Exam Capsule Led Ipc Complete

EXAM CAPSULE
Prepared by Law Exam Destination (LED)

(DU LLB semester exam material)
Subject – INDIAN PENAL CODE (IPC)
Ahmad Khan
History Honours, JMI
M.A. History, HCU (NET Qualified)
LLB, DU
Shweta Suman
Zoology Honours, MU
LLB, DU
No part of this book can be reproduced or transmitted in any form or by any means, without prior
permission of the authors.
Preface
The idea of an exam capsule has evolved through our personal experience. When I (Ahmad) was
in masters (in History from HCU), we always had trouble systematically writing down all the
points in answer sheet, so we have evolved an idea of note making which oriented to answer
writing in semester exams. It helped us to bring diverse points on a single sheet, and it has also
helped us to write the same thing in semester exam.
When I was in my graduation (in History from JMI), we worked on group study, but we never
make systematic notes for semester exam, and that’s why it didn’t reflect in our answer sheet.
So, through personal experience I can say making systematic exam notes is always better than
group study. But if you are making exam notes with group study then nothing can be better than
this.
Exam Capsule is always teamwork. After joining LLB, we started to make it, and initially it was
in handwritten form, later it was transformed into digital form in “word” file. It is one of the
widely circulated materials for semester exams, and the feedback is really motivating.
Here I want to remember and thank my HCU friends with whom this idea was evolved, Nikhil,
Deepak, Sourita, Shadab and Danish.
Our LLB friends who have helped us to give shape to this idea into expression are Tabrez,
Shahid, Dev, Shahzad and Simran.
Family who always stands with your mental and emotional support must not be left behind in
any remembrance.
Ahmad Khan
Shweta Suman
Date – 30/12/2023
UNIT - 1
(Principal Reading)
Principle of Mens Rea and Strict Liability
The Latin maxim ‘actus non facit reum nisi mens sit rea’—the act does not render one guilty
unless the thought is also guilty—expresses the essential concept of the principle of mens rea.
Mens rea is the legal term used to describe the element of a criminal offence that relates to the
defendant's mental state. Different crimes have different mentes reae:
1) Intention; · 2) Motive; · 3) Knowledge; · 4) Recklessness; · 5) Negligence
Words denoting mens rea in the IPC
Words like ‘voluntarily’, ‘willfully’, ‘deliberately’, ‘deliberate intention’, ‘with the purpose of’,
or ‘knowingly’ are also used to represent intention. All of these numerous expressions can be
found in the IPC’s various Sections.
• Voluntarily
Section 39: Voluntarily — When a person causes an effect “voluntarily,” he does so by using
methods that he meant to use, or by using means that he knew or had reason to believe were
likely to cause it at the time he used them.
• Dishonestly
Section 24 says that, "If a person does anything with an intention to cause wrongful gain to one
person and wrongful loss to another, acts dishonestly." Section 24 says that wrongful gain is a
gain of property by unlawful means to which the person gaining is not legally entitled. Similarly,
wrongful loss means loss by unlawful means of property to which the person losing is legally
entitled. Gaining wrongfully means that a person either acquires wrongfully or the rightful owner
is wrongfully kept out of any property or is wrongfully deprived of the property. Thus, the word
dishonestly has been used in a technical sense, only in relation to property and that too when it
causes with wrongful gain or wrongful loss.
• Fraudulently
Section 25 says that a person is said to do a thing fraudulently if he does that thing by which he
intends to defraud but not otherwise. The word 'fraud has not been defined in the IPC and it is
not easy to define fraud exhaustively so as to include all possible cases of fraud.
*****
• Intention and motive

Intention must be distinguished from motive. (i) Motive is the reason or ground of an action,
whereas intention is the volition or active desire to do an act.
In other words, intention is an operation of the will directing an overt act; motive is the feeling
which prompts the operation of the will—the ulterior object of the person willing.
For instance, if A kills B, the intention is the state of mind which directs the act which causes
death, the motive is the object which the person had in view, namely, the satisfaction of some
such desire as revenge, vengeance, hatred and the like.
Motive is not a basis for criminal liability. Criminal law takes into account only a man’s
intention and not his motive. A good motive will not render lawful what is in fact a crime. If a
man steals food in order to feed his starving child, the act amounts to theft, in spite of the fact
that the motive for the act was to save the life
Likewise, a bad motive will not make unlawful that which is lawful. An executioner may enjoy
putting a convict to death because of spite against him, but this would not render his lawful act a
crime. Thus, motive is not a sine qua non (an indispensable requisite or condition) for holding
the accused liable.
• Knowledge and reason to believe
Knowledge is again distinguishable from “reason to believe”. A person is supposed to know a
thing where there is a direct appeal to his senses, whereas “reason to believe” means sufficient
cause to believe a thing but not otherwise. If A comes to B at night under suspicious
circumstances and offers to sell a valuable watch for Rs. twenty only, B may not know that the
watch is stolen, but he has sufficient reason to believe that the watch might be stolen, as is
evident from the low price demanded.
Mens rea
The Supreme Court on more than one occasions has reiterated that unless a statute either clearly
or by necessary implication rules out mens rea as a constituent part of a crime, a person should
not be found guilty of an offence, if he has not a guilty mind.
Thus, in exceptional cases a person may be convicted of an offence independently of any
wrongful intent or culpable negligence. Such offences are termed as offences of strict liability or
absolute liability. In such a case it is no defence to an accused that he honestly believed on
reasonable grounds and in good faith in the existence of facts which would have rendered his
conduct innocent.
Crimes of strict liability
Thus, in exceptional cases a person may be convicted of an offence independently of any
wrongful intent or culpable negligence. Such offences are termed as offences of strict liability or
absolute liability. In such a case it is no defence to an accused that he honestly believed on
reasonable grounds and in good faith in the existence of facts which would have rendered his
conduct innocent. Cases to which the doctrine of mens rea does not apply may be placed under
four categories, viz.:
(i) Statutory offences of abduction, kidnapping, rape and offences against the State and army,
etc.;
(ii) Cases of public nuisance, libel and contempt of court, etc.;
(iii) Offences created by statutes that are regulatory in nature, in which although the proceedings
are criminal, it is really a mode of enforcing a civil right, for example, cases of violation of
municipal laws, town planning laws, and traffic regulations, etc.;
(iv) Public welfare offences which include socio-economic offences relating to food, drugs,
weights and measures, hoarding and black marketing, licensing, revenue, environment pollution
and custom offences, etc. Such offences are basically quasi-criminal in nature.
CASES
Case - State of Maharashtra v. Mayer Hans George, 1965
Fact – M H George, a German Smuggler, left Zurich (Switzerland) by plane on 27th November
1962 with 34 kilos of gold concealed on his Person to be delivered in Manila (Philippines) via
connecting flight of Bombay. The customs authorities searched the respondent, recovered the
gold and charged him with an offence under sub-section 8(1) and 23(1-A) of the Foreign
Exchange Regulation Act, 1947 read with a notification dated 8th November 1962 of the
Reserve Bank of India which was published in the Gazette of India on 24th November. He was
also prosecuted under Section 167 (8) (1) of the Sea Customs Act.
Issue - Can strict liability be applied in such a case? Can a person be convicted even without
guilty mind?
Whether 'Ignorantia facti excusat, Ignorantia Juris non execusat is applicable?
Observation & Judgement:

➢ Supreme Court examined several cases. The purpose of FERA, 1947 was to prevent
smuggling. This case is related to the economic offence and condition of the country. So,
the Supreme Court applied the strict liability principle.
➢ Section 8(1) read with s. 24(1) of the Act, which throws on the accused the burden of
proving that he had the requisite permission to bring gold into India.
➢ Section 23(1-A) is silent about mens rea. The majority opinion rejected the requirement
of mens rea. The Court observed, "There was no scope for the invocation of the rule that
besides the mere act of voluntarily bringing gold into India any further mental condition
or mens rea is postulated as necessary to constitute an offence referred to in s. 23(1-A)".
➢ The very object and purpose of the Act and its effectiveness as an instrument for the
prevention of smuggling would be entirely frustrated if a condition were to be read into
the sections qualifying the plains words of the enactment, that the accused should be
proved to have knowledge that he was contravening the law before he could be held to
have contravened the provision.
➢ The notification was published and made known in India by publication in the Gazette
and the ignorance of it by the respondent who is a foreigner was wholly irrelevant and
made no difference to his liability.
Minority Opinion - Justice K. Subba Rao said that M.H. George had no intention to commit a
crime in India. So, he was not guilty.
State of M.P. v. Narayan Singh, 1989

Fact - Narayan Singh & Ors. who were lorry drivers, cleaners and coolie were carrying fertilizer
bags in trucks from Indore to Maharashtra. They were intercepted at a Sales Tax Barrier near the
border of Maharashtra State. The documents seized from the lorry drivers contained the invoices
and other records but did not include permits issued under the Fertilisers (Movement Control)
Order, 1973.
Consequently, they were prosecuted under the Fertilizer (Movement Control) Order, 1973, read
with sections 3 and 7 of the Essential Commodities Act, 1955, for exporting fertilisers from
Madhya Pradesh to Maharashtra without a valid permit.
Issue - Whether the prosecution must prove mens rea on the part of the accused in exporting the
fertilizer bags without a valid permit for securing their conviction?
Whether the evidence on record established only preparation by the accused and not an attempt
to export fertilizer bags?
➢ The words used in section 7 (1) are ―if any person contravenes whether knowingly,
intentionally or otherwise any Order made under section 3. The section is
comprehensively worded so that it takes within its fold not only contraventions done
knowingly or intentionally but even otherwise, i.e., done unintentionally. The element of
mens rea in export of fertilizer bags without a valid permit is therefore not a necessary
ingredient for convicting a person for contravention of an order made under Sec. 3.
➢ The respondents in this case were actually caught in the act of exporting fertilizer bags
without a permit therefore from Madhya Pradesh to Maharashtra. If the interception had
not taken place at the Sales Tax Barrier, the export would have become a completed act,
and the fertilizer bags would have been successfully taken to Maharashtra State in
contravention of the Fertilizer (Movement Control) Order, 1973.
➢ The Trial Court and the High Court committed an error in taking the view that the
respondents in each of the appeals were not liable for conviction for contravention of the
Fertiliser (Movement Control) Order, 1973 read with sections 3 and 7 of the Essential
Commodities Act, 1955 because the prosecution had failed to prove mens rea on their
part in transporting fertiliser bags from Madhya Pradesh to Maharashtra.
➢ In the commission of an offence, there are four stages viz. intention, preparation, attempt
and execution. The first two stages would not attract culpability but the third and fourth
stages would certainly attract culpability. In this case, their matter comes under the third
stage i.e., attempt.
UNIT - 2
(Principal Reading)
Culpable Homicide and Murder
CULPABLE HOMICIDE AND MURDER
A murder is merely a particular form of culpable homicide. Every murder is culpable homicide,
but every culpable homicide is not murder. Culpable homicide is the genus, and murder, its
species.
Homicide is the highest order of bodily injury that can be inflicted on a human body.
Homicide means the killing of a human being by a human being. death may be caused by either
an act of commission or an act of omission. The idea of killing by an omission implies the
possibility of doing the act whose omission causes death. Killing by an omission is in no case
criminal, unless there is a legal duty to do that which is omitted.
The following comparative table will be helpful in appreciating the points of distinction between
the two offences:
Section 299 Section 300
A person commits culpable homicide if the Subject to certain

