IPC NOTES FOR 3RD SEMESTER, Study notes of Land Law

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CONTENTS UNIT - I INTRODUCTION General Definition of Crime Doctrine of Mens Rea Difference between Tort, Crime and Contract General Explanations Important Questions UNIT-II GENERAL EXCEPTIONS AND SOME OFFENCES General Exceptions Abetment Criminal Conspiracy Offences Against Public Tranquility False Evidence Offence Affecting Public Health Important Questions UNIT-III OFFENCES AFFECTING THE HUMAN BODY Offences Affecting Life Hurt Wrongful Restraint and Wrongful Confinement Criminal Force and Assault Kidnapping and Abduction Sexual Offences Unatural Offences Important Questions UNIT-IV OFFENCES AGAINST PROPERTY Theft, Extortion, Robbery & Dacoity Criminal Misappropriation of Property Criminal Breach of Trust Cheating and Mischief Criminal Trespass Forgery, Making False Documents Defamation Important Questions UNIT-V OFFENCES RELATING TO MARRIAGE Special Provision for Women in IPC Cruelty by Husband or Relatives of Husband Criminal Intimidation, Insult and Annoyance Attempt to Commit Offences Important Questions Suggested Readings KA M KU S 3 Strictly for Internal Circulation - KCL Stephen - modified the definition of Blackstone as - "A crime is a violation of right considered in reference to the evil tendency of such violation as regards the community at large." This definition is not fully free from error, it narrows the scope of crime. The definition given by Blackstone and Stephen further stresses that crimes are those breaches of laws which injure the community. Romans define crime as "delicta publica" (Public wrong) and criminal trial as "judica publica (Public Justice). Kenny pointed out that "all the acts that are injurious to the community are not necessarily crimes." One who commits a wrong is said to be liable for it. Liability is bond of necessity that exists between wrongdoer and the remedy for wrong. Penal liability arises when the following two conditions exist - 1. Actus Reus (Guilty Mind) 2. Act Done or Committed DOCTRINE OF MENS REA Guilty mind (Mens Rea): The fundamental principle of liability is that an act alone does not amount to a crime. It must be accompanied by a guilty mind. The Latin maxim "Actus non facit nisi mens sit rea" is a cardinal principle of Criminal Law. 1. The Doctrine of mens rea is based on the Latin maxim "actus non facit nisi men sit rea" 2. The maxim means wrongful act must be done with a guilty mind and then alone criminal liability is to arise. 3. The doctrine originated when criminal law dealt with undefined offences. Today, the offences have been precisely, strictly and accurately and statutorily defined. In that view of the matter the doctrine becomes irrelevant or unnecessary in relation to defined offences. 4. Although the doctrine is unnecessarily concerning the defined offences, yet every such definition incorporates the doctrine through some specific words or expressions forming part of the definition, saying it the other way. Doctrine of mens rea and the IPC 1. The doctrine has no general and direct application to the Indian Penal Code. Penal definitions are meticulous, precise and comprehensive under the code. Therefore, it is correct to say that there is no general application of the doctrine. 2. Every penal definition under the act states the following two things: a) The Act done by the accused person. b) The required state of mind while doing that act. KA M KU S 4 Strictly for Internal Circulation - KCL 3. In view of the above, no room is left for application of general doctrine of mens rea. The definitions are almost self sufficient. If the act of the accused falls within the four walls of the definition it would constitute an offence. Exceptions to the doctrine of mens rea 1. Statutes creating strict liability constitute an exception to the doctrine of mens rea. The exclusion may be either express or by necessary implication. 2. Strict liabilities are created in consideration of public health, public safety, public welfare, matters of food and drugs etc. 3. In the case of Sri Niwas Mal Bairdia, 1947, PC the privy council held that - a) In case of absolute prohibition the question of means rea becomes irrelevant. b) Liability without mens rea may be imposed only in exceptional and limited classes of offences and these offence are comparatively of minor character. 4. In the case of Nathu Lal V/s State of M.P., 1966, Sc the Hon'ble Supreme Court held that. a. Mens rea is an essential ingredient of an offence, but a legislature may enact a law and thereby excuse the requirement of mens rea regarding an offence or a class of offences. b. Unless mens rea has been excluded expressly or impliedly, every penal provision has to be construed in conformity to the doctrine of mens rea rather than against it. c. Merely because a statute is directed to social welfare it cannot be decisively presumed that requirement of mens rea has been done away with (no conclusive presumption). d. In some cases, exclusion of mens rea may be presumed. Such a presumption can be raised where this is absolutely clear from the statute that the subject of statute would otherwise be defeated. 5. There is yet another reason for exclusion of mens rea in cases of absolute or strict liability. Strict liability may be imposed where it is difficult to prove mens rea. DIFFERENCE BETWEEN TORT, CRIME AND CONTRACT The wrongs which are completely less serious are considered to be private wrongs and have been labelled as civil wrongs whereas more serious wrongs, have been considered to be public wrongs and are known as crimes. According to Blackstone: Wrongs are divisible into two sorts or species - private wrongs and public wrongs. The former are the infringement or deprivation of private or civil rights belonging to individuals and latter are breach and violation of public rights or duties, which affect the whole community. 1) Since tort is considered to be a private wrong the injured party himself has to file a suit as a plaintiff. If at any stage the injured party likes he may agree to a compromise with the tort feasor and withdraw the KA M KU S 5 Strictly for Internal Circulation - KCL suit filed by him. 2) In the case of crime, on the other hand, even though the immediate victim is an individual the criminal wrong is considered be to a public wrong and criminal proceedings are therefore brought by the state and not by the injured party. Moreover, in certain exceptional cases law does not permit a settlement in the criminal case between the wrongdoer and the aggrieved party. 3) In the case of tort the ends of justice are met by awarding compensation to the injured party. In the case of crime the wrongdoer is punished. The idea of awarding compensation to the injured party under civil law is to make good the loss suffered by him. The punishment under the criminal law protects the society by preventing the offender from committing further offences and deterring him and other potential offenders from committing further wrongs. Smetimes, the same set of facts may constitute both a tort and a crime. The civil and criminal -emedies in such a case are not alternative but they are concurrent. The wrongdoer may be required to ay compensation under the law of torts; he may also be liable under criminal law. For example, if A digs a ditch on road resulting in inconvenience to public at large A has committed the offence of public isance under section 268 IPC. If X, a passerby, falls into that ditch and thereby gets injured A's act also becomes a tort of private nuisance as against X. A will be punished under criminal law for the offence of public nuisances, he will also be liable to compensate X under torts. Object of Passing Act: The main purpose of passing this Act was to protect society from those people. ho either for their benefit do those activities which directly or indirectly affect people at large and to prevent them. So it became necessary to pass this code. Title and extent of operation of the code: Section- 1. Section 1 provides-"This Act shall be called the Indian Penal Code, and shall extend to the whole of India except the state of Jammu & Kashmir." 2. Section 18 of IPC defines India-"India means the territory of India, excluding the state of J&K." 3. Article 1 of the Constitution of India declares-"India shall be a union of states." 4. Thus the state of J&K is part of political India but it is not India for the purposes of IPC. 15. Fazal AIi, C.J. , as he then was, held that exclusion of a territory postulates the existence of a territory itself; State of Jammu and Kashmir cannot be taken as a foreign territory. 6. Indian maritime area or the continental shelf is included in the territory of India. Indian maritime area extends to 12 nautical miles measured from the base line. 7. Any person (irrespective of his citizenship) is subject to IPC as soon as he entered the Indian Territory. Territorial Operation of the Code 1. Every person shall be liable to punishment under this code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India. Every person within territory of India- Intra territorial operation (Section.2) KA M KU S 8 Strictly for Internal Circulation - KCL same or similar intention. 3) Presence of common intention is a question of facts and circumstances. 4) Common intention must be strictly proved. Courts cannot infer common intention readily. Furtherance of Common Intention 1) Presence of common intention is not enough. Its furtherance must also be proved. 2) Furtherance suggests participation or performance of some role. It was held that in a planned murder, one of the persons played the role of keeping of people from coming to the rescue of deceased. He and others were held guilty of murder u/s 302 read with Section 34.6 3) It is not necessary that the roles should be same. Acts of the accused persons may differ. 4) Word 'Furtherance' enlarges the scope of Sec. 34. The accused persons would be liable for a criminal act done in furtherance of common intention though it is different from what was commonly intended. 5) Where one of the accused persons develops an independent intention, the act done in furtherance thereof shall be his individual act and other co-accused persons would not be liable. 6) In the case of Barendra Kumar Ghosh vs. Emperor 52 IA 4014 (PC) : That act refers to the 'Criminal act' used in Section 34 which means the unity of criminal behaviour which results in some thing for which an individual would be punishable if it were all done by himself alone in an offence. Even if the appealant did nothing as he stood outside the door it is to be remembered that in crimes as in other things "they also serve who only stand and wait." 7) In the case of Mehboob Shah vs. Emperor AIR 1945 PC 118: Common intention implies a pre arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group. Common Intention Must Precede the Criminal Act 1. Common intention must precede the criminal Act; the time interval between them may be narrow or 7wide. In the case of Ram Chander vs. State of Rajasthan 1970 Cr.L.J. 653: It is held that there need not be a long interval of time between the formation of the common intention and the doing of the Act. 8 2. Common intention may develop even on the spur of moment. Difference between Common intention, same or similar intention 9 1) In Mehboob Shah case , it was held that common intention and same intention are different. The difference or distinction may be few but it is real and substantial. 2) Sec. 34 requires common intention. Concerted Action is the essence of the term. In case of same or similar intention there is no concerted action. Framing of Charge U/s 34 is not necessary KA M KU S 9 Strictly for Internal Circulation - KCL 1) Sec. 34 does not create any offence. It is a deemed provision and not a penal provision. It only provides for a rule of evidence. 2) Since Sec. 34 does not create any substantive offence no charge is required to be framed U/s 34. The Principle of Common Object (Section 149 IPC): Every member of an unlawful assembly is guilty of offence committed in prosecution of common Sec. 149 provides: "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members to that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. Ingredients: The following are the essentials of common object: a) There must be an unlawful assembly. b) Any of the members of the unlawful assembly must have committed an offence. c) Offence must have been committed in prosecution of common object. (It includes the offence the likelihood of the commission of which was known to the members) If the above requirements are satisfied all the members of the unlawful assembly would be liable for the offence provided they were members at the time of commission of offence. Unlawful Assembly (Section 141): According to Section 149 IPC- An assembly of five or more persons is designated as 'Unlawful Assembly', if the common object of the persons composing that assembly is: First - To overawe by criminal force, or show of criminal force, the Union or any State Government or Parliament or the Legislature of any state, or any public servant in the exercise of the lawful power of such public servant; or Second - To resist the execution of any law, or of any legal process; or Third - To commit any mischief or criminal trespass, or other offence; or Fourth - By means of criminal force, or by show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth - By means of criminal force, or show of criminal force to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation - An assembly, which was not unlawful when it assembled, may subsequently become an KA M KU S 10 Strictly for Internal Circulation - KCL unlawful assembly. Distinction between Common Intention and Common Object (Sec. 34 & sec, 149) 1. Sec. 34 does not create any substantive Sec. 149 creates a substantive offence. It only provides for a rule of evidence.offence. 2. Common object must be proved to attract Sec. Common intention is necessary to Common intention means concerted action or attract Sec. 34. 149; common Prior meeting of mind of knowledge and sharing of each other's intention. 