Study material for Bharatiya Nyaya Sanhita, 2023

(BNS) for LL.B.

Q1. What is Meaning of crime? explain important Definitions of crime.

OR

Explain meaning, nature, elements and stages of crime.

Meaning of Crime:
• something which is illegal and which people are punished for, for example,
by being sent to prison
• illegal behaviour or activities is crime.
• As per Sec. 2(24) of BNS (Bharatiya Nyaya Sanhita), anything which is
punishable under the provisions of BNS can be stated as an offence.
Definitions of Crime
• any such act that had been committed or had been omitted in the violation of
any public law is termed as a crime.-Blackstone
• crime is not only any such act or omission which is punishable by law but
also such acts which hurt the moral sentiments of the society- Stephen, •
crime can be only denoted to such acts which are punishable and only
remissible by the State, if the State feels so.- Prof. Kenny,
• offences are whatever the legislature has prohibited for good or for bad
reasons.- Bentham
• Austin, “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.” • Paul W. Tappen, “an intentional act or
omission in the violation of criminal law, without justification and sanctioned by
the law as felony or misdemeanour.”
• Keeton, “a crime 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.”
• Miller, “crime is to be 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.”
• Paton, “the normal marks of a crime are that the State has the power to
control the procedure, to remit the penalty or to inflict the punishment.”
• Terence Morris, “Crime is not absolute like sin, that can be defined and
have an existence beyond the limits of what men may say and do. It is
essentially a relative definition of behaviour that is constantly undergoing
change.“ Nature of Crime
• crime is committed against the state.
• Crime is an act for which punishment is prescribed by law.
• It is the duty of the state to determine whether an act is an offense or not.

STAGES IN THE COMMISSION OF AN OFFENCE

• Intention -The intention is the first stage of any offense and is known as the
mental or psycho stage. In this stage, the offender decides the motive and
decides his course or direction towards the offense.
• Preparation- Preparation is the second stage amongst the stages of crime.
It means to arrange the necessary resources for the execution of the
intentional criminal act. Intention and preparation alone are not enough to
constitute a crime.
• Attempt -An attempt is a direct movement towards the execution of a crime
after the preparation of the plan.
• Commission/ Accomplishment- The last stage in the commission of an
offense is its successful completion. If the accused becomes successful in his
attempt to commit the crime, he will be guilty of the complete offense.
Moreover, if his attempt is unsuccessful he will be guilty of his attempt.
Essential Elements of Crime
• Human being [Sec. 2(26))]- The term accused “person” does not suggest
that only a human being can commit offences. According to Section 2(26) of
BNS, the term “person” also includes a company and an association or body
of persons. Therefore, even a trust, an NGO and a public company can
commit offences.
• Mens rea/ The mental element- Guilt is attributed to a person who acts
“purposely,” “knowingly,” “recklessly,” or, more rarely, “negligently”,
“dishonestly”, Intentionaly etc.
• Intentional: You do something purposefully, fully aware of your actions. It
is important to note that some crimes are called “specific intent” crimes, for
example, “Attempted murder.”
• Reckless: You know that your actions are risky, but you do them anyway.
• Negligent: You are not careful, ignore safety guidelines, or are just not as
careful as a reasonable person should be, which ends up causing someone
harm or breaking the law.
‘Actus-non-facit-reum-nisi-mens-sit-rea’- No act is a crime unless it is done
with a guilty mind
BNS includes the words in the provisions intentionally, fraudulently,
knowingly, voluntarily etc. for it. [Sec.2 (7), (9), (29), (33)] • Chapter III of BNS-
‘General Exceptions’, which is based on that no action would lie but without a
guilty mind.
• Actus reus [Sec. 2(1) & 2(25) & Sec 3(4)] – act and omission
Voluntary actions: These are actions you do on your own, like hitting
someone.
Omission of an act: Sometimes, not doing something for which you
have a legal duty can be a crime, like not feeding your children, not
performing legal duty by any public servant.
Possession: Having something illegal, like certain drugs, can also
be an actus reus.
• Injury [Sec. 2(14) ] it ia outcome of mens-rea and actus reus.- The last of
the basic elements of crime is an injury. There can be no crime if no
person faces some kind of an injury.
According to Section 2(14) of BNS, “injury” means any harm caused to a
person illegally either in mind, body, reputation or property.
Types of Crime
• Crime against State and • Crime against public order • Crime against
religion
• Crime against human body
• Crime against elections
 • Crime against public justice
• Crime against public health, safety, convenience, decency and morals •
Crime against women
• Crime against children
• Crime against property
• Crime against marriage
• Crime against coins and currency
• Cyber crime Difference between tort and crime

Q. 2 What is meant by Mens Rea? Explain the dictum “Actus Non-Facit Reum
Nisi Mens Sit Rea”. How for a motive necessary for determining a crime? Is
there any exception to the dictum of Mens Rea?

‘actus non facit reum nisi mens sit rea’

Earlier in the 12th century Mens Rea was not an element of crime. The wrongdoers
used to get punished regardless the fact that whether the act done was intentional or
not. The concept of Mens Rea was first introduced in the 17th century along with the
Latin maxim ‘actus non facit reum nisi mens sit rea’,- “an act does not render a man
guilty of a crime unless his mind is equally guilty,”

• The Act and the Intent must concur to constitute a crime.

• Mens Rea or the mental element of crime is a very important part of criminal law in
India as well as other countries. Most laws in India contain the element of guilty mind
so as to make an act by a person criminally liable for punishment. Mens Rea is the
whole essence of crime.

• State of Maharashtra v. M.H. George- the criminal intention is a psychological fact

that needs to be proved even with regards to offences under special acts unless it’s
specifically ruled out or ruled out by necessary implication.

• In Hari Mohan Mandal v. State of Jharkhand it was held that, it is not essential that
bodily injury capable of causing death should have been inflicted. Intention to kill or
knowledge that death will be caused is a question of fact which will be the subject
matter of trial.

• State v. Salauddin @ Raja & Anr , Intention or knowledge is an essential ingredient

for an offence under Section 307 IPC (now sec. 109 BNS 2023).

• To hold someone criminally responsible, it must be proven that their actions

resulted in an illegal act and that their actions were accompanied by a legally
blameworthy mental attitude. The maxim actus non facit reum nisi mens sit rea has
been integrated into the Bhartiya Nyaya Sanhita, 2023 in two basic ways:

• All the definitions of crime are carefully defined with focus on showing the evil
intention for doing the act. Usage of words like – intentionally, fraudulently,
knowingly, voluntarily etc. emphasis the presence of Doctrine of Mens Rea

• Through ‘General Exceptions’ enumerated in Chapter 3 of the Code, some of

which, such as mistake of fact, accident, infancy, and insanity, deny the existence of
mens rea.

Essentials of Mens Rea

• Intent

• Motive

• Intention and Motive

• Knowledge

• Intent and knowledge

• Intent and consequence

• Negligence

• Voluntarily

• Volition

• In criminal law, intention is defined as a deliberate goal that drives a person to

conduct a prohibited crime.

• The suspect's intention is expressed by the use of specific measures.

• intention refers to a person's will or plan.

• If a person does something on intent and consciously that is against the law, he or
she will be held criminally liable..

Knowledge and Motive- • Knowing the possible repercussions of an action is

knowledge.

• Motive, on the other hand, is the final component in committing a crime. It's what
drives a person to commit a crime. Reason is known as a motive. Distinctions
between intention and motive

• the term "intention" refers to the deliberate cause and conscious attempt to behave
in a way that is prohibited by law.

• The motive is described as the implicit cause that prompts a person to do or not do
something.

• The use of specific means and the circumstances that led to the criminal offence
can be used to determine a person's intent.

• The Motive, on the other hand, is the reason that motivates a person to behave or
refrain from behaving in a certain way.

• Unlike the intention, which is the crime's openly stated goal, the motive is the
crime's concealed or inferred goal.

• When a person's purpose is a factor in determining criminal responsibility, it must

be demonstrated beyond a reasonable doubt. The motive, on the other hand, isn't
the most important factor in determining guilt, thus it doesn't have to be
demonstrated. Exceptions Statutory Offences

• Sherras v. De Rutzen (1) [1895] 1 Q.B. 918, 921. (2) I.L.R. [1990] A. C. 317- Section
16(2) of the Licensing Act, 1872, prohibited a licensed victualler from supplying liquor
to a police constable while on duty. It was held that section did not apply where a
licensed victualler bona fide believed that the police officer was off duty Wright J.,
observed "There is a presumption that mens rea, an evil intention, or a knowledge of
the wrongfulness of the act, isan essential ingredient in every offence; but
thatpresumption is liable to be displaced either by the words of the statute creating
the offence or by the subject-matter with which it deals, and both must be
considered."
• State of Maharashtra v. Mayer Hans George (1964), the Indian Government had
issued an order on November 24th 1962, banning gold transportation outside of
India in order to save foreign exchange and combat smuggling. The appellant, M.H
George, a German national, boarded an aircraft in Zurich on November 27th to travel
to Manila. On the 28th of November, the plane made a stopover in Bombay, where
he was apprehended by a customs official with 34 kg of gold. He was held liable
under Sections 8 and 23 of the Foreign Exchange Regulation Act, 1947. Later, the
matter went to the Bombay High Court, where he was acquitted since he had been
exposed to the law recently and, as a German national, he was unaware of the
Indian legislation and had no intention of smuggling the gold. However, when the
matter went to the Supreme Court, he was found guilty since ignorance of the law
could not be used as an excuse, even though he had no intention of smuggling the
gold.

Court held that: It is a well settled principle of common law that mens rea is an
essential ingredient of a criminal offence. Doubtless a statute can exclude that
element, but it is a sound rule of construction adopted in England and also accepted
in India to construe a statutory provision creating an offence in conformity with the
common law rather than against it unless the statute expressly or by necessary
implication excluded mens rea.

To put it differently, there is a presumption that mens rea is an essential ingredient of

a statutory offence; but this may be rebutted by the express words of a statute
creating the offence or by necessary implication. But the mere fact that the object of
a statute is to promote welfare activities or to eradicate grave social evils is in itself
not decisive of the question whether the element of guilty mind is excluded from the
ingredients of the offence. It is also necessary to enquire whether a statute by putting
a person under strict liability help him to assist the State in the enforcement of the
law: can he do anything to promote the observance of the law?

A person who does not know that gold cannot be brought into India without a licence
or is not bringing into India any gold at all cannot possibly do any- thing to promote
the observance of the law.

Mens rea by necessary implication can be excluded from a statute only where it is
absolutely clear that the implementation of the object of a statute would otherwise be
defeated and its exclusion enables those put under strict liability by their act or
omission to assist the promotion of the law. 'the nature of mens rea that will be
implied
in a statute creating an offence depends upon the object of the Act and the
provisions thereof. V

arious statutes exclude mensrea such as:

• Adulteration of food items and drugs.

• Tax evasion or avoidance

• Black Marketing, false advertising, hoarding, profiteering etc.

• Misappropriation or theft of public funds or property.

• Misuse of position by public servants in any field of work.

• In Halsbury's Laws of England, 3rd edn. Vol. 10, in para, 508, at p. 273, the
following passage appears: "A statutory crime may or may not contain an express
definition of the necessary state of mind. A statute may require a specific intention,
malice, knowledge, willfulness. or recklessness. On the other hand, it may be silent
as to any requirement of mens rea, and in such a case in order to determine whether
or not mens rea is an essential element of the offence, it is necessary to look at the
objects and terms of the statute."

Strict liability Strict liability offences are those in which the prosecution does not
need to show that the defendant behaved with a guilty mental state since the
conduct is sufficient to establish the crime. The activities that fall under these
categories are damaging to society or the State.

Vicarious liability The term “vicarious liability” refers to a situation in which the
master is held liable for the actions of his servant while on the job. If the servant has
committed a criminal offence without the master’s knowledge, this general norm
becomes an exception under the maxim actus non facit reum nisi mens sit rea.

The servant’s condition of mind shall not be blamed on the master in such a
circumstance. This was the finding in the notable case of Chisholm v. Doulton
(1889).

Public nuisances A public nuisance is a criminal offence in which an act or

omission obstructs, harms, or causes trouble to the general public’s right. It may also
be described as conduct that jeopardises the broad public’s interest or comfort. In
such circumstances, strict responsibility is applied since the public’s interest is
jeopardised.
Petty offences Petty offences are the least serious kind of offences. When it comes
to minor offences like running a red light, proving the mens rea behind such an act
might be challenging. As a result, in such instances, acts such as that of jumping the
red light may be considered criminal.

Q. 3. What do you understand by the phrase ‘an act done in furtherance of

Common intention’? What are the essentials of 3(5) of the BNS,2023. Which
lays down “Joint responsibility” in doing a criminal act. Write the difference
between common intention and similar intention.

OR

Define common intention with the help of decided case laws and provisions of
BNS and also explain difference between common intention and common
object?

OR

P, Q and R had a common intention to rob S. While P and Q entered into the
house of S and beat and robbed him, R stood outside to warn P and Q of any
danger. On being prosecuted along with P and Q, R pleaded that neither did he
commit the robbery nor cause injuries to S and hence was not guilty of any
offence? Decide.

Common intention

It is a well-established principle of criminal law that a person is solely accountable for

crimes committed by himself and not for conduct committed by others. In other
words, the main concept of criminal culpability is that the individual who actually
commits an offe

nce bears the primary responsibility, and only that person may be declared guilty
and punished in line with the law.

Opposing this general rule, Sec. 3(5) of the BNS,2023 states that when criminal
conduct is committed by numerous people in pursuit of a ‘common intention’, each of
them is accountable for the crime in the same way as if it were committed by him
alone. Sec 3(5) of BNS 2023 explains rule regarding the common intention.
Sec 3(5). 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 of such persons is liable for that act in the same manner as if it were done
by him alone.

Essential elements:

1. There must be two or more persons.

2. They must have a common intention.

3. Their common intention must have been furthered. 4. If the above conditions are
satisfied, each of the accused person would be liable for the resulted Criminal Act as
if it were done by him alone.

• Common intention means following: o Concerted action.

 Knowledge of each other's intention and sharing thereof. o Prior meeting of

minds.
 Presence of common intention is a question of facts and circumstances.
 Common intention must be strictly proved. Courts cannot infer common
intention readily.

Furtherance of Common Intention: 1) Presence of common intention is not

enough. Its furtherance must also be proved. 2) Furtherance suggests
participation or performance of some role.

In a planned murder, one of the persons played the role of keeping of people
from coming to the rescue of deceased. He and others were held guilty of murder
u/s 103 of BNS read with Section 3(5) BNS. 3) It is not necessary that the roles
should be same. Acts of the accused persons may differ.

4)Word 'Furtherance' enlarges the scope of Sec. 3(5) BNS. The accused persons
would be liable for a criminal act done in furtherance of common intention though
it is different from what was commonly intended.

5)Where one of the accused persons develops an independent intention, the act
done in furtherance thereof shall be his individual act and other co-accused
persons would not be liable.
6)Barendra Kumar Ghosh v. Emperor 52 IA 4014 (PC)- “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.”

That act refers to the 'Criminal act' used in Section 3(5) BNS which means the
unity of criminal behaviour which results in some thing for which an individual
would be punishable if it were all done by himself alone in an offence. Even if the
appealant did nothing as he stood outside the door it is to be remembered that in
crimes as in other things “they also serve who only stand and wait”.

7)Mehboob Shah v Emperor AIR 1945 PC 118- Common intention implies a

prearranged plan, prior meeting of minds, prior consultation in between all the
persons constituting the group. Common Intention Must Precede the Criminal Act

• Common intention must precede the criminal Act; the time interval between
them may be narrow or wide.

• In the case of Ram Chander vs. State of Rajasthan 1970 Cr.L.J. 653: It was
held that there need not be a long interval of time between the formation of the
common intention and the doing of the Act.

Common intention may develop even on the spur of moment. Difference

between Common intention, same or similar intention

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

2) Concerted Action is the essence of the term. In case of same or similar

intention there is no concerted action.

3)In the case of Dukhmochan Pandey v. State of Bihar, the complainant had sent
about 20 labors to his field for transplanting paddy. On midday, the accused party
came as a mob of about 200 people armed with various deadly weapons. They
asked laborers to stop the work, and when the complainant objected to this, the
two accused directed the mob to kill laborers. The mob started assaulted the
laborers as a result of these two labors died. When the police party reached, the
mob fled from the spot. The death was established to have caused by injuries
inflicted by shock and hemorrhage caused by injuries inflicted with sharp 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….”

The 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. Framing of Charge U/s 3(5) is not necessary Sec. 3(5) does
not create any offence. It is a deemed provision and not a penal provision. It only
provides for a rule of evidence.

DIFFERENCE BETWEEN COMMON INTENTION AND COMMON OBJECT

Both Section S.3(5) and s.190 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. 190 is substituted by
S.3(5) of BNS, 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.3(5).

The main differences between the two sections are as follows:

• S.3(5) does not create any specific offence but only lays down the principle of
joint criminal liability. Whereas s. 190 creates specific offence and being a
member of an unlawful assembly is itself a crime, which is punishable under
s.189(2).

• ‘Common intention’ used in S.3(5) is not defined anywhere in BNS 2023, while
‘common object’ in s. 190 must be one of the five ingredients defined in S. 189(1)
of BNS.

• Common intention requires a prior meeting of mind and unity of intention and
overt act has been done in furtherance of the common intention of all. A common
 object may be formed without a prior meeting of mind when the common object
of the members of the unlawful assembly is one but the intention of participants is
different. It only requires that criminal act has been done in furtherance of the
common object.

• For invoking S.3(5) it is sufficient that two or more persons were involved.
However, there have to be a minimum of five persons to impose S.190.

• The crucial factor of S.3(5) is ‘participation’ while there is no need of active

participation in S.190 of BNS.

• Mere membership of unlawful assembly is an offence sec. 189(2) of BNS,

whereas if some persons make plans to commit offence, it is not an offence
unless action is taken to furtherance of it.

Q. 4 Write the short notes on followings

a.act and omission

Section 2(1) defines 'act'

The word "act" is to be interpreted in the light of its general meaning, as

laid down by Murphy J, in Bhogi Lal Chimanlal v Nanavati:
... "It must necessarily be something short of a transaction which is
composed of a series of acts, but cannot, I think, in the ordinary language
be restricted to every separate willed movement of a human being, for
when we speak of an act of shooting or stabbing, we mean the action
taken as a whole and not the numerous separate movements involved."

In common language, the term "an act" means a positive act, i.e.,
something done voluntarily by a human being. For instance, speaking,
walking, writing or doing anything that amounts to an act. If the "act" is
involuntary and against the will of the doer, it is not an act of a person.

