ACTUS REUS AND MENS REA

What is a Crime?
An act of commission or omission, contrary to law for which punishment can be
inflicted through judicial proceedings conducted in the name of state. Simply putting
together whatever is declared by the legislature as a crime is a crime.
(The word crime is not defined in IPC)

Criminal liability is the Responsibility for criminal behaviour.

Essentials to constitute a crime:
1. Mens Rea (Mental aspect)
2. Actus Reus (Physical aspect)
3. Injury

ACTUS REUS: THE GUILTY ACT

This Latin term is also referred as a 'voluntary act’ i.e., prohibited by law.
Exception :
“Actus me invito factus non est mens actus”
An Act done by me, against my will is not my act at all.
Actus reus is the physical component of the crime. It includes acts contrary to
law.
The human conduct may consist of commission or omission of certain acts.
• The term ‘act’ includes illegal omission also (Section 32 of IPC)
• The term ‘act’ includes a single act as well as a series of acts and the
term ‘omission’ includes a single omission as well as a series of
omissions. (Section 33 of IPC).
MENS REA - THE GUILTY MIND
“Actus non facit reum, nisi mens sit rea”
Act is not criminal unless accompanied by a guilty mind.

It is a loose term which includes wide variety of mental states and conditions.

Intention
Knowledge Decreasing level
of Mens Rea
Recklessness
Negligence

Intention: Highest Degree of Mens Rea , There is always the presence of knowledge
with the presence of Intention.

Knowledge: Second Highest Degree of Mens Rea, Knowledge attracts lesser

culpability if there is absence of Intention.

Recklessness: Recklessness signifies a state of being mentally indifferent to obvious

risk. Higher degree than negligence because there is a certain risk for which the
individual decides to remain indifferent.

Negligence: When there is required a certain degree of due care or caution and the
individual lacks in the aspect of care and precaution is termed to be behaving
negligently.

B. Nathulal vs. State of M.P. (1966)

In this case, the accused, a food grain dealer applied for a license and deposited the
requisite license fee. He, without knowledge of rejection of his application,
purchased food grains and sent returns to the Licensing Authority, who on checking,
found that it was more than the quantity permitted by Section 7 of MP Food Grains
Dealers Licensing Order, 1958. The accused was prosecuted. However, he was
acquitted on the ground that he had no guilty mind.

C. Malhan K.A. vs. Kora Bibi Kutti (1996)

The accused was a financier. He seized a vehicle for which he financed but did not
receive the instalments. The person from whom the vehicle was seized complained
to Police alleging that the accused had stolen his vehicle. The Supreme Court held
that the element of mens rea is totally wanting in this case and the accused cannot
be convicted for the offence of theft under Section 379.
 Motive And Intention
• Motive prompts a man to form an Intention.
• Motive relates to ends – Intention relates to means - A thief has a
MOTIVE to get money so he forms an INTENTION to Steal.

Why Motive is important?

If direct evidence is there then it is not important, BUT when only
circumstantial evidence is there motive plays important role to
establish intention. Presence of motive supports the prosecution
case, but the absence of motive doesn’t weaken it.

When Mens Rea is not required?

• When you don’t know it is illegal because of ignorance of law.
Ignorantia juris non excusat - Ignorance of law is no excuse

M.H. George vs. State of Maharashtra (1965)

A pilot was transporting way more than the allowed limit of gold and
when caught he gave the defence that he didn’t know of the newly
made regulation prohibiting such transporting. He was held liable.