3. Sec. 34 does not require any unlawful assembly. Unlawful assembly is a condition President for Application of Sec. 149 4. Sec.34 requires participation or performance Sec. 149 does not require of some roles by accused of common intention. Participation by all accused persons. This Sec. imposes liability on persons who are members of unlawful assembly at 5. Framing of charge is not necessary as it Framing of charge is necessary as it contemplates no offence. contemplates a substantive offence. Difference between Section 34 & Section 149 was laid down in Barendra Kumar Ghosh v Emperor 52 IA 40 (PC Similarity: Both are examples of constructive criminal liability. Cooperation by Doing One of Several Acts Constituting an Offence Section-37 Section – 37 The accused must have cooperated in the commission of the offence by doing any of those acts. The accused must have done that act either singly or jointly. If the above conditions are satisfied the accused shall be liable for the commission of that offence. Illustration - 'A' is a jailor. T is a prisoner under his charge. 'A', intends to kill 'Z'. 'A', commits illegal omissions in supplying food to T. 'Z' is much reduced in strength. However the starvation is not sufficient to cause death. 'A' is dismissed from service. 'B' is a new jailor. There is no collusion or cooperation between 'B' & 'A'. 'B' too, commits illegal omissions in supplying food to T. 'B' knows that 'Z' may die. T dies of hunger. Determine the Cr. liabilities of 'A' & 'B'. 'A' is liable for attempt to murder while 'B' is guilty of murder. (as he has knowledge that Z could die). KA M KU S 13 Strictly for Internal Circulation - KCL Other Important Cases are: R. Vs. Prince (1875) LR 154 and R. Vs. Tolson (1889) 23 QBD 168 Act of Judge when Acting Judicially - Section-77: Under this section a Judge is exempted not only in those cases in which he proceeds judicially in the exercise of a power which the law gives him, but also in cases where he, in good faith, exceeds his jurisdiction and has no lawful powers. It protects judges from criminal process just as the Judicial Officers Protection Act, 1850, saves them from civil suits. Act done Pursuant to the Judgment or Order of Court - Section-78: This section is merely a corollary to Section 77. It affords protection to officers acting under the authority of a judgment, or order of a Court of Justice. It differs from Section 77 on the question of jurisdiction. Here, the officer is protected in carrying out an order of a Court which may have no jurisdiction at all, if he believed that the Court had jurisdiction; whereas under section 77 the Judge must be acting within his jurisdiction to be protected by it. Mistake of Law (Section 79): Act done by a Person Justified or by Mistake of Fact Believing himself Justified, by Law. According to Section 79 IPC - "Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it." Section 79 is based on the following Maxims - a) Ignorantia facit excusat b) Ignorantia legis neminem excusat Mistake of Law is not Excusable: Mistake of Law is not excusable. Law presumes that everyone knows the law of the land. The presumption had its basis in public policy. Chaman Lal, 1940 Lahore: Held: The maxim ignorantia juris non excusat has no exceptions. Yet an act done under the mistake of law may be a ground for a concessional punishment. Latif Khan, 1895: Held: A person blindly following orders of his parents, superior or Master cannot avoid liability. In such cases the maxim respondent superior (let the superior be liable) is inapplicable. Justified by Law: Justified by Law means 'Not prohibited by Law' - 2 Keso Sahu v. Saligram : Where the accuseds while helping the police stopped a cart which they in good faith believed to be incorrect, it was held that they could not be prosecuted for wrongful restraint under Section 341 as their case was covered by section 791PC. 3 Raj Kapoor V/s Laxman : The producer of the film Sat yam Shivam Sundaram was prosecuted u/s 292 IPC. The censor board had in sued a certificate for public exhibition of the film. The producer in good faith believed that now he was justified in the public exhibition of the film. Held: In the circumstances of the case the producer may be said to have believed that he was justified by law in the public exhibition of the film. KA M KU S 14 Strictly for Internal Circulation - KCL Accident in Doing a Lawful Act - Section-80 1. Accidents are not excusable. Injuries caused by an accidental act may be excused subject to the fulfilment of requirements of Law. 2. This section exempts the doer of an innocent or lawful act in an innocent or lawful manner and without any criminal intention or knowledge from any unforeseen evil result that may ensue from accident or misfortune. 3. Nothing is an offence which is done : a) By accident or misfortune. b) Without any criminal intention or knowledge i) In the doing of a lawful act. ii) In a lawful manner. iii) by lawful means 4. Illustration: 'A' is at work with a hatchet. The head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of '1\, his act is excusable and not an offence. Accident of Misfortune 1) An effect may be accidental. It is to be seen whether the act done was intentional or with knowledge or not. Any effect caused by an act which was not done with an intention to cause that effect or which was done without a reasonable forcibility of the effect so caused cannot create a liability. 2) Accident and event are not one and the same thing. Accident contemplates something unexpected; it is something which takes place outside the ordinary course of things. Lawful Act: Accident may be a good defence only when the act done was lawful and it was done in a lawful manner and by lawful means and with care but without mens rea. Lack of Care and Cautions: 1) Any injury resulting frorn an act done without due care and caution cannot be said to be accidental or occurring by misfortune. 2) Rangaswamy, 1952, Nag. 93: Accused fired a shot from an unlicensed gun. The court took a liberal view and held that shooting with an unlicensed gun does not debar an accused from claiming immunity under this section. Act likely to cause harm, but done without criminal intent and to prevent other harm Section- 81 1) The principle in Sec. 81 is that where in a grave and sudden emergency one of the two evils is inevitable, it would be logical as well as legal to direct the events so as to suffer the slighter of them. KA M KU S 15 Strictly for Internal Circulation - KCL 2) Sec. 81 of the code in essence adopts the above principle but it adopts those principles only which are conditional. The benefit of this section can be availed if done in good faith for the purpose of avoiding other evils. Lack of mens rea shall be established. 3) Sec. 81 provides:- "Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if : 4) For the purpose of preventing or avoiding other harm to person or property." The harm intended to be avoided is to be judged in reference to following:- a) the nature of the harm intended to be avoided. b) the imminence of the harm sought to be avoided. To avail the benefit of Sec. 81 the accused must plead and prove the following: 1) That the act causing harm was not done with an intention of causing harm (although it was known that the act was likely to cause that harm). 2) That he was acting in good faith while doing the act complained of. 3) That the act complained of was done to prevent any other harm to person or property. 4) That in view of the nature of the harm sought to be avoided the act complained of was justifiable or excusable. R. V/s Dudley & Stephens, (1884): The question was whether the need for self preservation extends to causing harm to an innocent person, and that to what extent it would be justified. Held: Accordingly, the court convicted the accused persons for murdering the minor boy, R. V. Martin, (1889) - Sir James Stephen has Criticized : The decision; he suggests that when the two persons holding a plank after a ship wrecked, and one of them pushes the other off resulting into death of that person would not be an offence. At the best it can be said that he has left such person to a chance of holding some other support. 1. A minimum level of maturity of mind is a must to maintain mens rea. The legislature in its wisdom declared that a child under seven years of age does not have that much maturity of mind which is a must for entertaining a guilty intent. In that view of the matter, law declares a child under seven years of age as doli in capex i.e. one incapable of committing an offence. (Sec. 82) 2. A conclusive presumption of innocence is raised in favour of a child under seven. The fact tha the delinquent child is under seven can give a complete answer to every question and argument of the prosecution. Bakhul Shah, 1866 : The accused purchased for one anna, from a child aged six years, two pieces of cloth valued at fifteen annas, which the child had taken from the house of a third person. It was held that, assuming that a charge of an offence of dishonest reception of property (section 411) could not be sustained owing to the incapacity of the child to commit an offence, the accused was guilty of criminal misappropriation, if he knew that the property belonged to the child's guardians and' dishonestly appropriated it to his own use. Section 83 Relates to an act done by a child above seven years of age and under twelve. KA M KU S 18 Strictly for Internal Circulation - KCL 3. Intoxication is a kind of insanity. Insanity is a disease while intoxication is an evil. Persons suffering from insanity deserves mercy but an intoxicated person deserves to be condemned. 4. Under the IPC, intoxication may be a defence provided the intoxicant was administered to the accused without his knowledge or against his wishes. Essentials u/sec. 85- a) At the time of doing it; b) By reason of intoxication a) Is incapable of knowing the nature of his ct; or b) That what he is doing is wrong or contrary to law. c) Provided that the thing which intoxicated him was administered to him without his knowledge or against his will. From the Analysis of Section-85 following Essentials are Made Out: 1) The act complained of must be done by an intoxicated person. 2) The accused must be suffering from intoxication at the time of the commission of the Act. 3) The accused must have become incapable of knowing the nature of the act and that what he is doing is wrong or contrary to law. 4) The intoxication must be either without his knowledge or against his will. Presumption of particular intention of knowledge- Section – 86 1) Sec. 86 provides for a presumption of law. 2) Thus where a person does an act requiring a particular knowledge or intention to constitute an offence, such intention or knowledge is to be presumed against the accused person. 3) There shall be a presumption that accused did entertain the required criminal intent or criminal knowledge. 4) The presumption is rebutable. Accused may show that he did not entertain the required criminal intention or knowledge in as much as he was intoxicated against his will or without his knowledge. 75) Basudev v/s State of PEPSU : The appellant was charged with the murder of a young boy. The two of them and others of the same village went to attend a wedding in another village. All of them went to the house of the bride to take the mid-day meal. Some had settled down in their seats and some had not. The appellant asked Maghar Singh, the young boy, to step aside a little so that he might occupy a convenient seat. But Maghar Singh did not move. The appellant whipped out a pistol and shot the boy in the abdomen. The injury proved fatal. He was charged rejecting the plea of the accused to allow him the benefit of section 86 and reduce the charge from murder to culpable homicide. 8 The Director Public Prosecution v. Beard : In this case the accused was held guilty for his offence of murder of a girl aged thirteen whom the accused raped and placed his hand over her mouth and pressed his thumb on her throat in a bid to prevent her from screaming. In this endeavour he unintentionally killed her. The Court of Criminal Appeal found him guilty of manslaughter but the House of Lords restored the conviction for murder. KA M KU S 19 Strictly for Internal Circulation - KCL Acts not intended and not known to be likely to cause death or grievous hurt, done by consent - Section-87 Following Two Benefits may be claimed on the Basis of Consent 1. A) Complete exemption from criminal liability. (87, 88, 89). B) Reduction in criminal liability. (Exception 5-Sec.300) 2. Sec. 87, 88, 89 relate to law as to consent. (complete exemption) 3. Consent is a good defence against offences relating to property. 4. Consent is a good defence even against offence against human body (except cases where death or grievous hurt is caused). 5. Causing death with consent is not excusable. Nor has a right to consent to self killing. 6. From the analysis of Sec. 87 following essentials are made out. a) The victim must have consented to, expressly or impliedly to the act of the accused. b) The person consenting (victim) must have been above 18 yrs at the time of consent. c) The Act of the accused must have been without an intention or knowledge of likelihood of causing death or grievous hurt. Act not intended to cause death, done by consent in good faith, for person's benefit - Section-88 1. Nothing would be an offence which was not done with intention to cause death if it was done for a person's benefit and in good faith by consent. 2. Sec. 88 does not provide for the age of the person giving consent. Essentials of Sec. 88 a) The Act of the accused must have been done for the benefit of the victim. b) The Act must have been under expressed or implied consent of the victim. c) The Act of the accused must have been in good faith. d) The accused must not have intended to cause death. Illustration: 'A' is a surgeon. 'B' is suffering from a serious disease. 'A' not intending to cause B's death though he knew that death may ensue, makes an operation with B's consent for B's benefit and in good faith. 'A' commits no offence. 