HAPUR ROAD, BHO JPUR, G HA Z I A BA D (DELHI NCR)

STUDY MATERIAL
LLB-I SEMESTER
 CH. CHARAN SINGH UNIVERSITY
LL.B. 3 YEAR (SIX SEMESTER) COURSE

SEMESTER – I: (Total: 500 Marks)

Paper No. Title of the Paper Paper Code Max. Marks

I Jurisprudence – I K-1001 100
II Constitutional Law of India – I K-1002 100
III Law of Torts K-1003 100
IV Bhartiya Nyaya Sanhita – I K-1004 100
V Contract – I K-1005 100
 Syllabus
LAW OF CRIMES – I

(Indian Penal Code) (Paper Code : K-1004)

The course shall comprise of the following :
 General Principles of Crime : Concept of crime; Elements of crime ; stages of crime; Concept of
Strict Liability, Constructive Liability, Common Intention and Common Object.
 Inchoate Crime/ Preliminary offences: Abetment, conspiracy and attempt
 General Exception: Mistake, accident , necessity, Young age, unsoundness of mind, drunkenness,
Right of Private Defence.
 Specific Offences :
1. Offences Affecting Human Body : Culpable Homicide, Murder, Homicide by Rash and
Negligent Act, Hurt and Grievous Hurt; Kidnapping and Abduction, Wrongful Restraint and
Wronful Confinement, Assault, Criminal Force.
2. Offences Against Property : Theft Extortion; Robbery; Dacoity; Cheating;
3. Offences Against State and Public Tranquility : Sedition; Unlawful Assembly; Rioting
and Affray.
4. Offences Against Marriage : Bigamy and Adultery

BOOKS RECOMMENDED
Gaur Hari Singh (Dr.), Penal Law of India. Gaur K.D., Criminal Law cases and materials. Lal Rattan Lal
Dhiraj, Indian Penal Code.
Misra S.N., Indian Penal Code.
Nigam R.C., Principles of Criminal Law.
Important topics to be done
1. Meaning, elements and stages of crime
2. Explain private defences of a person

3. Constructive criminality
4. Offences against state
5. Criminal liability and its defences
6. Crime done by children
7. Unlawful Assembly
8. Theft, robbery, dacoity, and extortion
9. Mischief
10. Abettor and conditions to be an abettor
11. Culpable homicide and Murder
12. Kidnapping and abduction

13. Simple and Grievous Hurt

14. Criminal breach of Trust and criminal Misappropriation of property

15. Define Abetment and its elements

16. Defamation and its types

17. Common Intention and Common Object

18. Important case laws

Law of Crimes
Q. What is a crime? What are the stages of crime? Also mention its elements and
difference between preparation and attempt.
Ans. Introduction
A crime is defined as the commission of an act that is prohibited by law, or an omission
of an act that is obligated by the law. In other words, crime may be defined as the
disobedience of law. Another important aspect of a crime is that it affects the public
interest, rather than the rights of a single individual, which is a part of civil law.
The term crime is derived from latin word ‗crimen‘ which means offence and
‗wrongdoer‘.

According to Stephen "Crime is said to be an act which is both forbidden by law and
against the moral sentiments of the society."

According to Bentham "Offences are whatever the legislature has prohibited for good or
for had reasons."

According to Blackstone "Crime is an act done in violation of the public rights and duties
due to the whole community, considered as a community, in it's social aggregate
capacity.

According to 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."

In India, criminal law is operated through substantive as well as procedural law. The
substantive law includes the Indian Penal Code, 1860 (the Code), and the procedural law
includes the Code of Criminal Procedure, 1973 (Cr.P.C.). These laws are implicit and
also various cases prove that in the commission of a crime, there exist four stages which
are as follows:

Essential Elements of Crime: The chief elements necessary to constitute crime are:

1. The act must have been done by a human being:

2. An evil intent on the part of such human being:

3. A committed or omitted in furtherance of such intent:

4. An injury to another human being or to society at large by such act

Stages of crime

The stages of crime or elements of a crime include intention, preparation, attempt and
accomplishment. The constitution of a crime includes all the elements. Some of these
elements are even punishable before the accomplishment of the crime. All the stages can
be explained further as follows:

1. Intention

The fundamental elements of a crime are ‗mens rea‘ and ‗actus reus‘, the former being
the intention to commit a crime and the latter being the act done in furtherance of the
intention. The criminal liability of a person shall be decided only when he or she has
a mala fide intention. It is the direction of conduct towards the objects chosen upon
considering the motive which suggests the choice. Mere intention shall not constitute a
crime, as it is almost impossible to know the intentions of a person. As the famous saying
goes ―the devil himself know not the intention of a man‖. Since it is hard to know the
intentions of a man, a criminal liability at this stage cannot be drawn.

Mens Rea

Mens rea literally means guilty mind. This basically implies that a person committing the
crime is mindful of his/her actions and knows that accomplishment of that act would
result in a crime. To simplify, the intention of the person committing a crime should be
mala fide. Further, mens rea can be further divided into four levels depending upon the
degree of intent of committing the crime. These four levels are:

1. Negligence: This is the least and in fact the mildest form of mens rea where the
person is negligent of his/her actions and does not ensure reasonable care in
his/her act/omission.
2. Recklessness: This is of a slightly higher amplitude than negligence where the
person can anticipate the crime which may arise out of the act/omission but did
not expect or intended the same and acts negligently.
3. Knowledge: The third level is knowledge where the person is associated with
the risks that may occur on his act/omission and still continues with such
act/omission. Here, he/she is not negligent.
4. Intent: This is of the highest amplitude where the person intentionally carries
out an act or omits something in order to commit the crime.

"Actus non facit reum nisi mens sit rea"

"Actus non facit reum nisi mens sit rea" is a well-known Law. It means the act itself does
not make a man guilty unless his intentions were so.Intention is necessary to consider an
act as a bad act.

Also

"Actus me invito factus non est mens actus means‖

An act done by me against my will is not my act at all.

The above two maxims clearly states that an act to be punishable must be done with
Criminal intent.

Actus reus

Actus reus is the act or omission on part of the person which causes a crime and involves
some physical activity. It is important to note that not just an act but an omission can also
be an act of crime

A human being and an evil intent are not enough to constitute a crime unless it is visible
through some voluntary act or omission Actus reus is such a result of human conduct as
the law seeks to prevent.It is physical result of human conduct. For example, non-
payment of taxes or maintenance is a crime.

2. Preparation

The next stage of a crime is preparation. It can be understood as an act in furtherance of

the malafide (bad) intention of a person. It is an act that shall be a means to the attempt
and accomplishment of the crime. In the previous illustration, if A purchases a weapon
legally and carries it with himself, it shall amount to the preparation of the crime.

Reasons why preparation is not punishable

The general rule under the law is that the preparation of a crime shall not be punishable.
The reason behind the general rule is that it is nearly impossible to prove that the accused
made the preparation to execute the crime. Apart from this, the test of locus
poenitentiae is applied in cases where the culpability of preparation is in question. The
test provides that a person has an opportunity to withdraw from his act before he actually
commits the intended crime.
Exceptions in which criminal liability may be imposed

Exceptions to the general rule that a person cannot be held criminally liable for the
preparation of an act have been provided under the Code. These exceptions include:

1. Preparation to wage a war against the Government of India – Section 122 of the
Code provides that collection of arms, ammunition, or associating with people
with an intention to wage a war against the State shall be a punishable offence
with imprisonment for a term that may not exceed ten years, and such the
offender shall also be liable for fine.
2. Counterfeiting coins – Section 233, Section 234, and Section 235 of the Code
provide the punishment for counterfeiting any coin, including an Indian coin
and the possession of any counterfeit coin. These provisions also provide
punishment for the preparation of producing or using a counterfeit coin.
3. Manipulation of the weight of the coins – Section 244, Section 246 and Section
247 of the Code provide the punishment for altering or diminishing the weight
of any coin. In these circumstances, even the preparation to commit such crimes
is punishable.
4. Counterfeiting Government stamps – Section 255 of the Code provides
that ―Whoever counterfeits, or knowingly performs any part of the process of
counterfeiting, any stamp issued by Government for the purpose of revenue
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.‖ In addition to this, the provision also criminalises the possession (Section
256) and selling (Section 257) of counterfeiting Government stamps.
5. Preparation to commit a dacoity – Section 399 of the Code provides that
―Whoever makes any preparation for committing dacoity, shall be punished
with rigorous imprisonment for a term which may extend to ten years, and shall
also be liable to fine.‖
6. Possession of forged documents – Section 474 of the Code provides the
punishment for the possession of forged documents. The intention behind the
provision is to prevent any type of fraud that may occur by using such forged
documents.
These offences are punishable at the stage of preparation due to the gravity of the
outcome of the crime, if committed.

3. Attempt
There exists a very thin line of distinction between the preparation of a crime and an
attempt to commit the same. It may be defined as an action in furtherance of the intention
and preparation of a person to commit a crime. Thus, an attempt to commit a crime is
often termed ―preliminary crime‖. An attempt to commit a crime is punishable under the
Code. It has been provided under various provisions for specific crimes. However, in
case of the absence of punishment for an attempt to commit a particular crime, Section
511 of the Code comes into the picture. Some of the specific provisions of the Code
under which an attempt to commit a crime have been enumerated hereunder:

 Section 121 – Attempt to wage a war;

 Section 131 – Attempt to seduce a soldier, sailor or airman from his duty;
 Section 307 – Attempt to murder;
 Section 308 – Attempt to culpable homicide;
 Section 309 – Attempt to suicide;
 Section 326B – Attempt to throw suicide;
 Section 356 – Attempt to commit theft;
 Section 357 – Attempt to wrongfully confine a person;
 Section 393 – Attempt to commit robbery;
 Section 397 – Robbery or dacoity with an attempt to cause death or grievous
hurt;

Difference between preparation and attempt

The difference between the preparation and attempt to commit a crime is a crucial one. It
can determine the criminal liability of a person. The prime difference between the two is
the fact that whether the act that has already been finished during the stages of crime, has
an impact on the victim. If it has an impact, it is considered to be an attempt, otherwise, it
is considered to be mere preparation. The Courts in various cases have attempted to
differentiate between the two through various tests, which shall be discussed hereunder.

No.
Preparation Attempt
1 Preparation is an executor Attempt is an Executed Act. Attempt
Act, it comes before an is direct movement towards the
attempt. Commission after the Preparation is
made

2 Example: A purchases Example: A purchases poison and

Knife to murder B. Mere mixes it in the meal of his wife with
purchase of Knife which is a intention to kill her . It is an
preparation. attempt.

Stage: Preparation is an Act Stage: Attempt is an act done as per

3 of arranging all the the planning which amounts to
necessary means or articles offence in all cases.
or commodities to do an
illegal act.

Knowledge: Only the person Knowledge : Once the attempt is

4 who intends to commit the complete it manifests
crime knows fact.

Attempt would not be an It amounts to an offence... i.e. to

5 offence if a person attempt to do an illegal act.
Voluntarily gives up the idea
of committing the crime. In
this stage it is mare chance
of commission of crime

Punishment : Preparation Punishment: According Section

is punishable in few cases 511 of IPC Attempt is punishable
6 such as Preparation to with imprisonment for life or other
commit dacoity under imprisonment.
Section 399 of Indian Penal
Code.( S.399 - Making
 preparation to dacoity )

Tests for determining an attempt to commit a crime

 Proximity rule – The proximity rule provides that in cases where the accused
accomplishes a series of acts in furtherance of his intention to commit a crime,
the liability shall be decided upon the proximity with the completion of the Act.
 Locus Poenitentiae – The doctrine of locus poenitentiae provides that where a
person withholds himself from the actual commission of the crime, it would
amount to mere preparation. The doctrine was propounded after analysing that a
person has a reasonable opportunity to withdraw himself from committing the
crime.
 Equivocality Test – The equivocality test states that when an act of a person can
prove beyond reasonable doubt the likeliness of committing the crime, it shall
constitute as an attempt to commit the crime rather than mere preparation.

4. Commission or Accomplishment

The accomplishment of a crime is when an attempt to commit a crime is successfully

executed. Every person shall be liable for the act, offence or crime that he commits or
accomplishes. The provisions of the Code provide for specific punishments for various
crimes in the country.

Stage at which liability commences

The above discussion reveals how these four stages of crime decide the criminal liability
of an accused. Undisputedly, at the level of accomplishment, the criminal liability of a
person shall arise. Nevertheless, the above discussion reveals how the liability can
commence even at the stage of the attempt and in some cases, even at the stage of
preparation. Usually, in such instances, the crime committed is very serious and poses a
threat to society. Hence, the main object of ascertaining liability at such stages is to
create a deterrent effect in the minds of people and prevent them from committing such
heinous crimes.

Case laws
Madan Lal v. State of Rajasthan (1986)

In this case, the convict was sentenced to rigorous imprisonment for two years when
found guilty of attempting to commit rape of the victim under Section 376 read with
Section 511 of the Code. The facts of the case included three prime witnesses, who found
the convict laid down naked on the victim, who was also found naked, and the mouth of
the victim was covered by the convict‘s hand. It was established the convict himself
removed his clothes and that of the victim and had an intention to rape the victim.

The Court, while analysing the stage of attempt, held that ―It is the stage beyond
preparation and it precedes the actual commission of the offence. An attempt to commit
an offence is not meant to cover only the penultimate act towards the completion of an
offence but it also covers all those acts or series of acts which travel beyond the scope of
preparation and exhibit a definite intention and determination to commit a particular
offence. It need not be an act which just precedes the last act on the happening of which
the offence itself is committed but it covers all those acts or series of acts which may
precede the penultimate act towards the commission of that offence.‖

State of Madhya Pradesh v. Narayan Singh (1989)

In this case, the Hon‘ble Supreme Court held that the commission of an offence involves
four stages; i.e. intention, preparation, attempt and commission. The first two stages of
these offences would not attract culpability, however, the last two stages would attract it.
In this case, the respondents were trying to export fertilisers without a permit from
Madhya Pradesh to Maharashtra. Hence, the act was considered to be an attempt of the
offence rather than just preparation.

Conclusion
The four stages of a crime have been defined and adopted by the judiciary for a long time
now. The classification of these stages is necessary in order to decide the culpability of a
crime at each stage. Generally, the liability arises during an attempt and the actual
commission of the crime, as the courts cannot overlook the legal maxim of locus
poenitentiae. The problem before the courts that arises more than often is the
differentiation between the preparation and the attempt to commit a crime.

Various cases have been adjudicated by the courts wherein an attempt has been made to
distinguish the thin line between an attempt and preparation of a crime. The courts have
been of the view that an attempt shall not be considered only as the penultimate act of the
crime. Rather, a series of acts shall constitute an attempt to commit the crime and the
differentiation between preparation and attempt shall depend on the facts and
circumstances of each case.

Q2. Difference between Criminal trespass and House Breaking.

Ans. Trespassing was made a crime because everyone has the right to enjoy their
property without being bothered. Trespass is defined as a person who accesses another
person's property without permission from the owner. Trespassing is normally considered
a civil wrong for which compensatory damages are awarded, but trespassing with the
purpose to commit a crime is considered a criminal offence and is penalised under
Section 441 of the Indian Penal Code. According to Section 441 of the Indian Penal
Code, that whoever tries to enter the property in the possession of another with the intent
to commit an offence or to intimidate, insult, or annoy any person in possession of such
property, or who has lawfully entered such property but remains there with the intent to
intimidate, insult, or annoy any such person, is said to have entered into such property
with the intent to commit an offence.
As a result, criminal trespass occurs when a person enters or remains on another person's
private property without permission or an express or implicit licence with the goal of
committing a crime.

INGREDIENTS OF CRIMINAL TRESPASS

THE FOLLOWING ARE THE 4 INGREDIENTS OF CRIMINAL TRESPASS:

 Entry into another person‘s property

To commit the crime of criminal trespass, the accused individual must physically enter
the property of another. There can be no trespass if the offender does not physically enter
the victim's private property.
For Example- Mr Sharma throws his kitchen waste in front of Mr Sen‘s house daily, in
this Mr Sharma cannot be accused of criminal trespass as he has not physically entered
the property of Mr. Sen.
 Possession of property
The plaintiff should have possession of the property in question, not the trespasser or
anybody else. The mere possession of the property is enough to charge the trespasser
with criminal trespass. The victim does not need to be the owner of the property.
The term "ownership" refers to an object's absolute rights and claims. It refers to the
owner's ownership of an object, whereas "possession" refers to the actual control of an
object.
It is not necessary for the person in possession to be present at the moment of the
trespass; trespassing can occur even if the possessor is not there.
For example- buying gifts and delivering it to a person‘s house against their will, is also a
form of criminal trespass, even though at the time of delivering such gifts, the person is
not present at the house.
 Intention
For the unauthorised entry or stay, there must be a purpose to conduct an offence or to
intimidate, insult, or irritate the owner of the property.
It would not be criminal trespass if it could be proven that Defendant's intention was not
to do so.
For example- if some children are playing cricket outside A‘s house. The cricket ball
while playing went inside A‘s house and one of the kids went running inside A‘s house to
catch the ball. In this case, the kid has no bad intention and therefore will not be liable for
criminal trespass.

House trespass/house breaking

House-trespass is defined in Section 442 of the Indian Penal Code as entering or

remaining in any building, tent, or vessel used as a human home, place of worship, or a
place for the safekeeping of property with the purpose of committing criminal trespass. A
human dwelling need not be a permanent resident of the defendant; occasional occupants
such as schools or railway stations can also be considered human dwellings. However, in
order for a structure to be considered a human residence, it must have walls or some form
of security, and a simple fence will not suffice. Because this is an intensified type of
criminal trespass, every house-trespass is criminal trespassing, but not every criminal
trespass is not a house-trespass.
Since house-trespass is a crime that requires the defendant to be in real possession of the
property, it cannot be committed if the defendant is not in possession of the property.

DIFFERENCE BETWEEN CRIMINAL TRESPASS AND HOUSE-TRESPASS

1. ―Criminal trespass" is defined under Sec. 441 ―House-trespass‖ is defined under Sec.
442
2. Sec. 447 gives the punishment for criminal trespass. Sec. 448 gives punishment for
house trespass.
3. Punishment for this is less than 3 months or fine up to Rs. 500 or with both.
Punishment is severe in criminal trespass. It‘s one year imprisonment or a fine of Rs.
1,000/- or both.
4. Criminal trespass comes under the ordinary category of the offence of trespass. House
trespass is considered to be an aggravated form of Criminal trespass.
5. Criminal trespass may be committed on any property House trespass can be committed
only in the case of dwelling buildings.
6. The trespasser should do a certain act of insult or intimation or annoy the property
owner to be liable for criminal trespass. Trespasser will be liable for house-trespass even
if one of his body parts enters the dwelling property of the owner.

CONCLUSION
If an outsider or even a known person enters any property in your possession with the
aim to hurt or injure you, that person will be charged with criminal trespass under the
IPC, and remedies can be sought in any court of law. In order to be charged with criminal
trespass, you must have the intent to conduct a crime; mere awareness does not constitute
criminal trespass. Furthermore, the severity of the sentence for criminal trespass would
be determined by the aggravation that occurred during the commission of the offence.
House-trespass is a much more severe matter than criminal trespass; lurking house-
trespass and house-breaking are intensified kinds of house-trespass; and, finally, house-
trespass by night and housebreaking by night would be punished harshly.

Q3.Who is an Abettor? What is Abetment?

Ans

Law keeps a check on human behaviour. It categorizes them into criminal and non-
criminal behaviours. However, every non-criminal behaviour even something as simple
as buying a knife for your kitchen becomes criminal when there are criminal intentions
behind it.

The concept of abetment widens the horizons of criminal law to incorporate these
criminal intentions and penalize them even when the person who bought the knife did not
actually kill anyone but handed it over to someone else to do it. To explain the concept of
abetment, the word ‗abet‘ should be given deep scrutiny. In general use, it means to aid,
advance, assist, help, and promote.

