Section 86 of Indian Penal
Code?
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
The topic that I have selected falls9001:2008
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Certified of defenses.
Quality In certain instances due to
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circumstances(Recognized
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because Delhi)
as it is imperative to punish the guilty, not
even a single innocent man must be convicted. The defenses have been specially formulated
so that they are able to meet every circumstance. Though a defense does not rescue an
individual from liability totally, it does reduce the severity of his punishment for he can be
convicted for culpable homicide not amounting to murder rather than murder. Intoxication is one
such defense.

I will start with dealing with the origin of the concept, meaning the legal stand on the issue as it
has been. As the basic doctrine has been laid down in the British cases, I will deal with the
British aspect first. The project will be divided in two sections, one that will deal with the British
perspective and the other that will deal with the Indian perspective. Intoxication is codified in
section 85 and 86 of the Indian penal code.

I will be dealing with intoxication and its subsidiary aspects. Criminal law can be broadly
segregated to a section dealing with offences and another one dealing with defenses. The
offences committed constitute that section of criminal law in which the individual actively
commits a crime. The very core aspect of this section is that the criminal must have the
intention or mens rea to commit the crime.

Criminal law, unlike its contemporary, civil law lays great emphasis on the intention of an
individual.

Both the sections of my project will deal with the legal stand on the voluntary as well as the
involuntary intoxication. I will deal minutely with both the grounds and after expounding the legal
stand on both the sides will sum up with a critical analysis and comparison of the law in the two
countries.

The British

Perspective
 Chanderprabhu Jain College of Higher
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Voluntary
An ISO 9001:2008 Certified Quality Institute
Intoxication
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University,
Even though voluntary intoxication means Delhi)has consumed intoxicating
that someone
substances with their own free will, he may still have a defense to the offence with which he is
charged. The intent in case of a crime is very important and even though a person maybe
voluntarily intoxicated, the very fact
 Chanderprabhu Jain College of Higher
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School of Law
that he is unable to form the Anrequired intent works
ISO 9001:2008 in hisQuality
Certified favor. Institute
The severity of the punishment
is reduced due to this defense; for instance, an individual will be punished for the crime of
manslaughter(Recognized by more
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of murder. GGSrequiring
crime Indraprastha
specific intent
University, Delhi)
may be reduced to one requiring basic intent. An intoxicant does not have any separate ‘class’ but
it refers to any substance, which has an effect on the consciousness or the decision-making
capacity of a person.

What amounts to a state of intoxication?

It was in DPP v Beard that the rule for what amounts to a state of intoxication was laid down.
Lord Birkenhead: where a specific intent is a specific element in the offence, evidence of a
state of drunkenness rendering the accused incapable of forming such an intent should be
taken into consideration in order to determine whether he had in fact formed the necessary
intent to constitute the particular crime. Where a specific intent is necessary, if a man is able
to prove that he was so intoxicated that he was unable to form the intent, he cannot be
convicted of that particular offence.

Basic Intent/ Specific Intent Dichotomy

The rule was laid down by lord Simon of Glaisdale. However he laid down a very
complicated rule. To sum it up briefly and simply, the rule provides that some offences do
not require a specific intent or motive. Even a basic intent of recklessness or negligence
would be sufficient in some crimes. For instance, in case of manslaughter no specific intent
is required.

The Rationale Behind the Defence of Intoxication

The laws in the early nineteenth century concerning intoxication were very stringent. In fact,
according to a statement made by Earl of Birkenhead, voluntary intoxication was considered an
aggravation rather than a defence. If a person was consuming alcohol, knowing fully well that it
would impair his ability to think clearly, then he will be situated in no better condition than a
sober man in the judgment of his criminal conduct.
 Chanderprabhu Jain College of Higher
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Thankfully, the rule has been mercifully relaxed and a person’s punishment, though cannot be
eradicated completely, canAnbeISO
reduced in severity.
9001:2008 Further
Certified illustrations
Quality Institute can be provided with the
help of case studies.
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
An ISO 9001:2008 Certified Quality Institute

(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

University, Delhi)
Case

Laws R v

Lipman

Facts: Both the defendant as well as the victim was addicted to drugs, and on the eve of
sixteenth September 1967, both took a quantity of a drug known as LSD. Early in the morning
of eighteenth September, the defendant, who is a resident of U.S.A, booked out of his hotel
and left the country. The next day, the landlord of the victim found her dead in her room. She
had been struck on the head severely and the cause of death had been suffocation due to a
sheet that had been crammed in her mouth. The defendant, when he was charged with his
crime said that the drug had made him imagine that he was in the center of the Earth fighting
snakes and in that state of mind he had killed the victim.

Judgment: the judgment in this case was that since for a charge of manslaughter, no specific
intent is required, hence in this case self-induced intoxication will not serve as a defence.
Acquittal is not possible, and a charge of manslaughter was inevitable.

Reasoning: the defendant cannot be charged with murder because he had no intention to cause
any sort of grievous bodily harm, and without the necessary mens rea, he cannot be convicted
of murder. On the other hand, in case of a charge of manslaughter, there is no specific intention
required, so in the present case that charge can be easily made. All crimes do not require a
particular motive and they provide punishment even in the case of negligence or reckless
conduct. In this case the conduct was clearly reckless for the defendant was aware that it was a
drug and that it would deprive him of his senses.

DPP. v Majewski

Facts: in this case, Robert Stephan Majewski appeals against his conviction on seventh
November 1973 when under the influence of drugs he had made three attempts of assault
causing bodily harm and threatened a constable who was on duty.
 Chanderprabhu Jain College of Higher
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Judgment: in this case, theAnjudges came to the
ISO 9001:2008 conclusion
Certified thatInstitute
Quality in a case of assault, no specific
intention is required and the defendant is guilty as charged.
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
Reasoning: the reasoning that I have provided is of three judges.

Lord Elwyn Jones LC: According to Lord Elwyn Jones, voluntary intoxication has always been a
factor prevalent in crimes such as assault but the rate of self-induced intoxication has escalated
alarmingly. The courts, or rather the judges in Britain between crimes requiring basic intent and
specific intent have introduced a dichotomy. Hence, what we actually have to decode is what is
the mental element required in a case of assault.

He has quoted Lord Simon of Glaisdale5 - I take assault as an example of a crime of basic
intent where the consequence is very closely connected with the act. The actus reus of assault
is an act which causes another person to apprehend immediate and unlawful violence. The
mens rea further corresponds. He further elucidated that what the prosecution in the present
case had to prove was that the accused foresaw his act would cause some kind of
apprehension to the defendant, or he was reckless with his act. In case of assault, not only the
foresight, but the prevalence of the recklessness also constitutes the mens rea.

There is still heated debate as to what extent it is right to let a person goes free because he is on a
‘trip’ due to drugs. Under the early law of England as it prevailed in the nineteenth century, one
could never use voluntary manslaughter as a defence. This view propagated that any person
who consciously destroys his ability to think reasonably cannot use it as a defence, rather it is
an aggravation. However, now this severity has been tempered, from 1819 onwards to as it
stands today. In case of an offence requiring basic intent, it is not sufficient for a person to claim
that he was intoxicated.

Lord Salmon: He admits that it seems rather arbitrary to excuse one form of intention, while
another form in condemned. This however is the most reasonable rule because it is neither too
strict nor too lax. Neither part of the rule can be removed without making the rule inconsistent
as a whole. The rule will lose its integrity if this is done and will reach one of the extremes if this
is done. As we are well aware it is very difficult to apply absolute logic in affairs that deal with
human nature because human nature never follows absolute logic. If a person were to be
redeemed from punishment merely because he was drunk, the effect on the morale of the
society would have been disastrous. Hence when a person does what Lipman does he should
not be allowed to go free, for the simple reason that this would make the
 Chanderprabhu Jain College of Higher
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School of Law
common man regard the lawAn with
ISO contempt.
9001:2008He shouldQuality
Certified not be Institute
punished for the crime as a
sober man would be, but he still deserves some form of punishment.
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)

Lord Russell of Killowen: There are two extreme views that are prevalent. Some people believe
that the law should regress back to what it had been in the early nineteenth century. At that time
voluntary intoxication was considered an aggravation rather than a defence. There are others
who take a contrary view and say that a man who is intoxicated cannot be considered guilty,
because he is incapable of forming an intention. This will be considered technically correct, for
a crime does require the element of mens rea, but it will never appeal to a man who has been
beaten up by a drunken goon.

Is Voluntary Consumption Per Se Reckless All The

Time? R v Hardie

Facts: Shortly after nine fifteen at night on second January 1982, fire broke out in a wardrobe
in the bedroom of the ground floor flat at 55 Bassingham Road, London Sw10. At that time,
Mrs. Jeannette Hardie, with whom the appellant had been residing, occupied the flat. Shortly
before the above stated date, second January, Mrs. Jeannette had requested the appellant to
leave because their relationship had broken down. He did not wish to do so at all, but he
reluctantly packed his baggage on the morning of second January. At lunchtime, the appellant
discovered two bottles in a cabinet, one of which contained valium. The appellant claimed that
he had never taken valium before, and he was very distressed around twelve in the afternoon
and took it to calm his nerves. He had taken about four tablets after that and Mrs. Hardie had
said that they would not harm him because they had expired.

Thereafter he had gone to the bedroom and it was very evident that he must have started the
fire because there was nobody else in that room. Te appellant claimed that it was due to the
effect of the Valium and he did not remember anything.

Judgment: The judge directed the jury in effect that as the Valium was voluntarily self-
administered, it could not serve as a defence.
 Chanderprabhu Jain College of Higher
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Reasoning: I will expound An theISO
reasoning of Judge
9001:2008 Parker
Certified because
Quality he has pointed out some
Institute
very important criticisms in this judgment. The authority on which the judgment was based was
R v Caldwell, (Recognized by Govt. ofwhen
stated that intoxication, NCT itofisDelhi, Affiliatedcan
self-induced to GGS Indraprastha
only serve as a defence when
University, Delhi)
a charge is one of specific intent. In this case however, the charge also included recklessness.
In this case Parker ponders whether the taking of Valium in the circumstances that it was can
be termed as self-induced.

The court has dealt with two parallel cases; R v Majewski was a case of intoxication due to the
consumption of alcohol under the influence of non-medically prescribed drugs while R v
Caldwell was a case of plain and simple drunkenness. Both were considered voluntary
intoxication. In this case, Judge Parker is not satisfied with the judgment because Valium is not
a drug, which causes any kind of aggressive or reckless conduct under normal circumstances.
Here, the appellant cannot fall in the same category as the others.

Involuntary Intoxication

According to DPP v Majewski, the case that I have already dealt with previously, even in case
of a crime requiring basic intent, one can claim involuntary intoxication as a defence depending
upon the facts of a particular case. In case of a situation of automation, the party would not be
blamed at all. For instance, if some third party mixes LSD in one person’s food and that person
causes harm under the influence of that LSD, the third person that has mixed the LSD is entirely
to blame. If an individual has to escape from a crime which requires a specific intent it will be
very easy because the principle has been clearly laid down in DPP v Majewski, but if he has to
escape from a crime of basic intent he will have to rely on both DPP v Majewski as well as R v
Hardie

Mistake Regarding Nature of Subsatnce

Consumed R v Allen

Facts: The accused was convicted of indecent assault. He defended himself by saying that he
was so drunk at that time that he had been unable to comprehend what he had been doing. He
had been given a drink by a friend in a public house, and had been later offered wine. He had
not realized that the wine had high alcohol content, and the accused had consumed it without
being aware of that fact. It was in that state of mind that the accused had committed assault.
 Chanderprabhu Jain College of Higher
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An ISO 9001:2008 Certified Quality Institute

Judgment: The judge in thisby

(Recognized case held
Govt. ofthat
NCTinvoluntary intoxication
of Delhi, Affiliated couldn’t
to GGS serve as a defence in a
Indraprastha
crime University, Delhi)

of the nature that the accused had committed.

Reasoning: In this case, there is nothing to prove that the intoxication was involuntary; for the
accused had consumed the alcohol with his friend, and it seemed that he had done so willingly
enough.

Moreover the argument that was given by the accused was that he was not aware of the
alcohol content of the wine that he had drunk and it had a much higher content than he
had expected. He cannot be absolved from liability on this basis.

Involuntary Consumption of Intoxicants Falling Short of

Intoxication R v Kingston

Facts: The facts are very simple. The respondent was in dispute over business matters with a
couple named Foreman, who employed Penn to obtain damaging information which they could
use against the respondent, who was a homosexual with Pedophiliac tendencies. As part of the
plan Penn invited the youth to his room. According to the evidence that the youth gave, he
remembered nothing between a time when he was sitting on the bed, still in Penn’s room, the
following morning. It was the case for the prosecution, which the jury by their second verdict must
have accepted, that the boy fell asleep due to a drug administration. The respondent committed
gross sexual acts with the boy, and Penn took photographs as it had been planned.

Judgment: In this case the accused was charged as guilty because he was not intoxicated
enough not to have formed the required intent, even though the intoxication is of an involuntary
nature.