Section 2(25) defines omission- "omission" denotes as well as a series of

omissions as a single omission;
 [s 3.5] "Act" "Includes Illegal Omissions"
The scope of an "act" under section 3(4) of the Bharatiya Nyaya Sanhita,
2023 is widened to include "illegal omissions". For e.g. when the law
imposes an obligation on the part of a father, or a husband to provide food,
clothing, shelter and medical aid to his children, aged parents and wife
respectively. If he omits to fulfil the statutory obligation as laid down in
section 125 of the erstwhile Criminal Procedure Code, 1973 (now IN
BNSS, 2023 sec. 144), he is liable in law. This is based on the principle
that omission to discharge statutory obligation is actionable.

b."Dishonestly"

Sec 2 (7) "dishonestly" means doing anything with the intention of causing
wrongful gain to one person or wrongful loss to another person;

In popular parlance, the word "dishonestly" means having deviated from

honesty. But This Section has given a technical meaning to the word
"dishonestly", to include an intentional act, to cause wrongful gain and
wrongful loss to another. The word "dishonestly" has been used in relation
to property. Hence, "intention" must be to cause wrongful gain or wrongful
loss to a person.

For instance, if A finds a ring belonging to B on a table in B's room and

removes it for his own use, A's act is dishonest since it amounts to
wrongful gain to A and wrongful loss to B.

Thus, nothing is dishonest under the Act, which is not intended to be

dishonestly. And nothing can be said to have been intended by a man,
unless it was his immediate and probable intention.
The test to be applied for determining "dishonestly" is not the test of a
hypothetical reasonable man, but rather of the person whose intention is to
be read. The court must then put itself as far as possible in his situation for
the purpose of seeing what must have been his intention. His habit of life,
 manner of thought, associations and belief may have influenced him in his
action.

A an accountant, fraudulently paid money to B, to be kept in a deposit for

payment to Y. On demand by Y, the accused made false reports to the
effect that Y's money, held as a revenue deposit, was to be transferred to
the civil court, upon which a cheque for making the transfer was drawn up,
which the accused altered to conceal his previous fraud. It was held, that
the accused's immediate intention being merely to conceal his previous
fraud, he could not be convicted of forgery, though he could be convicted of
making a false record."

c. "fraudulently"
The Sanhita, 2023 does not define the word "fraudulently". It simply says
there can be no fraud unless there was an intention to defraud. Thus, here
it makes intention as the genesis of fraud, whereas in the law of contract,
fraud is clearly defined.
Sec. 2(9) of BNS- "fraudulently" means doing anything with the intention to
defraud but not otherwise;
In general, fraud is used in three different ways, viz.,
(1) To deprive a man of his right, either by obtaining something by
deception, or artifice, or by taking something wrongfully without the
knowledge or consent of the owner,
(2) To withhold wrongfully from another what is due to him, or wrongfully to
prevent one from detaining what he may justly claim; or
(3) To defeat or frustrate wrongfully another's right to property.

In the words of Sir James Stephen:

...Whenever the words 'fraud', or 'intent to defraud' or 'fraudulently' occur in

the definition of a crime, two elements, at least, are essential to the
commission of a crime: namely,
first, deceit or an intention to deceive or, in some cases, mere secrecy,
and secondly, either actual injury or possible injury or an intent to expose
some
 person either to actual injury or to risk a possible injury, by means of that
deceit or secrecy. "This intent," he adds, is very seldom the only or the
principal intention entertained by the fraudulent person, whose principal
object, is nearly in every case, is his own advantage. A practically
conclusive test as to the fraudulent character of a deception for criminal
purposes i.e. Did the author of the deceit derive any advantage from it
which could not have been had, if the truth had been known? If so, it is
hardly possible that, the advantage should not have had an equivalent in
loss, or risk of loss to someone else; and if so, there was fraud."
In Dr Vimla v Delhi Administration," the Supreme Court observed that the
expression "defraud" involves two elements, namely, deceit and injury to
the person Received. Injury is something other than economic loss, that is,
deprivation of property, whether movable or immovable, or of money, and
it will include any harm whatever caused to any person in body, mind,
reputation or such others

d.Dishonestly and Fraudulently distinguished

The words "dishonestly" and "fraudulently", although they appear to be

very close to each other in meaning and in standard dictionaries the
definition of one is synonymous to the other, the two differ in meaning in
law. According to the definition given to the word "fraudulently" (section
25), deceit is an essential ingredient of the term fraudulently, whereas it is
not required, in case of "dishonestly" (section 2(7)).
Thus, in the case of "dishonestly", there must be a wrongful gain to one
party and a wrongful loss to the other. A meets a bullock carrying a box of
treasure belonging to B. He drives the bullock towards the road leading to
his house in order that he may take the treasure. The act of A is done with
dishonest intention since he does it with the object of wrongful gain to
himself and wrongful loss to B. But in the case of "fraudulently", the act
must be accompanied by deceitful means. For instance, if A produces a
false certificate that represents himself as a graduate of a particular
University and seeks permission to appear at the M.A. examination
privately, A is said to have acted fraudulently since he has deceived the
authorities.
 Again, in the case of dishonestly there must be a pecuniary or economic
gain or loss, while in fraudulently this is not always so. The elements which
constitute an act fraudulent are deceit and intention to deceive and in
some cases even mere secrecy. Thus, when there is neither an intention
to deceive nor secrecy, the act though dishonest is not fraudulent,
explained in the case of Dr Vimla v Delhi Administration.

e."good faith"/ Bonafide

Sec. 2(11)- Nothing is said to be done or believed in "good faith" which is

done or believed without due care and attention;

"Good faith" plays an important role in the law of crimes, and its presence
is ordinarily an answer to a charge of criminality and a decisive factor in
many cases. It is just opposite of bad faith/mela-fide.
The definition here given is, therefore, the keynote of all sections in which
"good faith" occurs. The definition of "good faith" is merely a negative one.
It says that an act done without due care and attention is not presumed to
have been done in good faith.
The section makes no reference to the honesty and good motive which are
involved in the general meaning of good faith and which are noticeable in
the definition of good faith in other statutes, such as the General Clauses
Act, 1897. Section 3(32) of the Act reads as follows: A thing shall be
deemed to be done in good faith when it is in fact done honestly, whether
it is done negligently or not.

f. "injury"

Sec. 2(14)- "injury" means any harm whatever illegally caused to any
person, in body, mind, reputation or property;

In ordinary language, "injury" means a wound or a hurt. But section 44 has

defined injury in a much wider sense to include not only bodily harm, but
also harm to one's mind, reputation or property. In other words, the word
"injury" in section 2(14) denotes any harm illegally caused and includes
 every tortuous act. Thus, an unlawful detention of a cart at a toll gate,
caused as a result of illegal demand of toll, amounts to threat of injury.
Similarly, a threat to employ the process of law with the object of obtaining
more money than is actually due, is a threat of injury. The threat of a
decree that cannot be executed by competent authority is a threat of harm
or injury within the meaning of section 2(14).

g.Public Servant" - Meaning

Section 2(28) does not define the term "public servant", but simply
enumerates the various categories of persons who constitute the great
mass of the community and are included in the category of "public
servant". The categories stated in the section are merely illustrative and by
no means exhaustive. Broadly speaking, a "public servant" must first be a
servant, and secondly, a "public servant". It is not necessary that a servant
should receive any salary or remuneration for his work. An honorary
servant discharging a public duty is as much a servant as a stipendiary
(receiving stipend) on the payroll of the Government. Likewise, a minister
in a Central or a State Government, who does not take pay from the
Government and works as an honorary one, is a public servant since he is
entrusted to discharge public duty by virtue of holding the particular office.
Again, all those who discharge a delegated function of administration of
the state are public servants.

A person to be an officer must hold some office. The holding of an office

implies charge of a duty attached to that office. As held by Apex Court in
State of Maharashtra v Brijlal Sadasuko Modani, sprinkle of aid by
Government to society would bring its employee within definition of "public
servant". Even, any grant or any aid at time of establishment of society or
in any construction or in any structural concept or any aspect would be an
aid, as the term aid has not been defined. Notices issued to employee of
Co- operative Bank to give details of property acquired by him is justified.
Question as to whether said Bank/Society has ever been granted any kind
of Government aid or not is left to be dealt with in course of trial. Thus,
 whether said employee is public servant or not, would also be decided
during trial.

h."Voluntarily"
Section 2(33) of the Sanhita has attempted to define the word
"voluntarily" with reference to the causation of effect instead of with
reference to volition. The section has given an artificial meaning to the
word "voluntarily" and not the ordinary meaning, which signifies free
will brought about by one's own free choice. According to section 2(33)
a person is said to cause an effect voluntarily, when he causes it (i)
intentionally, or (ii) that he knew or had reason to believe, to be likely to
cause it. The illustration appended to the section makes the point clear.
For instance, when A sets fire, by night, to an inhabited house in a
large town to facilitate the commission of robbery, and causes the
death of a person, A is said to have

caused death "voluntarily", if he knew that he was likely to cause death

by his act. In other words, "voluntarily involves causing of an effect by
means whereby it is intended or known to be likely to be caused.

Shyam Lal: The Supreme Court of India in Shyam Lal v State of Uttar
Pradesh, said that the intention and knowledge of the offender had to
be determined from the nature of the injury, the weapon used, the part
of the victim's body attacked, force used and other related
circumstances of the case in question.

The definition of the word "voluntarily" has been borrowed from the
definition of the word "wilfuly", used in English law. An injury is deemed
to be wilfuly caused whenever the person from whose act or omission
such injury results, whether, he directly intended it to result from his act
or omission, or believing that it was in any degree probable that such
injury would result from his act or omission, incurred the risk of causing
such injury. For instance, where A, a smith seized by a gang of dacoits
is forced by threat of instant death, to take his tools and to open the
door
 of a house to enter and plunder it, cannot be said to have acted
"voluntarily", and no act which is not voluntary can be said to have
mens- rea to make the accused liable for the offence.

i. Community service
Community service or corrective labour is a form of punishment in
which the convict is not deprived of his liberty. A corrective sentence is
served either at the place of accused's ordinary work place, or in a
special corrective labour institution in the locality where the accused is
domiciled. Corrective labour is the standard penalty given in those
cases where it is considered that the accused need not be isolated
from the society. The accused is paid emoluments for the work after
adjusting a part of the amount towards establishment and maintenance
cost etc. The period ranges between one month and one year in such
cases. This system is used in Soviet Russia with good results. An
important feature of this type of punishment is that the accused is not
deprived of his liberty and he may go home after the day's work.

The Bharatiya Nyaya Sanhita, 2023 for the first time in India has rooted
for community service as a punishment for petty offences it coveres:

“Community service is a powerful tool for rehabilitation, allowing

offenders to directly give back to the communities they have harmed.”–
Judge Jane Doe
Benefits of Community Service
 Rehabilitation: Community service can help offenders develop
new skills, gain a sense of responsibility, and address the root
causes of their behavior.
 Restitution: It allows offenders to make amends for their crimes by
contributing to the community.
 Cost-Effective: Community service is often more cost-effective
than imprisonment, reducing the burden on the criminal justice
system.
 The BNS has introduced community service for six specific
offences, including:

 Non-appearance in response to a proclamation under Section 84

BNSS (Section 209 BNS).
 Public servant unlawfully engaging in trade (Section 202 BNS).
 Attempt to commit suicide to compel or restrain exercise of lawful
power (Section 226 BNS).
 Petty theft (involving property worth less than INR 5,000) by first-
time offenders upon returning the stolen property (Proviso to
Section 303 BNS).
 Misconduct in public by a drunken person (Section 355 BNS).
 Defamation (Section 356 BNS).
j. Solitary confinement
Sec 11- Whenever any person is:
 convicted of an offence for which under this Sanhita
 the Court has power to sentence him to rigorous imprisonment,
 the Court may, by its sentence, order that the offender shall be
kept in solitary confinement for any portion or portions of the
imprisonment to which he is sentenced,
 not exceeding three months in the whole, according to the
following scale, namely:
(a) a time not exceeding one month if the term of imprisonment shall
not exceed six months;
(b) a time not exceeding two months if the term of imprisonment shall
exceed six months and shall not exceed one year;
(c) a time not exceeding three months if the term of imprisonment shall
exceed one year.

Sec 12- In executing a sentence of solitary confinement, such

confinement shall in no case exceed fourteen days at a time, with
intervals between the periods of solitary confinement of not less
duration than such periods; and when the imprisonment awarded shall
exceed three months, the solitary confinement shall not exceed seven
days in
any one month of the whole imprisonment awarded, with intervals
between the periods of solitary confinement of not less duration than
such periods.

Limit of solitary confinement- In view of the gravity and harshness of

solitary confinement, the draftsmen have specifically provided in this
section that in no case the sentence of solitary confinement be
awarded more than 14 days at a time, and it must be imposed at
intervals. It is medically and scientifically proved that solitary
confinement, if continued for a long time, is bound to produce mental
derangement and insanity.

The Supreme Court in Kishore Singh v Ravinder Dev, held that solitary
confinement or putting fetters could be imposed only exceptional cases
for security reasons. Flimsy grounds like "loitering in the prison",
"behaving insolently and in an uncivilized manner", "tearing off his
history ticket" cannot be the foundation for the torturous treatment of
solitary confinement and crossbar fetters.

Keeping prisoners in separate solitary rooms for long periods from

eight months to eleven months (duration) spell are long enough to be
regarded as barbarous and would amount to breach of fundamental
law laid down by the Supreme Court in the Sunil Batra case.

Solitary confinement disguised as "keeping in separate cell" and

imposition of fetters are not to be restored to, save in the rarest of rare
cases and with strict adherence to the procedural safeguards solitary
confinement would virtually mean that prisoners are not persons to be
dealt with at the mercy of the prison authority. If special restrictions of a
punitive or harsh character like solitary confinement or putting fetters
have to be imposed for convincing security reasons, it is necessary to
comply with natural justice.
Q.5 Explain the maxim, “ignorantia facit excusat, ignorantia juris
non-excusat.” Distinguish between mistake of fact and mistake of
law.

Or

“A mistake of fact is a good defence but a mistake of law is not.”

Discuss.

Mistake of fact

Sec 14-- 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 and not by reason of a mistake of law in
good faith believes himself to be, bound by law to do it.

Illustrations.

(a) 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.

(b) A, an officer of a Court, being ordered by that Court to arrest Y,

and, after due enquiry, believing Z to be Y, arrests Z. A has committed
no offence.

Sec 17-- 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 by reason of a
mistake of law in good faith, believes himself to be justified by law, in
doing it.

Illustration.

A sees Z commit what appears to A to be a murder. A, in the exercise,

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

 Mistake and ignorance are words of ancient vintage and rarely

distinguished. Mistake of fact always supposes some error of
opinion as to the real facts, whereas ignorance of fact may be
devoid of error but result in mere want of knowledge or opinion.
 Sections 14 and 17 of the Bharatiya Nyaya Sanhita, 2023
incorporate the common law principle of ignorantia facit doth
excusat, ignorantia juris non excusat (ignorance of fact of law does
not excuse).
 The justification for exemption on the ground of excuses, ignorance
of law mistake of fact and ignorance of fact is based on the principle
that a man who is mistaken or ignorant about the existence of a fact
cannot form the necessary intention to constitute a crime and is
therefore not responsible in law for his deeds.
 Thus, a bona fide - belief in good faith in the existence of facts,
which if they do exist, would make an act innocent in law. On the
other hand, mistake of law is no defence since every man is
presumed to know the law and hence responsible in case of its
breach.
o The act of the police officer in the illustration to section 14, in
arresting Z in place of Y for whose arrest, in fact, no warrant
was issued, does not make him guilty of wrongful
confinement (section 127(2)). It was only, after making
reasonable inquires and on well- founded grounds, when the
police officer was convinced that Z was Y, that he arrested.
o The police officer believed in good faith that he was bound
by law to arrest Y because of the direction of a court of law,
by issuing a warrant, to arrest him. Had the facts been as
supposed, the arrest would have been legal. Since the police
officer honestly believed in good faith by reason of a mistake
of fact Z, to be Y, he will be protected under section 14.
 Similarly, in the illustration to section 17, the act of A, in
arresting Z in order to bring him before the proper authorities,
when Z was acting in self-defence, is not culpable. A presumed
in good faith that Z was committing murder and so he thought on
reasonable grounds in good faith that he was justified by law to
apprehend him. A will be protected under section 17.

 Mistake of fact or ignorance of fact under common law is

generally a defence, provided that it was one of fact, and
provided that had the facts been as the accused supposed, he
would have had a defence to the crime with which he is charged.
That this ethical principle has long been expressed in criminal
law is apparent from an early seventeenth century case, R v
Levett.

o The accused was held not to have been guilty of unlawful

homicide, when he killed a woman (a friend of his
servant) who was hiding behind a curtain in his house,
mistakenly believing her to be a burglar. This may be
called a case of "pure mistake" because he did it
ignorantly with no intention of killing the woman, but
rather of killing a burglar.
o Mistake may give rise to the defence of an accident, as
when a gun being handled by a person who mistakenly
believes it to be unloaded, goes off and kills someone,
but the person is liable for the crime of negligence.
 R. v. Tolson 1889- Mrs Tolson married Mr Tolson on 11
September 1880. 13 December 1881 On inquiries made by her
father and others she was led to believe that her husband had
been drowned in a vessel bound for America, which went down
with all hands (persons) on board. On 10 January 1887, Mrs
Tolson, supposing herself to be a widow contracted a second
marriage with another man. The circumstances were well known
to the second husband and the ceremony was in no way
concealed. The intent to commit bigamy was held to be
negatived by a majority of five to nine
 judges by the accused's mistaken belief in the death of her
husband.

Mistake of Law is no defence.

 If ignorance of the law were a defence, it would be open to an accused

charged of a crime to allege that he was not aware of the law on the point;
and it would be quite impossible for the prosecution to prove that the
accused was cognizant of the law in question. The result would be the
acquittal of accused persons in all cases, rendering the administration of
justice nigh unto impossible.
 Another important justification for not allowing a mistake of law as a
defence apparently is that the operation of a provision of the law is
intended to be independent of its being known to everybody. If this were
not so, great difficulty would be experienced in the enforcement of the law
and would lead to injustice.
 In the case of State of Maharashtra v Mayer Hans George, the Supreme
Court refused to accept the plea of ignorance of the notification issued by
the Reserve Bank of India on 24 November 1962 imposing restrictions on
the transit of gold to place outside the territory of India and held the
accused, a French national, who left Zurich in his way to Manila 27
November 1962 liable for violating the said notification, when his landed in
Bombay.

Section 14 deals with two classes of cases wherein a person is

excused from criminal liability on the ground of mistake of fact, viz.,

(1) When a person is bound by law to do something and does it;

(2) When a person believes in good faith, owing to a mistake of

fact and not a mistake of law, that he is bound to do something
and does it.

