Law and You > Criminal Laws > Indian Penal Code > Model Question Paper 1 Solution: Law of Crimes

Q1. Answer the following in not more than two sentences (Any Six)                     12 M

a) Give two points of difference between civil law and criminal law.

b) Define document.

According to Section 29 of IPC, the word “document” denotes any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter. 

c) Name different kinds of punishment under IPC.

According Section 53 of IPC, different kinds of punishments are as follows:

• Death.
• Imprisonment for life.
• Imprisonment, which is of two descriptions, namely: (1) Rigorous, that is, with hard labour; and (2) Simple.
• Forfeiture of property.
• Fine.

d) What is criminal conspiracy?

Section 120A defines the term ‘Criminal Conspiracy’. According to Section 120A, when two or more persons agree to do, or cause to be done,

1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

e) What is affray?

According to Section 159 of IPC, when two or more persons, by fighting in a public place, disturb the public peace, they are said to “commit an affray”.

f) Give two examples of public nuisance.

• Health Nuisances: Includes pollution, spreading of contagious diseases, keeping ferocious animals, dumping unprocessed waste or garbage.
• Moral Irritants: includes pornographic public watching, prostitution, and illicit gaming.
• Drug Nuisances: includes illegal drug usage or sales, dug adulteration.

g) Name offences related to religion under IPC.

The Offences related to religion are classified into three categories:

• Injuring or defiling place of worship with intent to insult the religion of any class (Section 295 IPC)
• Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs (Section 295A IPC)
• Disturbing religious assembly (Section 296 IPC)
• Trespassing on burial places, etc (Section 297 IPC)
• Uttering, words, etc., with deliberate intent to wound the religious feelings of any person (Section 298 IPC)

h) Name offences related to elections under IPC.

The Offences related to election are classified as follows:

• Bribery (Section 171B IPC)
• Undue influence at elections (Section 171C IPC)
• Personation at elections (Section 171D IPC)
• False statement in connection with an election (Section 171G IPC)
• Illegal payments in connection with an election (Section 171H IPC)
• Failure to keep election accounts (Section 171I IPC)

Q2. Write Short Notes on the Following (Any Two)                                             12 M

a) Explain. “Actus non facit reum nisi mens sit rea”

The Latin maxim “actus non facit reum nisi mens sit rea” which means an act does not make one guilty unless there is criminal intent. This maxim can be considered as a cardinal rule of criminal law. There are two necessary elements in a crime, namely, a physical element i.e “actus reus” and secondly, a mental element “mens rea”.  The actus reus may be an act of omission or an act of commission’ but in order that the actus reus may be punishable, it must jointly be accompanied by a guilty mind i.e., mens rea. The existence of the mental element or guilty mind or the mens rea at the time of the commission of the actus reus or the act alone will make the act of the actor an offence.

Mens rea is the state of mind which indicates culpability, which is required by a statute as an element of the crime. As a general rule, every crime requires a mental element i.e., some blameworthy mental condition. Expressions connoting the requirement of blameworthy mind mental element include: “with intent, knowingly, recklessly, unlawfully, maliciously, knowing or believing, fraudulently, dishonestly, corruptly allowing and permitting.”

Mens rea may, however, be direct or implied. Mens rea implies that there must be a state of mind with respect to an actus reus, that is, an intention to act in the prescribed fashion. It is, however, important to distinguish mens rea from motive. Thus, if a person steals away a few loaves of bread from someone’s kitchen to feed a child who is dying of hunger, the motive here may be honourable and understandable, nevertheless, the mens rea being to commit the theft, the person would be convicted for theft. His motive may, however, be taken into account in sentencing and he may be less severely punished because of his good motive. In short, motive should be taken into consideration at the sentencing stage and not at the time of deciding the question of mens rea i.e. during the investigation.

In Rawalpenta Venkalu v. State of Hyderabad, AIR 1956 SC 171 case, the Supreme Court observed that the intention to kill the deceased was clear from the fact that the accused took care to lock the door from the outside so that his servant sleeping outside could not be of help to the deceased who had been trapped in his own cottage which was set on fire by the accused. Furthermore, when the villagers were roused from their sleep and tried to proceed towards the cottage which was on fire, they were prevented from rendering any effective help to the helpless deceased, by the use of force against them by the accused. Thus, the accused took active steps to prevent the villagers from bringing any succour to the man who was being burnt alive. Thus, the intention of the accused to kill the deceased was clear.

b) The Offence of Abetment under IPC

When more than one person contributes to committing an offence, each person’s involvement may vary. This variation may be either in the manner or in the degree to which the involvement occurs. One such involvement is due to abetment for crime. Chapter V of the Indian Penal Code, 1860 containing Sections 107 to 120 deals with provisions concerning abetment. The person who does the offence of abetment is called abettor.

Section 107 IPC:

According to Section 107 IPC, a person abets the doing of a thing, who—

First. — Instigates any person to do that thing; or

Secondly. — 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

Thirdly. — Intentionally aids, by any act or illegal omission, the doing of that thing.

Abetment is constituted by:

• Instigating a person to commit an offence; or
• Engaging in a conspiracy to commit it; or
• Intentionally aiding a person to commit it.

In Sanju v. State of Madhya Pradesh,(2002) 5 SCC 371 case, where there was a bitter quarrel between husband and wife. The husband in anger said to her wife go and die. The wife committed suicide after 2 days. The court held that the husband doesn’t have the required mens -ria for the offence. Thus, he is not liable for the offence of abetment.

Section 109 IPC provides for punishment for the offence of abetment. According to Section 109 IPC, whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

In Emperor v. Lavji Mahajan, AIR 1939 Bom 452 case, the Court held that if a person abets commission of murder by public, the murder is committed in consequence of the abetment; the appropriate provision for such an offence would be section 109, IPC.

c) Unlawful Assembly

For a country to grow, develop and reach new heights of good governance, it is of utmost importance that its government should be able to give its citizens a peaceful and egalitarian environment. The maintenance of Public Order and to ensure tranquility in the public discourse is the primary objective of any government. 

Article 19(1)(b) of the Indian Constitution confers onto the citizens the right to assemble. However, there is always a possibility that an assembly might turn unruly, causing damage not only to property but also to life. Such an unruly assembly is termed as “unlawful assembly.” Section 141 IPC defines the term unlawful assembly.

An assembly of five or more persons is designated an “unlawful assembly” if the common object of the persons composing that assembly is—

• To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legis­lature of any State, or any public servant in the exercise of the lawful power of such public servant; or
  • To resist the execution of any law, or of any legal process; or
  • To commit any mischief or criminal trespass, or other offence; or
  • By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or
  • By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Ingredients of Unlawful Assembly:

• There must necessarily be more than four persons sharing the common object. 
• The object of the assembly must be common to the persons composing the assembly.
• The common object must be
  • To overawe by criminal forceTo resist the execution of any law, or of any legal processTo commit any mischief or criminal trespass, or other offencesBy means of criminal force, or show of criminal force.
  • To compel any person by means of criminal force or show of criminal force

In Rajnath v. State of Uttar Pradesh, AIR 2009 SC 1422, case the Court held that a common object may be formed at any stage by all or few members of the assembly and other members may just join and adopt it. Once formed, it need not continue to be the same, it may be modified, altered or abandoned at any stage.

An assembly which was lawful at its inception became unlawful the moment one of them called on others to assault members of other party and they in response to this incitation started to chase the members of the other party who were running away. Evidence of premeditation or preparation is not necessary to impute a common object to the members of an unlawful assembly.

d) Sexual Harassment:

In 2013 vide section 7 of the Criminal Law (Amendment)  Act 2013, four new sections 354A, 354B, 354C and 354D have been added in the code in order to  deter  criminals  from indulging  in   sexual  harassment,  assault  or use  of criminal force to woman with intent to disrobe her; voyeurism and stalking, etc.