Reasoning: The first ground of defence that was adopted was that the accused lacked the
required moral element, because the law provides that even though an act is intentional, the
intent rises out of circumstances, which are beyond the control of the accused. When he is not
 Chanderprabhu Jain College of Higher
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to be blamed the necessary mens rea is not present. However, this is a lacuna in the law
because it has been strongly
An condemned.
ISO 9001:2008 Certified Quality Institute

The more sensible approach

(Recognized by isGovt.
that of
crime
NCTconsists
of Delhi,ofAffiliated
an act ortoanGGS
omission.
Indraprastha
University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
In this case, such conduct An
wasISOpresent; henceCertified
9001:2008 the argument
QualityofInstitute
absence of moral fault cannot
be considered. The second defence, which was adopted by the accused, was that since the
(Recognized
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of an involuntary of NCT
nature, heofcould
Delhi, Affiliated
not to GGSguilty.
be considered Indraprastha
However, this
University, Delhi)
defence can also be done away with easily because as well because we are already well aware
of the basic intent and specific intent dichotomy. If the Majewski case is considered, then the
crux of the matter would be that if an individual is intoxicated to such an extent that he is unable
to form the intent required for the crime then he will be acquitted. Alternatively, if he is fully
capable of forming the required intent then he cannot even appeal that he was intoxication as a
defence.

If a new line of defence was to be recognized, it will add a lot of discrepancies to the existing
law. The defence maybe eventually able to come to terms with the practical conditions, but that
will take a long period of time and a lot of understanding as well as amendments. Though it is
very necessary for the law to adapt itself to the social conditions, yet it is also necessary that it
does not lose its realism and deprive the common man of justice.

The Dutch Courage Rule

As we are already well aware, alcohol has already been associated with crimes of the most
heinous nature. Men consume alcohol not only to get an artificial high, but also to get what is
popularly known as a ‘kick’, or to go on a ‘trip’ of their own. A lot of times men resort to alcohol due to
depression, or when somebody has hurt his or her frail egos. When an individual is depressed
or nervous he takes alcohol either to soothe his nerves, or he does so to escape from reality
into a world of oblivion where he can escape from his pain or a problem that is causing him
depression. In that state of mind he is far from reality and he imagines himself dealing with his
problem very bravely and overcoming it. This kind of drinking puts an individual into a stupor.
There is also a third category of drinkers that needs to be considered. Sometimes an individual
takes to drink to provide him with courage. Drinking causes an individual to become aggressive
and lose his sense of self-restraint. It deprives him of his sense of reason to such an extent that
he may not even realize that what he is doing is against the law. He may plan or decide what he
has to do before he starts drinking, and he may use the drink to provide him with the ‘Dutch
courage’ to commit the deed.

Ac For Northern Ireland v Gallagher

 Chanderprabhu Jain College of Higher
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Facts: The accused had a Angrievance against his
ISO 9001:2008 wife. She
Certified hadInstitute
Quality obtained a maintenance order
against him and she had got him detained in a mental hospital. The husband decided to kill his
(Recognized
wife, and hence by Govt.
having made up hisofmind,
NCTheof purchased
Delhi, Affiliated to GGS
a knife and aIndraprastha
bottle of whiskey to
University, Delhi)
acquire the courage to commit the deed or to be able to put his conscience to rest after the
deed had been committed. He committed the deed and consumed much of the whiskey,
before or after the commission is yet to be ascertained.

Judgment: The accused was held to be guilty as charged because he had formed the
intention before getting intoxicated.

Reasoning: In this case, two conflicting opinions have been expressed, one by the chief justice
and the other one by the M’Naghten rules. The object of the Chief Justice was to emphasize on the
state of mind of the accused before the consumption of the whiskey, which in this case clearly
shows that he possessed the required mens rea for he had made up his mind to kill his wife. But
according to the

M’Naghten rules, the crucial time for the judging of the intent is the time of the commission of the
act.

In this case a further complication is created due the accused being a psychopath. This does
not mean that he can avail himself of the defence of insanity, but it can be possible that alcohol
has the effect of triggering off the disease. The most important discerning feature of this case
is that the accused had already made up his mind to kill his wife, even before he had even
touched alcohol. This is far worse than the situation of a man who forms the necessary intent
after getting drunk. A brief summary of the general law and its exceptions can be provided as
follows:

The illustration of the general principle of how drunkenness produces a defect of reason is:

Drunkenness may impair a man’s senses to think clearly to such an extent that he will not even be
aware of the consequences of his actions. He cannot use this as a defense because by now
everyone is very well aware of the effect of alcohol and the fact that too much of alcohol is
dangerous

2) He may lose his ability to distinguish between what is morally right or wrong.
 Chanderprabhu Jain College of Higher
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An ISO 9001:2008 Certified Quality Institute
There are two(Recognized
prevalent exceptions to NCT
by Govt. of the general rule:
of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
If a man is charged with a An
crime
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of manslaughter.
University, Delhi)

Is a man brings on a disease of the mind due to drinking, such as delirium; he can be
excused from liability. Sometimes due to heavy drinking individual contracts some form of
disease and even in this case he can be excused from liability.

In this case, none of the above stated exceptions can be applied because the accused had
already formed his intention and merely used alcohol as a means to give him enough courage
to commit the deed. Merely because the man is a psychopath, he cannot be excused from
liability. The facts have made the situation in this case very clear. The man formed the intent
to kill his wife when he was perfectly sober, and he cannot use alcohol as a pretext or
defence. It was self induced and purposely consumed, especially to summon the necessary
aggression and courage required to commit the deed.

The Indian Perspective

As is well known, the Indian Penal Code is the foundation for the criminal law in India, and
Section 85 and 86 deal with intoxication.

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 the law: provided that the thing that intoxicated him was
administered to him without his will or against his knowledge.

To further elucidate, a person who is under the influence of intoxicating substances cannot be
charged of a crime if he was:

Incapable of knowing the nature of the act.

 Chanderprabhu Jain College of Higher
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That he was doing something

(Recognized in conflict
by Govt. of NCTwithofthe lawsAffiliated
Delhi, of his country.
to GGS Indraprastha
University, Delhi)

The important clause to be considered in this section of our penal code is that the intoxicating
substance must be administered against the will of the individual

Voluntary drunkenness, under normal circumstances, cannot serve as an excuse for the
commission of a crime13. However, drunkenness does not make the accused worse, because it
does not worsen the nature of the crime committed. Drunkenness can be compared to a
situation of madness for which the madman is to blame14. Though the accused is not able to
exercise restraint, which he would have under the normal circumstances, he cannot be excused
from his act.

In England as well, voluntary intoxication is not a very strong defence.

Nevertheless, voluntary drunkenness can protect an individual in two cases:

There are some crimes which demand the explicit requirement of a specific intent. In such
cases, when the accused has had so much to drink that he is unable to form the necessary
intent, then he cannot be blamed for the commission of the crime. The punishment of the
accused can be reduced due to this defence from murder to culpable homicide not amounting
to murder. We are all well aware of the effects of alcohol on the human mind. Since time
immemorial, alcohol has been associated with crimes of the worst possible kind, and we are all
familiar with the deranged state of an alcoholic. A case can be cited at this instance. In a case
of wife burning, the accused had consumed alcohol, and after having a tiff with his wife, had set
her on fire after pouring kerosene on her. She had resisted the flames, and had tried to run
away, upon which he had grabbed her and set her aflame again. The way the law deals with
any criminal situation depends on the facts of a particular case, and here the facts prove that
the husband was not intoxicated enough to be unaware of what he was doing and the fact that
he pulled the wife back and doused her with kerosene proves this. Hence in this case the
accused was convicted for murder.15
 Chanderprabhu Jain College of Higher
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In some instances the mind AnofISO
the 9001:2008
individual becomes
Certified diseased due to drinking, and the
Quality Institute
disease is to such an extent that he becomes incapable of taking responsibility for his own
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
acts or even thinking
University, Delhi)
clearly for that matter. The principle rests in the M’Naughton rules that were relied upon in such a case.
A common example of a mental state caused due to excessive drinking is ‘delirium tremens’. If
a man gets drunk due to the tricks or fraud of another person, he will be excused.

The Penal code has cited two English cases to elucidate the point. The first one is the famous
case of DPP v Beard, in which the accused ravished a girl who was thirteen years of age. While
raping her, he got so carried away that he placed his hand on her throat and the other one on
her mouth resulting in death due to suffocation. The defence given was that the accused was
that the accused was so drunk that he was unable to comprehend the severity of his act. The
accused was convicted for murder, for the act due to which she died, suffocation, was very
different and independent from the act of rape.

Section 86: In cases where an act done is not an offence unless done with a particular
knowledge or intent, a person who does the act in a state of intoxication shall be liable to be
dealt with as if he had the same knowledge as he would have had if he had not been
intoxicated, unless the thing which intoxicated him was administered to him without his
knowledge or against his will.

There is always certain guilty knowledge or intention, which forms part of the definition of many
offences; this section deals specially to find solutions for such cases. A person who is
intoxicated is considered to have the same level of knowledge as a person who is sober. Cases
have to be differently judged because some focus on the intent of the individual while others
focus on the knowledge that the individual possesses. It must be borne in mind that though an
intoxicated person is credited with the same knowledge as a similar sane person, this
presumption cannot be made for his intent.

Drunkenness does not make a very big difference to the knowledge with which a man is
credited, and a very popular argument based on the above stated notion is that since a person
will have knowledge of his deed, he also has the intention to commit it. However, this does not
 Chanderprabhu Jain College of Higher
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apply to a case where an individual is so drunk that he is unable to from the required intent. In
case of R v Kingston, the case that9001:2008 Certified Quality Institute
An ISO

(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
I have already elucidated, An
theISO
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University, Delhi)

So far as the question of knowledge is concerned, the court must adopt the same stand as
given to a normal human being, but the question of intent adds complications. Thus, in a case
where the accused slit the abdomen of his friend, he was excluded from liability due to section
86 of the Indian Penal Code, simply because he was not able to form the necessary intent.

Basudev v. State of Pepsu

A retired military officer was charged with the murder of a young boy of 15 or 16. Both of them
and others of the same village attended a marriage party. All of them went to the house of the
bride to attend the mid-day meal. Some had settled down in their seats and some had not. A
military who was very drunk and intoxicated, asked the young boy to step aside a little so that
he may occupy a convenient seat. But, when he did not move, the military officer whipped out a
pistol and shot him in the abdomen. The injury proved fatal. The evidence showed that the
accused sometimes staggered and sometimes was incoherent in his talk. But it was shown that
he was capable of moving himself independently and was capable of talking coherently as well.
The evidence proved that he came on his own to the house of the bride and that he made the
choice of his own seat after injuring the deceased, he attempted to get away and was secured a
short distance from the scene. When he was secured, he realized what he had done and asked
for forgiveness. All these facts, according to the SC, go to prove that there was no proved
incapacity on the accused to form the intention to cause bodily harm sufficient in the ordinary
course of the nature to cause death. In view of his failure tom prove such incapacity, the law
presumed that he intended the natural and probable consequences of his act. In other words,
he intended to inflict bodily injuries on the deceased and the bodily injuries so intended to be
inflicted, was sufficient in the ordinary course of nature to cause death. The accused was found
guilty of murder.

Mavari Surya Sathya Narayan v. State of AP

The accused and the deceased were married for 11 years. He was an alcoholic and quarreled
often with her. One day he came home drunk and asked her to sign on some blank papers.
 Chanderprabhu Jain College of Higher
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When she refused, he pulled her by her hair and dragged her into the room and attempted to
set fire on her. The deceased put 9001:2008 Certified Quality Institute
An ISO

(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
out the flames and tried toAnrunISO
away. The accused
9001:2008 again
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fire to her. The deceased died of the burns. The Andhra Pradesh High Court, relying on the SC
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accused was in total loss of mental power and hence the provisions of s.85 will not apply.

Venkappa Kannappa Chowdhari v. State of Karnataka

The accused, quarrelsome by nature, was addicted to liquor. The son of the accused died in a
motor accident. The accused wanted the compensation amount of 10000, which was in the
name of the accused’s wife. On the day of the decision, he came home drunk and asked his wife to
withdraw the fixed deposit amount. When his wife refused to comply, he beat her, took a tin of
kerosene oil, sprinkled it on her and set her on fire. His wife screamed and the neighbors took
her to the hospital. A dying declaration was recorded. The accused took the plea of incapacity
due to intoxication u/s 85 IPC. His plea was rejected because he had voluntarily consumed
alcohol. He was convicted and sentenced to life imprisonment.

Conclusion

After much research on the topic, it can be said that intoxication is not a very strong defence,
and even if it serves to mitigate the severity of a punishment, it cannot exculpate a person
from liability. This is essential because absolute and cold logic cannot be applied to human
affairs, as they require certain flexibility in their dealing. A common man will not have much
regard for the law if a drunken man batters him, and the man gets away with his conduct
merely because he was too intoxicated to think clearly.

In India as well, the law that has been followed till date has its foundation in the British law. The
first categorical difference is that in case of British law, the defence of intoxication is not codified
under any specific section, while under the Indian law it has been clearly codified in sections
eighty-five and eighty- six of the Indian Penal Code.
 Chanderprabhu Jain College of Higher
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School of Law
In Indian law, the clause that
An the
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of British law. The severity of
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the punishment an individual can be given is reduced due to this.

In Indian law as well this exception is applicable, as well as an exception in case the individual’s
mind is diseased. This portion of our law is very similar to the British law; as a matter of fact the
cases that have been cited as authority are also British.

The second factor that can be considered in the case is that in the Indian criminal law, the
difference has been made very clear between the intention and knowledge of an individual.
Even in British law, the specific intent and the basic intent dichotomy has been elaborated, but
they have not given an exclusive difference between the knowledge and intent.

The English law has evolved over a series of cases and it has come a long way from the rigid
law that it was earlier. In the early nineteenth century, alcohol would never have been able to
serve as a defence. Rather it would have had a reverse effect and this shows us how much
the law has progressed in this aspect over a period of time.