• Cases, which are not criminal in nature, but are prohibited in the interest of
public at large e.g., damaging environment, liability under consumer protection.
Offence of Public Nuisance also falls under this category.
• In Strict Liability and Absolute Liability offences
▪ Strict Liability rule was made in Ryland v. Fletcher (1868)
▪ Absolute Liability rule was made in M.C. Mehta v. Union of India (1987)

• In the following offences Under IPC:

1. Waging war – Sec. 121
2. Sedition – Section 124A
3. Public Nuisance – Section 268
4. Kidnapping – Sec. 359
5. Abduction – Section 363
6. Counterfeiting Coins – Section 232
Relevance of Doctrine of Mens Rea in IPC.
Each and every offence under IPC has its ingredients mentioned not only in
regard to what the accused must have done but also the state of his mind. For
Example:
- Theft must be committed dishonestly
- Cheating must be committed fraudulently
- Murder must be committed either intentionally or knowingly.
So, the IPC it is self-sufficient and there is no room for applicability of the general
doctrine of mens rea.
COMMON INTENTION AND COMMON OBJECT

Liability: The state of being legally responsible for something.

Joint Liability: Where two or more persons are liable in respect of the
same liability.

Constructive Liability: When the person/persons may not be directly

involved in the commission of the actual act constituting the offence, but
are sharing common intention or common object with the persons who
have committed the offence.

Vicarious Liability: A situation in which one party is held partly

responsible for the unlawful action of a third party.

UNDER IPC:
Section 34 – Common Intention
When several persons are engaged in a criminal act with a
common intention, each person is made liable as if he alone did
the act.
Section 149 – Common Object
Every member of an unlawful assembly is held liable for any
criminal act done in furtherance of a common object.
COMMON INTENTION
Common intention means that there was a pre-arranged plan, and all of the individuals are
acting in furtherance of that plan. And all members will be held liable for all acts in
furtherance to that common intention.

Barendra Kumar Ghosh vs. King Emperor [Post master Case, 1925]

Barendra Kumar went with 3 other people in a post office for robbery, Barendra Kumar was
keeping guard at the gate while his partners killed the post master while robbing the post office.
He claimed that he was just on guard and wasn’t involved in the act of murder but the court said
that when you go to do such an act with other people and have common intention of doing that
act then each member of such association shall be liable for all consequences of such act, so
Barendra Kumar was held liable even if he was not involved in the actual act of Murder.

Intention is the highest degree of mens rea (higher culpability than knowledge,
Rashness, negligence)
The term ‘intention’ is not defined in Indian Penal Code but Section 34 deals with the
Acts done by several persons in furtherance of common intention.

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

• ‘Acts’ also includes ‘omissions’ (Section 32).

• ‘Acts’ and omission also include ‘series of acts’ or ‘series of omissions’ (Section 33).

Common intention can only be proved by facts and circumstances of the case.

ACT DONE IN FURTHERANCE OF COMMON INTENTION: The liability would be

there also for the Act done in furtherance for the decided Act (Common Intention) -Shankar Lal Vs. State of
Gujarat. (1965)

ON SPOT MEETING OF MINDS: The pre-arranged plan may develop on spot between people
but there should be clear and unimpeachable evidence for that inference. -Krishna Govind v. State of
Maharashtra (1963)

SIMILAR INTENTION: The intention could be similar, but it is not common intention
under Section 34 if pre meeting of minds can’t be proved. Premeditation of minds is
necessary.
 Pandurang v. State of Hyderabad (1955)

Pandurang with 2 other people together killed a person but common intention
of killing the person couldn’t be proved, only similar intention was proved,
which means there was no pre-arranged plan, so they were held liable for their
own acts only and not for the acts of all three.

Pointers about common intention

1. Premeditation of minds is necessary.

2. The common intention may develop at the spur of the moment but should be shared among each other.

3. Common intention can only be proved by facts and cricumstances of the case.

4. Common intention is not similar intention.

5. Benefit of doubt shall be given to accused. And if common intention is not there Section 38 shall apply.

Section 38 : Persons concerned in criminal act may be guilty of different

offences. —Where several persons are engaged or concerned in the
commission of a criminal act, they may be guilty of different offences by
means of that act.