In the case of Sanju v. State of Madhya Pradesh the honourable Supreme court defined
‗abet‘ as meaning to aid, to assist or to give aid, to command, to procure, or to counsel, to
countenance, to encourage, or encourage or to set another one to commit. The definition
of ‗abet‘ as given, makes it clear that abetment only occurs when there is at least two
person involved, which further directs us towards the arrangement and operation of the
act.
In usual parlance, a person is held to be liable only if he or she has personally committed
a crime. The concept of Abetment says, that he who has helped the criminal or provided
him with any assistance in any form can also be held to be liable.

MEANING OF ABETMENT
In common practice, the word ‗abet‘ signifies help, co-activity and support and
incorporates within its ambit, illegitimate reason to commit the crime. So as to bring an
individual abetting the doing of a thing under any of the conditions specified
under Section 107 of the Indian Penal Code, it isn‘t just important to demonstrate that the
individual who has abetted has participated in the means of the transactions yet
additionally has been associated with those means of the transaction which are
criminal. The term ‗abetment‘ in criminal law indicates that there is a distinction between
the person abetting the commission of an offence (or abettor) and the actual perpetrator
of the offence or the principal offence or the principal offender.

ABETMENT UNDER INDIAN PENAL CODE

Abetment is constituted by:

1. Instigating a person to commit an offence; or

2. Engaging in a conspiracy to commit it; or
3. Intentionally aiding a person to commit it.
The offense of abetment by instigation relies on the intention of the individual who abets
and not upon the act which is finished by the individual who has abetted. The abetment
might be by instigation, connivance, or purposeful aid as given under Section 107 of the
Indian Penal Code However, the words articulated in an angry state or omission without
any intention cannot be termed as instigation.

For an individual to be called liable for Abetment, and so as to proceed against an

individual for a criminal offense under Section 107, the prosecution must claim the
component of mens rea. Negligence or carelessness can‘t be named to be abetment in
order to punish the liable, according to the arrangement of penal laws.

So as to establish abetment, the abettor must have appeared to ―deliberately‖ support the
commission of the wrongdoing. In such a case we need to just prove that the wrongdoing
charged couldn‘t have been done without the association as well as the intervention of the
supposed abettor isn‘t sufficient with the prerequisites of Section 107.

For example, in a case where the accused was found with a spear on the scene of the
fight, his participation in the fight was proved. It was immaterial whether or not they
actually made use of their weapons, they were still held liable for the injuries caused to
the defendant party.

In the case of Tuck v. Robson, a publican ( the person who manages a pub or a bar) by
not making any effort to make his customers leave the premises after the pub was closed,
was said to have aided the crime of abetment of consumption of the liquor after the hours
in which it was permitted.
Two individuals may likewise be joint culprits, where each with the relevant mens rea
does acts which together comprise an adequate representation of the actus reus of an
offense; for instance, in an offense including driving, A and B have been held both to
drive, where A was inclining over and controlling the steering while B worked the foot
pedals the gears. On the off chance that an individual makes use of an innocent agent so
as to obtain the commission of an offense, that individual, not the agent, is the culprit,
despite the fact that he is absent at the location of the wrongdoing and does nothing with
his very own hands.

An innocent agent is one who performs the Actus Reus of an offense yet is himself
lacking responsibility, either by reason of inadequacy or infancy or in light of the fact
that he needs mens rea or has a safeguard, for example, pressure.

A striking case of innocent agency is the case where a girl, following up on her mom‘s
guidelines, gave some powder to her dad to calm his cold. Obscure to the little girl, it was
a toxic substance and consequently the father died.

It was held that the mother was the culprit of the wrongdoing since the little girl who was
coming up short on the mens rea, was an innocent agent by means of whom, the mother
had carried out the wrongdoing. Obviously if, as the report takes note of, the little girl
had realized that the powder was poison, she would have been blameworthy as the culprit
and the mother as an accessory.

A bribe-giver is an accessory, just when he gives it with the aim of acquiring some
favour which was not possible to acquire by legitimate means, yet the person who offers
it to aid detention of a crime is not an accessory, the important mens rea being missing.
People giving unlawful gratification under stress, dread and compulsion are not
accomplices.

It isn‘t vital for each situation that the key wrongdoer put up at the same trial must be
indicted for the offense charged before the abettor can be sentenced for abetment of that
offense. Each case must be decided to keep in mind its own set of facts.
PUNISHMENT FOR ABETMENT

For the public at large, the very concept of Abetment being tried as a separate offence
and being punishable might sound really bizarre because it is so imbibed in most people
that only the perpetrators of the crime will be punished. The Penal Code in its abetment
laws clearly lays down the sections, explaining extensively, the different walks of
punishments that the abetment laws notify. They are covered as follows:

In Section 109 of the Indian Penal Code, the one who abets an offence is given the same
punishment as that of the principal perpetrator of the crime if the actus reus of the
principal offender has occurred as a result of the inducement made by the abettor. Section
109 of the Penal Code is applicable in case no separate provision is made for the
punishment of such an abetment..

It isn‘t essential in law for the prosecution to demonstrate that the real intention in the
brain of the individual abetting was instigation and that was it, provided there was
instigation and the offense has been committed or the offense would have been
committed if the individual who was the main offender had the same intention and
knowledge as the thing that was likely to have been done by the person who is instigated.

Section 110 of the Indian Penal Code gives that even if the individual abetted commits
the offense with an intention different than the intention possessed by the main
perpetrator of the crime, yet the abettor will be charged with the punishment provided for
the offence abetted. The liability of the individual abetted isn‘t influenced by this section.

Section 111 of the Indian Penal Code continues the development on abetment laws
around the phrase ―each man is deemed to intend the corollary outcomes of his act.‖ If
one man actuates another to execute specific wrongdoing, and that other, in pursuance of
such instigation, executes not just that wrongdoing but carries out another wrongdoing in
the advancement of it, the former is criminally liable as an abettor in regard of such last-
mentioned wrongdoing, in the event that it is one which, as a person with the intelligence
of a reasonable man, at the time of inducement would have known to be committed in
order to carry out the original crime.

Section 112 of the Indian Penal Code expands the guidelines articulated in the previous
section. Under it, the abettor is held liable for the offense abetted and also the offense
committed. Joint scrutiny of Sections 111, 112 and 133 make it richly evident that if an
individual abets another in the commission of an offense and the chief goes further from
there on and accomplishes something more which has an alternative outcome from that
planned by the abettor and makes the offense an aggravated one, the abettor is liable for
the consequences of the acts of his principal.

The essence of the issue is an enquiry of this sort is whether the abettor as a sensible man
at the time that he is being instigated or has been purposefully supporting the main
perpetrator would have predicted the likely results of his abetment.

Section 113 of the Indian Penal Code ought to be read together with Section 111. Section
111 accommodates the doing of the actus reus which is not the same as the one abetted,
though this section manages the situation when the actus reus done is equivalent to the
guilty act abetted however its impact is not the same.

Section 114 of the Indian Penal Code is possibly only brought into activity when
conditions adding up to abetment of specific wrongdoing have first been proved, and
after that, the presence of the accused at the commission for that wrongdoing is
demonstrated furthermore. Section 114 talks about the case, where there has been the
wrongdoing of abetment, however, were additionally there has been real commission of
the wrongdoing abetted and the abettor has been present there, and the manner by which
it manages such a case is this.

Section 114 isn‘t relevant for each situation in which the abettor is present at the
commission of the offense abetted. While Section 109 is a section which talks about
abetment, Section 114 applies to those cases in which not only is the abettor present at
the time of the commission of the offense but abetment was done beforehand and done
independently of his presence.

There is a very fine line between Section 34 of the Indian Penal Code and Section 114 of
the Indian Penal Code. As per Section 34, where a criminal act is done by numerous
people, in promotion of the basic aim of all, every one of them is liable as though it were
finished by himself alone; so that if at least two or more people are present, helping and
abetting in the commission of the murder, each will be tried as the main perpetrator of the
crime, however, it probably won‘t be clear which of them really perpetrated the crime.

Section 114 alludes to the situation where an individual by abetment, prior to the
commission of the wrongful act, renders himself obligated as an abettor, is present when
the actus reus takes place, however, takes no active part in its doing. A joint act falling
under Section 34 however does not include a mere order from one person to another and
the carrying out of that order by the other which may only be the instigation of the
latter‘s act.
Section 115 of the Indian Penal Code criminalizes the abetment of specific offenses
which are either not committed at all, or not committed in pursuance of abetment or only
in part committed.

The detainment discussed in this section is for a term which may stretch out to seven
years, and will likewise be obligated to fine. What‘s more is that, if any act for which the
abettor is liable in consequence of the abetment, and which causes hurt to any person, is
done, the abettor shall be liable to imprisonment of either description for a term which
may extend to fourteen years and shall also be liable to fine.

TYPES OF ABETMENT
(1) Abetment by Instigation

Instigation basically means suggesting, encouraging or inciting a person to do or abstain

from doing something. Instigation may take place either directly or indirectly, by written
or oral words, or even by gestures and hints.

The instigation must be sufficient to actively encourage a person to commit an offence. It

should not be mere advice or a simple suggestion. The Instigator need not even
possess mens rea (a guilty intention to commit the crime).
Explanation 1 of this Section throws some lights on what instigation may mean in this
context. It says that instigation may generally happen even by:

(a) Wilful misrepresentation; or

(b) Wilful concealment of a material fact which a person is bound to disclose.

For example, a court directs Amit, a police officer, to arrest Raj under an arrest warrant.
Brijesh informs Amit that Chandan is Raj despite knowing that he is not. Under this
misrepresentation, Amit ends up arresting Chandan instead of Raj. In this case, Brijesh is
guilty of abetting Amit in wrongfully apprehending Chandan.

(2) Abetment by Conspiracy

Conspiracy basically means an agreement between two or more persons to commit an

unlawful act. Merely intending to commit an offence is not sufficient for this purpose.

Thus, the conspirators must actively agree and prepare themselves to commit that
offence, it becomes a conspiracy. Furthermore, the act which the conspirators conspire to
commit itself must be illegal or punishable.
For example, in dowry death cases, the in-laws of the victim are often guilty of abetment
by conspiracy. They may do so by constantly taunting, torturing or instigating the victim.
Even suicides may take place in this manner through abetment by conspiracy.

(3) Abetment by Aiding

The third manner in which abetment may take place is by intentionally aiding the
offender in committing that offence. This generally happens when the abettor facilitates
the crime or helps in committing it. The intention to aid the offender is very important.

For example, merely giving food or clothing to an alleged offender may not be
punishable. But giving him food , clothing and shelter to help him hide from the police or
commit a crime is punishable.

DIFFERENCE BETWEEN ABETMENT AND COMMON INTENTION

ABETMENT COMMON INTENTION

1. Abetment is a stand alone 1. Common intention is no offence on its own

offence and can be punished all and has to be read with in consonance of other
by itself. crimes.

2. Common Intention, his presence is an

2. The accused may not be
indispensable element and participate whether
present at the crime scene .
actively or passively.

3. The crime need not be

3. The crime must be committed.
committed.

CASE LAWS
 Sanju alias Sanjay Singh v. State of Madhya Pradesh – in the case the Apex Court
quashed the charge sheet for offence under Section 306 of IPC to hold that the words
uttered in a quarrel or on the spur of moment, such as ―to go and die‖ cannot be taken
to be uttered with mens rea. It is in a fit of anger or emotion.
 S.S. Chheena vs. Vijay Kumar Mahajan and another – In this case, the Supreme
Court made some remarkable observations on law pertaining to abetment of suicide
under Section 306 of IPC. The Court ruled that:
 Abetment involves a mental process of instigating a person or intentionally aiding a
person in doing of a thing.
 Without a positive act on the part of the accused to instigate or aid in committing
suicide, conviction cannot be sustained.
 There has to be a clear mens rea to commit the offence.
 It also requires an active act or direct act which led the deceased to commit suicide
seeing no option and that act must have been intended to push the deceased into such
a position that he committed suicide.
 Madan Mohan Singh vs. State of Gujarat and another – In this case it was opined
that in order to bring out an offence under Section 306 of IPC, specific abetment as
contemplated by Section 107 IPC on the part of the accused with an intention to
bring about the suicide of the person concerned as a result of that abetment is
required.
 Gurcharan Singh vs. State of Punjab – In this recent case, the Apex Court
observed that the basic ingredients of Section 306 of IPC are suicidal death and the
abetment thereof. To constitute abetment, the intention and involvement of the
accused to aid or instigate the commission of suicide is imperative. Any severance or
absence of any of these constituents would militate against this indictment.

CONCLUSION

Abetment as a provision has been sufficient both from the view of the offence as well as
the penalty for the offenders of abetment. However, with the development of technology
and looking at the current scenario, the legislation of India has tried to bring the required
changes in this provision. Through the Information Technology (Amendment) Act, 2008,
the section has been amended so as to give a wider meaning to the act and omission by
the use of encryption or any electronic method.

Therefore, we can say that abetment as an offence is a just and fair law that enhances the
principles of natural justice in the legal system.

Solitary Confinement

Solitary confinement is the practice of isolating people in closed cells for 22-24 hours a
day, virtually free of human contact. Because of its harmful effects on a person‘s physical
and mental well-being. Solitary confinement should only be used in exceptional
circumstances. It should be strictly supervised and used only for a limited period of time.
Under certain circumstances, solitary confinement can amount to cruel, inhuman or
degrading treatment, or even torture. Few prison systems use the term ―solitary
confinement‖, instead referring to prison ―segregation‖ or placement in ―restrictive
housing‖. As this may be done for punitive, disciplinary or purportedly protective
reasons, the names vary. Whatever the terminology, the practice entails a deliberate effort
to limit social contact for a determinate or indeterminate period of time

Children, persons suffering from mental health disabilities, pregnant and nursing women,
or women detained with their children should never be subjected to solitary confinement.
Section 74 deals with the limits of solitary confinement. This section states that during
solitary confinement, the confinement in no case shall exceed beyond fourteen days at a
time, along with intervals between the periods of solitary confinement of duration which
shall not be less than such periods; and as the imprisonment awarded shall exceed three
months, the solitary confinement shall not exceed seven days in any one month of the
whole of the imprisonment imposed and with intervals between such solitary
confinement should not be less duration than such periods.

Sec 425 Mischief

The definition of mischief is mentioned under Section 425 of IPC & the punishment is
prescribed under Section 426 of IPC. Further Section 427 to 440 lays down the specific
punishment prescribed for aggravated forms of mischief depending upon the nature & the
value of the property damage.

As per the Section 425 of the Indian Penal Code,1860 (hereinafter referred to as IPC) that
whenever anyone performs an act either having an intention to cause or is aware that his
act is likely to bring, some destruction or damage to any property, destroying or
diminishing its value and utility, hence, resulting in an undue loss or damage to the
public or any person is said to commit mischief.

In simpler terms, it can be understood as when an individual intends to perform an act or

has the knowledge that his/her act will create hindrance in allowing another person to
enjoy the benefit of their property by one means or other, it is called a mischief.
However, this act can be even against the public or against a specific person as well.
The Law of Mischief under IPC is specifically drafted with an objective to provide
protection against the destruction of the property causing any wrongful loss or damage to
the public or an individual. It is an extension to the legal maxim sic utretuoleadas which
means ―use your own property, but not in a way that can injure your neighbour‘s or
other‘s property.‖

Illustrations

1. ‗A‘ intentionally sets X‘s home on fire causing him wrongful loss or injury.
2. ‗A‘ a doctor deliberately prescribed wrong medicine to ‗B‘s cattle with an intent
to cause wrongful loss or injury.
3. ‗C‘ diverts the flow of canal in such a way to prevent ―B‖ from irrigating his
field causing him loss by damage of crops.
4. ―B‖ tears off some important business-related documents of A to cause him
financial loss.
5. ‗A‘ deliberately burns off the standing crop that was jointly cultivated by ‗A‘
and ‗B‘.
6. ‗B‘ intentionally damages a ‗signboard‘ installed by the order of municipality
causing wrongful losses & injury.

7. (a) A voluntarily burns a valuable security belonging to Z intending to cause

wrongful loss to Z. A has committed mischief.
8. (b) A introduces water into an ice-house belonging to Z and thus causes the ice to
melt, intending wrongful loss to Z. A has committed mischief.
9. (c) A voluntarily throws into a river a ring belonging to Z, with the intention of
thereby causing wrongful loss to Z. A has committed mischief.
10.(d) A, knowing that his effects are about to be taken in execution in order to satisfy
a debt due from him to Z, destroys those effects, with the intention of thereby
preventing Z from obtaining satisfaction of the debt, and of thus causing damage to
Z. A has committed mischief.
11.(e) A, having insured a ship, voluntarily causes the same to be cast away, with the
intention of causing damage to the under-writers. A has committed mischief.
12.(f) A causes a ship to be cast away, intending thereby to cause damage to Z who
has lent money on bottomry on the ship. A has committed mischief
Mischief under Section 425 of IPC covers all those acts that cause any damage or
destruction to the property resulting in any wrongful loss or damage of both public as
well as private property.

However, the most important point is that it will not have any application in the cases
where the element of intention is absent. It is also not essential that the person accused
had some valid motive behind or must have been benefited from the act of ―mischief‖.

Ingredients of Mischief
Essentially there are three key elements to establish Mischief as per the definition laid
down in section 425 of IPC which are as follows:

 Intention or the knowledge of the act (mens rea);

 The act resulting in destruction, damage or change in the property or situation
thereof; and (actus rea)
 The change must lead to diminishing the value or utility.
One of the most essential elements of all offences under IPC is that any crime is
composed of two parts- Mens Rea & Actus rea. Similarly, ―Mens rea‖ is required to be
present in order to establish the offence of Mischief.

The definition of the law of mischief makes it very clear that the only way to prove the
act of mischief does not essentially mean that it has to be proved that the accused
essentially had any deliberate intention to cause unjustified damage to the property. But
rather what can also serve as sufficient proof is the fact that the individual had the
knowledge that such action of his/her can result in damage or degradation of the
property, causing wrongful loss or damage.

This can also be understood with a real-life example that if some children while playing
street cricket break-up a glass window, it will not amount to mischief but will rather
constitute negligence. But if those children deliberately throw the ball to aim at the
window resulting in breaking up the glass and causing loss to the owner, then it will
amount to mischief.

Similar was the judgement pronounced in the case of Nagendranath Roy v. Dr. Bijoy
Kumar Dasburma where the court observed that mere negligence does not constitute
mischief. However in certain situations when facts indicate that intention to cause
wrongful loss was present along with the negligence causing damage will amount to
mischief.

The second important requirement is that the act must have resulted in some wrongful
loss or damage to the owner of the property depriving him of enjoying the same. The act
must have caused some damage, injury or destruction to the property to the effect of
diminishing its value or utility. This will constitute the ―actus reus‖ of the offence.

Similarly, even a change in the property can also amount to property. For example,
altering someone‘s research notes. It is also very important that the damage must be the
direct consequence of the alleged act and must not be based on some hypothetical or
imaginary relation.

In Arjuna vs. State (AIR 1969 Ori 200) case, the court found the accused guilty for
damaging the standing crops grown by the complainant on the land belonging to the
Government as it caused wrongful loss to the government by diminishing its value.

In the case of Gopi Naik vs. Somnath (1977 CrLJ 1665 Goa), the respondent alleged
that the accused had cut their water pipe connection causing them wrongful loss &
damage. Upon investigation, the Court found the accused guilty of the offence of
Mischief as this act has resulted in diminishing the value of the property, i.e., water
supply.

One very important case in this regard is the case of Sippattar Singh vs. Krishna (AIR
1957 All 405) case, where the court separated the offence of theft from mischief. In this
specific case, the respondent was guilty of cutting the sugar cane from the field of the
petitioner and taking it away.

The Court found the respondent not to be guilty of the offence of mischief, but he was
held guilty of theft, because of two important reasons: first that the respondent had not
caused any damage to the remaining field of the sugar cane, & second because the
respondent had physically moved certain quantity of sugarcane coupled with dishonest
intention to misappropriate it.

Punishment for Mischief

The punishment for Mischief is prescribed under Section 426 which states that it attracts
imprisonment of a term which may extend up to three months, or with fine, or with both,
as the court may deem fit.
Nature of offence: The offence under this Section is non-cognizable, bailable,
compoundable, and triable by any Magistrate.