Introduction

What is the necessity defense exactly and how and under what circumstances might
it work in law of tort? As in the case of Baender v Barnett a fire broke out in a
maximum security prison, and the prisoners, threatened by death, break out of their
cells. Surely they are not guilty of the crime of escape? Here’s a situation where most
of us would agree that necessity could be a defense and that the prisoners who
broke out of their cells “out of necessity” ought not to be convicted for
escape[1]. The defense of necessity recognizes that there may be situations of such
overwhelming urgency that a person must be allowed to respond by breaking the
law. Necessity is based on maxim salus populi suprema lex, i.e. ‘the welfare of the
 Chanderprabhu Jain College of Higher
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people is the supreme law’. Necessity typically involves a defendant arguing that he
An ISO 9001:2008 Certified Quality Institute
committed the crime in order to avoid a greater evil created by natural forces.
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
 Chanderprabhu Jain College of Higher
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School of Law
An ISO
Necessity as a justification 9001:2008or
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is found not(Recognized
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the defense against the torts of trespass to chattels,
University, Delhi) trespass to land or conversion.
The early trial which took place was Regina v. Dudley and Stephens (1884) 14 QBD
273 DC[2].

Meaning and Definition

Necessity as a defense is defined under section 81 in Indian Penal Code as:

“Act likely to cause harm, but done without criminal intent, and to prevent other
harm.—Nothing is an offence merely by reason of its being done with the knowledge
that it is likely to cause harm, if it be done without any criminal intention to cause
harm, and in good faith for the purpose of preventing or avoiding other harm to
person or property.”

Factors affecting necessity

Affirmative defense

A defendant typically invokes the defense

Against intentional torts of trespass to chattels, , trespass to land or conversion.

With the necessity defense there will always be a prima facie violation of the

law.

A tort is a civil wrong for which unliquidated damages have to be compensated by

the defendant even if he did in case of necessity. The defense of necessity is only
applicable when the defendant is able to justify his unlawful acts. It seems to be
 Chanderprabhu Jain College of Higher
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generally assumed that, if the defense of necessity succeeds, that is the end of the
An ISO 9001:2008 Certified Quality Institute
matter.
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
To present the defense at trial, defendants must need to meet the burden of
provision of the four elements:

They were forced with a choice of evils and choose the lesser evil.
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They acted to prevent imminent harm Certified Quality Institute
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University, Delhi)
They reasonably anticipated a direct casual relationship between their conduct and
the harm to be averted.

And, they had no legal alternatives to violating the law.[3]

These elements suggests that defense to the liability for unlawful activity where the
conduct cannot be avoided and one is justified in the particular conduct because it
will prevent the occurrence of a harm that is more serious.

Historically the principle has been seen to be restricted to two groups of cases, which
have been called cases of public necessity and cases of private necessity. The act of
plaintiff distinguishes the necessity of defense with other defenses. But the better
view is that necessity should be used by defendants who rationally chose an illegal
course of action that is the lesser of two evils.

Types of necessity

Public Necessity

Public necessity pertains to action taken by public authorities or private individuals

to avert a public calamity. The action consists in destroying or appropriating
another’s property.[4] The classic example of public necessity is the destruction of
private property to prevent the spread of fire [5]or disease [6]and hence to avert an
injury to the public at large. Public necessity is in operational where the police
trespass on damage. Private property in order to apprehend a criminal suspect or
gain access to the site of an emergency[7]. The principle behind public necessity is
that the law regards the welfare of the public as superior to the interest of
individuals and when there is a conflict between the latter must give way[8]. Public
necessity serves as an absolute defense. The first case which was filled with
reference to public necessity was Surocco v Geary.[9]
 Chanderprabhu Jain College of Higher
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With this illustration public
An ISOnecessity
9001:2008isCertified
being defined. “A ship which had run into
Quality Institute
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the discharge
Delhi)of the oil was necessary to save the
crew, and not only the ship, it was accepted that the defense of necessity applied.
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Private Necessity An ISO 9001:2008 Certified Quality Institute

(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

Private University,
necessity arises from self interest Delhi)than from a community
rather at large. It
takes place when the defendant wants to protect his own interest. It does not serve
as an absolute defense unlike in the case of public necessity. Private necessity can be
explained with the following example. If defendant entered upon his neighbor’s land
without his consent, in order to prevent the spread of fire into his own land. The
principle applied for private necessity is “necessitas inducit privilegium quod jura
private”, meaning ‘Necessity induces a privilege because of a private right’. This
maxim makes it clear that private defense its more kind of a privilege enjoyed by
many person. The earliest case of private defense was Vincent v. Lake Erie Transp.
Co.

There is, however, a third group of case, which is also properly described as founded
upon the principle of necessity and which is more pertinent. These cases are
concerned with action taken as a matter of necessity to assist another person
without his consent. To give a simple example, a man who seizes another and
forcibly drags him from the path of an oncoming vehicle, thereby saving him from
injury or even death, commits no wrong.

These are concerned not only with the preservation of the life or health of the
assisted person, but also with the preservation of his property (sometimes an animal,
sometimes an ordinary chattel) and even with certain conduct on his behalf in the
administration of his affairs.”

Importance of Necessity

Necessity incorporates flexibility into laws that would have been lead to unjust
results (that is, punishment of desirable conduct) if applied mechanically[10]. The
defence of necessity applies to situations where torture is morally justified. Like in
the case of a prisoner who breaks the prison and runs away because he was mentally
 Chanderprabhu Jain College of Higher
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and physically tortured by the prison authorities. Necessity provides relief in
An ISO 9001:2008 Certified Quality Institute
situation pertaining to this. Necessity” defense has the effect of allowing one who
acts under the circumstances
(Recognized by Govt.of
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necessity defense should be thought University,
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moral provision for mala in se offenses.
Mala in se offenses generally protect against harms to others, and to the extent that
the necessity defense
 Chanderprabhu Jain College of Higher
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School of Law
An ISO
defines situations in which 9001:2008
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others. TheInstitute
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others. University, Delhi)

Limiting the Necessity Defense

Necessity defense restricts the ways in which private citizens may use force that
harms another’s interest, the limited scope of the necessity defense is one of many
tools that help sustain the state’s monopoly on legitimate violence exists to
empower individuals where individuals are supposed to be powerless; it cannot be
used to confer powers on the state as well. Most importantly it entirely depends
appropriately for a government body to examine what is allowed under the necessity
defense and seek guidance as to what it is allowed to do. After all, the government’s
power is greater than what is allowed to private individuals under the necessity
defense, and the greater state’s monopoly on violence must necessarily include the
lesser individual’s use of violence. The necessity defense can be asserted only when
compatible with the particular federal crime at issue[11].

How necessity defense looked up by courts?

If a court determined that a given offense was regulatory in nature, the statute
authorizes a necessity defense. If none were present, the defense would not be
allowed[12]. The necessity defense, by its nature, challenges and undermines that
the given situation needed to choose from the two evils. It carries the implication
that violation of a given rule is positively desirable, thus turning it in to a standard.
Common law necessity requires that the harm be truly imminent. The allowing
defendants to use the necessity defense in regulatory cases will tend to distract
courts from the employment of other common law defenses. The cases where courts
have expressly ruled on the necessity defense’s availability, either on the facts or as a
matter of law, can be roughly divided into three main categories: a court may (1)
grant a jury instruction on necessity and allow the defendant to present evidence
concerning it; (2) find the defense incompatible with the offense involved; or (3) find
 Chanderprabhu Jain College of Higher
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that the defendant failed to meet his burden of production on at least one element
An ISO 9001:2008 Certified Quality Institute
of the defense.
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
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Anor
Trespass to Chattels, Land ISO 9001:2008 Certified Quality Institute
conversion
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
With the necessity defense there will always be a prima facie violation of the law.
The violation will consist of trespass, conversion or other kinds of infringement of
property rights. Under the necessity doctrine, there is a weighing of interests: the act
of invasion of another’s property is justified under the necessity doctrine only if done
to protect or advance some private or public interest of a value greater than, or at
least equal to, that of the interest invaded. A major issue associated with both
private and public necessity is whether compensation is owed to the aggrieved party
whose property is damaged, appropriated or destroyed. There is a general sense in
the doctrine of necessity that one has the qualified privilege to intentionally trespass
onto the land of another in order to prevent serious harm to oneself, to one’s own
land, to one’s chattels, or to the person, land, or chattels of another. However,
compensation must ordinarily be paid for any harm done in the process. The
Comment to this section states that when necessary to prevent serious harm, a
person is privileged “to break and enter or to destroy a fence or other enclosure and
indeed a building, including a dwelling only when the defendant’s action are
reasonable.

Conclusion

The conclusion that one can reach is that necessity considers circumstantial morality
and provides one to be saved from his circumstantial offence. Necessity else than
been a new defence is also an evolving concept, which one can see through the
Vincent case and as well as R v. Dudley and Stephens case, which cleared some
essentials regarding it. The way it will evolve will depend on, how the judiciary
interprets it in future cases. There is no doubt that, it has attracted some critical
criticism and which also do make some sense as it was in obiter dicta in R v. Dudley
and Stephens, where it was said not every necessity can be ground for necessity
otherwise, there will be utter chaos and nothing else, this inference of the judge
seems very true.
 Chanderprabhu Jain College of Higher
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Edited by Neerja Gurnani
An ISO 9001:2008 Certified Quality Institute

(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha

[1] University, Delhi)
Baender v Barnett, 255 US 224 (1921).

[2] Regina v. Dudley and stephens (1884) 14 QBD 273 DC[2].

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An ISO
[3] Schoon, 971 F2d at 195, 9001:2008
citing UnitedCertified
States vQuality Institute
Aguilar, 883 F2d 662, 693 (9th Cir
1989). (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha
University, Delhi)
[4] BLACK’S LAW DICTIONARY 1059 (8th ed. 2004) (defining public necessity); see
also

Surocco v. Geary, 3 Cal. 69 (Cal. 1853)

[5] RESTATEMENT (SECOND) OF TORTS § 204 (Entry to Arrest for Criminal Offense),
RESTATEMENT (SECOND) OF TORTS § 196 (Public Necessity).

[6] Surocco, 3 Cal. at 71; Conwell v. Emrie, 2 Ind. 35, 35 (1850); Field v. City of Des
Moines, 39 Ia. 575, 575 (1874)

[7] . Seavy v. Preble, 64 Me. l20 (l874).

[8] United States v. Schoon, 971 F.2d 193, 196

[9] (1853) (1853), 3 Cal 69, 58 Am Dec 385 (Cal SC)

[10] Alan M. Dershowitz, Is It Necessary to Apply “Physical Pressure”

[11] Oakland Cannabis, 532 US at 491 (“The [necessity] defense cannot succeed
when the legislature itself has made a ‘determination of values.’”).

[12] United States v Oakland Cannabis Buyers’ Cooperative

Accident-Exception in Indian Penal Code

Sec. 80. Accident in doing a lawful act:

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

criminal intention or knowledge in the doing of a lawful act in a lawful manner
by lawful means and with proper care and caution.
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A. Object: An ISO 9001:2008 Certified Quality Institute

Sec. 80 provides exemption

(Recognized by Govt.from criminal
of NCT of Delhi,liability
Affiliatedto
toan
GGSactIndraprastha
done by accident
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of misfortune and without any criminal Delhi) or knowledge in the doing of a
intention
lawful act in a lawful manner by lawful means and with proper care and
attention.

B. State Government of M.P. vs. Rangaswamy (AIR 1952 Nag. 268):

A Heyna, wild animal was moving in the villages and causing injuries and
deaths to small children. The people frightened with it. They complained to the
authorities. The Government deputed certain officers.

While they were wandering in the forests in search of Heyna, they saw a
moving animal behind the bushes. It was a rainy day and the vision was not
clear.

The officers thought that it was the Heyna. It was common that no people
would be moving in that area and in particularly in that rainy time. The
accused, one of the officers, fired at the moving object. The result was that the
death of a human being. The Madhya Pradesh High Court held that the
accused was protected under Sec. 80.

C. State of Orissa vs. Khoraghasi (1978 CrLJ 105 Ori.)

The accused was a tribal. He went into the forest to hunt the animals. He shot
an arrow with a bona fide intention that he aimed at an animal. But the arrow
caused the death of a human being. The Orissa Divisional Bench of the High
Court acquitted the accused under Sec. 80.

D. Bhupendrasinha A. Chudasama vs. State of Gujarat (SC 1998 SCC

603)
Brief Facts: The accused and the deceased were police constable and head-
constable. They were posted to protect a dam site. The accused killed his
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colleague in the nightAnbyISO 9001:2008
firing Certified
at a close rangeQuality Institute
without knowing the identity of
his target. The accused
(Recognized by pleaded theofdefence
Govt. of NCT of Sec.
Delhi, Affiliated 80. The
to GGS trial Court
Indraprastha
convicted him under Section 302.University, Delhi)

On appeal, the Supreme Court confirmed the conviction under Section 302,
and held that the accused acted without proper care and caution, and that the
act of accused could not come under an accident or misfortune or it was not a
lawful act.
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(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

Class : 4th semester

Paper Code 205

Subject :IPC

Unit 3

INTRODUCTION

Criminal Intention is the highest form of blameworthiness of mind or mens rea.

Intention occupies a symbolic place in criminal law. As the highest form of mental
element it applies to murder and the gravest form of crimes in criminal justice
system. The term ‘intention’ is not defined in Indian Penal Code but section 34 of
IPC deals with common intention. The intention made among several person to do
something wrong and act done in that manner in which it was formulated comes
under sanction of section 34 of IPC. Section 34 deals with a situation, where an
offence requires a particular criminal intention or knowledge and is committed by
several persons. Each of them who join the act with such knowledge or intention is
liable in the same way as if it were done by him alone with that intention or
knowledge. The liability of individuals under this circumstance is called Joint
Liability. The principle of Joint Liability defined in section 34 is as follows:

Section 34. Acts done by several persons in furtherance of common intention –

When a criminal act is done by several persons in furtherance of common
intention of all, each of such persons is liable for that act in the same manner as if
it were done by him alone.

