ipc law
ipc law
LAW
SUBJECT:LAW OF CRIMES
(I.P.C.)
COURSE:B.A.;LL.B.
CODE: BL-5001
INDIAN PENAL CODE(I.P.C)
• IPC came into force in 1860.
• It was drafted by First Law Commission headed by Lord Macaley.
• It received the assent of Governor on 6th October 1860 but came into
force on 1st January.1862.
• Concept of Crime: A crime is an act of commission or omission which is
contrary to law, prejudicial to community and for which punishment can
be inflicted in a judicial proceeding taken in the name of the state.
• It is directly prejudicial to community while civil injury prejudices a
private right.
• Many crimes include tort but every tort does not amount to crime
• Elements of Crime: Some important elements of crime are-
• Intention,
• Mens Rea and Knowledge
• Other elements of Crime are:
• Human Being and Actus Reas
• Hon’ble Justice KrishnaIyer held
• “I believe in operation Valmiki because every saint has a past and every
criminal has a future”
Doctrine of Mens Rea:
• It is the principle of English criminal law that a crime is not committed
if the mind of the person doing the act is innocent.
• It is based on Roman Maxim-
• “Actus Non Facit Ream Nisi mens sit rea”
• Which means intent and act both must concur to constitute crime.
• As a general rule their must be a mind at fault but it is not an
inflexible rule and a statute may be so framed as to make an act crime
whether there has been any intention or not.
• As a general rule their must be a mind at fault but it is not an inflexible rule
and a statute may be so framed as to make an act crime whether there has
been any intention or not.
• Now a days crimes are much accurately defined by statutes. Now when all
offences are well defined so the doctrine of Mens rea has lost its importance.
• Modern developed criminal law imposes strict liability in various
circumstances For eg. In matters of public safety, health, Motor vechiles Act,
Arms Act etc.
• In Sherras V. De Rutzen it has been held that mens rea will be presumed in
every statute unless otherwise provided.
• https://www.e-lawresources.co.uk/Sherras-v-De-Rutzen.php
• In State V. M.H. George AIR 1965 S.C. Pg 722 it has been held that unless
statute specifically leaves mens rea from essential elements of an offence it
will be necessary to prove guilty mind for one’s conviction.
https://indiankanoon.org/doc/1564263/
• Mens Rea has not been defined in IPC. Every offence is well defined in IPC.
Every offence is well defined in IPC and definition states not only the Act but
also the state of mind while doing the act
• For eg: *Theft must be committed dishonestly
• *Murder- Intentionally or Knowingly
• Thus, in IPC each definition of offence is self sufficient and there is no need
of general doctrine of Mens Rea.
Concept of Strict Liability:
• Ordinarily a mind at fault is necessary to constitute a crime. But there are some
crimes which do not require any kind of legal fault on the part of the accused,
• Crimes requiring fault on the part of some one but the accused are the crimes of
vicarious liability and those not requiring fault on the part of anyone are known as
crimes of strict liability.
• These are the crimes in which the necessity for mens rea or negligence is wholly or
partly excluded.
• Strict liability means liability to punitive sanctions despite the lack of mens rea.
• The question arises on the construction of a statute that penalizes conduct without
express reference or with only a partial or limited reference to the mental state of
the wrong-doer.
• The general principle of criminal jurisprudence is that although the statute is silent
on the point a requirement of mens rea it is to be implied.
• Strict liability is a doctrine that holds a person liable for any injuries or
damages caused by their products or actions, even if they had no intent to
harm and were not at fault.
• An injured party does not have to prove negligence or fault in order to receive
damages under strict liability.
• Even if a defendant uses safety precautions and posts warnings, if the action
falls under the theory of strict liability law, they will be held liable.
• The idea behind strict liability is that the defendant's actions are of such
dangerous propensity that it is reasonably foreseeable someone could be
injured. It is meant to encourage people who engage in these types of
behaviors or actions to use safety measures.