Aggravated forms of Mischief

Though the punishment for the offence of mischief has been laid down as imprisonment
until 3 months, or fine, or both in Section 426 of the Indian Penal Code. However, the
IPC recognizes and lists down certain aggravated forms of mischief which have been
described under Sections 427 to Section 440, IPC.

Conclusion
As society advances, new situations also emerge, and new issues are encountered.
Similarly, though the offence of Mischief appears to be very exhaustive and inclusive
taking up the whole fifteen sections of IPC. It tries to cover all the possible forms of
mischief laying down different punishments for each depending on the gravity of the
offence.

But despite this, it still fails to lay down proper punishment for many other kinds of
mischief that are very common. Further, it does not lay down various situations that may
also fall under the ambit of mischief hence leaving this solely to the discretion of Judges
to identify and classify it as an act of mischief and to declare the punishment for the
same. Due to this, there have been cases, where different levels of punishment can be
witnessed in offences having similar nature & gravity.

Thus it is imperative to identify and implement appropriate punishment for the offence of
mischief so that the offender can get due punishment and further, more deterrence can be
ensured.

Difference between Simple and Grievous hurt

According to Section 319 of the Code, whoever causes bodily pain, disease or infirmity
to any person is said to cause hurt. As per Section 320 of the code, grievous hurt is
caused through specific nature of injuries, such as emasculation, loss of sight, loss of
hearing, loss of limb or joint, loss of use of any limb or joint, disfiguration of the head or
face, fracture or dislocation of a bone or tooth and dangerous to life etc.

1) Simple hurt does not endanger life while grievous hurt may cause danger to life.

2) Simple hurt is not serious while grievous hurt is serious in its nature.
3) Hurt is punishable when it is accompanied with other offences, such as voluntarily
causing hurt etc., whereas grievous hurt itself is a punishable offence.

4) Simple hurt is little more than frolic which a good natured man would hardly resent
but the grievous hurt is that offence which approaches in enormity to murder.

5) Simple hurt gives bodily pain for short period but grievous hurt is a hurt which causes
to be in pain, disease or unable to pursue his ordinary avocations, during the space of
twenty days.

6) The punishment for voluntarily causing hurt prescribed by Section 323 is one year
imprisonment or with fine of Rs. 1000/- or both whereas the punishment for voluntarily
causing grievous hurt prescribed in Section 325 is the imprisonment which may be
extended to seven years and also fine.

False Evidence
Section 191 of the Indian Penal Code explains that giving false evidence means a person
bound by oath or expresses provision of law, to tell the truth, makes a false statement or a
statement that he doesn‘t believe to be true or believes to be false. False statement or
evidence given by a person can be in written form or otherwise (oral or indicative).
Section 191 is also known as Perjury under English Perjury Act 1911. For example, a
matter concerning the handwriting of Z for which Z‘s son is called to test the handwriting
that whether it is of his father or not. Even after knowing it is not the handwriting of Z he
states the opposite in court stating that it is the handwriting of Z. It is a typical offence
called perjury. Taking up the same scenario of Z‘s handwriting, where his son is called to
testify his handwriting but this time his son is not confident and states that although I am
not confident that it was not the handwriting of Z; in this situation, his son cannot be held
liable under Section 193 of Indian Penal Code because his intention is not to lie. A copy
of the sales deed shown in the court which is edited or fabricated is known as false
evidence. Perjury is all about giving false evidence.

Lets us take a classic example in which X is bound under oath that he will speak only the
truth in respect to a case in which Y is suspect for the charge of murder that took place in
Delhi. Now X says that Y was with me in Shimla on 20th May 2019(the date when the
murder was committed). But X lies and gives false evidence. It is a clear example of
perjury.
Essential Ingredients of False Evidence

False evidence made by a person who is:

1. Bound by oath, or
2. By an express provision of law, or
3. A declaration which a person is bound by law to make on any subject, and
4. Which statement or declaration is false and which he either knows or believes to
be false or does not believe to be true.
Three essential prerequisite for the application of Section 191:

1. A legal obligation to state the truth,

2. Making of a false statement or declaration, and
3. Belief in its falsity.
Legally Bound by Oath or Law to Say the truth

1) A Person is legally bound by oath if;

 A Person should be bound by oath- Section 8 of the Oath act defines it that it is a
duty to state the truth.

 By an express provision of law to state the truth.

 Or bound by law to make a declaration.

2) Legal obligation to speak the truth in view of the oath administered.

3) Express Provision of law which binds him to speak the truth.

4) Irregularity in the administration of the oath- There is some irregularity in

administration on oath by officers i.e. oath is not signed properly or there is some
procedural irregularity. Now if there is any irregularity will Section 191 be applicable or
not? It is immaterial. The person who takes the oath knows that he is lying will be
punished under section 191 of the Indian Penal Code.

5) No application to advocates.

Q. Difference between theft, extortion, robbery and dacoity

Ans.

378 – Theft

Theft is nothing but taking someone‘s property without his/her consent. But the law of
crimes defines theft precisely giving more details and widening its scope. Section 378
IPC provides legal definition for theft stating:

―Whoever, intending to take dishonestly any moveable property out of the possession of
any person without that person‘s consent, moves that property in order to such taking, is
said to commit theft.‖

In other words, it can be said that Section 378 IPC defines theft as dishonest removal of
property out of someone‘s possession without his or her consent.

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

In simple words the above explanation can be summarized as, only a movable property
can be subject to theft. Any property that is attached to earth is considered to be
immovable property, until severed and is not subject to theft.

―Explanation —The consent mentioned in the definition may be express or implied and
may be given either by the person in possession, or by any person having for that purpose
authority either express or implied.‖

The explanation states that if consent is received to move the property either expressly or
impliedly then such an act of moving shall not the accounted as theft under this section
and such consent shall move either from the person in possession of such property or by
the person authorized by the owner, expressly or impliedly, to give consent with regard to
this.

Illustration: Mr. A went to Mr. B‘s house and finds a gold ring lying on the table and he
takes the ring and hides it at a place in the house itself where Mr. B cannot find it, with
an intention to take it from the hiding place later and sell it. The very first act of moving
the ring from the table accounts to theft under section 378 IPC.

But at the same time if Mr. A does so with the intention of just pranking Mr. B then it
would not account to theft under this section because the act was not done with dishonest
intention.
 Essential Ingredients of Theft

 Intention to take dishonestly

 Any movable property
 Taking out possession of another person
 Taking without consent
 Moving property in order to such taking

In the leading case of Pyare Lal Bhargava vs. State of Rajasthan, the hon‘ble Supreme
Court pointed out four essentials of the offence of the theft as to convict a person under
the offence of theft his act should fall under the four corners namely, taking the property
out of legal possession, taking the property either temporarily or permanently, taking
with the dishonest intention of causing loss, either temporarily or permanently, to the
other and causing wrongful loss.

The gist of the decision was that even temporary dispossession with a dishonest intention
to cause loss to other amounts to theft.

Section 379 IPC – Punishment for Theft

Anyone accounted for theft under Section 378 IPC is penalized and punished for under
this section. The section provides as:

Punishment for theft—whoever commits theft shall be punished with imprisonment of

either description for a term which may extend to three years, or with fine, or with both.
Thus, the offence of theft is:

 Cognizable
 Non bailable
 Can be tried by any magistrate
 Awarded punishment as to imprisonment for 3 years or fine or both.

Section 383 IPC – Extortion

In literal sense, extortion means illegal practice of obtaining someone‘s property by using
force or by means of threat. Section 383 IPC explicitly defines extortion and its
constituents as:

―Whoever intentionally puts any person in fear of any injury to that person, or to any
other, and thereby dishonestly induces the person so put in fear to deliver to any person
any property or valuable security, or anything signed or sealed which may be converted
into a valuable security, commits ―extortion‖.
 The offence of ―extortion‖ under Indian Law is equivalent to ―blackmail‖ under the
English Law. The offence of extortion takes somewhat a middle place between theft and
robbery, it constitutes of an act with dishonestly putting someone in fear to induce
delivery of his property.

Illustration: Mr. A threatens Mr. X that he would burn down X‘s house if he did not
give his new car to him. This amounts to offence of extortion.

Essential Ingredients of Extortion

The chief essentials of the offence of extortion can be stated as follows:

 Putting any person in fear of injury

 Dishonest inducement
 Delivery of property or valuable security by the person in fear to any person.

In the leading case of State of Karnataka v Basavegodwa where the wife accused her
husband for taking her into a forest and threating to kill her there unless she removed her
ornaments and later on assaulting her after receiving the ornaments. The court decided
that ornaments constitute to be personal property of the wife and divesting the wife of
these against her wishes or without her consent amounts to a criminal offence.

Section 384 IPC provides for the punishment for the offence of extortion as:

―Whoever commits extortion shall be punished with imprisonment of either description

for a term which may extend to three years, or with fine, or with both.‖

Section 390 IPC – Robbery

The offence of robbery can be said to be aggravated form of either theft or extortion or
both because more harm to the victim, especially physical harm. In every offence of
robbery there are either the elements of theft or the elements of extortion.

As per Section 390 IPC robbery can be understood in the two kinds of situations:

 When theft is robbery and

 When extortion is robbery.

When theft is robbery

According to Section 390 IPC, ‗theft‘ is robbery when following elements are present:
 Presence of imminent fear or violence indicating the end towards death, hurt or
wrongful restraint. The violence may be caused either before, during or after
committing theft and it must be caused for the end of committing of theft, or in
committing theft.
 The force must be used for the purpose of carrying away the property only. If force is
used for any other purpose, then the theft shall not be accounted as robbery. Like if the
persons use force to escape from being caught and not to take away the property then it
will be case of theft and not robbery.
 The hurt caused must be voluntarily caused by the offender. Accidental cause of hurt
due to use of force by offender will not convert theft into robbery.

When extortion is robbery

According to Section 390 IPC, ‗extortion‘ amounts to ‗robbery‘ when:

 When the offender is present before the person and puts him or any other person in the
fear of instant death/hurt/wrongful restraint.
 And due to inducement, the person delivers up the thing extorted

In nutshell section 390 IPC can be summarized as:

Robbery = [theft + violence or fear of instant violence]

OR

[ extortion+ presence of offender+ fear of instant violence+ immediate delivery]

The element of instant harm is vital to the offence of robbery and makes it different from
theft and extortion.

Illustration: A person on road stops you and points gun on your head and asks to give
away all the valuable things that you have right away. The person is said to have
committed the offence of robbery.

Section 392 IPC – Punishment for Robbery

Section 392 IPC, provides punishment for the offence of robbery as:

―Whoever commits robbery shall be punished with rigorous imprisonment for a term
which may extend to ten years, and shall also be liable to fine; and, if the robbery be
committed on the highway between sunset and sunrise, the imprisonment may be
extended to fourteen years.‖
Thus, the offence of robbery is:
 Cognizable
 Non bailable
 Can be tried by magistrate of first class
 Awarded punishment as to rigorous imprisonment for 10 years and fine. And if
committed on highway between sunset and sunrise then with rigorous imprisonment for
14 years and fine.

Section 391 IPC – Dacoity

Dacoity can be said to be aggravated form of robbery. In simple words, it can be defined
as an offence whereby five or more persons together with a shared intention commits or
attempt to commit robbery. Even a person presents during the act or aiding such
commission or attempt shall be held liable for the offence of dacoity.

Section 391 IPC explains dacoity as:

―When five or more persons conjointly commit or attempt to commit a robbery, or where
the whole number of persons conjointly committing or attempting to commit a robbery,
and persons present and aiding such commission or attempt, amount to five or more,
every person so committing, attempting or aiding, is said to commit ―dacoity‖.‖
The word conjointly means united or concerted action of persons participating in same
transaction. And the presence of shared common intention is a vital element in the
offence of robbery.

The offence of dacoity can be classified into four stages:

 Assembling for the purpose of committing dacoity (Section 432)

 Preparation to commit dacoity (Section 399)
 Attempt
 Actual commission

It is to be kept in mind that all the four stages of dacoity are punishable.

Illustration: Six people decide to loot a bank and they arrange all the weapons as to guns
and hockey sticks and assemble on the decided date, one person stands at the main gate
of the bank to stop anyone from entering and the rest go inside, one of them gets scared
inside and just stands ideal in a corner and rest four get all the money on gun point. All
the six shall be convicted for the offence of dacoity.

Section 395 IPC – Punishment for Dacoity

Section 395 IPC provides for punishment for dacoity as:

―Whoever commits dacoity shall be punished with imprisonment for life, or with
rigorous imprisonment for a term which may extend to ten years and shall also be liable
to fine.‖

Difference between Theft, Extortion, Robbery and Dacoity

It may be noted that extortion is aggravated form of theft, robbery is aggravated form of
theft or extortion as it involves either theft or extortion, and dacoity is aggravated form of
robbery and therefore includes theft and extortion also.

Conclusion

To a layman all the offences i.e. theft, extortion, robbery and dacoity may appear as loss
of property. But in eyes of law, all these offences are not same though classified under
the same head of offences against property, but these offences have been broadly divided
and also each has been awarded with different set of punishments.

This distinction is vital because these offences constitute different gravity of harm and
loss inflicted to a person and basis of the aggravated damages caused by each of these
offences these have been punished with more severe punishments.
1. Pyare Lal Bhargava v State of Rajasthan, AIR 1963 SC 1049
2. State of Karnataka v Basavegodwa (1997) Cr.L.J. 4386 (Karnt),

General Exceptions under the IPC

The Criminal law covers various punishments which vary from case to case. But it is not
always necessary that a person gets punished for a crime which he/she had committed.
The Indian Penal Code (IPC), 1860 recognizes defences in Chapter IV under ―General
Exceptions‖. Section 76 to 106 covers these defences which are based on the
presumption that a person is not liable for the crime committed. These defences depend
upon the circumstances prevailing at that point of time, mens rea of person and
reasonability of action of that accused.

Every offence is not absolute, they have certain exceptions. When IPC was drafted, it
was assumed that there were no exceptions in criminal cases which were a major
loophole. So a separate Chapter IV was introduced by the makers of the Code applicable
to the entire concept.

Burden of Proof

 Generally, Prosecution has to prove its case beyond reasonable doubt against
the accused.
 Before the enforcement of the Indian Evidence Act 1882, the prosecution had to
prove that the case does not fall under any exception, but section 105 of
Evidence act shifted the burden on the claimant.
 But in exceptions, as per Section 105 of Evidence Act, a claimant has to prove
the existence of general exception in crimes

 Section 6 of IPC

―Throughout this code, every definition of offence, every penal provision and every
illustration of every such definition or penal provision, shall be understood subject to
exceptions contained in the chapter titled General Exceptions‖.

The General Exceptions are divided into 2 categories:

 Excusable Acts
  Judicially Justifiable Acts

Excusable Acts Justifiable Act

A mistake of Fact under An act of Judge and Act performed in pursuance of an

section 76 and 79. order under Section 77 and 78.

Accident under Section 80. The necessity under 81.

Infancy – Section 82 and 83. Consent under Section 87 – 89 and Section 90 and 92.

Insanity – Section 84. Communication under Section 93.

Intoxication – Section 85 and

Duress under Section 94.
86.

Trifles under Section 95.

Private Defence under Section 96 – 106.

General Exceptions/defences in IPC (sections 76-106)

 Mistake of fact (76 and 79)

 Judicial acts (77 and 78)
 Accident (80)
 Necessity/acts done to avoid greater harm (81)
 Infancy (82 and 83)
 Insanity (84)
 Intoxication (85 and 86)
 Consent (87 to 91)
 Acts done in good faith (92)
 Communication made in good faith (93)
 Acts done under compulsion or threat (94)
 Acts causing slight harm or trifling acts (95)
 Right of private defence (96-106)
UNSOUNDNESS OF MIND

Principle: 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

Insanity is recognized as a general defence. It based on two principles-

 Actus non facit reum, nisi mens sit rea which states that an action does not constitute
an offence unless done with a guilty intention and insane persons are incapable of
entertaining blame worthy intention.

 Furiosi nulla voluntas est which states that no culpability can be fastened upon insane
persons as they have no free will.

The words ‗unsoundness of mind‘ include following kinds of persons:

 Idiot i.e. a person who is insane since birth

 Lunatic i.e. a person who has acquired madness after birth either due to disease or
injury

 Non compos mentis i.e. a person who does not have a control over one‘s mind

In the famous case R v. Mc Naughten 1843 the following principles to determine the
insanity of a person were laid:

 The person must be insane at the time of committing the offence. In order to see
whether the accused was insane at the time of the commission of offence, the state of
mind before and after the commission of offence is relevant.

 Insanity must be due to a medical disease of mind such as schizophrenia

(hallucinations), epilepsy (fits), somnambulism (sleep-walking), split personality
disorder etc. Legal insanity recognizes only the impairment of cognitive faculties and
when cognitive faculties are not impaired and only will and emotions are affected,
insane impulses are not a defence.

 The disease must be so grave and serious that it renders a person totally incapable of
understanding the nature of his act or that he is doing what is either wrong or contrary
to law.

 Persons who are occasionally ‗possessed‘ by the ‗spirits‘ and those who being in fits
of delirium, very often conjure up visions or images are given benefit of unsoundness
of mind.
 The accused should be incapable of knowing whether the act done by him is right or
wrong. The accused should be inherently incapable of knowing the nature of the act
and not a mere erroneous belief.

 Any crime committed before or after insanity is not excusable.

INTOXICATION

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

Drunkenness is a species of madness for which the man is to blame. If a man chooses to
get drunk, it is his own voluntary act, there is no excuse in law. It is based on the
principle of ‗Qui pecat ebrius luat sobrius‘ i.e. let him who sins when drunk be punished
when sober. If the defence for voluntary intoxication was allowed then every person
would intoxicate himself, commit a crime, plead guilty and escape punishment. This
would result into a total failure of justice.

However when a person gets intoxicated by mistake or someone administers him

intoxicants by using force, fraud or compulsion and in consequence such person commits
an offence then he shall get defence under the criminal law.

Following are the essential ingredients to be fulfilled in order to claim defence:

 The intoxication must be involuntary i.e. without knowledge or against will

 The intoxication must be of such a high degree that a person becomes totally
incapable of knowing the nature of the act or that he is doing is either wrong or
contrary to law i.e. he totally loose his cognitive faculties to decide what is right or
wrong

 The crime should be committed exactly at the time when the mind was under the
influence of intoxication. Any crime before intoxication or after the effect of
intoxication was over shall not be given any defence under the criminal law.

 The test is that by reason of involuntary drunkenness the accused was incapable of
forming an intention of committing the offence i.e. drunkenness must have affected
his faculty of understanding to form the requisite intent.

Taking alcohol on persuasion is not against knowledge or will, it will be considered as

voluntary intoxication. Also if in any situation type of intoxication is not mentioned, we
presume it to be a case of voluntary intoxication.
ACCIDENT

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

An effect is said to be accidental when the act by which it is caused is not done with the
intention of causing it. An accident is something that happens out of the ordinary course
of things. The act must be unintentional which cannot be predicted by ordinary prudent
man.

Following are the essential ingredients of accident:

 The event was sudden, unexpected and unforeseeable. It must be a result of

misfortune.

 There must be no criminal intention or knowledge attached to the act

 The act being done must be completely lawful in nature and justified

 The person should exercise due care and caution

If an accident is caused while doing an unlawful act with proper due care and attention, if
any harm is caused no defence shall be given. It only exempts the doer of an innocent act
or lawful act in an innocent or lawful manner and without any criminal intention or
knowledge from any unforeseen evil result that may ensure from accident or misfortune.

Accidents and misfortunes are given as a defence under the criminal law because in
commission of such acts the accused lacks the requisite mens rea required to constitute an
offence.

Excusable Acts

An Excusable Act is the one in which though the person had caused harm, yet that person
should be excused because he cannot be blamed for the act. For example, if a person of
unsound mind commits a crime, he cannot be held responsible for that because he was
not having mens rea. Same goes for involuntary intoxication, insanity, infancy or honest
mistake of fact.