Sexual harassment of women is a global phenomenon prevalent both in developed as well as in developing countries. Cutting across religion, culture, race, caste, class and geographical boundaries it has spread like virus in the society.

Section 354A defines the term ‘Sexual Harassment’

According to section 354A of Indian penal code,

1. A man committing any of the following acts?
   1. physical contact and advances involving unwelcome and explicit sexual overtures; or
   1. a demand or request for sexual favours; or
   1. showing pornography against the will of a woman; or
   1. making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
2. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
3. Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Sexual harassment of women at workplace is also a violation of the right to life and personal liberty as mentioned in Article 21 that no person shall be deprived of his life or personal liberty. Workplace sexual harassment in India, was for the very first time recognized by the Supreme Court of India in its landmark judgment of Vishaka & Ors v. State Of Rajasthan & Ors

Q3. Answer the following by giving reason (Any Two)                                        12 M

(a) Tom incited Dick to urge Harry, who was of unsound mind, to burn down Peter’s house.

(i) What offence, if any has Tom committed?

(ii) What offence, if any, Harry has committed

(iii) What offence, if any, Dick has committed?

Solution:

(i) What offence, if any has Tom committed?

Tom has committed an offence of abetment of the offence of mischief by fire (arson).

According to Section 108 of the Indian Penal Code, a person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of commit­ting an offence with the same intention or knowledge as that of the abettor of the offence. Thus, according to Sections 106, and 107 of the IPC, Tom is abettor and be punished under Section 109 of IPC.

(ii) What offence, if any, Harry has committed?

Harry has not committed any offence, as he is of unsound mind.

According to Section 84 of IPC, 1860 nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. This principle is known as principle of insanity.

(iii) What offence, if any, Dick has committed?

According to Sections 106, and 107 of the IPC, Dick has committed the offence of abetment and he is abettor and be punished under Section 109 of IPC.

Illustration attached to Section 108 of IPC says that, A instigates B to set fire to a dwelling-house, B, in conse­quence of the unsoundness of his mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A’s instigation. B has committed no offence, but A is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment, provided for that offence i.e., under Section 109.

(b) Radha was harassed and tortured so much by her husband Ramesh and his father for not bringing enough dowry that one day, within a year of her marriage, she killed herself

(i) Can Ramesh be arrested and tried for any offence?

(ii) Can Ramesh’s father be held guilty of any offence?

(iii) Would Radha have been guilty of any offence if she had survived?

Solution:

(i) Can Ramesh be arrested and tried for any offence?

Yes, Ramesh be arrested and tried for the offence of dowry death.

According to Section 304B clause (1) of IPC, where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har­assment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

According to Section 304B clause (2) of IPC, whoever commits dowry death shall be punished with imprison­ment for a term which shall not be less than seven years but which may extend to imprisonment for life.

At the same time Ramesh can also be charged with abetment of suicide under Section 306 IPC. According to Section 306 IPC, if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Ramesh can also be punished under Sections 3 and 4 of the Dowry Prohibition Act, 1961 and under Section 498A IPC for cruelty.

(ii) Can Ramesh’s father be held guilty of any other offence?

Ramesh’s father can be arrested and tried for the offence of dowry death under Section 304 B and also for abetment of suicide under Section 306. He can also be punished under Sections 3 and 4 of the Dowry Prohibition Act, 1961 and under Section 498A IPC for cruelty.

(iii) Would Radha have been guilty of any offence if she had survived?

If Radha had survived, she would has been guilty of attempt of suicide. According to Section 309 IPC, whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year or with fine, or with both. Now this Section is declared unconstitutional. While, Ramesh and his father would have been charged under Section 498A of IPC. According to Section 498 A of IPC, whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

(c) Shobha interviewed Mira for a magazine called “Diva” which was edited by Urmila and printed in Lalwani’s Press. In the interview Mira stated that Ajit had cheated several poor widows of their money and was not a man to be trusted.

(i) What offence, if any, can Ajit prosecute Mira for?

(ii) How Shobha committed any offence?

(iii) How Mira and Lalwani committed any offence?

Solution:

(i) What offence, if any, can Ajit prosecute Mira for?

Ajit can prosecute Mira for the offence of defamation under Section 500 IPC. According to Section 499 IPC, whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. Also, the imputation does not fall under any of the ten exceptions contained in the Section 499 IPC. Punishment is prescribed in Section 500 IPC.

(ii) How Shobha committed any offence?

Under Section 499 IPC, Shobha also committed the offence of defamation by publishing imputations concerning Ajit intending to harm his reputation knowingly. Everyone who composes, writes, dictates, or in any way contributes to making of a defamatory statement is also to be the maker of that statement. Punishment is prescribed in Section 500 IPC.

(iii) How Mira and Lalwani committed any offence?

Mira has committed the offence of defamation under Section 499 and be punished under Section 500 IPC. According to Section 500 IPC, whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Lalwani will be charged for printing defamatory material under Section 501 IPC. According to Section 501 IPC, whoev­er prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. It is presumed that the editor, publisher, and printer know the contents of what is being edited, published, or printed.

(d) A, B, C, D and E quietly enter the house of Shyamlal and take away valuables lying in the cupboard. They try to make their escape quietly but the watchman sees them and tries to raise alarm. A strikes the watchman on the head with a stick and they make good their escape.

(i) State with reasons what offences they have committed?

(ii) In above cases if A, B, C, D, and E were caught with knives preparing to commit the act but having taken no steps towards it. Would they be guilty of any offence?

(iii) During trial E was set free of the offence. Would there be any change in the offence committed by A, B, C, and D have committed.

Solution:

(i) State with reasons what offences they have committed?

They have committed the offence of Dacoity.

According to Section 391 IPC, when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”

Essential Ingredients of Dacoity:

1. The accused commit or attempt to commit robbery;
2. Persons committing or attempting to commit robbery and person present and aiding must not be less than 5;
3. All such person should act conjointly.

Essential Ingredients of Robbery:

Section 390 IPC defines the offence of Robbery. Robbery is committed when a person takes or attempts to take property from another person in the following ways:

• By using or threatening to use force.
• By injuring the person or causing them to fear injury.
• By attempting to kill or severely injure the person.
• The property taken or attempted to be taken can be movable or immovable, and it must be taken with the intent of permanently depriving the owner.

All the ingredients of robbery can be traced in this case at the same time there are five members in the group committing robbery. Hence it is dacoity.

(ii) In above cases if A, B, C, D, and E were caught with knives preparing to commit the act but having taken no steps towards it. Would they be guilty of any offence?

Yes, they are guilty of the offence preparation for dacoity. Section 399 of the Indian Penal Code, 1860 talks about preparation to commit dacoity. It says that whoever makes any preparation for committing dacoity shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

(iii) During trial E was set free of the offence. Would there be any change in the offence committed by A, B, C, and D have committed.

The main ingredient of the offence of dacoity is that there should be minimum five members involved in the crime. If E is set free of the offence, then there are 4 members in the group committing offence. It cannot be dcoity but remaining accused can be charged with the offence of robbery.

Q4. Answer in details (Any Three)                                                                         39 M

a) All murders are culpable homicides but all culpable homicides are not murders.

Answer:

Culpable Homicide under Indian Penal Code:

Homicide is a term which originates from the Latin term ‘Homo’ means human and ‘caedere’ means killing. The act of homicide is an act that has been a part of human life since day. Early men used to kill each other for food or creating dominance, the kings used to perform homicide to win territories and now people kill each other in the sway of jealousy, greed, etc. Homicide is one of the most grievous act a person can commit as it is the highest order of bodily injury inflicted on a human being hence that’s why regulations regarding Homicide are really grave, for instance, culprits are usually sentenced to life imprisonment or the death penalty as these are the most extreme punishments given by the judiciary. In India homicide is divided into two forms- Culpable Homicide (Section 299 of the Indian Penal Code) and Culpable Homicide amounting to murder (Section 300 of the Indian Penal Code). Both of these have a very minimal difference but these differences prove to be very crucial for the legal system as the delivery of a fair judgment is dependent on these differences.