• The injured party does not have to prove fault on the part of the defendant,
but they do have to show that the hazardous conditions caused their injuries.
In tort law, the doctrine of strict liability does not look to a defendant's
intent, negligence, or lack of reasonable care, it simply looks at the
dangerous activities and whether those actions caused the plaintiff's injuries.
An example of a strict liability claim may be when a consumer buys a product
that turns out to be defective or dangerous and is then injured by using it.
Another example may be injuries caused by someone's dangerous animal.
This lesson will delve deeper into the different categories of strict liability.
• Common Intention and Common Object-
• Introduction:
• There are some provisions in the Penal Code which determine the
liability of a person committing a crime in combination with some others.
• In all such provisions a joint liability is created either because the
intention is common or the object is common to all the persons forming
a group alleged to have committed a crime.
• Under the Indian Penal Code the criminal liability of a person is
determined according to the manner in which he becomes associated
with the commission of crime.
• Normally a person may be a participant in a crime in the following four
ways-
• (i) When he himself commits a crime; or
• (ii) When he shares in the commission of it;
• (iii) When he, with a view to the commission of crime, sets some third agency to
work, that is, he makes some third party his own agent for committing the
crime;
• (iv) When he helps the offender, after the commission of the crime, in screening
him from justice
• The third and the fourth are related to the law of abetment. The second shall be
discussed here as it deals with the principle of joint liability.
• Common Intention:
• Sec. 34 provides that when a criminal act is done by several persons in
furtherance of common intention of all each is liable for that act in the same
manner as if it was done by him alone.
• Sec. 34 is a rule of evidence and does not constitute any distinct substantive
offence.
• In Mehboob shah V. Emperor it has been held that liability depends
upon common intention in furtherance of which criminal act is done
and once it has been established then anyone can be held liable as if
done by him alone. https://indiankanoon.org/doc/256823/
• In Hari om V. State AIR 1993 S.C. PG 666 four persons went to a
person’s house and started to abuse him. Three were having knife and
had stick. One old neighbor opposed it, three attacked the old man
and 4th obstructed who were coming to help the old man. Held that
all the 4 are liable. https://indiankanoon.org/doc/691691/
• In Barendra Kumar Ghosh V. Emperor Lord Sumner opined that
Participation is necessary for Sec. 34 they also serve who stand and
wait.
https://indiankanoon.org/doc/263845/#:~:text=The%20petitioner%20B
arendra%20Kumar%20Ghose,sentenced%20the%20prisoner%20to%20
death
.
• Elements/ Ingredients of Common Intention: To attract the principle of joint
liability under section 34 there should be-
• (i) Some criminal act;
• (ii) Criminal act done by more than one person;
• (iii) Criminal act done by such persons in furtherance of the common
intention of all of them;
• (iv) Common intention in the sense of a pre-arranged plan between such
persons;
• (v) Participation in some manner in the act constituting the offence by the
persons sought to be prosecuted;
• (vi) Physical presence at the time of commission of crime of all the persons;
but physical presence of all is not necessary in some cases.
• It was held in State of M.P. v. Deshraj Cr.L.J. 2004 pg.1415 S.C. that section
34 of Penal Code has been enacted on the principle of joint liability in the
doing of a criminal act.
• Sec. 34 is only a rule of evidence and does not by itself create any distinct
substantive offence.
Common Object:
• Section 149 IPC lays down that
• if an offence is committed by any member of an unlawful assembly
• in prosecution of common object of that assembly or such as
members of that assembly knew to be likely to committed in
prosecution of that object then
• every person, who is a member of such assembly at the time of
committing that offence, is guilty of that offence.
• For example: Some persons including B are members of an
unlawful assembly having common object of killing Z. they
knew that B is also a pocket picker and he picks a pocket,
other members will not be held liable as it was not in
furtherance of common object.