In this article the act is referred, which is defined under article 33 as:
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Section(Recognized
33. ‘Act’, by
‘Omission’.
Govt. of NCT of–Delhi,
the word ‘act’
Affiliated denotes
to GGS as well
Indraprastha a seriesDelhi)
University, of acts as a
single act: the word ‘omission’ denotes as well a series of omissions as a single
omission.

It is clear from s.34 and s.33 that the term criminal act refers to more than a single
act and would cover an entire series of acts.

Section 34 to section 38 in chapter II of IPC dealing with ‘General Explanation’

state the conditions in which a person may be held constructively liable for the acts
committed by the other members of group.

The chapter VIII of Indian Penal Code refers to ‘Offences against the Public
Tranquillity’ from section 141 to section 160. Offences against public tranquillity
also known as ‘Group Offences’ and lead to disturbance of public peace. S.141
defines ‘Unlawful Assembly’ for which there should be five or more persons, and
the object should be common to all. If five or more persons are doing wrong act
with common objective then liability on each person will be same as it is done by
him alone. This liability on each person is called ‘Group Liability’. Section 149 of
IPC imposes group liability on each and every members of assembly and defined
as follows:

Section 149. Every member of unlawful assembly guilty of offence committed in

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

To impose this section under group liability there should be an unlawful assembly,
which is defined under s.141. And the offence should be committed in prosecution
of common object.

COMMON INTENTION
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Common intentionbyimplies
(Recognized a pre
Govt. of NCT arranged
of Delhi, Affiliatedplan and
to GGS acting inUniversity,
Indraprastha concertDelhi)
pursuant to
the plan. Common intention comes into being prior to the commission of the act,
which need not be a long gap. To bring this section into effect a pre-concert is not
necessarily be proved, but it may well develop on the spot as between a number of
persons and could be inferred from facts and circumstances of each case.

In Amrik Singh’s Case[i] it has been further held that though common intention
may develop in course of the fight but there must be clear and unimpeachable
evidence to justify that inference. In the case Pandurang v. State of Hyderabad[ii] ,
Supreme court emphasised on this point that prior concert need not be something
always very much prior to the incident, but could well be something that may
develop on the spot, on the spur of the moment. In this case Ramchander Shelke
(deceased) with his wife’s sister went to the field. While Ramchander went to river
side the five persons including three appellant (Pandurang, Tukia, and Bhilia )
attacked on him. According to eyewitnesses, Pandurang, Tukia and Bhilia were
holding axes and other two accused Tukaram and Nilia had sticks in their hands.
The deceased died on the spot. In this case different eyewitnesses told different
story. The trial court convicted each of accused of charge s.302 with s. 34 and
sentenced to death. Appeal lied in High court and conviction of Pandurang, Tukia,
Bhilia was maintained but other two accused persons sentence was commuted to
transportation for life. When the matter came up to Supreme Court, the learned
judge said that each are liable for their own act. The Apex Court set aside the death
sentence of Pandurang and convicted him instead under s.326, and sentenced for
10 years rigorous imprisonment. The Supreme Court altered the sentence of Tukia
and Bhilia to transportation for life. The Supreme Court elaborated in this case
that:

“In a case like that, each would be individually liable for whatever injury he caused
but none would be vicariously convicted for the acts of any of the others; if the
prosecution cannot prove that his separate blow was a fatal one, he cannot be
convicted of the murder, however clearly an intention to kill could be proved in this
case….”
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The essence of liability

(Recognized by Govt.to be of
of NCT found
Delhi, in existence
Affiliated to GGSof commonUniversity,
Indraprastha intention is that the
Delhi)
criminal act complained against was done by one of the accused persons in
furtherance of common intention of all, if this is shown, then the liability for the
crime may be imposed on any one of the persons in the same manner as if the act
were done by him alone.[iii]

In the case of Mahboob Shah v. Emperor[iv], the appellant Mahboob shah was of
age 19 and was convicted by Session Judge of the charge s.302 with s.34 for the
murder of Allah Dad. The Session court sentenced him for death. The High Court
of Judicature also confirmed the death sentence. On appeal before Lordship, the
conviction for murder and sentence of death was quashed. It was contended before
appellant that – “when Allah Dad and Hamidullah tried to run away, Wali Shah
and Mahboob Shah Came in front of them… and fired shots” and so there was
evidence of forming common intention at the spur of the moment. Their Lordship
was not satisfied upon this view and humbly advised His Majesty that the appellant
having succeeded in his appeal, his appeal should be allowed and his conviction
for murder and the sentence of death set aside.

Common Intention and Similar Intention

Common intention does not mean similar intention of several persons. To

constitute common intention it is necessary that the intention of each one of them
be known to the rest of them and shared by them. This section 34 is only a rule of
evidence and does not create a substantive offence. This section only applies with
other penal sections which deal with the punishment of the offence.

In the case of Dukhmochan Pandey v. State of Bihar[v] , the complainant had sent
about 20 labours to his field for transplanting paddy. On the mid day the accused
party came as a mob of about 200 people armed with various deadly weapons.
They asked labourers to stop the work, and when the complainant objected to this,
the two accused directed the mob to kill labourers. The mob started assaulted the
labourers as a result of this two labours died. When the police party reached, the
mob fled from the spot. The death was established to have caused by injuries
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inflicted(Recognized
by shock by
and haemorrhage
Govt. of NCT of Delhi,caused
Affiliatedby injuries
to GGS inflicted
Indraprastha with sharp
University, Delhi)pointed
weapons.

The Supreme Court in this case held that: “Common intention which developed at
the spur of the moment is different from the similar intention actuated a number
of person at the same time….the distinction between a common intention and
similar intention may be fine, but is nonetheless a real one and if overlooked, may
lead to miscarriage of justice….”

Mere presence of accused together is not sufficient to hold that they shared the
common intention to commit the offence in question. It is necessary that the
intention of each one of ‘several persons’ be known to each other for constituting
common intention.

Inferences

From the various interpretations of Apex Court and guideline given in different
cases, some inferences could be drawn to impose Joint Liability under section 34.
These are –

1. To establish common intention premeditation of minds is necessary. There

should be prior meeting of minds which activated common intention and
criminal act should have been done in furtherance of common intention.
2. There may be situation in which premeditation was not present, but
intention developed at the spur of the time, but it should must been shared
among one another.
3. To prove common intention is a very hard, because it is the mental thinking
of the accused at that point of time. So it has to be culled out from the facts
and circumstances of each case.
4. There is a difference between common intention and similar intention, and
s.34 can be invoked only when the accused shares common intention and not
one the similar intention.
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5. Unless common
(Recognized intention
by Govt. is proved,
of NCT of Delhi, Affiliatedindividual will be liable
to GGS Indraprastha forDelhi)
University, his own act
and not otherwise. They will be deal as under s.38 of IPC. And if there is any
doubt, the benefit of doubt should be given to the accused.

Cases

One of the earliest cases came before the court under s.34 under the principle of
Joint Liability was Barendra Kumar Ghosh v. King Emperor[vi]. This case is also
known as the ‘Post Master Case’. In this case, the accused Barendra with other
three persons went to Shankaritola post office at about 3.30 pm on the 3rd August
1923 armed with firearms. The accused stood outside the post office while others
three entered the post office through the backdoor of office. They asked post
master Amrita Lal Roy to give the money which he was counting. When he
refused, then others three opened fire from the pistol and fled from the place. As a
result of which he died almost immediately. Seeing others running the accused also
ran away by air firing with his pistol. But he was chased and caught by post office
assistant. He was charged with others under s.302 (murder to post master) and
s.394 (causing hurt in doing robbery) with s.34 in common intention of all. He
contended that he was only standing guard outside the post office and he did not
have the intention to kill the post master. Calcutta High Court confirmed his
conviction of murder under s.302 with s.34. In the appeal before the Privy
Council, Lord Sumner dismissed the appeal against the conviction and held that –
“criminal acts means that unity of criminal behaviour which results in something
for which an individual would be responsible, if it were all done by himself alone,
that is, in criminal offence.”

The other important case came before the Supreme Court was Rangaswami v. State
of Tamil Nadu[vii]. The occurrence took place at about 11.45 pm on 16.08.1973 in
Big Bazar Street, in which one Jayaram was murdered. In this case session court
convicted A-1 under s. 302 and sentenced him to death. A-2 and A-3 were charged
under s. 307 with s.34, and sentenced rigorous imprisonment of 8 years by session
judge. While High Court considering the fact altered the decision of session court
and enhanced the sentence of A-2 and A-3 to imprisonment for life under s. 302
with s.34. And the death sentence of A-1 was modified for imprisonment for life.
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Against(Recognized
this conviction A-3
by Govt. appealed
of NCT in Supreme
of Delhi, Affiliated to GGSCourt and contended
Indraprastha that he was
University, Delhi)
only in friendly relation with A-1 and A-2 but he did not shared common intention
with them. It was by mere chance that he appeared at the spot of occurrence and he
did not participated in offence. In this case, there was a prior enmity between
deceased and A-1 and A-2, because the deceased was accused of murdering the
brother of A-1, and he was actually on the bail. Supreme Court held that even
though the presence of A-3 was established but he did not share common intention
and he was unfamiliar with the plan. Therefore he was acquitted all of the charges.

The other case before Supreme Court was Muthu Naicker and others v. State of
Tamil Nadu[viii]. The dispute arose among the village community of Karpakkam
village when accused no. A-11 Kuppu Naicker who has a well in land bearing
Survey No. 102, wanted to lay a pipe-line to take water to the field bearing No.
186/2 belonging to his wife, Dhanammal. There was another well sunk by the local
Panchayat in Survey No. 170 for the use of the village community and when A-11
wanted to take water from his well in Survey No. 102, an apprehension was
entertained by the residents of the village that there would not be enough water in
the well in Survey No. 170 and there would be water shortage. Gripped by this
apprehension, a majority of the village community resisted the attempt of A-11 to
take water by laying pipelines. Some villagers approached to collector on March 6,
1967, the collector suspended the permission granted to A-11 to lay the pipe lines.
A-11 and his companions ignored the order of collector and continued the digging
of channel. The matter arose on 27 November 1968 at around 2.30 pm when
deceased Gajarajan brother of P.W. 31 was returning from Madras by bus, a crowd
of 50-60 persons including A-1 to A-23 and A-28 attempted to waylay the
deceased. Deceased tried to escape but was chased by them and encircled by the
crowd near a well and was attacked. After completing the investigation police
submitted challan against 28 accused for various offences. The learned session
judge giving the benefit of reasonable doubt, rejected the prosecution case and
acquitted all the accused. The state of Tamil Nadu preferred an appeal in High
Court of Madras against A-1 to A-27. While the acquittal of A-28 was considered
as final. The High Court convicted A-1 to A-7 and A-19 for charge under S.302
with S.34 and sentenced them for life imprisonment. They preferred criminal
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appeal in SupremebyCourt.
(Recognized Govt. ofThe
NCTconviction of accused
of Delhi, Affiliated A-1, A-2,University,
to GGS Indraprastha A-4, A-5 under
Delhi)
S.302 with S.34 was confirmed and sentenced to life imprisonment. While
conviction of A-3, A-6, A-7, A-19 under this charge of S.302 was set aside and
were charged with others under Hurt and Grievous Hurt differently. Supreme
Court held that in a local community when something unusual occurs, a good
number of people appear on the scene not with a view to participate in occurrence
but as a curious spectators. In such event mere presence in unlawful assembly
should not be treated that person concerned was a member of unlawful assembly.

COMMON OBJECT

The offence dealing with Group Liability or Vicarious Liability of members comes
under Chapter VIII of the Indian Penal Code. This chapter deals with offences
against Public Tranquillity from s.141 to s.160. The first section of this chapter
s.141 defines Unlawful Assembly, for which there should be five or more persons
and some common objects for which they have made that assembly. The section
141 is:

Section 141. Unlawful assembly —

An assembly of five or more persons is designated an “unlawful assembly“, if the

common object of the persons composing that assembly is—

First – To overawe by criminal force, or show of criminal force, the Central or any
State Government or Parliament or the Legislature of any State, or any public
servant in the exercise of the lawful power of such public servant; or

Second – To resist the execution of any law, or of any legal process; or

Third – To commit any mischief or criminal trespass, or other offence; or

Fourth – By means of criminal force, or show of criminal force, to any person, to

take or obtain possession of any property, or to deprive any person of the
enjoyment of a right of way, or of the use of water or other incorporeal right of
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which he is in possession
(Recognized by Govt. ofor
NCTenjoyment, or toto enforce
of Delhi, Affiliated any right
GGS Indraprastha or supposed
University, Delhi) right;
or

Fifth – By means of criminal force, or show of criminal force, to compel any

person to do what he is not legally bound to do, or to omit to do what he is legally
entitled to do.

Explanation – An assembly which was not unlawful when it assembled, may

subsequently become an unlawful assembly.

From this section we can say that, to constitute an unlawful assembly the following
ingredients is necessary –

1. There should be an assembly of five or more persons.

2. There must be a common object for them.
3. Common object must be one of the five ingredients, specified in the above
section.