3. In Sec. 88 benefit does not mean only a pecuniary benefit. It may be a benefit of any kind. 4. For the purposes of Sec. 88 any person who is under 12 yrs. of age is not competent to give consent u/s 88 (from Sec. 90) Act done in Good Faith for Benefit of a Child or Insane Person, by or by Consent of Guardian - Section- 89 KA M KU S 20 Strictly for Internal Circulation - KCL 1. "Nothing is an offence which is done in good faith for the benefit of a person under 12 years or of unsound mind, if done with the consent of the guardian." Following essentials are made out a) The act done by the accused must be in good faith. b) The victim must be under 12 years or a person of unsound mind. c) The Act must have been done with the consent of the guardian or any person incharge of such person. d) The Act done must have been for benefit of victim. 2. Benefit of Sec. 89 shall not be available in following cases: a) An act done with the intention of causing death or with an intention of attempting to cause death. b) Anything about which the doer knows that death is likely thereby. c) Anything done with an intention of voluntary act causing grievous hurt or attempt thereof. d) Abetment of any offence when the offence is not within Sec.89. Consent known to be given under fear or misconception - Section - 90 1. Consent given under fear or misconception is not a valid consent. Therefore, such a consent cannot be the basis of defence. In Poonai Fattemah vis State SC (1869): The accused, who professed to be a snake charmer persuaded the deceased to allow himself to be bitten by a poisonous snake, inducing him to believe that he had power to protect him from harm. It was held that the consent was given by the deceased under a misconception of fact arising out of the misrepresentation made by the accused that he had power by charms to cure snake bites and the accused knew that the consent was given in consequence of such misconception and therefore, the accused was not entitled to protection on the ground of consent of the deceased. 9In Dasrath Paswan vIs State : The accused had failed at an examination for three successive years. He was very much upset at these failures. Accordingly he decided to end his life. He informed of his decision to his wife who was a literate woman of 19 years of age. His wife asked him to kill her first and then kill himself In consequence of this pact the accused killed his wife but was arrested before he could kill himself It was held that the wife had not given her consent under fear of injury or misconception of fact. Here the accused would not be liable for murder but for culpable homicide not amounting to murder as the case is covered by exception 5 to section 300 of the Code. 2. Consent would not be valid when given by a person of unsound mind or an intoxicated person unable to understand the nature and consequences of that to which he consents. 3. Consent by a child under 12 is also not valid (unless the contrary appears from the context). KA M KU S 23 Strictly for Internal Circulation - KCL than death, placed himself under such constraint. A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, cannot claim the benefit of Sec. 94 if he was aware of the character of those persons. (dacoits). (Exp I to Sec. 94) 6. Persons seized by a gang of dacoits and forced by threat of instant death to do an offence is entitled to benefit of Sec. 94 (Exp II to Sec. 94) 7. Any compulsion arising out of necessity is not within purview of Sec. 94; therefore, a thief cannot plead that he was dying of hunger. 8. An act done under the compulsion of instant death is no offence. Therefore, attempt to murder or abetment of murder may be excused u/s 94. Any other offence may also be excused. Sec. 94 relates to compulsion and not necessity. Necessity could be considered u/s 81 but not in 94. Act causing slight harm - Section- 95 1. Sec. 95 IPC is based on the Latin maxim' de minimis non curat lex' (law does not take care of trifles or trivialities). 2. The underlining princjple of Sec. 95 is that law does take care of incivilities. 3. Acts which fall within the letters of law because of defect of languages but which do not fall within the spirit of law, are not punishable. 4. Sec. 95 covers the acts which constitute offence but which are of very low degree in terms of criminality. Therefore such acts are taken to be innocent. 5. Whether or not the act of the accused is criminal is to be determined by the courts. There is no fixed standard therefor. The court is to be objective in determining the same. The court must analyze the facts and circumstances. Triviality is therefore justiceable. 6. Sec. 95 provides: "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, that no person of ordinary sense or temper would complain of such harm." 7. Shiv Ghulam Lata vis State, SC 1875: A policeman was dismissed. He filed a review petition before a higher officer. The higher official refused to entertain. Annoyed by the same the dismissed policeman struck the higher official at his chest by an umbrella. The injury was negligible. The accused was punished u/s 323. IPC. The police force is a disciplined force, therefore, such a behaviour or conduct cannot be excused. Right of Priate Defence General General 1. To protect the body and property of citizens is the primary duty of the state. Self defence and self help is the primary duty of an individual. 2. It is not possible for the state to protect the life and property of every citizen. KA M KU S 24 Strictly for Internal Circulation - KCL 3. In view of limitations of the State and the necessity of the protection of life and property, the state gives preventive right to the individual to defend himself by personal violence within the limits prescribed by law (statutory limitations). Nature of Right of Private Defence 1. It is a right based on necessity, expediency and public policy. It is preventive I compensatory. It is subject to statutory limitations. 2. This legal right can be exercised only against an offence 3. This right is purely a preventive right. It is not retributive or punitive. 4. A defender may exercise Right of Private Defence not only for his body or property but also for the protection of body or property of any other person including a stranger (Indian Law). 5. Sections-96, 97, 98 & 99 relate to Right of Private Defence of body as well as of property. In fact, these sections are general in character. 6. Sections-100,101,102 & 106 relate to Right of Private Defence against body. These sections are to be read with clause-I of Sec. 97. 7. Sections-103, 104 & 105 relate to Right of Private Defence against property. These sections are to be read with clause 1I of Sec. 97. In fact this section is part of an integrated scheme of Right of Private Defence. Under this code the section is subject to an implied limitation that statutory limitations must not have been unguessed. Right of Private Defence of The Body and of Property – Section - 97 It is a substantive provision. 1. It comprises two clauses. Its first clause confers Right of Private Defence against body. "Every person has right subject to restrictions contained in Sec. 99, to defend his own body and the body of any other person, against any offence affecting the human body." 2. The second clause confers Right of Private Defence against property. Right of private defence against the act of a person of unsound mind etc. - Section-98 This section makes the Right of Private Defence more practicable and effective. This section declares that right could be available against the acts of following persons also: a) Child b) Person suffering from want of maturity of understanding. c) Person of unsound mind. d) Intoxicated person. e) Person reacting under misconception. KA M KU S 25 Strictly for Internal Circulation - KCL Acts against which there is no right of private defence - Section-99 It provides for following four limitations: a) As a general rule, there is no Right of Private Defence against the act of public servant. b) There is no Right of Private Defence against the act of a person acting under the directions of a public servant. c) There is no Right of Private Defence in cases in which there is time to have recourse to the protection of Public Authorities. d) The Right of Private Defence in no case extends to the inflicting of more harm than it is necessary for the purpose of defence. There is no Right of Private Defence against acts of a public servant if the defender knows or has reason to believe that person concerned is a public servant. A person would be deprived of Right of Private Defence against the public servant only if the public servant was acting in good faith under colour of his office and there is no apprehension of death or of grievous hurt. The same rules apply to the act of person acting under the directions of a public servant u/s 21 IPC. When the right of private defence of the body extends to causing death- Section- 100 It provides for certain assaults against which the defender may voluntarily cause death or any other harm to the assailant Sec. 100 lists certain assaults on the face of which the defender may voluntarily cause death or any other harm to the assailant. Sec. 100 is subject to Sec. 99. Following are the assaults listed u/s 100 : a) Assault reasonably causing apprehension that death will otherwise be the consequence of such assault. b) Assault reasonably causing apprehension that grievous hurt will otherwise be the consequence of such assault. c) Assault with an Intention to commit rape. d) Assault for gratifying unnatural lust. e) Assault with an intention to commit kidnapping or abduction. f) Assault for committing wrongful confinement (under circumstances causing reasonable apprehension that defender would be unable to have recourse to public authorities for his release). When such right extends to causing any harm other than death - Section- 101 It is residuary in nature The assaults not covered u/s 100 would fall u/s 101. Section 101 is also subject to Section 99. Commencement and Continuance of the Right of Private Defence of the Body - Section-102 It takes into account following two points: KA M KU S 28 Strictly for Internal Circulation - KCL 10 Rasookoollah v/s State : Where, of several persons constituting an unlawful assembly, some only were armed with sticks, and A, one of them was not so armed, but picked up a stick and used it, B (the master of A), who gave a general order to beat, was held guilty of abetting the assault made by them. 11Sheo Dial Mal v/s State : Where one person instigates another to the commission of an offence by means of a letter sent through the post, the offence of abetment by instigation is completed as soon as the contents of such letter become known to the addressee. b) Engages with one or more other person or persons in any conspiracy for the doing of that thing. (If an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing); or, Queen v/s Mohit Pandey (1871)-Where accused admitted that he told the woman to say "Ram Ram", and she would become satti, it was held that this amounted to connivance in suicide on the part of husband. Intentionally aids by an act or illegal omission, the doing of that thing. 12 Muthammal vIs State : A priest, who officiated at a bigamous marriage was held to have intentionally aided it but not the persons who were merely present at the celebration or who permitted its celebration in their house, where such permission affords no particular facility for the act. 3. Exp I to Sec. 107 explains the term instigation. It provides : "A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing." 3. Exp II to Sec. 107 explains intentional aid. It provides : "Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." 4. Abetment may be committed even by conspiracy. Sec. 107 does not explain the term conspiracy. The definition of term 'conspiracy' has been provided U/s 120-A, probably for that reason no explanation was thought to be required. In case of abetment through conspiracy it is enough that accused was engaged in a conspiracy. The concert needs to be proved. This is sufficiently explained by Exp. V to Sec. 108. It provides. "It is not necessary for abetment by conspiracy that abettor should concert the offence with the doer. This is sufficient if he engages in conspiracy in pursuance of which the offence is committed." Who is Abettor- Section – 108 1. A person who abets for the commission of an offence, is an abettor. A person who abets an act would also be an abettor. KA M KU S 29 Strictly for Internal Circulation - KCL 2. The Abetment of an illegal omission may be an offence although the abettor may not himself be bound to do that act (Exp I to Section 108) 3. To constitute the offence of the abetment it is not necessary that the act abetted should be committed or that the requisite effect to constitute the offence should be caused. Exp II to Section 108) 4. It is not necessary the person abetted: (III to Sec.) a) Should be capable by law of committing an offence, or, b) That the person abetted should have some guilty intention or knowledge as that of abettor; or, 5. Abetment is an offence. Therefore, the abetment of an abetment is also an offence. It is not necessary that the abettor should concert the offence with the doer in case of abetment by means of conspiracy. It is enough that abettor has engaged in the conspiracy pursuant to which the offence is committed. (Exp V to Sec. 108) Abetment in India of Offences Committed Outside India - Section 108-A: A person abets an offence within the meaning of this code who, in India, abets the commission of any act without and beyond India, which would constitute an offence if committed in India. Punishment for Abetment – Section -109 1. Sec. 109 is residuary. Therefore it can be invoked only in those cases where there is no express provision for punishment of the abetment committed. 2. It applies in cases of successful abetments. 