Ingredients: The following are the ingredients of this offence-
(1) Some offence must be committed by any member of an
unlawful assembly; and
(2) Such offence must have been committed in prosecution of
the common object of the assembly, or such as the members
of the assembly knew to be likely to be committed .
• Thus, This section is divided into two parts-
• 1) offence is committed by a member of an unlawful assembly in
prosecution of common object of that assembly, and
• 2) an offence which the members of that assembly knew to be likely to
be committed in prosecution of the common object.
• Case Laws:
• In Yunis V. State of M.P. 2003 Cr.L.J. 817 S.C. the Apex Court held
that presence of accused as part of unlawful assembly is sufficient for
conviction even if no overt act is imputed to him.
• In Mahmood V. State of U.P. 2008 Cr.L.J. It has been held that
once it is established that a person was a member of unlawful assembly,
prosecution need not to establish any specific overt act.
Difference between Sec.34 and
149 IPC:
• Sec. 34 and 149 both deal with Constructive Criminal Liability, both
have some resemblance but has some overlapping but there is much
difference between their scope and applicability.
• Sec. 34 is only a rule of evidence which creates a joint liability but
does not create a substantive offence but sec. 149 is constructive.
• The keen distinction between the two has been very nicely pointed
out in Brathi V. State AIR 1991 S.C. Pg. 318
https://indiankanoon.org/doc/247105/ and Mannan V. State AIR
1971 S.C. Pg. 1467 as follows- https://indiankanoon.org/doc/238171/
The Key Point of distinction between Sec.34 and
149 are:
COMMON INTENTION COMMON OBJECT
1. Sec. 34 provides a rule of evidence and does 1. Sec. 149 creates a specific offence when it
not by itself create a specific offence but, postulates an unlawful assembly of 5 or more
persons having a common object as defined in
sec. 141.
2. The leading feature of sec. 34 is active 2. under sec 149 liability arises by reason of
participation in commission of crime but membership.
3. The principal element of sec. 34 is common 3. u/sec 149 it is common object to commit a
intention to commit a crime while, crime.
4. Sec. 34 could apply when doers are less then 5 4. But sec. 149 requires unlawful assembly.
Common Intention and Common
Object in Bhartiya Nyaya
Sanhita,2023 (BNS)
• Section 34 IPC i.e. Common Intention is replaced by Sec.3(5)
BNS,2023 and
• Section 149 IPC i.e. Common Object is replaced by Sec. 190
BNS,2023.
• It is to be noted here that the sections have only be replaced and
main text remains the same.
Section 108A IPC/Section 47 BNS, 2023 deals with Abetment in India of offences outside India.
Criminal Conspiracy:
• Chapter 5 A and Section 120 A, 120B provides for Criminal Conspiracy.
• Wherein Sec. 120A defines Criminal Conspiracy and,
• Sec. 120B provides the punishment for it.
• Definition of Criminal Conspiracy:
• Section 120 A IPC provides the definition of criminal conspiracy. It says-
• When two or more persons agree to do, or cause to be done,—
• (1) an illegal act, or
• (2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy
• Provided that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act besides
the agreement is done by one or more parties to such agreement in
pursuance thereof.
• Explanation clarifies that It is immaterial whether the illegal act is the
ultimate object of such agreement, or is merely incidental to that
object.
• Thus, A conspiracy consists not merely in the intention of two or more
but in the agreement of two or more to do an unlawful act by
unlawful means.
• So long as such a design rests in intention only it is not indictable but
as soon as two agree to carry it into effect, the very plot is an act in
itself and becomes punishable once anything is done towards its
commission.
• In Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra 2008(4) Cr.L.J.
pg. 3872 S.C. it has been held that to constitute an offence of conspiracy
meeting of mind of two or more persons is the sine qua non. But it may not
be possible to prove agreement between them by direct proof. The
objective of conspiracy can be inferred from surrounding circumstances and
conduct of accused.
https://indiankanoon.org/doc/65700/
• In Ajay Aggarwal v. Union of India 1993 Cr.L.J. S.C. Pg.2516 it has been held
that Conspiracy itself is a substantive offence different from the offence to
commit which the conspiracy was entered into.