Conceptual Clarity Question:

Q. To establish section 34 of IPC:
(a) Common intention must be proved but overt act must not be proved
(b) Common intention and overt act both must be proved
(c) Common intention need not be proved but overt act be proved
(d) Very strong Common Intention must be proved

Jai Bhagwan v. State of Haryana (1999) - To apply section 34, apart from the fact that there
should be two or more accused, two factors must be established: (i) common intention, and (ii)
participation of accused in the commission of an offence. If common intention is proved but no
overt act is attributed to the individual accused, section 34 will be attracted as essentially it
involves vicarious liability but if participation of the accused in the crime is proved and common
intention is absent, section 34 cannot be invoked
So, the correct answer will be “(a) Common intention be proved but not overt act be proved”
COMMON OBJECT
Chapter VIII of IPC – Offences Against Public Tranquillity - Section 141-160
Section 141 Defines Unlawful Assembly = 5 or more people plus common object of:

First – To overawe by criminal force, or show 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 which he is in possession or enjoyment,
or to enforce any right or supposed right; or
Fifth – By means of criminal force, or show of criminal force, to
compel any person to do what he is not legally bound to do, or to
omit to do what he is legally entitled to do.

Ingredients Of Unlawful Assembly

1. Assembly of five or more persons
2. Common object for them (Can form at any stage)
3. Common object must be out of the five mentioned in section 141

An assembly which was not unlawful when it assembled may subsequently become
unlawful, pre-concert of minds not required - Moti Das v. Bihar (1954)
If number of persons reduced to less than 5 in trial S.141 becomes inapplicable. But if
there is an indication that some unidentified persons were involved in the crime then
it can be applied - Ram Bilas Singh v. State of Bihar (1964)
Difference Between Common Intention and Common Object
Common Intention Common Object
Section 34 does not create offence in Section 149 creates an offence in
itself, only lays down principle of itself i.e. Being a member of the
joint liability unlawful assembly which is
punishable under Section 143

Common Intention under Section 34 Common Object must be one of the

not defined anywhere in IPC five ingredients defined under
Section 141
Prior meeting of minds necessary for Common Object may be formed
Common Intention without prior meeting of mind.

Applicable when two or more Applicable when 5 or more persons

persons are involved are involved
Participation is a crucial aspect No need for active participation in
Section 149.
 GENERAL EXCEPTIONS (C HAPTER 4: SECTION 76-106)

Defences which absolve the accused from any criminal Liability.

Even if the Accused does not plead for these defences but it is clear by the evidence that
any of them are applicable the court will ‘suo motu’ apply them on his case.

Divided into 7 Categories-

1. Mistake of Fact (Section 76 and 79)
2. Juridical Acts (Section 77 and 78)
3. Accident (Section 80)
4. Absence of Criminal Intent (Sections 81-86, 92-94)
5. Consent (Section 87-91)
6. Trifles (Section 95)
7. Private Defence of Person or Property (Section 96 – 106)

MISTAKE OF FACT
Section 76 – Act done by a person bound, or by mistake of fact believing himself bound, by law.

Nothing is an offence which is done by a person, who is, or who by reason of a

mistake of fact not by reason of a mistake of law, in good faith believes
himself to be, bound by law to do it.
Mistake of Fact’- Misconception about the existence or nonexistence of fact in
someone’s mind.
The Acts of subordinate officer is protected under this Section.
Illustration: A, a soldier, fires on a mob by the order of his superior officer, in conformity with the
commands of the law. A has committed no offence.

Ignorantia facti excusat, ignorantia juris non excusat.

(Ignorance of the fact excuses; ignorance of the law excuses not.)

M.H George V. State of Maharashtra (1965)

M.H. George was not an Indian Citizen and was trying to smuggle gold through India,
India recently passed a law prohibiting to carry that much gold through India.
M.H. George was hiding the Gold in his jacket, that too 34 kg of gold.
Court said that even if M.H. George didn’t know the law he is supposed to know it
Ignorance of law is no excuse and he was held liable under the relevant provision.
 Section 79 – Act done by a person justified, or by mistake of fact believing
himself, justified, by law.

