INDIAN PENAL

CODE
Notes for Competitive Exams

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GENERAL PRINCIPLES OF CRIMINAL LIABILITY: ACTUS REUS AND MENS REA
➢ Formation of IPC: First Law commission by Lord Macaulay
➢ Received the assent of Governor-General: 6th of October, 1860
➢ Date of enforcement: 1st of January, 1862

First Law Commission IPC

Second Law Commission Cr.P.C. and Evidence
Third Law commission Lex Fori (local Laws)
Fourth Law commission Personal Laws.

In the criminal proceedings, state is a party, as crime is not only a wrong against the
individual but also against the whole society.

Actus non facit reum nisi Mens sit Rea, It is a well-known maxim of criminal Law which
means “an Act itself does not make a man guilty unless his intentions were so.”
Actus me invito factus non est Mens actus, means an act done by me against my will is
not my Act at all.
Fowler vs Padget 1798, The court held that the intention and Act both must concur to
constitute a crime.

ACTUS REUS AND MENS REA

In Law general rule is that crime consists of two elements - Actus Reus and Mens Rea.
There might be Actus Reus without Mens Rea. For example, if an infant of two years
while playing with a loaded pistol lets it go and kills another person, there is Actus Reus
without Mens Rea.
There might also be Mens Rea without Actus Reus. In ethics or religion an Evil deed
may be committed in mind and might constitute a wrong, even though it has not
manifested itself in physical conduct.

It may further be noted that Mens Rea as such is not punishable. For example, if A has
intention to kill B, A cannot be brought to the court on that ground.
➢ There are some exceptions to the general rule that intention as such is no crime.
such as, intention to commit some crime against state, or conspiracy to commit a
crime.
(Absence of Actus Reus) For example Section 120A, 120B. 121, 122,123,124A, 402
,etc. IPC
➢ However, sometimes an act alone is sufficient to constitute a crime without the
existence of Mens Rea. (Absence of Mens Rea) For example strict liability, absolute
liability, offences were rules are made for Public Purpose etc.

Criminal liability is mainly penal in nature. As far as “measure of criminal liability” is

concerned, three factors are taken into account in determining the appropriate measure
of punishment.

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 ➢ Motive behind the crime
➢ Magnitude of the offence
➢ Character of the offender.
As intention is an abstract idea, it is difficult to establish it and help is taken of
surrounding facts or factors.

Mens Rea and Statutory Offences:

It was well established rule in England that Mens Rea is an essential ingredient of
common Law but there is some uncertainty regarding applicability of Mens Rea in
statuary offences.
There are two cases on this point
R. vs Prince 1875, in this case, the court has not applied the doctrine of Mens Rea and
convicted the accused because his Act was against the Law as well as morality.
R. vs Tolson 1889, in this case the court has applied the doctrine of Mens Rea and
acquitted the accused and held that she acted in good faith, her Act was against the Law
but the same was not against morality.

This uncertainty has been removed by Justice Goodhart in 1947 in the case of Brand vs
Wood and he re-established the principle of Mens Rea and held that Mens Rea will be
applicable in Statutory offences unless its necessity is not expressly denied by the
legislation act statute.
Harding vs Prince 1948 and Sheraz vs De Rutzen 1895

Applicability of Mens Rea under Indian Laws

Sir J.D. Myne, Ratanlal and Dr. Gaur have taken a view that doctrine of Mens Rea under
IPC is wholly out of place. Every offence is defined and definition of it states what are the
requirements of that particular offence. Hence, they denied the applicability of Mens Rea
in IPC. But it is not true .

Mens Rea is applied in IPC in two ways.

1. By the use of words like dishonestly, fraudulently etc.
2. Chapter IV of IPC (general exceptions) presumes the absence of Mens Rea
(negative form of application of Mens Rea)

The Honorable Supreme Court in series of cases specially State of Maharashtra vs MH

George 1965 and Nathu Lal vs State of Madhya Pradesh 1966 held Mens Rea to be an
essential ingredient of offences unless its contrary is shown in the Act.
The word Mens Rea is not defined in IPC and it is also not used in any section.

Exceptions of Mens Rea

There are certain offences in which Mens Rea is not applicable.
➢ Strict liability, for example, Food Adulteration Act

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 ➢ Cases in which rules are made for the Welfare of the public and which are
punishable by fine only. for example, motor vehicles Act, Arms Act, NDPS Act,
Public liability Insurance Act 1991 etc.
➢ In Modern Times certain acts provide Absolute liability. for example Water Act,
Water Act etc

Mens Rea (guilty mind) and Motive (why the Act was done).
Motive is something which prompts a man to form an intention. In other words it is
ulterior intention. While intention is immediate mental condition. Intention relates to
means whereas motive relates to the end.
Where there is clear proof of motive for the crime, this lends additional support to the
court’s finding that accused was guilty but the absence of clear proof of motive does not
necessarily lead to the contrary conclusion.
There may be an offence without a motive in same way in which the strongest motive
may not impel a person to commit an offence. It may be noted that purity of motive cannot
absolve a person from criminal liability. Thus, if a person decides to kill his Starving
children because he feels that they will pass on to a better world, his motive is good but
his intention is wrong.
In criminal Law, the general rule is that motive is irrelevant and only intention is
relevant.

Broadly speaking in every crime there are four stages in the commission of an offence.
1. The first stage exist when the culprit first entertains the idea or Intention to
commit an offence.
2. In the second stage, he makes preparation to commit it.
3. The third stage is when he Attempts to commit it.
4. If the third stage is successful then finally the actual commission of the offence
takes place.
A mereIntention to commit offence is not punishable.

ELEMENTS OF CRIME
(1) Human being : the act must be committed by human being before it can constituted
a crime punishable by law. He must be under legal obligation to do an act in particular
manner and should be fit subject for award of appropriate punishment.
Section 2 IPC provides that every person who has committed an offence in India will be
punished under IPC.
Under Section 11 person includes company, firmetc. In state of Maharashtra versus
Syndicate Transport Company, it was held that Corporation can be prosecuted under
Section 420, 403, 406 IPC because the word ‘person’ used in Section 2 includes
Corporation also

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Nullum crimen sine lege, nulla poena sine lege which means there must be no crime or
punishment except in accordance with fixed predeterm ined law.
1. There should be no retrospective effect of criminal law
2. Penal statute should be construed strictly
3. Certainity in legislation i.e., penal law should be strictly defined

(2) Evil Intention(Mens Rea) it denotes guilty Intention. An Act to be punishable under
IPC must be committed with guilty Intention. It is based on the following maxims
Actus non facitreum nisi mens sit Rea
Actus me invitofactus non estmensactus

(3) Act or omission (Actus Reus) Professor Kenny says that Actus Reus means an act
Forbidden by law. The criminal Intention in order to be punishable must become
manifest(evident) in some voluntary act or omission. Acc to Russel, it is , physical result
of human conduct
an act includes illegal omission also.(although there should be some legal duty)

(4) Injury (Section 44 defines Injury) the word ‘injury’ as defined by Section 44 IPC
denotes any harm whatever illegally caused to any person in body, mind, reputation or
property.

STAGES OF CRIME
Crime is a jurisprudential word and it is not defined in IPC but offence is defined under
Section 40 of IPC.
There are four stages of crime they are
1. Intention 2. Preparation 3. Attempt 4. Commission

(1) Intention
Generally Intention without any act is not punishable, that is, only Intention is not
punishable, but in four exceptional circumstances only Intention(without any Act) is
punishable. They are
1. Intention to wage war against the Government of India [Section 121 to Section 123
IPC]
2. Sedition [Section 124AIPC]
3. Criminal Conspiracy [Section 120A and 120B IPC]
4. Assembly for dacoity[Section 402 IPC]

(2)Preparation
Generally,upto the stage of preparation or uptopreparation is not punishable because
person has opportunity to repent (the idea of crime). But in some exceptional offences,
preparation is punishable.they are as follows

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 1. preparation to wage war against the Government of India [Section 122 IPC]
2. preparation to commit depredation against Indian territory [Section 126 IPC]
3. preparation and possession of counterfeit coins and false weight [Section 232 to
Section 236IPC]
4. preparation to commit Dacoity[Section 399 IPC]
5. assault [Section 351 IPC]

(3) Attempt
➢ Attempt is not defined in IPC. In state of Maharashtra vs Mohammed YakubThe
Honorable Supreme Court has held that to define Attempt is a futile act.
➢ Professor Kenny and Sir Stephen called ‘Attempt’ an inchoate offence, that is,
offence which cannot be completed.
➢ The present Doctrine that ‘Attempt is a crime’ was clearly approved by Justice
Mansfield in the case of R vsScofield. Thereafter, the rule that an Attempt is
punishable assumed universal application.

Essentials of Attempt
1. Guilty Intention
2. Some act must be done to commit crime
3. Act falls short of completion
Cases:
i. R vs Taylor
ii. R vs linker
iii. Abhyanand Mishra vs State of Bihar
iv. state of Maharashtra vsMohdYakub
etc..

In IPC,Attempt has been described in three different ways-

1. In some offences,Attempt is dealt within same Section and same punishment is

prescribed as complete offence. For example Section 121, 124A, 130, 196, 239 etc.

2. In cases of four Grave offences, Attempt is described separately in different

Sections than the main Section
i. Attempt to murder [Section 307 IPC]
ii. Attempt to culpable homicide not amounting to murder [Section 308 IPC]
iii. Attempt to suicide [Section 309 IPC]
iv. Attempt to commit robbery [Section 393 IPC]

3. In all other cases,where punishment for Attempt is not prescribed anywhere in

IPC, then it will be punishable under Section 511 IPC[Residuary Section]

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Section 511 Attempt
Section 511 Lays down that “whoever Attempts to commit an offence punishable by this
code with imprisonment for life or imprisonment, or to cause such an offence to be
committed, and in such Attempt does any act towards the commission of the offence,
shall, where no Express provision is made by this Code for the punishment of such
Attempt, be punished.”

In case of an Attempt, as the injury is not as serious as in the case of actual crime, the
punishment is one half of that for the actual crime which means imprisonment of any
description provided for the offence, For a term which may extend to one-half of the
imprisonment for life / one half of the longest term imprisonment provided for that
offence, or with such fine as is provided for the offence, or with both.

It may be noted that “abatement” of an offence is more severely punishable than an

‘Attempt’ to commit it. An abatement of the offence of Murder is punished in the same
way as murder itself. Further, in ‘abatement’, the offence is complete in itself, whereas in
‘Attempt’ the offence is not completed.
➢ Section 511 is a General Section that makes punishable all Attempts to commit
offences punishable with imprisonment for life or imprisonment excepting those
punishable with death or fine only.
➢ Section 511 provides for punishment for an Attempt to commit an offence under
the Penal Code.
➢ It does not apply to offences under special or local laws.
➢ Further, only such Attempts are punishable under Section 511 for which no
Express provision is made by the Code.

Meaning of Attempt
‘Attempt’ means an act towards the commission of the offence which fails due to
circumstances independent of the Attempter’s will. Thus, it means any voluntary act
which does not fructify into yielding the intended result. In ‘Attempt’, it is the motive
which makes the act wrongful though the act in itself may not be wrongful.

An act done with the Intention and preparation, the commission of which in the manner
proposed was impossible is not an Attempt. Therefore, if one who believes in witchcraft
puts a spell on another, or burns him in effigy, or curses him with the Intention of causing
him hurt, he cannot be convicted of an Attempt to cause hurt.
Similarly, there is no liability for an Attempt to commit an impossible theft.

If ‘A’ with intent to hurt ‘B’ by administering poison, prepare a glass for him and fills it
with poison, but while A’s back is turned, ‘C’ who has observed A’s act, pours away the
poison and fills the glass with water, which ‘A’ in ignorance of what C has done,
administers to ‘B’, ‘A’ would be guilty of Attempt to cause hurt by administering poison
as his failure was not due to any act or omission of his own, but to the intervention of a

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factor independent of his own volition. Similar would be the case if the poisoned glass fell
from the hand of ‘B’.

(4) Commission
commission of an offence is last stage of crime

General explanations
Section 10 Man and woman
Section 11 person
Section 19 judge
Section 21 public servant
This Section does not define public servant, but only enumerates the various
functionaries who are designated as public servants. The general characteristic of a public
servant is that he performs certain public functions. All government servants are not
public servant. the test to determine whether a person is a public servant is
(1) whether he is in the service or pay of the Government and
(2) whether he is entrusted with the performance of any public duty.
There are some offences which can only be committed by public servants and not by
public generally. The public servants are dealt with more severely than other persons for
they enjoy many privileges Peculiar to themselves.
➢ In the case of Dattatrayavs state of Maharashtra 1975 it was held that Minister is
a public servant.
➢ Similarly in the case of M.Karunanidhivs Union of India 1977 it was held that Chief
Minister is a person performing public duties and is a public servant.
➢ RsNayakvs AR antulay it was held that MLA is not a public servant 1984.
➢ A Chairman, director, manager and other employees of a banking company shall
be Deemed to be public servant for the purpose of chapter IX of the penal code.
➢ State of Maharashtra vs LWKanchand it was held that an employee of a
nationalised bank is a public servant 1989
➢ National Small Industries Corporation Limited vs State (NCT of Delhi) 2009 it was
held that a government company is not a public servant under Section 21 of the
Indian Penal Code but every employee of the company is a public servant.
➢ Arbitrators are public servant
➢ Prime Minister is a public servant
➢ sarpanch of gram panchayat is a public servant
➢ corporators are not public servant.

Section 23 wrongful gain and wrongful loss

Section 27 property in possession of wife, servant or clerk
Section 30 valuable security
Section 40 offence
Section 44 injury
Section 52 good faith

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Section 52AHarbour.

Punishment
underSection 53 , the punishment to which offenders are liable under the provisions of
this code are
➢ death
➢ imprisonment of life
➢ imprisonment which may be rigorous of simple
➢ forfeiture of property
➢ fine

Theories of punishment
➢ deterrent theory to establish fear in the mind of criminals
➢ retributive theory tit for tat
➢ preventive theory to prevent persons from committing further crime
➢ reformative theory the formation of offenders parole and probation

Death penalty
capital punishment is described as death penalty. this is the most severe form of
punishment for the most severe form of offences.

➢ Jagmohan Singh vs state of UP the Supreme Court laid down that death penalty is
constitutionally valid
➢ in Bachan Singh versus State of Punjab Supreme Court laid down that death
penalty should be awarded in the rarest of rare case
➢ in Rajendra Prasad vs State of UP the Supreme Court laid down that life
imprisonment is a rule and death sentence gives an exception for an offence of
Murder
➢ inMachhi Singh versus State of Punjab Supreme Court gave guidelines for
awarding death penalty. These are motive, the manner of commission of crime,
the antisocial or abnormal nature of crime.
➢ Section 354(3) 3 CRPC provides that in every case of death penalty special reasons
are to be recorded by the court awarding the death sentence to the Convict.

In IPC there are few Sections in which court has discretion to award death sentence
(1) waging war against the Government of India Section 121
(2) abetment of mutiny Section 132
(3) giving of fabricating false evidence Section 194
(4) murder Section 302
(5) abatement of child or unsound person to commit suicide Section 305
(6) dacoity with murder Section 396.
(7) 364A, 307, 376A, 376DB, 376AB, 376E

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In IPC there are two cases in which death penalty is mandatory to be awarded
(1) murder by life Convict Section 303 in Mitthu Singh vs State of Punjab the Supreme
Court declared this Section as unconstitutional
(2) attempt to murder by life Convict Section 307

Maximum punishment under IPC death or life imprisonment

minimum punishment is of 24 hours under Section 510.

LIFE IMPRISONMENT
in Nayab Singh versus State of Punjab the supreme court laid down that imprisonment
for life means rigorous imprisonment and it is for the whole of life.
However, under section 433 CrPC appropriate government may commute or reduce this
life imprisonment to any term not exceeding 14 years.
There are some important sections for preliminary examinations such as section 63 65
67 68 69 70 71.

Section 67 if offence is punishable with fine only and under fault of payment of fine the
court may award simple imprisonment.
1. If amount of fine is upto rupees 50 maximum imprisonment could be two months
2. if amount of fine ranges from rupees 50 to 100 the imprisonment could be 4
months
3. whereas if amount of fine is rupees hundred or upwards the maximum
imprisonment would could could be awarded is 6 months.

Solitary confinement under section 73 and 74

Section 73 provides that Court may order that offender shall be kept in solitary
confinement for a period of sentence not exceeding three months in the whole according
to the following chart.
1. If imprisonment is up to 6 months solitary confinement maximum 1 month
2. if imprisonment is up to one year solitary confinement is maximum 2 months
3. if imprisonment exceeds one year solitary confinement maximum three months

Section 74 provides the limit of solitary confinement. it provides that solitary

confinement may be awarded for the period time not exceeding 14 days.

Chapter IV General Exceptions

chapter IV deals with the various defences which a person/accused of an offence under
the code or any special or local law can plead. Every definition of offence, every penal
provision and every illustration of a definition or penal provision shall be construed
subject to the provisions contained in this chapter.

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Burden of proof
The general rule is that it is the duty of the prosecution to prove the Prisoner’s guilt and
where a doubt has been created by the evidence the Prisoners is entitled to acquittal on
the ground of benefit of doubt.
But the burden of proving the existence of circumstances bringing the case within general
exception under this code is upon accused.

Chapter IV deals with two broad classes of exceptions excusable and justifiable
excusable defences are those where the act committed is excused for want of necessary
requirement of Mens Rea. In such cases the act is not criminal because the intention was
not criminal. Section 76 to 95 of IPC deals with excusable defences.
In case of justifiable defences the act committed is not excused but is justified on the
account of some considerations neutralizing the liability. Under justifiable defences
persons have intention but circumstances neutralize the liability.

Section 76 Act done by a person bound, or by mistake of fact believing himself bound
by law

Meaning of mistake - Ignorantia facti excusat, Ignorantia juris non-excusat is a well-

known Maxim of criminal law which means ignorance of fact is an excuse whereas
ignorance of law is no excuse.
Indian law- The Indian law on mistake is contained in Section 76 and 79 of the Indian
Penal Code.
Mistake in order to be a difference must relate to Fact and not to law. Where A, in good
faith believed B a human being to be a Ghost and caused fatal injuries to him. A will not
be liable for any offence Waryam Singh’s case 1926
There are two exceptions to the Maxim Ignorantia facti doth excuse.
1. No one is allowed to plead ignorance of fact, when reasonable enquiry would have
elicited the true facts.
2. Mistake of fact is not accepted as a plea at all, when the act is penalised by a statute
without reference to the mind of the wrong doer. For example, selling of
adulterated food stuff has been made an offence under the prevention of Food
Adulteration Act 1954, Strict liability etc.

➢ In the case of R vs Prince 1875 , the accused was charged of unlawfully taking an
unmarried girl under the age of 16 years out of possession and against the will of
her father. The accused’s mistaken belief about the age of the girl was held not to
be a good defence because he intended to do and did wrongful or Immoral act, and
not an innocent act.
➢ In the case of Sheras versus De Rutzen 1895, a statute prohibited a licensed
dealer of liquor from supplying liquor to a police constable while on duty and the

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 dealer supplied liquor to a constable on a Bonafide belief that he was off duty. He
was held to have committed an offence.
➢ In the case of Rex versus levett 1688 the defendant was awakened in the night
by strange noises in his house; thinking he was attacking a burglar, he ran his
sword through a cabinet where the Intruder was hiding and killed a friend of his
servant present by the latter’s invitation. It was held not to be manslaughter, “for
he did it ignorantly without intention of hurt to the deceased.”