Illustration (a) appended to section 14 explains the first proviso

of the section, wherein a soldier who fires on a mob by the order
of his superior officer in conformity with the commands of the
law, is exempted from criminal liability.2
Subordinate officer carrying the orders of superior is not liable:

The Supreme Court in State of West Bengal v Shew Mangal Singh,

AIR 1981 SC 1917, held that a subordinate officer carrying out the
orders of a superior officer in obedience with the command is not guilty
of committing any offence under this Section as it then stood under the
erstwhile Indian Penal Code, 1860 (Now BNS 2023).

Section 17 is complementary to section 14

Section 17 exempts a man from criminal liability in those cases where

by reason of a mistake (or ignorance) of fact in good faith, and not by
reason of a mistake of law, a man considers himself justified by law to
do an act in a particular way. For example, as stated in the illustration
appended to the section, A has committed no offence in arresting Z to
bring him before the proper authorities, because A presumed in good
faith that I was committing murder; Thus, he thought on reasonable
grounds that he was justified by law to arrest a murderer, though in
fact, Z, was acting in self-defence and was not a murderer.

In Chirangi v State the appellant was given the benefit of section 79

IPC (now sec. 17 BNS) and acquitted of the charge of murdering his
son, aged 12 years, under section 302 IPC. The accused on the day of
occurrence took an axe and went with his son (deceased) to a nearby
hillock, known as Budra Mata in order to gather some leaves, the
appellant in a moment of delusion considered that his target was a tiger
and not his son; and he accordingly assailed it with his axe.

Distinction between section 14 and section 17

1. Under section 14, a person acts under legal compulsion, while under
section 17 he a under a legal justification.
2. Section 14 grants exemption to a person from criminal liability when
he believe himself bound by law to do a thing in a particular way
although the true state of facts serve his act to be an offence.

For instance, if A, a soldier, fires on a mob by the order of F

superior officer, in conformity with the commands of the law, A
has committed no offence [e.g. illustration (a) to section 14].

Section 17 on the other hand, deals with cases wherein a person by

reason of a mistake fact feels himself to be justified by law in doing an
act in a particular way.

A seeing Z engage in inflicting severe blow on B, seizes him and

takes him to the police. Later it is shown that was acting only in
self-defence and as such the seizure of Z by A was unlawful.
However, A protected under section 17 since he acted in good
faith under a mistake of fact (e.g. illustration of section 17).

3. Under section 14, a person acts because he believes he must act in

a particular way Illustration (b) to section 14]; whereas under section 17
a person thinks he has justification for action and acts accordingly (see
illustration to section 17).
Q. 6 Short note on following

a.Accident under BNS 2023.

[sec 18] Accident in doing a lawful act.

Nothing is an offence which is done by Accident in doing a lawful act

without any criminal intention or knowledge, 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 proper caution on the part of A, his act
is excusable and not an offence.

Elements of section:

(1) accident or misfortune,

(2) without any criminal intention or knowledge,

(3) in a lawful manner,

(4) by lawful means, and

(5) with proper care and caution.

Section 18 therefore refutes criminal liability in respect of accidental

acts. A man is not criminally responsible for unintended and unknown
consequences of his lawful acts performed in a lawful manner, by a
lawful means, with proper care and caution.

That is to say, an act is not criminal, if it is done with no criminal

intention or knowledge, merely by reason of any harm which it might
cause accidentally to any person.

1. Accident and misfortune

An accident in ordinary parlance means an event that occurs without
one's knowledge and beyond expectation.

An accident is an incident that takes place out of the ordinary course of

events, which man of ordinary prudence could anticipate and provide
measures to check it.

Like which misfortune is an accident with harmful consequences

resulting in injury to another.

If A, a workman while throwing sand from a roof top, gives proper

warning but, a passer-by is nevertheless killed, the act is accidental
one for which A is not liable.

If A takes up a gun, not knowing whether it is loaded, points it in sport

at B, pulls trigger, and B is shot dead, B's death is not accidental since
there was not of proper care and caution on the part of A. Accordingly
A will be liable for causing B's death by negligence under section 103.
However, if A had reason to believe that the gun was not loaded, death
would have been accidental.

But if the act is illegal, it will not afford a ground for exemption from
criminal liability.

A Intending to kill B, mixes poison in B's food but C, his cousin, takes
the food and dies. He C’s death is an accidental act in the sense of
being an act of misfortune. However, A is not exempted from killing C
despite the fact that he never intended to kill him, since the act killing a
human being is an illegal act; A is as much liable for killing C by
invoking the principle of transfer of malice.

2. Lawful act in a lawful manner

Sometimes difficulty arises in interpreting the clause "lawful act in a

lawful manner by lawful means" for fixing criminal liability with respect
to accidental acts.

For instance, if A while shooting a jackal in the jungle with an

unlicensed gun, by accident kills a man who was hiding behind a bush,
he would not
 be liable for murder. The fact that A used an unlicensed gun would not
preclude him from claiming the protection under this section as it stood
then. because the circumstances under which the act was done were
such as to negate the existence of mens rea.

It is interesting to note that the framers of the Bharatiya Nyaya Sanhita,

2023 have gone to the extent of holding that, even if an accident takes
place while performing an unlawful act, protection of section 18 would
be available if there is no causal connection between the resultant
harm and the act in question.

b.Necessity

[sec 19] 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.

Section 19 of the Sanhita grants immunity to a man from criminal

charge with respect to acts committed under compelling circumstances
forced by necessity. For instance, as stated by eminent jurist S.
Pollard, as long ago as 1550 in the case of Ranigar v Fogossa:

It is a common proverb that Quod necessitas non habet leegem,-

necessity knows no law.

The justification for exemption from criminal action on the ground of

necessity has been well summarised by Lord Mansfield in the
celebrated case of George Stratton, (1779) in the Following words:

“Whenever necessity forces a man to do an illegal act, forces him to do

it, it justifies him, because no man can be guilty of a crime without the
ill- will and intention of his mind. It must be involuntary A man who
is
 absolutely by natural necessity forced, his will does not go along with
the act. "

Thus, an act which would otherwise be a crime may in some cases be

excused if the person accused can show that it was only done in order
to avoid consequences which could not otherwise be avoided, and
which, if they had followed, would have inflicted upon him or upon
others, whom he was bound to protect inevitable and irreparable evil;
that no more was done than was reasonably necessary for that
purpose, and that the evil inflicted by it was not disproportionate to the
evil avoided.

Extent and scope of the defence

To attract the provisions of this section the following conditions must be

satisfied, viz.,

(i) the act must have been done without any criminal intention to cause
harm;

(ii) the act must be done in good faith for the purpose of preventing or
avoiding other harm to person or property; and

(iii) the harm must have been done in order to avert a greater harm.

The explanation to the section makes it clear that it is a question of fact

to be decided in accordance with each case as to whether the harm to
be prevented or avoided was of such a

c.Infancy

Sections 20 and 21 of the Bharatiya Nyaya Sanhita, 2023 grant

immunity to an infant below a particular age from criminal
responsibility.

Section 20 totally absolves a child under seven years of age from

criminal responsibility, whereas section 21 grants partial immunity
against prosecution and punishment for a child above 7 and under 12
years of age.
This rule is based on the general proposition that an infant below a
certain age is incapable of distinguishing between right and wrong and
so no criminal responsibility should be fastened in law for his deeds.

Absolute immunity

Section 20 of the Sanhita completely makes an infant below seven

years of age immune from criminal liability, since a child below this age
is considered doli incapax in law.

That is to say, a child under such an age cannot form the necessary
intention to constitute a crime since he possesses no adequate
discretion or understanding at this age for his deeds. Thus, if a child
below seven years of age is charged for committing a crime, the fact
that he was at that time below seven years of age is ipso facto an
answer to the prosecution. The scope of the Immunity granted under
this section is wide enough to exempt a child not only from prosecution
for offences under the Bharatiya Nyaya Sanhita, 2023 but also from
offences under the special as well as local laws, as explained under
section 2(24).

In Hiralal Mallick v State of Bihar, the Supreme Court held that a child
below 7 years is completely free of any criminal responsibility but a
child between 7 and 12 years of age is qualified to avail the defence of
doli incapax, if it is proved that he has not attained sufficient maturity of
understanding to judge the nature and consequences of his act.

In Ulla Mahapatra case, the convict is a boy of about 12 years of age.

He has been convicted of an offence under section 302, Penal Code
for causing the death of a Dandasi boy named Ranka Naik by a Kathi
(knife) and has been sentenced to transportation for life. (Life
imprisonment).

Deceased died as a result of a blow given by Appellant with a kathi.

When appellant picked up his knife and advanced towards deceased
with a threatening gesture, saying that he would cut him to bite, and did
actually cut him, his entire action could only lead to one inference, that
he does what he intended to do and that he knew all time that a blow
inflicted with a kathi would effectuate his intention-Sentence reduced
as Appellant shall be sent to reformatory school for five years
considering his age.

In Marimuthu case (1909) a girl aged 10 years who picked up a silver

button and gave it to her mother was not held liable for theft. It was
held that these factors were not sufficient to show maturity on her part
to understand the nature of her act.
 Q.7 To what extent is unsoundness of mind/ Insanity accepted as a
defence to criminal liability under BNS? What is difference between
medical unsoundness and legal unsoundness.

Act of a person of unsound mind

[s 22] Act of a person of unsound mind

Nothing is an offence which is done by a person who, at the time of

doing it, by reason of unsoundness of mind, is incapable of knowing
the nature of the act, or that he is doing what is either wrong or
contrary to law.

Section 22 states that unsoundness of mind is a defence of a person to

a criminal charge on the theory that "one who is insane has no mind
and hence cannot have the necessary mens red to commit a crime."

Being deprived of free will a mad man is placed in even a worse

predicament than a child because the latter can at least control his will
and regulate his conduct, whereas the former cannot. In fact, a mad
man is punished by his own madness - Furiousus furore sui punier.
Moreover, the act of an insane person being unintentional and
involuntary, no court can correct him by way of punishment.

However, insanity in law differs markedly from the medical concept.

Insanity in law mean a disorder of the mind which impairs the cognitive
faculty, i.e., the reasoning capacity of a man to such an extent as to
render him incapable of understanding the nature and consequences
of his actions. In other words, every aberrative act performed by a
person cannot exempt him from criminal responsibility; it is only
insanity of a particular or appropriate kind which is regarded as insanity
in law that will exempt a man from criminal liability.

Test of Insanity

The first case which dealt with the law of insanity was R v. Arnold (1724), in which
Edward Arnold attempted to kill and even wound Lord Onslow and was tried for the
same. The evidence clearly showed that the accused was suffering from a mental
disorder. Tracy, J. observed:

“If he was under the visitation of God and could not distinguish between good and
evil, and did not know what he did, though he committed the greatest offence, yet he
could not be guilty of any offence against any law whatsoever.”

As stated in the aforementioned case, a person can demand immunity if, due to his
unsoundness of mind, he was incapable of distinguishing between good and evil and
did not know the nature of the act committed by him. This test is known as the “Wild
Beast Test.”

The second test evolved in Hadfield’s case (1800). Hadfield was discharged from
the army on the ground of insanity and was tried for high treason in attempting to
assassinate King George III. The counsel of the accused, Lord Thomas Erskine,
defended him and proved in front of the judge that Hadfield only pretended to kill the
King and is not guilty, on the ground of insane delusion from which the accused was
suffering.

Erskine stated that insanity was to be determined by the fact of fixed insane delusion
and that such delusion under which the defendant acted is the main reason for his
crime. This test was known as the “Insane Delusion Test.”

Finally, the third test was formulated in Bowler’s case (1812). In this case, Le Blanc,
J. stated that the jury has to decide when the accused committed the offence,
whether he was capable of distinguishing right from wrong or under the control of an
illusion. After the Bowler’s case, the courts have placed more emphasis on the
capacity of the accused to distinguish right from wrong, though the test was not that
clear.

But the most notable of all is the "right and wrong test" formulated in Mc'Naughten's
case. In this case, the law relating to insanity is to be found in the form of replies
given by the 15 judges of the House of Lords to the five questions put to them with a
view to clarifying the law on this subject. Over time those questions and particularly
the answers to the second and third questions assumed great significance in as
much as
they find place in the Penal Code of almost all countries in the world influenced by
common law.

These questions were:

Question II. What are the proper questions to be submitted to the jury when a person
aflicted with insane delusions respecting one or more particular subject or person, is
charged with the commission of a crime (murder, for instance), and insanity is set up
as a defence;

Question III.-In what terms ought the question to be left to the jury as to the
prisoner's state of mind at the time when the act was committed?

The answers to these questions were:

To establish a defence on the ground of insanity, it must be clearly proved that at the
time of committing the act the accused was labouring under such a defect of reason
due to disease of the mind as not to know the nature and the quality of the act he
was doing, or if he did know it, that he did not know he was doing what was wrong.

Section 22 of the Bharatiya Nyaya Sanhita has been drafted in the light of the replies
to the second and the third questions, which is generally known as the Mc'Naughten
Rules.

However, section 22 uses a more comprehensive term, "unsoundness of mind",

instead of insanity".

As stated by Huda, the use of the word "unsoundness of mind" has the advantage of
doing away with the necessity of defining insanity and of artificially bringing within its
scope different conditions and affliction of the mind which ordinarily do not come
within its meaning, but which nonetheless stand on the same footing in regard to the
exemptions from criminal liability.

Ingredients of section 22

1.To invoke the benefit of section 22, it must be proved that at the time of
commission of the offence, the accused was (insane) non compos mentis (not
of sound mind) and that the soundness of mind was of such a degree and
nature as to fulfil one of the tests laid down in the section. These are:
first, the accused was incapable of knowing the nature of the act, and
secondly, that the accused was precluded by reason of unsoundness
of mind from understanding that what he was doing was either wrong
or contrary to law.

The first category covers two situations, namely, automatism and

mistake of fact due to soundness of mind as a defence. For instance, if
a mad man cuts off the head of a man keeping on the road, because it
would be fun to watch him searching for his head when he ok, the act
shows that he did not know the nature and quality of his act. In fact, he
has to idea that his fun could never happen, the moment the head was
separated from the rest of the man's body, as the man would never
recover consciousness.

The second category covers those cases wherein a man by reason of

delusion is unable to predicate the distinction between right and wrong.
 Q. 8. How far intoxication is taken as a ground of defence in a
criminal prosecution?

Intoxication (sections 23 and 24)

An Inebriated (intoxicated) person, is in the same state of mental

condition as an insane person. Such a state of mind has been termed
dementia offectatia- a form of lunacy in which the function of the mind
is temporarily suspended. But no one can be permitted to wear the
cloak of immunity by getting drunk, and so voluntary drunkenness is
never an answer to a criminal charge.

But if a man is forced to drunkenness through trick or fraud, ignorance,

without the accused's knowledge or against his will, the act is not a
voluntary act and so he is excused from liability.

2.Involuntary Intoxication

Section 23 lays down the test to determine when a person is said to

have caused an act as a result of involuntary intoxication so as to claim
the benefit of exemption under this section.

Section 23 gives the same immunity to a person intoxicated

involuntarily as section 22 gives to a person of "unsound mind". That is
to say, a man in order to claim exemption from criminal liability on the
ground of involuntary intoxication must establish that he was:

(i) incapable of knowing the nature of the act, or

(ii) that he was doing what was either wrong or contrary to law, and

(iii) that the thing which intoxicated him was given to him without his
knowledge or against his will.

The justification for such a provision is based on the contention that the
accused had not contributed himself towards his drunkenness and
which is not likely to be repeated as in the case of a voluntary act. For
instance, if a man commits an offence when made intoxicated
through fraud of
another or through coercion or ignorance practiced by someone, he is
protected under this section. Because in all such cases the person
intoxicated may not be said to have acted on his own accord and
therefore is not responsible for the consequences of his act.

voluntary drunkenness

Drunkenness was never an excuse for criminal misconduct and indeed

the clause no better Drunken broadly assert that voluntary
drunkenness must be considered rather an aggravation than a
defence. This view was based upon the common law principle that a
man who by his own voluntary debauches and destroys his will power
be act situated in regard to criminal acts than a sober man.

An early statement of the law found in Reniger v Fogona, (1980) 75 ER

1 (31), states that: if a person, who is drunk kills another, this shall be
felony, and he shall be hanged for it, and yet he did it through
ignorance, for when he was drunk he had no understanding nor
memory; but inasmuch as that ignorance was occasioned by his own
act and folly, and he might have avoided it, he shall not be privileged
thereby.'

Judicial decisions extending over a period of nearly 140 years make it

plain that the rigidity of this rule was gradually relaxed in the nineteenth
century.

Although voluntary drunkenness cannot excuse from the commission

of a crime, yet where upon a charge of murder the material question is
whether an act was premeditated or done only in the stress, heat or
impulse of the moment, the fact of the party being intoxicated is a
circumstance proper to be taken into consideration.

It is said that one who sins when drunk, should be punished when he is
sober (qui peccat ebrius, luat sobrius). The justification for punishment
in such cases is based on the principle that intoxication is the result of
a voluntary act of the accused and he must answer for it. although he
might not have been capable of self-restraint at the time the crime was
committed.
Ingredients of section 24

Section 24 deals with that class of cases wherein a man enters into
intoxication voluntary. It imputes (attributes) the same knowledge to
such a man as he would have had. he not been intoxicated, Le, the
knowledge of a questions of his acts sober man with regard to the

For instance, if A. a man who has consumed too much liquor, takes a
knife from his and goes along the road shouting his intention to kill B,
with whom he had rolled earlier, and kills C who tries to pacify him, A
would be imputed with the same knowledge as he would have had, had
he been sober and his act would amount to culpable ide not amounting
to murder punishable under section 105, BNS and not

In Basudev v State of Pepsu, the law of drunkenness has been very

nicely summarised. The appellant Basdev of the village Harigarh was a
retired military Jamadar. He charged with the murder of a young boy
named Maghar Singh, aged about 15 or 16 years old. The two of them
and others of the same village went to attend a wedding in her village.
All of them went to the house of the bride to take the mid-day meal.
Some down in their seats and some had not. The appellant asked
Maghar Singh, to step aside a little so that he might occupy a
convenient seat. But Maghar Singh did not move. The appellant
whipped out a pistol and shot the boy in the abdomen. The injury
proved fatal.