Nothing is an offence which is done by any person, who is justified by

law, or who by reason of a mistake of fact and not mistake of law in
good faith, believes himself to be justified by law, in doing it.
State of Andhra Pradesh v. Venu Gopal (1994)
Police (one sub inspector, one head constable and a constable) arrested
a person on suspicion that he had received some stolen property and is
involved in house breaking.
Later the person was found dead with injuries on his body.
The prosecution alleged the police for wrongful confinement and torture
for taking out a confession out of him.
Trial court convicted the police
High court acquitted giving them the defence of Section 79 – whatever
policeman do during investigation is justified by law
Supreme court said that ‘this view of High court is wholly unwarranted in
law’ beating and torturing has absolutely no relation to the process of
investigation.

Note: The difference between Sec. 76 and Sec 79 is that in 76, it is legal
Compulsion and in 79 it is legal Justification which the doer of the act believed
he had.

JURIDICAL ACTS
Section 77. Act of Judge when acting judicially.
Nothing is an offence which is done by a Judge when acting judicially, in
good faith believes to be given to him by law.

Section 78. Act done pursuant to the judgment or order of Court.

Nothing is an offence, which is done in pursuant of a judgement or
order, where the Court may have had no jurisdiction to pass such
judgment or order, in good faith believes that the Court had such
jurisdiction.
ACCIDENT
Section 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.

Illustration: A is at work with a hatchet; the head flies off and kills a
man who is standing by. Here, if there was no want of proper caution
on the part of A, his act is excusable and not an offence.
Jageshar v. Emperor (1923)

There is no defence of accident available when the original act which was
being done while the accident happened is in itself illegal

ABSENCE OF CRIMINAL INTENT

Necessity
Section 81. - Act likely to cause harm, but done without criminal intent,
and to prevent other harm.
Nothing is an offence if is done with the knowledge that it is likely to
cause harm, but done without any criminal intent to cause harm, and in
good faith for the purpose of preventing other harm to person or
property.
Illustration: A in great fire pulls down houses to prevent firefrom spreading.
He did this to prevent the fire in good faith, he is not guilty of the offence.

Quad necessitas non habet leegem

(Necessity knows no law)

Regina v Dudley & Stephen (1884)

Dudley and Stephens (defendants) murdered a fellow young

seaman (Parker) to save their own lives from starvation when they
were stuck in between sea storm. The 5 Judges Queen’s Bench laid
down that necessity is no defense for murder, and they were
found guilty of murder which was later reduced into life
imprisonment.
Young Mind
Section 82. Act of child under 7 years, is not an offence.
doli incapax
(Incapable of committing an offence)

Section 83. Act of a child between 7-12 years, of immature understanding.

Nothing is an offence which is done by a child above 7 years and under

12. It is presumed that they have not attained the sufficient maturity to
judge of the nature and consequences of his conduct.

In case there is no evidence to prove ‘immature

understanding’ court will assume that the child above seven
and below 12 understood the nature of his acts.
Ulla Mahapatra v. the King (1950)
The boy below 12 years shouted ‘I will cut you to pieces’ and did so
to the victim, He was convicted under Section 302.

Unsound Mind
Section 84. Act of a person of unsound mind

Nothing is an offence which is done by a person who, at the time of commission of the crime
by reason of unsound mind is incapable of knowing the true nature of the act, or that, what
he is doing is either wrong or contrary to law.

R v M’Naughten Case (1843)

Daniel M’Naughten suffered from a delusion and killed Edward
Drummond (Secretary of PM). Medical evidence also showed that he
was delusional which carried him away from self-control over his
acts. He was acquitted which attracted criticism by public. Principles
Devised from this case are-
- Every person would be assumed sane until contrary is
proved.
- The rule generally is being presented as a standard to
determine whether the accused at the time of doing the
act, knew the difference between right and wrong.
Drinking Or Intoxication
Section 85. Involuntary Intoxication: Nothing is an offence done by an
intoxicated person, incapable of knowing the nature of the act.