When the number of the persons reduces from five for trial for the reason that
some were acquitted for the charges then the s. 141 will become inapplicable. But
if there is clear indication that some other unidentified persons are involved in the
crime then this section can be applied. In Ram Bilas Singh v. State of Bihar[ix],
Supreme Court held that:

“it is competent to a court to come to the conclusion that there was an unlawful
assembly of five or more persons, even if less than that number have been
convicted by it if: (i) the charge states that apart from the persons named, several
other unidentified persons were also members of the unlawful assembly whose
common object was to commit an unlawful act …..(ii) or that the first information
report and evidence shows such to be the case even though the charge does not
states so. (iii) or that though the charge and prosecution witnesses named only the
acquitted and the convicted accused persons there is other evidence which
discloses the existence of named or other persons”
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The other ingredient

(Recognized of this
by Govt. section
of NCT of Delhi,isAffiliated
common object.
to GGS ObjectUniversity,
Indraprastha means Delhi)
the purpose,
and it will be common when it is shared by the members of the unlawful assembly.
Common object may be formed at any stage by all or few members of the
assembly. The explanation of this section shows it clearly. However common
object is entertained in the human mind so there can be no evidence to prove
directly about this. It is a question of the fact and can be culled out on the basis of
facts and circumstances of each case. It can be determined from the nature of the
assembly, the kinds of arms and their uses by it, behaviour and the language of the
members of the assembly used before and after the incident. If only four out of the
five assembled person have common object and not fifth, then that assembly is not
an unlawful assembly. Simple onlooker or family of the parties cannot become the
member of unlawful assembly unless they actively participated or encouraged the
violence.

In Moti Das v. Bihar[x], Supreme Court held that pre-concert is not necessary. An
assembly may be lawful in beginning but may turn into unlawful later.

Being a member of Unlawful assembly is itself a crime and s.143 prescribes the
punishment of six months, or fine, or both for being a member of that assembly.

The section which imposes the liability on each person of the offence committed
by the members of the assembly is section 149 of IPC. The section 149 of IPC is:

Section 149. Every member of unlawful assembly guilty of offence committed in

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

In Bhudeo Mandal v. State of Bihar[xi], the Apex Court held that before
convicting any person with the aid of s.149, the evidence must clearly establish not
only the common object, but also show that the common object was unlawful. In
Ram Dhani v. State[xii], there was a dispute over land and the complainant party
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resorted(Recognized
to cuttingby
crop
Govt.grown byDelhi,
of NCT of the Affiliated
accusedto party. The laterUniversity,
GGS Indraprastha were more than five
Delhi)
in number and assembled to prevent the cutting. The court held that – the persons
acting in self defence of the property cannot be members of an unlawful assembly.
And so they could not be said to form an unlawful assembly.

The word ‘knew’ is used in second part of the s. 149, which implies more than
possibility but less than might have known. An offence committed in prosecution
of common object would generally be offence which the members of the assembly
knew was likely to be committed[xiii]. This phrase means that the offence
committed was immediately connected with the common object of the unlawful
assembly, of which the accused were members. The word ‘in prosecution of
common object’ means that the offence committed was immediately connected
with the common object of the assembly or in order to attain common object.

Cases

In Rambilas Singh and others v. State of Bihar[xiv], the case of prosecution was
that deceased Kumar Gopal Singh found A-2, A-16 and a female relation of them
plucking Khesari crops from his field. And so he abused them and snatched away
the plucked plants and their baskets. In retaliation for it the 16 accused persons had
lay in wait for him on that night and attacked him at about 9.30 P.M. when he was
returning home with his brother PW-22 and two other witnesses PWs 1 and 18
after attending a barat. PW-22 stated that 16 persons surrounded Kumar Gopal
Singh and then Dinesh Singh inflicted a stab injury on the neck of Kumar Gopal
Singh as a result of which he died. The Session Judge acquitted all the persons A-1
to A-15 who were charged under s.302 with s.149, but convicted A-16 (Dinesh
Singh) who was charged directly under s.302. In High Court A-1 and A-9 were
acquitted while A-2 and A-6 died during pendency of the appeal. The High Court
convicted the rest of the accused A-3, A-4, A-5, A-7, A-8, A-10 to A-15. On
appeal further Supreme Court set aside the conviction of accused by High Court
under s.302 with s.149 and held that in order to convict persons vicariously under
Section 34 or Section 149 IPC, it is not necessary to prove that each and every one
of them had indulged in overt acts. Even so, there must be material to show that the
overt act or acts of one or more of the accused was or were done in furtherance of
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the common intention

(Recognized of of
by Govt. allNCT
theofaccused or intoprosecution
Delhi, Affiliated of the
GGS Indraprastha common
University, object of
Delhi)
the members of the unlawful assembly. In this case, such evidence is lacking and
hence the appellants cannot be held liable for the individual act of Dinesh Singh.

In another case of Ram Bilas Singh v. State of Bihar[xv], court held that an
accused person cannot be held liable vicariously for the act of an acquitted person.

DIFFERENCE BETWEEN COMMON INTENTION AND COMMON OBJECT

Both the section 34 and s.149 imposes vicarious liability on each person for acts
not necessarily done by them. However there is a difference in the scope and
nature of operation of the two offences. The charge of s.149 is substituted by s.34
of IPC, especially when some accused are acquitted and number of the accused
falls below five. In this case the court would have to carefully examine the
evidence to see whether some element of common intention exists for which he
can be made liable under s.34. The main differences between the two sections are
as follows:

 Section 34 does not create any specific offence but only lays down the
principle of joint criminal liability. Whereas s.149 creates specific offence
and being a member of an unlawful assembly is itself a crime, which is
punishable under s.143.

 ‘Common intention’ used in s.34 is not defined anywhere in IPC, while

‘common object’ in s.149 must be one of the five ingredients defined in s.
141 of IPC.
 Common intention requires prior meeting of mind and unity of intention
and overt act has been done in furtherance of the common intention of all.
Common object may be formed without prior meeting of mind when the
common object of the members of the unlawful assembly is one but
intention of participants is different. It only requires that criminal act has
been done in furtherance of common object.
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 For invokingbys.34
(Recognized Govt.itofisNCT
sufficient that two
of Delhi, Affiliated or more
to GGS persons
Indraprastha were involved.
University, Delhi)
However there have to be minimum five persons to impose s.149.
 The crucial factor of s.34 is ‘participation’ while there is no need of active
participation in s.149 of IPC.

PROPOSALS FOR REFORM

The Fifth Law Commission of India[xvi] in its report proposed suggestions for
reform of s.34 to clear ambiguity. It proposed that, for better understanding the
phrase ‘several persons’ be substituted by ‘two or more persons’.

Fifth Law Commission[xvii]also proposed to substitute the Third object of s.141

‘to commit any mischief or criminal trespass, or other offence’ with ‘to commit
any offence punishable with imprisonment’ to clear ambiguity.

CONCLUSION

Fixing vicarious liability under s.34 or s.149 depends on their method adopted to
furnish the crime. There are two sections dealing with ‘common intention’ and
‘common object’ under two chapters of IPC ‘General Explanation’ and ‘Of
Offences Against Public Tranquillity’ respectively. Sometimes there arises
difficulty in proving with evidences that whether they shared common intention or
not. And also that how many people were the members of Unlawful Assembly
with their common object same. However these ambiguities were removed by the
Supreme Court in different cases, after determining its facts and situation of each
case.

To clear and better understanding, Law Commission of India also gave many
suggestions to Legislature for amendment of some part of statute.

Even after so much effort there arises problems of which law will be applicable
amongst the two in some crucial cases, and investigators and charge sheet filers
makes mistakes in this regard.
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BIBLIOGRAPHY
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

 P S A Pillai’s – CRIMINAL LAW – 11th Edition

 Ratanlal & Dhirajlal – THE INDIAN PENAL CODE – 33rd Edition
 Criminal Law: Cases and Materials – Sixth Edition – K D Gaur
 indiankanoon.org – (CASES)

Edited by Sinjini Majumdar

[i] Amrik Singh v. State of Punjab 1972

[ii] AIR 1954 SC 706

[iii] Mahboob Shah v. Emperor (1945) 47 Com LR 941

[iv] ibid

[v] AIR 1998 SC 40

[vi] AIR 1925 PC 1

[vii] AIR 1989 SC 1137 ; 1989 Supp (1) SCC 686

[viii] AIR 1978 SC 1647

[ix] 1964 Cr LJ 673 (SC) [x]

(1954) Cr LJ 1708 (SC)

[xi] AIR 1981 SC 1219

[xii] 1997 Cr LJ 2286

[xiii] Chanda v. State of U.P. AIR 2004 SC 2836 ; the expression ‘in prosecution of
common object’ and the word ‘knew’ used in s. 149 were explained.
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[xiv] AIR(Recognized
1989 SC 1593
by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

[xv] (1964) Cr LJ 673 (SC)

[xvi] Law Commission of India (Forty Second report: Indian Penal Code) 1971

[xvii] ibid

INTRODUCTION

A crime may be committed by one or more persons involved in crime then their
liability depends upon the extent of their participation. Thus this rule of joint
liability comes into existence. But there is an important fact which is that the law
has a knowledge about the abettor, who has given help to another in crime. This
rule is very ancient and was applied in Hindu Law also. In English Law, criminals
are divided in four categories, but in India there is only one distinction between the
doer and his helper who is known as abettor. The crime of abetment come under
section 107 to 120 of the IPC. Section 107 defines ‘abetment of a things’ and
section l08 defines about the abettor.

SECTION 107 IPC ‘ABETMENT OF THING’:

A person abets the doing of a thing by instigation:-

1. Instigate any person to do that things

2. By conspiracy.
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3. By(Recognized
aids. by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

BY INSTIGATION ANY PERSON TO DO THAT THINGS:- According to

the first clause of section 107 a person abets of thing that instigates any person to
do that thing. A person is said to instigate another when he incites, urges,
encourages, provokes, counsels, procures or command him to do something.

EXPLANATION :- A person who by wilful misrepresentations or by wilful

concealment of a material fact, which he is bound to disclose, voluntary causes or
procures or attempts to cause or procures a thing to be done, is said to instigate the
doing of that things.

ILLUSTRATION:-

A Police Officer is authorised by a warrant from a court of justice to apprehend

Z. B knowing that fact and also that C is not Z, wilfully represents to A that C is Z
and thereby intentionally causes A to apprehend C. Here B abets by instigation the
apprehension of C.

Case: Gurbachan Singh v. Sat Pal Singh, AIR- 1990

A newly wedded girl died of burns. The father of deceased had stated in FIR that
the deceased committed suicide because of harassment and constant taunt for
insufficient dowry. It was held by the SC that the deceased had committed suicide
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at the instigation
(Recognizedof her of
by Govt. husband andAffiliated
NCT of Delhi, in lawsto GGS
and Indraprastha
it was notUniversity,
a case of accidental
Delhi)
death.

2. ABETMENT BY CONSPIRACY

The second clause of this section states that a person abets the doing of a thing who
engages with one or more other persons in conspiracy for the doing of that
thing. If an act or illegal omission takes place in pursuance of that conspiracy and
in order to doing of that thing then it is called abetment by conspiracy. If an act or
illegal omission takes place in prurience of that conspiracy.

ILLUSTRATION:-

A concerts with B a plans for poisoning Z. It is agreed that A shall administer the
poison. B then explains the plan to C mentioning that a third person is to
administer the poison, but without mentioning A’s name. C agrees to procure the
poison and deliver it to B for the purpose explained ‘A’ administers the poison and
Z dies. Here A and C have not conspired together, yet C has therefore committed
the offence and is liable for punishment.

A case : Rup Devi v. State : 1955.

The deceased & his wife had strained relationship. The wife had illicit intimacy
with the accused. The deceased was scheduled to go to ‘Sadhu” on a particular
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day. The(Recognized
wife toldbythe accused
Govt. of NCT ofabout this programme
Delhi, Affiliated even though
to GGS Indraprastha she
University, knew that
Delhi)
the accused was waiting for the opportunity to kill her husband and taking the
opportunity he killed him. It was held that the wife was not guilty of abetment by
conspiracy, even though her conduct was open to censure.

3. ABETMENT BY AIDING:

The third clause of the section says that,” A person abets the doing of thing who
intentionally aids by any act in the illegal omission of the doing of that thing.

EXPLANATION :- Whoever either prior to or at the time of the commission of

an act does anything in order to facilitate the commission of that act thereby
facilitates the commission thereof, is said to aid the doing of that act.

ILLUSTRATION:- If the servant keeps the gate open of the master’s house so that
thrives may enter and thieves do not come, he cannot be held to have abetted the
commission of theft.

Case law: Ram Kumar v. State of H.P. 1995. The 19 years old prosecutrix was
taken to the police station by the accused that kept watch over her husband while
she was raped by the co-accused. In this custodial rape the accused turned deaf ears
towards the cries of the prosecutrix and did nothing to help her. The SC implied
abetment of the accused for abetment of rape.
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SECTION 108 OF IPC: ABETTOR:

A person can become an abettor in two ways:-

1. When he abates the commission of an offence: Example: Where he abets ‘B’

to commit murder of ‘Z’. Here A is an abettor.

2. When he abets the commission of an offence it is committed by a person

capable by law to commit an offence with the same intention or knowledge as
that of the abettor.

Example: “A” abets B, a five year old child, to commit murder of Z, he is still an
abettor under the 2nd category because even though the child will not be guilty of
anything by virtue of the protection given to him by section 82 of the IPC.

To define the abettor the explanation must be read as:-

EXPLANATION 1:- The abetment of the illegal omission of an act may amount
to an offence although the abettor may not himself be bound to do that act.

ILLUSTRATION:- ‘A’ instigates B to murder C. B refuses to do so. A is guilty of

abetting B to commit murder.

Explanation 2:- To constitute the offence of abetment it is not necessary that the
particular act of abettor should be committed.
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ILLUSTRATION:- ‘A’ ofinstigates

(Recognized by Govt. NCT of Delhi,BAffiliated
to Murder D. B inUniversity,
to GGS Indraprastha pursuance
Delhi)of the
instigation stabs D. D recovers from wound. A is guilty of instigation B to
commit murder.