Section 299 of the Indian Penal Code:

This section defines culpable homicide as ‘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.’

An act done with the intention of causing death or causing such bodily injury which is likely to cause death or having the knowledge that he can likely by his act cause death, he’ll be committing the offense of culpable homicide. Conditions

We get 3 conditions which have to be fulfilled to attract Section 299 of the Indian Penal Code these are

1. The intention of causing death.
2. The intention of causing such bodily injury as is likely to cause death.
3. With the knowledge that he is likely by such an act to cause death.

Illustration:

A not knowing that D has a tumour in his brain, hits him hard on the head with a cricket bat, with the intention of causing death or with the knowledge that death is likely to be caused. D dies because of the bursting of the tumour. A is liable for culpable homicide not amounting to murder.

Section 300 of the Indian Penal Code:

This section defines murder as ‘culpable homicide is murder, if it satisfies any or all of these following conditions:

1. The act by which the death is caused is done with the intention of causing death, or
2. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. Or
3. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
4. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.’

Illustration:

X knows that Z has a tumour in his brain and he hits him again and again with a bat on his head with the intention of causing death, and Z dies subsequently. X is liable for Murder.

Exceptions to Section 300 of the Indian Penal Code 1862 Culpable homicide amounts to murder when the act is done with the intention of causing death but in the cases mentioned below this principle doesn’t apply. The following acts can amount to culpable homicide not amounting to murder. Exceptions 1-5 in the (d) and (f) illustrations of section 300 of the IPC define conditions when culpable homicide is not amounting to murder, these are as follows-

• It is not culpable homicide amounting to murder if it is committed by a person who gets deprived of the power of self-control and causes the death of someone because of a grave and sudden provocation.
• It is not culpable homicide amounting to murder when the offender causes the death of someone while exercises his right of private defense of person and property in good faith
• It is not culpable homicide amounting to murder if a public servant causes someone’s death while performing his duties and in good faith and he believes that his acts were lawful.
• It is not culpable homicide amounting to murder if a person causes the death of someone commits it in a sudden fight in the heat of passion upon a sudden quarrel
• It is not culpable homicide amounting to murder when a person suffers death with his own consent when he is above 18 years of age.

The differences between culpable homicide not amounting to murder and murder are subtle. In Culpable homicide, there is a definite Mens rea, a malicious intention to kill the victim, and the victim dies, but the person committing the homicide cannot be certain of death, but he/she hopes for it. It is complex to prove this in court, and judgments may run askew depending on the subjectivity of the case. In Murder, however, there is again, a definite Mens Rea, a malicious intention to kill the victim, and the victim dies, but the person committing the homicide is certain of death, and may even go out of his way to ensure it.

Example: “A” goes to “B” with the intention of severely scaring & hurting him; In the ensuing scuffle, “A” punches “B” in the abdomen and “B” dies as a result. “A” could not have been certain that “B” would die; this is chargeable under Culpable Homicide, not amounting to murder. However, if “A” had gone to “B’s” house, and forced “B” to consume poison or cyanide, “A” has gone to extreme and thorough measures to ensure “B’s” death, and the crime is chargeable under the crime of Murder.

Murders usually involve more premeditated action than culpable homicides, and some culpable Homicides may not be completely intentional

Example: In Salman Khan’s drunk driving case, he had no intention to kill, however, he was undertaking an activity he knew would be dangerous to himself and everyone else around him when he made the decision to drive while under the influence of alcohol. He was charged with causing death by a rash and negligent act – not amounting to murder.

A defendant may argue that he/she took precautions not to kill the victim, but merely injure or hurt, if faced with a charge of murder, to reduce the charge to that of culpable homicide, which carries a lower sentence.

Major Differences Between Culpable Homicide and Murder:

• A culpable homicide is the genus and murder is the species.
• The major difference between them is that murder is a more aggravated form of culpable homicide.
• In murder there is no presence of ambiguity that the act may or may not kill as it is present in culpable homicide, looking at Section 299 of the Indian Penal Code where there is clearly mentioned that:
• “Act done with the intention of causing death or causing such bodily injury which is LIKELY to cause death or having the knowledge that he can LIKELY by his act can cause death, he’ll be committing the offense of culpable homicide”.
• If you notice the multiple occurrences of the term “LIKELY” showcases that there is an element of ambiguity that the act of the accused may or may not kill the person, is present. Whereas, in the case of murder which is defined under Section 300 of the Indian Penal Code there is no such mention of words as “likely” which shows that there is no chance of ambiguity left on behalf of the accused, the accused is for sure that his act will defiantly cause death.
• As mentioned by Sir James Stephen, it is extremely difficult to distinguish between Culpable Homicide and Murder as the end result of both is death. But there is a presence of difference though little it all boils up to a very subtle distinction of intention and knowledge involved in both the crimes. The actual difference lies in the degree of the act there is a very wide difference of degree of intention and knowledge among both the crimes.

In Reg. v. Govinda, (1877) ILR 1 Bom 342 case,a clear distinction was drawn between culpable homicide and murder. According to the facts of the case, there was a quarrel between a husband and a wife in a fit of anger the husband knocked the wife. The wife became unconscious and the husband in order to wake the wife punched her with closed palms but unfortunately, the wife died because of internal bleeding in her brain. Herein, Melvil, J, held that the man was liable under Section 299 of IPC because clearly there was no intention to cause death and the act was not grave enough to cause death on the spot.

In Joginder singh v. State of Punjab, AIR 1979 SC 1876 case, the deceased Rupinder Singh had teased the sister of the accused. In retaliation, the two accused went to Rupinder’s house and shouted that they had come to take away the sister of Rupinder Sigh. In the meantime, the cousins of Rupinder Singh intervened. One of them was given a blow on the neck by the accused. Meanwhile, Rupinder Singh started running towards the field. The accused started chasing him and Rupinder Singh jumped into a well. As a result of this, he sustained head injuries, which made him loose consciousness and thereafter he died due to drowning. The Supreme Court held that the accused were 15 to 20 feet from Rupinder Singh, when he jumped into the well. There was no evidence to show that the accused drove Rupinder Singh into the well or that they left him no option but to jump into the well. Under these circumstances, it was held that the accused could have caused the death of Rupinder Singh, and hence they were entitled to be acquitted of the charge of murder. The Court further observed that the connection between the act and the death caused by the act must be direct and distinct; and though not immediate it must not be too remote.

In Ramakoteswar Rao v. State of A.P., 1986 CrLJ 680 A.P. case, a sudden quarrel arose between the deceased and accused. The deceased threatened the accused with dire consequences. The accused stabbed the deceased with a knife. The Court held that the offence would come under Section 299 and convicted the accused under Section 304 part-1.

In Shuklal v. State, 1953 CrLJ 1815 Punj case, the accused stabbed the deceased with a blunt sided weapon. There were 17 injuries on the body of the victim and all were simple in nature. The Punjab High Court held that the case fell under the third alternative mentioned in Section 299 i.e. “doing an act ….. with the knowledge that he is likely by such act to cause death”. The Court convicted the accused under Section 304 part-2.

In Bhagwan Singh v. State of Uttarakhand, Criminal Appeal No. 407 of 2020 case, Duringcelebratory gunfire the accused held the gun towards the roof of the house unfortunately the bullets got deflected and 5 people were hurt and 2 of them succumbed to their injuries. The accused pleaded not guilty as he had no intention to cause anyone’s death. The court noticed that the accused was carrying a loaded gun in public and he did not take proper care of his surroundings. He must’ve had an idea that the pellets could deflect and hurt someone. The court held him guilty. The offense amounted to culpable homicide under Section 299 of IPC, punishable under Section 304 Part 2 of the IPC.