Plea of superior officer- obedience of superior’s order which is illegal is not excused
under this Section . Where soldier fires on a mob on the illegal order of superior officer,
the soldier is liable for an offence. The excuse of superior order can only mitigate the
punishment.
Ignorance of law by foreigner - even a foreigner is not exempted, who cannot reasonably
be supposed to know the law.
Similarly ignorance of a newly passed Statute cannot be pleaded in defense in our
country.

Section 77- Act of a judge when acting judicially

Section 78- Act done pursuant to the Judgment or order of court

Section 79- Act done by a person justified or by mistake of fact believing himself
justified by law
Ingredients of the Section are
1. An act done by a person under a mistake of fact
2. Mistake must relate to Fact and not to law
3. Mistake must be committed in good faith
4. The person committing the act is either justified by law or believes himself to be
justified by law in doing an act.

Distinction between Section 76 and 79

1. Section 76 deals with cases where by reason of a mistake of fact the person under
a mistake considers himself bound by law to act in a particular way. whereas
under Section 79 on the other hand, deals with the cases where by reason of a
mistake of fact the person under such mistake considers himself simply justified
by law to act in a particular way.
2. Under Section 76 there is a legal compulsion and under Section 79 there is legal
justification.

Important cases: Keshav Sahu vs shaligram Shah 1977 and Charan Das case 1950.

Section 80 : Accident in doing a lawful act

Iingredients of the Section are:-

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 ➢ Accident or misfortune
➢ Act done without any criminal intention or knowledge
➢ Lawful Act ,Lawful manner and lawful means
➢ without proper care and caution.
To constitute a crime, intent and the act of the wrong-doer must both concur. Criminal
law cannot punish a man for his mistake of misfortune.

In Stephen’s digest of criminal law the following illustrations are given that elucidate the
nature of acts that may be regarded as Accident.
1. A, a school master corrects a scholar in a manner not intended or likely to injure
him using due care. The scholar dies. Death is incidental.
2. A turns B a trespasser, out of his house, using no more force than is necessary for
that purpose. B resists but without striking A. They fall in struggle and B is killed.
death is Accident al.
3. A workman throws snow from a roof giving proper warning. A passenger is killed.
Such a death is Accidental.
4. A takes up a gun, not knowing whether it is loaded or not points it in sport at B
and pulls the trigger. B is shot dead. Such a death is not Accidental. If ‘A’ had reason
to believe that the gun was not loaded, the death would have been Accidental,
although he had not used every possible precaution to ascertain whether the gun
was loaded or not .

Lawful act done in lawful manner by lawful means

Jageshwar vs Emperor 1924, the accused was beating a person with his fists, when the
latter’s wife with a two months child on her shoulder interfered. The accused hit the
women but the blows struck the child on his head. The baby died from the effects of the
blow. It was held that although the child was hit by Accident, the accused was not doing
a lawful act in a lawful manner by lawful means and therefore the defense under Section
80, of IPC could not be availed by him.
Where A trespassed into B’s house in absence and on return ‘B’ demanded ‘A’ to leave but
A refused to do so. This led to an altercation which excited B who gave him a kick causing
injury resulting in death. It was held that- a Kick is not justifiable mode of turning a man
out of your house, though he is a trespasser.

Burden of proof : the burden will lie upon the accused to prove that his case falls within
Exception.K.M. Nanavati vs State of Maharashtra 1962
Contributory negligence- contributory negligence is no defense to a charge in criminal
law. In the case of R. vs. Swindall and Osborne. 1846.

Section 81 Necessity Act likely to cause harm, but done without criminal intent and to
prevent other harm.
Essential ingredients of section 81

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 1. Harm is caused without any criminal intention
2. The act must have been done in good faith
3. The act must have also been done for the purpose of preventing or avoiding other
harm
4. The harm aimed to be prevented or avoided may relate to person or property

Section 81 permits the infliction of a lesser evil in order to prevent greater evil. Wherever
necessity forces a man to do an illegal act, he will be justified because no man can be
guilty of a crime without the will and intention of the mind.

Stephen has cited the case of two drowning men struggling for plank which could support
only one. if one pushes the other who is then killed by drowning, he would not be guilty
because he left him to a chance of picking another plank and he did so because of
compulsion by necessity. This case has been discussed by many and diverse answers are
found.
The authorities to confuse three situations.
1. the actor pushes off a person who is already on the plank
2. the actor is on the plank and he repulses one who seeks to push him off
3. both the persons reach the plank at the same time and one thrusts the other aside
so that he may secure the plank for himself.
according to Stephen only the latter two situations cover necessity But not the first one.

Doctrine of self preservation

The question is, how far the necessity of preservation of one's own life justifies the
causing of harm to an innocent person. In R. vs. Dudley and stephen 1884 is the leading
case on Section 81 where 3 adults and 1 child were on the boat which cast away in a storm
on the high sea. They had no food or water. After 20 days, two adult agreed to kill the
child and they killed and ate the child.
The court held that they are not entitled to Defense of necessity as it was not justified and
they were liable for Murder.

Dr. H.S. Gaur deduces three principles from the above judgment-
1. self preservation is not an absolute necessity
2. no man has a right to take another’s life to preserve his own.
3. there is no necessity that justifies homicide

The third principle would mean that no private necessity justifies homicide except when
homicide is committed in self-defence or it relates to public justice or safety

Mouse’s case the shipman threw goods of a passenger in order to reduce the weight of
the ship. He would not be guilty.

LIABILITY OF CHILD IS DISCUSSED UNDER SECTION 82 AND 83

Section 82 - Act of a child under seven years of age. Both under English and Roman law
when the boy became off 14 and the girl of 12 they were said to have attained the age of

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discretion, and, therefore, children above this age were held liable for offences committed
by them. So the children before they attained this age was said to be Doli incapax.
In India a child below 7 years of age is considered to be Doli incapax and therefore cannot
be held guilty of any offence.

Section 83 act of a child above 7 and under 12 of immature understanding. In India a

child above 7 years but below 12 years of age enjoys a qualified immunity and is
presumed to be Doli capax, therefore the burden to rebut the presumption lies upon him
by proving that he was of that age group and was at the same time Doli incapax
➢ If he attains sufficient maturity of understanding he will not be granted an
exemption (Doli capax)
➢ If he does not attain sufficient maturity of understanding no criminal liability
➢ If the child is of exact seven years of age then exemption shall be given under
Section 82 IPC

Ulla Mahapatra 1950 the accused, a boy of over 11 years but below 12 years picked up
a knife and threatened to cut the disease to pieces and did actually kill him. It was held
that his action could lead to only one inference, namely that he did what he intended to
do, and that he knew, all along, that one blow inflicted with a knife would effectuate his
intention. He was sent to reformative school for five years.
In this caseImportant is this that accused who was a child below 12 years of age was held
to possess full maturity of understanding.
Krishna 1883, A 9 years old child stolen a necklace and sold it to B. He was held to be
having full maturity of understanding and was liable for the consequences of his act.
Mariamutha a girl of 10 years of age picked up a silver button and gave it to her mother.
She was held not liable for theft.

Section 84- Insanity( act of a person of unsound mind)

English test on Insanity
1. Wild beast test , this test had been given in R vs Arnold case 1724
2. Insane delusion test, this test had been given in headfield case 1800
3. Bowler case, test the test of capacity to distinguish between right and wrong had
been formulated in bowler case 1812
4. Mcnaughton case 1843, in this case House of Lords had given the test of
unsoundness of mind. section 84 is based on this ruling.

Facts of mcnaughton case

mcnaughton and was under the insane delusion and he killed the Private Secretary of Sir
Robert piel (Prime Minister of Britain). He killed the Private Secretary under the delusion
that he was the prime minister. Accused pleaded insanity and produced medical
evidences of it. the accused was acquitted on the ground of insanity. This acquittal made
sensation and became the matter of discussion in England. The matter was referred to 15
judges bench of house of Lords which was called to lay down rules regarding Insanity.

14
House of Lords gave the following rules regarding Insanity.
1. Every man is presumed to be Sane unless contrary is proved
2. To establish the defence of insanity is must be proved that at the time of
commission of crime the accused had been suffering from such defective mind and
he did not know the nature and consequences of the act which he was doing, that
is, the insanity must exist at the time of commission of crime.
3. Medical witness who has not seen the accused previous to the trial should not be
asked for his opinion
4. Where a criminal acts committed by a man under some insane delusion as to the
surrounding facts which concealed from him the true nature of the act he is doing,
he will be under the same degree of responsibility as he would have been from the
fact of which imagined to be true.

Maxims
1. Furiosus furor sub puniter - it means that a mad man is punished by his Madness
2. Furious nulle voluntas est - it means that a mad man is like one who is absent

Elements of section 84
1. Act must be done by a person of unsound mind
2. such person must be incapable of knowing
a) the nature of the act
b) the Act was contrary to law the
c) Act was wrong
3. Such incapacity must be by reason of unsoundness of mind
4. Such incapacity must exist at the time of commission of crime

Cases on Madness
Phulabai vs State of Maharashtra 1976 the accused in an attempt to commit suicide
jumped into a well along with her child resulting in the death of the child. The plea of
insanity was granted to the accused who was suffering from chronic and incurable illness.
Tukappa Tamanna lingardi versus state of Maharashtra accused after killing a man
was playing with the head of the deceased and did not run away from the spot. It was
because the man (deceased) touched his sister. The defence of section 84 was accepted

Difference between legal and medical Insanity: Medical insanity is solely dependent on
medical Grounds while a legal Insanity depends on the factors required to be proved in a
court of law to enable the accused to be acquitted of the charge.in other words legal
insanity furrnishes a good ground of Defence from criminal liability while medical
insanity does not. For exemption under section 84 the accused must have to prove that
he did not know the nature and consequences of his act or what he has done is either
wrong or contrary to law. Such knowledge must be at the time of commission of crime

Types of Madness- non compos mentis (person of unsound mind)

15
 a) Idiot
b) lunatic (who is affected by mental disorder only at a certain period)
c) One made unsound by illness
d) One who is drunk

Simple drunkenness is no excuse but due to prolonged Drunkenness, such person may be
infected by a diseased named delirium tremens. Such disease, it produces such degree of
Madness even for short time as to render person in capable of distinguish in right or
wrong. it offered a ground of Madness under section 84

Irresistible impulse : it is not a defence under section 84, that is, act done in irresistible
impulse is no defence but an offence and not exempted under section 84. But Court can
consider this irresistible impulse to reduce the punishment.

INVOLUNTARY INTOXICATION (SECTION 85)

R vs mead 1909 is the first English case in which intoxication was accepted as defence

Essential elements of Section 85 involuntary intoxication

1. Act done by a drunken person
2. The drunkenness is against his will and knowledge
3. Due to drunkenness he does not know
• the nature of his act
• that the act is wrong and contrary to law

Without his knowledge or against his will

The expression without his knowledge means ignorance of the fact that what is being
administered is or contains or is mixed with an intoxicant.

The Director public prosecution vs beard 1920 is the leading case on the point. In this
case a girl of 13 years while going to market passed through the gate of a mill where the
accused beard was the watchman on duty. The accused attempted to commit rape. the
girl struggled, therefore accused 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.

SECTION 86 VOLUNTARY DRUNKENNESS

Section 86 is related to voluntary drunkenness. Generally, voluntary drunkenness is no

defence in Indian Penal Code. Section 86 presumes the knowledge of offender where an
act and knowledge or intention both constitute the offence which is done by intoxicated

16
person. This Section presumes the possession of requisite knowledge on the part of
intoxicated person.

The leading cases in English law areMeade 1909 , beard 1920 , gallaghar 1963.
Beard has already been discussed under the Section 85.
In R vs. Meade the accused brutally attacked his wife and killed her by a blow with his
fist. He pleaded drunkenness in his defence. He was convicted for Murder.

In the next case of AG for Northern Ireland vsGalaghar 1963 there was evidence that
the accused was a psychopath and that his Psychopathy was a disease of the mind which
would be aggravated by drink in such a way as to cause him the more readily to lose his
self control. when sober, the accused Galaghar indicated the intention to kill his wife. He
then purchased a bottle of whiskey and he may have drunk some of it before he in fact
killed his wife with a knife. The judge directed the Jury to apply the test laid down in
M’Naghten rules to the time when alcohol was taken and not to the time when the actual
Murder Was committed. Gallagher was convicted. The defence of drunkenness was not
available because the accused had already form the intent to kill when he took the drink.
In the case of R versus lipman 1970,Lipman and the deceased girl were both drug
addicts. On one evening after lipman had consumed a quantity of the drugs (LSD) at her
flat, he began to suffer from hallucination and had an Illusion of descending to the centre
of the earth and being attacked by snakes with which he fought. While in his hallucinatory
state he attacked her to blows on the head causing hurt to die from asphyxia. He was
charged with the murder and pleaded that he had no knowledge of what he was doing
whilst under the influence of the drug and that he had no intention to harm the deceased.
Lipman was convicted for manslaughter.

Under Indian laws the law relating to voluntary drunkenness is contained in Section 86
of the code. A person voluntarily intoxicated it will be deemed to have the same
knowledge as he would have had if he had not been intoxicated.

Basudeovs State of pepsu 1956 is the leading Indian case on the subject. Basudeo was
a retired military personnel. A boy aged about 15 or 16 had accompanied him to a
marriage party. when they had gone to take meal the appellant asked the boy to step
aside so that he may occupy a convenient seat but the boy did not move.thisenraged the
appellant and he whipped out a pistol and shot the boy in the abdomen. The boy died. The
appellant was drunk at that time. The question was whether the case fell under Section
302 or Section 304 of the code. The supreme court declared the accused liable for
Murder.

Meaning of Consent
consent is not defined in the Indian Penal Code, although section 90 states when consent
is not free. Consent means to agree to a thing being done. This section does not define
consent but describes what is not consent. Consent, in order to be a defence, must be a

17
valid consent that means it must be a consent given by a person who is capable of giving
a good and valid consent and it must be given freely by such person. If consent is illegally
or unlawfully obtained it is no consent in law.

In the following cases consent is not a free consent under this section
1. Consent given by a person under the fear of injury
2. consent given under misconception of fact
3. consent given by a child under 12 years of age
4. consent given by a person of unsound mind
5. consent given by an intoxicated person.

State of UP versus Naushad 2014, If consent is given by the prosecutrix under a

misconception of fact, it is vitiated. accused committed sexual intercourse with the
prosecutrix by giving false Assurance that he would marry her, after she got pregnant, he
refused to do so. from this it is evident that he never intended to marry her and procured
her consent only for the reason of having sexual intercourse with her, which act of the
accused false squarely under the definition of rape as he had sexual intercourse with her
consent which was consent obtained under the misconception of fact as defined under
section 90 of the Indian Penal Code.

SECTION 87 TO 91 RELATES TO CONSENT.

Section 87, act not intended and not known to be likely to cause death or grievous
hurt, done by consent
A man has not only right to live but it is also his duty to live. The right to live is an
inalienable right and no one can consent to give it away. Causing grievous hurt is also an
inalienable right in the above sense. Therefore, consent is a good defence to all offences
against property and to all offence against human body which do not involve the causing
of death or grievous hurt.
However, it may be taken into consideration in reducing the offence of Murder to culpable
homicide (section 300 exception 5)
This section is based on the maximum “volenti non fit injuria” that means consenting
person suffers no harm
The main principle underlying section 87 is that consent never justify is death or grievous
hurt.

Elements of section 87
1. Person giving consent is above 18 years of age
2. act done with consent other than consent to cause death or grievous hurt
3. Consent given may be express or implied

If consent is obtained for the performance of a dangerous act, which results in the death
of the person consenting, the accused will be liable for mitigated punishment only. For

18
example, in a demonstration B shoots through the lemon placed on A’s head which results
in his death, then B shall be punished for culpable homicide not amounting to murder.

Section 88, act not intended to cause death , done by consent in good faith for person’s
benefit
Elements of section 88
1. act done for the benefit of the person
2. act done with the consent (no age prescribed but as per section 90 minimum age
for consent is 12 years) act done in good faith
3. act done without intention to cause death

In the case of Sukaroo Kaviraj 1887, the protection under section 88 was refused
because Kaviraj has performed an operation for cutting out internal part of body by an
ordinary knife. The patient died. It was held that he was not acting in good faith. (due care
and caution). However, the court reduced the punishment to fine only instead of
imprisonment.

Intention to cause harm but not death: under this section the wrongdoer is protected
even though he has done the act with the intention of causing harm including grievous
hurt but not death. the defence is available because the act is done in good faith and for
the benefit of the victim.

Section 89, act done in good faith for benefit of child or insane person, by or by
consent of guardian.
Elements of section 89 are
1. the act must be done for the benefit of child below 12 years of age or insane person
2. the act must be done in good faith
3. the act must be done by or by the consent of guardian
4. the consent may be either expressed or implied

➢ Under section 88 the consent is that of the sufferer himself, whereas under section
89 the consent is of the guardian or other person having lawful charge of the Infant
or insane.
➢ Benefit under this section also like section 88 does not include pecuniary benefit.
Explanation of section 92 also says that benefit does not include pecuniary benefit.

Illustrations
1. A, in good faith, for his daughter's benefit, intentionally kills her to prevent her
from falling into the hands of Pindaries (robbers). A, is not entitled to the benefit
of this section.

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 2. A, in good faith, for his child’s pecuniary benefit emasculate his child. A is not
within the exception because he has caused grievous hurt to the child and that too
for his pecuniary benefit.
3. A, intending in good faith, for the pecuniary benefit of Z, his daughter, a child under
12 years of age, abets a rape committed by B on Z. Neither A nor B will get the
benefit of this section.
4. A, in good faith, for his child benefit without his child's consent, has his child cut
for the stone, knowing it to be likely that the operation will cause the child's death
but not intending to cause child’s death. A has committed no offence in as much as
his object was the preventing of death or grievous hurt to the child.

Section 91, exclusion of acts which are offences independently of harm caused.
Exceptions to Section 87, 88 and 89
Section 91 provides that consent will only condone the act causing harm to the person
giving the consent which will otherwise be an offence. if the act is an offence
independently of the harm which it has caused then the doer will not be protected by the
consent given. for example, causing miscarriage or an moral act.

Section 92 to act done in good faith for benefit of a person WITHOUT CONSENT
Elements:
1. No minimum age is prescribed
2. act must be done for the benefit of the person
3. act done without the consent because situation or circumstances are such that
consent cannot be obtained
4. the act must be done in good faith
The object of this section is to protect medical practitioners who can operate even
without consent in order to save the life of patient. It is intended to meet those cases
which do not come under section 88 and 89.
Example could be accidental cases.

For example
➢ D meets with a serious road accident and is immediately moved to the hospital in
an unconscious state.In the opinion of the surgeon immediate amputation of one
of his Limbs is necessary before he recovers his senses. He amputates the limp
without his consent. It will not be an offence.
➢ Similarly if the accident makes a man mad, the amputation of his Limb in spite of
his resistance would be no offence.
➢ In another illustration Stephen suggests that B is drowning and is insensible. A in
order to save his life, pulls B out of water with a hook which injures him. This is
no offence.

Section 92 recognizes 4 exceptions to implied consent. They are very much similar to
those provided under section 89 except provision III which extends to the voluntary

20
causing of hurt or to the attempting to cause hurt instead of voluntarily causing of
grievous hurt or to the attempting to cause grievous hurt under section 89.
The reason for this difference is simple and obvious. In section 89, there is consent of the
guardian but under section 92 there is no consent at all. it is only implied by law on
account of certain circumstances.