• It is a continuing offence till it is executed or rescinded or frustrated by
choice or necessity.
• It was further held that each conspirator need not know details of the
scheme.
• https://indiankanoon.org/doc/928322/
• It was held by the Supreme Court in Topan Das V. State AIR 1956 S.C. Pg. 33 and Central
Bureau of Investigation V. V.C. Shukla AIR 1998 SC Pg. 1406 that where the prosecution failed
to prove that one of the two accused was a party to a criminal conspiracy, the charge of
criminal conspiracy cannot stand against the other as in conspiracy there must be at least two
persons. In other words at least two necessary for Sec. 120B because one cannot conspire with
himself.
• https://supremetoday.ai/doc/judgement/00100010022
• https://indiankanoon.org/doc/320053/
• In State of Tamil Nadu v. Nalini 1999 Cr.L.J. S.C. Pg.3124, commonly known as Rajiv Gandhi
assassination case, it was held that the association of the accused with main accused or even
his knowledge about conspiracy would not make the accused a conspirator because
agreement is the sine qua non of offence of conspiracy.
https://indiankanoon.org/doc/194120/
• In Kehar Singh V. State of Delhi Administration AIR 1988 S.C. Pg. 1883 the case of murder of
Prime Minister was against four persons, two were actual attackers and remaining two were
actual attackers and remaining two were Conspirators, one of them was released due to lack of
evidence and regarding Kehar Singh it was found that he had confidential talks with attackers,
• https://blog.ipleaders.in/kehar-singh-ors-vs-state-delhi-admn/
• Tried to live away from his family, he was held to be conspirator and it was
observed that the evidence of conspiracy is not generally direct but is
provided by the circumstances.
• So in abetment and conspiracy principle of closeness to offence or
proximity of crime is irrelevant.
• Punishment of criminal conspiracy: Section 120 B provides that
• (1) Whoever is a party to a criminal conspiracy to commit an offence
punishable with death, imprisonment for life or rigorous imprisonment for
a term of two years or upwards, shall, where no express provision is made
in this Code for the punishment of such a conspiracy, be punished in the
same manner as if he had abetted such offence.
• (2) Whoever is a party to a criminal conspiracy other than a criminal
conspiracy to commit an offence punishable as aforesaid shall be punished
with imprisonment of either description for a term not exceeding six
months, or with fine or with both.
•Criminal Conspiracy in Bhartiya Nyaya
Sanhita,2023 (BNS)
• Section 120A, 120B IPC i.e. Criminal Conspiracy and its punishment is
replaced by Sec. 61 BNS,2023.
• It is to be noted here that the sections have only be replaced and main
text remains the same.
• Act of child: Sec.82 provides that nothing is an offence done by a child under 7 years
of age.
• Sec. 83 provides that nothing is an offence 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.
No Offence
• Sec. 83 Act of child from 7 to 12 years
Partial Incapax
• A child under 7 years of age cannot be guilty of any offence because child of such
a age is attached with the legal concept’ Doli Incapax’ and no discretion can be
imposed upon such a child.
• But in case of child between 7 to 12 years his capacity to commit offence depends
upon his maturity of understanding.
• If no evidence is produced from either side court will presume matured
understanding.
• In Heera Lal Case AIR 1977 S.C. Pg. 2236 a child just short of 12 years
along with her 2 brothers killed a person by sword and no evidence was
given from either side on maturity of understanding, held that he is guilty
at least u/sec. 326 IPC. https://indiankanoon.org/doc/576286/
• due to intoxication,
•Sec. 90 provides that following consents are not valid under IPC –
(i) If consent is given under fear of injury or under misconception of fact and
doer knows it.
(i) If consent is given by a person who, due to unsoundness of mind or
intoxication, is unable to understand the nature and consequence of
act consented.