A mistake of Fact under Section 76 and 79

Under Section 76: Act done by a person bound or by mistake of fact believing, himself to
be bound by law in included. Nothing is an offence which is done by a person who is or
by reason of a mistake of fact, not by mistake of law in good faith believes himself, to be,
bound by law to do such act. It is derived from the legal maxim ―ignorantia facti doth
excusat, ignorantia juris non excusat‖.

 Example: If a soldier firing on a mob by the order of his officer in conformity

through the command of the law, then he will not be liable.
Under Section 79: Act done by a person justified or by mistake of fact believing, himself
justified, by law is included. Nothing is an offence which is done by any person who is
justified by law, or who by reason of mistake of fact and not mistake of law in good faith,
believes himself to be justified by law, in doing that particular act

 Example: A thought Z to be a murderer and in good faith and justified by law,

seizes Z to present him before authority. A has not committed any offence.

Case law for Section 79

In Kiran Bedi v. Committee of Inquiry, petitioner refused to deposed to the beginning of

the inquiry as she believed that she could depose only at the end of the inquiry

Accident under Section 80

Includes an Accident committed while doing a lawful act. Nothing is an offence which is
done by accident or misfortune, without any criminal intention or knowledge in the doing
of a lawful act in a lawful manner by lawful means and with proper care and caution.

 Example: Suppose M is trying to shoot a bird with a gun but unfortunately the
bullet reflected from the oak tree causing harm to N, then, M will not be liable.

Case law for Section 80

In King Emperor v. Timmappa, a division bench held that shooting with an unlicensed
gun does not debar an accused from claiming defence under Section 81 of IPC. The
appeal of acquittal was dismissed and the order of trial magistrate was upheld. The court
was of the opinion that there is no reason why sentence awarded under Section 19(e) of
the Indian Arms Act should be enhanced. The respondent was liable under the provision
but no more. He just borrowed a gun for few minutes to kill as he thought a wild animal
might attack him and his partners. The application was dismissed regarding enhancement
of sentence.
Infancy – Section 82 and 83

Section 82: It includes an act of a child below seven years of age. Nothing is an offence
which is done by a child under seven years of age.

 Suppose a child below seven years of age, pressed the trigger of the gun and
caused the death of his father, then, the child will not be liable.
Section 83: It includes an act of a child above seven and below twelve of immature
understanding. Nothing is an offence which is done by a child above seven years of age
and under twelve, who has not yet attained sufficient maturity of understanding to judge
the nature and repercussions of his conduct during that occasion.

 Example: Suppose a child of 10 years killed his father with a gun in the shadow
of immaturity, he will not be liable if he has not attained maturity.

Case law for Section 83

In Krishna Bhagwan v. State of Bihar, Patna High Court upheld that if a child who is
accused of an offence during the trial, has attained the age of seven years or at the time of
decision the child has attained the age of seven years can be convicted if he has the
understanding an knowledge of the offence committed by him.

Insanity – Section 84

Act of a person of unsound mind. Nothing is an offence which is done by a person who
at that time of performing 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.

 Example: A, who is insane or unsound, killed B with a knife, thinking it to be a

fun game, will not be liable for B‘s death as he was not aware of the nature of
act and law. he was incapable of thinking judiciously.

Case law for Section 84

In Ashiruddin Ahmed vs. State, the accused Ashiruddin was commanded by someone in
paradise to sacrifice his own son, aged 4 years. Next morning he took his son to a
Mosque and killed him and then went straight to us uncle, but finding a chowkidar, took
the uncle nearby a tank and told him the story.
The Supreme Court opined that the accused can claim the defence as even though he
knew the nature of the act, he did not know what was wrong.

Intoxication – Section 85 and 86

Section 85: Act of a person incapable of judgment by reason of intoxication caused

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

 Example: A drank alcohol given by a friend thinking it to be a cold drink. He

became intoxicated and hit a person on driving his car back home. He will not
be liable as alcohol was administered to him without his will and knowledge.

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

 Example: A person intoxicated, stabs another person under influence of alcohol

which was administered to him in the party against his knowledge or will, will
not be liable. But if that person had stabbed that person under voluntary
intoxication, then he will be liable.

Case law for Section 86

In Babu Sadashiv Jadhav case, the accused was drunk and fought with the wife. He
poured kerosene and set her on fire and started extinguishing the fire. The court held that
he intended to cause bodily injury which was likely to cause death under section 299(20
and sentenced h under section 304, Part I of code).

Justifiable Acts

A justified act is one which would have been wrongful under normal conditions but the
circumstances under which the act was committed makes it tolerable and acceptable.
Act of Judge and Act performed in pursuance of an order under Section 77 and 78

Section 77: Act of Judge when acting judicially. Nothing is an offence which is done by a
judge when acting judicially in the exercise of any power which is, or which in good faith
he believes to be, given to him by law.

 Example: Giving Capital Punishment to Ajmal Kasab was done under the
judicial powers of judges.
Section 78: Act done pursuant to the Judgement or order of the court. Nothing which is
done in pursuance of, or which is warranted by the judgment or order of, a court of
justice, if done whilst such judgment or order remains in force, is an offence,
notwithstanding the court may have no jurisdiction to pass such judgment or order,
provided the person doing the act in good faith believes that the court had such
jurisdiction.

 Example: A judge passing an order of giving lifetime jail punishment, believing

in good faith that the court has jurisdiction, will not be liable.

Necessity under 81

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 is 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.

 Example: A Captain of a ship turned the direction of the ship of 100 people in
order to save their lives, but harming the life of 30 people of a small boat,
without any intention or negligence or fault on his part. He will not be liable
because necessity is a condition in which a person causes small harm to avoid
great harm.

Case law for Section 81

In Bishambher v. Roomal, 1950, the complainant Bishambhara had molested a girl

Nathia. Khacheru, Mansukh, and Nathu were accused related to father of the girl. The
Chamars were agitated and determined to punish Bhishambher. Rumal Singh, Fateh
Singh, and Balwant Singh intervened and tried to bring a settlement. They collected a
panchayat and the complainant‘s black was blackened and given shoe beating. It was
found by the court that accused had intervened in good faith but the panchayat was
having no authority to take such a step.

Consent under Section 87 – 89 and Section 92

Section 87: Act not intended and not known to be likely to cause death or grievous hurt,
done by consent. Nothing which is not intended to cause death, or grievous hurt, and
which is not known by the doer which is likely to cause death or grievous hurt, is an
offence by reason of any harm which it may cause, or to be intended by the doer to cause,
to any person, above 18 years of age, who has given consent, whether express or implied,
to suffer that harm; or by reason of any harm which it may be known by the doer to be
likely to cause to any such person who has consented to that risk of harm.

 Example: A and E agreed to fence each other for enjoyment. This agreement
implies the consent of each other to suffer harm which, in the course of such
fencing, may be caused without foul play and if A while playing fairly hurts E,
then A, has committed no offence.

Case law for Section 87

In Poonai Fattemah v. Emp, the accused who professed to be a snake charmer, induced
the deceased to believe him that he the power to protect him from any harm caused by
the snake bite. The deceased believed him and got bitten by the snake and died. The
defence of consent was rejected.

Section 88: Act not intended to cause death, done by consent in good faith for person‘s
benefit. Nothing, which is not intended to cause death, is an offence by reason of any
harm which it may cause, or be intended by the doer to cause, or be known by the doer to
be likely to cause, to any person for whose benefit it is done in good faith, and who has
given a consent, whether express or implied to suffer that harm, or to take the risk of that
harm.

Case law for Section 88

In R.P Dhanda V. Bhurelal, the appellant, a medical doctor, performed an eye operation
for cataract with patient‘s consent. The operation resulted in the loss of eyesight. The
doctor was protected under this defence as he acted in good faith.
Section 89: Act done in good faith for the benefit of a child or insane person, by or by
consent of the guardian. Nothing which is done in good faith for the benefit of a person
under twelve years of age, or of unsound mind, by or by consent, either express or
implied, of the guardian or other person having lawful charge of that person, is an
offence by reason of any harm which it may cause, or be intended by the doer to cause or
be known by the doer to be likely to cause to that person

Section 92: Act done in good faith for benefit of a person without consent. Nothing is an
offence by reason of any harm which it may causes to a person for whose benefit it is
done in good faith, even without that person‘s consent, if the circumstances are such that
it is impossible for that person to signify consent, or if that person is incapable of giving
consent, and has no guardian or other person in lawful charge of him from whom it is
possible to obtain consent in time for the thing to be done with benefit.

Section 90: Consent known to be given under fear or misconception. A consent is not
such a consent as is intended by any section of this Code,

1. if the consent is given by a person under fear of injury, or under a

misconception of fact, and if the person doing the act knows, or has reason to
believe, that the consent was given in consequence of such fear or
misconception; or
2. Consent of insane person if the consent is given by a person who, from
unsoundness of mind, or intoxication, is unable to understand the nature and
consequence of that to which he gives his consent; or
3. Consent of children, the contrary appears from the context, if the consent is
given by a person who is under twelve years of age.

Case law for Section 90

In Jakir Ali v. State of Assam, it was proved beyond doubt that the accused had sexual
intercourse with the victim on a false promise of marriage. The Gauhati High Court held
that submission of the body by a woman under fear or misconception of fact cannot be
construed as consent and so conviction of the accused under sections 376 and 417 of the
Indian Penal Code was proper.

Section 91: Exclusion of acts which are offences independently of harm caused.
The exceptions in sections 87, 88 and 89 do not extend to acts which are offences
independently of any harm which they may cause, or be intended to cause or be known to
be likely to cause, to the person giving the consent, or on whose behalf the consent is
given.

Communication under Section 93

Communication made in good faith. No communication made in good faith is an offence

by reason of any harm to the person to whom it is made if it is made for the benefit of
that person.

 Example: A doctor in good faith tells the wife that her husband has cancer and
his life is in danger. The wife died of shock after hearing this. The doctor will
not be liable because he communicated this news in good faith.

Duress under Section 94

Act to which a person is compelled by threats. Except murder, and offences against the
state punishable with death, nothing is an offence which done by a person compelled to
do it under threats, which, at the time of doing it, reasonably cause the apprehension that
instant death to that person will otherwise be the consequence, provided the person doing
the act did not of his own accord, or from reasonable apprehension of harm to himself
short of instant death, place himself in the situation by which he became subject to such
constraint.

 Example: A was caught by a gang of dacoits and was under fear of instant
death. He was compelled to take gun and forced to open the door of house for
entrance of dacoits and harm the family. A will not be guilty of offence under
duress.

Trifles under Section 95

Act causing slight harm is included under this section. Nothing is an offence by reason
that it causes, or that it is intended to cause, or that it is known to be likely to cause, any
harm if that harm is so slight that no person of ordinary sense and temper would
complain of such harm.

Case law for Section 95

In Mrs. Veeda Menezes v. Khan, during the course of exchange of high tempers and
abusive words between appellant‘s husband and the respondent, the latter threw a file of
papers at the former which hit the appellant causing a scratch on the elbow. SC said that
the harm caused was slight and hence, not guilty.

Private Defence under Section 96 – 106

Section 96: Things done in private defence.

Nothing is an offence in which a person harms another person in the exercise of private
defence.

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

Every person has a right to private defence, provided under reasonable restriction under
Section 99.

1. Protecting his body or another person‘s body, against any offence in which there
is a danger to life.
2. Protecting his or another person‘s movable or immovable property, against any
offence like theft, robbery, mischief or criminal trespass or an attempt to
commit theft, robbery, mischief or criminal trespass.

 Example: A father, in order to protect the life of daughter from the attack of a
thief, shoots him in his leg. But the father will not be liable as he was protecting
the life of his daughter.

Case law for Section 97

In Akonti Bora v. State of Assam, the Gauhati High Court held that while exercising the
right of private defence of property the act of dispossession or throwing out a trespasser
includes right to throw away the material objects also with which the trespass has been
committed.

Section 98: Right of private defence against the 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.
  Example: A attempts to kill Z under influence of insanity but A is not guilty. Z
can exercise private defence to protect himself from A.

Section 99: Acts against which there is no right of private defence.

 There is no right of private defence against an act which does not reasonably
cause the apprehension of death or of grievous hurt, if done, or
 Attempted to be done, by a public servant acting in good faith under color of his
office, though that act may not be strictly justifiable by law.
 There is no right of private defence against an act which does not reasonably
cause the apprehension of death or of grievous hurt, if done, or
 Attempted to be done, by the direction of a public servant acting in good faith
under colour of his office though that direction may not be strictly Justifiable by
law.
 There is no right of private defence in cases in which there is time to have
recourse to the protection of the public authorities.
 The harm caused should be proportional to that of imminent danger or attack.

Case law for Section 99

In Puran Singh v. State of Punjab, the Supreme Court observed that where there is an
element of invasion or aggression on the property by a person who has no right of
possession, then there is obviously no room to have recourse to the public authorities and
the accused has the undoubted right to resist the attack and use even force, if necessary.

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

 Assault causing reasonable apprehension of death.

 Reasonable apprehension of grievous hurt.
 Committing rape
 Unnatural lust
 Kidnapping or abducting
 Wrongfully confining a person in which that person reasonably apprehends the
assault and not able to contact public authority.
  Act of throwing or attempting to throw acid, causing apprehension in the mind
that assault will cause grievous hurt.

Case law for Section 100

In Yogendra Morarji v. state, the SC discussed in detail the extent and limitations of the
right of private defence of the body. There must be no safe or reasonable mode of escape
any retreat for the person confronted with imminent peril to life or bodily harm except by
inflicting death.

Section 101: When such rights extend to causing any harm other than death.

If the offence be not of any of the descriptions enumerated in the last preceding section,
the right of private defence of the body does not extend to the voluntary causing of death
to the assailant, but does extend, under the restrictions mentioned in section 99, to the
voluntary causing to the assailant of any harm other than death.

Case law for Section 101

In Dharmindar v. State of Himachal Pradesh, that onus of proof to establish the right of
private defence is not as onerous as that of a prosecution to prove its case. Where the
facts and circumstances lead to a preponderance of probabilities in favor of the defence
case it would be enough to discharge the burden to prove the case of self-defence.

Section 102: Commencement and continuance the right of private defence of the body.

The right of private defence of the body commences as soon as a reasonable

apprehension of danger to the body arises from an attempt or threat to commit the
offence though the offence may not have been committed; it continues as long as such
apprehension of danger to the body continues.1

 Example: A, B, and C were chasing D to kill him in order to take revenge, but
suddenly they saw a policeman coming from another side. They got afraid and
turned back to run. But D shoots B in his leg, even when there was no imminent
danger of harm. D will be liable as there was no apprehension of death or risk of
danger.
Section 103: When the right of private defence of property extends to causing death.

1. Robbery;
 2. House-breaking by night;
3. Mischief by fire committed on any building, tent or vessel, building, tent or
vessel used as a human dwelling, or a place for the custody of property;
4. Theft, mischief, or house-trespass, under such circumstances, as may reasonably
cause apprehension that death or grievous hurt will be the consequence if such
right of private defence is not exercised.

 Example: C Attempts to stab D maliciously while committing burglary in D‘s

house. There is a reasonable apprehension in the mind of D that C will hurt him
grievously, so in order to save himself and property, C throttled D with a knife
in his chest, causing Death. C will not be liable.

Case law for Section 103

In Mohinder Pal Jolly v. State, the deceased worker and some of his colleagues were
shouting slogans for demands outside the factory. Some brickbats were also thrown by
them which damaged the property of the owner who fired two shots from outside his
office room, one of which killed the deceased worker. The court held that it was a case of
mischief and the accused will not get the defence of this section.

Section 104: When such right extends to causing harm other than death.

If the offence, the committing of which, or the attempting to commit which occasions the
exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any
of the descriptions enumerated in the last preceding section, that right does not extend to
the voluntary causing of death, but does extend, subject to the restrictions mentioned in
section 99, to the voluntary causing to the wrong-doer of any harm other than death.

 Example: If A has committed criminal trespass in order to annoy B or hurt him,

then B will have the right to harm A in proportional manner, not causing death
of the person.

Case law for Section 104

In V.C Cheriyan v. State, the three deceased along with other persons had illegally laid a
road through private property of the church. A criminal case was pending against them.
The three accused belonging to church put up barricades across this road. The deceased
was stabbed by accused and Kerela HC held that private defence does not extend to
causing the death of a person in this case.
Section 105: Commencement and continuance of the right of private defence of property.

The right of private defence of the property commences when:

 A reasonable apprehension of danger to the property commences. The right of

private defence of property against theft continues until the offender has
effected his retreat with the property
 Or, either the assistance of the public authorities is obtained,
 Or, the property has been recovered.
 The right of private defence of property against robbery continues as long as
the,
 Offender causes or attempts to cause to any person death or hurt
 Or, wrongful restraint
 As long as the fear of instant death or
 Instant hurt or
 Instant personal restraint continues.
 The right of private defence of property against criminal trespass or mischief
continues as long as the offender continues in the commission of criminal
trespass or mischief.
The right of private defence of property against house-breaking by night continues as
long as the house-trespass which has been begun by such house-breaking continues.

 Example: Suppose a thief into the house of an individual, and attempts to hurt
him instantly with a knife, then that individual has the right to act in private
defence and harm that thief to save life and property.

Case law for Section 105

In Nga Pu Ke v. Emp, paddy sheaves belonging to the accused were removed illegally by
a person. Accused attacked the cartmen and that cartmen jumped off the carts and ran
away leaving sheaves. The accused still chased him and attacked him leading to death.
The court held him as guilty of offence.

Section 106: Right of private defence against deadly assault when there is a risk of harm
to innocent person.
If in the exercise of private defence against an assault, a person causes apprehension of
death, in which defender has no choice but harming an innocent person, his right will
extend to that running of risk. 4

 Example: C is attacked by a mob who attempts to murder him. He cannot

exercise his right to private defence without firing on the mob. In order to save
himself, he is compelled to hurt innocent children while firing so C committed
no offence as he exercised his right.

Conclusion
So these were the general exceptions which are available to the accused to escape
liability or save himself from the offence committed. It may extend to even causing the
death of a person or harm an innocent person too depending upon the circumstances. The
accused should also have the right to be heard, keeping in view the democratic character
of our nation. That‘s why these exceptions are provided so as to represent oneself in the
court of law.

Q. “All murders are culpable homicide, but all culpable homicides are not murder.”

Or

Difference between culpable homicide and murder

Ans. Sections 299 and 300 of the Indian Penal Code (1860) deals with culpable homicide
and murder, respectively. Generally, the thin line of distinction between them is the
difficulty for advocates and legal practitioners who are unsure where to lay the case.
Murder and culpable homicide appear to be more similar than they are, but they are not
interchangeable terms. Section 299 of the Indian Penal Code defines culpable homicide,
whereas Section 300 deals with the concept of murder. The term ‗homicide‘ refers to the
killing of a human being, the term ‗culpable homicide‘ refers to the unlawful killing of a
person and the term ‗murder‘ also refers to the killing of a person. So what are the slight
points to be pondered to arrive at a conclusion? here is the difference:

Homicide
Homicide is derived from the Latin phrases homi (man) and cido (cut). Homicide literally
means ―the killing of a human being by another human being.‖ The term ‗homicide‘
refers to the act of causing or hastening the death of a human being by another human
being. However, not all homicides are illegal or criminal. The death of an assailant
caused by an innocent agent, such as a child under the age of discretion (doli incapax) or
a person of unsound mind, or the death of the assailant caused in the exercise of the right
of private defence, is not illegal. In the first, the perpetrator is ‗excused,‘ but in the
second, the defendant‘s actions are ‗justified.‘

Types of homicides
As a result, there are two sorts of homicides: (1) lawful homicides and (2) unlawful
homicides. Lawful homicides are ones that fall under the IPC Chapter on General
Exceptions and are hence not penalised. The homicides that are penalised under the Code
clearly fall within the category of unlawful homicides.