act by which the death is caused is done. exceptions culpable homicide is murder if
the act by which the death is caused is done.
Intention
(a) with the intention of causing death; or (1) with the intention of causing death; or
(b) with the intention of causing such bodily (2) with the intention of causing such bodily
injury as is likely to cause death; or injury as the offender knows to be likely to
cause the death of the person to whom the
harm is caused; or
(3) 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
Knowledge
(c) with the knowledge that the act is likely to (4) with the knowledge that the act is so
cause death. imminently dangerous that it must in all
probability cause death or such bodily injury
as is likely to cause death, and commits such
act without any excuse for incurring the risk
of causing death or such injury as is
mentioned above.
On a comparison of sections 299 and 300, the following points of distinction may be arrived at.
➢ Clause (a) of section 299 and clause (1) of section 300 are identical. If death is caused
by an act, which is done with the intention of causing death, then it is culpable homicide
under section 299 (a). It also amounts to murder under clause (1) of section 300, unless it
falls under any of the exceptions.
➢ Clause (b) of Section 299 of the IPC corresponds with clauses (2) and (3) of
Section 300 of the IPC. The distinguishing feature of the mens rea requisite under clause
(2) is the knowledge possessed by the offender regarding the particular victim being in
such a peculiar condition or state of health that the internal harm caused to him is likely
to be fatal, notwithstanding the fact that such harm would not in the ordinary way of
nature be sufficient to cause death of a person in normal health or condition. Clause (b) of
Section 299 of the IPC does not postulate any such knowledge on the part of the offender.
It is noteworthy that the ‘intention to cause death’ is not an essential requirement of

clause (2) of section 300. Only the intention of causing the bodily injury coupled with
the offender's knowledge of the likelihood of such injury causing the death of the
particular victim, is sufficient to bring the killing within the ambit of this clause. This
clause (2) is borne out by illustration (b) appended to Section 300 of the IPC.
➢ In clause (3) of Section 300 of the IPC The distinction lies between a bodily injury
likely to cause death and a bodily injury sufficient in the ordinary course of nature to
cause death. As far as clause (3) of section 300 is concerned, the intention of causing
bodily injury is accompanied by a further objective of certainty that such bodily injury is
sufficient in the ordinary course of nature to cause death. The word “sufficient” in the
ordinary course of nature to cause death, again imputes the certainty of death to a greater
extent than the words “likely” in section 299(b).
➢ Both clause (c) of section 299 and clause (4) of 300 apply to cases where the accused
has no intention to cause death or bodily injury, but there is knowledge that the act is
essentially a risky one.
Whether the act amounts to murder or culpable homicide depends upon the degree of risk
to human life. If death is a likely result, it is culpable homicide; if it is the most probable
result, it is murder
The framers of the IPC designedly used the two words ‘intention’ and ‘knowledge’, and it must
be taken that the framers intended to draw a distinction between these two expressions. The
knowledge of the consequences which may result in the doing of an act is not the same thing as
the intention that such consequences should ensue. Except in cases where mens rea is not
required in order to prove that a person had certain knowledge, he “must have been aware that
certain specified harmful consequences would or could follow.”
culpable homicide’ is genus and ‘murder’ is species. All ‘murder’ is ‘culpable homicide’ but not
vice-versa. Speaking generally, ‘culpable homicide not amounting to murder’. For the purpose of
fixing punishment, proportionate to the gravity of this generic offence, the Code practically
recognises three degrees of culpable homicide. The first is what may be called
‘culpable homicide of the first degree’. This is the greatest form of culpable homicide, which is
defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the
second degree’. This is punishable under the first part of Section 304. Then, there is
‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the
punishment provided for it is, also, the lowest among the punishments provided for the three
grades. Culpable homicide of this degree is punishable under the second part of Section 304.”
300. Murder—Except in the cases hereinafter excepted, culpable homicide is murder,

if the act by which the death is caused is done with the intention of causing death, or—
2ndly—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—
3rdly—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—
4thly—If the person committing the act knows that it is so imminently dangerous that it must, in
all probability, cause death, or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or such injury as aforesaid.
First clause of sec 300 –

if the act by which the death is caused is done with the intention of causing death .
The first clause of section 300 simply stipulates that when an act (including legal omission) is
done with the intention of causing death, then it is culpable homicide amounting to murder.
Illustration (a) to section 300
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
2nd clause
(2ndly—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)
Thus, the mens rea contemplated under clause 2 of section 300 is twofold i.e
Intention + subjective knowledge (accused’s own perception of the consequences of his act)
The second clause of section 300 will apply if there is first, the intention to cause bodily harm
and next, there is the “subjective knowledge” that death will be the likely consequence of the
intended injury.’ Illustration (b)
The word “likely” in clause (2) of section 300, coupled with the word “knowledge”, indicates
definiteness or certainty of death and not a mere probability.
3rd clause - 3rdly—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.
Clause 3 of section 300 stipulates that the bodily injury intended is sufficient in the ordinary
course of nature to cause death. The knowledge here is objective, as opposed to the subjective
requirement in clause 2 of section 300. Therefore, the requirement of clause (3) of section 300 is
that it must be objectively established that the injury is sufficient in the ordinary course to cause
death. By objective, it means it is not the personal perception of the accused that matters, but
whether objectively speaking, in real terms, the injury intentionally caused is sufficient to cause
death. Illustration(c)
Virsa Singh: In Virsa Singh v State of Punjab, the Apex Court held that whether the injury
intended by the accused and actually inflicted by him is sufficient in the ordinary course of
nature to cause death or not, must be determined in each case on the basis of the facts and
circumstances of that particular case.
Under clause 3rdly of section 300, IPC culpable homicide is murder, if both of the following
conditions are satisfied, namely:—
(a) that the act which causes death is done with the intention of causing bodily injury, and
(b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death.
Therefore, in order to bring a case under 3rdly, the prosecution must establish—
Firstly, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved;
These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that
is to say, that it was not accidental or unintentional, or that some other kind of injury was
intended.
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of the three
elements set out above is sufficient to cause death in the ordinary course of nature. This part of
the enquiry is purely objective and inferential and has nothing to do with the intention of the
offender.
4th clause
4thly—If the person committing the act knows that it is so imminently dangerous that it must, in
all probability, cause death, or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or such injury as aforesaid.
The essential ingredients of this clause are:

(i) the act must be imminently dangerous;
(ii) the person committing the act must have knowledge that it is so imminently dangerous;
(iii) that in all probability it will cause (a) death or (b) bodily injury as is likely to cause death
and
(iv) such imminently dangerous act should be done without any reason or justification for
running the risk of causing death or such injury.
It conveys that culpable homicide based on knowledge does not amount to murder if the accused
has an “excuse” for “incurring the risk”, even if none of the five special exceptions to section 300
is applicable. The words “without excuse” used in clause 4, thus, contemplate situations other
than those which fall within the five exceptions to section 300, IPC
CASES
Case - Rawalpenta Venkalu v. State of Hyderabad, 1956
Fact - Rawalpenta Venkalu and Bodla Ram Narsaih along with the three others in pursuance of a
conspiracy to commit the murder of Md. Moinuddin had set fire to the single room hut in which
he was sleeping after locking the door of the room from outside. An old servant, who was
sleeping in front of the cottage outside the room occupied by the deceased, was awakened by the
noise of the locking of the door from outside.
Just at that time, Moinuddin also called out for him from inside and asked him to open the door.
The servant replied that he could not do so as he found the door locked from outside. Three other
employees of Moinuddin, who were watching his harvest about fifty paces away, were also
called out by him. When they came near the cottage, they were assaulted by the culprits. Kasim
Khan was beaten severely.
The two appellants then set fire to the cottage, and the employees of Moinuddin were kept at bay
by the superior force of the accused and their associates. Those employees naturally, therefore,
went towards the main habitation in the village shouting for help. When the villagers came, the
appellants and others prevented them from going to the rescue of the helpless inmate of the
cottage by throwing dust in their eyes, and by the free use of their sticks. Finally deceased died.
Issue - Were appellants had caused the murder of Moinuddin?

Was the error in the framing of the charge (omission of section 34) sufficient to mislead the
accused?

➢ Error in the framing of charge is not relevant here - "You are charged of the offence that
you with the assistance of other present accused, with common intention, on 18-2-53 at
Mohiuddinpur village, committed murder, by causing the death of Md. Moinuddin….”
➢ It is clear, therefore, that though Section 34 is not added to Section 302, the accused had
clear notice that they were being charged with the offence of committing murder in
pursuance of their common intention to put an end to the life of Moinuddin. Hence the
omission to mention Section 34 in the charge has only an academic significance and has
not in any way misled the accused.
➢ In this case, from the facts, it becomes very clear that there was the intention to cause
death. These facts are like locking the door, burning the hut, preventing servants and
villagers from saving victim etc.
➢ Supreme Court found that there was a clear intention to cause death. So the appeal was
dismissed. It means the death sentence of the appellant was confirmed.
Case - Palani Goundan v. Emperor, 1919

Fact - Palani Goundan struck a violent blow on the head of his wife Ramayee with a
ploughshare. She became senseless and faint away. He believed her to be dead, and in order to
lay the foundation for a false defence of suicide by hanging, which he afterwards set up,
proceeded to hang her on a beam by a rope.
In fact, the first blow was not a fatal one, and the cause of death was asphyxiation by hanging,
which was the act of the accused. The accused did not intend to cause death. He intended to
cause bodily injury. It was not shown that the blow was likely to cause death.
Issue - Whether Palani Goundan convicted for culpable homicide/murder for causing the death
of his wife?
Whether Palani committed offence of grievous hurt and offence of concealing evidence?

➢ That a man is not guilty of culpable homicide if his intention was directed only to what
he believed to be a lifeless body.
➢ The accused cannot be convicted either for murder or culpable homicide. He can, of
course, be punished both for his original assault on his wife and for his attempt to create
false evidence by hanging her.
➢ The conclusion is irresistible that the intention of the accused must be judged, not in the
light of the actual circumstances, but in the light of what he supposed to be the
circumstances.
➢ The court convicted the accused of grievous hurt under section 326, IPC and concealing
for evidence under section 201, IPC.
Case - In re Thavamani, AIR 1943

Fact – The first accused was a gardener employed in the garden by Meenakshi (Deceased). The
second accused [Thavamani] was a friend of the first accused. He needed money at the time. For
that they took chain and other ornaments and gained property. The chain was sold in the market
and proceeds of the sale of this portion of the chain were divided between the two accused.
Method and manner of killing were narrated by the second accused in his confession. He
narrated, ―After the first attack had been made upon the deceased, he (second accused)
prevented her leaving the garden and then seized her legs and held her tight while, according to
the confession, the murder was completed. After she had died, the first and second accused threw
the body into the well".
Issue - Whether Thevamani (second accused) caused murder?

➢ The body, when found had marks of three punctured wounds upon the head; but those
wounds by themselves, according to the doctor would not be sufficient to cause death.
➢ In the first stage there was the intention to cause death. They hit the woman (Meenakshi
Achi) when she was in her flower garden. They thought that she had died. In reality, she
was merely unconscious.
➢ After believing her death, they threw her into well to conceal evidence. She died in well.
The second stage was in continuation of the first stage. So, he was guilty of murder.
➢ From the very beginning, there was an intention to cause death.
Case - Emperor v. Mushnooru Suryanarayana Murthy,

1912
Fact - M.S. Murthy was intended to kill Appala Narasimhulu, (on whose life he had effected
large insurances without Appala Narasimhulu’s knowledge, and in order to obtain the sums for
which he was insured), gave him some sweetmeat (halva) in which a poison containing arsenic
and mercury in soluble form had been mixed.
Appala after eating some poisonous sweetmeat (halva) threw the remaining halva. Without
knowledge of M.S. Murthy (accused), the girl (Rajalakshmi) took the halva and shared it with
friends. They ate and died subsequently.
Issue - Whether M.S. Murthy is guilty of the murder of Rajalakshmi?
Whether causing the death of a particular person is necessary to make him liable for culpable
homicide or murder?