Explanation 3:- It is not necessary that the abettor & the person abetted must have
same guilty intention or knowledge.

ILLUSTRATION:- ‘A’ with a guilty intention, abets a child or a lunatic to commit

an act which would be an offence if committed by a person capable by law lof
committing an offence and having the same intention as A. Here A, whether the
act be committed or not is guilty of abetting an offence.

EXPLANATION 4:-The abetment of an offence being an offence the abetment of

such an abetment is also an offence.

ILLUSTRATION:- ‘ A ‘ instigates B to instigate C to murder Z. B accordingly

instigates C to murder Z and C commits that offence in consequences of B’s
instigation. B is liable to be punished for his offence with the punishment for
murder and as A instigated B to committed the offence. A is liable to the same
punishment.

EXPLANATION NO 5;-It is not necessary to the commission of the offence of

abetment by conspiracy that the abettor should bi concert the offence with the
person who commits it. It is sufficient if he engages in the conspiracy.
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ILLUSTRATION : ‘Govt.
(Recognized by A’ concerts withAffiliated
of NCT of Delhi, B a plan of Indraprastha
to GGS poisoning University,
Z. It is agreed
Delhi) that A
shall administer the poison. B then explains the plan to C mentioning that a third
person is to administer the poison but without mentioning A’s name C agrees to
procure the poison & deliver lit to B the purpose of its being used in the matter
explained. ‘A” administers the poison, Z dies in consequence, Here though A and
C did not conspired together, Yet C has been engaged in the conspiracy in
pursuance of which Z had been murdered. C has therefore committed the offence
defined in the section and is liable to the punishment of murder.

Ram Kumar vs. State of H.P. (1996 SCC 100)

The prosecutrix-a young girl aged 19 years and her husband were arrested by
head constable and a constable. They took wife and husband to the police
station. They confined the wife in a room and her husband in another room.

While the constable was guarding in front of the room, where the husband sat,
the head constable raped the wife. She cried. Her husband and constable heard
her cries.

The trial Court convicted the head constable under Sec. 376, and the constable
who aided for the offence under Sec. 376 (2)(a) read with Sec. 107. On appeal
the High Court upheld the conviction.

The High Court held that the conduct and the consistency of the accused
constable were towards facilitating the crime as otherwise he would have
reacted on hearing the cries of the helpless prosecutrix, his turning deaf ears to
her cries was the finale on his conduct and he must be assumed to have had this
end in mind when he dragged the prosecutrix forcibly to the police station.
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F. “To abet” means

(Recognized by“to
Govt.help inofdoing
of NCT something
Delhi, Affiliated (usually
to GGS wrong)”,
Indraprastha it isDelhi)
University,

synonymous with instigation, encouragement and incitement.

The person who does the offence directly is called the “Principal”, and-the
persons who help the principal are called “Accessories”. Offenders of Abetment
and Conspiracy are “Accessories before or at the fact”. The accessories are of
three kinds:

(a) Accessory before the fact;

(b) Accessory at the fact; and

(c) Accessory after the fact.

G. Essentials to constitute offence of abetment:

While disposing,

“Goura Venkata Reddy vs. State of A.P. (2003) 12 SCC 469), the Supreme Court
held: “Section 107 IPC defines abetment of a thing. The offence of abetment is a
separate and distinct offence provided in the Act as an offence. A person abets
the doing of a thing when (1) he instigates any person to do that thing; or (2)
engages with one or more other persons in any conspiracy for the doing of that
thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing.
These things are essential to complete abetment as a crime. The word
“instigate” literally means to provoke, incite, urge on or bring about by
persuasion to do anything. The abetment may be by instigation, conspiracy or
intentional aid, as provided in the three clauses of Section 107.”

Punishment of Criminal Conspiracy (Section 120B of IPC)

Punishment of Criminal Conspiracy:

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As per Section 120-B

(Recognized of the
by Govt. Indian
of NCT Penal
of Delhi, Code,
Affiliated 1860,
to GGS “(1) whoever
Indraprastha is Delhi)
University, a party to a
criminal conspiracy to commit an offence punishable with death, imprisonment
for life or rigorous imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the punishment of such a
conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy

to commit an offence punishable as aforesaid shall be punished with
imprisonment of either description for a term not exceeding six months, or with
fine or with both.”

For purposes of punishment, Section 120B divides criminal conspiracies into two
classes: (i) A party of a conspiracy to commit a serious offence is punished in the
same manner as if he had abetted the offence, (ii) conspiracies to commit any
other offence and conspiracies to commit illegal acts other than offences are
subjected to imprisonment for a term upto six months with or without fine or
both.

Section 120B of the code is required to read with Section 196 of the code. It
mandates a Court not to, without prior sanction of the State Government or the
District Magistrate, take cognisance of a criminal conspiracy to commit an
offence punishable with imprisonment of a term more than two years.
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No prior sanction
(Recognized of the
by Govt. of NCTconcerned State
of Delhi, Affiliated Government
to GGS or of Delhi)
Indraprastha University, the District
Magistrate is required when the criminal conspiracy related to an offence
punishable with imprisonment for two or less than two years’ imprisonment.
For initiating criminal proceedings parties to a conspiracy made abroad, requires
sanction of the Central Government. A conspiracy hatched in India to commit an
unlawful act outside India does not require sanction of the Central Government.

Nature and Scope of the Law of Criminal Conspiracy:

1) Conspiracy is a substantive offence. The offence of criminal conspiracy exists

in the very agreement between two or more persons to commit a criminal
offence.

2) ‘Agreement’ is the rock bottom of criminal conspiracy. Its essence is the

unlawful combination.

3) To constitute a conspiracy, meeting of minds of two or more persons for

doing an illegal act or a legal act by illegal means is the first and primary
condition.
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4) If there are more

(Recognized thanoftwo
by Govt. persons
NCT of involved
Delhi, Affiliated inIndraprastha
to GGS a conspiracy and one
University, Delhi)or some
of the other accused had been acquitted, the remaining accused (even if it is
one) could be convicted under Section 120B of the IPC.

5) The gist of the offence of criminal conspiracy is to break the law.

6) The essence of the agreement to break the law is the agreement to do an

illegal act. By virtue of Section 43 of the IPC, everything : (i) which is an offence;
(ii) which is prohibited by law; and (iii) which furnishes a ground for civil action
is an ‘illegal act’.

7) The essentials of a single conspiracy require that there must be a common

design and a common intention of all to work in furtherance of the common
design.

8) When an offence is committed by different persons acting in the same

manner but independently, it cannot be said that there was necessarily a
conspiracy.

9) It is not necessary for all the conspirators to know each other.

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10) Every conspirator

(Recognized isofliable
by Govt. for all
NCT of Delhi, the to
Affiliated acts
GGSof the co-conspirators,
Indraprastha University, Delhi) even if
some of them had not actively participated in the commission of the offence.

11) When the ultimate offence consists of a chain of actions, it is not necessary
for the prosecution to establish that each of the conspirators had the knowledge
of the conspired act.

12) Where the agreement between certain persons is a conspiracy to do or

continue to do something which is illegal, the entire agreement must be viewed
as a whole.

13) Conspiracy is a continuing offence and it continues to subsist and

committed, if one of the conspirators does an act or a series of acts now and
then.

Proof of Conspiracy:

1) A conspiracy is always hatched in secrecy. It is a matter of common

experience that direct evidence to prove conspiracy is rarely available. It is
therefore impossible to adduce direct evidence of the same. The offence can
only be proved largely from inferences drawn from acts or illegal omissions
committed by the conspirators in pursuance of a common design.
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2) Conspiracy is generally
(Recognized a matter
by Govt. of NCT of Delhi,of inference
Affiliated to GGSto be deduced
Indraprastha from Delhi)
University, special acts
or illegal omissions of the accused done in pursuance of the common intention
of the conspirators and the apparent criminal purpose in common amongst
them. There must be some evidence on record which establishes such a
common design.

3) As direct evidence is generally difficult to adduce in cases involving

conspiracy charge, the prosecution generally depend on circumstantial evidence
relying on evidence of acts of various parties to infer that they were done in
reference to their common intention.

4) It is not necessary to prove that the perpetrators expressly agreed to do or

cause to be done an illegal act as the agreement could be proved by necessary
implication.

5) Conspiracy can be proved by circumstantial evidence, as it is the only type of

evidence that is normally available to prove conspiracy.

6) The conditions for assessing the evidence of co-conspirators as laid down in

Section 10 of the Evidence Act, 1872 are:

i) There should be prima facie evidence regarding the involvement of two or

more people in forming an agreement;
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ii) Then, anything said, done or written by any one of them in reference to the
common intention will be evidence against the other; and

iii) Anything said, done or written by the conspirator after the common
intention was formed by any of them would be admissible.

Procedure:

As regards procedure if the offence falls under Clause I of Section 120-B, the
procedure to be followed is applicable to that offence which is the object of the
conspiracy – that is to say, it is cognizable warrant or summons bailable or non
bailable as the offence which is the object of the conspiracy.

It is not compoundable and is triable by the Court of Session if the offence which
is the object of the conspiracy is triable exclusively by such Court; in the case of
all other offences it is triable by the Court of Session or a Magistrate of the first
class. If the offence falls under clause 2, a warrant or a summons may issue in
the first instance. It is bailable and not compoundable and triable by a
Magistrate of the first class.

Principles governing the law of conspiracy as laid down by the Supreme Court of
India:
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In State of Tamil Nadu v. Nalini [AIR 1999 SC 2640], when the main accused
herself has admitted in her confessional statement that she had played a vital
role in conspiracy for murder of Mr. Rajiv Gandhi and her confession is
corroborated by other material and witness evidence, there is no need of
interference in conviction under Sections 300 and 120-B of the IPC. In this case
the Supreme Court framed the following principles governing the law of
conspiracy after reviewing the judicial pronouncement on the law of conspiracy:

1) Offence of criminal conspiracy is committed when two or more persons

agree to do or cause to be done an illegal act or a legal act by illegal means.

2) Not only the intention, there has to be an agreement to carry out the object
of the intention, which is an offence. Only entertaining a wish is not sufficient to
convict a person for criminal conspiracy though it may be an evil wish.

3) Acts subsequent to the achieving of objects of conspiracy may tend to prove

that a particular accused was a party to the conspiracy.

4) As conspiracy is hatched in private or in secrecy, its objects are to be inferred

from the circumstances and from the conduct of the accused.
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5) Conspirators may
(Recognized be enrolled
by Govt. oneAffiliated
of NCT of Delhi, after another in chain.University,
to GGS Indraprastha It is notDelhi)
the part of
the crime of conspiracy that all the conspirators need to agree to play the same
and active role.

6) There has to be two conspirators and there may be more than that. To prove
the charge of conspiracy, it is not necessary that the intended crime was
committed or not.

7) It is not necessary that all conspirators should agree to the common purpose
at the same time.

8) Prosecution has to produce evidence not only to show that each of the
accused has knowledge of object of conspiracy, but also the agreement.

9) It is the unlawful agreement and not its accomplishment, which is the gist or
essence of the crime of conspiracy though it is not formal or express.

10) A Criminal Conspiracy is a partnership in crime and that each conspiracy

consists of a joint and mutual agency for a prosecution of a common plan.
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11) A man may join

(Recognized a conspiracy
by Govt. byAffiliated
of NCT of Delhi, word or deed.
to GGS One who
Indraprastha commits
University, an overt
Delhi)
act with knowledge of the conspiracy and others standing by conspirators are
guilty.

12) A conspiracy is not broken into several conspiracies when a new member
joins the conspiracy. It continues from the time of agreement to the time of its
termination.

13) In the absence of proof, relatives or spouses providing food or shelter

cannot be treated as members of a criminal conspiracy even though they may
have knowledge about such a conspiracy.

14) In absence of evidence that accused had even knowledge of any

conspiracy, the mere association with the main accused would not make him
member of conspiracy because agreement is a sine qua non of offence of
conspiracy.
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Class : 4TH SEMESTER

Paper Code 205

Subject :IPC

Unit 4

Mere denunciation of crime is not enough; it must be pushed to its logic end that
crime does not pay by punishing the offenders.

Punishment means, “It is the redress that the commonwealth takes against an
offending member” Punishment is some sort of social censure and not necessarily
involving physical pain. H Kelson in his General Theory of Law and State
described “sanction is socially organized consists in a deprivation of possession-
life, freedom, or property”

According to Jeremy Bentham punishment is evil in the form of remedy which

operates by fear. Johan Finnish has said that delinquent behavior of a person needs
to be taught lesson not with melody but with iron hand. “There is the need of
almost every member of society to be taught what the requirement of the law—the
common path for pursuing the common good—actually is: and {relatively!} Vivid
drama of the apprehension, trial, and punishment of those who depart from that
stipulated common way” Various reasons justify punishment but criminal law as
sanctions has one important object, is to eradicate the self-help and private
sanctions. Once society realizes that there is need of sanction, it must be applied
collectively, officially, legally and publicly.6 Different authors have offered
various theories of punishment but those can be broadly classified as non-
utilitarian and utilitarian. What distinguishes these theories is their focus and goals:
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utilitarian theoriesbyare
(Recognized forward
Govt. of NCT oflooking concerned
Delhi, Affiliated with the future
to GGS Indraprastha consequence
University, Delhi) of
punishment; non-utilitarian theories are backward looking, interested in the past
acts and mental states; and mixed theories are both forward and backward looking.
Punishment is awarded to reduce crimes and used as means to an end, is the claim
of the utilitarian. George Hegel and Immanuel Kant criticized and rejected the
utility theory, presented the contrast retributive theory of punishment, which is of
non-utilitarian on the premises that punishment is not means to an end but end in
itself. This tug of war between the George Hegel and Immanuel Kant on one side
and Jeremy Bentham on the other side is carried even by 20th century scholars. In
1949, Lord Denning appearing before the Royal Commission on ‘Capital
Punishment’ expressed the following view: “The punishment inflicted for grave
crimes should adequately reflect the revulsion felt by the great majority of citizen
for them. It is a mistake to consider the object of punishment as being deterrent or
reformative or preventive and nothing else … The ultimate justification of any
punishment is not that it is a deterrent, but that it is the emphatic denunciation by
the community of a crime: and from this point of view, there are some murders
which, in the present state of public opinion, demand the most emphatic
denunciation of all namely the death penalty.”