Conclusion:

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. According to the Indian Penal Code, there are two types of culpable homicide. Culpable homicide not amounting to murder. (Sec 299 IPC), Culpable homicide amounting to murder. (Sec 300 IPC). Punishment for culpable homicide not amounting to murder (Sec 299) is given under Section 304 which is either imprisonment for 10 years or fine or both. It can extend to life imprisonment if there was intention present.

b) Explain in general the Chapter of the Indian Penal Code relating to property. Discuss any four such offences in detail with illustrations.

Answer:

Offences against property are covered under Chapter XVII (Sections-378 to 462) of the Indian Penal Code, 1860. Offences relating to property are mainly divided into two parts, namely movable and immovable. Any offence which is committed in regard to any property whether it is movable or immovable is punishable under the provisions of IPC. The basic element common to all these offences is dishonesty. However, the manner in which dishonesty is exercised differs in different cases. In this chapter we will discuss some important offences against property, which are as follows:

• Theft
• Extortion
• Robbery
• Decoity
• Criminal Misappropriation of Property
• Criminal Breach of Trust
• Cheating
• Criminal Trespass

Theft:

The offence of theft is defined under Sec.- 378 of the Code as follows:

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

Essentials Ingredients of Theft:

• Dishonest intention to take property.
• The property must be movable.
• The property should be taken out of the possession of another person.
• Without the consent of that person.
• Moving of the property.

The word ‘dishonestly’ is defined under Sec. 24 of the Code, as-“ Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.” It is not necessary that the taking must cause wrongful gain to the taker, it would be sufficient if it causes wrongful loss to the owner of the property. There can be not theft without the dishonest intention.

The offence of theft can be committed only against movable property. That means only movable property is subject of theft. The term ‘movable property’ is defined under Sec. 22 of the Code in the following word: “The words “movable property” are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to earth.”

The taking of the property must be without the consent of the person who is in possession of it.

The offence of theft is complete when there is dishonest moving of the property. The least removal of the thing from the place where it was before, amounts to taking though it may not be carried away.

Punishment for the Offence of Theft:

• Sec. 379 provides that whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
• Sec. 380 provides punishment for the offence of theft in dwelling house. It provides that whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

In Ramratan v. State of Bihar, AIR 1965 SC 926 case, the Court held that when a person seizes cattle on the ground that they were trespassing on his land and causing damage to his crop. He has right of land and crop. Hence seizing of the cattle is not a theft.

Ramcharan’s Case, (1898) 18 A.W.N.147 case, Ramcharan sold certain trees to X with complete knowledge that those trees belonged to C and X was not knowing it. The Court held that Ramcharan is liable for trial under offence of theft.

Extortion:

The offence of ‘Extortion’ is defined under Sec.-383 of the Code, as follows:

“Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits extortion”.

Essentials Ingredients of Extortion:

• Intentionally putting a person in fear of injury to himself or to any other person.
• Dishonestly inducing the person so put in fear to deliver to any person any property or any valuable thing.

One person is put in fear of injury to that person or to any other person. Injury may be of any kind, i.e. injury to body, property or reputation. Threatening a person to make a criminal charge against him, whether true or false, may also be sufficient for the purpose of offence of extortion

Actual delivery of the property by the person put in fear is essential to constitute the offence of extortion. Where a person put in fear offers no resistance to the carrying off of his property, but does not deliver any of the properties, then it will not amount the offence of extortion, however it may amount to the offence of robbery.

The property may be delivered to any person. It is not necessary that the threat should be used and the property is delivered to the same person. All the persons who used the threat and who received the property, will be held liable for extortion.

Differences Between Theft and Extortion:

• The offence of theft is committed without consent, as the property is moved out of the possession of a person without that person’s consent. While in case of extortion the consent is wrongfully obtained, or we can say the extortion is committed by overpowering the will of the owner.
• The theft is committed only against the movable property, while extortion can be committed in relation to any property, movable or immovable.
• In theft the property is taken, while in extortion the property is delivered. In theft no threat is used, while in extortion threat is used.

In Labhshanker v. State, AIR 1953 Sau. 42 case the Court held that to constitute the offence of extortion, it is not enough that the wrongdoer had done his part; it must produce the result also. If it fails to produce the requisite effect, the act would remain only in a stage of attempt.

In Dhananjay Kumar Singh v. State of Bihar 2007 CrLJ 1440 (SC) case the court distinguishing the extortion from the theft by saying that extortion is carried out by overpowering the will of the owner while in theft offender’s intention is to take away the property without the consent of the owner.

In A.R. Antulay v. R.S. Nayak, AIR 1986 SC 2045 case, where the accused was Chief Minister at the relevant time and the Sugar Co-operatives had some of the grievances pending consideration before the Government. The pressure was brought about on the Sugar Co-operatives to make the donations with a promise that their grievances shall be considered. Held that the ingredients of the offence of extortion not made out. There was no evidence at all that the management of the Sugar Co-operatives had been put in any fear and the contributions had been paid in response to threats.

Robbery:

Sec. 390 defines the offence of ‘Robbeyr’. It provides that in all robbery either there is theft or extortion. That means the offence of robbery is an aggravated form of either theft or extortion.

When Theft is Robbery?

Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carving away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.

For example: A holds Z down and fraudulently takes Z’s money and jewels from Z’s clothes without Z’s consent. Here A has committed theft, and by committing that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed rob­bery.

When Extortion is Robbery?

Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

Example: A meets Z with his child on the high road. A takes the child and threatens to throw him down a rock unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant harm to the child who is present. A has therefore robbed Z.

However, if A obtains property from Z by saying, “Your child is in the hands of my gang, and will be put to death unless you send us 1 lakh rupees.” This is extortion, and punishable as such; but it would not be robbery unless Z is put in fear of the instant death of his child.

Punishment for the Offence of Robbery:

• Sec. 392 provides that whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
• Sec. 393 provides that whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
• If hurt is caused, the punishment is imprisonment for life or 10 years and fine.
• Lastly, belonging to gang of persons associated for the purpose of habitually committing theft or robbery is punishable with imprisonment for 7 years and fine

Difference Between Robbery, Theft and Extortion:

The chief distinguishing element in robbery, theft and extortion is the presence of imminent fear of violence.

In Harish Chandra v. State of U.P., AIR 1976 SC 1430 case, where ‘A’ snatched the watch of ‘C’. ‘B’ stopped the victim in order to enable ‘A’ to carry away the watch. As the hurt caused by ‘B’ had relation to the theft of the watch, the accused were held liable for the offence of robbery.

Dacoity:

The offence of ‘Dacoity’ is defined under Sec. 391 as follows:

“When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting, or aiding, is said to commit dacoity.”

Essential Ingredients of Section 391:

• In order to commit dacoity the minimum number of persons required is five.
• All those five or more persons must act conjointly, i.e. with prior planning and with a common intention.
• There must be a united and concerted action on their part.

Thus, the offence of dacoity is an aggravated and graver form or robbery by reason of a greater number of offenders involved in the offence. If robbery is committed by 5 or more persons, then it becomes dacoity. We can also say that ‘in every dacoity there is robbery, but in every robbery, there is no dacoity’.

In counting the number of offenders for the purposes of this Section the whole number of persons conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt are taken into consideration.

Punishment for the Offence of Dacoity:

• Sec. 395 provides that whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
• Sec. 396 provides that if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Distinction between Theft, Extortion, Robbery and Dacoity:

Theft, robbery and dacoity resemble each other in that property is taken without the owner’s consent. However, theft can be committed in respect of movable property only, whereas extortion, robbery or dacoity can be committed in respect of immovable property also. Further, in theft, there is no use of force by the thief, whereas force may or may not be used according as robbery or dacoity is a form of theft or extortion. It may be noted that dacoity includes robbery and because robbery is only aggravated form of theft or extortion, therefore, dacoity includes theft and extortion also. Every case of dacoity is primarily a case of robbery but vice versa is not correct. Theft, robbery, and extortion can be committed by one person, whereas in dacoity, the least number must be five. Extortion is committed by the wrongful obtaining of consent. In robbery, the offender takes without consent or by the wrongful obtaining of consent. In dacoity, there is either no consent or consent is obtained wrongfully. The element of fear is clearly present in extortion and dacoity, but may or may not be present in robbery.