➢ Intention to cause death of a particular person is not necessary. It becomes apparent after
cumulative readings of Sections 299 to 301 and illustrations of these sections.
➢ It is to be observed that the section does not require that the offender should intend to kill
(or know himself to be likely to kill) any particular person. It is enough if he ―causes the
death of anyone, whether the person intended to be killed or anyone else.
➢ Contributory action of victim is also not relevant. In section 299, illustration (a), Z went
and fell into the pit. He died. A was liable for culpable homicide.
➢ Accused in the present case is guilty of murder, and this is rendered still more clearly by
Section 301 of the Code. The cases in which culpable homicide is murder under Section
301 are not confined to cases in which the act by which the death is caused is done with
the intention of causing death. Section 301 specifies other degrees of intention or
knowledge which may cause the act amount to murder.
➢ M.S. Murthy was convicted for causing the murder of Rajalakshmi.
Case - Kapur Singh v. State of PEPSU, 1956

Fact - About a year before the date of the occurrence, Bachan Singh s /o the deceased caused a
severe injury on the leg of Pritam Singh s/o Kapur Singh resulting in the amputation of his leg.
Kapur Singh f/o Pritam Singh with the help of Chand Singh took revenge on September 30,
1952. Chand Singh gripped the father of Bachan Singh by the head and Kapur Singh inflicted as
many as 18 injuries on the arms and legs of the deceased with a gandasa. It is significant that out
of all the injuries which were inflicted none was inflicted on a vital part of the body.
Issue - Whether Kapur Singh caused Murder or Culpable Homicide?

➢ Kapur Singh had no intention to cause death. The fact that no injury was inflicted on any
vital part of the body of the deceased goes to show in the circumstances of this case that
the intention of the appellant was not to kill the deceased outright.
➢ But by such bodily injury it was likely to cause death. He inflicted the injuries not with
the intention of causing death of the deceased but caused such bodily injuries as, he must
have known, would likely cause death having regard to the number and nature of the
injuries.
➢ He was convicted under section 304(1) of IPC. The Court rejected to apply section 302.
Case - Virsa Singh v. State of Punjab, 1958

Fact - Virsa Singh thrust a spear into the abdomen of Khem Singh. Three coils of intestines
came out of the wound. There was only one injury on the body of Khem Singh. Khem Singh died
due to injury. In the opinion of the doctor, the injury was sufficient to cause death in the ordinary
course of nature.
It was argued by Virsa Singh that the facts set out above do not disclose an offence of murder
because the prosecution has not proved that there was an intention to inflict a bodily injury that
was sufficient to cause death in the ordinary course of nature.
Issue – Whether Virsa Singh caused Murder or Culpable Homicide?

➢ This argument is fallacious. If there is an intention to inflict an injury that is sufficient to
cause death in the ordinary course of nature, then the intention is to kill and, in that event,
the clause “thirdly” would be unnecessary because the act would fall under the first part
of the section.
➢ The two clauses are disjunctive and separate. The first is subjective, and the other— “If it
is done with the intention of causing bodily injury to any person”—is objective.
The prosecution must prove the following facts before it can bring a case under section 300:
First, it must establish quite objectively, that a bodily injury is present;
Second, the nature of the injury must be proved; these are purely objective investigations;
Third, it must be proved that there was an intention to inflict that particular bodily injury, that is
to say, that it was not accidental or unintentional or that some other kind of injury was intended.
Once these three elements are proved, to be present, the inquiry proceeds further; and,
Fourth, it must be proved that the injury set out above is sufficient to cause death in the ordinary
course of nature. This part of the inquiry is purely objective and inferential and has nothing to do
with the intention of the offender.
➢ The question is ...whether he intended to inflict the injury in question; and once the
existence of the injury is proved, the intention to cause it will be presumed unless the
evidence or the circumstances warrant an opposite conclusion.
➢ Supreme Court dismissed the appeal and upheld the conviction of Virsa Singh for murder
under Section 300, thirdly, which is punishable under Section 302, IPC.
Case - State of Andhra Pradesh v. R. Punnayya, 1977

Fact - Sarikonda Kotamraju (deceased) with two other people boarded the bus to go to
Nekarikal. Some minutes later, accused 1 to 5 also got into the same bus. When the bus stopped
at Nekarikal Crossroads, the deceased and his companions alighted to go to the Police Station.
The five accused also got down. The deceased and one companion went towards a Choultry
while third companion went to the roadside to ease himself. Two accused picked up heavy sticks
and went after the deceased into the Choultry. On seeing the accused, the companion ran away
towards a hut nearby. The deceased stood up.
He was an old man. He was not allowed to run. Despite the entreaties made by the deceased with
folded hands, both accused indiscriminately pounded the legs and arms of the deceased. The
victim was sent to Narasaraopet Hospital. There, Doctor Konda Reddy examined him and found
19 injuries, out of which, no less than 9 were (internally) found to be grievous. The deceased,
however, succumbed to his injuries the next day, despite medical aid.
Issue - Whether the offence is ‘murder’ or ‘culpable homicide not amounting to murder’?

➢ Justice Sarkaria observed, “In the scheme of the Indian Penal Code, ‘culpable homicide’
is genus and ‘murder’ is its species. All ‘murder’ is ‘culpable homicide’ but not vice
versa.
➢ Whenever a court is confronted with the question whether the offence is ‘murder’ or
‘culpable homicide not amounting to murder’, on the facts of a case, it will be convenient
for it to approach the problem in three stages.
The question to be considered at the first stage would be, whether the accused has done an act by
doing which he has caused the death of the victim. Proof of such casual connection between the
act of the accused and the death leads to the second stage.
Second stage for, considering whether that act of the accused amounts to culpable homicide as
defined in Section 299. If the answer to this question is prima facie found in the affirmative, the
third stage for considering the operation of s. 300, Penal Cod e, is reached.
This is the stage at which the Court should determine whether the facts proved by the
prosecution bring the case within the ambit of any of the four clauses of the definition of
‘murder’ contained in Section 300.
➢ If the answer to this question is in the negative, the offence would be ‘culpable homicide
not amounting to murder’, if this question is found in the positive, but the case comes
within any of the exceptions enumerated in Section 300, the offence would still be
'culpable homicide not amounting to murder’.
Case - Emperor v. Mt. Dhirajia, 1940

Fact - There was dispute between Mt. Dhirajia and her husband Jhagga. Husband was
continuously beating her. They had a six-month-old baby. The wife desired to go to visit her
parents while Jhagga was opposing. One day she woke up and started to move with her baby
along the railway track. When Jhagga woke up and found his wife and the baby missing. He
went out in pursuit of them, and when he reached a point close to the railway line, he saw her
making her way along the path.
When she heard him coming after her, she turned round in a panic, ran a little distance with the
baby girl in her arms and jumped into an open well which was at little distance from the path.
Baby died and she eventually survived. She was charged for committing murder of baby and
attempting suicide.
Issue - Was Dhirajia committed culpable homicide/murder with the knowledge of causing bodily
injury which was likely to cause death?
Was Dhirajia committed attempt to suicide punishable under Section 309, IPC?