Scholar of Criminal law Professor Glanville Williams of Cambridge University,

applauses the utilitarian opinion that punishment is either preventive or deterrent.
Both schools agree punishment is essential but disagree in respect of its purpose.
Utility doctrine has further classified punishment as Preventive (Restraint),
satisfactory (compensatory), reformative (Therapeutic or corrective), and
deterrent.Retributive theory of punishment Vengeance theory- It is a concept of
primitive society which consists of injury inflicted by way of retaliation by victim
of crime on actor of crime, which requires the existence of victim as well as a
wrong doer. Its idea is severity of punishment where victim of crime inflicts the
retaliatory harm that expunges the crime. Modern legal system has given up the
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vengeance theorybybecause
(Recognized ofof its
Govt. of NCT heinous,
Delhi, Affiliated tobarbaric and uncivilized
GGS Indraprastha nature of
University, Delhi)
punishment.

Retributive theory Retributive theory is based on rights, desert and justice. The
guilty deserve to be punished, and no moral consideration relevant to punishment
outweighs the offender’s criminal desert is the philosophy of retributive
theory.Retributive theory replaces private punishment by institutlising punishment
on the structure of law and state in organized manner. Unlike vengeance theory,
retributist focuses on the wrong doer not on the victim of wrong which makes
difference between the ‘lex talionis’ and ‘jus talionis’. Immanuel Kant who
discussed the concept of punishment in the first half of The Metaphysics of
Morals, for him just actions are deduced from the concept of morals and
punishment should satisfy the rationality of moral and justice. Guilt is a sufficient
condition for justifying punishment. It is worth to quote his famous lines. “Even if
a civil society were to dissolve itself by common agreement of all its members (for
example, if the people inhabiting an island decides to separate and disperse
themselves around the world), the last murder remaining in the prison must be
executed, so that everyone will duly receive what his actions are worth and so that
the bloodguilt thereof will not be fixed on the people because they failed to insist
on carrying out the punishment; for if they fail to do so, they may be regarded as
accomplices in this public violation of justice.” For Kant, human being is free
man, and enjoys rights in the legal system based on the dignity of humanity. When
any person interferes with the others right, he forfeits and gives up his own right
and submits him to others interference in his life as legitimate. Kant calls it as
‘moral authorization’- Befugins to interference. Violator of Criminal Law has
derived benefit because other persons have obeyed Criminal Law; therefore, he
owes debt to society in the form of punishment, which is condition for his re-entry
into the community.This analysis takes closer to another principle of expiation.
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The penalty of wrong

(Recognized doing
by Govt. of NCTisofaDelhi,
debt, which
Affiliated offender
to GGS owes University,
Indraprastha to his victim.
Delhi) When
punishment has been endured, the debt is paid, the liability is extinguished.

Doctrine of just desert based on principle that criminal having committed crime in
the past deserved to be punished. The worlds ‘deserved’ puts limitation on the
power of inflicting harm and makes it just or fair that exhibit the humanitarian
aspect of the theory, which is the base for wider acceptability in society.
Retributive is no exception to the principle. Every theory has demerits. Weakness
of retribution is focusing more on criminal, his guilt, suffering and his feelings
likely to glorify them. Total rejection of claim of victim of crime, potential victims
and potential criminals undermines the nature of Criminal Law. This theory
focuses on what had happened but does not on what has to be done in future for
prevention of crimes because some time punishment ought to be considered as
means to end. Kant categorically rejected punishment as means to end because it
amounts use of man for others, which is against the principle of human dignity.
Retributist fails to take notice of Criminal law’s future direction. Retribution is not
cruel because it treats a criminal with dignity.

It gives him chance to expiate his crime by suffering. The doctrine of desert,
fairness, and proportionality reject cruel, barbaric, and uncivilized punishment of
vengeance theory. Retributive theory puts substantial limitation on punishment.
When the law and State inflicts harm on the wrong doer in fair manner, how
retributive theory is called reflection of vengeance theory. Law condemns the act
of criminal by awarding punishment, if incidentally that satisfy the vengeance of
victim of crime, the retributive theory cannot be criticized for that because they
never claimed it. Hegel has rightly objected by saying retributive is nothing but
concept of vengeance is superficial.17 The following are the merits and demerits of
the retributive theory

. Merits
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1. The (Recognized
theory is very simple.
by Govt. Punishment
of NCT of Delhi, Affiliatedistoan
GGSend in itselfUniversity,
Indraprastha but Utility theory is
Delhi)
means to an end. Therefore, utilitarian theories are evaluated on parameters of
success and failure. This question does not arise in retributive theory.

2. Retributive punishment is neither cruel nor barbaric but civilized because

inflected punishment is proportionate to the crime that is just. Utility theory
recommends more punishment than the profit of crime.

3. Retributive is impartial and neutral. By inflecting proportionate punishment to

the crime, it considers the interest of wrongdoer and society equal. Reformative
theory gives more weight to interest of criminal and deterrent theory priority
would be social interest than criminal.

4. Retributive is based on the Roman doctrine of Poena sous tenere debet actors
et non alios means punishment belongs to the guilty, and not others. It punishes
voluntary acts and excludes involuntary acts based on less blame worthy acts like,
act of insane person or immature person. Utilitarian demands punishment for
every kind wrongful act either intended or unintended. So innocents are likely to
be punished which is harsh.

5. Retributist always treat the human being with dignity and honor by saying that
the punishment is an end in itself not means to an end. However utilitarian treat
the person either as a commodity or animal because his punishment used as
means to teach lessons to others to prevent crimes, which degrades the human
value. 6. Hallmark of retributive theory lies in its nature of mercy. Once criminal
pays his debt to the society in the form of punishment, his sin is expiated and
admitted back to mainstream of society again. This kind of philosophy is missing
in the deterrent punishment.
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Demerits: 1. Retributist
(Recognized have
by Govt. of NCT failed
of Delhi,to elaborate
Affiliated to GGSany guidelines
Indraprastha or principles
University, Delhi) for
proportionate punishment that makes difficult task for judges to measure
punishment for crimes.

2. Object of punishment is not only punishing the criminal but to prevent the
crime in future also. Punishment is means to an end not an end itself.

3. Kant philosophy of murder warrants death sentences as not acceptable to the

Modern civilized society. The retributive theory propagates human being feelings
that justice is most essential for sustaining legal order in society. This is what
reflected by the Indian society in Ruchika and Jessay cases.

In Ruchika’s case, the trial court pronounced six months sentences for retired DGP
of Haryana S.P. Rathore for molesting a girl of 13 years , Ruchika, who later
committed suicide. Judgment of trial court shocked the Indian civil society and
condemned it with one voice that forced the prosecution to file appeal in the High
court that enhanced the sentence to 18 months. In Jessica Lal murder case where
Manu Sharma and others murdered her in an open bar, trial court acquitted all the
accused on ground that there was no evidence. People were shocked, stunned and
criticized the judgment of the court. Delhi High Court by considering the outrages
and stunning remarks of people conducted the proceedings on daily basis and
passed sentences of life imprisonment on the accused, which is confirmed by
Supreme Court on appeal.Two cases clearly send message that people’s hunger for
justice, if not honoured, the society will not honour Criminal Law. Hart has put the
same logic in different words, “Sanctions are therefore required not as the normal
motive for obedience, but as guarantee that those who would voluntarily obey shall
not be scarified to those who would not. To obey without this, would be to risk
going to wall.
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Retributive theorybybased
(Recognized Govt. ofon theof doctrine
NCT of Roman
Delhi, Affiliated law, nullaUniversity,
to GGS Indraprastha poens sine leges and
Delhi)
nulla peona sine crimen which means no punishment outside the law, and no
punishment except for crime.Undue sympathy to impose inadequate punishment
would do more harm to the justice system that undermines the public confidence in
the efficacy of the law.

Sentencing process should be stern where it should be, and tempered with mercy
where it warrants to be, otherwise departure from Just desert principle results into
injustice.Any attempt to down play the importance of retributive as vengeance
concept is unfair. Retributive upholds and preserves the greater social values.
Failure to satisfy the public sense of justice may lead to loss of respect for
authority and human beings likely to take justice into their own hand that would be
reverting the clock back to primitive society

Utility theory of punishment Utilitarian believes the punishment is means to an end

and seeks to punish the offenders to discourage or deter future wrongdoing. Great
jurist Jeremy Bentham who was instrumental behind the utility theory said, “The
principal end of punishment is to prevent like offences. What is past is but one act:
the future is infinite. The offence already committed concerns only a single
individual; similar offences may affect all. In many cases it is impossible to redress
the evil that is done; but it is always possible to take away the will to repeat it; for
however great may be the advantage of the offence, the evil of the punishment may
be always made to out-weight it.”

Reduction or prevention of crime has to be ultimate object of punishment that has

to look forward not backward as presented by retributist. These theories can be
categorized as, Reformative, (corrective or therapy) Deterrent, preventive and
compensatory. Reformative theory of punishment The object of punishment has
been considerably under the process of changes from the last centuries because of
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the Welfare State by

(Recognized concept. Letofus
Govt. of NCT give
Delhi, human
Affiliated touch
to GGS to Criminal
Indraprastha LawDelhi)
University, and reduce
the brutalities of punishment is today’s philosophy of law.24 Reformist looks at
sanction as instrument of rehabilitation and tries to mould the behavior of criminal
on the premises that criminal is not born but made by the environment of society.
Therefore, it is the responsibility of society to reform him by adopting certain
suitable methods. The increasing understanding of the social and psychological
causes of crime has led to growing emphasis on reformation rather than deterrence.
Less frequent use of imprisonment, abandonment of short sentences and attempt to
use prison as training rather than a pure punishment, and greater employment of
probation, parole and suspended sentences are evidence of reformative trend.This
approach rejects the deterrence and retributive elements of punishments and
impeccably advocates reformative approach on simple idea that, ‘we must cure our
criminal, not kill them’.

The reformative theory is reaction to the deterrent theory, which has failed to take
into consideration of the welfare of criminal. The real objection to reformation is
simply that it does not work.High hopes of reformative theory never materialized
and met with repeated failure. Reformation requires combination of too many
disciplines and their attempt has failed to deliver goods yet hunt is on for right
combination to make theory fruitful.

Researchers have concluded that no known or effective methods for reformation of

convicted criminal had been demonstrated “we know nothing about deterrent or
reformative effects of any mode or variety of treatment”.

There are number objections against reformative theory. 1. Reformative theory

expects better infrastructure and facilities in prison, proper co-ordination between
different discipline and persistent effort on their part to mould criminal. It requires
huge investments which poor country cannot afford it. 2. Millions of innocent
people who have high regards for law are finding difficult to get basic amenities
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postulates ethical by
(Recognized justification
Govt. of NCT offor providing
Delhi, better
Affiliated to GGS facilitiesUniversity,
Indraprastha inside Delhi)
prison.30 3.
Moreover, the rationality of the theory is more towards incentives for the
commission of crime rather than prevention. 4. Reformation can work out on those
people who can be reformed, there are people who cannot be reformed like
hardcore criminal, highly educated and professional criminals. . This theory
neglects potential offenders and persons who have committed crime but not within
the arms of law. Further, it overlooks the claims of victims of crimes.. Corrupt
social environmental is responsible for crime but not individual responsibility, is
the philosophy of reformative which is hard to digest. Nevertheless, it would be
unfair to dismiss the noble concept of reformation as a total failure. All are familiar
with the instances in which unskilled, uneducated and apparently incorrigible
criminals have developed skills in prison, which have transformed them into highly
useful persons.

Deterrent theory of punishment The act that takes away the power of committing
injury is called incapapaction, is in the form of remedy operated by the fear should
be the object of punishment which is called deterrent theory. Bentham went to the
extent of depriving the criminal’s power of doing injury by awarding death
sentences. Bentham treats the committed offences as an act of past, that should be
used as opportunity of punishing the offenders in such a way that the future
offences could be prevented.35Glanville Williams says deterrence is the only
ultimate object of punishment. “Punishment (sanction) is before all things
deterrent, and the chief end of the law of crime is to make the evildoer an example
and warning to all that are like minded with him.”This kind of threat is commonly
described as ‘specific’ or ‘individual’ deterrence. Specific deterrence works in two
ways. First, an offender would be put in prison to prevent him from committing
another crime for specific period. Second, this incapacitation is designed to be so
unpleasant that it will discourage the other offender from repeating his criminal
behavior. When individual deterrence is used as means to send message across
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society (Recognized
is called ‘general’ or ‘community’
by Govt. of NCT of Delhi, Affiliated deterrence. The University,
to GGS Indraprastha higher percentage
Delhi) of
criminal being caught and punished would enhance the credibility of sanctions.