In Ram Shanker Singh v. State of U.P., AIR 1956 SC 441 case, where six persons were charged for committing dacoity. Three were acquitted. The charges framed did not indicate that along with the six persons, there were other unknown persons, who had committed dacoity. The three persons were held not liable for the offence of dacoity.

Criminal Misappropriation of Property:

Sec. 403 defines this offence by the name ‘Dishonest Misappropriation of property’ as follows:

“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.” The word ‘misappropriation’ means a dishonest appropriation, and use of another’s property for sole purpose of capitalizing it for one’s own use.

Example: ‘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 the offence under Section

Essentials Ingredients of Section 403:

• Dishonest misappropriation or conversion of property for a person’s own use.
• Such property must be movable.

Difference Between Criminal Misappropriation of Property and Theft:

Criminal misappropriation of property differs from theft, as in case of theft the offender dishonestly takes the property which is in the possession of another person, while in criminal misappropriation the possession of the property may come innocently in the hand of the accused but where, by a subsequent change of intention or from the knowledge of some new facts, with which the accused was not previously acquainted, the retaining becomes wrongful and fraudulent.

Conclusion:

The Indian Penal Code, 1860 covers various kinds of offences such as offences against body, offences against property, offences against marriage etc. Chapter XVII of it deals with the ‘Offences against Property’. It defines the various offences against property such as- theft, extortion, robbery, dacoity, misappropriation of property, and it also deals with the offences against immovable property such as the offence of criminal trespass and house trespass etc. It talks about the essential elements of all these offences which are required to be proved by the prosecution to prove the guilt of the accused and at the last it also provides the punishment for the commission of these offences.

c) What is defamation? What are the defences available in the exceptions to S. 499?

Answer:

Section 499 para 1 defines Defamation as “whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person”.

Essential Elements of Section 499:

1. making or publishing any imputation concerning any person;
2. such imputation must have been made by-
   • words, either spoken or intended to be read; or
   • signs; or
   • visible representations.
3. such imputation must be made with the intention (mens rea) of harming or with the knowledge or with reasons to believe that it will harm the reputation of that person.
4. The imputation must not be covered by any one of the ten exceptions given in the Section.

From essentials and the use of phrase “makes or publishes” we can conclude that, when a defamatory statement is published, it is not only the publisher, but also the maker who becomes responsible and it is in that context that the word “makes” is used in Section 499 IPC.

In B. R. K. Murthy v. State of A.P., 2013 CrLJ 1602 (AP) case, the appellant was the Special Correspondent of the said weekly. The accused published an article, in their journal, regarding the conduct of the Sri A. Shiva Shankar, IPS, Inspector General of Police (Intelligence) in the discharge of public functions/duties, which have defamed Sri A. Shiva Shankar. In the judgment the Court observed that the essentials of defamation are firstly, the words must be defamatory; secondly, they must refer to the aggrieved party; thirdly, they must be maliciously published.

Chandrasekharan v. State, 2014(4) KLJ 268 case, the Court held that in order to constitute an offence of defamation, the essential ingredient is to make an imputation, concerning any person, with an intention to harm or with knowledge or reason that such imputation will harm the reputation of such person. An imputation without knowing or having reason to believe that it will harm the reputation of such a person will not constitute an offence of defamation.

Section 499 of the Indian Penal Code defines defamation with Explanations and ten exceptions and a number of illustrations. Here are four explanations attached to this Section.

Explanation 1:

According to the first explanation, defamation of a dead person is also possible if the imputation against such person is such as would harm the reputation of that person if he were living and the intention of the offender is to be hurtful to the feelings of his family or other near relatives.

In Luckumsey Rowji v. Hurban Nursey (1881) 5 Bom 580 case, the Court held that no suit for damages will lie in the case of defamation of deceased person hence the heirs cannot claim any damages, but criminal prosecution can be followed if the imputation made is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2:

It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Even a company or collection or association of persons can be prosecuted for an offence of defamation. Persons representing a company may commit offences punishable under provisions of the IPC in the name of the company itself. For the offence wherein corporal punishment is prescribed, an artificial body like a company can be prosecuted but it can only be punished with a fine.

In Iridium India Telecom v. Motorola, (2011) 1 SCC 74  case, the Court had categorically held that the companies and corporate houses cannot claim immunity from criminal prosecution on the ground that they are incapable of possessing the mens rea for the commission of criminal offences. By way of the principle of attribution, the criminal intent of the alter ego of the company/body corporate i.e. the persons or group of persons in control of the affairs of the company and at the helm of its affairs would be attributed to the company.

If defamation of a class of persons is alleged, then that class must be a small determinate body.

Explanation 3:

Imputation in the form of an alternative or expressed ironically may amount to defamation.

An innuendo is a polite and innocent way of saying something on the surface but indirectly hints at an insult or rude comment, a dirty joke, or even social or political criticism. Thus, innuendo is a clever way to speak negative sentences in a very sarcastic way, which may appear to be positive at the surface of it. Innuendos are commonly used in everyday conversation as a socially acceptable way to be critical, mean, sexual, humorous, or even flirtatious. Under Section 499, defaming any person by innuendo is a form of criminal defamation.

Explanation 4:

No imputation is said to harm a person’s reputa­tion, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgrace­ful.

Exceptions:

First Exception:

Imputation of truth which public good requires to be made or published:

It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception:

Public conduct of public servants:

It is not defamation to express in a good faith any opinion whatever re­specting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

Third Exception:

Conduct of any person touching any public question:

It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

Illustration:

It is not defamation in A to express in good faith any opinion whatever respecting Z’s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending a such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situa­tion in the efficient discharges of the duties of which the public is interested.

Fourth Exception:

Publication of reports of proceedings of Courts:

It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

Explanation:

A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Jus­tice, is a Court within the meaning of the above section.

Fifth Exception:

Merits of a case decided in Court or conduct of witnesses and others concerned:

It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Illustrations

A says—“I think Z’s evidence on that trial is so contradic­tory that he must be stupid or dishonest”. A is within this exception if he says this is in good faith, in as much as the opin­ion which he expresses respects Z’s character as it appears in Z’s conduct as a witness, and no further.

But if A says—“I do not believe what Z asserted at that trial because I know him to be a man without veracity”; A is not within this exception, in as much as the opinion which he express of Z’s character, is an opinion not founded on Z’s conduct as a witness.

Sixth Exception:

Merits of public performance:

It is not defa­mation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.

Explanation:

A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.

Illustrations:

A person who publishes a book, submits that book to the judgment of the public.

A person who makes a speech in public, submits that speech to the judgment of the public.

An actor or singer who appears on a public stage, submits his acting or signing in the judgment of the public.

A says of a book published by Z—“Z’s book is foolish; Z must be a weak man. Z’s book is indecent; Z must be a man of impure mind”. A is within the exception, if he says this in good faith, in as much as the opinion which he expresses of Z respects Z’s character only so far as it appears in Z’s book, and no further.

But if A says—“I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a libertine”. A is not within this exception, in as much as the opinion which he expresses of Z’s character is an opinion not founded on Z’s book.

Seventh Exception:

Censure passed in good faith by person having lawful authority over another:

It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

Illustration:

A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a school-master, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censur­ing in good faith the cashier of his bank for the conduct of such cashier as such cashier—are within this exception.

Eighth Exception:

Accusation preferred in good faith to autho­rised person:

It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

Illustration:

If A, in good faith accuse Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, and child, to Z’s father—A is within this exception.

Ninth Exception:

Imputation made in good faith by person for protection of his or other’s interests:

It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the inter­ests of the person making it, or of any other person, or for the public good.