3. It provides for the same punishment for the abettor which is provided for the offender. Punishment of Abetment (when person abetted does act with different intention from that of Abettor) - Section- 110 a. The accused must have abetted an offence. b. The person abetted must have done some act with a different intention or knowledge from that of the abettor. c. If the above requirements are satisfied the abettor is liable to punishment provided for the offence which would have been committed if the act would have been done as per his intention or knowledge. (liability of abettor shall not extend). Liability of Abettor when One Act Abetted and Different Act done - Section- 111 1. The Accused must have abetted an act. 2. The person abetted must have committed a different act 3. The abettor shall be liable for such different act. (in the same manner and to the same extent as if he had directly abetted it) a) Act done was a probable consequence of the abetment. b) The Act must have been committed under the influence of instigation or aid or in pursuance of a KA M KU S 30 Strictly for Internal Circulation - KCL conspiracy. When Abettor is Liable for Cumulative Punishment – Section – 112 1. Sec. 112 is to be read with Sec. 111 2. Where the abettor is liable U/s 111 (in addition to) he shall be liable for cumulative punishment or double punishment. 3. Under this section the abettor is liable to cumulative punishment for the following: a) For abetment of act abetted by him. b) For the Act which has actually been done. When the Abettor would be Liable for a Different Effect - Section- 113 1. The accused must have abetted a particular act (for causing a particular effect) 2. The person abetted must have committed the same act which was abetted. (but with a different effect from one intended by the abettor). 3. The likelihood of the causing of such different effect must have been in the knowledge of the abettor. Presence of Abettor at the time of Commission of Offence - Section- 114: When the abettor is present when the act or offence abetted is committed, he is deemed to be the doer of the act or the offence. Abetment of Offence Punishable with Death or Imprisonment for life- Section –115 1. Sec. 115 provides for punishment for abetment of an offence punishable with death or life imprisonment. 2. Imprisonment of either description which may extend to 14yrs and also fine. 3. If, as a result of abetment the offence is not committed and no harm is caused the punishment may extend up to 7 yrs and with fine. 4. If in consequence of the abetment hurt is caused to any person, imprisonment may extend up to 14 yrs. Abetment of Offence Punishable with Imprisonment - Section- 116 1. Sec. 116 is residuary (109 & 115 are also residuary). 2. Sec. 116 applies to unsuccessful abetment-(Sec. 115 also applies in cases of unsuccessful abetment-but Sec. 109 applies in cases of successful abetment). 3. Sec. 116 provides for punishment of abetment of an offence punishable with imprisonment. The section provides for following punishment: th a) Up to ¼ of the imprisonment provided for the offence or with fine or with both. b) Up to ½th of the imprisonment provided for the offence or with fine or with both. (If hurt is caused). 4. If the abettor or person abetted is a Public servant whose duty is to prevent offence, punish men given in (b) (1/2/fine/both) shall be given to the abettor or abetted irrespective of whether harm was caused or not. KA M KU S 33 Strictly for Internal Circulation - KCL If the above requirements are satisfied, every member of that assembly would be guilty of committing rioting. c) Unlawful assembly - five or more persons are designated as an unlawful assembly if they have any of the seven common objects enumerated in Sec. 141. d) Use of force or violence by any member of unlawful assembly in prosecution of its common object makes all the members liable for rioting. e) Here the word 'force' is to be used in the sense it has been defined in (Sec. 349-IPC) (Ganikhan, 46, I.C.) & Oudh-IC-lndian cases. The word 'force' in Sec. 146 is limited to men or persons. f) The word 'violence' is comparatively a wider term than 'force'. Violence extends to men as well as to property. Therefore, the word violence shall cover use of force even against things. (Samar-ud-din, 1912, Calcutta) g) Rasool, 1889. In this case Plauden J. observed that it is the use of force which distinguishes the rioting from unlawful assembly. h) Use of force or violence is necessary for constituting rioting. The prosecution is bound to establish that use of force or violence was made by a member of unlawful assembly in prosecution of common object. Punishment for Rioting - Section- 147, 148 1. Sec. 147 provides for punishment for simple rioting. Under it, the person found guilty is punishable with imprisonment of either description for 2 yrs or with fine or with both. 2. Sec. 148 provides for punishment for aggravated forms of rioting. Under it, the person found guilty is liable to punishment up to 3yrs or fine or with both. Sec. 148 is attracted where rioting is committed being armed with deadly weapon. The section is also attracted in cases in which the thing used as a weapon of offence is likely to cause death. Rioting is a cognizable and a bailable offence. It is non compoundable. Definition and Essentials of Affray - Section- 159 1. Sec. 159 defines Affray as under: "Where two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray." A mere verbal wrangle is not fighting. So to constitute fighting there must be use of limbs and violence by both parties. From the analysis of Sec. 159, the following essentials of affray are made out: a) There must be two or more persons. b) There must have been a fighting between such persons. c) The fight must have been at a public place. d) Such fight must have resulted in the disturbance of public peace. KA M KU S 34 Strictly for Internal Circulation - KCL 2. Two persons may be enough for affray. An unlawful assembly is not necessary. 3. Fight is an essential ingredient of affray. Fight suggests active opposition and conflict. It is serious in so far as consequences are concerned. A mere use of threatening words is not enough. The fight presupposes an attack. A scuffle with the use of violence is a fight. 4. Fight must have been at a public place. A place is a public place if people may frequent it without any hindrance. It is not material whether the public has a right to frequent that place or not. 5. Madan Mohan, 1883: Held: A Railway platform is not a public place when no other train except goods train is to arrive there. 13 6. Joghe vis State : Held: Where one of the parties is beating the other and that other did not offer any resistance or opposition, it would not constitute a fight. 7. Besides, the prosecution must establish that disturbance of public peace has occasioned on account of fight. A mere public inconvenience does not constitute disturbance in public peace. A general Sensation and obstruction or disturbance is necessary. Punishment for Affray - Section- 160: The person found guilty is liable to be punished with imprisonment of either description which may extend to one month or with a fine up to Rs. 100 or with both. Affray is a cognizable, bailable and non compoundable offence. Distinction between Rioting & Affray Rioting Affray 1) Definition u/s 146 1) Definition u/s 159 2) Punishment u/s 147 & u/s 148 2) Punishment u/s 160 3) More serious offence 3) Less serious comparatively. 4) Unlawful assembly required 4) Requires two persons only. 5) Use of force or violence in prosecution of 5) Fighting at public place. common object. (Public place not necessary) FALSE EVIDENCE (SEC. 192) DISTINCTION BETWEEN "GIVING FALSE EVIDENCE" AND "FABRICATING FALSE EVIDENCE": The distinction between giving false evidence and fabricating false evidence lies in the following five important points: 1. First of all, it is the intentional giving of false evidence or the intentional fabrication of false evidence that is punishable. The law will not punish a witness who, through ignorance or mistake, or through carelessness or inadvertence, foolishly makes a false statement. The intention forms the essence of both offences. But there is a difference between the two as regards KA M KU S 35 Strictly for Internal Circulation - KCL the kind of intention. In the case of giving false evidence, only general intention is sufficient. It is sufficient if the false evidence is intentionally given, i.e., if the person making the statement makes it advisedly knowing it to be false and with the intention of deceiving the person conducting the proceeding and leading such person to believe that what he states is true. In the case of fabricating false evidence, a particular intention is essential. The offence cannot be committed unless the accused fabricates evidence with a particular intention, viz., to use a false circumstance, entry or document in evidence in a proceeding and to procure the formation of a material point. 2. Secondly, the offence of giving false evidence is committed by a person who is bound by an oath or by an express provision of law to state the truth or to make a declaration upon any subject. In the case of fabricating false evidence, this ingredient is not necessary. 3. Thirdly, in the case of giving false evidence, the false statement need not be made on a material point. The offence is complete if any false statement is made. But in the case of fabricating false evidence, the evidence fabricated must be on a material point; otherwise the offence cannot be committed. 4. Fourthly, the question of the effect of the evidence on the officer before whom the evidence is given is of no consequence in the case of giving false evidence, but this is an important point to be considered in fabricating false evidence. If the accused gives any information which he knows or believes to be false he shall be punished. Offences affecting Public Health (Section 268-278) There are ten offences against public health. These fall in groups, viz.- Public nuisance: S. 268. 1. Acts likely to spread infection: Ss. 269-271. 2. Adulteration of food or drink: Ss. 272-273. 3. Adulteration of drugs: Ss. 274-276 and 4. Fouling water and vitiating atmosphere: Ss. 277-278. A common nuisance is not excused on the ground that it causes some convenience or advantage: S. 268. Kinds of Nuisance: It is to be remembered that nuisance is of two kinds- public and private. A private nuisance is some unauthorized use of a man's own property causing damage to the property of another, or some unauthorised interference with the property or proprietary rights of another, causing damage, but not amounting to trespass. Private nuisance includes obstruction to light and air, wrongful escape of foul gas, or noise, water, filth, germs etc. Thus, if one's neighbor plays rock-and-roll music at full blast well past midnight, this may cause considerable inconvenience and annoyance, and one would have a civil cause of action against such a music-minded neighbor. But, one cannot criminally prosecute the neighbor, the act being a private nuisance, and not a public nuisance, which alone is made punishable under the Code. A public nuisance or common nuisance is an offence against the public, either by doing a thing which tends to the annoyance of the whole community in general, or by neglecting to do anything which the common good requires. Acts which seriously interfere with the health, safety, comfort or convenience of public generally, or which tend to degrade public morals, have always been considered to be public nuisance. KA M KU S 38 Strictly for Internal Circulation - KCL UNIT - III OFFENCES AFFECTING THE HUMAN BODY Offences affecting life (Section 299-377) Culpable Homicide & Murder General: Following are the main offences affecting human life: a) Culpable homicide. b) Murder Culpable homicide Culpable homicide 1. Culpable homicide is called manslaughter under English law. Under US Law it is called second degree murder. 2. Under Us law, murder is called first degree murder. 3. Culpable homicide has following two kinds : a) Culpable homicide not amounting to murder. (Culpable homicide Simplicitor) b) Culpable homicide amounting to murder (Murder) 4. Both in Culpable homicide (not amounting to murder) and in murder, death of a human being takes place. The degree of criminality is different in the two offences. 5. Culpable homicide as defined in Sec. 299 & Sec. 300 specifies the additional requirements which aggravate culpable homicide to make it a murder. 6. Every murder is primarily a culpable homicide. In fact, murder is only a species of culpable homicide, which is a genus. 7. Sir Tames Stephan has criticized the definitions of the offences-culpable homicide and the murder. He is of the view that the definitions are not well drawn. 8. These definitions are the weakest part of the code. (Homo-man, cido- cut) 9. a) Culpable homicide is defined u/s 299 and is punishable u/s 304 of the code. b) Murder is defined u/s 300. Sec. 300 is to be read with Sec. 299. Murder is punishable u/s 302 IPC. 10. 80th culpable homicide and murder are cognizable, non bailable and non compoundable. 80th are KA M KU S 39 Strictly for Internal Circulation - KCL exclusively triable by court of session. Definition of Culpable Homicide - Section- 299: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. From the analysis of Sec. 299, following essential elements of culpable homicide are made out: a) The accused must have committed some act b) The act must have been committed with any of the following intentions or knowledge: i) Intention to cause death. ii) Intention to cause such bodily injury as is likely to cause iii) Knowledge that the death is likely to be caused thereby. c) The victim must have died in consequence of the act of the accused person. Death caused by an act done with the intention of causing death constitutes culpable homicide of the first degree. This is the gravest form of culpable homicide. It constitutes murder. (If the case does not fall under any of the exceptions to Sec. 300). Illustration: (a) of Bare Act: A lays sticks and turf over a pit, with the intention of thereby causing death or with the knowledge that the death is likely to be thereby caused. 