Lawful homicides can be divided into two categories based on the nature of the ‗general
exceptions‘ that surround the homicide: excusable homicides, and justifiable homicides.
As a result, the IPC recognises three types of homicide. There are three types of murders:

 Excusable
 Justifiable, and
 Unlawful or criminal (i.e. killings that are neither excused nor justified).
The ‗Offenses Affecting Life‘ under Chapter XVI of the IPC deals with homicide
offences. It is made up of four homicide offenses, namely:

1. Culpable homicide that does not amount to murder,

2. Culpable homicide that does amount to murder,
3. Death by a rash or negligent act, and
4. Dowry death.
Culpable homicide
According to Section 299 of IPC, a person who commits culpable homicide does an act
with the intent of causing death, or with the knowledge that such an act is likely to cause
death.

Illustration:

A is aware that Z is hiding behind a bush. B is completely unaware of this. A causes B to

shoot at the bush with the intent of causing, or knowing that it is likely to cause, Z‘s
death. Z is killed by B‘s bullets. B may be innocent in this case, but A has committed the
crime of culpable homicide.
Essential ingredients of culpable homicide

The following are the essential elements of culpable homicide:

 a person must be dead;

 the death must have been caused by the act of another person; and
 the act causing death must have been done with:
(a) the intention of causing death; or

(b) the intention of causing bodily injury likely to cause death; or

(c) with the knowledge that such an act is likely to cause death.

Explanations for Section 299 IPC

The definition itself specifies three scenarios in which the presence or absence of
particular criteria in the cause of death is recognised as culpable homicide. Explanations
1-3 deal with these scenarios.

Explanation 1

It describes a circumstance in which the injured individual has a disorder, sickness, or

bodily infirmity that has hastened his death. The fact that his death was expedited or
hastened by the sickness or disease he was already suffering from does not relieve the
person who caused the damage of guilt. In other words, the person who inflicted the harm
cannot avoid criminal liability for culpable homicide by claiming that the person
wounded would not have died if he had not suffered from the condition or ailment.

For instance, A is suffering from diabetes. B with the intention of hastening the death of
A gave him a lot of sweets. The intended victim ate the sweets, as a result of which, his
blood sugar level went high and eventually resulted in his death. Thus, B is criminally
liable.

Explanation 2

It describes a circumstance in which an injured person may have recovered and avoided
death if he had received early and appropriated medical treatment. In such cases, the fact
that the wounded person died as a result of his inability to obtain adequate medical care
cannot be used to absolve the person who caused the harm in the first place of liability.

For instance, A is suffering from diabetes. B with the intention of hastening the death of
A gave him a lot of sweets. The intended victim ate the sweets, as a result of which, his
blood sugar level went high and eventually resulted in his death owing to the lack of
immediate medical care. Here, the fact of the lack of immediate medical care cannot be
considered to acquit B from liability.

Explanation 3

It refers to a somewhat different circumstance. It takes into account a child‘s death while
still in the mother‘s womb. It is not culpable homicide if the child dies while still in the
mother‘s womb, according to the law. However, if any part of the child emerges from the
mother‘s womb, even if it is not completely developed, and the kid dies, it is considered a
culpable homicide.

For instance, A is a pregnant woman who‘s yet to deliver a baby in the hospital. Now, the
head of baby B comes out of the womb. If the baby dies, it amounts to culpable
homicide.

Section 301 IPC: culpable homicide by causing the death of a person other than the
person whose death was intended

By Section 301, if a person commits culpable homicide by causing the death of someone
whose death he neither intends nor knows to be likely to cause, the culpable homicide
committed by the offender is of the same description as if he had caused the death of the
person whose death he intended or knew to be likely to cause.

In Rajbir Singh v. State Of U.P (2006), the appellant alleged that his brother‘s home was
attacked with bricks by a neighbour. As a result of this, his father and the accused had a
verbal spat, but the problem was eventually resolved by the locals. The next day, the
accused and two relatives arrived with firearms. They approached the complainant‘s
business, where his father was standing. The accused allegedly persuaded or urged his
relatives to murder him there. The accused began firing at the complainant‘s father, who
was injured and fell to the ground. A girl went to that shop to buy some items and was
injured and fell down. On their route to the hospital, both of the injured people died. In
his defence, the accused claimed that the girl died by mistake and that they had no
intention of killing her. She was going through that area when she was injured and died
as a result. The Supreme Court overturned the High Court‘s decision and found the
defendants guilty. He was accused under Section 301 of the IPC.

Murder
By Section 300, unless otherwise specified, culpable homicide is murder:

 If the act that causes the death is done with the intent of causing death, or, A fires
a shot at Z, intending to kill him. As a result, Z dies. A commits murder
 If the act is done with the intention of causing such bodily injury as the offender
knows is likely to cause the death of the person to whom the harm is caused, or

Knowing that B is suffering from an illness that makes a blow likely to kill him, A hits
him with the intention of injuring him. As a result of the strike, B dies. Although the
strike may not have been sufficient in the ordinary course of nature to cause the death of
a person in good health, A is guilty of murder. However, if A, unaware that B is suffering
from a disease, strikes him with a blow that would not, in the ordinary course of nature,
kill a person in good health, A is not guilty of murder if he did not intend to cause death
or bodily injury that would, in the ordinary course of nature, kill a person in good health.

 If it is done with the aim of inflicting physical damage on another person, and
the bodily injury inflicted is sufficient to cause death in the regular course of
nature, or

In the regular course of nature, A purposefully causes Z a sword-cut or club-wound

sufficient to kill a man. As a result, Z dies. A is guilty of murder in this case, despite the
fact that he may not have planned to kill Z.

 If the person conducting the act is aware that it is so risky that it must, in all
likelihood, result in death or physical harm that is likely to result in death and
conducts the act without any justification for risking death or injury as stated.
Without justification, a shoots loaded cannon into a gathering of people, killing one of
them. A is guilty of murder, even though he did not have a planned plan to kill somebody
in particular.

Exceptions

Exception I: Grave and Sudden Provocation

Culpable homicide is not murder if the offender causes the death of the person who
delivered the provocation or any other person by mistake or accident while being
deprived of the ability of self-control by grave and immediate provocation.

Illustration

Under the impact of emotions aroused by Z‘s provocation, A murders Y, Z‘s child, on
purpose. In as much as the provocation was not offered by the child, and the child‘s death
was not caused by accident or misfortune while doing an act prompted by the
provocation, this is murder.

The exception is subject to three exceptions of its own:

 The provocation should not have been sought voluntarily by the culprit as a
justification for killing or harming anybody.
 The provocation should not be caused by an act carried out in accordance with
the law or by a public official in the lawful exercise of his powers.
 The provocation is unrelated to any actions taken in the exercise of one‘s right
to self-defence.

KM Nanavati v. State of Maharashtra

The defendant in KM Nanavati v. State of Maharashtra (1961), was a naval officer. He

had three children and was married. His wife admitted to him one day that she had an
affair with Prem Ahuja, the deceased. Enraged, the accused returned to his ship, got a
semi-automatic pistol and six rounds from the ship‘s shop, proceeded to the deceased‘s
flat, entered his bedroom, and shot him to death. Following that, the accused turned
himself in to the police. The Supreme Court had to decide whether the accused‘s actions
were covered by Exception 1 of Section 300. The following postulates pertaining to the
grave and abrupt provocation were established by the Supreme Court:

 The test of ‗grave and sudden‘ provocation is whether a reasonable man from
the same social group as the accused would be so outraged as to lose his self-
control in the position in which the accused was put.
 In India, words and gestures may give grave and sudden provocation to an
accused, so bringing his act within the first exception to Section 300 of the IPC.
  In determining whether the succeeding action produced significant and
immediate provocation for committing the crime, the mental context formed by
the victim‘s earlier act may be taken into account.
 The fatal strike should be definitely connected to the effect of passion
emanating from that provocation, not after the passion had cooled down due to
the passage of time or otherwise allowing for premeditation and calculation.
The accused may have temporarily lost control after his wife admitted to her illegitimate
relationship with the deceased, according to the Supreme Court. After dropping his wife
and children off at a movie theatre, he proceeded to the ship, grabbed the handgun,
conducted some official business, and then drove his car to the deceased‘s workplace and
afterwards to his home. By that time, three hours had passed, and he had had ample
opportunity to restore his temper. As a result, the Court decided that the requirements of
Exception 1 to Section 300 were not applicable. The defendant was found guilty of
murder and sentenced to life in prison.

This was the last case decided by jury trial. This case was debated hugely among the
public. There was a major criticism about the case. Nanavati had previously served as V.
K. Krishna Menon‘s Defence Associate while the latter was High Commissioner to the
United Kingdom, and had gotten close to the Nehrus during that period. Jawaharlal
Nehru was Prime Minister of India at the time of Nanavati‘s trial and punishment, and his
sister, Vijayalakshmi Pandit, was Governor of Bombay State. All of these benefits might
not have helped Nanavati under other circumstances, because a pardon could have been
perceived by the press and public at other times as a flagrant abuse of authority to aid a
crony of a powerful political family. Public opinion in the generally conservative
country, on the other hand, was overwhelmingly in favour of Nanavati, who was viewed
as an upright navy commander with middle-class ideals and a strong sense of honour.
Nanavati had served three years in prison, and it was thought that granting him clemency
would enrage the Sindhi community, to whom the Ahuja family belonged. Around this
time, the government received a pardon plea from Bhai Pratap, a Sindhi businessman
who had been convicted of abusing an import licence and had been a participant in the
Indian independence struggle. The government was inclined to pardon Bhai Pratap
because of his history as a freedom warrior and the minor nature of his transgression.
Finally, even Mamie Ahuja, the deceased‘s sister, signed an application for Nanavati‘s
pardon. In writing, she consented to his pardon. Bhai Pratap and Nanavati were finally
pardoned by Vijayalakshmi Pandit, the Governor of Maharashtra at the time. This case is
also an epitome of the influence of media trials.
In Shankar Diwal Wadu. v. State Of Maharastra (2008), according to the prosecution, the
accused Shankar Wadu is the brother of Mahu Wadu, who was assaulted by him and died
as a result of the assault. The event occurred on October 22, 1996, in Kaimad Wadu
Pada, Laluka Wada, Thane, where both the accused and the victim, as well as other close
relatives, lived. The accused sought to maintain Kamlibai, the widow of his brother
Vasant, as his mistress, according to the prosecution evidence, but she refused. The
appellant was violently dragging Kamlibai to his residence on the day of the occurrence.
His brother Mahu (the deceased) told him at the time that he couldn‘t force and pull
Kamlibai to his residence. The accused became outraged by such unsolicited advice and
lifted a wooden plank (Pat) and whacked Mahur on the head with it, as well as kicking
and punching him. Mahu died instantly. Yeshubai, a close relative of both the offender
and the victim, filed a complaint alleging his attack. The investigation was launched after
receiving this complaint, and the accused was detained. The prosecution called up to
eight witnesses to establish its accusation of murder against the accused, and the learned
trial judge, after weighing the evidence, found the accused guilty and sentenced him to
life in prison under section 302 / 506 of the Indian Penal Code, as well as a fine of
Rs.50,000.

Exception II: right of private defence

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

Illustration

Z tries to horsewhip A, but not in a way that causes him serious injury. A pulls a handgun
from his pocket. The attack against Z continues. A, believing in good faith that there is
no other way to avoid being horsewhipped, shoots Z to death. A has merely committed
culpable homicide, not murder.

Under some circumstances, the right of private defence even extends to the infliction of
death. This Section applies when a person‘s right to private defence has been violated. It
should be noted that the fact that a person has exercised his right to private defence
beyond its limits does not completely exonerate him or her under this exemption. It is
only used as a mitigating element to lessen the crime from murder to culpable homicide
that does not constitute murder. Of course, before this exception may be invoked, it must
be established that the accused has the right to a private defence under Sections 96-106 of
the IPC. The question of whether the accused has exceeded his right to private defence
will arise only once the existence of the right has been proved. If it seems that the
accused does not have the right to a private defence in the first instance, then this
provision will not apply.

Nathan v. State of Madras

The accused and his wife were in possession of some land that they had been farming for
some years in Nathan v. State of Madras (1972). They had fallen behind on their lease
payments to the landlady. The accused was forcibly evicted, and the landlord attempted
to harvest the crop. As a result, the accused killed the dead in the exercise of his right to
private property defence. The Supreme Court agreed with the claim that the incident
occurred when the accused was exercising his legal right to private defence against the
property. The right to private property defence was restricted to the degree of causing any
harm other than death under Section 104, IPC because the deceased person was not
armed with any lethal weapons and there could not have been any fear of death or severe
harm on the part of the accused and his party. As a result, the accused‘s right to private
defence was violated, and the case was classified as culpable homicide not amounting to
murder under Exception 2 to Section 300 of the Indian Penal Code because the act was
done in good faith and without the intent to cause death. The accused‘s death sentence
was commuted to a term of life in prison.

Exception III : lawful act of a public servant

Culpable homicide is not murder if the offender, while acting as a public servant or
assisting a public servant acting for the benefit of public justice, exceeds the powers
granted to him by law and causes death by doing an act that he, in good faith, believes to
be lawful and necessary for the proper discharge of his duty as such public servant and
without malice toward the person who is killed.

The following are the essential elements of this exception:

 The offence must have been committed by a public servant or a person assisting
a public servant;
 The alleged act must have been committed by the public servant in the
discharge of his official duties;
  He must have exceeded the powers granted to him by law;
 The act must have been done in good faith; and
 The public servant should have thought that his actions were legal and required
for the proper fulfilment of his duties, and
 He should not have harboured any hatred toward the individual who died as a
result of his actions.
In Dakhi Singh v. State (1955), a suspected thief was apprehended by a police officer and
was being transported to a railway station. The robber was able to flee the speeding train.
He was chased by the constable. He fired at him because he was unable to arrest him.
However, he hit the fireman and killed him in the process. The case was found to be
covered by this exception.

Exception IV: sudden conflict

Culpable homicide is not murder if it is committed in the heat of emotion during a sudden
conflict and without the offenders taking undue advantage or acting in a cruel or unusual
manner.

The only requirements for this exception are that:

 the murder be committed without premeditation;

 it is committed in a sudden fight;
 it is committed in the heat of passion;
 it is committed upon a sudden quarrel; and
 It is committed without the offender taking undue advantage or acting in a cruel
or unusual manner.
In Manke Ram v. State of Haryana (2003), the Supreme Court granted the benefit of
exception 4 to a police inspector who killed his subordinate in a bizarre combination of
circumstances. In his chamber, he asked the deceased to drink. While they were drinking,
the deceased‘s nephew entered the room and summoned him for supper. As the deceased
rose to leave the room, the appellant became enraged and began insulting him in obscene
terms, which the deceased objected to. This enraged the appellant even more. Between
the two of them, a brawl erupted. The appellant took out his service handgun and fired
two bullets at the deceased, who was standing close. These shots were lethal. The
Supreme Court overturned the Punjab High Court‘s conviction under Section 302 of the
Code, finding that the incident occurred in the heat of passion and granting the petitioner
the benefit of exception 4. It was decided that, given the totality of the facts and
circumstances of the case, the appellant did not take unfair advantage of the fight or
conduct in an unusual or harsh manner.

Exception V: death with consent

Culpable homicide is not murdered if the dead individual is beyond the age of eighteen
years and suffers or risks death with his consent.

Illustration

A intentionally causes Z, a minor under the age of eighteen, to commit suicide by

instigation. Because Z‘s young, he was unable to consent to his own death; as a result, A
had aided and abetted murder.

The following things must be proven:

 The death was induced with the deceased‘s permission;

 The deceased was over the age of 18 at the time; and
 The consent provided was free and voluntary, and not based on fear or a
misunderstanding of facts.
In the case of Narendra v. State of Rajasthan (2014), the deceased was a married woman
named Nathi who had left her house and was living with her parents. There, she became
close to the accused Narendra, and the two expressed their desire to marry. Because they
belonged to the same gotra, the villagers were opposed to their desire to marry. Due to
their dissatisfaction with the villagers‘ rejection of their love, both of them agreed to
commit suicide. Other villagers saw the accused inflicting harm on the corpse one day,
but the victim had already died before they could save her. Although the accused had stab
wounds in his abdomen, he was prevented from killing himself. The High Court found no
evidence on the record that the deceased gave his free and voluntary consent. Later, the
case reached the Supreme Court, where justices emphasised facts such as the fact that the
deceased did not raise an alarm, that the accused was injured, and that he did not have a
weapon when he entered the residence. Taking into account these facts, the Court found
in favour of the deceased, awarding him benefits under Exception 5.
Difference between culpable homicide and murder

Intention

Clause (a) of Section 299 and clause (1) of Section 300 are the same. It is culpable
homicide under Section 299 if death is caused by an act done with the goal of causing
death (a). Unless one of the exceptions applies, it also amounts to murder under cl (1) of
Section 300.

Section 304 IPC: penalty for culpable homicide that does not amount to murder

If the act by which the death is caused is done with the intention of causing death or
causing such bodily injury as is likely to cause death; or with imprisonment of either
description for a term which may extend to ten years, and also be liable to fine; or with
imprisonment of either description for a term which may extend to ten years, and also be
liable to fine; or with imprisonment of either description for a term which may extend to
ten years, and also be liable to fine.

Though the Section itself does not split the Parts in this fashion, the sentence under this
Section is separated into two parts, often referred to as Section 304, Pt I and Section 304,
Pt II. If the conduct is done with the purpose to cause death or physical damage that is
likely to cause death, Section 304, Pt I, specifies a penalty of life imprisonment or
imprisonment of any kind for a term up to ten years and a fine. This sentence refers to
Section 299, clauses (a) and (b).
Section 304, Part II applies to crimes committed with the knowledge that they are likely
to result in death, but not with the purpose to cause death or bodily damage that is likely
to result in death. This phrase corresponds to Section 299, clause (c). However, if an
offence is committed with the knowledge that it is so dangerous that it must almost
certainly result in death or bodily injury that is likely to result in death, and the act is
committed without justification, the offence is removed from the scope of Section 304, Pt
II and brought under Section 302, as the offence would amount to murder under Section
300(4).

In the case of Vishwanath v. State of Uttar Pradesh (1959), the accused stabbed the dead
with a knife that penetrated his heart as the deceased was attempting to carry away the
accused‘s wife and sister by force. The Supreme Court ruled that the suit fell under
Section 304, paragraph II.

Conclusion
Though the categories of murder and culpable homicide appear to be similar in certain
ways, they differ in terms of the degree of probability of death, or the gravity of the
unlawful act. If the act committed by the offender is either a horrific crime or particularly
hazardous conduct that results in the death of a person with no other consequences, it is
more likely to be classified as murder than culpable homicide. If the offender‘s conduct
leaves the victim alive but in grave pain with a possibility of survival, it is referred to as
culpable homicide, which is not the same as murder. Crimes such as rape and murder are
becoming increasingly dangerous to women and children. According to recent estimates,
these crime rates are rising every day. To address this, legislators may consider enacting
legislation that includes deterrence theory and consequences. As a result, this idea may
help to lower crime rates. There will be a decline in crime when punishments are
strengthened.

DIFFERENCE BETWEEN ABETMENT AND CRIMINAL CONSPIRACY

1. Abetment is a process by which one or more engage or employ other(s) for

commission of an offence. The former i.e., the person, who abets is called the
―abettor‖, while the latter i.e., the person who commits the offence with his own
hands is called the ―principal offender‖
2. But, conspiracy is a process by which an agreement is entered into between two or
more persons for commission of an illegal act or doing/committing a lawful/ legal act
by illegal means. The parties to the agreement are called Conspirators.
3. In the offence of abetment, a mere combination of persons or agreement between
them is not enough but an act or illegal omission must take place in pursuance of the
conspiracy and order to the doing of the thing conspired for, But in conspiracy, the
mere agreement is enough, if the agreement is to commit an offence.
4. Abetment can be committed by one or more, whereas conspiracy can be committed
by two or more.
5. In abetment, sanction of competent authorities is not necessary to proceed against the
abettors, who merely abetted to commit a crime.
6. While in conspiracy, sanction of competent authorities is necessary to proceed
against the conspirators who merely agreed to commit a crime.
7. Abetment is a genus while conspiracy is species.
8. Abetment per se is not a substantive offence whereas criminal conspiracy is a
substantive offence by itself and is punishable.
9. Abetment may be committed in various methods/ways viz., instigation, conspiracy,
intentional aid, etc., but conspiracy is one of the methods of abetment.
10.Crime of Abetment is explained in Sections 107 to 120 of the code while

Crime of Conspiracy is explained in Sections 120- A & 120-B of the Code.