Section 86. Voluntary Intoxication: This section says that if you are
intoxicated voluntarily, you will be taken as a person who has the same
knowledge as a normal person (who is not intoxicated) But this section
does not assumes that you have the same intention as a normal person
while intoxicated.
So, if you are voluntarily drunk and stab your friend then it will be
assumed that you had knowledge that it will kill him, but if you
can prove that you didn’t have intention at that time then you
might be given less harsher punishment (say for culpable
homicide instead of murder)
R v Meade (1909)

The accused had brutally beaten the deceased woman in a drunken state.

Lord Coleridge J held that he was drunk, he could not have the intention
requisite for the murder but confirmed his conviction for murder on the
ground that he was not so drunken to kill someone.

Attorney General for Northern Ireland v Gallachen (1961)

The accused, a psychopath, after forming the intention to kill his wife,
took to drinking (also brought a knife) and killed her.

Lord Denning J (House of Lords) held that this case does not fall under
the exceptions as the intention was formed prior to intoxication. If he
had changed his mind before drinking, he could have been excused
and thus, was held liable for murder.

Basudev v State of Pepsu (1956)

In a wedding party, the accused was intoxicated asked a young boy to

leave the seat for him to which boy refused. The accused took his
pistol and shot him dead. The court ruled three circumstances

Here, the court talked about varying degrees of intoxication and held
that the accused was not intoxicated to such an extent to be
incapable of forming necessary intent- Held liable for murder.
Act Done in Good Faith/Threat

Section 92. Act done in good faith for benefit of a person without
consent.
Only if the circumstances are such that
1. It is impossible for that person to signify consent,
2. The person is incapable of giving consent
3. No guardian or other person in charge of giving
consent is available
Provided
First. -That this exception shall not extend to the intentional causing
of death or the attempting to cause death;
Secondly. -That this exception shall not extend to the doing of
anything which the person doing it knows to be likely to cause death,
for any purpose other than the preventing of death or grievous hurt,
or the curing of any grievous disease or infirmity;
Thirdly. -That this exception shall not extend to the voluntary causing
of hurt, or to the attempting to cause hurt, for any purpose other
than the preventing of death or hurt;
Fourthly. -That this exception shall not extend to the abetment of any
offence, to the committing of which offence it would not extend.

Section 93. Communication made in good faith: No communication

made in good faith is an offence by reason of any harm to the person to
whom it is made, if it is made for the benefit of that person.

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

Except murder, and offences against the State punishable with
death,
There should be apprehension that instant death to that person
will otherwise be the consequence:
The person should not place himself in the situation by which he
became subject to such constraint.
Joining a group of Dacoits voluntarily and then doing something is
not covered under this Section
CONSENT IS GIVEN
Section 87. Act not intended and not known to be likely to cause death or
Grievous hurt, done by consent.
This section gives immunity to a person who causes any harm to who
takes the risk of it or giving consent to it. Provided that-
1. The Act is not intended and is not likely to cause death or grievous
hurt.
2. The person consenting must be 18 years or above (consent can be
express or implied).

‘Volenti non fit injuria’ - He who consents to an act has no right

to claim damages for the injury caused to him by that act.

Tunda v R (1950)

Two persons agreed to wrestle with each other, and an accidental injury was
caused to one. The court held that when they agreed to wrestle these were
implies consent on their part to suffer consequential injuries.

Held- Not Liable.

Section 88. Act not intended to cause death, done by consent in good faith
for person's benefit: This section extends the operation of consent to all cases
except intentional causing of death. Provided that-
1. The Act should not intend to cause death.
2. Act must be for the benefit of that person and done in good faith.
3. It should be with the persons consent (express or implied)

Illustration: A-Surgeon who operates on B and knows that the operation

is likely to cause death but still operates in good faith to cure B shall not
be held liable for any injury caused to B.

Section 89. Act done in good faith for benefit of child or insane person by
consent of guardian. –

Nothing is an offence which is done, in good faith for the benefit of a person under 12
years of age, or of unsound mind, by either express or implied consent of the lawful
guardian. This section extends the operation of section 88 to minors < 12 years and of
unsound mind when consent is given by the guardian.
 Provisos

Firstly - Does not extend to intentional causing of death or attempt to cause

death.