'Z' believing the ground to be firm, treads on it, falls in and is killed. '/\ has committed the offence of culpable homicide. Death resulting from an act done with the intention of causing such bodily injury as is likely to cause death constitutes culpable homicide in the second degree. It is not invariably murder. It would be murder if it satisfies the requirements of clause II or III to sec. 300. (If the case does not fall in any of the exceptions to Sec. 300) Illustration: (b) of Bare Act: A knows Z to be behind a bush. 8 does not know it A, intending to cause, or knowing it to be likely cause's death, induces 8 to fire at the bush. 8 fires and kills Z. Here 8 may be guilty of no offence but A has committed the offence of culpable homicide. Death caused by an act done with the knowledge that death was likely to be caused thereby constitutes culpable homicide of third degree. This culpable homicide is also not a murder invariably. It may amount to murder if the requirements of clause IV to Sec. 300 are satisfied. (If the case does not fall under any of the exceptions to Sec. 300) Illustration: (c) of Bare Act: A, by shooting at a fowl with the intent to kill and steal it, kills 8 who is behind a bush, A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill 8 or to cause death by doing an act that he knew was likely to cause death. Explanation 1 to Sec. 299: A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of the other, shall be deemed to have caused his death. (culpable homicide of second degree) Explanation 2 to Sec. 299: Where death is caused by bodily injury, the person who causes such bodily KA M KU S 40 Strictly for Internal Circulation - KCL injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented, (will amount to culpable homicide of second degree). The principle underlining explanation II is that one who supplies the primary cause of death is to be held liable for deemed death. In such cases the secondary cause of death is to be ignored. Constructive doer is liable as the actual doer is. The above principle has its basis in public policy. Explanation 3 to Sec. 299 : The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. 11. Nirbhaya Singh v/s State : A constable who had a loaded but defective gun with him wanted to arrest an accused who was going on a bullock cart by climbing on the cart and there was a scuffle between him and the accused and in course of which the gun went off and killed the constable. 2. Held: The accused Nirbhaya Singh was not liable for culpable homicide because the intention or knowledge contemplated in Sec. 299 could not be proved. 2 3. Joginder Singh v/s State : Where a person being pursued could not be held guilty of culpable homicide. Where a person being pursued closely on his heels in an open field by his enemies who had already killed one of his relations in the incident jumped into a well in order to save himself and in the process met with his death, it was held that the act of the accused did not constitute an act which was done with the intention or knowledge specified in Sec. 299, IPC, and as such they had to be acquitted. 34. Basappa v/s State : Where a person was attacked by his enemies on a roof and given a few cuts with a dangerous weapon and in order to avoid the attack he jumped from the roof to his death, it was held that even if the death was caused by his own act of jumping, the accused were guilty of murder as jumping was necessitated by their act. 45. Punchanun Tanti v/s State : The accused, having received great provocation from his wife, pushed her with both arms so as to throw her with violence to the ground, and after she was down, slapped her with his open hand. The woman died on account of the rupture of her spleen which was diseased. It was held that he was guilty of causing hurt. 6. Chatur Nath v/s States: In the course of an altercation between the accused and the complainant on a dark night, the former aimed a blow with his stick at the head of the latter. To ward off the blow, the complainant's wife, who had a child on her arm, intervened between them. The blow missed its aim, but fell on the head of the child, causing severe injuries, from the effects of which it died. It was held that inasmuch as the blow, if it had reached the complainant, would have caused simple hurt, the accused was guilty of simple hurt only Culpable Homicide when Amounts to Murder - Section- 300: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death. (Sec.300 para1). Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is KA M KU S 43 Strictly for Internal Circulation - KCL Distinction between Culpable Homicide and Murder: 1. The main point of distinction between murder and culpable homicide is degree of criminality. Degree of criminality is higher in case of murder in comparison to culpable homicide. 2. Every murder is primarily and necessarily a culpable homicide. But every culpable homicide is not necessarily a murder. In other words culpable homicide is a genus, while murder is only a species thereof. 3. Murder has been defined u/s 300. It is punishable U/s 302. Culpable homicide is less serious an offence and is punishable u/s 304 IPC. 4. The distinction between culpable homicide and murder is very fine but is appreciable. In order to distinguish the two offences the key words occurring in the different clauses of Sec. 300 must be taken note of. 5. R V/s Govinda, (1876, Bombay): In this case Melvile J. distinguished the offence of culpable homicide from murder by undertaking a comparison between the corresponding clauses of the two sections. 6. State v/s R. Punnaya, 1977, SC: a) The code practically recognizes three degrees or kinds of culpable homicide. b) Culpable homicide in the first degree has been defined as murder in Sec. 300. It is the gravest form of culpable homicide. c) Second culpable homicide is termed as culpable homicide in second degree. It is punishable under clause I of Sec. 304. d) Culpable homicide in the third degree is the lowest from. It is punishable under clause II of Sec. 304. e) The courts must first see whether the death complained of has resulted from the act of the accused. If the act of the accused in question is in affirmative Sec. 300 should be taken into consideration. f) If the case is not covered u/s 300 it would not be a murder. Further, if case falls in any of the exceptions to Sec. 300 again it would not be a murder. g) The above guidelines, if kept in mind, would facilitate the task of the court. Punishment: 1) Culpable homicide (not amounting to murder) is punishable u/s 304. Culpable homicide of the first and second degrees are punishable under clause I to Sec. 304. The punishment provided is life imprisonment or imprisonment of either description which may extend up to 10yrs and fine. Culpable homicide of third degree is punishable with an imprisonment of either description which may extend up to 10yrs or with fine or with both. KA M KU S 44 Strictly for Internal Circulation - KCL 2) Murder is punishable u/s 302 IPC. Life imprisonment is the general punishment to be given for murder. In the rarest of the rare case murder may be punished with death. The rarest of the rare cases are the cases in which the offender commits murder in the most cruel and unusual manner. Culpable Homicide by Causing Death of Person other than Person whose Death was Intended : Section- 301 1. The accused must have intended or known to be likely to cause death. 2. The offender must have caused death of a person by the act though he neither intended nor knew to be likely to cause death of a person actually killed. 3. In the above case, the accused would be liable to be punished as if he had caused the death of the person whose death he intended or known or likely to be caused. 4. The principle incorporated in Sec. 301 is generally known as Doctrine of Transfer of Malice. 5. A person whose case, falls u/s 301 is to be punished U/s 302 or 304 as the case may be. Punishment for Murder Committed by a Person under Life Imprisonment. The section provides for death as the only punishment - Section- 303 Mithu V/s State of Punjab7: This section has been struck down by the Supreme Court as void and unconstitutional being violative of both Arts. 14 and 21 of the Constitution. It regards life-convict to be a dangerous class without any scientific basis and thus violates Art. 14 and similarly by completely cutting out judicial discretion it becomes a law which is not just, fair and reasonable within the meaning of Art. 21. a) It was declared unconstitutional as it deprives the court of its discretionary power and compels the judge to act like a machine. b) Death penalty given by Court of Session shall not be executed unless it is confirmed by the High Court. c) Doctrine of transfer of malice is also known as Doctrine of transmigration of malice. Hurt (Section 319) 1. Sections 319-338 provides for hurt and its different aspects. 2. Sec. 319 defines the term 'hurt'. Sec. 320 lists certain kinds of hurts which have been designated as grievous. 3. Hurt is causing: a) bodily pain; or b) bodily disease; or c) bodily infirmity, to a person. Grievous Hurt - Section- 320: The following kinds of hurt only are designated as grievous: KA M KU S 45 Strictly for Internal Circulation - KCL 1. Emasculation (making a person sexually incapable or weak) 2. Permanent privation of the sight of either eye. 3. Permanent privation of the hearing of either ear. 4. Privation of any member or joint. 5. Any hurt which endangers life or which causes the sufferer to be in bed during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. There is no importance of intention u/s 319 or 320. Voluntarily causing Hurt – Section – 321, 323, 334 1. Whoever does any act with the intention of causing hurt to any person and does cause hurt to any person voluntarily commits hurt. 2. Whoever does any act with the knowledge that he is likely to cause hurt to any person, and does cause hurt, is said voluntarily to cause hurt. b) Such an act must have been done: i) With the intention of causing hurt; or c) Must have thereby caused hurt to any person. The offence u/s 321 is punishable u/s 323 (Imprisonment of either description up to one year or fine up to Rs. 1000/- or both). It is non-cognizable, bailable, compoundable and triable by a Magistrate. Section- 334: Provides where the hurt is caused under provocation. If the voluntary causing of hurt is referable to grave and sudden provocation, the punishment may be reduced to imprisonment of either description up to 1 month or fine up to Rs. 500 or both. 1) Whoever does any act with the intention of causing grievous hurt to any person and does cause grievous hurt to any person voluntarily commits grievous hurt. 2) Whoever does any act with the knowledge that he is likely to cause grievous hurt to any person, and does cause grievous hurt is said voluntarily to cause grievous hurt. a) The accused must have done some act. b) Such an act must have been done: i) With the intention of causing grievous hurt; or ii) With the knowledge that hurt was likely to be caused thereby; and c) Must have thereby caused grievous hurt to any person. The offence u/s 322 is punishable u/s 325 (Imprisonment, of either description up to 7yrs and also fine.) It is cognizable, bailable and compoundable offence. It is triable by Magistrate. KA M KU S 48 Strictly for Internal Circulation - KCL Wrongful Restraint a) It is partial restraint of the personal liberty of a person. b) It does not imply wrongful confinement. c) It does not require any limits or boundary. d) In wrongful restraint movement in only one or some direction is obstructed leaving thereby a choice for victim to move in any other direction. Wrongful Confinement a) It is absolute or total restraint or obstruction of personal liberty. b) It implies wrongful restraint. c) It requires certain circumscribing limits which are always necessary. d) In wrongful confinement movement in all directions is obstructed and a person is either not allowed to move or is compelled to move against his wishes. CRIMINAL FORCE AND ASSAULT 1. Sections (299-377) provide for offences against human body. 2. Sections (349-358) provide for criminal force and assault. 3. 349 defines force. 350- defines criminal force Whoever 1) Intentionally uses force to any person, without that person's consent. Uses that force : 1) Knowledge that he is likely to cause injury, fear or annoyance to that person is said to use criminal force to that other. 4. Section 351- defines assault: Whoever; - makes any - gesture - preparation With intention such gesture/preparation will cause knowledge any person present to apprehend that he is about to use criminal force to that person is said to commit an assault. - Mere words do not amount to assault. Words+gestures/prep-assault. A KA M KU S 49 Strictly for Internal Circulation - KCL - 352-punishment assault Criminal force otherwise than on Gave provocation Imprisonment up to 3 months or RS.500/- fine or both. 353 - Assault to deter punishment from discharge of his duty: Imprisonment up to 2yrs or fine or both 354 - Assault to woman to outrage her modesty Imprisonment up to 2yrs or with fine or with both. 355 - to dishonour 358 - Assault on grave provocation 2 months/fine/both 356- to commit theft- simple imprisonment up to 2 months/with fine/with both 1 month/fine/both 357 – to wrongfully confine a person 2 months/100/B KIDNAPPING AND ABDUCTION General 1. Sec. 359 provides for two kinds of kidnapping: a) Kidnapping from India (Sec. 360) b) Kidnapping from lawful guardianship. (Sec. 361) 2. Both the offences are punishable U/s 363. 3. Sec. 362 defines Abduction. Abduction by itself is no offence. Kidnapping from India - Section- 360 Kidnapping has following two kinds: 1. Kidnapping has following two kinds: a) Kidnapping from India. b) Kidnapping from lawful guardianship. 2. Sub. 360 defines kidnapping from India. It provides: "Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India." From the analysis of Sec. 360 following essentials are made out: 1. The accused must have conveyed the victim. 2. The conveying must have been beyond the limits of India. A KA M KU S 50 Strictly for Internal Circulation - KCL 3. Such conveying must have been without the legally authorized on his behalf to consent. 4. Kidnapping from India may be committed against a person of any age. The conveying must have been of a natural person. 