Section 109 of the code is concerned distinctly with the discipline of abetments for which
no express arrangement is made under the Penal Code. A charge under Section 109 ought
to, thusly, be separated from everyone else with some other considerable offense
submitted asa result of abetment. Be that as it may, the offense of criminal conspiracy is,
then again, a free offense. It is made culpable under Section 120 В of the code for which
a charge under Section 109 of the Code is superfluous and, to be sure, improper.

CONCLUSION
Under the Penal Code, an individual becomes at risk as an abettor on the off chance that
he induces one more to perpetrate a crime or takes part in a conspiracy with one more to
carry out a crime and some demonstration is done in the advancement of such conspiracy
or on the other hand in the event that he purposefully helps one more to work with the
commission of a crime. The term ‗abet‘ overall utilization intends to help, advance, help,
conduce, help and advance. The word ‗abet‘ has been characterized as which means to
help; to help or to offer guide; to order, to get, or to direct; to face; to energize; instigate,
or help, to urge or to set another to submit.
In this manner, conspiracy is an undeveloped crime and is culpable basically because a
consent to carry out a crime is a definitive demonstration, full of possible risks; yet to
carry a consent to perpetuate a common wrong inside the scope of criminal conspiracy is
to extend the reasoning of law to as far as possible. In its expansive reach, it very well
may be made to do extraordinary malevolence.

Criminal liability of a child

According to the Indian Majority Act, a person domiciled in India is said to have attained
the age of majority after turning 18 years old[i]. Therefore, any person below this
prescribed age is said to be a minor. Under the Juvenile Justice Act of 2000, juveniles or
minors are considered to be those who have completed the age of 18 years. It can be
concluded that in order to be liable for an offence as an adult, a person must have
completed the age of 18 years.

Any wrong or mistake committed by a child is not the same as one committed by an adult
due to the level of maturity that is expected out of them. Cases such as Ram Deo
Chauhan v. Bani Kant Das[iii], prove the intolerance that people have towards crimes
committed by children.

However, this provision has some exceptions. According to the Indian Penal Code, an
offence committed by a child below 7 years is not considered as an offence, but an act
done by a child, above 7 years and below 12 years, is said to be an offence under certain
circumstances as prescribed under the Code.

The Constitution of India has prescribed special privileges for children. It has empowered
states to make special laws and provisions for women and children and, provides that
children must be given ample opportunities that facilitate their development in a healthy
and prosperous manner.

Principle of Doli Incapax

The law presumes that a child below the age of 7 years is ‗doli incapax‘. This means that
the child lacks the necessary ability to understand the nature and consequences of the act
committed by them and thereby, lacks the ability to form a mens rea.

Doli incapax is a Latin term meaning ―incapable of doing harm‖, which has been used to
presume the innocence of a child under criminal law. The theory behind doli incapax lies
in the concept of criminal responsibility, meaning that a person must be criminally
responsible for the act which he intended to commit.
Doli incapax is recognized in most countries. In India, this principle is covered under
Sections 82 and 83 of the IPC. The Criminal Procedure Code considers that children
below the age of 7 years, a child is incapable of understanding the nature and
consequences of one‘s own actions and provides total immunity for any offence
committed by them.

In the case of Kakoo v. State of Himachal Pradesh[xii], the accused of 13 years of age,
had committed the offence of rape on a child of 2 years of age and was thereby sentenced
to 4 years of rigorous imprisonment by the Trial Court, which was upheld by the High
Court. On pleading Sections 82 and 83 of the IPC, the Court took into account the
circumstances of the case and opined that the punishment shall be reduced to 1 year of
rigorous imprisonment with a fine, along with 6 months of rigorous imprisonment for
default in payment of fine. The convict was also said to be kept separate from the adult
prisoners.

Legal Provisions

Section 82 and Section 83 of the IPC deals with offences committed by children.

Section 82 states that ―nothing is an offence which is done by a child under seven years
of age.‖[vi]
This provision gives total immunity to children below the age of 7 years from being
charged, tried, and convicted for any offence prescribed under the IPC or other legal
provisions.

In the case of Shyam Bahadur Koeri v. State of Bihar[vii], a child below the age of 7
years discovered a gold plate that weighed 28 tolas. However, after recovering it, he did
not report it to the Collector. When the Collector came to know of this, he ordered the
prosecution of the child under the Indian Treasure Trove Act, 1878. The Court acquitted
the child holding that he had the benefit of Section 82 of the IPC as he was below 7 years
of age.

Section 83 of the IPC states that ―Nothing is an offence which is done by a child above
seven years of age and under twelve, who has not attained sufficient maturity of
understanding to judge of the nature and consequences of his conduct on that
occasion.‖[viii]
This Section deals with offences committed by a child above the age of 7 years and
below the age of 12 years. To prosecute a child under this Section, the following
essentials must be satisfied:
 The act must be done by a child.
 The child must be above 7 years and below 12 years of age.
 The child must not have attained sufficient maturity to understand the nature and
consequences of their conduct.
This section provides that when a child above the age of 7 years and below the age of 12
years is said to have committed an offence if the Court can ascertain that the child had
sufficient maturity to understand the nature and consequences of their actions. In this
instance, the term ―consequence of his conduct‖ does not mean the penal consequences
but the natural consequences of their conduct.

The proof of sufficient maturity can be ascertained depending upon the facts and
circumstances of each case. In general cases, it can be ascertained from the following:

 The nature of the act committed by the child.

 The subsequent conduct of the child after committing such an act.
 The appearance of the child before the Court of Law.
In the case of Hiralal Mallick v. State of Bihar[ix], the accused was below the age of 12
years and had a dispute with the victim in relation to an earlier attack on his father. The
accused, armed with a sharp weapon, along with his elder brothers, gave several blows to
the victim on his vital body parts, causing the death of the victim. The accused was
charged with murder under Section 302 of the IPC. The accused pleaded the defence
under Section 83. The Court analyzed the medical evidence, which showed that the child
was armed with a cutting instrument and set upon the victim using the sword on his neck.
The autopsy evidence disclosed that the injuries caused by the accused were not the lethal
ones but multiple swords cuts on the neck of a man, leaving little room for doubt in the
ordinary run of cases as to the intent of the accused. When three persons, with swords in
their hands, attack a single individual and strike on his neck and skull several times with
a sharp weapon, it is not caressing but killing, in all conscience and common sense. The
Court rejected the defence of the child and convicted him holding that the act of the
accused of stabbing the victim with a sharp weapon shows that the accused had attained
sufficient maturity of understanding to judge the nature and consequences of his act.

Juvenile Justice (Care and Protection of Children) Act, 2000

To understand crimes committed by minors, it is also necessary to study the JJ Act of
2000 which prescribes the procedure relating to crimes committed by minors. As
mentioned earlier, the JJ Act deals with offences committed by persons who have not
completed the age of 18 years. The Act states that children or juveniles who are found to
be in conflict with the law are to be produced before the Juvenile Justice Board (JJB).
Under the JJ Act, offences have been categorized into 3 levels:

1. Petty offences – These are offences for which the maximum punishment under the
IPC or any other law is imprisonment of up to 3 years.
2. Serious offences – These are offences for which the punishment under the IPC or any
other law is imprisonment of 3 to 7 years.
3. Heinous offences – These are offences for which the punishment under the IPC or
any other law is imprisonment of 7 years or more.
The Act states that when a child below the age of 16 years commits any offence, the JJ
Board may pass any of the following orders:

 Allow the child to go home after advice or admonition

 Direct the child to participate in group counselling
 Order the child to perform community service
 Order the child or parents or the guardian of the child to pay fine
 Direct the child to be sent to a special home, for such period, not exceeding three
years.[x]
In certain cases, the child can be tried as an adult. When a heinous offence is committed
by a child between the age of 16 to 18 years, the child shall first be produced before the
JJ Board. The Board shall then conduct a preliminary assessment of the accused,
assessing the capacity of the child to commit such an offence, and assessing whether the
child is able to understand the consequences of the offence. After such an assessment, the
Board shall decide whether the child shall be tried as an adult. Therefore, it can be
understood that children between the ages of 16 and 18 years, who have committed an
offence and have been assessed and concluded to be able to understand the consequences
of an offence, can be tried as adults.

In the case of Pratap Singh v. State of Jharkhand, there was a question before the Court
that whether the date of commission of an offence or the date on which the accused was
produced before the Court should be considered. The Supreme Court held that the date of
the commission of the offence should be recognized as the date for determining the age
of the accused.

Conclusion
A child is liable for an offence if they are above 7 years of age and below 12 years of
age, and has the ability to understand the nature and consequences of their actions. In
addition, an offence committed by a child of 16 to 18 years of age will also hold the child
liable if the offence committed is a heinous one and if a preliminary assessment proves
that such a child was able to understand the consequences of their actions.
However, in most cases, the conviction or acquittal of the accused child is based on the
facts and circumstances of the case as there are specific guidelines that govern such
conviction.

The principle of doli incapax provides immunity to children from being charged with,
tried for, and convicted for offences under the IPC or any other law.

Therefore, minors do not have total immunity from the commission of an offence, unless
such child is below the age of 7 years, in which case the child shall not be held liable for
the commission of any offence.

Difference between Strict Liability and absolute liability.

The principle of strict liability evolved in the case of Rylands v Fletcher. In the year
1868, the principle of strict liability states that any person who keeps hazardous
substances on his premises will be held responsible if such substances escape the
premises and causes any damage. Going into the facts of the case, F had a mill on his
land, and to power the mill, F built a reservoir on his land. Due to some accident, the
water from the reservoir flooded the coal mines owned by R. Subsequently, R filed a suit
against F. The Court held that the defendant built the reservoir at his risk, and in course
of it, if any accident happens then the defendant will be liable for the accident and escape
of the material.

Going by the principle laid in this case, it can be

said that if a person brings on his land and keeps some dangerous thing, and such a thing
is likely to cause some damage if it escapes then such person will be answerable for the
damaged caused. The person from whose property such substance escaped will be held
accountable even when he hasn‘t been negligent in keeping the substance in his premises.
The liability is imposed on him not because there is any negligence on his part, but the
substance kept on his premises is hazardous and dangerous. Based on this judicial
pronouncement, the concept of strict liability came into being. There are some essential
conditions which should be fulfilled to categorize a liability under the head of strict
liability.

Essentials of Strict Liability

Dangerous Substances: The defendant will be held strictly liable only if a ―dangerous‖
substances escapes from his premises.

For the purpose of imposing strict liability, a dangerous substance can be defined as any
substance which will cause some mischief or harm if it escapes. Things like explosives,
toxic gasses, electricity, etc. can be termed as dangerous things.

Escape: One more essential condition to make the defendant strictly liable is that the
material should escape from the premises and shouldn‘t be within the reach of the
defendant after its escape.

For instance, the defendant has some poisonous plant on his property. Leaves from the
plant enter the property of the plaintiff and is eaten by his cattle, who as a result die. The
defendant will be liable for the loss. But on the other hand, if the cattle belonging to the
plaintiff enter the premises of the defendant and eats the poisonous leaves and die, the
defendant would not be liable. In the judicial pronouncement of Reads v. Lyons & Co., it
was held that if there is no escape, the defendant cannot be held liable.

Non-natural Use: To constitute a strict liability, there should be a non-natural use of the
land. In the case of Ryland‘s v. Fletcher, the water collected in the reservoir was
considered to be a non-natural use of the land. Storage of water for domestic use is
considered to be natural use. But storing water for the purpose of energizing a mill was
considered non-natural by the Court. When the term ―non-natural‖ is to be considered, it
should be kept in mind that there must be some special use which increases the danger to
others. Supply of cooking gas through the pipeline, electric wiring in a house, etc. is
considered to be the natural use of land. For instance, if the defendant light up a fire in
his fireplace and a spark escapes and causes a fire, the defendant will not be held liable as
it was a natural use of the land.

These three condition needs to be satisfied simultaneously to constitute a strict liability.

Exception to the Rule of Strict Liability

There are certain exceptions to the rule of strict liability, which are-

Plaintiff‘s Fault: If the plaintiff is at fault and any damage is caused, the defendant
wouldn‘t be held liable, as the plaintiff himself came in contact with the dangerous thing.

In the judicial pronouncement of Ponting v Noakes the plaintiff‘s horse died after it
entered the property of the defendant and ate some poisonous leaves. The Court held that
it was a wrongful intrusion, and the defendant was not to be held strictly liable for such
loss.

Act of God: The phrase ―act of God‖ can be defined as an event which is beyond the
control of any human agency. Such acts happen exclusively due to natural reasons and
cannot be prevented even while exercising caution and foresight.[4] The defendant
wouldn‘t be liable for the loss if the dangerous substance escaped because of some
unforeseen and natural event which couldn‘t have been controlled in any manner.

Act of the Third Party: The rule also doesn‘t apply when the damage is caused due to the
act of a third party. The third party means that the person is neither the servant of the
defendant, nor the defendant has any contract with them or control over their work. But
where the acts of the third party can be foreseen, the defendant must take due care.
Otherwise, he will be held responsible.

For instance, in the case of Box v Jubb,[5] where the reservoir of the defendant
overflowed because a third party emptied his drain through the defendant‘s reservoir, the
Court held that the defendant wouldn‘t be liable.

Consent of the Plaintiff: This exception follows the principle of violenti non fit injuria.

For instance, if A and B are neighbours, and they share the same water source which is
situated on the land of A, and if the water escapes and causes damage to B, he can‘t claim
damages, as A wouldn‘t be liable for the damage.

Absolute Liability

The rule of absolute liability, in simple words, can be defined as the rule of strict liability
minus the exceptions. In India, the rule of absolute liability evolved in the case of MC
Mehta v Union of India.[6] This is one of the most landmark judgment which relates to
the concept of absolute liability.

The facts of the case are that some oleum gas leaked in a particular area in Delhi from
industry. Due to the leakage, many people were affected. The Apex Court then evolved
the rule of absolute liability on the rule of strict liability and stated that the defendant
would be liable for the damage caused without considering the exceptions to the strict
liability rule.

According to the rule of absolute liability, if any person is engaged in an inherently

dangerous or hazardous activity, and if any harm is caused to any person due to any
accident which occurred during carrying out such inherently dangerous and hazardous
activity, then the person who is carrying out such activity will be held absolutely liable.
The exception to the strict liability rule also wouldn‘t be considered. The rule laid down
in the case of MC Mehta v UOI was also followed by the Supreme Court while deciding
the case of Bhopal Gas Tragedy case. To ensure that victims of such accidents get quick
relief through insurance, the Indian Legislature passed the Public Liability Insurance Act
in the year 1991.

Difference between wrongful restraint and wrongful confinement

Difference between Assault and Battery
Ans. Assault and battery are two separate legal offenses that occur between two people.
Often mentioned in conjunction with one another and frequently combined by
jurisdictions into one statute, the two offenses are distinct, and one can occur without the
other.
Battery is unlawful touching or physical contact. It occurs when the defendant, or person
who committed the act, touches the other person without consent. The physical contact
must be harmful or offensive in nature. This can be actual physical contact between the
two individuals or instrumental contact where the defendant touches the victim by
striking them with an object, with a thrown object, with a vehicle, with a substance, etc.
What is required is that physical contact actually occurs.
Assault refers to the perceived threat of harmful contact by another person. It is
sometimes referred to as "attempted battery" however assault does not take into account
the actual physical contact that occurs between two people. Physical contact would be
considered as battery, while assault is based on the perceptions of the victim and the fear
or threat of harm felt by him/her as a result of the words and/or actions of another person.
Assault and battery are common offenses, as disagreements between two people can turn
heated. While assault is generally a misdemeanor (serious crime), both assault and
battery can be either a misdemeanor or felony(less serious crime), depending on the
severity of the threat of physical harm done.
While the basic difference between assault and battery is based on actual physical
contact, there are also other important distinctions between these two offenses.

 Battery requires physical contact between two people, also commonly referred to
as unlawful touching. When considering the legal implications, the intent of the
physical contact can be considered. A distinction is often made between purposely
or knowingly causing harm. This takes into account whether the physical contact
was intentional, accidental, or perhaps the result of negligence. The amount of
harm done can also be a factor in states determining whether or not to pursue
criminal charges. Finally, the consent of the victim will be a factor in battery cases.
If the victim willingly puts him or herself in a position where they knowingly
could receive bodily harm, there may not be a case for a battery charge. One
person physically striking another with their fists would be an example of battery.
A person hitting another with an object or spitting on them would be another.
 Assault can come in the form of attempted battery or threatened battery. While
there is no physical contact in an assault charge, the crime is a person intentionally
creating the perception for the victim that they may experience such battery.
Assault by attempted battery occurs when the perpetrator attempts to make
physical contact with the victim but fails for some reason. They take all of the
steps required of a battery charge, except for the actual physical contact. In a
threatened battery assault, the perpetrator makes verbal statements and gestures
that cause the victim to believe that physical harm or offensive contact to their
person is imminent. In both attempted battery assault and threatened battery
assault, there is no requirement of harm, however, intent is required.

Two women are fighting in a kitchen. One woman says, "If you don't take that comment
back, I'm going to hit you in the head with that pan." The other woman says, "Go ahead,
I'm not taking it back." The first woman picks up the pan and swings it toward the
second. She fails to make contact, so this is not battery, but was an attempt. Coupled with
her statement, this is attempted battery assault.
If, however, the woman instead threatens to shoot the other woman, picks up a gun that
she knows to be unloaded, and cocks it, that would be an example of threatened battery
assault. There was no physical contact or attempt at physical contact, however, the
actions and the words of the first woman would lead the second to reasonably believe
that such physical harm was imminent.
Assault and Battery vs. Mayhem

One distinction that is made when considering assault and battery is whether the concept
of mayhem applies. Mayhem is when the victim has one or more body parts that were so
severely injured by the battery that was inflicted upon them that a body part must be
removed or is from that point on useless.
For example, if a person shoots another in the arm, that is defined as battery. If the victim
is no longer able to use that arm because of the injury sustained, then an act of mayhem
may have occurred. Similarly, if a person pushes another onto the tracks of a train and the
victim's leg is severed when they are struck, the physical push that was considered
battery, has also become a situation in which mayhem is applicable because of the level
of severity of the injury.

What is a Mistake? How many types of mistakes are there in IPC?

There are two types of mistake which a normal person can do according to tort:

1. Mistake of Law
2. Mistake of Facts
In general, the mistake of law is no defence to the violation of the law. It is presumed that
all people know and understand the law of the land, except minors, lunatics or insane.
There are few other rare exceptions to this rule.

A mistake of fact can be an exception in reducing or eliminating the liability of the

person. A person cannot escape his liability for intentional mistakes. A criminal
defendant can argue that he/she never intended to commit the crime. The criminal act that
occurred as a result of the mistake of fact as per the situation demands or
misunderstanding. Such exception is only allowed when there‘s a mistake of fact, but the
mistake of law is not considered as a defence.

A mistake of fact arises when a person does any act but misunderstood some fact that
negates an element of the crime.

A mistake of fact as a defence applies to various crimes. If the criminal defendant can
prove that he does the act due to a mistake of fact or misunderstood some fact that
negates an element of the crime.

When a person commits any tort and asks for the defence that he does not know the law,
that does is considered as a defence. Court thinks that every person knows the law of the
country that‘s why the mistake of law is not considered as a defence in IPC as well as in
tort. The mistake of law is not considered as a defence.

Illustration

A takes his Labrador to the park every day so that he can play off leash with other dogs.
One day, A lost sight of his dog for a few minutes. Well, he relocated the dog and walked
towards the home. At home, he noticed a mark on the dog and came to the conclusion
that it is not his dog, he mistakenly took another person‘s dog with him. Here, A will not
be liable because he gets the defence of mistake of facts.

In general, Mistake, whether of fact or of law, is no defence to the action of tort. When
any person wilfully interferes with the rights of others, he has no defence that he believed
that his actions were justified. Likewise, no one under a mistake of fact defames someone
or enters anyone‘s property.
If it is repeatedly told to an individual that it is not his property, he could not take it. It
would no longer be a reasonable defence for him.