Secondly - Can be extended only for the purpose of preventing of death/

GH/curing of any grievous disease/infirmity- RISK OF DEATH ALLOWED.
Thirdly - That this exception shall not extend to the voluntary causing of GH
or attempting to cause GH, unless it be for the purpose of preventing death
or GH, or the curing of any grievous disease or infirmity.
Fourthly - That this exception shall not extend to the abetment of any
offence.
Illustration: A, in good faith, for his child's benefit without his child's consent, has his
child cut for the stone by a surgeon. Knowing it to be likely that the operation will
cause the child's death, but not intending to cause the child's death.

Section 90 (Defines Consent Negatively)

Consent is not defined in IPC general Definition part: Section 90 defines
Consent in Negative-
A Consent is not consent if:
- Given under Fear of Injury
- Or Misconceptions of the facts
- Or given by a person of unsound or intoxicated mind
- Or by a person <12 Years of age.

Section 91. Exclusion of acts which are offences independently of harm

cause.
The exceptions in sections 87, 88 and 89 do not extend to acts which are
offences independently of any harm which they may cause, or be
intended to cause, or be known to be likely to cause, to the person
giving the consent, or on whose behalf the consent is given.
There is an Act (Miscarriage)
– It causes some harm to the woman, if the woman even consents for
the harm it WONT BE COVERED UNDER 87,88,89 because Causing
Miscarriage is also an offence against the child. So the act is
independently an offence other than the harm caused which was
consented.
 The illustration under IPC gives the exception where Miscarriage is
necessary to save the woman’s life but after ‘Medical Termination of
Pregnancy Act,1971’ other exceptions are also there apart from ‘saving
the life of the woman’.
Other Acts on which defences of 87,88,89 do not extend are offences
affecting public health, safety, convenience, decency, morals etc.
Like publication of obscene material even with the consent of the
concerned person is an offence because it is independently an offence
for reasons other than the harm caused to the consenting person.

TRIFLES (Section 95)

Section 95. Act causing slight harm – Nothing shall be an offence which is done by
a person that no ordinary person would have complaint of that slight harm.

De Minimis Non Curat Lex

Trifles are not to be treated as crime.
RIGHT TO PRIVATE DEFENCE (Section 96-106)
Section 96. Nothing is an offence which is done in the exercise of the right of
private defence.
Munney Khan V. State (1971)
All Sections (96-106) all read together to know the scope and limitation of
this defence. The following limitations will apply to this defence:
- Not your right to exercise if there is sufficient time for recourse to
public authorities.
- The force used and harm caused should be only as much as reasonably
necessary.
- There should be reasonable apprehension of hurt, grievous hurt or
death to the person or damage to the property.

Rafiq v. State of Maharashtra (1979)

The deceased was attacking the accused with a lathi but the accused
took out a knife and stabbed him to death. The medical reports
showed that the wound was deep and the knife pierced through the
heart with great force resulting in death because of pouring out of
blood from the heart.
It was held that it was self-defence but the Accused used excessive
force so he is liable for ‘culpable homicide not amounting to murder’

Section 97. Right of private defence of the body and of property.

Every person has a right, subject to the restrictions contained in section
99, to defend his body, others body, his property, other persons
property

Section 98- Right to Private Defence against unsound mind person

When an act, which would otherwise be a certain offence, is not that offence
If done by any of these persons-
- When a person is acting under Mistake of Facts (76,79)
- Child protected under Doli Incapax (82)
- Child of immature understanding (83)
- Insane person (84)
- Person not voluntarily intoxicated (85)
They are committing no offence because they are protected, but if you Protect
yourself from this attack, it will be treated as if you are protecting yourself
from someone who is committing an offence
Section 99- When a person cannot exercise his Right to Private Defence.
- If you had sufficient time to reach to the Public Authorities.
- If the force used and harm caused was not Reasonably Necessary.
- If there is no reasonable apprehension of Hurt/GH/Death to the person or
damage to property.
Act done by Public Servant
There is no right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous hurt, if done, or
attempted to be done, by the direction of a public servant acting in good
faith under colour of his office though that direction may not be strictly
justifiable by law.
Note: The person should know that act is done by public servant. And should
be shown the authority proof if demanded. Like a policeman searching a house
should show the search warrant.