Section 93 communication
This section provides that no communication made in good faith is an offence by reason
of any harm to the person to whom it is made, if it is made for the benefit of that person.
A, a surgeon in good faith, communicates to a patient his opinion that he cannot live. The
patient dies in consequence of the shock. A has committed no offence, though he knew it
to be likely that the communication might cause the patient’s death.

Very often it may be necessary to warn the patient that his end was near so that he might
make his will or may arrange his affairs to his own satisfaction. In such cases the doctor
will be protected under this section if the patient dies of the shock resulting from the
communication. In this section “harm” means an injurious mental reaction.
Veedamenezesversis Yusuf Khan 1966
Section 94 compulsion by threat
Except murder, and offences against the state punishable with death, nothing is an
offence which is done by a person who is compelled to do it by Threats, which, at the time
of doing it, reasonably cause the apprehension that INSTANT DEATHto that person will
otherwise be the consequence.
Provided the person doing the act did not, of his own Accord, or from a reasonable
apprehension of harm to himself short of instant death, place himself in the situation by
which he became subject to such constraint.

Explanation 1 - A person who, of his own Accord, or by reason of a threat of being beaten,
joins a Gang of Dacoits, knowing their character, is not entitled to the benefit of this
exception, on the ground of his having been compelled by his associates to do anything
that is an offence by law.
Explanation 2 - A person seized by a Gang of the dacoits, and forced, by threat of instant
death, to do a thing which is an offence by law; for example, a Smith compelled to take his
tools and to force the door of a house for the dacoits to enter and plunder it, is entitled to
the benefit of this exception.

Section 94 is based on a Maxim that “actus me invitofactus non estmensactus” which

means an act done by me against my will is not my act at all.
Threat of being beaten only is no defence under this section.

From the language of the section and the explanations given, it appears that compulsion
arising from mere necessity is not means to be included. A man on the verge of death by
starvation may not lead his necessity as an excuse for theft.

21
Section 95 act causing slight harm
Section 95 provides that nothing is an offence which causes such a slight harm that no
person of ordinary sense and Temper would complain of Such harm.
In order that section 95 applies it is necessary that act must be an offence and man of
ordinary prudence and Temper would not run for a complaint. It is based on the Maxim
De minimis non curatLex which means law does not take notice of triffle or petty
matters.

Huda says that no man can pass through a crowded thoroughfare without treading on
somebody’s toes or without clashing against somebody and no reasonable man would
complain of such small annoyances. the word “harm” has been used in this section in a
wide sense and it includes physical injury also. This exception applies not only to acts
which are accidental but also to deliberate acts which cause harm or are intended to cause
harm or known to be likely to cause harm.
Whether an act which amounts to an offence is trivial would depend upon the nature of
the injury, the position of the parties, the knowledge with which the act is done.

The following acts are covered by this section

1. Where a person takes podsalmost value less from a tree standing on the
government waste land
2. Where the accused committed theft of a cheque of no value
3. Where the plaintiff complaint of the harm caused to his reputation by the
amputation that he was travelling with a wrong ticket

The following acts are not trivial in nature. Liable

1. Where a blow was given across the chest with an umbrella by a dismissed police
man to a district Superintendent of Police because his application to reconsider
his case was rejected
2. Where the accused tore up a paper which showed a money debt due from him to
the prosecutor though it was unstamped, and therefore not a legal security.
3. Where a respectable man is taken by the ear
4. Where an advocate while cross-examining a witness used filthy words exhibiting
disrespect or indignity towards the mother of the witness.

RupanDeol Bajaj vs KPS Gill 1995,KPS Gill assaulted a woman with intent to outrage her
modesty in a party for which he was charged under section 354 IPC. He pleaded that his
Act was very slight for which no reasonable man would complain.thedefence of section
95 was not accepted and the court held that it cannot be said that the ignomity and trauma
to which the lady was subjected to was so slight that the person of ordinary sense or
prudence and temper would not complain about the same.

22
 RIGHT OF PRIVATE DEFENCE (SECTION 96 TO SECTION 106)
JUSTIFIABLE DEFENCES

Section 96 nothing is an offence which is done in exercise of the right of private

defence.
Section 96 gives statutory recognition to the right of private defence. However there are
two limitations on the right of private defence
1. Right of private defence can under no circumstances justify anything which is
strictly no defence but an offence
2. This right cannot be claimed when you have yourself courted The Attack that
means attacker cannot claim this right

According to HUDA “howsoever strong is state may be, it is impossible to provide

Watchdog against every bad work of society.”

In Lakshman Sahu vs State of Odisha 1988 it was held that right of private defence is
available only to one who is suddenly confronted with immediate necessity of averting
the impending danger not of his own creation. such need must be present, real and
Apparent.

The right of private defence can be exercised only to repel on lawful aggression and not
to retaliate

In state of Uttar Pradesh versus Pussu 1983 it was held that a person who is an
aggressor and who seeks attack on himself by his own aggressive attack cannot rely upon
private defence.

Ram Raj Shukla vs State of Madhya Pradesh 1992, The right of private defence is
preventive and not punitive

Puran Singh vs State of Punjab it was held that it is not the law that a person when called
upon to face an assault must run away to police station and not protect himself or his
property

Dwarika vs State of UP it was held that private defence is not available in the case of free
fight between two groups.

Pammi vs State of Madhya Pradesh 1998 there is no right of private defence against act
of self defence

Section 97 right of private defence of the body and of property

23
This section deals with the extent of the exercise of the right of private defence. Section
99 provides the limitations on the right.The right is a right of Defence both of person and
property, not necessarily one's own person and property but also the person and
property of others.
In India every person has a right to defend
1. his own body and the body of any other person against any offence affecting
human body and
2. the property, movable or immovable of himself or of any other person against
theft, robbery, Mischief or criminal trespass or attempt to commit any of the
offences.
An accused pleading right of private defence is not required to call evidence; he can
establish his plea by reference to circumstances transpiring from the prosecution
evidence itself.

Section 98 right of private defence against the act of a person of unsound mind.
The principle underlying section 98 is that the right of private defence does not depend
upon the actual criminality of the aggressor but on the wrongful character of the act
attempted. When an act which would otherwise be a certain offence, is not that offence
by reason of the youth, the want of maturity of understanding, the unsoundness of mind
or the intoxication of the person doing that act or by reason of any misconception on the
part of that person, every person has the same right of private defence against that act
which he would have if the Act was that offence.
For example, the act of youth, mad or intoxicated person is not an offence in real sense
although the person against whom such an act is committed has the same right of private
defence as he is authorised to have against a Sane person.

Section 99 act against which there is no private or private defence

(restrictions on the right of private defence)- Section 99 Lays down the limits within
which the right of private defence should be exercised.
There is no right of private defence against an act done by a public servant if the following
conditions are fulfilled
1. act must be done or attempted to be done by a public servant
2. act must be done in good faith
3. act must be done by the public servant under the colour of his office
4. act must be such as does not cause a reasonable apprehension of death of grievous
hurt
5. act may not be strictly justifiable by law
6. there must also be reasonable ground for believing that the Act was done by public
servant as such or under his authority

The principal underlying the above limitation is that normally it is presumed that public
servants will always act in strict conformity with law. Secondly, it is also for the good of

24
society that public servants should be protected in the execution of their duty even where
they are in error.

Reasonable apprehension of death or of grievous hurt

the right of private defence against an injury apprehended to be done by public servant
extends only to those cases in which there is a reasonable apprehension of death or of
grevious hurt been caused by the act of such public servant.
The words “not strictly justifiable by law” are used both in clauses 1 and 2 of this section.
This shows that in order to depriving a person of the right of private defence the act done
or direction given by a public servant may not be strictly justifiable by law. It applies to
cases where there is an excess of jurisdiction as distinct from a complete absence of
Jurisdiction, to cases where the official has done wrongly what he might have done
rightly, but not to cases where the act could not possibly have been done rightly.

Recourse to protection of the public authorities (clause 3) - no man has right to take
the law into his own hands for the protection of his person or property if there is a
reasonable opportunity of redress by recourse to the public authorities. But when the
attack is sudden and unpremeditated or where there are no facilities for having recourse
to the public authorities or where the information having been given, no help is
forthcoming. In such cases one can exercise his right of private defence.

Excess of harm not justified (clause 4) - quantum of harm caused in self defence should
in no case be in excess of the harm that may be necessary for the purposes of Defence.
This is so because the right given to a person is the right of Defence and not a right to
punish the aggressor.
The measure of self-defense must always be proportionate to the quantum of force used
by the attacker and which it is necessary to repel. Jai dev vs State of Punjab 1963

Justifiable harm: A, finding a Thief entering into his house at night, through an entrance
made in the sidewall, seized him while intruding his body and held him with his face down
to the ground to prevent his further entrance and thereby caused his death by suffocation.
Kurrim bux 1865

Excessive harm caused: where a Thief was caught at night with half of his body and his
head inside the wall of a house and was struck with a pole five times on the neck. the
accused was convicted of culpable homicide not amounting to murder because more
harm was done than was necessary. Queen versis Fukeera

Section 100 when the right of private defence of the body extends to causing death
The law authorises a man, who is under a reasonable apprehension that his life is in
danger or his body in risk of grievous hurt, to inflict death upon his assailant either when

25
the assault is committed or directly threatened. But the apprehension must be reasonable
and not an imaginary one.
The right of private defence extends to the causing of death only when the offence which
occasions the exercise of the right is one of the kinds mentioned in this section.
In the case of the Dhiria bhavji 1963 it was held that an apprehension in the mind of the
accused that death may be caused due to witchcraft is unreasonable and therefore, there
can be no right of private defence against such apprehension unless physical violence
from the opponent is apprehended

Section 101 when such right extends to causing any harm other than death
While dealing with the right of private defence of body sections 100 and 101 must be read
together. under this section any harm short of death can be inflicted in exercise of the
right of private defence of body in any case which does not fall within the provisions of
section 100.In case any harm short of death is caused in the exercise of the right of private
defence the accused is required to prove only that he did not violate the limits laid down
in section 99 of the code.

Section 102 commencement and continuance of the right of private defence of the
body
No actual injury need be received before the right is exercised

Section 103 when the right of private defence of property extends to causing death
In a case A entered the house of B at the dead of Night with the intention of committing
theft. B struck him with a Lathi in the dark and A fell down unconscious. B gave him one
more blow which fell on A's head. causing excessive bleeding and his death. Here the plea
of private defence of property of B would not be available because in case of theft any
harm short of death only could be caused. there was no danger of death or grievous hurt
to B.
Though the right of private defence is available in respect of criminal trespass or Mischief
as against the property owned by himself or of any other person but criminal trespass is
not enumerated as one of the offences under section 103 IPC. Therefore, the right of
private defence of property will not extend to the causing of death or the person who
committed such acts, if the act of trespass is in respect of an open land. Only house
trespass committed under such circumstances as may be reasonable cause apprehension
that death or grievous hurt would be the consequence is enumerated as one of the
offences under section 103 of the IPC.

After state amendment of 1970 now fifthly Mischief by fire or any explosive substance
committed on
1. any government property
2. any Railway property or
3. any transport vehicle

26
is also included under section 103 by the states of Karnataka, Maharashtra and Uttar
Pradesh

Section 104 IPC when such right extends to causing any harm other than death
This section justifies causing of any harm short of death in the exercise of the right of
private defence of property if the offence committed or attempted to be committed is
theft, Mischief, or criminal trespass.

A entered the house of B with the intention of committing theft. B and other members of
his family surrounded and attacked A with lathis. Finding his life in danger A whipped out
a revolver and fired causing the death of B. Whether A is guilty of Murder or not?
In this case since A himself was a trespasser with the intention of committing theft and
therefore he cannot claim the right of private defence. Hence A will be guilty of
committing Murder. An act which gives rise to an offence cannot be treated as a basis for
the exercise of right of private defence in favour of the offender.

Section 105 commencement and continuance of the right of private defence of

property
In all offences against property where the right of private defence is available, the right
commences when a reasonable apprehension of danger to the property commences. For
the commencement of the right of private defence, commencement of actual danger to
the property is not necessary but merely reasonable apprehension of danger would be
sufficient. This means one can act before actual harm is done.

under section 102 and 105 the right of private defence commences as soon as reasonable
apprehension of danger to the human body or the property of oneself or another person
commences to arise from an attempt or a threat to commit an offence, even though the
offence me not be committed. While exercising the right of private defence of property it
is not at all necessary that the person exercising the right should wait until his property
or another is actually looted or a house trespass actually occurs.

Section 106 right of private defence against deadly assault when there is risk of harm
to innocent person
This section lays down that under certain circumstances the right of private defence of
body extends to the causing of harm to innocent persons. It is to be noted that this section
applies only to those cases where there is reasonable apprehension of death and of no
other harm lesser than death such as grievous hurt. this section also justifies the causing
of harm to innocent person by the person who faces a reasonable apprehension of death.

For illustration, A is attacked by a mob who attempt to murder him. He cannot effectively
exercise his right of private defence without firing on the mob and he cannot fire without
risk of harming young children who are mingled with the mob. A commits no offence if
by so firing he harms any of the children

27
Joint and constructive liability
When a crime is committed by a group in furtherance of common intention or object, each
member involved in the group will be liable for the offence in the same manner as if it
was done by him alone.
The main object of this Doctrine is to fix the liability of members of group where it is not
possible to fix the responsibility of individual person.
The following sections such as section 34, 38, 114, 149, 460, 396 deal with joint criminal
liability.

Common intention section 34

Section 34 of IPC deals with joint and constructive liability that means liability of all for
act done by one or more.
Section 34 state that when a criminal act is done by several persons in furtherance of the
common intention of all, each of such persons is liable for that act in the same manner as
if it were done by him alone.
In the case of VN Srikrishna versus state of Mysore it was held that this section is a rule
of evidence only and does not create any substantive offence.

In this section “several persons” means two or more than two persons, criminal act must
be done by several persons.

Essential ingredients of section 34

1. Some criminal act must be done
2. criminal act done by more than one person
3. criminal act must be done in furtherance of common intention of all of them
4. common intention must be in the sense of a pre-arranged plan between such
persons participation in some manner in the act constituting the offence
5. physical presence of all members at the time of commission of crime at the spot is
necessary but not in every case.

Direct proof of common intention is seldom available and therefore, such intention can
only be inferred from the circumstances appearing from the proved facts of the case and
the proved circumstances. In order to bring home the charge of common intention, the
prosecution has to establish by evidence, whether direct or circumstantial, that there was
a plan or meeting of mind of all the accused persons to commit the offence for which they
are charged with the aid of section 34, be it prearranged or on the Spur of moment but it
must necessarily be before the commission of the crime.
Section 34 is applicable even if no injury has been caused by the particular accused
himself.

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Leading cases on Section 34
Barendra Kumar Ghosh vs Emperor
Even if the appellant 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.

Mahboob Shah vs Emperor

Common intention implies
1. Pre-arranged plan
2. prior meeting of Mind
3. prior consultation between persons
Privy Council held that common intention must not be equated with same or similar
intention.

The same distinction was affirmed by Supreme Court in Panduranga vs State of

Hyderabad 1955.
For an intention to be common it must be known to all the members and must also be
shared by them. Common intention always exists prior to the commission of crime in
point of time. The distinction between same or similar intention and common intention
was brought forth by the supreme court in this case.

Rishi Dev Pandey versus state of UP Court held that common intention may be
developed at the spot also.

Reg versus crown is the oldest case on joint criminal liability

JN Desai vs State of Bombay, Court held that physical presence at the spot is necessary
but not in every case

Nanak Chand V State of Punjab, the court has discussed the difference between section
34 and 149

Barendra Kumar Ghosh vs Emperor, Lord sumner has discussed the difference between
section 34 and 37

CHAPTER VIII
OF OFFENCES AGAINST THE PUBLIC TRANQUILITY
The object of section 141 is to prevent to resort to criminal force by five or more persons
to do any of the acts stated in this section.
The essence of offence under this section is the combination of several persons United in
the purpose of committing a criminal offence, and the consensus of purpose is itself an
offence distinct from the criminal offence which these persons agree and intend to
commit.

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Ingredients: an unlawful assembly is an assembly of five or more persons if their
common object is
1. to overawe by criminal force
a) the central government
b) the state government
c) the legislature or
d) any public servant in the exercise of lawful power
2. to resist the execution of law or legal process
3. to commit Mischief, criminal trespass or any other offence
4. by criminal force
a) to obtain Possession of any property
b) to deprive any person of any incorporeal right
c) to enforce any right or supposed right
5. by criminal force to compel any person
a) to do what he is not legally bound to do
b) to omit what he is legally entitled to do.

Common object: the essence of an unlawful assembly is the common object of the
persons forming assembly. the object must be common to all those persons who
constitute the Assembly, that is they should all be aware of it and must conquer in it. the
object must be one of those set out in this section. mere presence in an assembly does not
make a person member of an unlawful assembly unless it is shown that he had done
something or omitted to do something which would make him a member of the unlawful
assembly or unless being aware of the facts that an assembly is unlawful one intentionally
joints that assembly or continues to be its member.

Section 142 being member of unlawful assembly: this section makes it clear that if a
person remains in an unlawful assembly after he became aware that the Assembly was
unlawful, he shall be Deemed to be a member of an unlawful assembly and shall be liable
as such.

Section 143 punishment: whoever is a member of an unlawful assembly, shall be

punished with imprisonment of either description for a term which may extend to six
months, or with fine or with both.

Section 144 joining unlawful assembly with deadly weapons shall be punished with
imprisonment of either description for a term which may extend to two years, or with
fine or with both

Section 146 rioting: whenever force or violence is used by an unlawful assembly, or by

any member thereof, in prosecution of the common object of such assembly, every
member of such assembly is guilty of the offence of rioting.

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A riot is simply an unlawful assembly in a particular state of activity, that activity being
accompanied by the use of force of violence. it is only the use of the force that distinguish
rioting from an unlawful assembly.

Ingredients : the following are the ingredients of the offence of rioting

1. the accused persons must be five or more in number and form and unlawful
assembly
2. the accused must be animated by a common object
3. the force or violence must be used by the unlawful assembly or any member
thereof in prosecution of the common object.

Meaning of force or violence: force is defined under section 349 of Indian penal code.
The essence of the offence lies in the use of force to achieve common purpose. If the
common object of an assembly is not illegal, it is not Rioting even if force is used by any
member of that assembly.

Spectator and wayfarers :spectaters, attracted to the scene of rioting by curiosity, as

generally happens in the countryside when any riot or offence is going on, should not, by
reason of their mere presence at the scene of rioting, be held to be members of unlawful
assembly or rioters.

Section 147 punishment for rioting: it may extend to two years, or with fine or with both
Section 148 rioting armed with deadly weapon : the punishment would extend to three
years, or with fine or with both
Section 149 every member of unlawful assembly in guilty of offence committed in
prosecution of common object
Section 149 creates joint or constructive or vicarious liability of every member of an
unlawful assembly for criminal act done by any member in prosecution of common object
of such assembly. The following are the essential ingredients of section 149
1. there must be an unlawful assembly as defined under section 141
2. some offence must be committed by any member of an unlawful assembly
3. such offence must have been committed in prosecution of the common object of
the assembly
4. the members have voluntarily joined the assembly and knew the common object
of the assembly.

Musa Khan vs State of Maharashtra Supreme Court was of the view that mere Innocent
presence in an assembly of persons as for example bystander, does not make the accused
a member of an unlawful assembly unless it is shown by direct or circumstantial evidence
that the accused shared the common object of the assembly.