Illustrations:

A, a shopkeeper, says to B, who manages his business—“Sell nothing to Z unless he pays you ready money, for I have no opin­ion of his honesty”. A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.

A, a Magistrate, in making a report of his own superior offi­cer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.

Tenth Exception:

Caution intended for good of person to whom conveyed or for public good:

It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is inter­ested, or for the public good.

Punishment for Defamation:

Section 500 of IPC prescribes punishment for criminal defamation as “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”

The offence under Section 500 is non-cognizable, bailable, and non-compoundable and triable by Magistrate of the First Class. In all other cases, the offence is non-cognizable, bailable, and compoundable with the permission of the Court and triable by Magistrate of the First Class.

d) Give comparative analysis of various theories of punishment.

Answer:

Punishments:

Punishments are imposed on the wrong doers with the object to deter them to repeat the same wrong doing and reform them into law- abiding citizens. A Punishment is a consequence of an offense. Punishment generally is provided in Criminal Law. It is a social control.

According to Salmond a crime is an act deemed by law to be harmful for the society as a whole though its immediate victim may be an individual.

Sutherland and Cressey have mentioned two essential ideas while defining the concept of punishment:

• It is inflicted by the group in its corporate capacity upon one who is regarded as a member of the same group. War is not punishment for in war the action is directed against foreigners.
• It involves pain or suffering produced by design and justified by some value that the suffering is assumed to have.

Theories of Punishment:

• Deterrent Theory
• Retributive Theory
• Preventive Theory
• Reformative Theory
• Expiatory Theory
• Theory of Compensation

a) Deterrent Theory:

The term “Deter” means to abstain from doing an act. The main purpose of this theory is to deter (prevent) the criminals from doing the crime or repeating the same crime in future. Under this theory, severe punishments are inflicted upon the offender so that he abstains from committing a crime in future and it would also be a lesson to the other members of the society, as to what can be the consequences of committing a crime. This theory has proved effective, even though it has certain defects. The basic idea of deterrence is to deter both offenders and others from committing a similar offence.

Criticism to Deterrent Theory:

There is a lot of criticism of the deterrent theory of punishment in modern times. It has been criticized on the grounds that it has proved ineffective in checking crimes and also that excessive harshness of punishment tends to defeat its own purpose by arousing the sympathy of the public towards those who are given cruel and inhuman punishment. Hardened criminals are not afraid of punishment. Punishment losses its horror once the criminal is punished.

b) Retributive Theory:

This theory of punishment is based on the principle- “An eye for an eye, a tooth for a tooth”. Retribute means to give in turn. The object of this theory is to make the criminal realize the suffering of the pain by subjecting him to the same kind of pain as he had inflicted on the victim. This theory aims at taking a revenge rather than social welfare and transformation.

This theory has not been supported by the Criminologists, Penologists and Sociologists as they feel that this theory is brutal and barbaric.

“Kant argues that retribution is not just a necessary condition for punishment but also a sufficient one. Punishment is an end in itself. Retribution could also be said to be the ‘natural’ justification”,

According to Justice Holmes ‘It is commonly known that the early forms of legal procedure were grounded in vengeance.’

 According to Salmond the retributive purpose of punishment consists in avenging the wrong done by the criminal to society.

Criticism to Retributive Theory:

The main criticism of this theory is that punishment per se is not a remedy for the mischief committed by the offender. It merely aggravates the mischief. Punishment in itself evil and can be justified only on the ground that it yields better result. Revenge is wild justice. Retribution is only a subsidiary purpose served by punishment.

c) Preventive Theory:

This theory too aims to prevent the crime rather than avenging it. As per this theory, the idea is to keep the offender away from the society. The criminal under this theory is punished with death, life imprisonment etc.

while sending the criminals to the prisons the society is in turn trying to prevent the offender from doing any other crime and thus protecting the society from any anti-social elements.

According to Justice Holmes ” There can be no case in which the law-maker makes certain conduct criminal without his thereby showing a wish and purpose to prevent that conduct. Prevention would accordingly seem to be the chief and only universal purpose of punishment. The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed.”

According to Paton ” The Preventive theory concentrates on the prisoner and seeks to prevent him from offending again in the future. The death penalty and exile serve the same purpose.

Criticism to Preventive Theory:

The main criticism of this theory is that Preventative Punishment has the undesirable effect of hardening first offenders, or juvenile offenders, when imprisonment is the punishment, by putting them in the association of Harden Criminals.

d) Reformative Theory:

This theory is the most humane of all the theories which aims to reform the legal offenders by individual treatment. Gandhi ji said that “Hate the sin not sinner “. The idea behind this theory is that no one is a born Criminal and criminals are also humans. The main purpose of this theory, to treated a criminal like a diseased person. it is believed that if the criminals are trained and educated, they can be transformed into law abiding citizens. This theory has been proved to be successful and accepted by many jurists.

Criticism to Reformative Theory:

The main criticism of this theory state that if Criminals are sent to prison to be transformed into good citizens, a prison will no longer be a ‘prison’ but a dwelling house. This theory has been proved to be successful in case of young offenders.

e) Expiatory Theory:

Under this theory, it is believed that if the offender expiates or repents and realizes his mistake, he must be forgiven. This theory was prevalent in the ancient era in India. Manu smriti declared that ‘when an offender is found guilty of a crime and is sentenced to imprisonment by king, he becomes pure and goes to heaven like a good virtuous man.’ It implies that his crime is expiated. this theory is no longer prevalent in the modern era.

f) Theory of Compensation:

According to Theory of Compensation the object of punishment must not be merely to prevent further crimes but also to compensate the victim of the Crime.

Criticism to Theory of Compensation:

The main criticism of this theory is that it tends to oversimplify the motive to crime.

Conclusion:

Retributive theory and Deterrence theory are two such theories of punishment that continue to occupy public and intellectual space as regard their efficacy and relevance. Retributive theory is premised on the idea that a criminal should get the punishment s/he deserves otherwise it may lead to a situation where victim may seek revenge or s/he may well refuse to seek access to criminal justice system put in place by the state. This will in effect handicap the state to deal with criminals. However, the idea of punishment in the form of “an eye for an eye and a tooth for a tooth” remains debatable and the principle of lex talionis has invited criticisms in plenty.

e) What are the general exceptions in the IPC? Explain any five of them.

Answer:

The chapter IV states the General Exceptions (GE) enlisted under the IPC which exempts certain acts to be covered under the curb of an offence, it means these are defences which absolve the accused from any criminal Liability. Even if the Accused does not plead for these defences but if it is clear by the evidence that any of them are applicable the court will ‘suo motu‘ apply them on his case. Scope of general exceptions is very wide. GE is not only limited to the offences under IPC but it extends to the offences under special or local laws.

Chapter 4 consists of 31 sections sec.76-106) which may be further divided into 8 main heads:

1. Mistake of fact / Mistake of law. Ss. 76,79
2. Act of a judge (Judicial Acts). Ss. 77, 78
3. Accidental acts. S. 80
4. Necessity. S. 81
5. Incapability to commit a crime. Ss. 82 – 86
6. Acts done with consent. Ss. 87 -90
7. Triviality S. 95
8. Private defence Ss. 96- 106

Mistake of Fact (Bound by Law):

Sec – 76 provides immunity for the acts of a person who is bound by law- done in good faith- and by reason of mistake of fact, not by mistake of law. (Excusable act)

Example:

• A police firing at a rioting mob under lawful orders, did not commit any offence.
• Arrest by police a wrong person under mistake of fact.

In Shew Mangal’s case, it was held that a subordinate officer carrying the orders of his superior, is not liable.

Mistake of Fact (Justifiable by Law):

S-79 provides exemption from criminal liability in respect of acts of a person justified, or believing himself to be justified by law.

In Rao Bahadur Thapa’s case – Gurkha killing innocent women under the impression of apparitions.