Section 100 - Private Defence to Body- When you can cause death.
There are 7 situations prescribed:
- Assault with the apprehension of DEATH.
- Assault with the apprehension GREVIOUS HURT.
- Assault with the apprehension COMMITTING RAPE.
- Assault with the apprehension Gratifying UNNATURAL LUST.
- Assault with the apprehension KIDNAPPING/ABDUCTION.
- Assault with the apprehension WRONGFULLY CONFINING a person
when he knows that he will not reach to Public Authorities in time.
- An Act of throwing or attempting to throw Acid which may reasonably
cause the apprehension of GH or Death. (Added by Criminal Amendment
Act 2013 – Nirbhaya Act)

Section 101 - When such right extends to causing any harm other than death.
The right of private defence of the body does not extend to the voluntary
causing death to the assailant, but does extend under the restrictions
mentioned in section 99.

Section 102 - Commencement and Continuance of Right to Private Defense.

Till the person have reasonable apprehension of any Harm/Death, he can
exercise his right to private defense.
3 Situation when a person can cause death while exercising his right to
Private Defense of Property (103-105)

Section 103: Private Defense to Property when you can cause Death.
- Robbery.
- House Breaking by Night.
- Mischief By Fire- Committed on any Building, Tent, Vessel or if these are
used as Human Dwelling.
- Theft- Mischief- House Trespass- which may cause the reasonable
Apprehension of Death/GH.

Section 104 (Residuary to Section 103)

These right does not extend to the voluntary causing of death, but does
extend, subject to the restrictions mentioned in section 99, to the voluntary
causing to the wrong-doer of any harm other than death.

Section 105. 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.

The right of private defence of property against robbery continues as long

as the offender causes or attempts to cause to any person
death/hurt/wrongful restraint or as long as the fear 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.
Can you cause harm to an innocent person in process of Self Defence?
Section 106. 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 effectually exercise that right without risk of harm to an innocent
person, his right of private defence extends to the running of that risk.
Concept of Abetment
ESSENTIALS of Crime
● Person
● Mens Rea
● Actus reus
● Injury (Sec. 44, IPC)
Harm to Body, Mind, Reputation or Property

STAGES OF CRIME
Four stages have-been prescribed-
INTENTION – PREPARATION – ATTEMPT – COMPLETION
Intention (Mens Rea) is never punished.

Attempt is punished as an Inchoate Crime.

INCHOATE OFFENCES:
“INCHOATE means- Just begun or not fully formed or developed”.
ILLUSTRATION- A wants to commit murder, A sneaks behind B and hits him
very hard on the head with a bat, B collapses and A throws his body in the
river. But B somehow survives. Here, the intended Mens Rea is not fulfilled
which was ‘to murder B’. So, B could not be charged for ‘murder’ but only
‘attempt to murder’.
This type of offence where Mens Rea is not fulfilled in called INCHOATE crime.

There are 3 types of Inchoate crimes:

● Attempt
● Criminal Conspiracy
● Abetment
INTENTION – PREPARATION – ATTEMPT – COMPLETION
Intention (Mens Rea) is never punished.
Attempt is punished as an Inchoate Crime.
Preparation is punished only in the following cases-
o Preparation to wage war against the Government (Sec. 122)
o Preparation to commit depredation on territories of a power at
peace with Government of India (Sec. 126)
o Preparation to commit dacoity (Sec. 399)
o Possession of material for counterfeiting of coins (Sec. 235)
o Possession counterfeit coins (Sec. 242 and 243)
o Possession of material for counterfeiting of Government
stamps (Sec. 256)
o Possession of counterfeit Government Stamps (Sec. 259)
o Possessing false weight or measurement (Sec. 266)
o Possessing forged documents (Sec. 474)

ABETMENT (C HAPTER 5 – SECTION 107-120)

Abetment - Encourage or assist (someone) to do something wrong, in particular to

commit a crime.
A crime has MENS REA and ACTUS REUS but in abetment the abettor has only mens
rea (intention), actus reus is of other party. So, it is considered an inchoate crime.