Illustration : A B C D and E entered in a house of Z at night in order to beat him with Lathi.
On being stopped by Z’s servant , A struck him, B stole a golden chain from Z’s almirah, C

31
alone gave some Lathi blow to Z. Here they would all be guilty under section 149 for
causing grievous injuries to Z and his servant, and B we would be liable for stealing golden
chain alone, because it was not committed in prosecution of the common object of the
assembly

Conviction of less than 5 members: for the application of section 149, Court must be
satisfied that there were atleast five persons sharing the common object. this does not
however mean that 5 person must always be convicted under section 149. If the judge
concludes that five persons were unquestionably present and shared the common object
though identity of some of them could not be established, the conviction of rest, that is,
below 5 persons would be justified.

Section 153A - Promoting enmity between different groups on ground of religion,

race, place of birth, residence, language, etc. and doing acts prejudicial to
maintenance of harmony
The object of this section is to prevent the various classes from coming into conflict by
mutual abuse and Recrimination. it aims to punish those who either attempt to promote
class hatred or class enmity. Such an intention must be inferred from the nature of the
words used and their effect upon the class referred to as also from the state of feeling
between the two communities at the time of the act complaint.
Both successful and unsuccessful attempts to promote such feelings of enmity are
covered under this section.

According to sub section (1) of this section, a person who is involved in activities
mentioned under the above subsection shall be punished with imprisonment which may
extend to three years, or with fine or with both.
According to sub section (2) offence committed on public place of worship would be
punished by an imprisonment which may extend to five years and fine is also imposed.

In the case of Gopal 1969, it was held that under this section it is not necessary to prove
that as a result of the objectionable matter enmity or hatred was in fact caused between
the different classes.

Section 153AA - Punishment for knowingly carrying arms in any procession for
organising or holding or taking part in any mass drill or mass training with arms
whoever commits above thing in any public place in contravention of any public notice
or order issued or made under section 144A of CRPC shall be punished with
imprisonment for a term which may extend to six months and with fine which may extend
to two thousand rupees

Explanation “Arms” means articles of any description designed or adopted as weapons

for offence or defence and includes firearms, sharp edged weapons, lathis, dandas and
sticks

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Section 154 owner or occupier of land on which an unlawful assembly is held - this
section is an extension of the doctrine of respondent superior to criminal law. It makes
the master criminally liable for the act, or omission of his servant in certain cases. The
liability of the owner or occupier of the land does not depend upon his knowledge of the
riot or of the acts or intentions of his agent. They have been invested by law with certain
duties of the police which they are expected to discharge by virtue of their position as
landlords.
Three classes of persons are responsible under the section
i. owner of land
ii. occupier of land
iii. person having or claiming an interest in land upon which unlawful assembly or
riot takes place

Section 155 liability of person for whose benefit riot is committed - under section 154
the owner of land is punishable if a riot or unlawful assembly takes place on his land. But
this section refers to the commission of riot only and not unlawful assembly. When
riot takes place in the interest of the owner or any person claiming interest in the land,
this section applies.
Provisions for heavier punishment has been made under this section because riot not
only takes place on one’s land but it takes place in his interest also.

Section 159 affray - when two or more persons, by fighting in a public place, disturb
the public peace, they are said to commit an affray
The word “Affray” is derived from the French word “affraier” which means to terrify. In
law it means a public offence to the terror of the people. the gist of the offence lies in the
terror it is likely to cause to the public. According to blackstone, a fighting between two
or more persons in a public place to the terror of his majesty's subjects is affray in English
law.
Ingredients: the following are ingredients of this section
1. two or more persons must fight
2. they must fight in a public place
3. by their fighting they must disturb the public peace .

Fighting in a public place:

1. to constitutes an affray fighting must take place in a public place.
2. Public place is a place where the public go, no matter whether they have right to
go or not.
3. The place where the public are in the habit of going is deemed to be a public for
the purpose of this offence.
4. For instance, railway platform, a theatre hall, an omnibus, a public urinal, a goods
yard of railway station, a market, a public Ferry and a passenger train are all public
places.

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 5. A public Garden is not a public place at all hours but it is a public when open to the
public.
6. Likewise, a court of law, a hospital, a Church, a Mosque or a temple are all public
places during the hours public have access to them.
7. Therefore, the nature of a place being private or public varies from time to time .

✓ Some fight at public place is necessary to constitute the offence.

✓ mere exchange of abusive, threatening or hot words, however violent, without
exchange of blows does not amount to fight.
✓ the fighting means a quarrel accompanied by use of a little force.
✓ when one side is aggressive and other is passive, there is no fight.
✓ when members of one party beat the members of another party and the latter do
not retaliate, there is no fighting and therefore no affray.

In the case of Jagannath Sah 1937 Two Brothers were quarrelling and abusing each
other on a public road in a town and a large crowd gathered and the traffic was jammed
but no actual fight took place. It was held that no affray was committed in absence of
actual fight.
Distinction between affray and riot :- the two differ from each other in the following
respects
1. An affray cannot be committed in a private place whereas a riot may take place
anywhere, both at a public and a private place
2. An affray can be committed by two or more persons, a riot can be committed by at
least 5 persons
3. rioters are those who first constitute an unlawful assembly whereas an affrayer
need not be so.

Distinction between affray and assault:- the two are different in the following ways
An affray must be committed in a public place, whereas an assault may take place
anywhere
affray is regarded as an offence against the public peace whereas an assault is an offence
against the person of an individual
an affray is nothing more than an assault committed in a public place and in a conspicuous
manner and it is so called because it makes men afraid. In assault there is no actual fight
or use of force, only gestures of preparations are used so as to cause a person present to
apprehend that criminal force is about to be used.

Section 160 punishment for causing affray may extend to one month, or with fine
which may extend to 100 rupees, or with both.

When several persons take part in the commission of an offence, each one of them may
contribute in a manner and degree different from others to the commission of it. The
offence may be committed by the hands of one person at the instigation of another

34
person. It is necessary, therefore, to mark the nature and degree of participation of each
of the persons to determine their degree of culpability.

English law recognises the difference between principal and accessory. These are as
follows
1. Principal of first degree who actually commits the crime
2. principal of second degree who abets the actual commission of crime and is
present at the time of commission of crime
3. accessory before fact who aids or abets the crime but is not present at the spot of
commission of crime
4. accessory after the fact who helps knowingly the accused In harbouring, hiding
the stolen property

For example, A instigates B to murder . C encourages B by saying “Maro maro” and D puts
a Lathi into his hand. B thereby kills M. E Knowing that B had killed M, harbours him
inorder to enable him to escape from arrest.
Here, B is the person who commits the offence and is there by principal of first degree. D
aids B by putting Lathi into his hand and is, therefore, principal in the second degree. A
and C are accessories before the fact for the instigated and encouraged B to kill M. E is
the accessory after the fact for he assists him in escaping from punishment.

Indian law
The Indian Penal Code makes a broad distinction between principal and abettors but does
not recognise the accessory after the fact except that harbouring of offenders has been
made a substantive offence in some cases.

Section 107: Under IPC Abetment is constituted in the following ways

1. Abetment by instigation
2. Abetment by conspiracy
3. Abetment by aid
Note: Abetment is an offence only if the act abated would itself be an offence punishable
under IPC for any other law for the time being in force

ABETMENT BY INSTIGATION
Instigation means the act of inciting another to do a wrongful act or omission. To instigate
means to actively suggest or stimulate by any means or language, direct or indirect or by
hints.
Mere azquiescence, silent assent or verbal permission would not constitute instigation.
For instance, A tells B that he intends to Murder C. B says “do as you like it”. A kills C. B
cannot be said to have instigated A to murder C because instigation means some active
suggestion or support to commit the offence.

35
Willful misrepresentation or concealment of a material fact: Explanation 1 to Section
107 of the Indian Penal Code says that instigation may be constituted of wilful
misrepresentation or wilful concealment of a material fact by one who is bound to
disclose it. The illustration to this explanation amply explains the instigation by wilful
misrepresentation. Instigation by wilful concealment is there where concealment relates
to a material fact which one owes a legal duty to disclose.

Instigation by letter: instigation may be direct or it may be by a letter. Where A writes

a letter to B instigating thereby to murder C, the offence of Abetment by instigation is
complete as soon as the contents of the letter become known to B. If the letter never
reaches B, it is only an attempt to abet punishable under section 511 IPC but not
Abetment.

For instance, a mere request to do an offence May amount to Abetment by instigation. A

offers bribe to B, a public servant, who refuses to accept but here A commits the offence
of Abetment.

Sometimes, silent approval produces the effect of inciting and encouraging and such
silent approval amounts to instigation. In the case of Queen vs Mohit, every woman
prepared herself to become Sati in the presence of the accused persons. They followed
her up to the fire and stood by her stepson crying “Ram Ram”. One of the accused also
admitted that he told the women to say “Ram Ram”. It was held that all those that followed
her to the fire and stood by her crying “Ram Ram” would be guilty of Abetment as they
actively connived and gave the silent approval of becoming Sati.

ABETMENT BY CONSPIRACY
Abetment by conspiracy consists when two or more persons agree for the doing of a thing
and an act or illegal omission takes place in pursuance of the conspiracy and in order to
the doing of that thing.
In order to constitute Abetment by conspiracy, three things are necessary
1. A conspiracy between two or more persons
2. an act or illegal omission must take place in pursuance of that conspiracy
3. such an act or illegal omission must also take place in order to the doing of the
thing conspired

Therefore, it is clear that for an offence under the second clause of section 107, a mere
combination of persons or agreement is not enough. An overt act must have been done.
But for an offence under section 120A, a mere agreement is enough if the agreement is to
commit an offence.

Clause(2) has to be read together with explanation 5 of section 108, which provides that
it is not necessary to the commission of the offence of Abetment by conspiracy that the

36
abetter should concert the offence with the person who commits it. It would be sufficient
if he engages in the conspiracy in pursuance of which the offence is committed.
The illustration attached with the explanation makes the position amply clear.

A mere conspiracy would not amount to Abetment. If conspirators are detected before
they have done more than discussed plans with a General intention to commit an offence,
they would not be liable as abettors. However, if their plan was to commit an offence they
would be liable for conspiracy under section 120B of the code.

ABETMENT BY AID
A person abets the doing of a thing who intentionally aids, by any act or illegal omission,
the doing of that thing. Clause 3 of section 107 must be read with explanation 2 of the
section and if read together it becomes clear that a person cannot be held guilty of
aiding the doing of an act when the act has not been done at all.
A mere giving of an aid does not make the act an Abetment of an offence, if the person
who gives the aid does not know that and offence was being committed or contemplated.
For instance, A, B and C are friends. A and B have fallen out so much that A is determined
to kill B. A goes to the house of C, and on some pretext or other induces C to call B to his
house. C has not the least idea that A would kill B on his arrival. B arrives and is murdered
by A. A had committed Murder.
In this case, there is no doubt that C aided in calling B to his house but he never knew why
A wanted him to send for B. Whatever C did, he did intentionally, for it was certainly his
intention that B should come . But, it was not C’s intention that a crime should be
committed. Therefore, C cannot be held guilty of Abetment of Murder.
A intends to kill B. He prepares poison and mixes the same with some food material and
gets the same placed at the dining table of B through B’s servant who is in knowledge of
the same. In this case A will be liable for abetting the offence of Murder in case B was
killed otherwise A will be liable for abetting to attempt to murder. The servant will also
be liable for Abetment by aiding.

Attempt :the Abetment of an offence is itself a substantive offence. Abetment is an offence

within the meaning of the term under section 40 of IPC. Therefore, attempt to commit the
offence of Abetment will be well covered by the provisions of section 511 of the code.

Mere presence does not amount to aiding : To be present and aware that an offence is
about to be committed does not constitute Abetment unless the person so present holds
some position of authority, rank or influence of such a nature that may encourage the
commission of an offence
Aid by act, in the case of Emperor versus Fayaz Hussain ,a Zamindar lend a house to
the police officer who was investigating a case, knowing that the house would be used for
torturing a suspected thief. He was guilty of Abetment

37
By affording facility, the facility given must, however, be such as essential for the
commission of the crime. The mere act of allowing an illegal marriage to take place at
one’s house does not amount to Abetment. In the case of emperor vs umi , it was held
that mere consent to be present at an illegal marriage or actual presence in it, or the grant
of accommodation in a house for the marriage does not necessarily constitute abetment
of such illegal marriage, but the priest who solemnizes such illegal marriage is guilty of
abeting an offence of bigamy under section 494 IPC

Section 108 Abettor

In case of offences of abetment, active complicity on the part of the Abettor prior to the
time of actual commission of the offence is necessary. The Abettor must substantially
assist the principal culprit towards the commission of the offence.
Section 108 Para 1 defines Abettor. Abettor means
1. one who assists the commission of an offence
2. one who abets the commission of an act which would be an offence if committed
by a person not suffering from any physical or mental incapacity

An Abettor is one who instigates, engages in a conspiracy or aids within the meaning of
section 107. An Abettor falling in category (1) as stated above may be explained with the
help of an illustration.
Suppose A instigates B, a lunatic, to kill C. B kills C. Here B being a lunatic would be
excused under section 84 of the code and would not be liable for murder, but A would
still be liable for the offence of abetment because A has Abetted the commission of the
offence of killing which would be an offence, if committed by a person who is not a
lunatic.

Abetment is a substantive offence. Therefore, conviction of an Abettor is not dependent

on the conviction of the principal or the person abetted. A person who has been convicted
of an offence as principle cannot be punished as an Abettor also.

To constitute an offence of abetment, it is not necessary that the act Abetted should be
committed and that the person abetted should be capable to commit an offence or have
the same guilty intention or knowledge

38
Punishment for abetment
If no provision for abetment of that offence is provided in IPC, only then section 109 to
117 shall be applicable.

Section 109 if act abetted and same act is committed then abettor is liable for that act
which is Abetted.

section 110 if one act is Abetted and Abettor has done different or with different
intention or knowledge, then Abettor is liable only for offence of which he abetted and
not what Abetted person has committed.
Section 111 if one act is abetted and different act has been committed, the abettor is
liable for that act committed if act committed is probable consequence of act abetted.

Section 112 section 112 should be read with section 109 and section 111. If one act is
abetted and the abetted person has done that abetted act and another act also which is
probable consequence of act abetted, then Abettor is liable for both acts.

Section 113 this section is similar to Section 111. here Abettor knew the effect of the act
abetted.

Section 114 when abetter is present at the spot then he is liable as if he himself
committed that offence

section 115 if offence Abetted it is punishable with death or life imprisonment and
i. offence not committed and no hurt caused to any person. Imprisonment upto 7
years and fine
ii. if hurt caused to any person, imprisonment up to 14 years and fine

section 116 abetment of offence punishable with imprisonment only

if act is not committed punishment is one fourth of that offence which is Abetted
if Abettor or abetted person is a public servant then punishment is half of that offence
abetted.

39
Section 117 abetment of 10 or more persons

Section 120A definition of criminal conspiracy

when two or more persons agree to do or cause to be done
i. an illegal act or
ii. an act which is not illegal by illegal means
such an agreement is designated as criminal conspiracy.

Provided that no agreement except an agreement to commit an offence shall amount to

criminal conspiracy unless some act besides the agreement is done by one or more
parties to such agreement in persuance thereof.

A conspiracy consists not merely in the intention of two or more but in the agreement of
two or more to do an unlawful act by unlawful means.
It may not be possible to prove agreement between them by direct proof. The objective
of conspiracy can be inferred from surrounding circumstances and conduct of accused. It
is a substantive offence.

In view of the proviso to the section it appears that a distinction is drawn between an
agreement to commit an offence, and an agreement of which either the object or the
means employed are illegal but does not constitute an offence. In case of an agreement to
commit an offence no overt act apart from mere agreement is necessary. But in case of an
agreement to do an act which would not amount to an offence, some over act besides the
agreement must be done by one or more parties to such an agreement.

Illegal act: To constitute the offence of criminal conspiracy an agreement must be to do

an act which is contrary to or Forbidden by law. An agreement which is Immoral or
against public policy, or in restraint of trade or otherwise of such a character that the
courts will not enforce it, is not necessarily illegal.

Illegal means: an agreement to do an act which even though lawful by unlawful means
constitutes conspiracy. The end does not justify the means.

Overt act: where the agreement is to do an act which would not be an offence, some overt
act in pursuance of the agreement needs to be done in order to constitute criminal
conspiracy.

Section 120A and 120B were added by criminal Amendment Act, 1913 with a view to
make conspiracy a substantive offence. Mere agreement to commit an offence is
punishable under section 120B IPC. Where an agreement is done for the commission of
an act which is not illegal but by illegal means, in such cases, an overt act must be done in
consequence of the agreement.

40
Husband and wife in English law, if husband and wife are the only parties to a conspiracy
they cannot be held liable for conspiracy because legally they are Deemed to be one
person. But in India, they can be held liable for conspiracy.
In the case of hardhan Chakravarti versus Union of India, it was held that conspiracy
requires two minds so no one person can be held liable for conspiracy.

Criminal conspiracy is a substantive offence. it is a continuing offence. It is committed not

only when agreement is first entered but continues as long as agreement to effect
unlawful object continuous.

Distinction between section 120A and 107

✓ conspiracy is a substantive offence under section 120B. it has nothing to do with
abetment.
✓ Section 120A provides an extended definition of criminal conspiracy covering acts
which do not amount to abetment by conspiracy within the meaning of section
107
✓ where a criminal conspiracy amounts to an abetment under section 107, it is
unnecessary to invoke the provisions of section 120A or 120B because the code
has made specific provision for the punishment of such a conspiracy.
✓ In case of conspiracy under section 107, a mere combination of persons or
agreement between them is not enough. An act or illegal omission must take place
in pursuance of the conspiracy.
✓ In case of conspiracy under section 120A, the mere agreement is enough if it is to
commit an offence.
✓ So far as abetment by conspiracy is concerned, the abettor will be liable to
punishment under section 109 - section 117. The offence under section 120A is
punishable under section 120B.

Distinction between section 34 and 120A

✓ the gist of offence under section 120A is a mere agreement to break the law even
though an illegal act is not done. While under section 34 the gist of the offence is
the commission of criminal act in furtherance of common intention of all.
✓ Section 34 requires the presence of every person on spot and their participation
in crime but section 120A does not require such thing.
✓ Section 34 is a rule of evidence whereas section 120A is a substantive offence.

Distinction between section 34 and 114

✓ section 34 requires common intention whereas section 114 is applicable only to
abettor.
✓ Section 114 requires only presence of abettor on the spot but section 34 requires
that every person is present at the spot and participated in crime in furtherance
of common intention of all.

41
Section 120B punishment for criminal conspiracy
whoever is a party to a criminal conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two or more years shall,
where no Express provision is made in this code for the punishment of such a conspiracy,
be punished in the same manner as if he had abetted such an offence.
In cases in which the punishment provided is lesser than provided above, the person shall
be punished for imprisonment not exceeding six months or fine or both.