Sec-76 deals with a real or supposed legal obligation and S-79 deals with a real or supposed legal justification. Under S-76 a person believes that he must act in a particular way and under S-79, a person thinks that he has justification for action and acts accordingly.

Judicial Acts:

S-77 provides exemption for judicial acts of a judge acting judicially in exercise of his power or acting in good faith and believing that such power is given by law to him. The acts must have been done in discharge of official duties. They must be within his jurisdiction. Must be performed in good faith. Exemption is available in case of irregular exercise of power or excessive use of jurisdiction. This principle is to sustain the Independence of Judiciary.

Sec-78 provides protection to officers acting under the authority of a judgment, or order of a court of justice. Act done in good faith. Belief in the legality of the court order. Protection is given even in respect of a defective or invalid order of a court.

Example: Police executing search warrant (Gambling Act) though the warrant is defective in law and illegal.

Accident:

Sec-80 provides exemption from criminal liability in respect of accidents in due performance of lawful acts. Act is done by –

• Accident or misfortune
• Without any criminal intention or knowledge
• In a lawful manner and by lawful means
• With proper care and caution.

Example: A hatchet, while cutting wood, flies off and kills a person, when there was no want of caution.

Absence of Criminal Intent:

Necessity:

S-81 gives legal protection to the doctrine of salvage i.e. self-preservation. Permits a lesser evil to avert a greater evil. S-81 grants immunity to a man with respect to acts committed under compelling circumstances forced necessity. Conditions to be satisfied are

• The act must have been done without any criminal intention to cause harm;
• The act must be done in good faith to prevent or avoid harm to other person or property
• Harm done in order to avert a greater harm. (mother’s life to be saved over a child in the womb.)

Example: A captain of a vessel, without his negligence finds suddenly a small boat within a short distance, and hits it under forced circumstances to save vessel. Similarly, pulling down a house to prevent great fire spreading to other areas.

Conflict in the application of the Doctrine of Necessity (salvage) in two areas –

• Necessity and homicide
• Necessity and Larceny. (stealing bread to avert hunger)

Queen vs. Dudley and Stephens (1884) known as Mignoets’ case – shipwrecked sailors killed the cabin boy for food were guilty of murder – temptation to murder should not be an absolute defense, and deliberate killing of man howsoever the temptation might be, cannot be justified by necessity.

Blackstone rules that ‘economic necessity is no defense of theft or larceny.’ But Bacon says that stealing of food to satisfy hunger is not larceny.

Involves a collusion of interests and consequential judgment of values – problems of great ethical and social difficulty.

Infancy:

Sec-82 exempts a child under 7 yrs. of age from criminal liability – Doli in capax. – absolute immunity. Sec-83 exempts act of a child above 7 yrs. and under 12 yrs. – qualified immunity. Child should not have attained sufficient maturity of understanding to judge the nature and consequences of his conduct.

9 year old Child picks up a necklace of Rs. 100/- from his friend’s house and sells for Rs. 20/- held child having sufficient maturity to understand the consequences of the act – no protection from S-378 theft.

Insanity:

Sec- 84 provides exemption from criminal liability in respect of acts of a person of unsound mind. (non compos mentis). At the time of the act, incapable of knowing the nature of the act and Not capable of understanding what he was doing was either wrong or contrary to law.

Insanity may be divided into Medical Insanity and Legal insanity. Indian law recognizes legal insanity. Established only if it is known that the cognitive faculties of the person are such that he did not know what he has done and what will follow his act.

In re Balagopal’s case – husband killed wife and son – held that the plea of insanity could well be substantiated by the statement of the doctor.

M’Naughten Rule – Diminished Responsibility. suffering from abnormality of mind either due to arrested or retarded development of mind; any inherent causes or induced by disease or injury – then mental responsibility is substantially diminished.

Four kinds of persons with non compos mentis-

• An idiot – who is of non-sane memory from his birth, perpetual infirmity, without lucid intervals,
• illness leading to non compos mentis’
• a Lunatic – afflicted by mental disorder only at certain periods and vicissitudes • Lunacy and madness are acquired insanity and idiocy is natural insanity.
• Intoxicated persons.

Intoxication:

Intoxication may lead to ‘dementia offectatia’, a state of mind equal to insanity i.e., the function of the mind is temporarily suspended. Ss-85 and 86 crystalize the law relating to acts committed by a person in intoxication in mitigating the rigor of law. Voluntary drunkenness cannot be a cloak of immunity.

To claim exemption from criminal liability on the ground of involuntary drunkenness, it must be established that he was –

• incapable of knowing the nature of the act, or
• that he was doing what was either wrong or contrary to law, and
• that the thing which intoxicated him was given to him without his knowledge or against his will.

Example: A person committing an offence when made intoxicated by fraud, coercion or ignorance practiced by someone.

S-86 says if an act is an offence only when done with a particular intent or knowledge, and such act is committed by an intoxicated person, he is liable unless he can show that he was intoxicated without his knowledge and against his will. Voluntarily drunken person will be liable as if he was sober when he did it- must be considered as an aggravation rather than a defence.

In Sarthi vs. State of M.P (1976), where three drunken accused roughed up the deceased making him unconscious, and without ascertaining whether he was dead or alive, hanged him from the ceiling fan – state of intoxication gave the accused benefit to be convicted under Sec-304 IPC instead of under Sec-302.

Duress:

S-94 exempts a person from criminal liability in respect of an act committed under compulsion or duress. Based on the principle, ACTUS NE INVITO FACTUS EST NISI ACTUS i.e. ‘an act done by me against my will is not my act’. This defence is subject to two exceptions (i) Murder and (ii) Waging war against Govt. of India, which is punishable with death. But English law permits a man to save his life at the expense of the state. The threat under S-94 must be of instant death to the person compelled to commit the offence.

In R. vs. HASAN (2005), House of Lords held that defence of duress is not admissible when the accused voluntarily associates with others engaged in criminal activity.

In R vs. Hudson and R vs. Taylor, charge of giving false evidence under threat of death by the other party – Trial court convicted and Court of Appeal set aside the conviction, the act of giving false evidence was under duress and threat of life.

R vs. BOURNE – Defence to a charge of bestiality – husband compelled his wife to have carnal knowledge of a dog which was an offence – on appeal held that wife was terrorized by husband to commit such act against her will and defence of duress exempted her from conviction.

Consent:

Ss-87-89 & 92 say under what conditions consent may be pleaded as a defence to a criminal charge i.e. when the harm caused to the consenting individuals should not be punished in the interest of the community.

S-87 gives immunity from criminal prosecution on the ground of consent in general. Ss-88, 89 and 92 extend protection in those cases only where harm is caused in good faith for the benefit of the consenting party. Intended to protect the interests of doctors and the like – VOLENTI NON FIT INJURIA operates.

S-87- immunity will not justify causing death or grievous bodily injury or harm likely to cause death, and which is known to the doer. The restriction is absolute and unconditional. Consenting party should be above 18 years of age. Consent may reduce the gravity of offence or mitigate the rigor of the punishment.

For Ex. Ponnei Fatimah’s case (1869) – Accused Snake charmer persuaded the deceased to be bitten by a poisonous snake inducing him to believe that he had the power to protect from any harm – accused could not save the deceased – deceased’s consent did not excuse the accused from criminal liability. Consent may be Express or implied.

BISHAMBHER vs. ROOMAL – (rape of harijan girl) Self-constituted Panchayat had the complainant parade through the village with blackened face and gave him a show-beating to save him from the attack of harijans. Held the action of the accused Panchayat is with the consent of the complainant. Tattooing a lawful activity when done with the consent of an adult – R. vs. WILSON. (1996)

S-88 grants immunity to persons like doctors from punishments for all acts, done in good faith and for the benefit of the consenting party, which may cause any harm except causing death intentionally.

Ex. A surgeon operating on a critical patient with the consent of the patient – No malice or negligence on the part of the doctor and the operation conducted for the benefit of the patient.