➢ In this case the Court accepted that Dhirajia had neither intention to cause death nor
intention to cause bodily injury. But she was sane. So she had knowledge.
➢ The Court said, ‘Intention’ appears to us to be one thing and ‘knowledge’ appears to us to
be a different thing. In order to possess and to form an intention, there must be a capacity
for reason. And when by some extraneous force the capacity for reason has been ousted,
it seems to us that the capacity to form an intention must have been unseated too.
➢ But to our minds, knowledge stands upon a different footing. Some degree of knowledge
must be attributed to every sane person. Obviously, the degree of knowledge that any
particular person can be assumed to possess must vary. For instance, we cannot attribute
the same degree of knowledge to an uneducated as to an educated person. But we think
that to some extent knowledge must be attributed to everyone who is sane."
➢ She feared her husband and she had reason to fear her husband. She was endeavouring to
escape from him at dawn and in the panic into which she was thrown when she saw him
behind her she jumped into the well. She had an excuse and that excuse was panic or
fright. For these reasons Mt. Dhirajia was not guilty of murder.
➢ She was acquitted for attempt to suicide. She did not take conscious effort to take her
own life. She did so in an effort to escape from her husband.
➢ She was convicted for culpable homicide under section 304 because she had done with
knowledge under excusable circumstances.
➢ She was sentenced for six months with rigorous imprisonment. She had already been in
prison for a period of eight months. So, she was released at once.
Case - Gyarsibai v. The State, 1953

Fact - Gyarsibai, her children, her husband Jagannath and her sister-in-law Kaisar Bai used to
reside together. There were constant quarrels between the appellant and her sister-in-law. It is
alleged that one such quarrel took place. In this quarrel Kaisar Bai asked the appellant to leave
the house.
Thereupon, the appellant left the house, taking her three children aged 7 years, 5 years and 1½
years and saying that on account of her sister-in-law she would jump into a well. Soon after, the
appellant went to a well in the village and threw herself into the well along with her three
children. Some inhabitants of the village found Gyarasibai supporting herself on an edge of the
well and the three children dead in the well.
The appellant admitted before the Magistrate as well as before the Sessions Judge that she
jumped into the well together with her children on account of her sister-in-law Kaisar Bai’s
harassment.
Issue - Whether Gyarsibai is guilty of the offence of murder of the three children under Section
302?
Whether Gyarsibai is guilty of attempted suicide under Section 309?

➢ On the facts, it is clear that the appellant Gyarasi Bai had no intention to cause the death
of any of her children and she jumped into the well not with the intention of killing her
children but with the intention of committing suicide. That being so, Clauses 1, 2 and 3 of
Section 300, Penal Code, which apply to cases in which death is caused by an act done
with the intention of causing death or causing such bodily injury as is likely to cause the
death of person or sufficient in the ordinary course of nature to cause death cannot be
applied to the present case.
➢ The only clause of Section 300, Penal Code, which then remains for consideration is the
4th clause.
➢ It will be seen from clause fourthly that if death is caused merely by doing an act with the
knowledge that it is so imminently dangerous that it must, in all probability, cause death,
then the act is murder as is defined in Clause 4. In order that an act done with such
knowledge should constitute murder, it is essential that it should have been committed
“without any excuse for incurring the risk of causing death or such bodily injury”.
➢ Every sane person is presumed to have some knowledge of the nature of his act. This
knowledge is not negatived by any mental condition short of insanity.
➢ An imminently dangerous act is not murder if it is done to prevent a greater evil. If the
evil can be avoided without doing the act, then there can be no valid justification for
doing the act which is so imminently dangerous that it must, in all probability, cause
death or such injury as is likely to cause death.
➢ Here, there is no material, whatsoever, to come to the conclusion that the appellant could
not have escaped the harassment at the hands of her sister-in-law except by jumping
herself into a well with her three children.
➢ She was liable for the attempt to suicide and causing the murder of three children because
she had jumped into the well without any excuse. She jumped into the well in
consciousness. She did this only for satisfaction of self-ego. There was not any imminent
danger.
UNIT - 3
(Principal Reading)
Specific Exceptions to section 300
EXCEPTIONS TO MURDER
Culpable homicide is not murder when the case is brought within the five exceptions to
Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima
facie established on the evidence on record, the prosecution must still be required under the law
to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge
of murder. If the prosecution fails to discharge this onus in establishing any one of the four
clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be
made out and the case may be one of culpable homicide not amounting to murder as described
under Section 299 of the IPC.
The exceptions provided for under section 300 are: (1) grave and sudden provocation; (2) private
defence; (3) acts of public servants; (4) sudden fight and (5) consent.
These exceptions to section 300, unlike the “general exceptions”, do not exonerate the
wrongdoer. They only operate as mitigation factors.
Exception 1—Grave and Sudden Provocation