CHAPTER 6 - OF OFFENCES AGAINST THE STATE

Section 121 waging war against the Government of India

waging war - any person taking part in organised armed attack on the constitutional
authorities and the object of attack being subversion of Government and the
establishment of another in its place would be guilty of the offence of waging War. This
offence may be committed by citizens or foreigners. If the accused with the object of
overthrowing the government recruits people and punishes those who refuse to join he
would be guilty of waging war.
Abets the waging of War- abetment of waging War is made a special offence. It is not
essential that as a result of the abetment the war should in fact be waged. Although the
general law relating to abetment has made a distinction for purposes of punishment
between the abetment which has exceeded and the abetment which has failed, this
section makes no distinction between the two. There is also no distinction between the
principal and accessory and all who take part in the unlawful act incur same liability.
Maganlal case 1946

In the case of of state(NCT of Delhi Vs Navjot Sandhu 2005) terrorists entered

parliament house with sophisticated arms and powerful explosives when parliamentary
business was being conducted therein. The supreme court held that the undoubted
objective and determination of deceased terrorists was to impinge on sovereign authority
of nation and its government

Section 121-A conspiracy to commit of offences punishable by section 121

the expression “conspiring to overwave government by means of criminal force or the
show of criminal force” was interpreted by the Kerala High Court in the case of Arbind
versus state of 1983. The court observed that the word “overawe” means something
more than the mere creation of apprehension, alarm or fear. It cannotes the creation of a
situation in which the government feels itself compelled to choose between yielding to
force or exposing itself or members of the public to a very serious danger

Section 122 collecting arms, men or ammunition with the intention of waging War
against the Government of India
Section 123 concealing with intent to facilitate design to wage war

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Section 124 assaulting president, Governor etc. with intent to compel or restrain
exercise of any lawful power

Section 124A (sedition)

Section 124A was added to the Indian penal code in 1870 and explanations were added
in 1898.
Ingredients - the following are two essentials of sedition
1. Bringing or attempting to bring into hatred or Contempt or exciting or attempting
to excite disaffection towards the Government of India
2. such act for attempt maybe done (i)by words, either spoken or written, or
(ii)signs, or (iii) by visible representation.

Constitutional validity of Section 124A

In the case of Queen versus Jogendra Chandra Bose the word “disaffection” was
explained which means feeling contrary to affection. in other words dislike or hatred.
“Disapprobation” means simply disapproval.
Queen vs Bal Gangadhar Tilak it was held that a man must not make or try to make
others feel enmity of any kind towards government.
In this case it was pointed out that if on reading the articles for speeches, the reasonable,
natural and probable effect of the articles or speeches on the minds of those who read
them or to whom they were addressed appears to be that feelings of hatred, Contempt or
disaffection would be excited towards the government, the offence is committed. But in
considering the intention of the accused, and the effect his writings are likely to produce,
it is necessary to take into consideration the state of the country and of the public mind
at a time of Publication. Not only the time but the place, the circumstances and the
occasion of Publication are material.

After coming into force of the constitution the validity of this section was considered
by the supreme court in Ramesh Thapar 1950 and Brij Bhushan 1950 cases. As a result
of these two decisions constitution first Amendment Act was passed in 1951. Thereafter
in Kedarnath Singh case 1962 the validity of this section was again questioned on the
ground of the provisions of this section being in violation of freedom of speech and
expression. the plea was negatived by the court and the section was held to be
constitutional. The explanation to the section makes it clear that criticism of public
measures or comment on the government action, however strongly worded within
reasonable limits and consistent with the fundamental right of freedom of speech and
expression is not affected. It is only when the words have the pernicious tendency or
intention of creating public disorder or disturbance of law and order that the provisions
of the section are attracted.

Exciting disaffection - to constitutes an offence under this section it is not necessary that
one should excite or attempt to excite mutiny or rebellion or any kind of actual

43
disturbance, it would be sufficient that one tries to excite feeling of hatred or contempt
towards the government. Bal Gangadhar Tilak case 1867

Attempt- a person may be charged not only with exciting but also with attempting to
excite and both successful and unsuccessful attempts to excite disaffection were placed
on the same footing. So even if a person had only tried to excite the feeling he could be
convicted. Bhaskar 1906 case.
In the case of Surendra Narayan Aadicharya 1911 it was held that sending through the
post of a packet containing a copy of manuscript of a seditious Publication with a covering
letter requesting the addressee to circulate it to others, when the same was intercepted
by another person and never reached the addressee, constitutes an attempt to commit an
offence under this section.
Mere abusive words are not capable to excite general public or create the situation of
public disorder. The act or words complained of must be either encite to disorder or must
be such as to satisfy a reasonable man that it is their intention or tendency. Niharendra
Dutta Majumdar 1942

Government established by law in India- it includes the state government as well as the
central government.
To suggest a change in the form of Government cannot be said to be causing disaffection
towards government established by law or to bring present government into hatred or
contempt.
A general criticism of certain officers cannot be deemed to be a criticism of government
established by law in India.

Explanation I: disaffection means anything which is contrary to affection.it is very much

nearer to hatred or dislike. Feeling of enmity includes ill-will, hostility, feelings of dislike
amounting to enmity, and anything of a similar class for character which can be
summarised under the expression disloyalty and feelings of enmity.

Explanation 2 and 3: this section has taken care to indicate clearly that strong words
used to express disapprobation of the measures of government with a view to their
improvements or alternatively lawful means would not come within the section.

Dramatic performance : any dramatic performance likely to excite feelings of

disaffection to the government may be prohibited by government and persons taking part
in any such performance may be punished

Section 268 Public Nuisance Nuisance means anything which causes inconvenience,
annoyance or damage. Nuisance is of two kinds
1. Public Nuisance or common Nuisance and
2. private Nuisance

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Public Nuisance is a common annoyance which affect the public and is a substantial
annoyance to all the subjects. private Nuisance is anything which causes material
discomfort and annoyance to a man in the use for ordinary purposes of his house or
property. It is an act affecting some particular individual or individuals as distinguished
from public at large.
in order to constitutes a Public Nuisance there must be an act or an illegal omission. It is
not necessary that the act should be illegal. But as soon as an act becomes a nuisance, it
becomes illegal not because it is per se illegal, but because it has an injurious effect upon
and is intolerable to the public.
it is no defence to a charge for nuisance against a master or employer that the nuisance
was caused by acts of his servants, if they were done in the course of their employment.
It is not a sine qua non that a public nuisance should injuriously affect every member of
the public within its range of operation. It is sufficient that it should affect people in
general who dwell in the vicinity.

Section 269 this section punishes any person who does any act which is likely to spread
infectious diseases in the society. the infectious diseases are Cholera, plague, smallpox
etc. However, such person must have knowledge that his action was likely to spread
infectious diseases.
A, a prostitute communicated venereal disease to a man who had sexual intercourse with
her on the strength of her representation that she was free from any disease. in this case
A will be liable under section 269 Indian Penal Code for the spreading infection of disease
as she knew that he was suffering from venerial disease which was infectious and
knowing this fact A misrepresented that he was free from any disease and with this
representation had sexual intercourse with a man.

Section 270 the word “malignantly” denotes a deliberate intention to cause infection of
any disease on the part of accused.

Section 271 under this section disobedience to quarantine rule is punishable. The motive
behind such disobedience is immaterial. a person who knowingly disobeys any rule made
by the government shall be punished whether any injurious consequence flow from it or
not.

Section 272 mere adulteration with harmless ingredients for the purpose of getting more
profit is not punishable under the section. for example mixing water with milk or ghee
with vegetable oil. Adulteration means to mix with any other substance whether wholly
different or of the same kind but of inferior quality.

Section 274 the purpose, of this section is to preserve the purity of drugs for medicinal
purposes. It is not necessary that such adulteration of drugs should become noxious to
life, it is sufficient if the efficacy of a drug is lessened.

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Section 277 the water of public spring or Reservoir belongs to general public and any
person who fouls it, commits a Public Nuisance. The section includes the following
ingredients
1. voluntary corruption of fouling of water
2. the water must be of public spring or reservoir
3. the water must be rendered less fit for the purpose for which it is ordinarily used
Section 278 this section provides punishment for making atmosphere noxious to health.
Such noxious atmosphere must affect the health of the general public

Section 279 the following are the ingredients of section 279

1. driving of a vehicle or riding on a public way
2. such driving or riding must be so Rash or negligent as to endanger human life or
to be likely to cause hurt or injury to any other person

Section 280 this section deals with the cases of Inland navigation. If a person by Rash or
negligent navigation of vessel in dangers human life, he shall be punished under this
section

Section 284 the poisonous substance should endanger human life or should be likely to
cause hurt or injury to any person. in the second part of the section the person in
possession of poisonous substance should have omitted to take reasonable care which is
sufficient to guard against any possible danger the human life.

Section 285 this section deals with negligent conduct with respect to fire or combustible
matter. it extends the provisions of the preceding section to fire or any other combustible
matter.

Section 287 machinery is dangerous to human life if proper care is not taken in its
working. If an owner of a machinery compels any person to work in an unsafe condition
in a manner likely to endanger human life, he shall be punished under this section.

Section 288 this section provides punishment for negligent conduct in respect of pulling
down or repairing building. However any injury complained of must be the direct
consequences of such negligent conduct

Section 289 the words “any animal” includes both wild and domestic animal. any person
who keeps wild animals such as Tiger or bear, which escapes and causes danger shall be
punished. those persons who are in possession of such animals have a primary duty to
protect the public against the Mischief resulting from such animal at large

Section 290 this section deals with punishment for Public Nuisance falling within the
definition given in section 268 of the code but not punishable under any other section.

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Section 291 under this section if a person repeats or continuous a Public Nuisance after
he is enjoined by a public servant not to repeat or continue it, he shall be punished.
under sections 142 and 143 of the code of criminal procedure a magistrate is empowered
to forbid an act of Public Nuisance.

Section 292 Obscene- the main test of obscenity is whether the tendency of the matter
charged as obscene is to deprave and corrupt those whose minds are open to such
Immoral influences, and into whose hands the publication of this sort may fall. Hicklin
test
In considering the question of obscenity of a Publication, the court has to see whether a
class into whose hands the book, article or story falls suffer in their moral Outlook or
become depraved by reading it or might have impure thoughts aroused in their minds.
A vulgar writing is not necessarily obscene. Vulgarity arouses as a feeling of disgust and
boredom whereas the obscene has the tendency to deprave and corrupt those whose
minds are open to such inmoral influences. a novel written with a view to expose evils
prevailing in society by laying inferences on sex and use of Slangs and unconventional
language did not make it obscene.

Section 293 provides for enhanced punishment to those who sell, distribute, exhibit or
circulate any obscene object to persons under the age of 20 years

section 294 an act to be punished under this section must cause annoyance either to a
particular person or persons in general. the words “to the annoyance of others” do not
limit it to mean the person who is the intended victim of the obscene act of the accused.
If the abusive language is not used in a public place there would be no liability under this
section. “Obscene act” means indecent exposure of one’s person or sexual intercourse in
a public place will be punished under this section.

Offences relating to Religion

The object of section 295 is to prevent those persons who intentionally wound the
religious feelings of others by injuring or defiling a place of worship.
In the case of Sujata Bhadra vs State of West Bengal 2006 the petitioner, a citizen of
India filed a petition for setting aside order of forfeiture of book “dwikhandita” written
by Taslima Nasrin of Bangladesh. The alleged objectionable material related to volume 3
of her autobiographical Trilogy. She herself a women had written the alleged offending
part in context of the status of women in the society of Bangladesh emanating from
adoption of Islam as a state religion. She was expressing her own view and political
thoughts/philosophy in relation to the constitution of Bangladesh. In the third volume of
the said book offending passages are written in context of position of women in her
motherland. It was held by the Calcutta High Court that the book does not reflect any
intention of outraging religious feelings to insult religion or religious belief of that class
of citizens in India.

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Intention of author is not deliberate and malicious for achieving any object of religious
hatred. The order of forfeiture of the book was set aside. In order that a book may fall
within the Ambit of section 295A of IPC it has to be read as a whole and cannot be read in
piecemeal. The offending passage cannot be read out of context or central theme of the
book.

Under section 296 any person who voluntarily causes disturbance to any assembly held
for religious worship or performance of religious ceremonies shall be punished.

under section 298 if any person deliberately wounds the religious feelings of any other
person by uttering words or making any Gesture in presence of that person, he shall be
punished. The purpose of this section is that no person can be justified in wounding with
deliberate intention the religious feelings of his neighbours by words, gestures or
exhibitions.

Chapter XVI of offences affecting human body

Homicide: homicide is the Killing of human being by a human being. It may either be
lawful or unlawful. Lawful homicide includes several cases falling under chapter IV of IPC
dealing with general exceptions. Unlawful homicide is of following kinds
1. Murder Section 302
2. Culpable homicide not amounting to murder section 304
3. Causing death by negligence section 304A
4. Dowry death section 304B
5. Abetment to suicide section 305 and 306
Ingredients of section 299: the following essentials of culpable homicide
1. causing of death of a human being
2. such death must have been caused by doing an act
3. the act must have been done
a) with the intention of causing death
b) with the intention of causing such bodily injury as is likely to cause death
c) with the knowledge that the act is likely to cause death

Whoever causes death; Death means death of human being. It does not include the death
of an Unborn child, such as a child in the Mother's Womb. Explanation 3, it May amount
to culpable homicide to cause death of living child if any part of the child has been brought
forth, though the child may not have breathed or been completely born.

By doing an Act: death may be caused in a number of ways; such as poisoning, Starving,
striking, drowning or communicating some shocking news. Here act includes illegal
omission also. An omission is illegal
✓ if it be an offence
✓ if it be a breach of some direction of law

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 ✓ if it be such a wrong as would be a good ground for civil action.
Death caused by effect of words: A with the intention or knowledge relates some exciting
or agitating news to B, who is in a critical stage of a dangerous illness. B dies in
consequence. A will be liable of culpable homicide. Similarly A, with the intention or
knowledge gives B his choice whether B will kill himself or Suffer lingering torture, B kills
himself by taking poison. A would be liable for culpable homicide.

Intention and knowledge: Intention is inferred from the acts of the accused and the
circumstances of the case. Therefore, a deliberate firing by a loaded gun at once leads to
inference that intention was to cause death. Intention of causing death is not the intention
of causing death of any particular person. Illustration (a) shows that a person can be
guilty of culpable homicide of a person whose death he did not intend. in that illustration,
A had the intention or knowledge of causing somebody's death, though not of a particular
person, who treads over the turf believing the ground to be firm.
The difference between the two expression “intention of causing death” and “intention of
causing such bodily injury as is likely to cause death” is a difference of degrees in
criminality. The latter is a lower degree of criminality than the former. But as, in both the
cases the object is the same, the law does not make any distinction in punishment.

In the case of Jamaluddin 1892, the accused in exercising the spirit of a girl whom they
believed to be possessed, beat her resulting in her death. They were held guilty of
culpable homicide.
A and B successively and independently wound C with murderous intent. C dies due to
loss of blood caused by both wounds together when he would not have died from either
alone. Both have inflicted injury with murderous intent. Although injury caused by either
alone may not have caused death of C but each one of them knew that the wound was
likely to cause death of C.

Sometimes even gross negligence may amount to knowledge: if a person acts negligently or
without exercising due care and caution, he will be presumed to have knowledge of the
consequences arising from his acts. in Kangra case 1898, the accused struck a man with
a club, Bonafide believing that the object was not a human being but something
Supernatural but, through terror, without taking any steps to satisfy himself that it was
not a human being. since he had acted with gross negligence without satisfying himself
about the object which he struck, he was guilty of culpable homicide not amounting to
murder.

In another case Ganesh Dooley 1879, a snake charmer exhibited in a public a venomous
snake whose fangs he knew had not been extracted, and to show his skill, but without any
intention to cause harm to anyone, placed the snake on the head of one of the spectators.
The spectator in trying to push off the snake was bitten by the snake and died in
consequences. the snake charmer was held guilty of culpable homicide not amounting to
murder.

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In the case of Tulsa, a young widow of twenty years, wishing to elope with her lover at
night, wanted to elude the Vigilance of her parents, who were naturally opposed to her
elopement. with a view to intoxicate them she mixed Dhatura seeds in their food. The
court held, “we must presume that people of her age have the ordinary knowledge of what
the results may be of administering the Dhatura and therefore she was convicted under
section 307

In Sreenarayan 1947, A struck B on his head a single blow with a piece of firewood. B
fell down bleeding from nose and became senseless. A and his wife thought that B had
died. They placed the body on wooden Pyre and set it on Fire, which caused B’s death. It
was held that A and his wife are not liable for offence of Murder as they had no intention
to cause B’s death but were liable to be convicted under section 304 part II as they had
acted with gross negligence.

In a similar case of Palani goundan 1919, Madras High Court had applied the law in a
different manner. in this case the accused struck his wife a blow on her head with a
ploughshare, which, though not shown to be a blow likely to cause death, in fact rendered
her unconscious. The accused believing her to be dead, in order to lay the evidence of
false defence of suicide by hanging, hanged her on a beam by a rope, and thereby caused
her death by strangulation. He was held guilty of causing grievous hurt and not for
culpable homicide.
It is submitted that the view of Madras High Court is not sound. The view expressed by
Patna High Court in Shreenarayan case is a better one. It is submitted that both Madras
and Patna cases are substantially similar but the accused in the two cases, have been
differently dealt with. In Madras case also since the accused had acted with gross
negligence, he should have been guilty for culpable homicide not amounting to murder
under section 304.

In Lakshman Kalu 1968, A had gone to his father in laws house to fetch his wife. there
was some quarrel between A and his brother-in-law B on the question whether his wife
should accompany him by the night train the same day or by the morning train the next
day as desired by their in laws. During the quarrel, A lost his temper and gave one blow
with a knife on the chest of B which resulted in his death. It was held that A was guilty
under second part of section 304 for culpable homicide because Death was caused by
doing an act with the knowledge that it was likely to cause death.

Death caused without intention or knowledge the offence of culpable homicide

presupposes an intention of knowledge of likelihood of causing death. in the absence of
such intention or knowledge, the offence committed maybe grievous hurt or simple hurt.
In the case of Chatur Nath 1919 in the course of an altercation, fighting between A and B
on a dark night, the former aimed a blow with his stick at the head of the latter. To ward
off the blow, B’s wife C, who had a child on her arm intervened between them. The missed

50
it's aim and fell on the head of the child causing severe injuries due to which the child
died. It was held that inasmuch as the below, if it had fallen upon the complainant it would
have caused simple hurt, the accused was held guilty of causing simple hurt

In the fox case 1879 the accused dissatisfied and irritated by the lazy manner in which a
Pankha coolie was managing a Pankha went up to him and struck him with a few blows.
The Coolie, who was suffering from deceased spleen, died from the injuries. The accused
was guilty of causing simple hurt.

In Idu Beg case 1881 there was some verbal wrangle between the accused and his wife,
in the course of which he gave her a blow on the left side with great force. She vomited
and bled from the nose and died in about an hour. it was found that that was caused by
rupture of the spleen. The accused was guilty of grievous hurt.

Explanation 1: a person who caused bodily injury to another who is labouring under
disorderd disease or bodily infirmity and thereby accelerates the death of that person,
shall be Deemed to have caused his death. But one of the element of culpable homicide as
contained in section 299 must be present, that is, if the bodily injury so inflicted was not
with such intention or knowledge as required in section 299, the offence is not culpable
homicide.

Explanation 2: Where Death is caused by bodily injury, the person who causes such body
injury shall be Deemed to have caused death, although by resorting to proper remedies
and skillful treatment, the death might have been prevented.

In the case of Shobha, A caused Simple injury to D and D subsequently died of septic
meningitis which developed on account of the use of wrong remedies and neglect in
treatment. it was held that in such a case, the death cannot be said to have been caused
by the bodily injury within the terms of explanation 2 and the accused cannot be held
liable for culpable homicide under section 304.