• If consent is given by a child under 12 years of age.
• Sec. 92 provides that any act done in good faith for the benefit of a person
without his consent is not an offence due to any harm caused to such person
but it is necessary that circumstances must be such that in which it was
impossible for him to signify consent or is incapable of giving consent and it is
not possible to obtain consent from his guardian or lawful in charge.
• Examples: (1) A being thrown from horse is insensible. B a doctor, having no
intention to cause A's death, in good faith for A's benefit operates him and
obtaining his consent was also not possible, has committed no offence.
• (2) A is carried off by a tiger. B in good faith for A's benefit fires on tiger, B
committed no offence.
• (3) A, a child was with B in a house on fire. People hold out a blanket below
and B in good faith for A's benefit drops A & A is killed. B has committed no
offence.
• Explanation clarifies that under Sec. 88, 89 and 90 benefit does not mean
mere pecuniary benefit.
• Sec. 93 provides that any communication given in good faith and for
the benefit of person to whom given is not an offence due to any harm
caused to such person.
• For Example: A, a doctor communicates in good faith to patient his
opinion that he cannot service. Patient dies, A has committed no offence.
•General Exceptions in Bhartiya Nyaya
Sanhita,2023 (BNS)
• Chapter 4 IPC (Section 76 to 106) i.e. General Exceptions is replaced by
Chapter 3 (Section 14 to 44) of BNS,2023.
• It is to be noted here that the sections have only be replaced and main text
remains the same.
• Explanation clarifies that if the person does not know that the doer is a
public servant then his right of private defence will not be affected.
• (ii) Act done by the direction of public servant: Where an act is done or
attempted to be done by the direction of a public servant acting in good faith
under colour of his office and such act does not reasonably cause
apprehension of death or grievous hurt then there would be no right of
private defence even though that direction may not be strictly justifiable by
law.
• Explanation clarifies that if the person does not know that the doer is acting
under direction of a public servant then his right of private defence will not be
affected.
(iii) Time to recourse: In cases where there is time to have recourse to the
protection of public authorities there is no right of private defence.
• In Jaidev case AIR 1963 S.C.P. 612 it has been held that there is no rule that a person
should attempt to escape and run before exercising his right of private defence. He has
a right to defend him standing on his land. Moreover in case of free fight no party has
right of private defence.
• https://indiankanoon.org/doc/1046645/
• In Amjad Khan case AIR 1952 S.C.P. 165 it has been held that if the exercise of right of
private defence by a person is justified then act done by him in defence should not be
assessed on golden scale i.e. if he exceeds minutely then it is not important e.g. one
attacks to commit murder and the victim fighting in defence fires two shots then he is
justified.
• https://indiankanoon.org/doc/1443323/#:~:text=The%20circumstances%20in%20whic
h%20he,would%20be%20caused%20either%20to
• Moreover sec. 99 also provides that in no case right of private defence
extends to inflict more harm than necessary for the purpose of defence.
•General Exceptions in Bhartiya Nyaya
Sanhita,2023 (BNS)
• Chapter 4 IPC (Section 76 to 106) i.e. General Exceptions is replaced by
Chapter 3 (Section 14 to 44) of BNS,2023.
• It is to be noted here that the sections have only be replaced and main text
remains the same.
• Right of private defence of Body and of Property: Sec. 97 divides right of private
defence in following two categories –
(i) Right of private defence of Body: Every person has a right to defend his own body and
the body of any other person against any offence affecting human body.
(ii) Right of private defence of property: Every person has a right to defend property
whether movable or immovable, of himself or of any other person against theft, robbery,
mischief or criminal trespass or against attempt of any of them.
• Extent of right of private defence of body: Sec. 100 provides that right of private
defence of body extends to voluntarily causing death or any other harm in following
cases –
(a)Such assault which may reasonably cause the apprehension that death will otherwise be
the consequence of such assault.