5. The word 'person' has been used in narrower sense in Sec. 360. Here the word 'person' is restricted to natural persons. Any company or body of persons or association are not persons for the purposes of Sec. 360. 6. The word conveying has not been defined in the code. Ordinarily it suggests carrying away or getting carried away. The offence u/s 360 is punishable u/s 363. Punishment of either description which may extend up to 7 yrs and also fine. Kidnapping from Lawful Guardianship - Section 361 1. Sec. 361 provides: "Whoever takes or entices any minor under 16 yrs of age if is a male of under 18 yrs of age if is a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian is said to kidnap such minor or person from lawful guardianship." 2. From the analysis of Sec. 361 following essentials are made out: a) The accused must have taken or enticed a minor. (under 16 yrs in case of a male or under 18 yrs of age in case of a female) or a person of unsound mind. b) Such taking or enticing must have been out of the keeping of the lawful guardian. c) Such taking or enticing must have been without the consent of lawful guardian. 3. The word lawful guardian has been used in wider sense in Sec. 361. The explanation to Sec. 361 provides: "Lawful guardian includes any person lawfully entrusted with the care or custody of the minor or other person." 4. Exception: Sec. 361 does not extend to the acts of following persons: a) A person who in good faith believes himself to be the father of the illegitimate child. b) A person who in good faith believes himself to be entitled to the lawful custody of such child. The above persons may also be held liable for offence defined u/s 361 if their act is unlawful and for an immoral purpose. 5. There is difference in ages of minors on the basis of their sexes. In case of male minor the age is under 16yrs. In case of female minor the age is under 18 yrs. of age. Taking or Enticing 1. Taking or enticing suggests inducement or external influence. It has its basis in temptation or creation of a false expectation. In it the act of the victim is not voluntary. KA M KU S 53 Strictly for Internal Circulation - KCL given because she believes that he is another man to whom she is lawfully married; or v) with her consent, when, at the time of such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance she is unable to understand the nature and consequences of that to which she gives consent; or Explanation: Penetration is sufficient to constitute sexual intercourse. Exception - Sexual intercourse by a man with his own wife is not rape, if the wife is above 15 years of age. It may be noted that if the woman is under 16 years of age, it is immaterial that the act be done with her consent or even at the invitation of woman herself (or that she had sex experiences already), for the policy of the law is to protect children of such immature age against sexual intercourse. This is also known as 'statutory rape'. A 'man' is defined by Sec. 10 of the Code as a male human being of any age. Thus, a boy above 12 years of age is capable of committing rape under this section, whereas a boy below 12 but above 7 years of age enjoys a qualified immunity. Punishment for Rape: S. 376 provides the punishments for various categories of rape as follows: Rigorous imprisonment for not less than 10 years and upto life (i. e. life-imprisonment) and fine, for the following persons, viz., whoever: a) being a police officer commits rape- i) within the limits of the police station to which he is appointed; or ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or iii) on a woman in his custody or in the custody of a police officer subordinate to him; b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force, or of a women's or children's institution, takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or e) commits rape on a woman knowing her to be pregnant; or f) commits rape on a woman when she is under twelve years of age; or g) commits gang rape. In all the above cases, the minimum period of imprisonment is 10 years. However, in a fit case, the Court KA M KU S 54 Strictly for Internal Circulation - KCL may impose a sentence of simple or rigorous imprisonment for a term of less than 10 years, for adequate and special reasons to be mentioned in the judgment. Simple or rigorous imprisonment for not less than 7 years and upto life (i. e. life-imprisonment) and fine in all other cases, except where the woman raped is his own wife and is not under 12 years of age, in which case the maximum imprisonment is 2 years or fine, or both. Here also, the Court may impose a sentence of less than 7 years, for adequate and special reasons to be mentioned in the judgment. It is also clarified that when a woman is raped by one or more of a group of persons, acting in furtherance of their common intention, each of such persons is deemed to have committed "gang rape". Various ingredients explained.-From the definition given above, it is clear that "rape" is forcible ravishment of a woman, and the essence of the crime consists in the act being done against the will or without the consent of the woman. Clauses (b) to (d) are only explanatory of non-consent. Against her Will: An act done against a woman's will when she is in full possession of her senses and reason, is aware of what is being done and objects or resists. Without her Consent: This occurs when the woman is incapable of knowing the nature of the act and thus legally unable to give rational consent or being aware of its nature, thinks that it is being done under circumstances which make it an innocent act. Man: A man of any age may commit the offence. Under the English law, a boy under 14 years of age, owing to physical immaturity, is presumed to be incapable of committing this offence. But this presumption has no application in India. Fear of Death: This means fear of death of herself or of any other person in whom she is interested. Thus, if a person obtains consent of a woman by putting her in fear of death of her infant, such consent is not valid. Intercourse with a Girl under Sixteen: The policy of the law is to protect a girl of immature age against sexual intercourse; hence, connection with even a girl under 16 would be rape, even though she consents to the act. Explanation: The degree of penetration is immaterial. But some penetration, however slight is essential. It is not essential that the hymen should be ruptured, or that there should be emission of semen. Without some penetration, there can be no rape, though the act may amount to an attempt to rape. Exception: A man cannot be guilty of rape of his own wife, if she is over the age of 15 years, on account of the matrimonial consent she has given which she cannot retract. But he has no right to enjoy her person without regard to the question of her safety. Physical Incapacity: A person who, through impotency or otherwise, is physically incapable of committing rape cannot be guilty of its attempt, but he may be found guilty under sec. 354 of indecent assault. Can a Husband Abet Rape on his Own Wife? : A husband, no doubt, has a right to the person of his wife, and he cannot be charged for forcible connection, but he has no right to invite others to ravish her. If he does so, he can be said to abet the offence. KA M KU S 55 Strictly for Internal Circulation - KCL Rape by Husband: It should be remembered that the distinction between rape by a husband on his wife and rape by a man on any other woman lies in the age of the woman. If the woman is under 15 years of age, any man who has sexual intercourse with her, be he her husband or not, and be it with her consent or not, would be guilty of the offence of rape. For, under the exception to S. 375, a husband is not guilty of rape on his wife if she is above 15 years: but under the other clause of that section, subject to the exception of the husband's case, a man is guilty of rape if he has sexual intercourse with a woman who is under 16 years of age, even though the act be done with her consent or even at the invitation of woman herself, for the policy of the law is to protect children of such immature age against sexual intercourse. This is also known as statutory rape. Rape, Assault and Criminal Force Distinguished 1. The offence of assault or criminal force to a woman (S. 354) is of lesser gravity than the offence of rape: (S. 376). 2. In rape, there is sexual intercourse with a woman; in assault or criminal force to a woman, there is only assault or criminal force to a woman with the intention or knowledge that her modesty will be outraged. Intercourse by a Man with his Separated Wife (5. 376-A) - Under S. 376 : A, if a man has sexual intercourse with his own wife, who is living separately from him, under any decree of separation, or under any custom or usage, and such intercourse is without her consent, he is punishable with imprisonment upto 2 years and fine. Intercourse by Public Servant with Woman in his Custody - (5. 376-8): If a public servant, taking advantage of his official position, induces or seduces any woman in his custody to have sexual intercourse with him, and such intercourse does not amount to "rape", he is punishable with imprisonment upto 5 years and fine. Intercourse by Superintendent of Jailor Remand Home - (5. 376-C): If a superintendent or manager of a jail, remand home or of a women's or children's institution, taking advantage of his official position, induces or seduces any female inmate of such jail, remand home or institute to have sexual intercourse with him, and such intercourse does not amount to - "rape", he is punishable with imprisonment up to 5 years and fine. Intercourse by any Member of the Management or Staff of Hospital - (5. 376-0): Whoever being on the management of a hospital or being on the staff of a hospital, takes advantage of his position and has sexual intercourse with any woman in that hospital, and such intercourse does not amount to "rape", he is punishable with imprisonment upto 5 years and fine. Note : Sections 376 –A to 376-0 (above) were inserted by the Criminal Law (Amendment) Act, 1993) UNNATURAL OFFENCE (SECTION 377) Lastly, the sixth kind of offence against the human body is of unnatural offence. Section 377 defines unnatural offences as under: KA M KU S 58 Strictly for Internal Circulation - KCL theft committed. Sec. 23-wrongful gain/wrongful loss Sec. 24-dishonest intention/mens rea. Mischief against property Human being is not a property, though animal may be. Dead body is not a property. Preserved human body/human parts could be stolen. Electricity-not moveable-fiction juris (legal fiction) thus can be stolen. Essentials of Theft: On the basis of section 378 of IPC the following are the essentials of theft. 1. Dishonest intention to take property 2. The property must be movable 3. It should be taken out of the possession of another person 4. It should be taken without the consent of that person; and 5. There must be some movement of the property in order to accomplish the taking of it. 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 severed from the earth- Explanation 1: A moving effected by the same act which effects the severance may be a theft Explanation 2: A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it- Explanation 3 : Bisakhi, (1917) PR No. 29 of 1917- The accused cut the string which fastened a neck ornament to the complainant's neck and forced the ends of the ornament slightly apart in order to remove the same from her neck with the result that in ensuing struggle between the accused and the complainant the ornament fell from her neck and was found on the bed later on. The accused was held guilty of theft as there has been in the eyes of law sufficient moving of the ornament to constitute theft. A person, who by any means, causes any animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal - Explanation 4: 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 expressed or implied- Explanation 5: Judah, (1925) 53 Cal. 174 - In a case an electric kettle was given to a repairer for repairs, the repairer did not complete the work within the stipulated time or even within a reasonable time thereafter and the owner forcibly removed the kettle from the repairer's shop without payment of the sum demanded by the latter for work already done to it. Here the owner was not held guilty of theft, as his intention was not to cause wrongful loss to the repairer or wrongful gain to himself within meaning of section 24 of the Code, but to recover his property after lapse of a reasonable time. Hands, (1887) 16 Cox 188 - An 'automatic box' was fixed against the wall of a public passage and anybody who dropped a penny piece coin into the slit and pushed in the knob could get a cigarette out of it. The KA M KU S 59 Strictly for Internal Circulation - KCL accused dropped into the slit in the box a brass disc about the size and shape of a penny and thus obtained a cigarette, which he took to the other accused. It was held that both the accused were guilty of larceny. 1 H.J. Ransom v. Triloki Nath - B had taken a bus on hire, purchase system from a company which had reserved the right of seizing the bus in case of default in payment of installments. The company took possession of the bus by force from the driver of the bus who was B's servant. It was held that the possession of the driver was possession of the master and the company was not entitled to recover possession of the bus even though default in payment of installment had taken place. The question whether ownership had or had not passed to the purchaser is wholly immaterial as this section deals with possession and not ownership. Therefore, the agents of the company who had taken possession of the bus forcibly were liable under this section. Illustration: 'A\ intending to commit theft enters the house of 'B' at night and removes from one of the rooms a heavy box to the courtyard where he opens it. He does not find in the box anything worth taking and leaving it there goes away. In this case A will be liable for attempting theft and also for house trespass under Section 442 of IPC. Intention to Return /intention to take only temporarily: It is no defence to a charge of theft that the accused intended to take only temporarily or that he had an intention to return. Illustration : "A” takes an article belonging to 'Z' out of his possession without his consent with an intention of keeping it until he obtains reward form 'Z'. 