In Davis, A gave a blow to D, the injury so inflicted rendered an operation advisable. As a

preliminary to the operation chloroform was administered to D who died during its
Administration and it was agreed that the patient would not have died but for its
administration. A was held liable for manslaughter because he had caused an injury
which in the opinion of competent medical men necessitate the operation.

SECTION 300 MURDER

Except in the cases hereinafter excepted, culpable homicide is murder.
Firstly, if the act by which the death is caused is done with the intention of causing death; or
Secondly, 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

51
Thirdly, 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
Fourthly, 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 likely to cause death and
commits such act without any excuse for incurring the risk of causing death or injury as
aforesaid.

Section 300 deals with cases where culpable homicide is murder. Murder includes
culpable homicide, but a culpable homicide may or may not amount to murder. A case of
culpable homicide is murder if it falls within any one of the four clauses of section 300

In Gyarsibai 1953, the accused, a woman, left her house as her life had become
unbearable owing to domestic violence. she went with her three children to a well and
jumped in it along with the children. she was saved but the children died. it was held that
the accused jumped into the well with the knowledge that it was so imminently
dangerous that it must in all probability cause the death of her children and therefore she
was guilty of Murder.
In Nga ba Tu 1921, a snake charmer Professsed by tattooing to render persons immune
from the effect of snake bite, caused a poisonous snake to bit D whom he had tattooed but
who died. he was guilty of Murder because his Act was imminently dangerous and came
within 4th clause of section 300.

Distinction between Section 299 and 300 culpable homicide and murder
The distinction between section 299 and 300 was made clear by justice melville in R vs.
Govinda. in this case, the accused knocked down his wife, put one knee on her chest, and
struck her two or three violent blows on the face with the closed fist, producing
extravagation of Blood on the brain and she died in consequence, there being no intention
to cause death and the bodily injury not being sufficient in the ordinary course of nature
to cause death. the accused was liable for culpable homicide not amounting to murder.

All murders are culpable homicide but not vice-a-versa

Culpable homicide is genus and murder is species

Read the elements of section 299 and section 300

Clause (a) and (b) of 299 is talking of intention as well as clause (1) (2) and (3) of Murder
is also talking about intention
Clause (c) of 299 is talking about knowledge as well as clause 4 of 300 is also talking
about knowledge

Few points to Remember:

1. Whenever there is intention to cause death, it would always be a murder unless it
falls within one of the exceptions of section 300

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 2. Section 299(b) corresponds with section 300 clause 2 and 3. The main distinction
between them lies in the knowledge on the part of the offender that the person
harmed is likely to die. The offence is murder if the offender knows that the
particular person injured is likely either due to bad health or immature age or
other special circumstances to be killed by injury which would not ordinarily be
sufficient to cause death. Section 300 illustration b
3. The comparison of section 299(b) and section 300(3) would show that the offence
is culpable homicide if the bodily injury intended to be inflicted is likely to cause
death, it is murder if such injury is sufficient in the ordinary course of nature to
cause death. Section 299 clause b speaks about Probability and section 300(3)
speaks about possibility or more probability
4. Section 299(c) and section 300(4) appears to apply in cases in which there is no
intention to cause death but knowledge that the act is dangerous and, therefore,
like to cause death. both the clauses required knowledge in very high degree of
probability. for example, firing at target near public Road may be an act which is
known to be likely to cause death and liability would be culpable homicide not
amounting to murder but firing in crowd on persons would be an act which must
be said to be known as imminently dangerous act and the liability would be for
Murder

What are exceptions under section 300?

Difference between section 299 and 300?
When culpable homicide is not Murder?
Supreme Court in State of Andhra Pradesh vs. R Puniya 1976 made distinction between
section 299 and 300.

EXCEPTIONS UNDER SECTION 300 WHEN CULPABLE HOMICIDE IS NOT MURDER

Exception 1 culpable homicide is not murder if the offender whilst deprived of the power
of self control by Grave and sudden provocation, causes the death of the person who gave
the provocation or causes the death of any other person by mistake or accident. provided
First, that the provocation is not sought or voluntarily provoked by the offender as an
excuse for killing or doing harm to any person
Second, that the provocation is not given by anything done in obedience to the law or by
a public servant in the lawful exercise of the powers of such public servant
Thirdly, that the provocation is not given by anything done in the lawful exercise of the
right of private defence
Explanation: when the provocation was Grave and sudden enough to prevent the
offence from amounting to murder is a question of fact

Grave and sudden provocation: in order that provocation may be pleaded in defence to
a charge of Murder for mitigation of the offence, four things are necessary:

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 1. there must be provocation
2. provocation must be Grave and sudden
3. by reason of such Grave and sudden provocation, the offender must have been
deprived of the power of self control, and
4. the death of the person who gave provocation or of any other person by mistake
or accident, must have been caused.

Provocation must be Grave and sudden: provocation under this exception must be
both Grave and sudden. In KM Nanavati case, the court has forwarded the test of Grave
and sudden provocation that is,
1. whether a reasonable man, belonging to the same class of society as the accused,
placed in the situation in which the accused was placed would be so proved as to
lose his self control
2. In certain circumstances, words and gestures may also cause Grave and sudden
provocation in India but not under English law
3. The mental background created by the previous act of the victim may be taken
into consideration in ascertaining whether the subsequent act caused Grave and
sudden provocation for committing the offence.
4. The factual blow should be clearly traced to the influence of passion arising from
that provocation and not after the passion had cooled down by lapse of time, or
otherwise giving room and scope for premeditation and calculation.

In Amar Singh case, it was held that finding of A spouse in the actual act of adultery or
having just completed adulterous copulation have been held to be sufficient provocation.
in such cases, both the man and woman committing adultery are held to give Grave and
sudden provocation so that causing the death of either of them will be culpable homicide.

In state of UP vs Lakshmi 1998, The accused killed his wife. he saw something lascivious
between his wife and other person when he entered his house from field. giving the
benefit of exception 1 of section 300, and holding the accused guilty under section 304
Part 1, the court observed that any ordinary man with normal senses would be outraged
at such a scene.

In a case R had teased A’s sister while she was in the field. coming to know of it, A took a
Sword and went to R’s residence. R, his mother and sister were present in the house when
A reached there abusing them. he said that he would possibly take away R’s sister. R’s
mother took her daughter inside a room and bolted the door. A immediately gave a blow
on her neck with the sword in his hand and she fell down dead. at this R started running
toward the fields. A chased him abusing. when A was still about 20 feet from him, R
jumped into a well to save himself but died of asphyxia due to drowning. in this case, the
act of teasing by R to A’s sister was not of such a nature whereby it can be said that A
chopped off R’s mother head under Grave and sudden provocation so as to reduce liability

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for murder to culpable homicide. A will be liable for murder of R’s mother and for
Abetment to commit suicide of R.

In a case of confession of adulterous intercourse, Grave and sudden provocation may be

pleaded in mitigation of punishment only when the women concerned is the wife of the
accused. it cannot be claimed where a woman was only engaged to be married or was
only in love with the accused. Palmer 1913 and murgi munna 1938

In the case of Balku 1938, the accused and his wife’s sister's husband, S, were sleeping
on the same cot in the verandah and accused’s wife ,W, was sleeping in the adjoining
room. sometime in the night, S got up and went into the room and bolted the room behind
him. the accused also got up and peeping through hole in the door saw S and w having
sexual intercourse. the accused returned to his cot and laid down on it. after sometime, S
came out of the room and lay down on the cot by the side of the accused. after a short
time, when S began dozing, the accused stabbed him with several times with a knife and
kill him. the evidence showed that the accused did not go anywhere to search for the knife
which apparently was with him. the case was covered by exception 1 to Section 300
notwithstanding the fact of time gap between the seeing of the act of adultery and killing
of S.

In another case, A ,wife on returning home finds her husband B sleeping on the bed with
maid servant. she brings out a revolver and kills both. she will get benefit of section 1 of
section 300.

Exception 2 exceeding right of private defence

In order that exception 2 may apply, the following conditions must be fulfilled
1. act must be done in exercise of right of private defence of person or property
2. act must have been done in good faith
3. the person doing the act must have exceeded his right given to him by law and
have thereby caused death
4. act must have been done without premeditation and without any intention of
causing more harm than was necessary in self defence

In the case of Gokul bowree 1866, A found that B, a feeble old woman was stealing his
crop, A beat her so violently that she died from the effect of the attack, it was held that A
was guilty of Murder and this exception would not apply.

In the case of Fukeera 1866, a thief was seen with half of his body and head through a
wall of a house occupied by a women except the accused and his young idiot son and the
accused suddenly caught up a sort of pole-axe, and with it struck the thief five times on
his neck and nearly cut off his head. it was held that the accused inflicted more hurt than
was necessary for defence and was guilty of culpable homicide.

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Exception 3
In order that this exception may apply, the following conditions must be fulfilled
1. offence committed by a public servant or by some other person acting in the aid
of such public servant in the advancement of public justice
2. public servant or such other person exceeds the powers given to him by law
3. Death is caused by doing an act which he in good faith believes to be lawful and
necessary for the discharge of his duty as such public servant
4. the act must have been done without any ill will towards the person whose death
is caused

Exception 4 death caused in sudden fight

for the application of this exception, the following conditions must be fulfilled
1. Death must be caused in a sudden fight
2. sudden fight must be without any premeditation
3. it must occur in the heat of passion upon a sudden quarrel
4. the offender must not have taken undue advantage and must not have acted in a
cruel or unusual manner
5. the fight must have been with the person killed
6. it is immaterial as to which party offered the provocation or committed the first
assault.
Exception 5: death caused with the consent of the person
for the application of this exception, the following conditions must be fulfilled
1. person whose death is caused must have consented to the causing of his death or
the taking of the risk of death
2. the person consenting must be above the age of 18 years

cases
Dashrath paswan vs. state of Bihar
Ambalathil Assaenar

Section 301 culpable homicide by causing death of a person other than person whose
Death was intended
The underlying Idea behind section 301 appears to be that where an act is in itself
criminal, the doing of an act is an offence irrespective of the individuality of the person
harmed.
The English doctrine of transfer of malice or transmigration of motive has been embodied
in section 301 of the code. Here if A thinks to kill B but kills C whose death he neither
intended nor knows to be likely to cause, the intention to kill C is by law attributed to him.
A finding B attacked by C with a knife shoots at C thereby intending to save B, the shot
misses C and kills B. Here A would be liable in the same manner as he would have been if
instead of B, C was killed. Since A shot at C to save B from being inflicted injury by knife
which could be grievous hurt and if C were in fact killed A would not have been liable

56
because he could claim the right of private defence under section 100 IPC. Therefore, A
would not be liable for causing of death of B as well.

Section 302 punishment for Murder: this section provides punishment for Murder. Life
imprisonment is the rule and death penalty is an exception in an offence of Murder.
Rajendra Prasad vs State of UP 1979. Section 354 (b) of The Criminal Procedure Code
1973 requires that special reasons should be recorded while awarding death penalty. The
sentence of death should be awarded in rarest of rare cases Bacchan Singh versus State
of Punjab 1980

Section 303 punishment for murder by life Convict: in Mithu Singh versus State of
Punjab the legality of section 303 was examined by the full bench of Supreme Court. The
majority opinion was that this section violates the guarantee of equality contained in
Article 14 and also the right contained in article 21 of the constitution.

Section 304 punishment for culpable homicide not amounting to murder: this section
provides punishment for two separate degrees of culpable homicide depending upon the
intention to cause death or bodily injury likely to cause death under para 1 and
knowledge that the act is likely to cause death under para 2.

Section 304A causing death by negligence: for the application of this section it is
necessary that the death is caused by doing a rash or negligent act and such act must not
amount to culpable homicide. Thus this section shall apply where there is neither any
intention to cause death nor knowledge that the act would in all probability cause death.
Sukaroo Kaviraj 1887
Where a chemist gives expired date medicines to a patient and the patient dies The
chemist would be liable for causing death by negligence because he has failed to exercise
due caution to ascertain whether the medicine that he was giving was expired date or not.
Negligent act not amounting to culpable homicide- it was observed by Allahabad High
Court in Idu Beg 1881 that section 304-A is directed at offences outside the range of
section 299 and 300, and obviously contemplates those cases into which neither
intention knowledge enters.
Contributory negligence- contributory negligence is no defence to a criminal charge. A
criminal charge shall be sustainable if the accused had been at fault even though someone
else may have been equally at fault. In the case of De Souza, A, a compounder while
preparing a fever mixture took out certain medicines from a bottle without reading its
label and mixed it in the mixture. The mixture was administered to 8 persons out of whom
7 died. The bottle was marked poison and contained strychnine hydrochloride and not
quinine hydrochloride as he supposed it to be. The compounder was held guilty under
this section.

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Section 304 B dowry death-
Essential ingredients-
1. Death must be caused by burns or bodily injury or it must occur otherwise than in
normal circumstances
2. death must occur within 7 years of marriage
3. it must be shown that soon before her death the women was subjected to cruelty
or harassment by her husband or any relative of her husband
4. such cruelty or harassment must be for or in connection with any demand for
dowry
5. here the dowry shall have the same meaning as assigned to it under section 2 of
the dowry prohibition Act, 1961.
It was held that a conjoint reading of Section 113B of the evidence act and section 304 B
of IPC shows that there must be material to show that soon before her death, the victim
was subjected to cruelty or harassment. Soon before death- soon before death is a
relative term and it would depend upon circumstances of each case. It would normally
imply that the interval should not be much between the concerned cruelty or harassment
and the death in question. Under section 304B it is dowry death that is punishable and
such death should have occurred within 7 years of marriage. No such period is mentioned
in Section 498A.

Section 305 abetment of suicide of child or insane person- if any person under 18 years
of age, insane person, delirious person, an idiot, or any person in a state of intoxication,
commits suicide, whoever abets the commission of such suicide, shall be punished with
death or imprisonment for life, or imprisonment for a term not exceeding 10 years, and
shall also be liable to fine.

Section 306 abetment of suicide- those who aid and abet the commission of suicide by
the hand of the person himself who commits the suicide, may be punished under the
section. Those who assist a Hindu widow in becoming Sati will be guilty of abetment of
suicide. Ram dayal 1913

Section 307 Attempt to murder- it punishes those cases where execution of the purpose
falls short of a complete execution and the consummation is hindered by circumstances
independent of the will of another. The act done must be capable of causing death and
death must have been intended. For example, mixing of poison in food with the intention
of causing death will be an offence under this section even though no death occurs. Gangu
1942
whether act committed must be capable of causing death - in Vasudev gogte 1932
the accused fired two shots with a revolver at point blank range at the acting governor of
Bombay, but the bullet failed to produce the desired result either because of some defect
in the ammunition or the intervention of a leather wallet and currency notes in his pocket.
The accused was guilty of an offence under this section. It was observed by the court that
“to support a conviction under this section the accused should have done the act with

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such guilty intention or knowledge and in such circumstances that but for some
intervening act the act would have amounted to murder in the normal course of events.”
In Om prakash tilakchand versus state the accused and his mother deliberately starved
and ill treated accused's wife, W, because he had not brought any cash or dowry in her
marriage. As a result of starvation, her health deteriorated day by day. She was neither
given any medical treatment nor allowed to contact anybody outside the house. One day
when accused’s mother was away. W managed to escape from her house and got herself
admitted in hospital. The accused was guilty under section 307.
In the case of Madan Pal versus state of UP 1999, it was said that it is not necessary that
a bodily injury capable of causing death should have been inflicted. If the intention is to
commit murder and in pursuance of that intention a person does an act towards its
commission, section 307 of IPC would be made out.

Section 308 attempt to commit culpable homicide- this section is similar to Section
307. If section 307 is treated as attempt to murder this section is treated as attempt to
culpable homicide not amounting to murder.

Section 309 attempt to commit suicide- this is the only instance where actual
commission of offence cannot be punished, only attempt to commit the offence is
punishable.
Constitutionality of section 309-
1. in Maruti shripati dubal versus state of Maharashtra 1987 it was held that right
to live means right to live with human dignity. Right to life includes right to die.
Therefore section 309 is violative of the rights guaranteed by article 21 and 19 of
the constitution.
2. But it was held in Chenna jagadeeswara vs State of AP 1988 that section 309 of
IPC does not offend article 19 and 21 of the constitution. Right to life does not
include right to die.
3. P rathinam vs Union of India 1994, The Honorable Supreme Court held that
section 309 IPC violates the provisions of article 21 and 14 of the constitution and
hence it is unconstitutional.
4. but the above decision has been overruled by the supreme court in Gian Kaur
versus State of Punjab 1996. it was held that section 309 IPC providing for
imposition of punishment for attempt to commit suicide is not violative of article
14 of the constitution. Right to die is not included in the right to life under article
21.
5. The latest decision passed by the Apex Court is – ‘Active euthanasia is illegal.
Passive euthanasia is permissible, but it should be done under the supervision of
the High Court.’ This decision was passed in the famous Aruna Shaunbag case

Euthanasia: It can be defined as the intentional killing by act or omission of a dependent

human being for his or her alleged benefit.

59
Active euthanasia means a positive merciful act to end useless sufferings and a
meaningless existence. It is an act of commission. Passive euthanasia means to let die. It
implies discontinuing life sustaining measures that will prolong life. It can also include an
act of omission such as failure to resuscitate a terminally ill patient or not carrying out a
life extending operation, etc.

Section 312 causing miscarriage: This section deals with causing of miscarriage with
the consent of the victim while the next section deals with those cases where her consent
is lacking.
Quick with child literally means having conceived but it cannotes the Peculiar perception
felt by a pregnant woman when the foetus in the womb begins to move which generally
occurs after fourth or fifth months of the pregnancy.

Section 313 causing miscarriage without women's consent: under this section
miscarriage is caused without obtaining the consent of the woman hence only the person
who causes the abortion is punished and the woman is not punished, while in section 312
the women who causes herself to miscarry is also punished.

Section 317 exposure and abandonment of child under 12 Years by parent or a person
having care of it
This section punishes the parents or Guardian for their failure to give proper care to the
children of tender age
Ingredients- the following are the ingredients of this section
1. The guilty person must be father, mother or the Guardian of the child
2. such child must be under 12 years of age
3. the child must be exposed or left in any place with the intention of wholly
abandoning it
A woman, mother of an illegitimate, six month old child, left the child in charge of a blind
woman saying she would soon return with an intention to never return and factually did
not return. it was held that she could not be convicted under section 317. in order to make
the “leaving” of child an offence the child must be left without protection.

Section 318 concealment of birth by secret disposal of dead body

Ingredients
1. The dead body of the child is disposed of by burying or otherwise secretly
2. it is immaterial whether the child dies before, after or during its birth
3. intention to conceal the birth of the child by secret burial for disposal of the dead
body
The offence is complete when the birth i.e., the delivery of a child dead or Living, is
concealed by any means.

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Section 319 Hurt- Hurt means causing of pain, disease or infirmity by any person to
another. Such pain may not be caused by direct physical contact between the accused and
the victim. Causing of nervous shock or mental derangement by some voluntary act of the
offender is covered by this section.
Infirmity -infirmity means inability of an organ to perform its normal function which
make either be temporary or permanent. It denotes an unsound or unhealthy state of the
body or mind; such as a state of temporary impairment or hysteria or terror.