Crime does not pay and honesty is the best policy. That is the message deterrent
theory tries to communicate to society. Once deterrent as painful sanction is
accepted, it would oppose better facilities in prison as suggested by the reformist.
Utility of deterrent theory Imprisonment as deterrent factor may provide temporary
relief as long as criminal is inside the prison because motive of crime cannot be
destructed by fear factor. Sanction as pain some time produces ironical results. It is
thought that punishment would deter offenders, in reality it hardens the criminals
because once criminals accustomed with punishment, deterrence loses its strength
on such criminals.

Under these circumstances, reliance on rehabilitation and prison reformation

would give better result. The most effective deterrent punishment is death
sentences, where as imprisonment has not only deterrent value but reformative
also. The strongest criticism against deterrent is that it has failed to reduce crimes.
Should it be given up? The conclusions are based on the percentage of crime rate
which are available. The tragedy of deterrent theory is that number of criminals it
has failed to deter measures its efficacy but not by number it has in fact deterred.38
The classic illustration from earlier times is the number of pickpockets went up
when people gathered to watch public hanging of pickpocketers.

It is difficult to collect the data of persons who have deterred. The success of
Deterrent theory can be measured by taking into consideration of data when there
is breakdown of law and order. Just consider the number of crimes committed
aftermath Indira Gandhi assassination. Same thing happened in Gujarat when the
Godhra incidence took communal shape which led to break down of law and order.
Therefore, the question in case of pickpocketers is not how many pickpockets exist
in spite of the penalty against them, but how many more would have been there
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without (Recognized
such penalty. Glanville
by Govt. of NCT ofWilliams holds
Delhi, Affiliated the Indraprastha
to GGS same view University,
by saying that how
Delhi)
much worse off we should be if we had no social provision for punishing evildoers.

3. The life of police and prison staff cannot be put into risk by not awarding death
sentences to danger criminals.

4. If danger criminals are not hanged, they are likely to repeat the offence after
their release.

5. Where death sentence is abolished, the crime rate is very low but that cannot
be in India.

6. Public opinion is substantially in favour of capital punishment otherwise, it

leads to lynching.

7. Imprisonment of criminals leads to problem of prison administration and

taxpayer money has to be utilized for maintenance of criminals that is unjust. 8.
Capital punishment is a painless and less cruel than life imprisonment.

There are some justifiable grounds for abolition of death sentences.

1. It is revengeful.

2. Destruction of life is not a wish of God or nature.

3. It is immoral. Society has no right to take life that is incompatible with modern
morality and human rights.

4. India believes in non-violence philosophy.

5. Death sentence is unjust for the family of offender. Irretrievable error of justice
is most practical reason for its abolition.
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Unlike life imprisonment,

(Recognized by Govt. of executed death
NCT of Delhi, sentences
Affiliated would notUniversity,
to GGS Indraprastha give opportunity
Delhi) to
judiciary to correct its error of judgment. In the late 1990s, a powerful new
challenge to death penalty emerged the risk of executing innocent people. Aided
particularly by the availability of DNA testing, more than 116 death row prisoners
have been exonerated (declared to be not guilty) and realized from prison from
1977 to 2004 in USA.44 This information leads to the logic that some other
innocent might have been executed. Abolitionist of death sentence encases on this.
The main reason for earlier day’s death sentences is lack of prison infrastructure.
With arrival of means and facilities to confine criminals indefinitely, even for life,
abolitionist started questioning ethical proprietary of death sentences and right of
society to take life in order to protect life.

Many experts have questioned whether a capital punishment has any greater
deterrent value than a sentence of life in prison without parole. When criminals are
sentenced for life, long sentences inside the prison without liberty, luxurious
comfort, isolated from family, friends, and society that would be more ideal painful
deterrence than death. Inconsistency in awarding death sentences strengths the
argument of abolitionist. USA Supreme Court in Furman v. Georgia by
highlighting these remarks and suspended death sentences in 1972. It is worth to
quote Justice William Doughlas Words, It is the poor, the sick, the ignorant, the
powerless, and the hated who are executed…[The law] leaves to the uncontrolled
discretion of judges and juries the determination of whether defendants committing
these crimes should die or be imprisoned…These discretionary statutes are
unconstitutional.

Indian Supreme Court has laid down that death sentences would be given in ‘rarest
of rare cases.’ Further Court held that the judges discretionary power to impose the
death sentences, are well guided by the Indian Penal Code, Indian Evidence Act
and Code of Criminal Procedure 1973 which do not offend Articles 14 and 21 of
the Constitution. Yet people’s mind is not free from the fact that it is judges who
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decide between life

(Recognized and of
by Govt. death ofDelhi,
NCT of criminals
Affiliatedbecause even in similar
to GGS Indraprastha cases
University, Delhi) there is
different findings.

In Dhanjay’s case who raped and killed a 14 year girl was given death sentence. In
State of Maharashtra v. Mansing, the accused who had committed rape and
murder of 8 year minor girl was awarded life imprisonment by Supreme
Court.48In another similar case, the Supreme Court awarded life imprisonment.
Abolitionist maintains that death sentences statistics reveal that criminal justice
system disproportionately singles out least advantaged members of society for
execution. Those who are wealthier, more educated and more socially connected
rarely, if ever, receive death penalty; in their view the message is actually
conveyed that there are two standards of justice. Certainty of punishment is much
more important than the severity of punishment otherwise death sentences would
not have the desired result. Factors like appeal, revision, mercy petition and delay
in execution of death have diminished the deterrence of death and ultimately
became Constitutional grounds for converting the death sentences to life
imprisonment.50Another ground against death sentences is that, it is carried in
private and relatively low number of execution that lessens the deterrence value of
punishment. Counter argument is that, it is in fact the result of abolitionist’s
opposition. State tries to satisfy the opponents of death sentences. Hence, it is
executing privately and rarely. Bentham justifies death sentences in extraordinary
occasions like civil wars. When life itself is at risk, any threat of lesser sanction
and confinement is unlikely to have any great impact on the soldier tempted to
save his life by deserting the battle of war field.

Terrorist incidence, like 9/11 and 26/11 demand nothing shorter than death
sentences.America’s 2/3rd population supported the death sentences.54 India has
not abolished death sentences even though it has signed the International
Covenants on Political and Civil Rights. Proponents of death sentences believe that
the law should place less value on the life of convicted murder than on victim.
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Indian Law Commission

(Recognized by Govt. ofobserved,
NCT of Delhi,“[A]rgument
Affiliated to GGSthat may be
Indraprastha valid in
University, respect of
Delhi)
other countries may not necessarily be valid for India. Unlike Western Countries,
education, prosperity, homogeneity and viability are sadly absent in many parts of
India. Punishment should bear a just proportion to the crime. Therefore, capital
punishment is only punishment for those who have deliberately violated the
sanctity of human life”.

Further, it said, even if the principle of abolition is accepted the time is not yet ripe
in India. Law Commission concluded that State has every right to execute certain
violent criminals in order to uphold and preserve greater social value. Failure to
satisfy the public sense of justice may lead to loss of respect to authority of law.
Preventive theory of punishment Even utilitarian like Bentham advocated the
preventive remedies which tend to prevent offences.That some individual need to
be restrained is hardly debatable proposition. Even staunchest advocate of the
reformation theory would not contend that a convicted unreformed dangerous
criminal ought to be without restraint while he is being reformed.

The target of sanction as incapacitation is criminal himself and protection comes

by physically separating criminal from the victim and potential victim that denies
him ability and an opportunity to commit further crime. Preventive philosophy is
the best mode of punishment because it serves as effective deterrent and also useful
preventive measures. The effective of preventive theory much depends upon
promptness and proportion factors.58The delay in inquires or investigation by the
public authority makes sanction ineffective. The effectiveness of sanction is further
scaled down as courts grants bail to accused on the ground that accused presumed
to be innocent until guilt is proved. There is considerable dispute, as to who should
be restrained and how long. Confinement should involve the least restraint needed
to furnish reasonable protection against crime.
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The naked truth is by

(Recognized that protection
Govt. can Affiliated
of NCT of Delhi, never be absolute.
to GGS Certain
Indraprastha amountDelhi)
University, of crime is
inevitable and society must take chance against them. Effective incapacitate
depends upon various factors like, criminal’s history, background, and personality.
In spite of all these things it is not possible to predict accurately whether or not a
particular criminal will repeat crime. Incapacitation should not be disproportionate,
wasteful and expensive restraint is either permanent or is coupled with a
meaningful rehabilitative program imprisonment will not restrain criminal conduct,
but will merely postpone it

Incapacitation affects ability and an opportunity to commit criminal act, but has no
influence on emotional and criminal intent and expectation of profit. Therefore,
incapacitation is being temporary than permanent. Compensatory theory of
punishment The criminal justice system is incomplete is the major allegation made
by the victims of crime, which is in fact true. The entire focus of the criminal
justice system is on the offender, to punish him or to seek his reformation and
rehabilitation with all the resources and goodwill available through courts and
other governmental and nongovernmental agencies.62The victims of crimes are, on
the other hand, forgotten people in the system. President Gerald R. Ford sent the
following message to the American Congress in 1975,

“For too long, the law has centered its attention more on the rights of the criminal
than on the victims of the crime. It is high time we reversed this trend and put the
highest priority on the victims and potential victims” Compensation to victim of
crime rests primarily on two grounds. Firstly, a criminal who inflicted injury
against persons or property must compensate for the loss, and second, a State that
failed to protect victim must pay compensation to him. The United Nation General
Assembly in 1985 adopted the declaration known as “Basic Principles of Justice
for victims of Crime and Abuse of power” which is called as Magna Carta of
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Rights of victims.64
(Recognized Principle
by Govt. of NCT of9Delhi,
of the declaration
Affiliated provides University,
to GGS Indraprastha “Government
Delhi) should
review their practices regulations and laws to consider restitution as an available
sentencing option in criminal cases in addition to other criminal sanctions.” Such a
duty of State towards victims is more explicitly stated under the European
Convention on the Compensation of Victims of Violent Crimes.

Article 2 of the Convention says, “When compensation is not fully available from
other sources the State shall contribute to compensate”. Such compensation is to be
awarded even if the offender cannot be prosecuted or punished. Jeremy Bentham
also recognized that compensatory remedies should be object of criminal justice,
which he called it as satisfactory remedies. Potential offender pays compensation
along with ill-gotten gain that would variably kill the motive of committing crime.
COMPENSATION therefore is of the essence of true deterrent, reformation and a
necessary condition of retribution.

Section of 357(1) of Criminal Procedure Code 1973 (CrPC) empowers court to

grant amount to victim of the offence out of fine imposed as part of the sentence.
Under section 357(3) of CrPC, court may nevertheless order accused person to pay
a certain sum of compensation to victim where no fine is imposed as part of
sentence. Compensation is payable to victim of the crime only when fine is not
imposed as part of sentence which is unfair because amount of fine is meager
compare to the compensation.

Moreover, incurred expenses of prosecution are deducted from the fine and
remaining amount is paid to victim of crime, therefore, victim gets small amount
that would not amount to justice. Courts have generally restored to sentence of fine
in addition to imprisonment but compensation provision is invoked seldom
because power is discretionary. Further, there is injustice, when ordered payment
of compensation is not complied by accused; there is no provision in law for
imposing penalty for such non-compliance. On the other hand, non-payment of
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fine may lead to by

(Recognized extension ofof Delhi,
Govt. of NCT period of imprisonment.
Affiliated The
to GGS Indraprastha Supreme
University, Court in
Delhi)
Sarwan Singh v. State of Punjab observed that if the accused is in a position to pay
the compensation to the injured, there could be no reason for the court not directing
such compensation. The Supreme Court in Delhi domestic working women’s
forum v. Union of India and others, made remarkable direction to the National
Commission for Women to draft scheme under which victim of rape would be
given compensation even though accused is not convicted. The same should be
sent to Union of India for its implementation within six months. Again, Supreme
Court highlighted the pathetic conditions of victim of crime in State of Gujarat and
another v.Hon’ble High Court of Gujarat.Justice Thomas held that Restorative and
reparative theories deserves serious consideration, victim of crime or his family
members should be compensated from the wages earned in prison by the
perpetrator. The court suggested the State to enact a comprehensive legislation in
respect of compensation payable to victim of crime.

Section 357 of CrPC has not proved to be much effective. Many persons who are
sentenced to long-term imprisonment do not pay compensation and instead they
choose to continue in jail in default thereof. Justice Wadhwa said, “Criminal
justice would look hollow if justice is not done to the victim of the crime. A victim
of crime cannot be “forgotten man” in the criminal justice system. It is he who has
suffered the most. His family is ruined particularly in case of death and other
bodily injuries. An honor which is lost or life which is snuffed out cannot be
recompensed but then compensation will at least provide some solace”. Time has
come for legislator to act on these directions, enact comprehensive legislation and
provide a security to victim of crime. In recent years, European and North
American Nations have enacted legislations to protect the interest of crime victim.
Law Commission of India said, “Victim is fortunate if he gets compensation or
even his expenses” and observed that, “Reparation to the victim of an offence has
been receiving increased attention in recent times. In part, this is due to a
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realization that mere

(Recognized punishment
by Govt. of the
of NCT of Delhi, offender
Affiliated though
to GGS it mayUniversity,
Indraprastha exhaustDelhi)
the primary
function of the criminal law, is not total fulfillment of the role of law”.It further
recommended that Indian Penal Code should be amended by inserting
compensation provision. Malimath Committee on reformation of criminal justice
system said “system being heavily dependent on the victim, criminal justice has
been concerned with the offender and his interest almost subordinate or
disregarding the interest of victim”.74It added that increased victim satisfaction
would, in effect, enhance the efficiency of the Criminal Justice System.
 Chanderprabhu Jain College of Higher Studies
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(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)