SECTION 107: Section 107 defines abetment in 3 forms-

• Instigation
• Conspiracy
• Aid
ABETMENT BY INSTIGATION
Instigation means provoking (Also Suggesting, Hinting, Insinuating, encouraging
etc.). The Abettor must ACTIVELY instigate the abetted person to commit an
offence. Words uttered in a fit of anger or omission without any intention can’t
be termed as abetment. Instigation can be direct or indirect.
Madan Mohan Singh v. State of Gujarat (2010)
Driver in a company who recently had a bypass surgery for his heart was advised
by the doctor to stay away from stress committed suicide. His wife said that his
superior officer M.M. Singh (Accused) got very angry at him for not doing his
duties and threatened him harshly to suspend him and also said to him that how
he still manages to find a will to live even after this much insult. Driver
committed suicide and left a suicide note blaming M.M. Singh (Accused). The
Suicide note was dated 4.2.2008 he was found dead on 23.2.2008 (17 days later)
According to Supreme Court the allegations to the effect that the accused had
either instigated the deceased in some way, to commit suicide, or engaged with
some other persons in a conspiracy to do so, or that the accused had in some
way aided any act or illegal omission to cause the said suicide. If observations by
a superior officer, regarding the work of his subordinate, would constitute
abetment to suicide, it would become almost impossible, for superior officers to
discharge their duties as senior employees. So, the ingredients of Section 306
(Abetment of Suicide) are not fulfilled in the present case.
ABETMENT BY CONSPIRACY
In criminal conspiracy under Section 120A, the agreement to commit an illegal act
is considered substantive offence, but in abetment to conspiracy, some overt acts
or illegal omission is required after the formation of the agreement.
Section 120A has wider application than 107.
Example of abetment by conspiracy. – Servant of house Conspired with
thieves and didn’t lock the main gate at night.

ABETMENT BY AID
If either prior to the commencement of the act or at the time of the
commission of the act, anyone does anything in order to facilitate the
commission of that act and thus facilitating the commission of the offence is
said to aid the doing of the act
The abettor provides Assistance to the abetted, if he is called to be Abetting by
Aid, there must be active role of abettor.

INGREDIENTS WHICH MAY OR MAY NOT CONSTITUTE THE ABETMENT:

Abettor (Section 108)

Explanations under this section:
ii. Illegal omission: A spectator is not an abettor but an act of illegal omission
may qualify as an offence. (Example- Police not taking action, even when
abettor might not be legally bound to do that act.)
iii. Result not necessary for liability: It is not necessary that the act abetted
must be committed to charge the liability for abetment of that act.
iv. Abettor is still liable if the abetted is incompetent to commit a crime:
Like an Insane person or a child below 7 years can’t be punished for
committing an act which is crime for a normal person, because they are
incapable of having Mens Rea. They are incapable of committing the
crime but abetting them for committing such an act shall be punishable.
v. Abetment of an Abetment is also a crime: Abetting someone to abet some
other person also constitutes the crime of abetment.
vi. Not necessary that conspiracy is with the person who commits the
crime: Only necessity is that the abettor has engaged in the conspiracy.
Other Ingredients

Wilful misrepresentation or concealment: If someone wilfully conceals or

misrepresents a fact which he is bound to disclose for causing an act or
procuring a thing, that person would be said to instigate(abet) the doing of
that thing.
Verbal permission or silent assent would not constitute instigation: If A tells B
that he intends to loot a bank, B says do as you like, A succeeds in looting the
bank, here B cannot be said to have instigated.
If Abetment is done in India but the offence is done outside India, it is still
punishable (108A).