'A' is guilty of theft. Naushe Ali Khan, 1911, Alld : The accused snatched away the books of a child who was coming out of the school gate, saying that the same would be returned to him (child) if he came to the house of the accused. The accused had committed the theft. Pyare Lal, 1963, SC 1094: The Accused was working in a government office. He removed certain file, made it available to an outsider and then returned it to the office after two days. It was held by the Supreme Court that the accused was guilty of theft. Extortion - Section- 383: Fear of injury is the main ingredient (that separates it from theft) 1) Subject matter of extortion- a) Movable b) Immovable c) Any other (such as valuable security) 2) Similarity with theft- a) Dishonest Intention b) Deprivation. 3} Extortion-vitiated consent. Theft-lack of consent. 4} Delivery of property is essential in extortion. 5) Delivery-change/transfer of possession. 6) If there is no delivery there is no extortion but there is attempt to extortion. 1. Ch. XVII (Sub. Sec. 378-462) provides for offences against property. 2. Offences defined and made punishable UlChXVl1 may be broadly classified into following three categories: KA M KU S 60 Strictly for Internal Circulation - KCL a) Offences causing deprivation of property. b) Offences causing damage to the property affected. c) Offences which violate any of the proprietary rights of the victim. 3. Theft, extortion, robbery and dacoity are most common offences in which a person suffers deprivation of his property. 4. Offence of extortion is defined U/s383 IPC. Extortion is punishable U/S 384 IPC. Extortion is a cognizable and non bailable offence. It is non-compoundable. 5. The subject matter of extortion could be any property or valuable security or anything signed or sealed which may be converted into a valuable security. 6. Dishonest intention is one of the essential elements of extortion. Extortion consists in obtaining delivery of some property by putting a person in fear of injury. 7. Extortion becomes a robbery in the circumstance provided for in sec. 390. Definition and Essentials of Extortion - Section- 383 : "Whoever, intentionally puts any person in fear of 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." From the analysis of Sec. 383 the following essentials of offence of extortion are made out: 1. The accused must have put any person directly or indirectly in an intentional fear of injury. 2. The accused must have obtained delivery directly or indirectly from the person so put in fear. 3. The accused must have done it with a dishonest intention. 4. The accused must have obtained directly or indirectly the delivery of one or more of the following: a) Any property. b) Valuable security. c) Anything signed or sealed which may be converted into valuable security. Subject Matter 1. Any property, valuable security or anything signed or sealed convertible into valuable security may be the subject matter of extortion. 2. Property means any property, movable or immovable, corporeal or incorporeal. 3. Valuable Security is a document. However, all documents are not valuable security. Sec. 30 IPC. 4. Valuable security is a document. The word document has been defined u/s 29 IPC. 5. Sec. 29 provides anything signed or sealed and convertible into valuable security may be the subject matter of extortion. Chandrakala vIs Ramkrishna, 1985, SC 1268 - Where the head-master of a school called a lady teacher to a place where he was alone and induced her to sign there blank papers by threatening an attack on her modesty, the Supreme Court held that it amounted to an offence under this section. Fear of Injury: Fear of injury is one of the essentials of extortion. IPC defines the word injury. Sec. 44 provides: "The word injury denotes any harm whatever illegally caused to any person in body, mind, reputation or 63 KA M KU S Strictly for Internal Circulation - KCL remaining three could not be convicted of dacoity, as the offence of dacoity could not be committed by less than five persons. 2. Ghamandi, 1970: Where in spite of the acquittal of a number of persons, it is found as a fact that along with the persons convicted there were other unidentified persons who participated in the offence, bringing the total number of participants to five or more, it was held that the conviction of the identified persons, though less than five, was perfectly correct. Punishment for Dacoity - Section- 395: Life imprisonment or rigorous imprisonment up to 10yrs and also fine. Aggravated forms of Dacoity 1. Dacoity with murder (Sec.396) - Death or life imprisonment. 2. Dacoity with attempt to caused death or grievous hurt. (sec. 397) Shall not be less than 7yrs.) 3. The preparation was to commit robbery. Preparation to Commit Dacoity – Section -399 Ingredients 1. The act of the accused persons amounted to preparations; 2. The presence of five or more person making preparations; 3. The preparation was to commit robbery. The offence is cognizable, non-bailable, non-compoundable, punishable to the extent of rigorous imprisonment up to 10 years and fine, and triable by the Court of Sessions. CRIMINAL MISAPPROPRIATION OF PROPERTY (SECTION-403) Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Illustration 1 a) A takes property belonging to Z out of Z's possession in good faith, believing, at the time when he takes it, that the property belongs to himself. A is not guilty of theft; but if A, after discovering his mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this section. b) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes away a book without Z's express consent. Here, if it was under the impression that he had, is implied consent to take the book for the purpose of reading it, A has not committed theft. But, if A afterwards sells the book for his own benefit, he is guilty of an offence under this section. c) A and B, being joint owners of a horse, A takes the horse out of B's possession, intending to use it. Here, as A has a right to use the horse, he does not dishonestly misappropriate it. But, if A sells the horse and appropriates the whole proceeds to his own use, he is guilty of an offence under this 64 KA M KU S Strictly for Internal Circulation - KCL section. Explanation1: A dishonest misappropriation for a time only is a misappropriation within the meaning of this section. Illustration 2: A finds a Government promissory note belonging to Z, bearing a blank endorsement. A, knowing that the note belongs to Z, pledges it with a banker as a security for a loan, intending at a future time to restore it to Z. A has committed an offence under this section. Explanation 2: A person who finds property not in the possession of any other person, and takes such property for the purpose of protecting it for, or of restoring it to, the owner, does not take or misappropriate it dishonestly, and is not guilty of an offence; but he is guilty of the offence above defined, if he appropriates it to his own use, when he knows or has the means of discovering the owner, or before he has used reasonable means to discover and give notice to the owner and has kept the property a reasonable time to enable the owner to claim it. It is not necessary that the finder should know who is the owner of the property, or that any particular person is the owner of it: it is sufficient if, at the time of appropriating it, he does not believe it to be his own property, or in good faith believes that the real owner cannot be found. CRIMINAL BREACH OF TRUST (SECTION 405) General 1. Sec. 405 defines criminal breach of trust. Criminal Breach of Trust simpliciter is punishable u/s 4061PC 2. Section 407, 408 & 409 provide for aggravated forms of criminal breach of trut. - 407 - Criminal breach of trust by a carrier - 408- Criminal breach of trust by servant/agent. - 409- Criminal breach of trust by public servant, banker etc. Essentials of Criminal Breach of Trust 1. The accused must have been entrusted with property, or he must have been given any dominion (possession and control) over property. 2. The accused must have dishonestly: - Misappropriated it; or - Must have converted it to his use; or - Must have used or disposed of the property in violation of the law or contract touching the discharge of the trust; or - Must have suffered knowingly the same. Deductions made for Provident Funds: Explanation. I to Sec. 405 a) A person (employer of an establishment) who deducts the employee's contribution from the wages 65 KA M KU S Strictly for Internal Circulation - KCL payable to the employee for credit to a Provident Fund or Family Pension Fund shall be deemed to have been entrusted with the amount so deducted. b) If the employer makes default in payment of such contribution to the concerned funds, he shall be deemed to have dishonestly used them. Deductions for Employees State Insurance Fund: Explanation II to Sec. 405 : A person (employer of an establishment) who deducts the employees contribution from the wages payable to the employees for credit to an Employees' State Insurance Fund shall be deemed to have been entrusted with the amount. Dishonest Misappropriation of Property: Sec. 403 defines dishonest misappropriation of property and also provides for punishment for an aggravated form of dishonest misappropriation of property. Essential Elements : 1) Dishonest intention 2) Movable property Punishment Sec-403 Imprisonment of either description up to 2 years or with fine or both. Misappropriation or conversion to own use. Dishonest Misappropriation of Property possessed by Deceased person at the time of his death: Sec. 404 Possession ceases as soon as the death of possessor occurs. 1. If the offender was clerk or servant of the deceased he would be liable to Imprisonment up to 7 yrs and also fine. 2. If the offender was someone else he would be liable to punishment up to 3yrs and also fine. CHEATING AND MISCHIEF 415 – Defines cheating Whoever, by deceiving any person Induces that person- - fraudulently; or - dishonestly to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do/omit to do anything causing damage or - harm to - body - mind 68 KA M KU S Strictly for Internal Circulation - KCL Lurking House Trespass by Night - Section- 444 read with Sec.- 456 : Whoever commits lurking house trespass after sunset and before sunrise is said to commit lurking house trespass by night. Punishment – Section – 456 : imprisonment of either description up to 3 yrs and also fine. House Breaking - Section - 445 read with Section - 453 i) House breaking is a kind of house trespass. ii) House trespass may amount to house breaking if the offender (house trespasser) effects his entry or makes his exit in any of the six ways specified u/s 445. iii) Sec. 445 lists following 6 ways: a. Entry or quitting through a passage made by himself or by the abettor. b. Any passage not intended to be used for entry or exit. c. A passage opened for committing house trespass. d. A passage by opening lock. e. Making a way by scaling to exit or enter. f. Entry or exit by use of criminal force or assault or threat thereof. House breaking is an aggravated form of house trespass. In the matter of exit following should be considered: a) The offender must have been in the house for committing an offence. b) The offender must have made his exit in any of the ways after committing the offence. Example: a) 'A' makes a hole in the wall and thrusts his hand through that. Ans.: House trespass. Self made way : ' b) A' commits a house trespass through window. It is house breaking. ' c) A' finds the key of Z's house. 'N opens the door of the house and enters. It is house breaking. Punishment: Imprisonment of 2 yrs and also with fine. House breaking by Night - Section- 446 read with Sec.- 456 : Whoever commits house breaking after sunset and before sunrise is said to commit house breaking by night. Punishment: Imprisonment up to 3yrs and also fine. FORGERY, MAKING FALSE DOCUMENTS 463 - Defines forgery 69 KA M KU S Strictly for Internal Circulation - KCL Whoever Makes any false- - document, r - part of a document With intent to: a) cause - damage Injury. to Public; or any other person. b) to support a claim title; or c) to cause any person to part with property; or d) To enter into any express or implied contract; or e) With intent to commit fraud or that fraud may be committed, commits forgery. 465 - Punishment for forgery Imprisonment of either description up to 2yrs/fine/both. 466 - Forgery of record of court or of public up to 7yrs and also fine. 470 - Forged document A false document made- - wholly - in part by forgery. 471 - Using a forged document as genuine. Punished in the same manner as if he had forged such document. 482- Punishment for using false document. Imprisonment up to one year/fne/both DEFAMATION SECTION 499- GENERAL 1. Defamation is a civil as well as a criminal wrong. Therefore, the person aggrieved may file civil as well as criminal proceedings simultaneously. 2. Although defamation is both civil and criminal wrong, yet the essential ingredients are different for each. So the exceptions are also different for each. 3. Civil Law recognizes following two kinds of defamation- a) Libel b) Slander Criminal Law does not recognize the above kinds. 4. Chapter XXI (499-502) provides for defamation. Section 499 IPC defines defamation. Section 500 provides for punishment for defamation. Sections 501 and 502 provide for specific cases of 70 KA M KU S Strictly for Internal Circulation - KCL defamation. 