While rejecting the plea of the accused to allow him the benefit of section
24 and reduce the charge from murder to culpable homicide not
amounting to murder, the Supreme Court and down the following rules
for guidance, viz.,

(6)The absence of understanding of the nature and consequences of

an act. whether produced by drunkenness or otherwise, is not a
defence to the crime charged;
(ii) The evidence of drunkenness which renders the accused incapable
of forming the specific intent essential to constitute the crime, should
be taken into consideration with other proved facts in order to
determine whether or not he had this intent;

Evidence of intoxication being less than a proven inability in the

accused to form the intention necessary to constitute the crime, and
merely establishing that his mind was influenced by alcohol so that he
could more easily give way to some violent passion, does not
contradict the assumption that a man intends the natural
consequences of his acts.
Q. 9. What do you understand by right of private defence in criminal law why
this right is provided?

OR

Q. 10 Discuss the right to private defence against the body. In what situations
can one person kill another in private defence of body?

OR

Q. 11 Explain the right to private defence against the property. In what

situations can a person kill another or in private defence of property?

COMMENTS

Sections 34 to 44 of the Bharatiya Nyaya Sanhita, 2023 deals with 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. No doubt, it is the primary duty of the State to protect life and
the property of the individuals, but no State, no matter how large its
resources might be, can depute a policeman to watch the activities of
each and every individual and protect them against the mischievous
acts of criminals. There may be situations wherein help from the Stare
authorities cannot be obtained in order to repel an unlawful aggression,
either because there is no time to ask for such help, or for any other
reason. To meet such exigencies the law has given the right of private
defence of body and property to every individual.

The law of private defence is based on two cardinal principles, viz.,

(i) Everyone has the right to defend his own body and property, as also
another's body and property.
(ii) The right cannot be applied as a presence for justifying aggression
for causing harm to another person, nor for causing more harm than is
necessary to inflict for the purpose of defence

The right is essentially of defence not of retribution. As pointed out by

Russell-

...A man is justified in resisting by force anyone who manifestly

intends and endeavours by violence or surprise to commit a
known felony against either his person, habitation or property. In
these cases he is not obliged to retreat, and may not merely
resist the attack where he stands but may indeed pursue his
adversary until the danger is ended and if in a conflict between
them he happens to kill his attacker, such killing is justifiable

Section 34 states the general proposition, that "nothing is an offence

which is done in the Exercise of the right of private defence."

However, the right is not absolute and is subject to restrictions. The

subsequent sections 35 to 43 state the limits within which the right can
be exercised, the extent of injury that can be inflicted and against
whom these rights can be exercised.

The right of private defence is a high prized gift granted to the citizens
to protect themselves by effective self-resistance against unlawful
aggression.

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, viz.;

(i) If the deceased was the actual assailant, and

(ii) If the offence committed by the deceased which occasioned the

cause of the exercise of right of private defence of body and property
falls within anyone of the six or four categories enumerated in sections
38 and 41 of the Nyaya Sanhita respectively, or was an assault
reasonably causing the apprehension of his death, as explained in
section 44 of the Sanhita.

The right of private defence has been elaborately discussed in sections

35 to 44 from two aspects, namely, defence of the body and defence of
property.

Sections 35, 36 and 37 are of a general nature and deal with both
aspects of right to the defence of body and property.

On the other hand,

(i) sections 38, 39, 40 and 44 are concerned with defence of body and

(ii) sections 41, 42 and 43 with defence of property.

In Jagdish v State of Rajasthan,14 the Supreme Court while referring

sections 96 and 99 of IPC and section 105 of the Evidence Act has
evolved following set of principles to be observed when plea of self-
defense is raised in a given case:

(1) The right of private defence is essentially a defensive right available

only when the circumstances clearly justify.

(2) Under section 105 of the Evidence Act, the burden of proof is on
the accused, who sets up the plea of self-defense.

(3) The burden of establishing the plea of self-defense is on the accused.

(4) It is not necessary for the accused to plead in so many words that
he acted in self defence. A different plea adopted by the accused does
not foreclose the judicial consideration on the exercise of the right of
private defence. The crucial factor is not whether the accused pleaded
right of private defence but whether the accused had the cause to
reasonably apprehend such a danger. If the circumstances show that
the right of private defence was legitimately exercised, then it is open
to the court to consider such a plea.

(5) A plea of right of private defence cannot be based on surmises and

speculation.
(6) Where the right of private defence is pleaded, the defence must be
a reasonable and probable version satisfying the court that the harm
caused by the accused was necessary for either warding off the attack
or for forestalling the further reasonable apprehension from the side of
the accused.

(7) Whether in a particular set of circumstances, a person legitimately

acted in the exercise of the right of private defence is a question of fact
to be determined on the facts and circumstances of each case. In
determining this question of fact, the court must consider all the
surrounding circumstances.

(8) In order to find whether the right of private defence is available to

an accused, the entire incident must be examined with care and
viewed on its proper setting.

10) To claim a right of private defence extending to voluntary causing

of death, the accused must show that there were circumstances giving
rise to reasonable grounds for apprehending that either death or
grievous hurt would be caused to him.

(11) The number of injuries is not always a safe criterion for

determining who the aggressor was. It cannot be stated as a universal
rule that whenever the injuries are on the body of the accused persons,
a presumption must necessarily be raised that the accused persons
had caused injuries in exercise of the right of private defence.

Sec. 35 Right of private defence of the body and of property. Every

person has a right, subject to the restrictions contained in section 37, to
defend-

(a) his own body, and the body of any other person, against any
offence affecting the human body;

(b) the property, whether movable or immovable, of himself or of

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

To invoke the plea of right of private defence, there must be an

offence committed of attempted to be committed against the
person himself exercising such a right, or any other person. The
question of the accrual of the right of private defence, however,
does not depend upon an injury being caused to the man in
question. The right could be exercised if reasonable
apprehension of causing grievous injury can be established.

If the threat to person or property of the person is real and

immediate, he is not required to weigh in a golden scale the kind
of instrument and the force which he exerts on the spur of the
moment.

In order to ascertain whether the right of private defence is

available to a person, the entire incident must be examined with
care and viewed in its proper setting. The injuries received by
the person, the imminence of threat to his safety, the injuries
caused by the accused and the circumstances of whether the
person had time to have recourse to public authorities are all
relevant factors to be considered on a plea of private defence.

In Biran Singh v State of Bihar, two of the accused, having

received simple injuries, ran back to their house, fetched a
sword and inflicted fatal blows on the head of the deceased with
that sword. The court held that even assuming that the
deceased had inflicted simple injuries on the accused, there
could be no justification for any of the accused to hit the
deceased with a sword on a vital part of the body such as the
head. The right of private defence, therefore, could not be
availed by the accused.
 In the case of Thangavel v State, the court held that the right to
self-preservation is inherent to the right to life but in the exercise
of that right, no person can hinder another person’s rights.

Defence of body and property of others

The right of private defence extends not only to the defence of

one's own body and property, as under the English law, but also
extends to defending the body and property of any other person.

SECTION 36 BNS (BHARATIYA NYAYA SANHITA) – Right of

private defence against act of a person of unsound mind, etc.

When an act, which would otherwise be a certain offence, is not

that offence, by reason of the youth, the want of maturity of
understanding, the unsoundness of mind or the intoxication
of the person doing that act, or by reason of any
misconception on the part of that person, every person has the
same right of private defence against that act which he would
have if the act were that offence.

Illustrations.

(a) Z, a person of unsound mind, attempts to kill A; Z is guilty

of no offence. But A has the same right of private defence which
he would have if Z were sane.

(b) A enters by night a house which he is legally entitled to

enter. Z, in good faith, taking A for a house-breaker, attacks A.
Here Z, by attacking A under this misconception, commits no
offence. But A has the same right of private defence against Z,
which he would have if Z were not acting under that
misconception.

Sec 37 outlines specific restrictions on the right of private defence, explaining when
this right cannot be claimed. It ensures that self-defence cannot be abused and that
it is exercised within legal-bounds.
 1.No Right of Private Defence Against Public Servants:

Clause (a): There is no right of private defence against acts committed

by public servants acting in good faith under the authority of their office,
even if their actions are not strictly legal. However, this is limited to
cases where their actions do not reasonably cause fear of death or
grievous hurt.
Clause (b): The same applies when a public servant directs someone
else to perform such an act. If the public servant acts in good faith and
their direction does not reasonably cause fear of death or grievous
hurt, private defence is not allowed.

2.No Private Defence When Public Authorities Can Be Reached:

Clause (c): If there is sufficient time to seek help from public

authorities, the right to private defence cannot be exercised. This
prevents people from taking the law into their own hands when proper
legal channels are available.

3.Excessive Harm Not Permitted:

Clause (2): Even when the right of private defence exists, a person is
not allowed to inflict more harm than necessary. This means the
defensive actions must be proportional to the threat faced.

BNS- Sec 37 ensures that private defence is not used unjustifiably,

particularly against public officials acting in good faith or when legal
assistance is readily available. It also limits the amount of harm inflicted
in defence, emphasizing that defensive actions should be proportionate
to the threat.

Right to Private defense against human Body

right of Private defense Causing Death

  Section 38 states that the right of private defense of the body extends, under
the restrictions specified in section 37, 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:

o Such an assault as may reasonably cause the apprehension that death

will otherwise be the consequence of such assault.

o Such an assault as may reasonably cause the apprehension that

grievous hurt will otherwise be the consequence of such assault.

o An assault with the intention of committing rape.

o An assault with the intention of gratifying unnatural lust.

o An assault with the intention of kidnapping or abducting.

o Circumstances which may reasonably cause him to apprehend that he

will be unable to have recourse to the public authorities for his release

o An act of throwing or administering acid or an attempt to throw or

administer acid which may reasonably cause the apprehension that
grievous hurt will otherwise be the consequence of such act.

Right of Private Defense Causing Harm to the Body

 Section 39 states that if the offence be not of any of the descriptions specified
in section 38, the right of private defense of the body does not extend to the
voluntary causing of death to the assailant, but does extend, under the
restrictions specified in section 37, to the voluntary causing to the assailant of
any harm other than death.

Commencement of Right of Private Defense

 Section 40 states that the right of private defense of the body commences as
soon as a reasonable apprehension of danger to the body arises from an
attempt or threat to commit the offence though the offence may not have been
committed; and it continues as long as such apprehension of danger to the
body continues.
Right of Private Defense Against Deadly Assault

 Section 44 states that if in the exercise of the right of private defense 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 defense extends to the
running of that risk.

 James Martin v. State of Kerala (2003): It was held that factors, for example,
wounds got by the accused, the advent of risk to his security, wounds that are
brought about by the denounced and furthermore the conditions wherein the
wounds were caused are taken into consideration. It is hard to anticipate that
an individual should measure the power required. Such circumstances are
seen sober-mindedly, remembering ordinary human response and conduct.

 Yeshwant Rao v. State of Madhya Pradesh (1992): In this case it was held
that the assault that occurred on the girl was adequate to make sensible
apprehension in the brain of the accused and in this way his demonstration
was supported. The privilege of private defense was practiced by the accused
to secure the body of another.

 Onkarnath Singh v. State of Uttar Pradesh (1974): It was held that there was
nothing to legitimize the dangerous assault. The power utilized was out of
extent to the alleged threat, which never again existed from the complainant
party.

Right to Private Defence against Property

Sec-41 defines the extent of the right to defend property, including situations where
using force may be justified. This right allows for both harm and even death under
certain serious circumstances.

The right of private defence of property allows for the use of force, including causing
death, under specific serious conditions. These include:
 o Robbery: When a person unlawfully takes property with the use or
threat of violence.

o House-breaking after Sunset and Before Sunrise: When a person

unlawfully enters a building with the intent to commit an offence during
the night.

o Mischief by Fire or Explosive Substance: When fire or explosives

are used destructively on buildings or vessels used for living or
property storage.

o Theft, Mischief, or House-Trespass: When these acts are

accompanied by a reasonable fear that failing to use force will lead to
death or grievous hurt.

Under the situations outlined, the right of private defence extends to causing any
form of harm, including death, to the wrong-doer. The use of force must be
proportional to the threat and necessary to protect the property.

Sec.-42 provides guidance on the extent to which a person can exercise their
right of private defence when they face offences such as theft, mischief, or
criminal trespass. These are situations where harm may be caused in defence,
but the right has limitations.

Limited to Harm Other Than Death: In cases of theft, mischief, or criminal

trespass, BNS- sec. 42 specifically limits the right of private defence. The person
exercising this right cannot voluntarily cause the death of the wrong-doer. The
defence only extends to causing harm other than death, such as injury,
restraint, or force to stop the offender.

The right extends to causing any harm short of death to the wrong-doer. This
can include physical injury or any other actions necessary to prevent the wrong-
doer from continuing the offence.
Jassa Singh vs. State of Haryana (2002): The Supreme Court clarified that the
right of private defence concerning property does not include the right to cause the
death of a person who commits acts of trespass on open land. According to the
court, only house trespass committed under circumstances that could reasonably
lead to death or grievous harm is specifically listed as an offense under (Section 41
BNS) regarding the right of private defence.

Sec 43 Commencement and continuance of the right of private defence of

property
The right of private defence of property begins when there is a reasonable
apprehension of danger to the property. This means that as soon as there is a
reasonable belief that the property is under threat, the right to defend it is activated.

 Against-Theft:
The right to defend against theft lasts until the offender has successfully
retreated with the stolen property, or until assistance from public authorities is
obtained, or until the property is recovered. This means that you can use force
to prevent theft until the property is either returned or the authorities intervene.
 Against-Robbery:
The right to defend against robbery continues as long as the offender either
causes or attempts to cause death, hurt, or wrongful restraint, or as long as
there is a fear of instant death, hurt, or restraint. This implies that the right
persists throughout the ongoing threat or fear caused by the offender.
 Against Criminal Trespass or Mischief:

The right to defend against criminal trespass or mischief continues as long as

the offender is actively engaged in committing the trespass or mischief. The
defence is valid while the unlawful act is ongoing.

 Against House-Breaking After Sunset and Before Sunrise:

The right to defend against house-breaking that occurs during these hours
continues as long as the house-trespass initiated by the house-breaking is
ongoing. Defence can be maintained while the trespass continues.
Sec 43 defines the scope and timing of the right to private defence of
property, specifying when it starts and ends based on the nature of the threat.
The right begins with a reasonable fear of danger to the property and
continues under different conditions depending on whether the threat involves
theft, robbery, criminal trespass, mischief, or house-breaking. This ensures
that the defence is proportional to the ongoing threat or crime.
Q. 12 What do you understand by abetment and explain the liability of the
abettor with the help of the provision contained in BNS 2023.

Definition of Abetment and Abettor

 Section 45 of BNS defines Abetment.

o It provides that a person abets the doing of a thing who:
 Instigates any person to do a thing;
 Engages with one or more other person or persons in
any conspiracy for the doing of that thing, if an act or illegal
omission takes place in pursuance of that conspiracy, and in
order to the doing of that thing; or
 Intentionally aids, by any act or illegal omission, the doing of
that thing.
o Explanation 1 provides that a person who, by willful
misrepresentation, or by willful concealment of a material fact which he
is bound to disclose, voluntarily causes or procures, or attempts to
cause or procure, a thing to be done, is said to instigate the doing of
that thing.
o Explanation 2 provides that 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, and thereby facilitates the commission thereof,
is said to aid the doing of that act.

The Supreme Court, in its judgment in Kartar Singh v. State of Punjab

(1961), defined “abet” as aiding and helping others in committing an illegal
act. On the other hand, conspiracy is derived from the Latin words “con,”
meaning together and “spirare,” meaning to breathe.

 Section 46 of BNS defines Abettor.

o It provides that a person abets an offence
 Who either the commission of an offence;
 Or abet the commission of an act which would be an offence, if
committed by a person capable by law of committing an offence
with the same intention or knowledge as that of the abettor.
 o Explanation 1 provides that 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.
o Explanation 2 provides that to constitute the offence of abetment it is
not necessary that the act abetted should be committed, or that the
effect requisite to constitute the offence should be caused.
o Explanation 3 provides that it is not necessary that the person abetted
should be capable by law of committing an offence, or that he should
have the same guilty intention or knowledge as that of the abettor, or
any guilty intention or knowledge.
o Explanation 4 provides that the abetment of an offence being an
offence, the abetment of such an abetment is also an offence.
o Explanation 5 provides that it is not necessary to the commission of
the offence of abetment by conspiracy that the abettor should concert
the offence with the person who commits it. It is sufficient if he engages
in the conspiracy in pursuance of which the offence is committed.
 For instance, consider three individuals: A, B and C. A and B plan to kill C, with
A devising the plan and setting traps to kill C. B, aware of the plan, helps A
create gun traps. This act is also considered abetment, as B assisted the
offender (A) in committing the crime. The person who instigates, encourages
or promotes another to commit a crime is known as an “abettor,” while the
person who commits the offence is referred to as the “principal offender.” In
the example above, A is the principal offender and B is the abettor.
 There is a notable distinction between a person abetting and the actual
perpetrator of the offence under criminal law. In a criminal conspiracy, A and
B enter into an agreement to kill C and may or may not contribute equally but
assist each other as they share the same intention.

Extraterritorial Abetment

 Under BNS there are two categories of abetment:

o Section 47 provides for abetment in India of offences outside India.
 It provides that the following shall amount to abetment if
 The person in India.
  Abets the commission of any act without and
beyond India
 Which would constitute an offence if committed in India.
o Section 48 provides for abetment outside India for offence in India.
 It provides that the following shall amount to abetment if
 The person without and beyond India.
 Abets commission of any act in India.

Section 49of BNS: Section 55 of BNS: Section 56 of BNS:

Punishment of abetment Abetment of offence Abetment of offence

if an act abetted is punishable with death or punishable with
committed in imprisonment for life. imprisonment
consequence and where
no express provision is
made for its punishment.
Whoever abets any (1)Whoever abets the (1)Whoever abets an
offence shall, if the act commission of an offence offence punishable
abetted is committed in punishable with death or with imprisonment shall,
consequence of the imprisonment for life, if that offence be not
abetment, and no shall, if that offence be committed in
express provision is not committed in consequence of the
made by this Sanhita for consequence of the abetment, and no
the punishment of such abetment, and no express provision is
abetment, be punished express provision is made by this Sanhita for
with the punishment made under this Sanhita the punishment of such
provided for the offence for the punishment of abetment, be punished
such abetment, be with imprisonment of any
punished with description provided for
imprisonment of either that offence for a term
description for a term which may extend to one-
which may extend fourth part of the
longest term provided
to seven years, and shall for that offence; or with
also be liable to fine. such fine as is provided
for that offence, or with
both.
 Explanation. —An act or (2) If any act for which the (2) If the abettor or the
offence is said to be abettor is liable in person abetted is
committed in consequence of the a public servant, whose
consequence of abetment, and which duty it is to prevent the
abetment, when it is causes hurt to any commission of such
committed in person, is done, the offence, the abettor shall
consequence of the abettor shall be liable to be punished with
instigation, or in imprisonment of either imprisonment of any
pursuance of the description for a term description provided for
conspiracy, or with the aid which may extend to that offence, for a term
which constitutes the fourteen years, and shall which may extend to one-
abetment. also be liable to fine. half of the longest
term provided for that
offence, or with such fine
as is provided for the
offence, or with both.