Illustration

A and B are playing games on a laptop in B‘s house. At the time A leaves, he took the
laptop from the table, believing that it was his laptop. B repeatedly told A that it was not
his property and belonged to him. If then also A leaves with B‘s laptop, in that situation
A cannot take the defence of mistake of fact.

The mistake of fact can be used as a defence due to mens-rea as one of the important
essentials. The mistake of fact must be honest and reasonable i.e., bona fide in nature. A
defendant can not claim later that he or she was under the mistake of fact when she/he
actually knew about the situation.

Illustration

A, jokingly, hit normally on B‘s head from behind assuming him as C, his friend. Here A
can take the defence of mistake of fact, as his act can be taken as a reasonable act
because he was standing behind B and honestly assumed B as C.

The State of Maharashtra v. Mayer Hans George, 1965 AIR 722, 1965 SCR (1) 123

In this case, A is an officer of the court. Court ordered him to arrest Y. A arrest Z, as he
believes Z to be Y. Here, A can take the ground of good faith or a bona fide intention as a
defence in the mistake of fact.

There are some exceptions when the defendant may be able to avoid his liability:

A Mistake of Fact and not A Mistake of Law

This phrase means a defence of mistake of fact can be excusable but the defence of
mistake of law is not excusable. It is assumed that every person knows the law of the
country he resides in. if a person says, I do not know the law and does the act, it is not
excusable.
However, if a person did a wrongful act by mistake of fact with a good intention and
honest belief that he was bound to do, he may be excused.

Illustration

Situation 1

A is 17 years old went to buy wine from the wine shop. B, the owner of the shop honestly
believed that A was above 18 years of age and as per law 18+ person can legally have
wine. C, a policeman caught B for illegally selling wine to a child. Here B can take
advantage of the mistake of fact because he honestly believes A to be 18+.

Situation 2

A has possession of a rifle without a licence. B, a policeman caught him. He asked for the
defence of mistake of law i.e. he was unaware of the law. Here, A does not get any
defence because it is assumed that every person knows the law of the land he resides in.

Good Intention

The word good faith here means the act is done with due care and proper attention. It also
includes the genuine beliefs of a person. The burden of proof lies upon the accused, who
wants to take the shelter of good faith.

Illustration

A enters on one way from the wrong side. A police officer caught him. He pleaded the
mistake of fact because he was unaware that it was a one way. Here A does not get the
defence because he should take proper care and attention, as there was a signboard
present on the road which a reasonable man can easily see.

In good faith and believed to be justified by the law

A person can take the defence only when he acts in good faith and with good intention
and believes that his act is justified by law.

In Keso Sahu v. Saligram Shah

In this case, the court held that the accused showed that he in good faith and believing
that the offence of smuggling rice was going on in the plaintiff‘s house and thus he brings
the cart and Cartman to the police station. The said suspicion was proved to be wrong.
The accused can take the defence of mistake of fact as he is doing the act in good faith
and believing it to be justified by law.

The word justified, according to Black‘s law dictionary means the act ―Done on adequate
reason sufficiently supported by credible evidence, when weighed by the unprejudiced
mind, guided by common sense and by correct rule of law‖.

In Dhaki Singh v. State

The accused shot an innocent person mistaking him to be a thief, although he believes
that he is bound to nab the thief. According to the officer‘s finding, he was not in the
position to apprehend him, fired at him. Here, he cannot take the defence of mistake of
fact as the act done by him was not justified.

Illustration

A murdered B, in this case, A cannot apply for the defence of mistake of law i.e. he was
not aware of crime/law related to the murder.

A Mistake of Fact and Mistake of Law in I.P.C.

Mistake of Fact

Under section 76 of Indian Penal Code, the maxim ‗ignorantia facti doth excusat
ignorantia juris non-excusat‘ it means, a person has done an act which by law is an
offence, under a misconception of facts, leading him to believe in good faith that he was
commanded by the law.

Illustration

A, a police officer gets information that G is a gangster and running business of drugs. A
went to arrest G but arrests B believing that he is G. Here A is acting under the command
of the law and can take the defence of mistake of fact.
Section 79 Indian Penal Code, deals with the act of the person, by mistake of fact
believing himself justified by law. If the criminal defendant can prove that he does the act
due to a mistake of fact or misunderstood some fact, that will negate an element of the
crime.

In Chirangi v. the State of M.P., (1952)53 CrLJ 1212 (M.P.)

In this case, a widower holding axe accompanied by his son, went to woods to gather
‗siadi‘ leaves. After some time, his nephew discovered that the accused was sleeping
under the tree and the child was missing. Later the child was found dead. It was
transpired in evidence that the accused at the time being was seized of the state of mind
in which he visualized that a tiger was going to attack him as by mistake he killed his son
considering his son as the tiger. The court stated that it was a mistake of fact that
immunized him from liability. He had no intention to kill his son.

State of Orrisa v. Khora Ghasi

The accused while guarding his field shot an arrow on the moving object in a good faith
that it was a bear, but the shot results in the death of a person. Here, he gets the immunity
under the mistake of fact.

In Grant v. Borg (1982) 1 WLR 638 HL

In this case, the person was charged under the Immigration Act 1971, for staying beyond
the time limit by the leave. Here, he cannot apply for the defence i.e. mistake of law.

Conclusion
In General, the mistake of law is no defence to a violation of the law. It is presumed that
all people know and understand the law of the land, except minors, lunatics or insane.
There are few other rare exceptions to this rule. On the other hand, the mistake of fact
can be considered as a defence if a person does any act, which he honestly believed to be
justified by law.

Offences related to marriage

In India marriage is considered as very sacred and the women are worshipped like a god
but now a day‘s we have seen that in every 2 second we hear the news like an assault
with women, rape of women, stalking, dowry death, sexual harassment & acid attacks
etc. this is very inhuman for the nation that the crime is increasing day by day against
them and the women are very insecure everywhere whether they are at home, outside or
workplace the crime follows every step with them but with the help of our constitution
and Indian penal code the culprit are easily captured by police and flexible laws and rules
are also made for their protection which also helps them to give equality as the men and
equal treatment for all.

Under Indian penal code of Chapter XX talks about the offences relating to marriage
section (493 -498A) which takes away the sanctity from the holy institution of marriage
and it also shows the inability of laws to protect the interest of married wife.

There are several offences relating to marriage.

1. Invalid marriage or mock marriage (Sec 493 &496).
2. Bigamy(Sec 494&495)
3. Adultery(Sec497 )
4. Criminal Elopement/Seduction(Sec498 )
5. Cruelty(Sec498A )

INVALID MARRIAGE OR MOCK MARRIAGE (SEC 493&496).

SECTION 493

This section states that every man whether he is married or unmarried by cheating
persuade women for cohabitation or sexual intercourse and the women believe that she is
lawfully married to him or in reality, she was not and she submits herself to him as his
wife then that men shall be punished with imprisonment of either interpretation of the
law or which may extend to ten years and shall also be liable to fine. The offence under
this section can be punished as a rape u/s 375 clauses.

INGREDIENTS
1. Deceit or causing false belief.
2. Cohabitation or sexual intercourse with the person causing such believes.
SECTION 496
This section states that any men or women who have an intention to deceit or by fraud
induced women or men to go through the ceremony of marriage which he/she knew that
no valid marriage but still performs that ceremony of marriage and one party does not
know about the fact that the marriage was done by fraud or cheating then he /she shall be
punished with imprisonment either according to law or which may extend to seven-year
and shall also be liable to pay fine.

INGREDIENTS
1. The intention of dishonest or fraud or to deceit.
2. One party was aware of the fact that the marriage was not lawful or not valid.
BIGAMY (SEC 494&495)

When men or women perform second marriage during the subsistence of the first
marriage and it is illegal in India and relationship arising from the same marriage is not
valid. Bigamy is an offence under Indian penal code only when the husband or wife is
alive and it was also offence if it was performed by the consent of first husband or wife

SECTION 494
This section applies to all Hindus, Christians, and Parsis whether they are male or female.
But in the case of Muslim people according to their laws, the male can have four wives
but the female are not permits to have more than one husband.

It says that any husband or wife perform marriage when their spouse is alive or during
the lifetime of first marriage or with the consent of their spouse or with the consent of
their new partner is an offence under this section and whoever commits an offence under
this shall be punishable with imprisonment either by describing by the law or which may
extend to seven years and shall also pay liable to fine.

There are few exceptions to this section are-

1. When the competent court declared the first marriage was void.
2. When the husband or wife continuously absent from seven years and shall not hear
anything whether they are alive or not and before the second marriage takes place,
he/ she has to give information about his/her first marriage and the second partner
should be aware of the fact or have knowledge.
SECTION (495)
This section says that whoever hide information about their first marriage from the
second marriage or does not reveal the truth of his marriage, then he/she shall be
punished with the imprisonment which described by law which may be extended to ten
years and shall also b

Adultery (Section 497)

Adultery means the sexual intercourse or physical correlation between the married person
and other than that who was not his lawful spouse even though whether the women are
married whose husband consent to it or his without consent, unmarried or with a widow
then he shall be deemed as he committed an offence under this section against a husband
in respect of his wife which termed as an offence of adultery.

This section punishes the person whoever has sexual intercourse with a person who he
knows about the fact that, the wife of other person or without the consent of her husband
then such sexual intercourse is not amounting to the offence of rape but he is guilty under
the offence of adultery and he shall be punished under this section with imprisonment
according to prescribed law and which shall be extended for the term of 5 years or with
fine or with both. But in this case, the wife shall not be liable under this offence and shall
not be punished as an abettor.

CASES
Yusuf Aziz v. State of Bombay, A.I.R 1945
In this case, the appellant was prosecuted under section 497 and as soon as the complaint
was filled he approaches to the High court of Bombay and there he contended that the
adultery law violates the fundamental right of equality under Article 14 of Indian
constitution. Then the Supreme Court held that section 497 of IPC is valid and it does not
give license to the women to commit adultery.

But after the case of Joseph shine v. union of India, A.I.R 2018 this section has been
decriminalized and the law relating to the adultery as ―unconstitutional‖.

JOSEPH SHINE V. UNION OF INDIA, A.I.R 2018

The fact of the case was Mr. shine was a Keralite and he filed PIL under article 32 of the
Indian constitution for challenging the constitutionality of the offence of adultery which
was given under section497 of IPC. He contended that this section discriminates among
the men and women for having an extra-marital affair and treating a woman like a victim.
It is worthy that an offence was committed by both men and women but the men are only
liable for a criminal offence and the women were not responsible or liable they are
absolved.

ISSUES;-
1. Whether section 497 of the Indian Penal Code is constitutionally valid?
2. Whether section 198(2) of Code of Criminal procedure (crpc) violates the
fundamental right of article 15,16 and 21?
3. Whether section 497 has an excessive penal provision which needs to be
decriminalized?
JUDGEMENT
This case has been decided by five judges‘ bench and HON‘BLE JUSTICE Dipak
Mishra says that now the husband is not the master of his wife.

1. This section does not provide the neutrality or same platform to punish the culprit for
the offence of adultery and it does not prosecute a woman but it does prosecute the
men only but as we see both of them committed the crime but the punishment was
given based on gender which is the violation of Article 14 and also sec 497 does take
the shadow under article 14 of Indian constitution as it was unreasonable and
arbitrary.
2. The true purpose of state legislation was to uplift the women and empowers in the
socio-economic sphere under article15. But legislation which takes away the right of
women to prosecute then that legislation was not beneficial legislation.
3. Article 21 of Indian constitution an invasion of privacy by the state must be justified
o the basis of valid law.
Justice held in the case of K.S Puttaswamy & Anr v. Union of India & anr invasion of
three postulates.
1. Legality- which postulates the law

2. Need- legitimate state interest

3. Proportionality-rational nexus between the object and the means of adopting.

Section 497 fails in term of these postulates and must be required therefore to stuck
down.
1. To criminalize definite conduct is to declare that it‘s a public wrong which might
justify public censure, and warrant the utilization of criminal sanction against such hurt
and wrongdoing.
2. The autonomy of an individual to create his or her decisions with relevancy his/her
gender within the most intimate spaces of life ought to be shielded from public censure
through criminal sanction. The autonomy of the individual to require such selections, that
are strictly personal, would be repulsive to any interference by the state to require action
supposedly within the best interest of the individual.

Decision
1. Section 497 of IPC becomes unconstitutional because it violates the article
mentioned under Indian constitution i.e article 14, 15 & 21.
2. Section 198 (2) of the code of criminal procedure (CRPC) which contains the
procedure related to the offence of adultery is shall be unconstitutional.
SECTION 498
This section states that whoever takes or entices away any women from her husband or
guardian with wrongful intention or to have sexual intercourse shall be punishable under
this section with the imprisonment of 2 years or fine or both.

SECTION 498A
This section states any type of cruelty done by her husband or his family which makes his
wife try for suicide or treating her very badly or demanding for dowry or anything related
to dowry then shall be punished for the term or which may be extended to three years and
also liable for fine.

This section also applies to the before seven years of marriage and after seven years of
marriage but there is time limitation provided by code of criminal procedure act under
section 464 that the complaint should not be delayed more than 3 years.

Cases
RAJESH SHARMA v. STATE OF U.P, A.I.R 2017
In this case, the Supreme Court give direction to prevent from misuse of this section
which was further modified in the case of social auction forum Manav Adhikari v.union
of India it includes that-

1. A complaint under section 498-A or offence related to this section was investigated
by designated investigated officers of the area.
2. And if the matter for the settlement reached between the party then it is up to them
whether to approach a high court under section 482 of CrPC for quashing the
proceedings.
3. If the bail application was filed with a minimum one day‘s notice by the
complainant the same may be decided as the same day. And the recovery of the
 dowry item may not / maybe denial of its bail. Just to protect the right of wife or
minor child.
4. In respect, if a person is from out of India then the issuance red corner notice should
not be routine.
Conclusion
The offences relating to marriage are given protection and the right of women to file a
complaint or if anyone treats them inhume by his husband or by his relatives. And it also
tries to stop the crime which harms the women like harassment, demanding of unlawful
property, dowry death etc.

Unlawful Assembly

An assembly may turn unruly and which may cause injury to person, property or public
order. Such an unruly assembly is termed as ‗Unlawful Assembly.‘ In Moti Das v. State
of Bihar,[2]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.‘

The term ‗Unlawful Assembly‘ has been defined under section 141 of the Indian Penal
Code, 1860 as an assembly of five or more persons having a common object to perform
an omission or offence.

Essentials to constitute an Unlawful Assembly

To constitute an unlawful assembly the following 3 conditions must co-exist:-

 There must be an assembly of five persons.

 The assembly must have a common object and
  The common object must be to commit one of the five illegal objects specified
in the section.

1) There must be an assembly of five persons

The Supreme Court of India has upheld invariably in a number of cases such as Dharam
Pal Singh v. State of Uttar Pradesh that;

―WHERE ONLY FIVE NAMED PERSONS HAVE BEEN CHARGED FOR

CONSTITUTING AN UNLAWFUL ASSEMBLY, AND ONE OR MORE OF THEM
ARE ACQUITTED, THE REMAINING ACCUSED (WHO ARE LESS THAN FIVE)
CANNOT BE CONVICTED AS MEMBERS OF UNLAWFUL ASSEMBLY, UNLESS
IT IS PROVED THAT THE UNLAWFUL ASSEMBLY, BESIDES CONVICTED
PERSONS CONSISTED OF SOME OTHER PERSONS AS WELL WHO WERE NOT
IDENTIFIED AND SO COULD NOT BE NAMED.‖

2) The assembly must have a common object

The law does not declare a mere assemblage of men, however large it is, as illegal unless
it is inspired by an illegal common object. In the case of Sheikh Yusuf v. Emperor,[5]the
court said that; ―the word ‗object‘ means the purpose or design to do a thing aimed at and
that the object must be ‗common‘ to the persons who comprise the
assembly.‖ A Common Object is where all or minimum five member of the assembly
possesses and shares one object.

3) The common object must be to commit one of the five illegal objects specified in the
section

As stated earlier, an assembly of five or more persons is designated as an unlawful

assembly, if the common object of the persons composing that assembly is any one of the
following five objects declared illegal under section 141, IPC:

1. To overawe Government by criminal force.

2. To resist the execution of law or legal process.
3. To commit an offence.
4. forcible possession or dispossession of any property; or
5. To compel any person to do illegal acts.
i) To overawe government by criminal force: ‗Overawe‘ means to create fear in mind of
another person. That is when a public procession tends to overawe government by the use
of force, like what the Stone Pelters do at parts of Kashmir to protest against the
government, such an assembly is termed as an unlawful assembly.

ii) To resist the execution of law or legal process: Resistance by an assembly to a legal
process or execution of law, for example, executing a court‘s judgment or order comes
under execution of law, Hence, restraining the arrest in case of Baba Ram Rahim in
Haryana was an illegal act by people and government decided for dispersion of unlawful
assembly under section 144 of the Code of Criminal Procedure, 1973.

iii) To commit an offence: Where an assembly of 5 or more persons having a common

object of performing an act which is prohibited by law or forms an offence under Indian
Penal Code or other special or Local Laws, such an assembly would be an unlawful
assembly.

iv) Forcible possession or dispossession of any property: Where a criminal force is used
by an assembly to deprive a person of enjoyment of the right to way or right to use of
water or any other incorporeal right that the person is enjoying and in possession of. Or
to obtain possession of any property or to impose such rights, the above acts are
prohibited under clause 4 of section 141 of the Indian Penal Code, 1860.

v) To compel any person to do illegal acts: if assembly by using criminal force on others
compel them to perform an illegal act than that assembly would be an unlawful assembly.

What is Section 144 of the Code of Criminal Procedure?

Section 144 gives the ―Power to issue order in urgent cases of nuisance or apprehended
danger‖.

This section gives power to a District Magistrate, a Sub-divisional Magistrate or any

other Executive Magistrate specially empowered by the state government in this behalf to
issue orders in the case where he has sufficient ground to take action and for immediate
prevention or speedy remedy is desirable against the apprehended danger.

The object of section 144 is to pass an immediate order in advance to prevent any
apprehended danger or to immediately give a remedy in case of emergency. Preservation
of peace and tranquillity in society is the prime purpose of the state government; hence,
the government specially empowers executive magistrates under 144 to take immediate
action in case of emergency and to provide an immediate remedy in the following three
situations mention under clause 1 of section 144 of the Code of Criminal Procedure:

To Prevent;

1. Obstruction, annoyance or injury to any person lawfully employed.

2. A danger to human life, health or safety, or

 Disturbance of the public tranquillity or a riot or an affray.

Prohibition of the right to assemble is not absolute

In the case of Dr. Anindya Gopal Mitra v. State,[6] it was held that the amount of power
vested under the magistrate under section 144 is to suspend the exercise of the right on
particular occasions and not to prohibit it absolutely. In this case, police commissioner
refused to give permission to a political party (BJP), to hold public meetings by
prohibiting it under section 144 of the Cr.P.C., the Hon‘ble Calcutta High Court; quashed
the order passed by the police commissioner and said that ‗the holding of meetings could
not be totally prohibited, but necessary restrictions may be imposed and preventive
measures may be taken.‘

Duration of applicability of section 144

According to clause 4 of section 144 of the Cr.P.C. ‗No order under this section shall
remain in force for more than two months from the date of issuance, provided the state
government, if of the opinion that it is necessary to do in case of emergency to prevent
danger to human life, health or safety or to prevent a riot, than the state government may
order the magistrate to make order to extend the period of applicability of section 144,
not more than the period of six months.

As this section confers full power to magistrate to take certain action to apprehend danger
in case of emergency, the Magistrate should apply his mind to see whether the matter is
of such nature which requires an order under this section, as otherwise a matter to
disperse unlawful assembly creating public nuisance can be dealt with under section 133
of Cr.P.C
Difference between section 144 and section 133 of the Cr.P.C

Cases of ordinary public nuisance are covered under section 133; while, cases of urgency
are covered by section 144. Further, under the latter, the very urgency of the case
demands the laying aside of the usual formalities and preliminaries to the making of an
order. While, under section 133, the Magistrate acts on the report of a police officer or
other information; there is no such requirement under section 144.