In G.B.GHATGE vs. EMPEROR – teacher who gave 5 – 6 strokes with a cane to a boy of 15 yrs. Guilty of misconduct – no offence is committed since a teacher is a delegate of the parent to protect the interests of the student. (law is now in reverse)

S-89 authorises guardian or other persons having lawful charge of –

• child below the age of 12 yrs
• a person of unsound mind – not competent to give consent in law to consent to inflict harm either himself or by another person, provided – it is done in good faith and – for the benefit of the such minor/person of unsound mind, and – the act is not either immoral or illegal. Sec-89 is a corollary to Sec-88 of the Code.

The benefit of Sec-89 cannot be claimed in four situation covered under the four provisos –

Intentional causing of death or attempt to cause death – Father, in good faith, kills his own daughter from falling into the hands of dacoits – no immunity since the act is intentional and illegal.

consent to the doing of anything likely to cause death for a purpose other than prevention of death or grievous hurt .

Causing or attempting to cause grievous hurt except for preventing death or grievous hurt or infirmity. Ex. Causing grievous hurt to a child under Sec-322 of IPC.

Abetment to commission of any offence. Ex. Father intending monetary benefit to the child of 15 years, abets B to commit rape on the child. Neither father nor B could be within the exception.

Sec-92 deals with the acts done in good faith for the benefit of a person without consent. Covers the cases not covered by sec-89 It deals with the cases of emergency and Sec-92 presumes implied consent of the party in question. Consent may be absolutely dispensed with when the circumstances are such as –

• to render consent impossible, or
• when the person is incapable of assenting, there is no one at hand whose consent can be substituted

Sec-92 presumes implied consent in two categories of cases –

• when it is impossible to obtain consent because the person who could accord consent might not be available and the act (operation) is urgent; and
• when it is not articulated or expressed.

Ex. A man falls under epileptic fit, suffers haemorrhage and bleeding – not capable of giving consent – Act of doctor in good faith and to save the victim, causing bleeding commits no offence.

Consent may be inferred from the conduct. Silence in many cases may signify consent. Ex. A modest girl signify her consent to her lover saying ‘no’ for a modest ‘yes’.

Communication:

Against a criminal Sec-93 gives protection to a person from criminal liability for making a communication to one which results in harm to him. To claim this protection –

• the communication must be made in good faith, and
• It must be made for the benefit of the person.

Ex. A doctor communicates in good faith to his patient the gravity of his disease and the probability of his living. The patient died of shock. Doctor is exempted from criminal liability.

X vs. HOSPITAL Z – Doctors disclosed to a prospective bride of the fact of HIV complaint of a proposed bridegroom. – Doctors are not subject to any liability. Bride is saved from future deadly consequences.

Trifles:

DE MINIMIS NON CURAT LEX i.e., the law will not take care of trifles. Sec-95 intends to prevent penalisation of negligible criminal wrongs, or offences of trivial nature. Though such acts fall within the letter of the law, they are not punishable within the spirit of law. Such acts are considered innocent.

Ex: To take a sheet of paper from other’s drawer, Pressing a man and causing hurt while getting into a railway compartment, Calling a person a liar, though it attracts defamation.

KISHORI MOHAN vs. BIHAR – fraternity of striking employees making fun of a non-striking employee – loyalist worker photographer with a garland of shoes around his neck – not shown either to the complainant or to any one – held as trifle.

Right of Private Defence:

Self-help is the first rule of criminal law. The right of private defense is absolutely necessary for the protection of one’s own life and property. Ss-96 to 106 state the law relating to the right of private defense of body and property. Use of necessary force against the assailant or wrong-doer is legally permissible when immediate state aid could not be procured. This right cannot be applied as a pretense for justifying aggression for causing harm to another person, nor for causing more harm than is necessary to inflict for the purpose of defense. The right is not absolute but subject to restrictions contained in Ss-97 to 105.

• Sec-96 lays down general proposition that – ‘nothing is an offence which is done in the exercise of the right of private defense.’
• Ss-97, 98 and 99 are of a general nature and deal with both aspects right to defend body and property.
• Ss-100, 101, 102, 106 are concerned with the defense of body.
• Ss-103, 104 and 105 are concerned with the defense of the property.

Sec-97 provides Right to defend

• one’s own body, and body of others against any offence affecting human body, and
• one’s own property- of others- movable and immovable- against any action of theft, robbery, mischief or criminal trespass or attempt to commit such acts.

This right is subjected to the restrictions under Sec-99., i.e. there is no right of private defense

• against the acts of public servant acting in good faith;
• against the acts of those acting under their authority or direction;
• where there is sufficient time for recourse to public authorities; and
• the quantum of harm that may be caused shall in no case be in excess of harm that may be necessary for the purpose of defense.

Biram Singh vs. State of Bihar (1975) – Two accused having received injuries, went back home, and fetched a sword and inflicted fatal blows – Right of private defense rejected.

R. vs. ROSE – Father used to beat mother on suspicion and one day took her to t-op of the stairs, when mother cried ‘murder, murder’ – Son, 21 yrs, shot at father and killed – held entitled to right of private defense.

Right of private defense of trespasser against true owner – only when the trespasser has been successful in accomplishing his mission.

Aggressor cannot take the plea of self-defense – Jaipal vs. Haryana (2000) – accused persons armed with deadly weapons and victims were without any arms – accused attacked the victims – No private defence.

S-98 provides self defence against an offence committed by a person who might be exempted from criminal liability, by reason of

• being unsound mind u/s-84
• want of maturity of understanding u/s-82,83,
• misconception of the part of that person u/s76, 79.

For ex. If, A an insane person, attempts to kill B, then B will have right of self defense against A.

Defence of Body:

S-100 provides that the right of private defense extends even to the causing of death or any other harm to the assailant under the following six circumstances: –

• An assault causing reasonable apprehension of death. In such a case, if the defender cannot exercise this right without causing harm to an innocent person, he may even run that risk. (S-106)
• An assault causing reason apprehension of grievous hurt
• An assault with the intention of committing rape.
• An assault with the intention of gratifying unnatural lust.
• An assault with intention of kidnapping or abduction.
• An assault with the intention of wrongfully confining a person under circumstances that may cause him to apprehend that he will not have any recourse to public authorities for his release.

Viswanath vs. State of UP (1960) – Accused saw his sister being abducted by her estranged husband, i.e. his brother-in-law – Accused stabbed the deceased brother-in-law – Trial court acquitted – H.C convicted – S.C set aside H.C. verdict (Sec-100 – cl.(v)

Yeswantrao vs. State of MP (1992) – Father killing the deceased when found in sexual intercourse with daughter – Trial court convicted and H.C. confirmed – S.C. held right of private defense was fully applicable.

Subject to the above restrictions, the right of private defense of body extends to the causing of any harm short of death. The right of self defence does not extend to the voluntary causing of death.(s-101)

When right of self defense available: S-102 and 105 fix the time when the right of private defene commences and the time during which it continues.

S-102 says that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt, threat to commit the offence, though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

Defence of Property:

S-103 The right of private defence of property extends to the causing of death or any other harm to the assailant under the following circumstances: –

• Robbery
• House-breaking by night
• Mischief by fire to building, tent, or vessel, used as a human dwelling or for custody of property.
• Theft, mischief or house trespass, reasonably causing the apprehension of death or grievous hurt.

S-104 says that the right of private defense of property extends to the causing of any harm short of death.

Sec-105 fixes the time when the right of private defense of property commences and when it comes to an end. This right commences as soon as a reasonable apprehension of danger to property commences and its continuation depends upon the nature of offence. It continues, in case of

• theft – till the offender retreated, or procurement of assistance of public authorities or till the property is recovered.
• robbery – as long as the offender causes or attempts to cause any person death or hurt or instant personal restraint continues.
• criminal trespass or mischief – as long as the offender continues in the commission of criminal trespass or mischief.
• House-breaking by night – as long as such house trespass that began continues.

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