Liability of Abettor

 Section 50 of BNS provides for abetment when the person abetted does act
with different intention from that of abettor.
o If the person abetted does the act with a different intention or
knowledge from that of the abettor
o Whoever abets the commission of an offence shall
o Be punished with the punishment provided for the offence which would
have been committed if the act had been done with the intention or
knowledge of the abettor and with no other.
 Section 51 of BNS provides for liability of abettor when one act abetted, and
different act done.
o When an act is abetted
o And a different act done
o The abettor liable for the act done, in the same manner and to the
same extent as if he had directly abetted it:
o Provided that the act done was a probable consequence of the
abetment, and was committed under the influence of the instigation, or
with the aid or in pursuance of the conspiracy which constituted the
abetment.
 Section 52 of BNS provides that abettor shall be liable to cumulative
punishment for act abetted and for act done.
o If the act for which the abettor is liable under section 51 is committed in
addition
o To the act abetted and constitute a distinct offence
o The abettor is liable to punishment for each of the offences.
 Section 53 of BNS provides for liability of abettor for effect caused by act
abetted different from that intended by abettor.
o When an act is abetted with the intention on the part of the abettor of
causing a particular effect
o And an act for which the abettor is liable in consequence of the
abetment, causes a different effect from that intended by the abettor
o The abettor is liable for the effect caused, in the same manner and to
the same extent as if he had abetted the act with the intention of
causing that effect
o Provided he knew that the act abetted was likely to cause that effect.
 Section 54 provides for liability of abettor when the abettor is present when the
act committed.
o Whenever any person, who is absent would be liable to be punished as
an abettor,
o Is present when the act or offence for which he would be punishable in
consequence of the abetment is committed
o He shall be deemed to have committed such act or offence.
Other Provisions for Abetment

 Section 105 of BNS provides for abetment of suicide of child or person with
mental illness.
o Section 105 provides that if any person
 under eighteen years of age
 with mental illness
 any delirious person
 in a state of intoxication,
 commits suicide, whoever abets the commission of such suicide,
shall be punished with death or imprisonment for life, or
imprisonment for a term not exceeding ten years, and shall
also be liable to fine
 Section 106 of BNS provides for abetment of suicide.
o Section 106 provides that whoever abets the commission of suicide
shall be punished with imprisonment of either description for a term
which may extend to ten years and shall also be liable to fine.
 Section 157 of BNS provides for abetting mutiny, or attempting to seduce a
soldier, sailor or airman from his duty.
o Whoever abets the committing of mutiny by an officer, soldier, sailor or
airman, in the Army, Navy or Air Force subject to the Acts referred to in
section 165 of the Government of India or attempts to seduce any such
officer, soldier, sailor or airman from his allegiance or his duty, shall be
punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine.
 Section 158 of BNS provides for abetment of mutiny, if mutiny is committed in
consequence thereof.
o Whoever abets the committing of mutiny by an officer, soldier, sailor or
airman, in the Army, Navy or Air Force of the Government of India,
shall, if mutiny be committed in consequence of that abetment, be
punished with death or with imprisonment for life, or imprisonment of
either description for a term which may extend to ten years, and shall
also be liable to fine.
 Section 159 of BNS provides for abetment of assault by soldier, sailor or
airman on his superior office, when in execution of his office.
o Whoever abets an assault by an officer, soldier, sailor or airman, in the
Army, Navy or Air Force of the Government of India, on any superior
officer being in the execution of his office, shall be punished with
imprisonment of either description for a term which may extend to three
years, and shall also be liable to fine.
 Section 160 of BNS provides for abetment of such assault, if assault
committed.
o Whoever abets an assault by an officer, soldier, sailor or airman, in the
Army, Navy or Air Force of the Government of India, on any superior
officer being in the execution of his office, shall, if such assault be
committed in consequence of that abetment be punished with
imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.
 Section 161 of BNS provides for abetment of desertion of soldier, sailor or
airman.
o Whoever abets the desertion of any officer, soldier, sailor or airman, in
the Army, Navy or Air Force of the Government of India, shall be
punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
 Section 164 of BNS provides for abetment of act of insubordination by soldier,
sailor or airman.
o Whoever abets what he knows to be an act of insubordination by an
officer, soldier, sailor or airman, in the Army, Navy or Air Force, of the
Government of India, shall, if such act of insubordination be committed
in consequence of that abetment, be punished with imprisonment of
either description for a term which may extend to two years, or with
fine, or with both.
Q. 13 What is Criminal Conspiracy? Explain the difference between abetment
and criminal conspiracy.

Criminal Conspiracy(S-61)

Section 61

(1) In the event of one or more individuals coming together for the purpose of
executing or directing the execution of—

(a) a criminal act; or

(b) a lawful act by means which are unlawful; the agreement is termed criminal
conspiracy. It is emphasised that an agreement to engage in criminal conduct does
not amount to conspiracy unless one or more of the co-conspirators takes an overt
act beyond mere agreement towards the completion of the offence.

Justification: There is not any difference whether the illegal purpose of the contract is
the main aim of the contract or it is one of the incidental purposes of the contract.

(2) Any person engaged in furtherance of a felony,

If the plot itself is not punishable under the provisions of this Sanhita, a person
committing a crime which is punishable with death or imprisonment for life or with
imprisonment for a term of two years or more which is rigorous, shall be treated as if
he has abetted in the commission of that crime.

(b) other than the conspiracy to commit an offence referred to in the above
provisions, shall be punished with fine or imprisonment for a term of not more than
six months or with both.

Section 61(2)

Section 61(2) of the BNS, 2023 applies to any person engaging in a criminal
conspiracy.
 1. In case of the absence of this Sanhita, an individual who makes an attempt to
commit an offence that is punishable by death or life sentence or rigorous
imprisonment for two years or more shall be dealt with as if he had also
helped to commit that offence.

2. Apart from the criminal conspiracy, an offence with a punishment in the above
cases has a jail term not exceeding six months or a fine or to both.

Ingredients of Criminal Conspiracy under Section 61(2) of BNS

Criminal conspiracy is defined as an agreement or plan between two or more

individuals to commit a crime. The essence of a conspiracy is the agreement itself,
and it is considered a separate and distinct offense from the underlying crime that
was the object of the conspiracy.

1. Number of Parties: Conspiracy requires the involvement of two or more

individuals. A single person acting alone cannot be charged with conspiracy.
2. Intent: To establish conspiracy, there must be a shared intent among the
conspirators to commit the unlawful act or achieve the wrongful objective.
Intent is a crucial element, and the prosecution must prove that the
conspirators had the requisite intent to carry out the conspiracy.
3. Overt Act: Some jurisdictions require that an overt act be taken in furtherance
of the conspiracy, but this act need not be criminal in itself. The act is often
used as evidence of the conspiracy but is not a fundamental requirement in all
cases.
4. Punishment: Punishment for conspiracy varies depending on the jurisdiction
and the seriousness of the underlying crime. Conspirators may face penalties
commensurate with the offense they conspired to commit.
5. Agreement between two or more person are necessary: The main
element of the crime in question is that two or more individuals agree to do
something illegal. When two people are charged with conspiracy, the court
has to assess whether they are pursuing the same illegal objective separately
or whether there is an invitation to regard them as having agreed to pursue
the illegal objective. In the former, they are not included as conspirators, but in
the later, they are included as conspirators.
A mere agreement is not sufficient to find someone guilty of conspiracy. It is not
necessary to buttress the notion with anything that would support the non-verbal
picture of communication. The illegal act does not necessarily substantiate the
connect between the participants on the basis of mere imagination. Conspiracy is a
continuous crime which is committed until executed or abandoned or thwarted for
some cause. During its subsistence whenever any one of the conspirators does an
act or series of acts, he would be held guilty under section 61 (2) of BNS, 2023.

Section 61(2) (a) of BNS, 2023

(a) Charge: Commission of offence by criminal conspiracy, which is punishable by a

term of imprisonment not exceeding 2 years hard labour, life imprison or death.

(b) Punishments: Similar to the assistance in and out of the commission and
conspiracy of the target crime.

Section 61(2)(b) of BNS, 2023

(a) Offence: Any other criminal conspiracy

(b) Punishment: Imprisonment for 6 months or fine or both.

Difference between abetment and criminal conspiracy

Aspect Abetment Criminal Conspiracy

Encouraging, instigating, or An agreement between two or more

Definition aiding another person to individuals to commit an illegal act or
commit a crime. a legal act by illegal means.

Defined under Section 45 of

Legal Reference Defined under Section 61 of the BNS.
the Indian Penal Code (BNS).
 Number of Involves at least two persons:
Requires two or more persons, known
Persons the abettor and the principal
as conspirators.
Involved offender.

No overt act is necessary; the All conspirators are liable to the same
Nature of the
agreement itself constitutes punishment as if they had committed
Offense
the offence. the offence themselves.

An overt act or illegal omission Considered a substantive offence,

Overt Act is necessary in abetment by where the mere agreement to commit
conspiracy. a crime is punishable.

The abettor may not receive All conspirators are liable to the same
Punishment the same punishment as the punishment as if they had committed
principal offender. the offense themselves.

No prior sanction from Prosecution may require sanction

Legal competent authorities is from competent authorities,
Proceedings required to proceed against depending on the jurisdiction and
abettors. nature of the conspiracy.

Broader scope, encompassing

Specific to the agreement to commit a
Scope various forms of assistance to
crime or a legal act by illegal means.
commit a crime.

State Of Tamil Nadu Vs Nalini (1999)

This is commonly known as the Rajiv Gandhi assassination case. In this case, it was
held that knowledge about conspiracy would not make an accused a conspirator. It
was held that also to provide the harbour to the main accused didn't show the
sufficient evidence that person is in the conspiracy you have to prove that there is a
meeting of minds between the parties.
In the case of Pramatha Nath Talukdar vs. Saroj Ranjan Sarkar (1961), the court
highlighted the essence of criminal conspiracy, which lies in the intention to carry out
an illegal act by committing an illegal act. The court pointed out that an agreement to
commit an offence constitutes a criminal conspiracy.
However, when the agreement is to do an illegal act that is not an offence or is to be
done by illegal means, some additional action is needed. This distinction is crucial as
it differentiates between abetment by conspiracy and criminal conspiracy. In
abetment by conspiracy, a simple agreement does not suffice; there must be an act
or omission performed to carry out the conspiracy. In contrast, in criminal conspiracy,
the act of agreeing or plotting itself constitutes the crime.
The Supreme Court, in Kehar Singh vs. State (Delhi Administration) (1988),
further elaborated on this distinction. The court held that there must be evidence of
more than a mere conspiracy for there to be abetment by conspiracy.
If a charge under criminal conspiracy fails, there needs to be some overt act
committed by the appellants to convict them of abetment by conspiracy. This ruling
emphasises that while conspiracy is a crucial element, it alone is not sufficient to
establish abetment by conspiracy; there must be some action taken towards the
execution of the conspiracy.
Q.14. “A murderer kills the body while a rapist kills the soul.” Discuss the
definition of rape under BNS, 2023 in the light of the above statement.

Rape-Meaning and Extent

Bharatiya Nyaya Sanhita, 2023 in sections 63 to 73 has dealt with sexual offences

The section 63 enumerates the offence of rape. The word "rape", which is
derived from the Latin means "to seize”. Thus, rape literally means a forcible
seizure. It signifies in term rapio, means "as the ravishment of a woman without
her consent, by force, fear, or Common fraud" or "the carnal knowledge of a
woman by force against her Will"

Ordinarily, rape is a violation, with the violence of the private person of a woman
– an outrage by all canons. It is unlawful sexual intercourse by a man with his
own wife below the age of fifteen or with any girl below the age of sixteen, or with
any other woman above sixteen without her free consent, against her will, or with
consent obtained under certain unlawful circumstances.

Rape is not only a crime against the person of a woman (victim), it is a crime
against the entire society. It destroys the entire psychology of a woman and
pushes her into a deep emotional crisis. Rape is, therefore, the most hated crime.
It is a crime against basic human rights and is also violates the victim’s most
cherished of the Fundamental Rights, namely, the Right to life contained in Article
21 of the Constitution.

Sec. 63 defines rape and section 64 prescribes punishment for rape.

Rape laws amended to strengthen the law. Some of the important changes
brought about by the Act 43 of 1983 and Act 13 of 2013 after Delhi Nirbhaya
Rape case.

Sec 63- Rape

A man is said to commit “rape” if he

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the
penis, into the vagina, the urethra or anus of a woman or makes her to do so
with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration

into the vagina, urethra, anus or any part of body of such woman or makes her to
do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to
do so with him or any other person, under the circumstances falling under any of
the following seven descriptions:

(i) against her will.

(ii) without her consent.

(iii) with her consent, when her consent has been obtained by putting her or
any person in whom she is interested, in fear of death or of hurt.

(iv) with her consent, when the man knows that he is not her husband and that
her consent is given because she believes that he is another man to whom
she is or believes herself to be lawfully married.

(v) with her consent when, at the time of giving such consent, by reason of
mental illness or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.

(vi) with or without her consent, when she is under eighteen years of age.

(vii) when she is unable to communicate consent.

Explanation

1 For the purposes of this section, “vagina” shall also include labia majora.

Explanation
 2 Consent means an unequivocal voluntary agreement when the woman by
words, gestures or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific sexual act: Provided that a
woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.

Exception
1. A medical procedure or intervention shall not constitute rape.

Exception
2. Sexual intercourse or sexual acts by a man with his own wife, the wife not
being under eighteen years of age, is not rape.

Acts Constituting Rape:

 There must be sexual intercourse with a woman by a man;

Penetration by the penis: Penetrating the vagina, mouth, urethra, or anus of a

woman, or making her do so, either with the man or another person.

Insertion of objects or body parts: Inserting any object or body part (other than the
penis) into the woman's vagina, urethra, or anus, or making her do so.

Manipulation of the woman's body: Manipulating any part of her body to cause
penetration into any part of her genitalia or making her do so.

Oral acts: Applying his mouth to the vagina, anus, or urethra of the woman or
making her do the same.

Circumstances That Invalidate Consent:

Such sexual intercourse should be under any of the following circumstances:

Against her will: The act occurs even when the woman does not wish to engage in
it.

In State of Uttar Pradesh v. Chottey Lal, the Supreme Court explained that the
expression ‘against her will’would ordinarily mean that the intercourse was done by a
man with a woman despite her resistance and opposition.

In State of Punjab v. Gurmit Singh, a young girl below the age of 16 years was
abducted from her school by the three accused in a car, and she was threatened
with death if she raised an alarm. Despite her refusal, she was made to drink liquor.
Then she was raped by each one of them in turn under the threat of being killed if
she persisted in raising an alarm. Due to the threat, she kept quiet. After repeatedly
committing sexual assault on her, they left her the next morning near the place from
where she had been abducted.

Surprisingly, the additional judge, Ludhiana acquitted all the accused on both counts
of abduction and rape disbelieving the version of prosecutrix regarding rape and
because of delay in FIR. Allowing the State appeal, and holding the accused
persons liable for rape since at no point of time the prosecutrix willingly cooperated
with the act, the Apex Court held that the sexual intercourse was against her will for
which the accused are liable for committing rape under Section 376, IPC (now sec.
63 BNS).

In addition to this, the Apex Court laid down the following guidelines for trial in such
cases:

 Delay in lodging FIR is not material when properly explained.

 Testimony of victim in cases of sexual assault is vital and unless there are
compelling reasons which necessitate looking for corroboration of her
statement, the Court should find no difficulty in convicting the accused on
prosecutrix’s testimony alone.
 Trial of sexual offences should be in camera and invariably by a lady judge
whenever available.
 Court must restrain making observations that probably the prosecutrix is a girl
of loose moral character.
  Court is under an obligation to see that prosecutrix is not unnecessarily
harassed and humiliated in cross-examination in case of rape trial.

Without consent: The act occurs without the woman giving any form of consent.

In Williams (1923) 1 KB 340., the accused was a choirmaster who had sexual
intercourse with his 16-year-old student making her believe that he is performing a
surgical operation to improve her singing voice. Consent was vitiated by fraud and it
was obtained under a misconception, thus, he was held guilty of rape.

In these cases, it is the non-consent to sexual intercourse rather than the fraud of the
doctor or the choirmaster that makes the offence rape.

Therefore, in Moti Ram AIR 1954 Nag. 922. and Linekar (1995) 3 All ER 69., it was
held that if a woman were willing to have sexual intercourse for monetary
consideration, the fact that the consideration was found to be fictitious would not
vitiate the consent. Since there was consent on the part of the prosecutrix for sexual
connection, the accused persons are not liable for rape. It would amount only to
breach of contract.

Coerced consent due to fear: If consent is obtained by threatening her or someone

she cares about with death or harm.

False identity: When a man knows he is not her husband, but she consents
because she believes he is another man, such as her
lawful spouse.

Incapacitated consent: If the woman is under the influence of substances, mentally

ill, or otherwise incapable of understanding the act, and her consent is manipulated.

Underage consent: Sexual intercourse with or without the consent of a girl

under 18 years of age is automatically considered rape.
Inability to communicate consent: When the woman is unable to physically or
verbally communicate her consent.

Definition of Consent: Consent means a clear, voluntary agreement expressed

through words, gestures, or other means indicating the woman's willingness to
participate.

Non-resistance doesn't imply consent: Simply because a woman does not

physically resist penetration, it does not mean she has given consent.

In State of Maharashtra v. Prakash AIR 1992 SC 1275, the Apex Court held that
where a police constable and businessman had sexual intercourse with a rustic
woman by beating her husband and threatening to put him in police remand, the act
falls under clause (3) of section 375 IPC. The suggestion that the victim had
consented to intercourse willingly is ruled out for the offence of rape. It is not
necessary that there should be actual use of force; a threat to use of force is
sufficient.

A criticized judgment of the Supreme Court in this regard was Tukaram v. State of
Maharashtra AIR 1979 SC 185 popularly known as Mathura rape case. Mathura, an
18-year-old Harijan orphan girl was called to the police station on an abduction
report filed her brother at the police station- Desaui Ganj in Maharashtra on 26th
March 1972. When they were about to leave the police station, Mathura was kept
back at the police station in the late hours of the night by one of the constables,
Ganpat, who was on duty.