Who all are liable to be penalised for being a Part of an unlawful assembly?

Section 142 of Indian Penal Code

Whoever, being aware of facts that makes any assembly an unlawful assembly,
intentionally joins that assembly or continues in it, is said to be the member of that
unlawful assembly.

In the above section, to become a member of an unlawful assembly there should be a

presence of knowledge and intention on part of the person joining such assembly.

Punishment for Unlawful Assembly

i) Under Section 143 of I.P.C. whoever is a member 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.

ii) Under Section 144 of I.P.C. whoever joins unlawful assembly armed with a deadly
weapon which is likely to cause death; shall be punished with imprisonment for two
years, or fine or both.

iii) Under Section 145 of I.P.C. whoever joins or continue to be in unlawful assembly,
knowing it has been commanded to disperse, shall be punished with imprisonment for 2
years, or fine, or both.

iv) Under Section 149 of I.P.C. where an assembly commits an offence than every
member of that unlawful assembly, who knew such offence is likely to be committed,
will be guilty of that offence. And be punished for the term same as for the offence.
Conclusion

 Hence, section 144 is only to be used in an emergency situation to prevent any

riot or to maintain public order or otherwise public nuisance by an unlawful
assembly is dealt under section 133 of the Code of Criminal Procedure, 1973.
 On the other hand ‗knowingly‘ being a part of an unlawful assembly‘s object,
would make a person equally liable for punishment irrespective of his role in the
assembly.
 Thus, Sections 144 and 133 lay down reasonable restrictions on Freedom to
assemble, guaranteed under article 19 Clause 1(b) of the Constitution of India
and do not infringe any fundamental rights of any citizens, until or unless
applied arbitrarily.

Section 141of Indian Penal Code, 1860 mentions the definition of unlawful assembly
which is an assembly which consists of five or more persons having common object
those are as follows-

 Using or showing of criminal force against the Central Government or any State
Government or Parliament or any State Legislature or any public servant who is
exercising lawful power
 Resisting the execution of law or legal process
 Committing any mischief or criminal trespass
 Using or showing of criminal force to attain possession of any property or
depriving any person from exercising his right of enjoyment or other
incorporeal rights
 Using or showing of criminal force to compel a person to do what he is not
legally bound to do or to omit which the person is legally entitled to do
Section 142 deals with being a member of unlawful assembly. Whoever intentionally
joins in or continues in unlawful assembly knowing the facts is said to be a member of
unlawful assembly. The mere presence of a person in that assembly does not constitute
such person as a member of unlawful assembly. Every member of unlawful assembly
must necessarily have a common object and should intentionally join that assembly. He
or she is not a member of unlawful assembly when he withdraws from the unlawful
assembly. When a member of unlawful assembly has common object but could not
proceed due to the physical weakness or any other injury then such person is said to
constitute a member of unlawful assembly. Every member of the unlawful assembly is
vicariously liable for the offence committed by the member in an unlawful assembly by
the prosecution of the common object.

Section 143 imposes punishment on the person who is the member of the unlawful
assembly. This section gives punishment of imprisonment which may extend up to six
months or fine or both. When a person joins the unlawful assembly armed with deadly
weapons which has the probability of causing death, then the punishment provided is
imprisonment for a term which may extend to two years or fine or both as mentioned in
Section 144.

Case Laws –

State of U.P vs Sughar Singh[i]:

Five accessed were lying in a bush on either side of a lane, with armed guns. When the
deceased came near, the accused 4 and 5 exhorted him, and accused 2, 3 and 4 shot the
deceased with their guns respectively. Accused 1, 2 and 3 threatened the witnesses. The
trial court held that all of these were sufficient to come to the conclusion that these five
accused had constituted an unlawful assembly and has members had common object to
kill the deceased. They had a prearranged plan. The trial court convicted the accused. On
appeal, the high court quashed the conviction. The Supreme Court upheld the conviction
against the accused.

Moti Das vs State of Bihar[ii]

It was held that an assembly was lawful but later became unlawful when one of the
members called on the others to assault the victim and all the members started chasing
the victim and hence constituted unlawful assembly.

Rioting

The term ‗rioting‘ has been conceptualized under Section 146 of Indian Penal Code
which states that every member of an unlawful assembly will be liable whenever they use
the means of ‗force‘ or ‗violence‘ in prosecution of the common object and are guilty for
the offence of rioting. Section 147 covers the punishment of rioting which is
imprisonment which may extend to two years or with fine or both.
The term of punishment increases to three years imprisonment or fine or with both when
rioting is committed armed with deadly weapons. Thus, a riot is a type of civil disorder
by disorganized groups of the society lashing out in a sudden and intense rash of violence
against authority, property or people. While individuals may attempt to lead or control a
riot, riots are typically chaotic and exhibit harsh behavior, and usually generated by civil
unrest. Riots occur in reaction to a perceived grievance.

Affray

Sections 159 and 160 of Indian Penal Code deals with the offence of affray. Affray is
committed when two or more persons fight in the public place so that it affects the public
order and peace. Depending upon the actions done those engaged in Affray may be liable
to unlawful assembly, riot and other offences. The seriousness of the effect lies in the
effect that the behavior of the accused person may put the members of the public in fear.
Beyond the mere use of words, there must be some threatening against a person or
persons. Section 160 deals with the punishment for Affray. The punishment may extend
to one moth or fine which may extend to one hundred rupees or both.

Ingredients of affray

 Fight must be taken place between two or more persons,

 must take place in some public place,
 should disturb the public peace.

Case laws

Kashthurirangam In re(1970)

Held that active participation is not necessary for actual violence. Some may encourage
by words, others by signs and others again may actually cause hurt and yet all would be
equally guilty of rioting.

Babu Ram and Anr. vs Emperor[iv]

In this case, a person named Kali Das was attacked by two persons, Babu Ram and Bhim
Singh in public and in self defence Kali Das also attacked on them and held that there
was no offence of affray between Kali Das and other two person

SECTION 499 – DEFAMATION UNDER IPC

 According to Salmond ―Defamation is the publication of a false and defamatory
statement about another person without lawful justification‖. Every person has a right to
reputation which is an implicit right in Article 21. Art 19(1) (a) guarantees freedom of
speech and expression but the same is subject to the reasonable restrictions and
defamation is one such restriction imposed by the constitution. In India, in civil
defamation intention is immaterial but in criminal defamation under IPC in 499 intention
plays a crucial role in establishing the offence of defamation.

II. INGREDIENTS OF DEFAMATION UNDER IPC

Following are the three essential ingredients of criminal defamation under IPC (Section
499)
1. Making or publishing, any imputation concerning any person.
2. Such imputation must have been made by –
3. words, either spoken or written or; or
4. signs; or
5. Visible representations.
6. The said imputation should have been made with intent to harm or knowing or having
reason to believe that it will harm the reputation of such person or defame him.

III. EXPLANATION OF ESSENTIALS OF DEFAMATION UNDER IPC

Making or publishing any imputation concerning any person – The
word ‗publication‘ means bringing the defamatory material to the notice of the others,
other than the accused and the injured. The word ‗imputation‘ means an accusation which
is something more than an expression of suspicion. The accusation is made to injure the
reputation of another and it is made intentionally to defame the other. It is highly
important that the imputation should be against a specific person or persons. But it is not
necessary that the person concerned should be an individual, it can be anyone whose
identity can be established.

Case law: S.khushboo V.kanniamal and Anr

Held: A complaint filed had been dismissed on the ground that the statement of the
accused was given to a news magazine calling for acceptance of pre-marital sex and
therefore it did not attack the reputation of any one in particular.
 Publication of defamatory matter in newspaper – In Ashok Kumar Jain v. State of
Maharashtra, it was held that where a defamatory statement is published in a newspaper
against a person, then the editor, printer and publisher who has made the declaration and
is shown in the paper would be liable for the same.
 Imputation by words – In India a person can be defamed by words either spoken or
written and it does not make any distinction b/w libel and slander as far as it is concerned
as an offence under IPC. But in English Law, defamation is a crime only when it is
committed by writing, printing or some similar process. Some examples of ‗visible
representations‘ are caricature, pictures etc.
 Imputation causing harm – The last ingredient is that there must be an intention to harm
the reputation of the complainant or knowledge that the imputation will harm the
reputation of such person. The word ‗harm‘ means lowering the image of a person in the
estimation of others.
The test to determine as to whether a statement is defamatory or not is that whether a
person of reasonable prudence to whom the publication was made would understand it in
a libellous sense.
Explanation 1 – It provides that a statement may amount to defamation if that would have
caused harm to reputation of that person if he would have been alive and is intended to
hurt the feeling of his family and relatives.
Explanation 2 – It provides that it may amount to defamation to make an imputation
concerning a company or an association or collection of persons (must be an identifiable
group) as such.
Explanation 3 – If the imputation is in the form of an alternative or expressed ironically
(innuendo) it may amount to defamation.
Explanation 4 – This explanation makes it clear the statement to be defamatory must tend
to lower the man‘s character in the estimation others and not himself. Therefore,
describing a woman that she has paramours wherever she goes, is per se defamatory.
IV. EXCEPTIONS TO DEFAMATION UNDER IPC
This section provides defences to a charge of defamation. It provides for 10
exceptions which are as follows :
Exception 1 – Following are the requirements of this section :
1. The impugned statement must be shown to be true AND
2. That its publication must be shown to be for public good.
It is sufficient if statements are shown to be substantially true and whether or not it is for
the public good is a question of fact. (Good faith does not matter)
Exception 2 – If anyone expresses his opinion in good faith regarding the conduct of the
public servants while discharging his functions, it will not amount to defamation. But it
must relate to actions of public servants. Good faith presupposes a reasonable degree of
care and caution in making an imputation.
 Exception 3 – If anyone expresses his opinion in good faith regarding the conduct of any
person or publicists (politicians etc. ) touching any public question, it will not amount to
defamation. The third exception (any person) is wider in its ambit as compared to the
second exception (public servants).
Exception 4 – If anyone publishes a substantially true report of the proceedings of a court
of justice or of the result of any such proceedings, it will not amount to defamation. The
report should be without malice. (Good faith does not matter)
SECTION 500 – PUNISHMENT FOR DEFAMATION UNDER IPC
This section provides that a person who defames another can be punished with simple
imprisonment which may extend up to 2 years or with fine or both. The offence under
this section is non-cognizable, bailable and is triable by court of sessions.

Rekhabai v, Dattatraya

Held : It was held in this case that where an offence of defamation has been committed
through a letter, then the case can be tried at the place where the letter was written and
posted or at the place where the letter was received and read.

SECTION 501 – PRINTING OR ENGRAVING DEFAMATORY MATTER

For the application of this section the following essentials shall be met :

1. The accused printed or engraved a defamatory matter and

2. The accused knew or had reason to believe that such matter was defamatory.
A person who commits an offence under this section can be punished with simple
imprisonment which may extend up to 2 years or with fine or both.

SECTION 502 – SALE OF PRINTED OR ENGRAVED DEFAMATORY

MATTER
This section supplements the provisions of the previous section. Following are the
essentials of this section :

1. Selling or offering to sell any printed or engraved substance and

2. Knowing that such substance contains defamatory matter.
A person who commits an offence under this section can be punished with simple
imprisonment which may extend up to 2 years or with fine or both.
Difference between Crime and Tort
Legal terms often generally become a source of confusion. Two of the terms are Crime and
Tort. Sometimes, people use them interchangeably but that is not the reality. Both terms are
completely different from each other. Each of them has separate features and consequences.
It becomes very essential to understand the real existence of these legal terms in order to
understand the legal system properly. In this article, we will look at the meaning of crime
and tort, and
Crime Tort

A Crime is wrongdoing which hampers the A Tort is wrongdoing which hampers the
social order of the society we live in. individual or his property.

Crime happens mostly intentionally. It is a It happens mostly due to negligence. Tort is

deliberate act which people do to get some hardly intentional. But it is still damaging
unlawful benefits. to the individual.

Crime impacts the well-being of society in

Tort impacts the well-being of the
general. The legal bodies try to give
individual. The aggrieved party seeks
proportional punishment to law offenders in
compensation for the damages.
order to maintain peace in society.

Crimes are presented in the Criminal Court. Torts are presented in the Civil Court.

Compensation for crimes is already

mentioned in the book of law. Whenever the
court has to decide the amount of Compensation for torts is given on the basis
compensation, they simply refer to the law of the damages to the aggrieved party.
book. In certain cases, judges use their
personal judgments too.

Theories of crime
There are different kinds of punishment that a person can face. In order to understand them,
first, we need to understand the theories of the punishment. There are majorly four theories
of punishment.

These theories are the deterrent theory, retributive theory, preventive theory, and
reformative theory. We will discuss these theories in length below.

Deterrent Theory
The retributive theory assumes that the punishment is given only for the sake of it. Thus, it
suggests that evil should be returned for evil without taking into consideration any
consequences. There are two theories in which this theory can be divided further. They are
specific deterrence and general deterrence.

In specific deterrence, punishment is designed such that it can educate the criminals. Thus,
this can reform the criminals that are subjected to this theory. Also, it is maintained that the
punishment reforms the criminals. This is done by creating a fear that the punishment will
be repeated.

While a general deterrence is designed to avoid future crime. So, this is done by making an
example of each defendant. Thus, it frightens the citizens to not do what the defendant did.

Retributive Theory
Retribution is the most ancient justification for punishment. This theory insists that a person
deserves punishment as he has done a wrongful deed. Also, this theory signifies that no
person shall be arrested unless that person has broken the law. Here are the conditions
where a person is considered as an offender are:

 The penalty given will be equivalent to the grievance caused by the person.

 Performed a crime of certain culpability.

 That similar persons have been imposed for similar offenses.

 That the action performed was by him and he was only responsible for it. Also, he had
full knowledge of the penalty system and possible consequences.
 Preventive Theory
This theory has used a restraint that an offender if repeats the criminal act is culpable for
death, exile or imprisonment. The theory gets its importance from the notion that society
must be protected from criminals. Thus, the punishment here is for solidarity and defense.

The modern criminologists saw the preventive theory from a different view. They first
realized that the social and economic forces should be removed from society. Also, one
must pay attention to individuals who show anti-social behavior. This is because of
psychological and biological handicaps.

Reformative Theory
Deterrence and retributive are examples of classical and non-classical philosophies. The
reformative theory was born out of the positive theory that the focal point of crime is
positive thinking. Thus, according to this theory, the objective of punishment needs to be
reformation by the offender.

So, this is not a punishment virtually but rather a rehabilitative process. Thus, this process
helps in making a criminal a good citizen as much as possible. Furthermore, it makes the
citizen a meaningful citizen and an upright straight man.

Offences Against The State

All crimes are seen as offences against the state or the government, some of them against
the state's existence, such as treason, sedition, and rebellion.

 Waging war
The offences against the state lie under chapter VI of Sections 121-130 in the Indian
Penal Code. The purpose of these sections is to ensure the state‘s safety. It can be
protected by giving severe punishments in case of offences against the state, such as life
in prison or capital punishment.

All states or countries have this same right of self-preservation as their main subjects.
Crimes such as waging war or treason against the government lie under Section 121,
assaulting high-rank officers like the president or governor lie under Section 124, and
indulging in the escape of a state prisoner or a prisoner of war lies under Sections 128 to
130
 Waging war is an attempt to fulfil any purpose of public nature through violence. It
occurs when several people assemble and rise against the state to attain any object of
general nature by force or violence. To commit an offence against the state, the purpose
and the intention are taken into consideration and not be murdered or forced.

Sections 121 to 123 of the Indian Penal Code deal with waging war against the
government. The following are considered as offences that need to be proven to
constitute an offence against the government under Section 121:

 Wage war
 Attempted to wage a war
 Abetted the waging of war

The preparation of war against the government lies under Section 122 of the Indian Penal
code, and the essentials are:

 The confiscation of arms or men from the accused person

 Getting ready to wage war against the state or government
 A war must be started against the state

Section 123 deals with the secrecy of design to wage war, and the essentials of Section
123 are:

 Proof of a method or design that is prepared in order to wage war against the
government.
 The act should be done in secrecy to start the war.
 The person should be aware of the secrecy or the design of the war.

Section 124-A deals with sedition. Sedition is the attempt made by meetings, speeches, or
publications to disturb the state‘s peace, which does not amount to treason. As per
Section 124-A, the following are the two essentials of sedition:

 Bringing or attempting to get hatred or disaffection towards the government established

by law in India.
 Such acts or attempts can be carried out by words, science, or visible representation.

The punishment for sedition under Section 124-A is life imprisonment, to which the state
can also add a fine, or imprisonment up to 3 years to which a fine can be added, or with
only a fine.
 Waging war against a power

Waging war against or attacking any Asiatic Power in union with the Government of
India lies under Section 125 in the Indian Penal Code. In this scenario, the accused
person should have waged war against the state or provoked the waging of war. The
punishment for anyone violating this section is life imprisonment, or imprisonment for
seven years, or a fine in some cases. The essentials of Section 125 are:

 An Asiatic state with an international influence.

 This state should be other than India.
 The state should be in alliance with the Government of India.

Assault on high-ranking officials

Under Section 124 Indian Penal Code, assaulting high-ranking officials, such as the
president or the governor, etc., should have been done in order to compel the governor or
any high officials to stop them from using their lawful powers. The essentials of Section
124 are:

 The offender should have attacked a high-ranking official of the state.

 The offender should have restrained any high-ranking officials of the state wrongly.
 The offender attempted to attack the high-ranking officials of the state.
 The high-ranking officials of the state should be instigated by the accused person in order
to compel them to use their lawful powers in an unlawful way.

Escape of a state prisoner or a prisoner of war

Offences against the state in Sections 128 – 130 of the Indian Penal Code include the
escape of a prisoner of war or a state prisoner. A state prisoner is a person whose
imprisonment is necessary to maintain the peace and security of the state from internal
disturbances and foreign hostility.

The essentials of Section 128 are:

 The offender should be a public servant of the state.

 The prisoner should be a person who has committed a crime against the state or should be
a war prisoner.
 The accused person should have custody of the prisoner.
 The accused servant should have helped the prisoner to escape.

The essentials of Section 129 are:

 Offenders should be public servants, necessarily when committing the offence.
 The prisoner should be in the custody of the offender.
 The prisoner of state should be rescued or have escaped.
 Such an escape or rescue should be due to the negligence of the accused person.

The essentials of Section 130 are:

 The liable person should knowingly aid or attempt to help, rescue, or conceal the prisoner
of state or war.
 The person should be in prison.
 The act should be done knowingly by the person accused.

Conclusion

The dissections mentioned above play an essential and crucial role in regulating and
maintaining public order regarding offences against the state. The people are free and
have the right to criticise the government‘s policies or lists, but they cannot and should
not misuse their liberty to cause any harm to the people around them or the government.
Waging war against the state or government is a punishable offence, and these sections
also protect the high officials, such as the president as well as the governor of every state.

Difference Between Criminal Misappropriation & Criminal Breach of Trust

The Offences of Criminal Misappropriation and Criminal Breach of Trust are given
under the head of crime against property in IPC.

Section 403, IPC defines Dishonest misappropriation of property as, ―Whoever

dishonestly mis-appropriates or converts to his own use any movable property.‖

Whereas, Section 405,IPC defines Criminal breach of trust as, ―Whoever, being in any
manner entrusted with property, or with any dominion over property, dishonestly
misappropriates or converts to his own use that property, or dishonestly uses or disposes
of that property in violation of any direction of law prescribing the mode in which such
trust is to be discharged, or of any legal contract, express or implied, which he has made
touching the discharge of such trust, or wilfully suffers any other person so to do,
commits ―criminal breach of trust.‖

In the case of Badsudeb Patra v. K.L. Haldar (32 C.W.N. 641), Where the accused got a
loan of certain ornaments from the complainant for use on an occasion on the
understanding that they should be returned after the purpose was served and the accused
failed to return them, it was held that the accused was guilty under Sec. 406 and not Sec.
403 of Indian Penal Code, 1860.