5. Defamation consists in making or publishing any imputation. The imputation must be with necessary mens rea. 6. All imputations do not constitute defamation. Only that imputation constitutes defamation which harms reputation of a person. -Intention -knowledge harm to reputation -reason to believe Definition and Essentials of Defamation - Words - oral Means - written visible representation (eg: cartoon, caricature, signs and gestures) Whoever- (1) By words either spoken or intended to be read, or by signs or by visible representation, (2) makes or publishes any imputation concerning any person, (3) Intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person is, (4) Exception in cases hereinafter excepted, said to defame that person. Defamation of a Deceased Person: Section 499 - Explanation I : Defamation of a Decesed Person : Section 499- Explanation I: 1. Defamation of a dead person is not a civil wrong or a tort. But the same may amount to an offence u/s 499 IPC. 2. An imputation concerning a deceased person may be a defamation if it could have harmed the reputation of the deceased person if he were alive and if it intended to hurt the feelings of his family or near relatives. 3. Making an imputation against a deceased person is not only uncivilized but also immoral. Imputation against a company or association or collection of persons - Explanation II to Section 499: An imputation concerning a company or an association or collection of persons as such may amount to defamation. Imputation in the form of an alternative or ironical expression - Explanation 11\to Section 499: An imputation in the form of an alternative or ironical explanation may be a defamation. An Imputation harmful to the reputation: Explanation. IV to Section 499 1) All imputations are not harmful to the reputation. 2) Only those imputations are harmful to the reputation which lower a person in the estimation of others. 3) Imputations are considered to harm a person's reputation: a) One which lowers the moral or intellectual character of a person; or b) One which lowers a person's morale concerning his caste or his calling, or c) One which lowers the credit of a person; or 73 KA M KU S Strictly for Internal Circulation - KCL UNIT - V OFFENCES RELATING TO MARRIAGE 493 - Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. - Causes any woman, not lawfully married to him, to believe that she is lawfully married to him; - She cohabits or has sexual intercourse with him in that belief. - Imprisonment up to ten years and fine also. - 494-Marrying again during lifetime of husband or wife. (Bigamy) Imprisonment of either description up to 7yrs and fine. Exception 1) Where the first marriage is declared void by a court of competent jurisdiction. 2) Where the former husband or wife has been continually absent for 7 years and not heard of by the spouse. But he/she must disclose the fact of first marriage to parties to the second marriage. 495 - Marrying again during lifetime of husband or wife, with concealment of former marriage for person with whom subsequent marriage is contracted. Imprisonment of either description which may extend to 10yrs and fine. 497- Adultery - Sexual intercourse with a person - Who is, whom he knows, whom he has reason to believe - to be wife of another man - without consent of, connivance of that man - such sexual intercourse not amounting to offence of Rape. Imprisonment of either description of a term which may extend up to 5 years or with fine or with both. - Wife shall not be punishable as an abetter. 74 KA M KU S Strictly for Internal Circulation - KCL 498 – Enticing, taking away or detaining a married woman with a criminal intent: Whoever Takes away Entices aay Any woman, Who is Whom he knows Whom he has reason to believe - to be the wife of any other man, with intent that she may have illicit intercourse with any person, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both. SPECIAL PROVISION FOR WOMEN IN IPC In IPC there are many provisions according to which a men can be punished. A women can not commit such offence or in sum offences only a women may become the victim. For example: Section 304A is related with dowry death. An offence under this section may be committed against a married women hence a man can not be victim under this section. Section 498A is related with cruelty against a married women by her husband or his relatives. Under this section only a married lady may be subjected to physical torture or mental harrisment. The husband or his relatives may commit offence under this section. Section 497 is related with adultary. For the offence of adultary a man in promiscuity with a married lady may be accused under this section. The married women is treated as victim cease not participis Section 375 and 376 are related with rape. In India this offence may be committed only against a women not against a men. Hence a man may be punished for such offence. CRUELTY BY HUSBAND OR RELATIVE OF HUSBAND (SECTION 498A) Dowry Death (5-304-8) - General 1. Section 304-8 has been inserted by the Amendment Act No. 43 of 1986. 2. Section 304-8 is to be read with Section 2 of the Dowry Prohibition Act. 1961. 3. Dowry Death is a cognizable, non-bailable, and non compoundable offence. It is triable exclusively by the Court of Sessions. Essential Elements Section 304-8(1) 1. The death of a married woman must have been caused. 2. Such death must have been by burns or bodily injury or otherwise than under the normal circumstances. 3. The death must have resulted within 7 years of the marriage of the victim. 4. Soon before her death the victim must have been subjected to cruelty or harassment by her A 75 KA M KU S Strictly for Internal Circulation - KCL husband or any of her husband's relatives. 5. Such cruelty or harassment must be in connection with or for any demand for dowry. Death resulting in the above circumstances shall be called dowry death and the person causing such death shall be deemed to have caused such death. Burden of Proof: Section 113-B Indian Evidence: Section 304-8(1) is to be read with S-113-8 of Evidence Act u/s 1138. The burden of proving that the accused husband or his relative has not caused the dowry death lies on such accused person. The presumption of guilt U/s 1138 is rebutable. Punishment for Dowry death: Section 304-B(2) 1. Imprisonment of either description for a minimum period of 7 yrs. 2. The extent of Imprisonment may extend to life imprisonment also. Imprisonment up to 3 years and fine. Explanation-defines guilty. Any willful conduct of such nature a) any willful conduct of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life of the woman ·Limb b) Harassment Health Mental Physical To coerce her or any other person related to her- 1. to meet any unlawful demand for any Property. Valuable Security. 2) On account of failure by her or person related to her to meet such demand. CRIMINAL INTIMIDATION, INSULT AND ANNOYANE (SECTION 503) Whoever, Threatens Another Or any person in whom that person is interested With any injury to Person Reputation Property. 78 KA M KU S Strictly for Internal Circulation - KCL 4. Entering upon another's property, or unlawfully remaining there, with intent to insult any person in possession thereof: S. 441. 5. Intentional insult with intent to provoke breach of the peace: S. 504. 6. Uttering words, making any sound or gesture, or exhibiting any object intending to insult the modesly of a woman: S. 509. Statements Conducing to Public Mischief (Section 505): Section 505 makes it an offence to make, publish or circulate any statement, rumour or report: i) with intent to cause any officer, soldier, sailor or airman in the Army, Navy or Air Force, to mutiny, or to disregard or fail in his duty; or ii) with intent to cause fear or alarm to the public, whereby any person may be iii) induced to commit an offence against the State or public tranquility; or iv) with intent to incite any class of persons to commit any offence against any class. [Punishment: Imprisonment for two years or fine, or both.] Divine Displeasure (Section 508) : Any act or omission caused by inducing a person to believe that he will be rendered an object of Divine displeasure, if he does not do or omits to do the things which it is the object of the offender to cause him, to do or omit, is punishable by Section 508. (Punishment: Imprisonment for one year, or fine, or both.] Misconduct in Public by Drunken Person (Section 510): Intoxication alone is not made punishable by the Code. But a person who, in state of intoxication, appears in any public place, or in any place which it is a trespass in him to enter, and there conducts himself in such a manner as to cause annoyance to any person, is liable to punishment under Section 510. [Punishment: Imprisonment for 24 hours, or fine of Rs. 10, or both.] ATTEMPT TO COMMIT OFFENCES - Difference between preparation and attempt. - At what stage preparation becomes attempt. - Attempt is possible though the offence is impossible. - Whether attempt to murder comes within the purview of Section 511 or whether it falls only u/s 307. - Punishment for attempt is half the punishment for such offence. - Residuary, if there is no provision for attempt of any offence then only Section 511 is attracted. o offence punishable with life imprisonment. o any act in furtherance of doing of the offence o no specific provision for attempt. o Punishment General : 1. Section 511 provides for punishment for attempt to commit an offence punishable with life imprisonment (for which there is no specific provision for punishment). 2. Section 511 is a residuary section. It does not cover such attempts as have been made punishable under some specific provision of the code. In other words Section 511 is not 79 KA M KU S Strictly for Internal Circulation - KCL exhaustive. 3. Section 511 makes it punishable even those attempts of offences which were physically impossible to be committed. Stages of a Crime 1) Intention to commit offence. 2) Preparation to commit offence. 3) Attempt to commit offence. 4) Offence itself. Criminal intention is not punishable. The underlying principle is that law takes note of the external acts of men and it does not peep into the hearts of people. Preparation to commit an offence is also not punishable. The reason is that a person may change his intention even after making the preparation. Sections 122, 126 & 399 IPC are exception to it. These sections provide for punishment for preparation to commit certain offences. Stage of attempt begins after the preparation is over. There are practical difficulties in determining whether the act of the accused is a mere preparation or a punishable attempt. In principle the two terms are distinguishable. But in certain cases it becomes difficult to determine. Distinction between Preparation and Attempt a. Preparation is a stage subsequent to the criminal intention but it precedes attempt. b. Attempt is a stage subsequent to the preparation. Offence is committed if attempt succeeds. c. Stage of preparation is generally not punishable (except U/s 122, 126, 399) whereas attempt to commit an offence is punishable. d. Preparation suggests devising or arranging means and measures. Attempt suggests advancement towards criminal plan and an action in pursuance thereof. (Direct movement towards commission of offence after preparation) e. Distinction between preparation and attempt cannot be stated in abstract. Judges are too often not unanimous on the question. f. State of Maharastra v/s Mod. Yakub: Whether the act of the accused constituted an attempt is a mixed question of facts, and circumstances of law. g. In preparation, withdrawal from the act is possible but in attempt there is no chance of withdrawal. - whether an act is an attempt or preparation depends on facts and circumstances of a case. Held: Proximity is enough to constitute attempt. Penultimate act is not necessary. h. Om Prakash v/s State, 1961, SC: Held: If the act of the accused is sufficiently approximate to the offence, it may amount to an attempt. An Act forwards the committal of offence: 1. To constitute indictable attempt, it must be shown that accused did commit an act towards the committal of an offence in his attempt. 2. The expression "does any act towards the committal of offence" simply mean an act immediate and 80 KA M KU S Strictly for Internal Circulation - KCL direct or proximate towards the offence. It is not necessary that such act should be penultimate. It is enough that it is sufficiently near or proximate. Essentials of Sections- 511 1. The accused must have attempted to commit an offence punishable with life imprisonment or imprisonment or to cause such an offence to be committed. 2. The accused, in such attempt, must have done any act towards the commission of the offence. 3. There must not be any express provision under the code for the punishment of such attempt. In a case if the above requirements are satisfied, the accused would be liable to be convicted and punished u/s 511. The person found guilty of attempt shall be punishable with up to half of the imprisonment for the offence or with fine provided for the offence or with both. Bhagiratha Vs. DL DL admn, 1985, SC – Held: a) Life imprisonment means imprisonment for the whole of life. b) Where a fraction of life imprisonment is to be computed, life imprisonment shall be taken to be a period of 20 yrs. Attempt to cause an Offence Punishable with life Imprisonment or Imprisonment to be Committed: This expression suggests attempt to abet an offence. Therefore, attempt of an abetment is also punishable u/s 511. Abetment is a substantive offence. Therefore, its attempt is also punishable. IMPORTANT QUESTIONS Q.1. What are the offences relating to 'Marriage' under I.P.C.? Q.2. Explain dowry death, its ingredients with the help of illustrations. Q.3. Define criminal intimidation. Discuss its essentials. Q.4. Discuss different stages of crime. Distinguish between preparation and attempt to commit a crime. Q.5. "An attempt is an intended, apparent and unfinished crime". Explain and state the essential elements of an attempt to commit a crime. Q.6. Write a short note on bigamy and adulteries. SUGGESTED READINGS 1. Gaur KD. "The Indian Penal Code", 3rd Ed., Universal Publications, New Delhi. 2. Mishra, S.N. "The Indian Penal Code", 13th Ed., Central Law Publications, Allahabad. 3. Ratan Lal Dhiraj Lal "Indian Penal Code", 28th Ed., Wadhwa Publications, Lucknow. 4. Tandon M.P. "The Indian Penal Code", Allahabad Law Agency, Allahabad.