She was taken to a toilet and raped. After him, another constable Tukaram tried to
rape her but being too heavily drunk, did not succeed. None of the two accused were
held guilty for the following reasons:

1.There were no marks of injury on her person which show that the whole affair
was a peaceful one and that the story of stiff resistance having been put up by
the girl is all false.
2.The girl was not subject to any fear that must have led her to submit to the act.
3.The girl was not alone when Ganpat ordered her to stay and she could have
resisted and appealed to her brother. Her conduct in meekly following Ganpat
 and allowing him to have his way with her to the extent of satisfying his lust in
full, made them feel that the consent in question was not a consent which
could be brushed aside as passive submission.

The judgment of the Supreme Court was widely criticised both inside and outside the
Parliament as an extraordinary decision sacrificing human rights and a disgrace on
women under the law and the Constitution.

Subsequent decisions of the Supreme Court tried to atone for what it had decided in
the Mathura case.

In Balwant Singh v. State of Punjab 1987 Cri.LJ 971 (S.C.), the victim aged 19/20
years was forcibly taken in a car by the five accused persons and raped by each in a
grove on the canal bank. She was found lying unconscious under a banana tree near
the canal bridge by her father. She was medically examined and the report specified
that she was raped by more than one person. It was held by the court that the
absence of injuries on the back of prosecutrix does not make the prosecution case
unbelievable. The accused were five in number and the prosecutrix was a girl of
19/20 years. She was not expected to offer such resistance as would cause injuries
to her.

Exceptions:

Medical Procedures: Any medical procedure or intervention that involves the acts
mentioned above is not considered rape.

Marital Exception: Sexual intercourse between a man and his wife is not
considered rape, provided the wife is not below 18 years of age.

Mukesh & Anr. v State for NCT of Delhi &

Ors Facts

The case is famously known as the Nirbhaya case. In this case, a 23-year-old
medical student was returning after a movie with her friend and took a bus. On the
bus, she was gang-raped by six people and was brutally assaulted. After the rape,
she along with her friend were thrown out of the bus naked. The girl died while she
was being
treated in a hospital in Singapore.

Judgment
In this case, the Supreme The court awarded death penalty to four of the accused
among six. One of them being a juvenile was convicted by the Juvenile Justice
Board and sent to the correctional home. The other one committed suicide before
the judgment was delivered.

After this case, the need to amend certain provisions of Section 375(IPC) was felt so
the Criminal Law (Amendment) Act, 2013 was brought into effect. Under the newly
amended section, the punishment of rape is at least seven years which may extend
to life imprisonment. Any man who is a police officer, medical officer, public officer,
or public servant may be imprisoned for at least 10 years if commits rape. Where
rape leads to the death of the victim or entered into a vegetative state the
punishment of life imprisonment extending to death has been prescribed. The
punishment for gang rape is at least 10 years.

Consent to intercourse on the assumption of a false promise to marry: Where a

woman consents to sexual intercourse under the assumption of a promise to marry,
the falsity of the promise doesn’t ipso facto vitiate consent. It depends on whether
the accused’s promise was false from its inception or not. [Dileep Singh v. State of
Bihar (2005) 1 SCC 88]

Sec 64(1) provides the Punishment for Rape- For the purpose of sec 63 who
commits the offence of rape punished with rigorous imprisonment of either
description for a term which shall not be less than ten years, but which may extend
to imprisonment for life, and shall also be liable to fine.

Sec. 64(2) Provides Whoever,-

(a) being a police officer, commits rape,-

(i) within the limits of the police station to which such police officer is
appointed; or

(ii) in the premises of any station house; or

 (iii) on a woman in such police officer's custody or in the custody of a police
officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant's
custody or in the custody of a public servant subordinate to such public servant;
or

(c) being a member of the armed forces deployed in an area by the Central
Government or a State Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other
place of custody established by or under any law for the time being in force or of
a women's or children's institution, commits rape on any inmate of such jail,
remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a

woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust

or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

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

(i) commits rape, on a woman incapable of giving consent; or

(j) being in a position of control or dominance over a woman, commits rape on

such woman; or

(k) commits rape on a woman suffering from mental or physical disability; or

(l) while committing rape causes grievous bodily harm or maims or disfigures or
endangers the life of a woman; or

(m) commits rape repeatedly on the same woman,

shall be punished with rigorous imprisonment for a term which shall not be less
than ten years, but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, and shall also be liable
to fine.
Explanation.-For the purposes of this sub-section,-

(a) "armed forces" means the naval, army and air forces and includes any member
of the Armed Forces constituted under any law for the time being in force, including
the paramilitary forces and any auxiliary forces that are under the control of the
Central Government or the State Government;

(b) "hospital" means the precincts of the hospital and includes the precincts of any
institution for the reception and treatment of persons during convalescence or of
persons requiring medical attention or rehabilitation;

(c) "police officer" shall have the same meaning as assigned to the expression
"police" under the Police Act, 1861;

(d) "women's or children's institution" means an institution, whether called an

orphanage or a home for neglected women or children or a widow's home or an
institution called by any other name, which is established and maintained for the
reception and care of women or children.

Section 65 of BNS: Punishment for Rape in Certain Cases

This section addresses rape offenses against minors. Perpetrators who commit rape
on a woman under sixteen or twelve years of age face stringent penalties, including
rigorous imprisonment for a minimum of twenty years, life imprisonment, or even the
death penalty. The fine imposed will be used to cover medical expenses and
rehabilitation of the victim.

Section 66 of BNS: Punishment for Causing Death or Persistent Vegetative State

In cases where rape results in the death of the victim or places them in a persistent
vegetative state, the offender faces rigorous imprisonment for a minimum of twenty
years, life imprisonment, or the death penalty.
Section 67 of BNS: Sexual Intercourse by Husband upon His Wife During
Separation.

Recognizing the significance of marital consent, the BNS addresses sexual

intercourse by a husband with his separated wife without her consent. Offenders
face imprisonment ranging from two to seven years and a fine, emphasizing the
importance of respecting spousal autonomy.

Section 68 of BNS: Sexual Intercourse by Person in Authority

This section deals with sexual intercourse by individuals in positions of authority,

public servants, or those managing institutions. Offenders abusing their position or
fiduciary relationship for sexual intercourse face rigorous imprisonment for a term of
five to ten years and a fine.

Section 69 of BNS: Sexual Intercourse by Employing Deceitful Means, etc.

Addressing sexual intercourse obtained through deceitful means or false promises,

this section imposes imprisonment up to ten years and a fine. Deceitful means
encompass false promises of employment, promotion, or marriage.

Section 70 of BNS: Gang Rape

The law recognizes the severity of group offenses, prescribing rigorous
imprisonment for a minimum of twenty years, which may extend to life, for those
involved in gang rape. The fine imposed is directed towards victim medical expenses
and rehabilitation.

Section 71 of BNS: Punishment for Repeat Offenders

Individuals previously convicted under specific sections related to sexual offenses

can face life imprisonment or the death penalty upon subsequent convictions.

Section 72 of BNS: Disclosure of Identity of Victim of Certain Offences, etc.

Recognizing the sensitivity of victims' identities, Section 72 penalizes the disclosure

of the victim's identity. Those convicted of such offenses may face imprisonment up
to two years and a fine. Exceptions exist for authorized disclosures, including those
ordered by the police officer in charge of the investigation, with the victim's written
authorization, or in specific cases involving the victim's next of kin.

Q.15. Write a short note on Attempt?

Attempt (S-62)

'Attempt' under the Bharatiya Nyaya Sanhita, 2023 (BNS):

While the BNS does not provide a specific definition for attempt, it addresses
attempted offenses in various ways:
1. Offenses Against the State: Offenses such as waging or attempting to wage war
against the Government of India fall under this category, with the punishment for
attempt being the same as for the completed offense.

2. Separate Punishment for Attempt: Attempted offenses and commission of

specific offenses are dealt with separately, each having distinct punishments. For
instance, attempt to commit murder and attempt to commit culpable homicide not
amounting to murder have separate sections with distinct punishments from the
corresponding completed offenses. Attempt to commit murder is punishable under
Section 109 of BNS, Attempt to commit culpable homicide not amounting to murder
is punishable under Section 110 of BNS.

3. Attempted Suicide: Section 309 of the IPC made an attempt to commit suicide
punishable, however, the provision of attempt of suicide has been omitted under
Bharatiya Nyaya Sanhita, 2023 (BNS).

4. Section 62 of BNS - General Provision for Attempt:

Sec. 62 Punishment for attempting to commit offences punishable with

imprisonment for life or other imprisonment
Whoever attempts to commit an offence punishable by this Sanhita with
imprisonment for life or imprisonment, or to cause such an offence to be committed,
and in such attempt does any act towards the commission of the offence, shall,
where no express provision is made by this Sanhita for the punishment of such
attempt, be punished with imprisonment of any description provided for the offence,
for a term which may extend to one-half of the imprisonment for life or, as the case
may be, one-half of the longest term of imprisonment provided for that offence, or
with such fine as is provided for the offence, or with both.

Illustrations
(a) A makes an attempt to steal some jewels by breaking open a box, and
finds after so opening the box, that there is no jewel in it. He has done
 an act towards the commission of theft, and therefore is guilty under
this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand
into Z’s pocket. A fails in the attempt in consequence of Z’s having
nothing in his pocket. A is guilty under this section.
Attempt to Commit an Offence
 If a person commits a crime voluntarily or after premeditation, the doing of it
involves four stages. As in every crime firstly, there must be an intention to
commit it, then there must be necessary preparation to commit it, then there is
an attempt to commit it. If such attempt succeeds, he is said to have
committed the offence. If such an attempt fails he is said to have committed
the attempt to commit offence.
 This provision applies when someone attempts to commit an offence
punishable by imprisonment for life or any other term of imprisonment.

 The act must involve a direct action toward the commission of the offence. This
means the individual must have gone beyond preparation and taken concrete
steps to commit the crime.
 An attempt is made punishable because every attempt; although it falls short of
success, must create alarm, which itself is an injury. Although the injury is not
as great as it would be if the act had been committed but it is punishable
because it creates an alarm to other person.
 In Regina vs Eagleton, [1855] 6 Cox C.C. 559 case, where Justice Baron
Parke stated that “a criminal attempt begins when the offender loses all
control over the crime by doing that last act”.
 In Commonwealth v. Hamel, No. 99-P-913, decided: August 09, 2001 case,
it was held that the proximity rule amount left to be done, not what has already
been done.
 Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698 case, the
appellant wanted to get enrolled himself in Patna university to give an M.A.
examination by misrepresenting that he has a B.A. degree and currently he
had been working as a teacher in a school. The university after giving him
admission got to know that he forged those documents which he submitted
and he had not been working as a teacher anywhere. The university
brought the charges
 against the appellant. The court held that the preparation was complete when
he had prepared the application for the purposes of submission to the
University in which he had made false representation about his qualification
and about his experience that he was an experienced teacher when he was
neither qualified to apply for the admission nor had he the requisite teaching
experience to entitle him consideration for admission to the course. The court
held that the moment he dispatched it, he entered the realm of attempting to
commit the offence of “cheating”. He did succeed in deceiving the University
and induced it to issue the admit card. He just failed to get it and sit for the
examination because something beyond his control took place inasmuch as
the University was informed about his being neither a graduate nor a teacher.
The court accordingly held that he had been rightly convicted of the offence
under Section 420 [now in BNS sec. 318(4)], read with Section 511 of the IPC
(now sec. 62 of BNS).
 Punishment for the Attempt
Where no express provision is made for punishing the attempt, the
person attempting the offence shall be punished
with:

 Imprisonment: Up to one-half of the life imprisonment term or one-half of the

longest term of imprisonment prescribed for that offence.

 Fine: The person may also be punished with the same fine provided for the
offence itself.

 The court may impose both imprisonment and a fine.

 Attempt: In legal terms, an attempt means that the individual has gone
beyond mere intention or planning and taken concrete steps towards
committing the offence.

Scope of the Section

The section applies only in the absence of specific punishment provisions for
attempts within the Sanhita. If a specific law prescribes the punishment for an
attempt, that will take precedence.
Q.16 “Every murder is a culpable homicide but every culpable homicide is
not a murder” in the light of above statement explain the difference
between culpable homicide and murder.

or

Explain the essentials of culpable homicide in which situation a culpable

homicide became murder.
HOMICIDE

Culpable Homicide & Murder

Justifiable
Lawful
Excusable

Suicide

Death by rash and

Unlawful
negligent driving
Culpable homicide
amounting to murder
Culpable homicide
Culpable homicide not
amounting to murder

Homicide means the killing of a human being by a human being. Homicide is the
highest order of bodily injury that can be inflicted on a human body. Since it is
considered as a most serious harm which may be inflicted upon another person,
it bags maximum punishment. Under Indian law and US law imposes death
penalty2 and in English law proposes mandatory life imprisonment. However in
every case of homicide the culprit is not culpable. There may be cases where a
law will not punish a man for committing homicide. For example, death caused in
exercise of self defence, by reason of mistake of fact, bonafide execution of law
etc. Likewise, if death is caused without any criminal intent or by an accident or
misfortune, the man will be excused from criminal liability. On the other hand if
the killing is not justified either by law or facts the accused will be prosecuted and
punished under law. Hence homicide may be lawful or unlawful. Lawful homicide
may be classified as excusable and justifiable homicide. Unlawful homicide may
be divided into three
 categories, culpable homicide, cause death by rash and negligent driving and
suicide. Under Indian law culpable homicide is classified into two; culpable
homicide amounting to murder and culpable homicide not amounting to murder.
Under English law there are several homicide offences: murder, manslaughter
(both voluntary and involuntary) infanticide, death by rash driving and suicide.

Culpable homicide- statutory meaning In common law culpable homicide means

the crime of killing someone illegally but without intending or planning to kill them.
The scheme of the BNS 2023, culpable homicide termed as manslaughter under
English law which is the genus and then murder which is a specious of culpable
homicide. The residuary of culpable homicide after the special characteristics of
murder have been taken away from it, is culpable homicide not amounting to
murder. Definition under section 100 BNS is not exhaustive.

Culpable homicide (sec-100)

Ingredients

The word "culpable" comes from the Latin word "CULPE," which signifies
punishment. The Latin word "HOMO + CIDA," which means "human being + killing,"
is where the term "homicide" originates.

According to Section 100 of BNS, "whoever causes death by doing an act with the
intention of causing death or with the intention of causing such bodily injury as is
likely to cause death, or with the knowledge that he is likely to cause death by such
act, commits the offence of culpable homicide."

 Causing of death of a human beings

 Such death must have been caused by doing an act

i. with the intention of causing of death; or

ii. with the intention of causing such bodily injury as is likely to cause
death; or

iii. with the knowledge that the doer is likely by such act to cause death.
 Explanation I Where the injured person is suffering from some disorder, disease
or bodily infirmity, which quickened his death.
 Explanation II A person who has been injured could have recovered and
escaped death, if , he had been given prompt and proper medical treatment.
 Explanation III states that if the death of the child is caused when he is in the
womb, it is not culpable homicide. However if any portion of the child , comes out
of the mother’s womb, even if it is not fully born, and if death is caused to such
child, then it would amount to culpable homicide.

The murder provisions of the BNS are part of the broader category of culpable
homicide offences under section 100. Hence, every murder is necessarily
culpable homicide as well, but not vice versa.

Mental element in culpable homicide

The word “ intention “in clause (a) to section 299, IPC has been used in its ordinary
sense, volitional act without being able to foresee the consequences with certitude.
An act is said to be intentional when it is done with a desire that certain consequence
will follow it. When the result is substantially certain or inevitable, no difficulty arises
because in such cases one can resume from the circumstances of the case the
consequences to be intended. As a general rule, every sane person is “presumed to
intend” the necessary or natural and probable consequences of his acts; and this
presumption of law will prevail unless from consideration of all the evidence the court
entertains a reasonable doubt as to whether such intention existed. Intention under
section 299 does not always necessarily mean pre-meditation or preplanning to kill a
person. The requisite is that the act of the person is likely to result in death is
sufficient to constitute intention. It is presumed that every man for his every act
expects certain consequences unless contrary is proved. So, if a person in
performing some act either

(i) expects death to be the consequences thereof ; or

(ii) expects a dangerous injury to be the consequences of his act; or
(iii) knows that death is likely consequences of his act,

In each case death ensues, his intention in the first two case, and his knowledge in
the third renders the act a homicide. A guilty intention or knowledge is thus essential
to the offence under this section. Intent and knowledge in section 299 postulate the
existence of positive mental attitude which is of different degrees.

In state of Andra Pradesh v. Rayavarapu Pannayya AIR 1977 SC 45, the honourable
Supreme Court recognised three degrees of culpable homicide such as ;

a. Culpable homicide of the lowest degree which is punishable with fine only or with
imprisonment upto a limit of ten years or with both.

b. Culpable homicide of second degree, which is made punishable with

imprisonment upto a limit of ten years, or with imprisonment of life, to either of which
fine may be added

c. Culpable homicide of the highest degree or murder which is made punishable with
death or imprisonment for life to either of which fine may be added.

The Supreme Court in Moti Singh v.State of Uttar Pradesh AIR 1964 SC 900, (1964)
CrLJ 727 (SC) held that the connection between the primary cause and the death
should not be too remote. The presence of intention is always a question of fact.
Direct proof of intention is always very difficult to obtain. However it can be
ascertained through subsequent conduct , motive, nature of weapons used and so
on.

In Chahat Khan v, State of Haryana AIR 1972 Sc 2574, supreme court held that
when injuries are inflicted on vital parts of the body like abdomen by a lethal or sharp
edged weapon, the irresistible inference is that the accused intended to kill the
deceased.

Punishment

BNS-105 addresses culpable homicide that does not qualify as murder. The severity
of the punishment depends on the offender’s intention or knowledge regarding the
likelihood of causing death:

 With Intent: Life imprisonment or 5 to 10 years imprisonment, along with a fine.

 With Knowledge: Up to 10 years imprisonment and a fine.

Q. 17 With the help of legal provisions explain the elements of the offence of
murder. And What are the exceptions under which murder is not considered
murder under BNS?

Murder

The Germanic word "morth," which denotes a covert killing, is where the word
"murder" started. Murder is only an aggregated form of culpable homicide. Murder is
defined as killing a person by another person or a group of people who have the
deliberate intent to take the life of the former.

If an offence does not contain one that qualifies as culpable homicide under the BNS
definition of "murder," it does not constitute "murder." All killings are punishable by
law, but not all homicides are murders. Murder is covered in Sections 100 and 101 of
the BNS.