(b)Such assault which may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault.
• (a) Robbery
• (c) Mischief by fire on any building, tent or vessel used as human dwelling or as place
for custody of property
• (d) Theft, mischief or house breaking under such circumstances as may reasonably
cause apprehension that death or grievous hurt will be consequence if right of private
defence is not exercised.
• Sec. 104 IPC provides that when theft, mischief or criminal trespass is
not of any of the descriptions mentioned in Sec. 103, the right of
private defence extends to voluntarily causing any harm other than
death
• Sec. 105 provides that right of private defence of property
commences when reasonable apprehension of danger to property
commences.
• In case of theft it continue till the offender has affected his retreat
with property or assistance of public authorities is obtained or
property has been recovered.
• In case of robbery such right continues as long as offender causes or
attempts to cause death or hurt or wrongful restraint or as along as
fear of instant death, instant hurt or instant restraint continues.
• In case of criminal trespass or mischief such right continues till
offender continues in commission of that offence.
•General Exceptions in Bhartiya Nyaya
Sanhita,2023 (BNS)
• Chapter 4 IPC (Section 76 to 106) i.e. General Exceptions is replaced by
Chapter 3 (Section 14 to 44) of BNS,2023.
• It is to be noted here that the sections have only be replaced and main text
remains the same.
(ii)With the intention of causing such bodily injury as the offender knows to be likely to
cause death of person to whom harm is caused, or
(iii)With the intention of causing such bodily injury which is sufficient in ordinary cause of
nature to cause death.
(iv)With the knowledge that act is so imminently dangerous that it must in all probability
cause death or such bodily injury as likely to cause death.
• For example B fires on A with intent to kill him, A dies, B is guilty of murder.
• A knows that B is suffering from such a disease that single blow can cause his death,
gives blow to B and B dies, A is guilty of murder A fires by top on a group of persons and
kills one of them A is guilty of murder even if he had no meditation in respect of a
particular person. A gives poisoned tea to B to kill him, he takes a sip and puts it aside, c
takes it and dies, A is guilty of murder.
• A beats B who becomes unconscious, A treating him dead throws him on railway line
where he is crushed by train, A is guilty of murder.
• In fact every murder is culpable homicide but every culpable homicide need not to
be murder.
• X driving very fast on crowded road to catch a flight knowing that it may cause death,
• In quarrel between husband and wife, husband hits wife by stick but struck
child in lap held he is guilty of causing grievous hurt or 304A.
• When culpable Homicide is not Murder:
• Sec. 300 IPC provides following exceptions in which culpable homicide is not
murder-
(i)Sudden and grave provocation:- If the offender was deprived of the power
of self control due to sudden and grave provocation and causes death of
person who gave such provocation or of any other person by mistake or
accident then culpable homicide will not be murder.
•But such provocation must not be voluntarily sought or given in
obedience of law or given by lawful exercise of right of private defence. It
is a question of fact.
(i) Exceeding right of private defence: If the offender in good faith exceeds the right of
private defence of person or property and causes death of such person without
premeditation and without any intention of doing more harm than necessary then
culpable homicide is not murder.
(ii)Public servant exceeding his power: If a public servant or a person aiding a public servant
acting for advancement of public justice in good faith exceeds the power given to him by
law and causes death without any ill will then culpable homicide is not murder.
• Sec. 301 deals with the case where death is caused of a person other than intended.
Sec. 302 provides punishment for murder and
• Sec. 304 provides punishment for culpable homicide not amounting to murder. Sec.
303 was providing death sentence for murder by person convicted by life imprisonment.
But in Miththoo Vs. State AIR 1983 S.C.P. 473 Sec. 303 has been declared void and
unconstitutional and has been omitted.
• In Premsagar Vs. Dharamveer 2004 it has been held that every murder is inhuman
but death sentence is not given for every murder. Sec. 301 is also called Doctrine of
Transferred Malice.