Section 320- Read section

Acts neither intended nor likely to cause death May amount to grievous hurt even
though death is caused: - If there was not intention to cause death, or no intention to
cause such bodily injury as was likely to cause death or no knowledge that death was
likely to be caused from the harm inflicted, and death is actually caused, the accused
would be guilty of voluntarily causing grievous hurt if the injury caused was of a serious
nature.
Formina Sebastio azerdeo versus state of Goa Daman and Diu 1992, the deceased
(Orlando) was making publicity about the illicit intimacy between N and his maternal
aunt W. It is alleged that on the fateful day N, W and A, the husband of W caught hold of D
and tied him to an electric pole with a rope and beat him as a result of which he died.
None of them was armed with deadly weapons and none expressed his Intentions by
word or gesture to put an end to the life of the deceased. N and W did so simply to teach
D a lesson for spreading scandalous information about their illicit relationship. There was
no evidence attributing definite overt act to any of the accused. Hence the offence would
be punishable under section 326.

Section 321 voluntarily causing hurt

Section 322 voluntarily causing grievous hurt read section along with explanation
and illustrations
Section 323 punishment for voluntarily causing hurt
Section 324 voluntarily causing hurt by dangerous weapon or means
Section 325 punishment for voluntarily causing grievous hurt
Section 326 voluntarily causing grievous hurt by dangerous weapons or means
Section 330 voluntarily causing hurt to extort confession or to compel Restoration of
property read section along with illustrations
Section 334 voluntarily causing hurt on provocation
Section 335 voluntarily causing grievous hurt on provocation read section along with
explanation

Wrongful restraint and wrongful confinement

section 339 wrongful restraint - whoever voluntarily obstructs any person so as to
prevent that person from proceeding in any direction in which that person has a right to
proceed, is called wrongfully to restrain that person

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Read exception and illustration to the section

Section 340 Wrongful confinement - whoever wrongfully restrains any person in such
a manner as to prevent that person from proceeding beyond certain circumscribing limits
is said wrongfully to confine that person.
Read illustrations
Period of confinement: to constitute an offence under this section the period of
confinement is immaterial. but the period of confinement becomes material for the
purpose of determining the extent of punishment.

Distinction between wrongful restraint and wrongful confinement

1. wrongful restraint is partial restraint of the personal liberty of a person whereas
wrongful confinement is absolute or total restraint or obstruction of personal
liberty
2. wrongful confinement implies wrongful restraint but vice-a-versa is not correct.
wrongful confinement is a form of wrongful restraint.
3. in wrongful confinement certain circumscribing limits are always necessary, but
in wrongful restraint no such limits or boundaries are required
4. 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. but in
wrongful restraint movement in only one or some direction is obstructed leaving
thereby a choice for the victim to move in any other direction

Criminal force and assault

section 349 force read complete section along with provisos

Section 350 criminal force read section along with illustrations

Ingredients:
1. intentional use of force to any person
2. such force should have been used without the consent of the victim
3. the force must have been used to commit an offence or with the intention to cause
injury, fear or annoyance to the person to whom it is used
Where A spits over B, A would be liable for using criminal force against B because spitting
must have caused annoyance to B.

Section 351 Assault : read section along with explanation and illustrations
Causing of some actual hurt is not necessary for constituting assault. Mere threat may
constitute assault.
Explanation: explanation attached to this section makes it clear that mere words do not
amount to assault but the words used by a person at the time may add such meaning to
his gestures or preparations that it may amount to an assault provided that it causes such
an effect in the mind of the person threatened that criminal force was about to be used
against him.

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Mere utterance of threatening words do not amount to assault. In a case a person took a
lathi and shouted that he will break head of a Police Officer if he insists upon taking his
thumb impression. He was not guilty of assault. But where a person shouts that he would
be coming back and teach a lesson to the police officer and accordingly he comes back
with a Lathi, moves close to the police officer raising a reasonable apprehension that he
was about to use criminal force, the accused would be guilty under this section.

Section 354 assault or criminal force to woman with intent to outrage her modesty:
read complete section
Ingredients:
1. assault must be on a woman
2. accused must have used criminal force on her
3. criminal force must have been used on the woman intending thereby to outrage
her modesty

New sections 354A, 354B, 354C and 354D were added in the year 2013 . read sections
354A sexual harassment and punishment for sexual harassment
354B assault or use of criminal force to women with intent to disrobe
354C Voyeurism
354D Stalking

Section 359 Kidnapping

The literal meaning of kidnapping is “child stealing”. Kidnapping is of two kinds
1. kidnapping from India
2. kidnapping from lawful guardianship

Section 360 kidnapping from India

for an offence under this section the victim may be a male or a female, whether major or
a minor.

Section 361 kidnapping from lawful guardianship

Ingredients- the following are essential ingredients of the section
1. Taking or enticing away a minor or a person of unsound mind
2. Such minor must be under the age of 16 years, if male or under the age of 18 years
if female
3. The taking or enticing must be out of the keeping of the lawful guardian of such
minor or person of unsound mind
4. The taking or enticing must also be without the consent of the guardian

Taking or enticing away: the word take implies want of wish and absence of Desire of
the person taken. It must be proved that the accused took some active steps, by
Persuasion or otherwise to cause the girl to leave her home. If the suggestion to go away

63
with the Prisoner comes from the girl and he takes merely the passive part of yielding to
her suggestion he is entitled to acquittal.
Varadarajan vs State of Madras, minor girl, who had left the protection of her father
knowing and having capacity to know the full Import of what she was doing voluntarily
joined the accused. The supreme court observed that there is distinction between taking
and allowing a minor to accompany a person. In the present case the accused was held
not to have taken her away from the keeping of her lawful guardian.
Enticing: Enticing is inducing a minor to go of her own accord to the kidnapper. It
involves an idea of inducement by exciting hope or Desire in the other.
When taking is complete: the act of taking is not a continuous process, therefore, once
the boy or girl is taken out of the keeping, the act is completed.
Subsequent takers would not be kidnappers because at the time of taking by them the
minor had no more been in the lawful guardianship, then so long as he is kept away and
is not restore to his Guardian it would amount to detaining.
Lawful guardian: there is difference between lawful Guardian and legal guardian. A
Guardian may be lawful without being legal. Lawful Guardian is one to whom the care and
custody of a child is lawfully entrusted.
Under this section Guardian must be lawful, he need not be a legal guardian . Therefore,
when father of a girl sends her to school with his servant or friend, the servant or such
friend is the lawful guardian. Here father is the legal Guardian and the servant or the
friend would be only lawful Guardians.

Marriage of a girl without consent of her guardian

Hindu law :
1. Among Hindus father is the guardian of his children and is ordinarily entitled to
their custody. this rule applies in case of legitimate children.
2. In case of legitimate children mother does not have right to the custody adversely
to the father of the child.
3. The Mother's custody of the child is considered to be the custody of the father. If a
mother removes a girl from her father's house for the express purpose of marrying
her without his consent she would be guilty under the section.
4. A minor married girl, until she attains puberty, continues to be under the
guardianship of her father if she is legitimate and of her mother if he is illegitimate.
5. In case of a minor married girl, her husband is her lawful Guardian provided that
the girl has attained puberty and husband himself is also not a minor.
6. If the father of a minor married girl takes away the girl from her husband without
his consent, father would be guilty of kidnapping from lawful guardianship even
though the father may have had no criminal intention in doing so.

Mohammedan law
Sunni law : under the Mohammedan law if a Sunni father takes away is son under 7 years
or a daughter before she has attained puberty or an illegitimate child from the custody of
the mother he would be guilty under this section because mother is the lawful guardian.

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Under Sunni law, mother is the guardian of her daughter until she attains puberty which
is presumed when the daughter completes her 15th year
Shia law : in case of a shia father, if father takes away a son or daughter under 7 years or
an illegitimate child from the custody of the mother he would be guilty of kidnapping.
Even a divorced wife is entitled to the custody of her children.

Section 362 abduction

Ingredients: the following are its Essentials
1. forcible compulsion or inducement by deceitful means
2. the object of such compulsion or inducement must be the going of a person from
any place

forcible compulsion or inducement by deceitful means: in case of abduction a person

is compelled either by use of force or is induced by practicing deceit to move from one
place to another. Actual use of force is necessary and merely show or threat of force is not
sufficient. Either force or fraud must have been practiced upon the person abducted.
Continuing offence: abduction is a continuing offence and a person is liable not only
when a person is first moved from one place to another but all those who are involved in
subsequently moving that person to other places are also liable.
In Allu 1925, the accused came on the roof of a house when W, a woman was sleeping.
They woke her up and asked her to accompany. She refused to accompany, therefore, they
lifted her up in order to carry her away. She then raised an alarm and the accused dropped
her on the roof and ran away. The offence of abduction was not committed in this case.
Here the accused were though not liable for abduction but were guilty of attempting to
abduct under section 366 and 511 of the code.

Distinction between kidnapping and abduction

The offence of kidnapping and abduction differ from each other in the following ways
1. kidnapping is committed only in respect of a minor under 16 years of age if a male
and under 18 years of age if a female or a person of unsound mind whereas
abduction may be committed in respect of a person of any age.
2. The person kidnapped is removed out of lawful guardianship. Therefore, a child
without Guardian cannot be kidnapped. Whereas the person abducted need not
be in the keeping of any body.
3. Simple taking or enticing away of a minor or a person of unsound Mind constitutes
kidnapping whereas under abduction force, compulsion or deceitful means must
have been used
4. under kidnapping consent of the person taken or enticed is immaterial because
they are not competent to give valid consent Whereas under abduction consent of
a person moved, if freely or voluntarily given, condones the offence.
5. The intent of the kidnapper is wholly irrelevant consideration whereas under
abduction intent of the offender is an important factor to constitute the offence

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 because abduction by itself is not an offence unless committed with certain intent
as specified in section 364 and onwards.
6. Kidnapping is not a continuing offence because it is complete the moment a person
is deprived of his lawful guardianship whereas abduction is a continuing offence
and the offence of abduction continuous so long as a person is moved from one
place to another.
7. Kidnapping is a substantive offence whereas abduction is only an auxiliary act, not
punishable by itself but made criminal only when it is done with one or the other
of the intents specified in section 364 and onwards.

Read sections 363, 363A, 364, 364A, 366 and 367

India is a democratic country and the Constitution of India provides certain rights to its
citizens. Such as Article 14, 15, 19(1)(a) and 21 which provides Right to Equality, Non-
Discrimination on the grounds of religion, race, caste, sex or place of birth ,Freedom of
speech and expression and Protection of life and personal liberty. But this rights were
violated by Section 377 of Indian Penal Code, 1860 which criminalizes consensual
homosexuality although this act was decriminalized by The Supreme Court of India in
case Navtej Singh Johar v. Union of India in 2018.

Section 377, Indian Penal Code, 1860

Unnatural offences -Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal, shall be punished with imprisonment for life , or
with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to
the offence described in this section.

In simple words, Section 377 of the Indian Penal Code ( IPC ) is an act that criminalizes
consensual homosexuality it came into force in 1862 and is referred as “Unnatural
Offences”. It says that whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal shall be punished with imprisonment for life, or
with imprisonment of either description for a term which can be 10 years, and shall also
be entitled for fine.
However, in a historic verdict, the Supreme Court of India on September 6, 2018,
decriminalized the Section 377 of the IPC and allowed gay sex among consenting adults
in private . The Supreme Court ruled that consensual adult gay sex isn't against the law
saying sexual orientation is natural and other people have no control over it.

Procedure of Decriminalisation of Section 377 of IPC

Section 377 of Indian Penal Code is one of the most important legal issues in India. Mainly
there are five landmark cases for the decriminalization of Section 377.

66
2007, Naz Foundation v. Govt of NCT Delhi
Naz Foundation is a NGOs who works in the field of AIDS and any other health issues. In
this case there was one question which arised was that, Is section 377 should be removed
or not; regarding this the court dealt it with two ways- the first one is (Right to life, Article
21 ) that without dignity or privacy no one would be able to enjoy a life and the second is
(Right to Equality, Article14&15) in this Section 377 was in violation of Article 14 because
it is an unreasonable discrimination.

It discriminated Homosexual as a class and it discriminate Consensual Sex. While in

Section 15 , no person should be discriminated on the basis of sex . Only biological sex is
not included, sexual orientation is also included.
This argument has taken place in many cases and at last it gives more weightage to sexual
orientation as compared to biological sex. The Delhi High Court held that, the part of
homosexual in sec 377 should be declared as unconstitutional.

2013, Suresh Kumar Koushal v. Naz Foundation

The two arguments arose in the Suresh Kumar Koushal case. The first is; Homosexuality
is a criminal offence and it can be decriminalized by Parliament only, the Court should
not interfere. And the Second is Right to privacy will not cover Homosexual Act.

2014, NLSA v. Union of India & Ors.

All the existing laws of India are binding on all genders, they only focus on male or
women. Transgender Community rights are not protected from any provision. That was
the one of the reason, transgender community are discriminated in a society.

For dealing with the loopholes of this problem, the Supreme Court reorganized
multifaceted rights which includes:
Article 14- Right enjoyed by any person, it included men, women and transgender.
Article 15- No person should be discriminated against on the Ground of Sexual
orientation.
Article 19- Privacy, gender, identity, integrity all are protected under article 19 (1) (a)
and can be included under article 377.
Article 21- Right to live with dignity so they have a right to choose their gender identity.
After this case the transgender get a right of self identify of their gender, equal treatment
to “all people” and legal recognition of gender identity (men, women, transgender).

2017. Justice K.S. Puttaswamy v. Union of India

In this case, the Supreme Court of India affirms that Right to Privacy is a Fundamental
Right. For this case 9 judges of the bench was constituted, case was authored by Justice
Chandrachud. He said that the Supreme Court has a responsibility to rectify the mistake
of Suresh Kumar Koushal Case. He also speaks that sexual orientation is the essential

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attribute of privacy, from this attribute article 14, 15 and 21 are protected by Part 3 of
the Indian Constitution.

2018, Navtej Singh Johar v. Union of India

This was the final case regarding Section 377. In this case a petition was filed by Navtej
Singh Johar challenging Sec 377 on the basis that it violated the Constitutional Rights to
right to privacy, freedom of Expression , equality, human dignity and protection from
Discrimination.

The Supreme Court held that discrimination on the premise of sexual orientation was in
violation of the right to equality that criminalizing consensual sex between adults in
private and was also in violation of the right to privacy, that sexual orientation forms an
inherent part of self identity and denying the identity would be in violation of the right to
life, also fundamental rights can’t be denied on the basis that they only affect a minuscule
section of the population.

Conclusion : it can be concluded that section 377 of IPC has been finally decriminalized
after the judgment of Navtej Singh Johar in 2018. Following this judgment section 377
became unconstitutional and LGBT community can now exercise the rights which falls
under article 14, 15, 19(1)(a) and 21 of the Constitution of India.

Even after section 377 of IPC became unconstitutional the Indian Society is still not
willing to accept LGBT community. Due to which these communities are afraid to disclose
their sexual identity/orientation. As they were frightened that the society may not accept
them and they will not be able to enjoy their life normally.

If we see that, LGBT community is considered as normal in other countries and they are
not treated differently but in our India these community is not been accepted because of
which they are facing a lot of problems.

It should be necessary that the people of Indian society should understand it and accept
this community because sexual orientation is natural and a person has no control over it.

Section 378 theft

Ingredients: The following are the essential ingredients of theft
1. dishonest intention to take property
2. the property must be movable
3. the property should be taken out of the possession of another person
4. the property should be taken without the consent of that person
5. there must be some moving of the property inorder to accomplish the taking of it.

Explanation 1: A thing so long as it is attached to the earth, not being the movable
property, is not the subject of theft but it becomes capable of being the subject of theft as

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soon as it is severed from the Earth Explanation 2: A moving affected by the same act
which affects the severance may be a theft
Explanation 3: 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 4: A person who by any means causes an 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 5: the consent mentioned in the definition may be express or implied, and
may be given either by the person in possession or by any person having for that purpose
authority either express or implied.

Read all illustrations from Bare act

Intending to take dishonestly:

Intention is essence of the offence of theft. Such an intention exists when the taker of the
property intends to cause wrongful gain to one person or wrongful loss to another
person. It is sufficient that the act causes wrongful loss to another person.
for example, A in good faith believing property of B to his own property takes that
property out of B’s possession. In this case A does not take dishonestly, therefore no
offence of theft is created. Here section 79 can also be pleaded as a defence.
Taking need not be permanent: Pyarelal, the accused working in a government office
removed a file to his house, made it available to an outsider and then returned it to the
office after 2 days. He was guilty of theft.
Stealing one's own property: A gives a piece of cloth to B, a tailor, for making a suit for him.
On demand, B refuses to hand over the stitched suit unless A pays stitching charge. A
Looks for the opportunity and takes away his suit without the knowledge of B. here A will
be guilty of theft because he takes his own property without paying the charges.

Movable property
anything which is not attached to earth permanently is known as movable property. It is
necessary that the things stolen must have some appreciable value.
Electricity: electricity running in the electric wire is not movable property, and therefore,
dishonest abstraction of electricity does not amounts to an offence of theft under this
code, but a charge under section 39 of Indian Electricity Act 1910 for theft is maintainable.
Cooking gas: cooking gas passing through the pipeline has been held to be movable
property. Therefore where the accused consumed gas by introducing another pipe into
the entrance pipe so as to pass the gas to the burner without passing through the meter
and thus avoiding payment to the company, he was held guilty of larceny or theft.

Taking out of possession of another person:

A had taken a bicycle on hire purchase from a bicycle dealer named B on condition that if
the installments are not paid regularly, B will be entitled to take back the bicycle. There

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was default in payment of the installment. One day as C, the servant of A was going to the
same bicycle, B forcibly took possession of it. B will be liable in the section.

Taking without consent:

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 open it. He does not find in the box anything
and leaving it there goes away. A will be liable for attempting theft and also for house
trespass under section 442 IPC.

Moves that property

Martin’s case, it was held that pulling wool from the bodies of live sheeps and lamps
amounts to theft under this section.
Necessitas inducit privilegium quo ad Jura private: no amount of necessity can justify an
act of stealing

Section 379 punishment for theft: whoever commits theft shall be punished with
imprisonment of either description for a term which may extend to three years or with
fine or with both

Section 380 theft in dwelling house: whoever commit 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

Section 381 theft by clerk or servant of property in possession of Master: in this

respect, whoever commits theft in respect of any property in the possession of his master
or employer shall be punished with imprisonment of either description for a term which
may extend to seven years and shall also be liable to fine

Section 382 Theft after preparation made for causing death, hurt or restraint in
order to the committing of theft : Read section 382 and illustration a
For an offence under this section it is not necessary that injury should actually be caused
by thief because if hurt is actually caused when a theft is committed, the offence would
be punishable as robbery. A Thief under this section is fully prepared to cause hurt but
he may not cause it.
A B and C would be guilty under section 382 read with section 34, if A, B and C surround
D in such a way as to make resistance on the part of D and then A takes away his watch
without the use of force or threat. They have committed restraint in order to commit theft.