SECTION 101 BNS

1.Definition of Murder:

o Intention to Cause Death: Murder is established when an act is done

with the specific intention of causing death.

o Intention to Cause Bodily Injury Likely to Cause Death: If the act

causing death is done with the intention of causing bodily injury that the
offender knows is likely to lead to death.

o Intention to Cause Bodily Injury Sufficient to Cause Death: When

the act is performed with the intention to cause bodily injury, and the
nature of the injury is such that it is ordinarily sufficient to cause death.

o Knowledge of Imminently Dangerous Act: Murder also applies if the

act is known to be so dangerous that it is likely to cause death or
severe bodily injury, and the act is done without justification for taking
such a risk.

2.Elements of the Offense:

 o Intention: Direct intent to kill or to cause an injury known to be likely
fatal.

o Dangerous Act: An act that is inherently dangerous and is performed

with knowledge of its potential to cause death or severe injury.

The Section 100 of the BNS states what murder is and what murder is not. To
consider an act of a person as an offence of murder, it should come within the
clauses 1, 2, 3 or 4 of the Section 100 of the BNS, but should not fall within any of
the five Exceptions enlisted in the Section. Then it should be punished under Section
103 BNS. If it falls within any of the Exceptions then it will become Culpable
Homicide not amounting to Murder

BNS-103 outlines the severe penalties for murder, including death or life
imprisonment and fines. It also addresses group-based murders with discriminatory
motives, imposing strict penalties on all involved members.

Exceptions:

Exception 1
Culpable homicide is not murder if the offender, whilst deprived of the power of self-
control by grave and sudden provocation, causes the death of the person who gave
the provocation or causes the death of any other person by mistake or accident:
Provided that the provocation is not,

(a) sought or voluntarily provoked by the offender as an excuse for killing or doing
harm to any person;
(b) given by anything done in obedience to the law, or by a public servant in the
lawful exercise of the powers of such public
servant;
(c) given by anything done in the lawful exercise of the right of private defence.

Explanation
Whether the provocation was grave and sudden enough to prevent the offence from
amounting to murder is a question of fact.
(a) A, under the influence of passion excited by a provocation given by Z,
intentionally kills Y, Z’s child. This is murder, in as much as the provocation was not
given by the child, and the death of the child was not caused by accident or
misfortune in doing an act caused by the
provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol
at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but
out of sight. A kills Z. Here A has not committed murder, but merely culpable
homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by
the arrest, and kills Z. This is murder, in as much as the provocation was given by a
thing done by a public servant in the exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a
word of A’s deposition, and that A has perjured himself. A is moved to sudden
passion by these words, and kills Z. This is
murder.
(e) A attempts to pull Z’s nose. Z, in the exercise of the right of private defence, lays
hold of A to prevent him from doing so. A is moved to sudden and violent passion in
consequence, and kills Z. This is murder, in as much as the provocation was giving
by a thing done in the exercise of the right of private
defence.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander,
intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife into
B’s hand for that purpose. B kills Z with the knife. Here B may have committed only
culpable homicide,but A is guilty of murder.

The court stated in the case of K.N. Nanavati v. The State of Maharashtra that "the
test to determine whether the accused's action falls under the purview of provocation
or not is to examine whether any reasonable man having the same capacity and
belonging to the same class or section of society, if placed in the same situation as
the accused, would also be provoked to the point of losing his self-control."

The court additionally stated that the response to an abrupt and serious provocation
should occur immediately and not wait until the person has had enough time to cool
off.
  If a prudent man from the same society as the accused were put in the same
circumstances as the accused, would he have been so aroused as to lose his
composure? This is the test of "sudden and grave provocation."
 In some cases, an accused person may be suddenly and gravely provoked by
words or gestures, which would qualify his behaviour as an exception.
 The victim's mental history might be taken into account, together with his prior
actions, to determine whether the current act provoked the offender suddenly
and severely.
 The deadly strike should be able to clearly trace the impact of passion that
results from the grave and sudden provocation.
 The fatal blow should be able to clearly trace the impact of passion that
results from the sudden and grave provocation. It shouldn't happen after the
provocation has subsided as a result of passing the time because doing so
will allow the accused to change the evidence.

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

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

Exception 3
Culpable homicide is not murder if the offender, being a public servant or aiding a
public servant acting for the advancement of public justice, exceeds the powers
given to him by law, and causes death by doing an act which he, in good faith,
believes to be lawful and necessary for the due discharge of his duty as such public
servant and without ill-will towards the person whose death
is caused.
Exception 4
Culpable homicide is not murder if it is committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarrel and without the offender’s having
taken undue advantage or acted in a cruel or unusual manner.

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

Exception 5
Culpable homicide is not murder when the person whose death is caused, being
above the age of eighteen years, suffers death or takes the risk of death with his own
consent. Illustrations
A, by instigation, voluntarily causes Z, a person under eighteen years of age to
commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to
his own death; A has therefore abetted murder.

Difference between Culpable Homicide and Murder

Reg Vs Govinda 1 I.L.R. Bombay 342 is the famous case in which the Bombay High
Court interpreted the definition of Section 299 & Section 300 IPC (now sec 100 &
101 BNS).

PRINCIPLES OF LAW LAID DOWN BY JUDGE JUSTICE MELVIN -

1. The offence is culpable homicide if the bodily injury intended to be inflicted is likely
to cause death and it is murder if such injury is sufficient in the ordinary course of
nature to cause death.

2. Where there is an intention to kill, the offence is always murder.

3. Where the offence is culpable homicide or murder, depends upon the degrees of
risk to human life.
4. The offence is culpable homicide if the death is caused with the knowledge that
the act is likely to cause death and it is murder if the death is caused with the
knowledge that the act is so imminently dangerous that it must in all probability
cause death.

Basis of Culpable Homicide Murder

Difference

Nature It is the GENUS. It is the SPECIES of

Culpable Homicide.

Meaning Someone who causes Someone who does any

the death of another by act resulting death of
doing an act likely to another with the sufficient
cause that person’s intention to cause that
death. person’s death.

Ingredients 1. Causing death 1. Causing Death

2. Doing an act 2. Doing an act

3. Intention and 3. Presence of knowledge

knowledge must exist

Section 100 and 105 101 and 103

Intention to cause May or may not have a Intention to cause death

death direct intention to cause is a primary characteristic.
death.

Types Lawful and unlawful First- degree Murder,

Second-degree Murder,
third-degree Murder,
Voluntary manslaughter,
 and Involuntary
manslaughter.

Degree of Less Sufficient

Intention

Knowledge The knowledge that the Compulsory

act will likely cause
death.
Explanation/ Explanation: Exception:
Exception
a. Causing injury to a a. Grave and sudden
disabled person provocation

b. Causing injury b. Private defence

when remedies
c. Performing Legal
could be adopted
duty
c. Causing the death
d. Sudden tussle
of a child inside a
mother’s womb e. Death with consent

Punishment Imprisonment for life or Death or Life

5- 10 years with fine. imprisonment

“Every murder is culpable homicide, but every culpable homicide is not

murder.”

The assertion that every murder is a culpable homicide but not every culpable
homicide is the distinction between culpable homicide and murder, which explains
murder.

As was already said, murder is simply an aggravated version of culpable homicide,

regarded as the first degree of culpable homicide.

Culpable homicide takes murder's special characteristics. The concept of the gravity
of the purpose serves as the foundation for the distinction between culpable
homicide and murder.
Reading the word "likely," which signifies one probability that it may or may not
cause death, in section 100, will reveal the degree of guilt. It is a component that
draws attention to the fact that there is uncertainty regarding whether the accused's
alleged deed killed the deceased or not.

While there is no room for ambiguity on the part of the accused in a murder case as
defined by section 101, the accused is certain that his act would undoubtedly result
in death.

The degree of responsibility makes a significant difference; when the probability of

death is great, murder is considered; when it is low, culpable homicide is considered.

Knowing whether the accused's actions "caused" the victim’s death is crucial for
assigning an act under the culpable homicide statute.

Understanding and interpreting the second key distinction between Knowledge and
Intention is important. In the case of Basdev v. Pepsi, the Supreme Court
considered the distinction between the two and determined that a motive causes a
man to form an intention. Understanding the effects of one's actions is known as
knowledge. In many situations, intention and knowledge are interchangeable terms
that essentially mean the same thing, and knowledge can be used to infer intention.
Although the distinction between knowledge and intention is tenuous, it is clear that
they signify different things.

Meaning of beyond reasonable doubt

Real and reasonable doubt is required to prevent the conviction of guilt. The trial
judge must rule against the party with the burden of proof if the evidence raises
questions in his or her view. The adjudication panel has a duty to acquit the accused
if it cannot decide with certainty whether or not the accused is guilty.
 Q.18 Write short notes on following

a.Theft (S303-307)
b.Extortion (S 308)
c. Robbery (S309 &S313)
d.Dacoity(S310-312)

Theft under the BNS:

Section 303 of the BNS defines theft as the intentional dishonest taking of movable
property out of someone's possession without their express or implied consent. It
should be noted that the property must be movable, and the act must involve taking
it out of the possessor's control for theft to occur.

Consent:

Theft requires the removal of property without the owner's consent, whether express
or implied.
Movement of Property:
The movement of property need not be permanent; even temporary movement can
constitute theft. The law does not consider necessity as a defense, reinforcing the
principle that theft is a strict liability offence.

Case Laws:

1. K.N Mehra v. State of Delhi:

- In this case, the court clarified that temporary taking of property may still be
considered theft. It emphasized that the offence doesn't require a permanent
deprivation but includes even a temporary act of taking dishonestly.
2. Troylukho Nath Chowdhry v. State:

- The Troylukho Nath Chowdhry case is important in understanding the concept of

consent in theft. The court held that if the owner, through his servant, aids the
offender in committing theft, intending to serve punishment, it does not constitute
theft. This case laid down that for theft, there must be an absence of genuine
consent or cooperation from the possessor, and mere acquiescence due to fear of
punishment does not suffice.

3. Mahalakshmi Spinners Ltd v. State of Haryana:

- This case dealt with the theft of electricity. The court emphasized that the theft of
electricity is covered under a special act (Electricity Rules, 1956) and cannot be
prosecuted under the Indian Penal Code. It reinforces the principle that special laws
prevail over general laws. This ruling prevents overlapping prosecutions.

What is meant by extortion?

Extortion is a criminal offence under the SECTION 308 BNS - Bharatiya Nyaya
Sanhita 2023 that entails obtaining property or valuable security from another
person through the use of force, threat, or coercion.

Extortion
Extortion under BNS:
Extortion, defined in Section 308 of BNS, involves intentionally inducing fear to
dishonestly obtain property, valuable security, or signed/sealed items. Extortion
occupies a middle ground between theft and robbery, focusing on obtaining property
through threat-induced fear. The punishment for extortion includes imprisonment, a
fine, or both.
Example (a) A threatens to publish a defamatory libel concerning Z unless Z gives
him money. He thus induces Z to give him money. A has committed extortion.

(b) A threatens Z that he will keep Z’s child in wrongful confinement, unless Z will
sign and deliver to A a promissory note binding Z to pay certain monies to A. Z
sings and delivers the note. A has committed extortion.

(c) A threatens to send club-men to plough up Z’s field unless Z will sign and
deliver to B a bond binding Z under a penalty to deliver certain produce to B, and
thereby induces Z to signs and deliver the bond. A has committed extortion.

(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or affix

his seal to a blank paper and deliver it to A. Z signs and delivers the paper to A.
Here, as the paper so signed may be converted into a valuable security. A has
committed extortion.

(e) A threatens Z by sending a message through an electronic device that “Your

child is in my possession, and will be put to death unless you send me one lakh
rupees.” A thus induces Z to give him money. A has committed “extortion”.

Sub-section 2: The punishment for committing extortion is imprisonment for up to

seven years, a fine, or both.

Sub-section 3: Anyone who puts a person in fear of injury to commit extortion can
be punished with imprisonment for up to two years, a fine, or both.

Sub-section 4: Anyone who puts or attempts to put any person in fear of death or
grievous hurt to commit extortion can be punished with imprisonment for up to
seven years and may also be liable to a fine.

Sub-section 5: Committing extortion by putting any person in fear of death or

grievous hurt can lead to imprisonment for up to ten years and may also result in
a fine.
Sub-section 6: Anyone who puts or attempts to put any person in fear of an
accusation of having committed an offense punishable with death or
imprisonment for life to commit extortion can be punished with imprisonment for
up to ten years and may also be liable to a fine.

Sub-section 7: Committing extortion by putting any person in fear of an

accusation of having committed an offense punishable with death, imprisonment
for life, or imprisonment for a term up to ten years can result in imprisonment for
up to ten years and may also lead to a fine.

An example of extortion could be when someone threatens to reveal

embarrassing or damaging information about another person unless they pay a
certain amount of money. If someone threatens to harm another person or their
property unless they receive a certain amount of money or property can also be
considered extortion.

Extortion can be carried out in a variety of ways, including verbal threats, physical
violence, and the use of electronic communication. Depending on the severity of
the crime, the offence is punishable by imprisonment and/or a fine.

Extortion is the act of intentionally placing someone in fear of harm or injury in

order to dishonestly induce them to surrender property, valuable security, or
anything that can be converted into valuable security. The person committing
extortion must use fear as a tool to make the victim part with their belongings or
assets.

Elements of Extortion:

Fear of Injury: The offender must cause fear of injury to the victim or any other
person (for example, a family member). Injury in this context could refer to
physical harm, mental harm, reputational damage, or any other form of harm.

Dishonest Intent: The intent behind extortion must be dishonest. The offender's
purpose is to unlawfully acquire property or valuable security from the victim.
Inducement: The person committing extortion must induce the victim into
surrendering property or valuable security as a direct result of the fear of injury.

Delivery of Property or Security: Extortion is not complete unless the victim,

under the fear of injury, delivers property, valuable security, or a signed/sealed
document that can be turned into valuable security. Property could include
tangible assets (money, goods) or intangible assets like documents that have
value.

Injury and Fear: The injury doesn’t need to be physical alone; it can also involve
mental anguish, reputation damage, or even financial harm. Fear of injury can be
related to the person being extorted or any other person, such as a family
member or friend. The scope of harm is therefore wide and encompasses various
forms of intimidation. The victim must feel that the threat is credible and
immediate for them to act out of fear.

Valuable Security: Valuable security refers to any document or instrument that

has monetary or legal value. This includes bonds, promissory notes, checks, or
any signed or sealed document that can be converted into an asset. The
dishonest inducement could be aimed at obtaining either property or these
valuable securities.

Intentional and Dishonest Nature of the Act: The offender’s actions must be
intentional. They must knowingly create fear to get the victim to comply with their
demands.
The underlying intent of the offender is to act dishonestly, which means they are
fully aware that their actions are unlawful and morally wrong.

Difference between extortion and theft

The BNS distinguishes between theft and extortion as separate criminal offences.
While both crimes involve stealing something from someone else, they differ in
methodology and intent.

The act of taking someone else’s property without their consent or permission
with the intent of keeping it for oneself is defined as theft. In other words,
taking
 someone else’s property by force, deception, or stealth is illegal. The goal of theft
is to deprive the owner of their property.

Extortion, on the other hand, is the act of obtaining something from someone by
using coercion or threats. It entails using force, fear, or intimidation to coerce
someone into giving up something valuable, such as money, property, or
services. The goal of extortion is to obtain something valuable from the victim.

In short, the main distinction between theft and extortion is that theft involves
taking someone else’s property without their consent, whereas extortion involves
coercing or threatening someone into giving up something of value. For example,
it is theft if someone forcefully takes someone’s mobile phone from their grasp.
Extortion occurs when a person threatens to harm the victim unless they give up
their mobile phone.

What is meant by robbery?

Robbery is the taking of someone’s property through the use of force or the threat
of force. It entails taking someone’s property without their consent by using
violence or intimidation. The purpose of robbery is to take the victim’s property. It
is defined under Section 309 of the BNS.

Section 309 of BNS defines robbery as a subset of theft involving the voluntary
causing of death, hurt, wrongful restraint, or fear of these during or after the theft.

Robbery:
Robbery is not a standalone crime but a compounded form of theft or extortion. It
involves the use of force, fear, or violence during the commission of theft or
extortion, making the offense more severe than mere theft or extortion. For robbery
to occur, there must be some element of immediate physical harm or threat of harm
to a person during or related to the act of theft or
extortion.

Theft as Robbery (Sub-section 2): Theft becomes robbery if the offender, in order
to commit theft, or while committing theft, or while escaping with stolen property,
uses violence or threatens violence.
The key factors are: The voluntary causing or attempting to cause:
Death
Hurt (physical injury)
Wrongful restraint (preventing someone from moving freely)
Fear of instant death, hurt, or wrongful restraint must be induced to the victim to
assist in committing or escaping after theft.

Extortion as Robbery (Sub-section 3): Extortion becomes robbery if the offender,

while committing extortion, places the victim in fear of instant death, hurt, or wrongful
restraint, and induces the victim to immediately hand over the property or thing being
extorted.

The key elements are:

The offender must be present in front of the person being extorted.
The fear of instant harm must be such that it forces the victim to comply at that
moment.
Instant fear of harm can be directed at the victim or another person related to the
victim.

Force and Fear as Central Elements: Both forms of robbery, whether arising from
theft or extortion, require the use of physical force or immediate threat of harm to the
victim or someone else.
The fear instilled in the victim must be of instant (immediate) harm, and it should
directly lead to the victim’s actions (handing over property, not resisting, etc.).

Immediate Threat of Harm:

The term “instant” is crucial in robbery, as it distinguishes robbery from other forms
of coercion or fraud. The fear of harm must be immediate, meaning the victim must
perceive a direct and present threat of violence if they do not comply with the
offender’s demands.
This immediate nature of the threat makes robbery more severe than theft or
extortion alone.

Intent (Mens Rea):

The offender must act with the intention to commit theft or extortion and use violence
or threats as a means to achieve that goal.
Intentional harm or threats used for facilitating theft or extortion is a critical element
in establishing robbery.

Punishment for robbery includes imprisonment up to 10 years and a fine, with an

extended term for highway incidents during specific hours.

Differences between extortion and robbery

The main distinction between robbery and extortion is that robbery involves the
use of force or the threat of force to take someone’s property, whereas extortion
involves the use of coercion or threats to obtain something of value from the
victim.

For example, robbery occurs when a person enters a store armed with a weapon
and demands money from the cashier. Extortion occurs when a person threatens
to harm the cashier’s family unless they give up money.

What is meant by dacoity?

Dacoity is a serious criminal offence under Section 310 of the BNS. It is an armed
robbery or group robbery in which a group of people (five or more) steal property
from individuals or groups using violence or the threat of violence. Dacoity is
committed by two or more people working together to commit robbery.

Dacoity is a serious crime, and the punishment is severe under the BNS. If the
dacoity causes serious injury or death to the victim, the punishment can include
life imprisonment or even the death penalty. In other cases, the punishment can
include up to ten years in prison, a fine, or both.