The following conditions must be complied with in order to invoke the benefit of this clause:—
(1) The deceased must have given provocation to the accused.
(2) The provocation must be grave.
(3) The provocation must be sudden.
(4) The offender, by reason of the said provocation, should have been deprived of his power of
self control.
(5) The accused killed the deceased during the continuance of the deprivation of the power of
self-control.
(6) The offender must have caused the death of the person who gave the provocation or that of
any other person by mistake or accident.
It may be stated that the defence of provocation is further limited by the following three
provisos. That is to say, the Exception is not available:—
(i) If the accused courts (gives) provocation or uses it as an excuse for assaulting another; or
(ii) If the act is legally done by a public servant in the exercise of his legal right as a public
servant; or
(iii) If the act is done in the exercise of the right of private defence.
Comments-
➢ “Grave provocation” within the meaning of Exception 1 to section 300 is a provocation
where judgement and reason take leave of the offender and violent passion takes over.
➢ “Sudden” means an action which must be quick and unexpected so far as to provoke the
accused.
➢ The provocation should be both grave and sudden. If the provocation is sudden but not
grave, or grave but not sudden, then the offender cannot avail of the benefit of this
exception.
In KM Nanavati v State of Maharashtra, The Supreme Court laid down the following
postulates relating to grave and sudden provocation:
(1) The test of “grave and sudden” provocation is 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 provoked as to lose his self- control.
(2) In India, words and gestures may also, under certain circumstances, cause grave and sudden
provocation to an accused, so as to bring his act within the first exception to section 300, IPC.
(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 fatal 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.
The Supreme Court in Muthu v State of Tamil Nadu, on 5 November 2007 held that constant
harassment may lead to deprivation of the power of self-control amounting to grave and sudden
provocation.The accused Muthu angered by a ragpicker, Shiva’s daily habit of throwing waste
into his shop, took out a knife and stabbed him to death. Differentiating between a pre-planned
crime and a crime resulting from a fit of rage, the Court said this was not a murder but culpable
homicide not amounting to murder punishable under section 304, IPC. In so doing, the Apex
Court placed littering several notches higher on the scale of offences.
Exception 4—Sudden Fight
The requisites of the fourth Exception are that:
(i) the murder should have been committed without premeditation;
(ii) it should have been committed in a sudden fight;
(iii) it should have been committed in the heat of passion;
(iv) it should have been committed upon a sudden quarrel and
(v) it should have been committed without the offender having taken undue advantage or acted in
a cruel or unusual manner.
All these conditions are required to be proved for bringing the case within the ambit of the fourth
Exception to section 300, IPC.
In the case of first Exception there is total deprivation of self-control because of provocation,
while in case of fourth Exception, there is only that heat of passion which eclipses his sober
reason. There is provocation in fourth Exception as in first Exception, but the injury caused is not
the direct consequence of that provocation. There is mutual provocation and aggravation, and it
is difficult to apportion the share of blame which attaches to each fighter. Both the parties,
notwithstanding with the fact who stuck the first blow and who initiated the quarrel, are put on
equal footing for their subsequent conduct and guilt therefore.
Heat of passion requires that there must be no time for the passions to cool down. The words
“sudden fight” or “upon sudden quarrel” implies the absence of previous deliberation or
determination to fight.
CASES
Case - K.M. Nanavati v. State of Maharashtra, 1962
Fact - K M Nanavati was second in command of the Indian Naval Ship of Mysore. He married
Sylvia in 1949 in England. They have three children by the marriage. Prem Bhagwandas Ahuja,
a businessman of Bombay, was unmarried and was about 34 years of age.
Sylvia confessed to Nanavati of her illicit intimacy with Prem Ahuja. He drove his wife and
children to a cinema where he dropped them promising to pick them up when the show ended.
The accused went to his ship, took from its stores a revolver and cartrid ges on a false pretext,
loaded the same, went to Ahuja’s flat, entered his bedroom and shot him dead. After the shooting
the accused went back to his car and drove it to the police station where he surrendered himself.
Issue - Was Nanavati entitled for the benefit of Section 80, IPC?
Whether confession of adultery by the wife of accused to him amounts to grave provocation?

➢ The prosecution had proved beyond any reasonable doubt that the accused had
intentionally shot the deceased and killed him. Accused will not get the benefit of Section
80, IPC.
Under exception 1 of Section 300, culpable homicide is not murder if the following conditions
are complied with:
• (1) The deceased must have given provocation to the accused.

• (2) The provocation must be grave.
• (3) The provocation must be sudden.
• (4) The offender, by reason of the said provocation, shall have been deprived of his
power of self-control.
• (5) He should have killed the deceased during the continuance of the deprivation of the
power of self-control.
• (6) The offender must have caused the death of the person who gave the provocation or
that of any other person by mistake or accident.
Test of Grave and Sudden Provocation:
• Objective Test -The test of “grave and sudden” provocation is 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 provoked as to lose his self-control.
• Words and gestures are sufficient - In India, words and gestures may also, under certain
circumstances, cause grave and sudden provocation to an accused so as to bring his act
within the first Exception to section 300 of the Indian Penal Code.
• 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.
• Blow during influence of passion -The fatal 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 this case the Supreme Court said, “No abstract standard of reasonableness can be laid down.
What a reasonable man will do in certain circumstances depends upon the following:
• customs,
• manners,
• way of life,
• traditional values etc.;
• in short, the cultural, social and emotional background of the society to which an accused
belongs.
➢ It is not necessary in this case to ascertain whether a reasonable man placed in the
position of the accused would have lost his self- control momentarily or even temporarily
when his wife confessed to him of her illicit intimacy with another, for we are satisfied
on the evidence that the accused regained his self-control and killed Ahuja deliberately.
K.M. Nanavati case accused got sufficient time to cool his mind.
➢ His conduct clearly shows that the murder was a deliberate and calculated one. The mere
fact that before the shooting, the accused abused the deceased, and the abuse provoked an
equally abusive reply could not conceivably be a provocation for the murder.
➢ So, he was convicted for murder. He was not given benefit of Exception 1 of Section 300.
Murder could not convert into culpable homicide not amounting to murder.
Case - Ghapoo Yadav v. State of M.P, 2003

Fact - There was a land dispute. On the request of Ramlal, measurement was done by the
Revenue Authority. After measurement of the land, possession of berry tree was transferred from
Ramlal to Ghapoo Yadav. It was cut down by family member of Ramlal.
At this point altercation and scuffle started. Without premeditation fight started. During this
Gopal was seriously injured and fell down on earth. After this no injury was caused to Gopal. He
was not beaten cruelly. His dying declaration was recorded. He died. Charges were framed under
Sections 148 and 302 read with Section 149 IPC.
Issue - Was causing death of Gopal amounts to murder?