Extortion section 383

Ingredients:
1. intentionally putting a person in fear of injury to himself or to another

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 2. dishonestly inducing the person so put in fear to deliver to any person any
property or valuable security

For an offence under this section, actual delivery of property by the person put in fear of
injury is essential. Offence of extortion is not complete until delivery of property by the
person put in fear.
Section 44, Injury under IPC, the word injury denotes any harm whatsoever illegally
caused to any person in body, mind, reputation or property.
Section 30, valuable security, the word valuable security denotes a document which is or
purports to be a document whereby any legal right is created, extended, transferred,
restricted, extinguished or released or whereby any person acknowledges that he lies
under legal liability or has not a certain legal right
Read all illustrations

Distinction between theft and extortion

1. In the offence of theft the offender takes property without the consent of the
owner whereas in extortion it is committed by wrongfully obtaining of consent
2. Under theft only movable property may be subject matter of theft whereas under
extortion the property obtained by extortion is not limited to movable property,
even immovable property may be the subject matter of extortion
3. Under theft the property is taken by the offender whereas under extortion the
property is delivered to the offender
4. In theft no force or threat is used or fear is caused in taking the property whereas
in extortion the property is obtained by intentionally putting a person in fear of
injury to that person or any other person

Section 384 punishment for extortion: for a term which may extend to three years or
with fine or both
Section 385 putting person in fear of injury in order to commit extortion: For a term
which may extend to two years or with fine or with both
The attempt of extortion by putting a person in fear of injury, such fear without actual
delivery of the property though for that purpose is punished by the section
Section 386 extortion by putting a person in fear of death or grievous hurt: for a term
which may extend to ten years and shall also be liable to fine
Section 387 putting person in fear of death or grievous hurt in order to commit
extortion: for a term which may extend to seven years and shall also be liable to fine

Of robbery and dacoity

Section 390 Robbery
Robbery is an aggravated form of either theft or extortion or of both. The essence of the
offence of robbery is the presence of eminent or instant fear or violence. Para 2 of this
section deals with when theft is robbery and para 3 deals with when extortion is robbery.

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When theft is Robbery : Theft is robbery in the following condition
1. when someone voluntarily causes or attempts to cause to any person
a) death or hurt or wrongful restraint
b) fear of instant death or instant hurt or instant wrongful restaurant
2. the above act must be done for any of the following ends
a) in order to committing of theft
b) in committing theft
c) in carrying away or attempting to carry away property obtained by theft

When extortion is robbery: extortion is robbery when the following conditions are
fulfilled
1. when a person commits extortion by putting another person in fear of instant
death or instant hurt or instant wrongful restraint to that person or to some other
person
2. such a person by so putting another in fear, induces the person so put in fear then
and there to deliver up the thing extorted
3. the offender at the time of committing the extortion, is in the presence of the
person put in fear
Read all illustrations of section 390

Section 391 Dacoity

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 robbery,
and person present and aiding such Commission or attempt, amount to five or more,
every person so committing, attempting or aiding, is said to commit “dacoity”.

Difference between robbery and dacoity

1. Every case of Dacoity is primarily a case of robbery but vice versa is not correct
2. In dacoity, the number of participants must be five or more, in robbery, the
number of participants is always less than 5 because robbery committed by 5 or
more persons is dacoity
.
Section 392 punishment for robbery: whoever commits robbery shall be punished with
rigorous imprisonment for a term which may extend to ten years and also be liable to
fine; and if the robbery be committed on the highway between sunset and sunrise
imprisonment may be extended to 14 years.

Section 393 attempt to commit robbery : whoever attempts to commit robbery shall be
punished with rigorous imprisonment for a term which may extend to seven years and
shall also liable to be fine.

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Section 395 punishment for dacoity : whoever commits the dacoity shall be punished
with imprisonment for life, or with rigorous imprisonment for a term which may extend
to 10 years, and shall also be liable to fine

section 396 Dacoity with Murder : if any one of the five or more persons who are
conjointly committing the 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 seven years and shall also be liable to fine

section 399 making preparation to dacoity : whoever makes preparation for

committing dacoity, shall be punished with rigorous imprisonment for a term which may
extend to 10 years, and shall also be liable to fine

section 402 assembling for purpose of committing dacoity: whoever, at the time after
the passing of this act, shall be one of five or more persons assembled for the purpose of
committing dacoity, shall be punished with rigorous imprisonment for a term which may
extend to seven years and shall also be liable to fine.
The offence of Dacoity is one which is punishable on each and every step (intention
402, preparation 399, attempt and commission 395)

Section 403 dishonest misappropriation of property: 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.
Read all illustrations and explanations under section 403

Ingredients- the following are the essential requirements of criminal misappropriation

1. dishonest misappropriation or conversion of property for a person’s own use
2. such property must be movable
Dishonest misappropriation or conversion to one's own use- for an offence under this
section it is not necessary that the property should be taken with a dishonest intention.
the possession of the property may come innocently and then by subsequent change of
intention, or knowledge of some new facts with which the party was not previously
acquainted, the retaining of that property becomes wrongful or fraudulent.
There must be actual conversion of a thing misappropriated to the accused’s own
use. mere retaining of an article found does not amount to criminal misappropriation.
misappropriation or conversion need not be permanently, it may be even for a time.
Illustrations A, B and C show that the original taking was innocent but the offence of
criminal misappropriation is constituted because of subsequent dishonest conversion or
appropriation.
In the case of Sita 1893, the accused found a gold Mohar on an open plane and sold it the
next day to a shrof for its full value and appropriated the sale proceeds. the accused was
not guilty of this offence because there was no information as to the circumstances under

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which the coin was lost and it was probable that the property in the coin had been
abandoned by the original owner. Similarly, if A finds a Hundred rupee note over the road
and uses it, he will not be liable unless he can reasonably trace the owner of the currency
note.

Distinction between theft and criminal misappropriation

1. In theft the offender dishonestly takes property which is in the possession of a
person out of that person's possession and the offence is complete as soon as the
offender moves the property.
criminal misappropriation takes place even when the possession has been innocently
come out where, by a subsequent change of intention or from the knowledge of some new
fact, with which the party was not previously acquainted, the retaining becomes wrongful
and fraudulent.
2. The dishonest intention to appropriate the property of another is common to theft
as criminal misappropriation. but the intention in theft is sufficiently manifested
by a moving of the property and in criminal misappropriation it is carried into
action by actual misappropriation or conversion.

Section 404 dishonest misappropriation of property possessed by deceased person at

the time of his death
This section is enacted to provide protection to a special kind of property, it protects the
property during an interval which elapses between the time when the possessor of the
property dies and the time when it comes into the possession of some person or officer
authorised to take charge of it.

Section 405 criminal breach of trust

In any manner entrusted with property: for application of this section there must be
entrustment of property. entrustment means handing over the possession of property for
some purpose which may not imply the conferring of any proprietary right. to constitute
the offence under this section there must be dishonest misappropriation by a person in
whom confidence is placed as to the custody on management of the property.
a partner in a partnership firm can be held guilty of criminal breach of trust in respect of
partnership property.
Property: In order to constitute an offence under this section property maybe movable
or immovable.
Dominion over property: a person is said to be having Dominion over property when he
supervises or exercises control over the property or is in the charge of that property.
MG Mohat vs shivaputrappa and others, the respondent had pledged some gold articles
with the State Bank of India branch of hunagund for securing loan of Rupees 1500, when
he returned the amount of loan he found that the articles returned to him were not those
that he had pleged with the bank. here the manager was guilty of breach of trust.

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Pratibha Ram vs Suraj Kumar, the Apellant alleged that her stridhan property were
entrusted to her in laws which they dishonestly misappropriated for their own use. the
accused were held guilty under this section.
Dishonestly uses or disposes of that property A asks B, a jeweler, to make him a gold
ring and pays him the cost of the gold required for the ring. B neither delivers the ring
nor returns the money. Here B would be liable under this section.
Willfully suffers any other person so to do: this expression means that the acts
constituting criminal breach of Trust have been done deliberately or intentionally and
not by accident or inadvertence. Kedarnath 1965

Distinction between criminal misappropriation and criminal breach of trust

1. in criminal breach of trust there is conversion of property held by a person in a
fiduciary capacity whereas in case of criminal misappropriation the possession of
property which is appropriated may come in any way
2. in criminal breach of trust there is some kind of contractual relationship between
the parties either Express or implied but in criminal misappropriation there is no
such relationship
3. in criminal breach of trust the offender is lawfully entrusted with the property and
he dishonestly misappropriate the same or willfully suffers any other person to do
so, instead of discharging the trust attached to it whereas in criminal
misappropriation the property comes into the possession of the offender by some
casuality or accident or otherwise and then it is converted by him to his own use.

Section 406 - whoever commits criminal breach of trust shall be punished with
imprisonment of either description for a term which may extend to three years or with
fine or with both

Section 408 criminal breach of Trust by clerk or servant – Shall be punished with
imprisonment of either description for a term which may extend to 7 years and shall also
be liable to fine.

Section 409 criminal breach of Trust by public servant or by banker merchant or

agent- life imprisonment or which may extend to ten years. these people have a greater
responsibility for honesty therefore under this section the punishment is Severe.

Section 410 stolen property - Property which has been transferred by theft, extortion or
robbery or which has been criminally misappropriated or criminal breach of Trust has
been committed within or without India

Section 411 dishonestly receiving stolen property: Ingredients

1. the accused has received or retained the stolen property dishonestly
2. he knew or had reason to believe that the property was stolen property

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 3. the fact that the property was stolen
4. that some person other than the accused was in possession of the stolen property
before the accused got possession

Section 415 cheating : Ingredients - the section requires

1. Deception of any person
2. Fraudulently or dishonestly inducing that person
i. to deliver any property to any person or
ii. to consent that any person shall retain that property or
3. Intentionally inducing that person to do or omit to do anything which he would
not do or omit if he were not so deceived, and which act or omission causes or is
likely to cause damage or harm to that person in body, mind, reputation or
property

Section 416 cheating by personation : Ingredients- this action requires any one of the
following Essentials
1) pretending by a person to be some other person
2) knowingly substituting one person for another
3) representation that he or any other person is a person other than he or such other
person really is
Impersonation in examination for someone, in elections for some voter, for getting
married representation of some other caste than the real castes etc., are the cases
wherein usually this offence is committed.

Section 417 punishment for cheating 1 year

Section 419 punishment for cheating by personation 3 years
Section 420 cheating and dishonestly inducing delivery of property- when due to the
actions of the cheat there is destruction or delivery of property or alteration or
destruction of any valuable security this section applies. simple cheating is covered by
section 417
C makes D believe that he means to deliver to D certain quality of wheat which he does
not intended to deliver and thereby induced D to advance money upon the faith of such
delivery. Here C will be liable for cheating under this section. in this problem if C at the
time of obtaining money intended to deliver the wheat but afterwards did not do so then
he will be liable for criminal misappropriation under section 403 IPC.
Where at the initial stage of transaction accused had no intention to cheat but due to some
subsequent development between the parties, the accused changed his mind and refused
the payment, his subsequent conduct cannot amount to cheating. it is a well established
principle of law that the dishonest intention at the time of initial transaction must appear
to be clear. the subsequent conduct of the accused cannot make the transaction
amounting to cheating.

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Section 425 mischief - it was held in Nagendra Nath Roy vs Bijoy Kumar Das Verma 1992
that mere negligence is not Mischief. negligence coupled with intentions to cause
wrongful loss or damage May amount to Mischief. Mischief involves mental act with
destructive animus.
Ingredients- the section requires following elements to constitutes an offence under this
section
1) intention or knowledge of likelihood to cause wrongful loss or damage to the
public or to any person
2) causing the destruction of some property or any change in it or in its situation
3) such change must destroy or diminish its value or utility, or affect it injuriously

Section 436 Mischief by fire or explosive substance with intent to destroy house
Section 441 criminal trespass – ingredients- the section requires
1) entry into or upon property in the possession of another
2) if such entry is lawful, then unlawfully remaining upon such property
3) such entry or unlawful remaining must be with intent
i. to commit an offence
ii. to intimidate, insult or annoy any person in possession of the property
If a person enters on land in the possession of another in the exercise of a Bona Fide claim
of right but without any intention to intimidate, insult or annoy the person in possession,
or to commit an offence, then although he may have no right to the land, he cannot be
convicted of criminal trespass, because the entry was not made with any such intent as
constitutes the offence.

A enters a house with intention of committing theft, but moved by the poverty of the
householder he drops a rupee note and leaves. in this case A will be liable for criminal
trespass.

Section 442 house trespass

Section 443 lurking house trespass: ingredients - this section requires the following
ingredients
1) trespass
2) the trespass being of the special kind designated as house trespass
3) that Tresspass being made in surreptitious manner called “lurking”
This section deals with further aggravation of criminal trespass due to its lurking
character. the first two ingredients are already considered under section 441 and 442.

Section 444 Lurking house trespass by night

Section 445 housebreaking - The sanctity of residential places is protected by this

section by meeting out a severe punishment for invasions to residential places. the
section describes six ways of housebreaking.

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 ➢ 1 to 3 describe an entry which is affected by means of a passage which is not
ordinary and usual
➢ 4 to 6 deal with entry by force

446 housebreaking by night

447 punishment for criminal trespass
448 punishment for house trespass
453 punishment for house trespass or housebreaking
456 punishment for lurking house trespass or housebreaking by night

Section 463 forgery : whoever makes any false document or false electronic record or
part of a document or electronic record with intent to cause damage or injury to the
public or to any person or to support any claim or title or to cause any person to part with
property or to enter into any Express or implied contract or with intent to commit fraud
or that fraud may be committed commits forgery.

Section 464 making a false document

Section 465 punishment for forgery: whoever commits forgery shall be punished with
imprisonment of either description for a term which may extend to two years or with fine
or with both.

Chapter XX of offences relating to marriage

Section 493 cohabitation caused by a man deceitfully inducing a belief of lawful

marriage
This section punishes a married or unmarried man who induces a woman to become, as
she thinks, his wife, but in fact his concubine. This offence shall be deemed to have been
committed when a person falsely induces a woman to believe that he belongs to the same
caste or religion to which she belongs. A marriage solemnized on this Belief, in reality is
void, but is valid according to the law under which she lives.
The offence under this section can be punished as rape under section 375 clause 4.

Section 494 marrying again during lifetime of husband or wife

The Indian Penal Code declares for a concept commonly known in English law as Bigamy
as a punishable offense. The personal laws of the people in the country carry more
significance than the Penal Code does. Therefore, though the Penal law strictly prohibits
Bigamy, if the personal law allows it, it will not be punishable.
This section applies to all Hindus, Christians and Parsis whether male or female. But in
case of Muslims it applies only to females but not to males because under Muslim
personal law a male can have four wives at a time but a female is not permitted to have
more than one husband at one time.

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The first marriage must be valid marriage and it must be subsisting. If the first marriage
is invalid or it has ceased to exist, no offence shall be committed by contracting a second
marriage. Divorce dissolves a valid marriage. hence divorced persons are entitled to
remarry.
Option of puberty: another unique feature of Muslim personal law is option of puberty,
that is, when a child is given in marriage by any person other than the father or
grandfather, he or she has the option of either ratifying it or repudiating it on attaining
puberty provided it was not consummated. If the girl on attaining puberty contracts
second marriage thereby repudiates the first, she will not be guilty of offence mentioned
under this section.
The validity of the first marriage shall be determined on the basis of the personal law to
which they belong.
In the landmark case Sarla Mudgal v. Union of India, where it was held that the second
marriage of a Hindu husband after converting to Islam is violative of justice, equity and
good conscience and that such marriages shall be declared void and bigamous.
Malimath Committee: If the laws were uniform, there would be no contradictions in the
practice, and there would be no violation of Article 25 and Article 26. The practice of
marrying outside marriages is a gender-neutral practice. Nonetheless, since bigamy is the
offense in question, it is crucial to implement a uniform civil code as recommended by the
Malimath Committee, in order to curb the offense of bigamy.

Section 497
Adultery was a criminal offence under Chapter XX of the Indian Penal Code until it was
quashed by the Supreme Court of India on 27 September 2018 as unconstitutional. Under
Section 497 of the Indian Penal Code, which was the section dealing with adultery, a man
who had consensual sexual intercourse with the wife of another man without that
husband's consent. The Supreme Court called the law unconstitutional because it "treats
a husband as the sole master." However it is still a sufficient ground for divorce as ruled
by the Supreme Court.
In October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation
under Article 32 of the Constitution. The petition challenged the constitutionality of the
offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.
the Supreme Court in December 2017 decided to accept the public interest litigation in
which it has been prayed that the Court strikes down or completely does away with
Section 497 of the Indian Penal Code entirely.It has been argued that the section violates
two articles of the Constitution of India- Article 14 and Article 15.
A five-judge Constitution bench of the Supreme Court on 27 September 2018
unanimously ruled to scrap Section 497 and it is no longer as a offence in India. While
reading the judgment, Chief Justice Dipak Misra said, "it (adultery) cannot be a criminal
offence," however it can be a ground for civil issues like divorce.
The arguments by the party opposing this decriminalisation- the Centre- states that the
section "supports, safeguards and protects the institution of marriage... Stability of
marriages is not an ideal to be scorned." It further argues that if the petition is allowed,
then "adulterous relations will have more free play than now." As an alternative, it
provides that the recommendations of the Committee on Reforms of Criminal Justice
System (2003) be implemented. This committee recommended that the wording of the
section be changed to: "Whoever has sexual intercourse with the spouse of any other

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person is guilty of adultery..." to tackle the problem of gender bias which arises from the
reading of the current section.
Section 497 IPC criminalised adultery by imposing culpability on a man who engages in
sexual intercourse with another person’s wife. Adultery was punishable with a maximum
imprisonment of five years. Women, including consenting parties, were exempted from
prosecution. Further, a married woman could not bring forth a complaint under Section
497 IPC when her husband engaged in sexual intercourse with an unmarried woman.
This was in view of Section 198(2) of CrPC which specified how a complainant can file
charges for offenses committed under Sections 497 and 498 IPC.
Section 497 was unconstitutional as the very basis for criminalising adultery was the
assumption that a woman is considered as the property of the husband. Section 497
violates right to privacy as well as liberty of women by discriminating against married
women and perpetrating gender stereotypes.
Section 498 enticing or taking away or detaining with criminal intent a married
woman

CHAPTER XX-A OF CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND

Section 498-A Husband or relatives of husband of a woman subjecting her to cruelty

whoever being the husband of the relative of the husband of a woman, subjects such
women to cruelty shall be punished with imprisonment for a term which may extend to
3 years and shall also be liable to fine.
BS Joshi vs State of Haryana, object of Section 498-A of IPC was to prevent torture of a
woman by her husband or his relatives in connection with demand of dowry.
Under this section cruelty has been described under explanation to this section.

CHAPTER XXI OF DEFAMATION

Section 499 defamation: 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
Defamation is a civil as well as criminal wrong
Explanation 1, a dead person's defamation is only criminally punishable and no civil
action can be brought for it
Exception 1, truth itself is no defence unless done in public good whereas in tort Truth by
itself is a defence and public good is not required.
There are total 10 exception to this chapter.

CHAPTER XXII OF CRIMINAL INTIMIDATION INSULT AND ANNOYANCE

Section 503 criminal intimidation: whoever threatens another with any injury to his
person, reputation or property or to the person or reputation of any one in whom that
person is interested with intent to cause alarm to that person or to cause that person to
do any act which is not legally bound to do or omit to do any act which that person is

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legally entitled to do as the means of avoiding the execution of such threat commits
criminal intimidation.
Explanation to this section says that a threat to enjure the reputation of any deceased
person in whom the person threatened is interested is within this section

Section 504 intentional insult with intent to provoke breach of peace: whoever
intentionally insults and thereby gives provocation to any person, intending or knowing
it to be likely that such provocation will cause him to break the public peace or to commit
any other offence shall we punished with imprisonment of either description for a term
which may extend to two years or with fine or with both.

Section 506 punishment for criminal intimidation

Section 507 criminal intimidation by an anonymous communication
Section 510 misconduct in public by a drunken person whoever in a state of
intoxication appears in any public place or in any place which it is a trespass to him to
enter and there commits himself in such a manner as to cause annoyance to any person
shall be punished with simple imprisonment for a term which may extend to 24 hours or
with fine which may extend to 10 rupees or with both.

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DREAM.
BELIEVE.
DO.
REPEAT.

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