Dacoity is considered a more serious crime than robbery because it involves the
use of weapons and involves a larger number of people. Dacoity is usually
planned, and the dacoits carry weapons in order to intimidate and threaten the
victims.
 It is considered dacoity, for example, if a group of armed people enters a house
and steals property by using force or the threat of force. Similarly, it is considered
dacoity if a group of people robs a bank with weapons and violence.

Differences between dacoity and robbery

Although both involve taking someone’s property, dacoity and robbery are distinct
criminal offences under the BNS.

Robbery is the taking of someone’s property through the use of force or the
threat of force. It entails taking someone’s property without their consent by using
violence or intimidation. The purpose of robbery is to take the victim’s property.

Dacoity, on the other hand, is an aggravated form of robbery in which a group of

people (referred to as dacoits) use violence or the threat of violence to steal
property from individuals or groups. Dacoity is committed by five or more people
working together to commit robbery.

Q. 19. What are Differences Between Theft, Robbery, and Extortion?

1. Use of Force or Threat:

- Theft: Involves dishonestly taking property without the use of force or threat.

- Robbery: Includes the use of force or threat during or after the theft, overpowering
the victim's will.

- Extortion: Involves obtaining property through intentional inducement of fear,

which may include force or threat.
2. Timing of Force or Threat:

- Theft: Force or threat is absent during the act of taking property.

- Robbery: Force or threat occurs during or immediately after the theft.

- Extortion: Fear-induced consent is used to obtain property, making the threat an

integral part of the offense.

3. Fear and Consent:

- Theft: Does not rely on fear-induced consent; the focus is on the act of taking
without rightful ownership.

- Robbery: Fear is a crucial element, and property is taken with the victim's will
overpowered by force or threat.

- Extortion: Fear is intentionally induced to obtain property with the victim's consent,
albeit coerced.

4. Immobility of Property:

- Theft: Applies to movable property only.

- Robbery: Primarily involves movable property but may also extend to other
elements like fear or restraint.

- Extortion: Can involve both movable and immovable property.

Q. 20 Explain the offence of Kidnapping and abduction, under BNS 2023?

The following are key points from the Bharatiya Nyaya Sanhita (BNS) related to
kidnapping and abduction:

Kidnapping from India and Lawful Guardianship (Section 137): - There are two
types of kidnapping:

taking someone out of the country without their permission or

taking a child or a person of unsound mind away from their lawful guardian
without consent.

There are exceptions for those acting in good faith, such as those who believe
they have the right to the custody of a child.

Abduction (Section 138 of BNS): - Abduction is defined as forcing or tricking

someone to move from one place to another. This section punishes instances
where individuals are taken against their will.

Kidnapping or Maiming a Child for Purposes of Begging (Section 139 of BNS): -

This section focuses on the serious crimes of kidnapping or obtaining custody of
a child for the purpose of begging.

It also addresses the terrible act of maiming a child for begging purposes. The
penalties are strict, including imprisonment for at least ten years and, in the case
of maiming, imprisonment for life. Kidnapping or Abducting for Murder or
Ransom, etc.

(Section 140 of BNS): - This section outlines situations where individuals may be
kidnapped or abducted with the intent of murder, putting them in danger, or
demanding ransom. It presents various scenarios and corresponding penalties,
such as life imprisonment or even the death penalty.

The following are key points from the Bharatiya Nyaya Sanhita (BNS) related to
kidnapping and abduction:
Kidnapping from India and Lawful Guardianship (Section 137):

- There are two types of kidnapping: taking someone out of the country without
their permission or taking a child or a person of unsound mind away from their
lawful guardian without consent.

- There are exceptions for those acting in good faith, such as those who believe
they have the right to the custody of a child.

Abduction (Section 138 of BNS):

- Abduction is defined as forcing or tricking someone to move from one place to

another. This section punishes instances where individuals are taken against
their will.

Kidnapping or Maiming a Child for Purposes of Begging (Section 139 of BNS):

- This section focuses on the serious crimes of kidnapping or obtaining custody of

a child for the purpose of begging. It also addresses the terrible act of maiming a
child for begging purposes. The penalties are strict, including imprisonment for at
least ten years and, in the case of maiming, imprisonment for life.

Kidnapping or Abducting for Murder or Ransom, etc. (Section 140 of BNS):

- This section outlines situations where individuals may be kidnapped or

abducted with the intent of murder, putting them in danger, or demanding
ransom. It presents various scenarios and corresponding penalties, such as life
imprisonment or even the death penalty.
Q. 21. What do you understand by the Defamation under criminal law and also
explain the exceptions contained under sec 356 of BNS?

Defamation refers to making or publishing any statement that harms a person's

reputation. There are exceptions to defamation, such as expressing an opinion in
good faith or making an imputation for the public good. Defamation can result in
imprisonment, a fine, or community service.

Section 356 of BNS of Bharatiya Nyaya Sanhita states that if someone makes or
publishes any harmful statement about another person, either by spoken words,
written words, signs, or visible representations, with the intention to harm their
reputation, it is considered defamation.

This applies unless there are specific exceptions. It's also considered defamation to
make harmful statements about a deceased person if it would harm their reputation if
they were alive and if it's intended to hurt their family or close relatives.

Additionally, making harmful statements about a company, association, or group of

people can also be defamation.

Lastly, for a statement to harm a person's reputation, it must lower their moral or
intellectual character in the eyes of others, lower their character based on their social
or professional status, harm their credibility, or make others believe their body is in a
disgraceful state.

 Sec. 356(1) provides that anyone who, through spoken words, written words,
signs, or visible representations, makes or publishes any statement about a
person with the intention of harming their reputation, or knowing or having
reason to believe that such statement will harm the reputation of that person,
except in specific cases, is said to have defamed that person.
 It may be considered defamation to attribute something to a deceased person if
the attribution would harm the reputation of that person if they were alive and
is intended to hurt the feelings of their family or close relatives.
 It may be considered defamation to make an attribution about a company,
association, or group of people as a whole.
 An attribution in the form of an alternative or expressed ironically may be
considered defamation.
  No attribution is considered to harm a person's reputation unless that
attribution, directly or indirectly, in the eyes of others, lowers the moral or
intellectual character of that person, or lowers the character of that person in
relation to their social status or profession, or damages the reputation of that
person, or causes it to be believed that the body of that person is in a
disgusting or generally disgraceful state.

when someone makes or publishes an incorrect statement, accusation, or false

imputation about another person, whether through words, oral communication, visual
cues, or any other means. This section strikes a balance between safeguarding
one’s reputation and respecting the other’s right to speak freely by preventing
misuse of words.

Defamation and its Nature

 Defamation could be both a civil offence as well as a criminal offence.

 In Civil law, defamation is punishable under the Law of Torts by punishing in
the form of damages (monetary compensation) awarded to the aggrieved
party.
 In Criminal law, defamation is a bailable, non-cognizable offence that can be
compounded.

Essentials of Defamation

 Defamation is the act or conduct of making false statements about an individual

or an entity that harms their reputation. To establish a case of defamation,
certain essentials need to be present:
 Making false statements and communicating it to a third party
 This false statement should harm the victim’s reputation
 This false statement must indeed be false, i.e., if a statement is a mere
expression of opinion or is based on truth, it might not be defamatory.
 Presence of malicious intent
 It should be made either verbally, in writing, through rough signs or by visual
representations.
Exceptions of Defamation

1. Imputation of truth, which public good requires to be made or

published.
It is not considered defamation to make or publish true statements about a
person if it serves the public interest for those imputations to be disclosed.

2. Public conduct of public servants.

Expressing opinions in good faith about the behavior of a public servant in

their official duties or their character as manifested in such behavior is not
defamation. However, this protection extends only to their conduct and
character as revealed in their public roles.

3. Conduct of any person touching any public question.

Expressing opinions in good faith about the conduct of an individual related to

a public issue, as well as opinions about their character linked to that conduct,
does not amount to defamation.

4. Publication of reports of proceedings of courts.

Publishing reports that accurately represent the proceedings or outcomes of a

court of law is not defamation.

Illustration: A newspaper publishes an article detailing the outcome of a high-

profile court trial, accurately summarizing the verdict and key arguments. As
long as the report is factual, it falls within this exception.

5. Merits of case decided in Court or conduct of witnesses and others

concerned.

Expressing opinions in good faith about the merits of a legally concluded case
or the conduct of individuals involved in the case (parties, witnesses, agents)
is not defamation.

6. Merits of public performance.

Expressing opinions in good faith about the quality of a creative work that its
creator has presented to the public or discussing the creator's character, as
evident in the work, does not amount to defamation.

7. Censure passed by a person with lawful authority.

 It is not considered defamation for a person who holds authority over another,
either by law or through a lawful contract, to express sincere criticism
regarding the conduct of the other person in matters relevant to that authority.

Illustration: A teacher provides constructive feedback to a student about their

performance in an academic assignment. As long as the criticism is given in
good faith and pertains to the student's academic work, it qualifies for this
exception.

8. Accusation preferred to authorized person.

Making an accusation against an individual in good faith and with lawful

grounds to a person who holds authorized power over the accused
concerning the subject matter of the accusation is not defamation.

9. Imputation for protection of interests.

It is not defamation to make an imputation about another person's character,

provided the imputation is made in good faith to protect the interests of the
person making it, another person, or the public good.

Illustration: A journalist investigates and exposes financial irregularities within

a corporation, attributing them to a specific executive. As long as the journalist
acts in good faith and aims to safeguard the public interest by revealing
potential misconduct, it is covered by this exception.

10. Caution for the good of a person or public good.

Conveying a caution in good faith to one person regarding another person,

with the intention of benefiting the recipient of the caution, someone
connected to them, or the general public good, does not constitute
defamation.

Types of Defamation

There are two types of Defamation:

1.Libel

Libel is a type of defamation that involves the publication of false statements about
an individual or entity in written, printed, or visual forms. These statements are
recorded and have a lasting impact due to their permanence. Libelous statements
are typically
communicated through mediums like newspapers, magazines, books, online articles,
photographs, or videos.

Example: Publishing an article on a news website falsely claiming that a celebrity is

involved in a criminal activity, such as drug trafficking, constitutes libel. The false
statement is recorded and disseminated to a wide audience, causing lasting harm to
the celebrity's reputation.

2. Slander

Slander, on the other hand, is a form of defamation that involves making false
spoken statements about an individual or entity. Unlike libel, slanderous statements
are not permanently recorded and are more transient in nature. They can spread
quickly through word of mouth, conversations, speeches, or broadcasts.

Example: During a live radio broadcast, a host falsely accuses a local business
owner of selling counterfeit products. The spoken statement reaches the listeners in
real-time but isn't permanently recorded. If the false claim damages the business
owner's reputation, it qualifies as slander.

 Subramanian Swamy vs. Union of India (2016): In this case, the Supreme
Court of India upheld the constitutional validity of criminal defamation laws.
The petitioner, Subramanian Swamy, argued that these laws violated the
fundamental right to freedom of speech and expression. The court ruled that
criminal defamation serves as a reasonable restriction on free speech to
protect an individual's reputation.
 Amitabh Bachchan vs Star India Pvt. Ltd. (2014): In this case, actor Amitabh
Bachchan filed a defamation case against Star India Pvt. Ltd. for showing his
name in a negative light during a quiz show. The Bombay High Court ruled
that the use of his name in that context did not necessarily defame him, as it
was in the context of a fictional game show.

Sec 356(2) provides that anyone who defames another person shall be punished
with simple imprisonment for up to two years, or with a fine, or with both, or
with community service.
Sec 356(3) provides that anyone who prints or engraves any material, knowing or
having good reason to believe that such material is defamatory of any person, shall
be punished with simple imprisonment for a term which may extend to two years, or
with fine, or with both.

Sec 356 (4) provides that whoever sells or offers for sale any printed or engraved
substance containing defamatory matter, knowing that it contains such matter, shall
be punished with simple imprisonment for a term which may extend to two years, or
with fine, or with both.
Q. 22 Under what circumstances is an assembly considered an unlawful
assembly and how are the members of such assembly responsible for the
act of that unlawful assembly?

unlawful assembly

unlawful assembly is defined under section 189 (1 )of the BNS. According to this
section, any assembly is unlawful if its common objective is to:

1.Overpower the government (central as well as state government), the

legislature (central as well as state legislature) or any public servant in the
exercise of lawful power by using criminal force.
2.Resist or oppose the application of the law or any legal process.
3.Commit mischief, criminal trespass or any other offence.
4.Obtain possession of any property or deprive any person of their incorporated
right by using criminal force.
5.To force someone to commit a crime or any said illegal act.

However, for an assembly to be referred to as an unlawful assembly, there must

be five or more persons in the assembly, and

they must constitute a common object.

This means that all the persons of the assembly must be aware of the object of
the formation of such assembly.

The mere presence of any person does not make that person a member of the
unlawful assembly.

Article 19 (1)(B) of the Constitution of India 1949, lay down that ‘All citizens
shall have right to assemble peaceably and without arms. That means citizens of
India has been given freedom to assemble and organize a public gathering or
even processions on their own will. But this right to assemble is subject to
reasonable restriction by the state in the interest of sovereignty and integrity of
India or public order under clause 3 of Article 19 of the Constitution of India 1949
 In Moti Das v. State of Bihar, it was held that ‘an assembly, which was lawful to
start with, became unlawful the moment one of the members called on the others
to assault the victim and his associates, and in response to his invitation all the
members of the assembly started to chase the victim while he was running.’

Under section 189(2)

 if anyone being aware of facts which render any assembly an unlawful

assembly,
 intentionally joins that assembly, or continues in it, is said to be a
member of an unlawful assembly and
 such member shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine, or with both.

Under section 189 (3)

 Whoever joins or continues in an unlawful assembly,

 knowing that such unlawful assembly has been commanded in the manner
prescribed by law to disperse,
 shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.

Under section 189 (4)

 Whoever, being armed with any deadly weapon, or with anything

which, used as a weapon of offence, is likely to cause death,
 is a member of an unlawful assembly,
 shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.

Under section 189 (5)

 Whoever knowingly joins or continues in any assembly

 of five or more persons
 likely to cause a disturbance of the public peace,
  after such assembly has been lawfully commanded to disperse,
 shall be punished with imprisonment of either description for a term which
may extend to six months, or with fine, or with both.

Under section 189 (6)

 Whoever hires or engages, or employs, or promotes, or connives at the

hiring, engagement or employment of any person
 to join or become a member of any unlawful assembly,
 shall be punishable as a member of such unlawful assembly, and
 for any offence which may be committed by any such person as a member
of such unlawful assembly in pursuance of such hiring, engagement or
employment, in the same manner as if he had been a member of such
unlawful assembly, or himself had committed such offence.

Under section 189 (7)

 Whoever harbours, receives or assembles, in any house or premises in his

occupation or charge, or under his control any persons
 knowing that such persons have been hired, engaged or employed, or are
about to be hired, engaged or employed, to join or become members of an
unlawful assembly,
 shall be punished with imprisonment of either description for a term which
may extend to six months, or with fine, or with both.

Under section 189 (8)

 Whoever is engaged, or hired, or offers or attempts to be hired or engaged,

 to do or assist in doing any of the acts specified in sub-section (1),
 shall be punished with imprisonment of either description for a term which
may extend to six months, or with fine, or with both.

Under section 189 (9)

Whoever, being so engaged or hired as referred to in sub-section (8),

  goes armed, or engages or offers to go armed, with any deadly weapon or
with anything which used as a weapon of offence is likely to cause death,
 shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.

Under section 190 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.

IN Ratan Lal v. State of Punjab (1965): the Supreme Court clarified that the
common object must be one of the five objects specified in Section 141 (now sec
189(1) of BNS)to render an assembly unlawful. These objects include the
commission of an offense, the resistance to the execution of any law, the
disturbance of public peace, the use of criminal force, or violence. The court
emphasized the importance of establishing the common object to determine the
character of the assembly.

Q. 23 Write the short note on followings

a.Rioting

1.Sec 191 of BNS- Definition of Rioting:

o Rioting involves the use of force or violence by an unlawful assembly

or by any of its members. The act must be in furtherance of the
common objective of the assembly.
 2. Unlawful Assembly:

o An unlawful assembly is a gathering of five or more people with the

common purpose of using force or violence, or of doing something that
is illegal or against the law.

3. Guilt of Rioting:

o Every member of an unlawful assembly is deemed guilty of rioting if the

group engages in violence or force in pursuit of their common purpose.

4. Punishment for Rioting:

o General Case: The punishment for rioting includes imprisonment for up

to two years, a fine, or both.

o Armed Rioting: If the rioting involves members who are armed with a
deadly weapon or something likely to cause death if used as an
offensive weapon, the punishment is more severe. It includes
imprisonment for up to five years, a fine, or
both.

5. Deadly Weapon:

o A deadly weapon is anything that, when used in a certain manner, is

likely to cause serious injury or death. This includes firearms, knives, or
any other objects that can inflict significant harm.

Important Aspects:
  Liability of Members: All members of an unlawful assembly are collectively
responsible for the violence or force used, reflecting the principle of collective
responsibility within such assemblies.

 Severity of Punishment: The law differentiates between rioting with or without

weapons. The severity of the punishment increases significantly if the rioting
involves deadly weapons, emphasizing the greater danger posed by armed
violence.

 Objective of the Assembly: The common object or purpose of the unlawful

assembly must be considered. If the violence or force is used to achieve this
common objective, all members are held accountable.

BNS-191 defines and penalizes rioting, which occurs when an unlawful

assembly uses force or violence in pursuit of their common objective. All
members of such an assembly are guilty of rioting and can face imprisonment
of up to two years, a fine, or both. If the rioting involves deadly weapons or
items that could cause death, the punishment can extend to five years of
imprisonment, a fine, or both. This section underscores the principle of
collective responsibility and the increased severity of punishment for armed
violence.

b.AFFRAY

Sec 194 of BNS

(1) When two or more persons, by fighting in a public place, disturb the public peace,
they are said to commit an affray.

(2) Whoever commits an affray, shall be punished with imprisonment of either

description for a term which may extend to one month, or with fine which may extend
to one thousand rupees, or with both.

According to Blackstone, “The offence is the fighting of two or more persons in public
place to the terror of His Majesty’s subjects for, if the fighting be in private, it is no
affray but an assault.” The gist of the offence consists in the terror it causes to the
public. The word ‘affray’ is derived from the French word ‘affraier’ which means ‘to
terrify’ and so, in a legal sense it is taken for a public offence causing terror to the
people.

INGREDIENTS OF AFFRAY

An affray consists of the following:

 fighting by two or more persons

 the fighting must take place in a public place

 such fighting must also result in disturbance of the public peace

 A charge of affray brings in both the sides as accused persons since both the
fighting groups have committed the offence.