Whether Ghapoo and Other entitle to get benefit of Exception 4 of Section 300?

➢ Ingredients of Exception 4 of Section 300 – The help of Exception 4 can be invoked if
death is caused:
• (a) without premeditation,
• (b) in a sudden fight;
• (c) without the offender’s having taken undue advantage or acted in a cruel or unusual
manner; and
• (d) the fight must have been with the person killed.
➢ Difference between Exception 1 and Exception 4 - Both depend upon without

premeditation. But, while in the case of Exception 1 there is total deprivation of self -
control, in case of Exception 4, there is only that heat of passion which clouds men’s
sober reason and urges them to do which they would not otherwise do.
➢ A “sudden fight” implies mutual provocation and blows on each side. The homicide
committed is then clearly not traceable to unilateral provocation, nor in such cases could
the whole blame be placed on one side.
➢ During this Gopal seriously injured and felt down on earth. After this no injury was
caused to Gopal. He was not beaten with cruelty. Ghapoo and Other got benefit of
Exception 4.
UNIT - 4
(Principal Reading)
Homicide by Rash or Negligent Act not amounting to
Culpable Homicide
Section 304A
Ingredients:
1. Death is caused by an act of the accused.
2. The act was caused or committed rashly or negligently.
3. The death must not be culpable homicide or murder.
This section deals with homicide by negligence and covers that class of offences, where death is
caused neither intentionally nor with the knowledge that the act of the offender is likely to cause
death, but because of the rash and negligent act of the offender. This clause limits itself to rash
and negligent acts which cause death, but falls short of culpable homicide of either description.
When any of these two elements, namely, intention or knowledge, is present, section 304A has
no application.
The act of causing death is the actus reus and causing such death by the rash or negligent attitude
is the mens rea. The act to be prohibited by law must be that very act of the accused which is the
direct cause of the death. The act should prima facie indicate the death. The act should be the
result of the rash or negligent attitude. The rashness or negligence should be in existence at the
time of the commission of the act. If the guilty mind of rashness or negligence is absent at the
time of the commission of the act then that act will not come under this section. So both actus
reus and mens rea, i.e. the act of causing death and rashness or negligence must concur to each
other.
There is a distinction between a rash act and a negligent act.
“Rashness” conveys the idea of recklessness or doing of an act without due consideration and
“negligence” connotes want of proper care.
A rash act implies an act done by a person with recklessness or indifference as to its
consequences. The doer, being conscious of the mischievous or illegal consequences, does the
act knowing that his act may bring some undesirable or illegal results but without hoping or
intending them to occur.
A negligent act, on the other hand, refers to an act done by a person without taking sufficient
precautions or reasonable precautions to avoid its probable mischievous or illegal consequences.
It implies an omission to do something, which a reasonable man, in the given circumstances,
would not do.
The term “negligence” as used in this section does not mean mere carelessness. The rashness or
negligence must be of such nature so as to be termed as a criminal act of negligence or rashness.
Section 80 of the IPC provides
“nothing is an offence which is done by accident or misfortune and without any criminal
knowledge or intention in the doing of a lawful act in a lawful manner by a lawful means and
with proper care and caution”. It is absence of such proper care and caution, which is required of
a reasonable man in doing an act, which is made punishable under this action.
CASES
Case - Cherubin Gregory v. State of Bihar, 1964
Fact - The appellant was charged under section 304A of IPC, 1860 for causing the death of one
Madilen by contact with an electrically charged naked copper wire which he had fixed up at the
back of his house with a view to prevent the entry of intruders into his latrine.
The wall of the latrine of the house of the deceased had fallen down about a week prior to the
day of the occurrence with the result that the latrine had become exposed to public view.
Consequently, the deceased, among others, started using the latrine of the accused.
The accused resented this and made it clear to them that they did not have his permission to use
it and protested their coming there. The oral warnings, however, proved ineffective and it was for
this reason that the accused made the entry dangerous to the intruders. There was no warning that
the wire was live.
Issue – Whether Cherubin Gregory will get the right of private defense?
Whether Cherubin Gregory act was rash and negligent?

➢ Supreme Court observed, "The right of private defense of property which is set out in
Section 97 of the Indian Penal Code is, as that section itself provides, subject to the
provisions of Section 99 of the Code. It is obvious that the type of injury caused by the
trap laid by the accused cannot be brought within the scope of Section 99, nor of course
of Section 103 of the Code."
➢ Accused had no intention to cause death. So, he was not liable for culpable homicide.
➢ It is no doubt true that the trespasser enters the property at his own risk and the occupier
owes no duty to take any reasonable care for his protection, but at the same time the
occupier is not entitled to do willfully, acts such as set a trap or set a naked live wire with
the deliberate intention of causing harm to trespassers or in reckless disregard of the
presence of the trespassers.
➢ The voltage of the current passing through the naked wire being high enough to be lethal,
there could be no dispute that charging it with the current of that voltage was a 'rash act'
done in reckless disregard of the serious consequences to people coming in contact with
it.
➢ The contention was that the deceased was a trespasser and that there was no duty owed
by an occupier like the accused towards the trespasser, and therefore, the latter would
have had no cause of action for damages for the injury inflicted and that if the act of the
accused was not a tort, it could not also be a crime. The Supreme Court rejected this
argument and said that there was no substance in this line of argument.
➢ Cherubin Gregory was liable under section 304A. His appeal was dismissed by the
Supreme Court.
Case - S.N. Hussain v. State of Andhra Pradesh, 1972

Fact - S.N. Hussain was a bus driver. An accident occurred at the time of crossing the railway
gate near about 6:30 or 7:00 a.m. Gate was open, and he was driving at a slow speed, and due to
the cold breeze, there was less visibility. A goods train hit the bus on the rear side with the result
of that the bus was thrown off, causing serious injuries to the passengers.
There were about 43 passengers on the bus. Out of these, one died on the spot, three died later in
the hospital, and about 21 other passengers received more or less severe injuries.
Issue – Whether S. N. Hussain was rash or negligent in crossing the railway track when a Goods
train was about to pass the gate?

➢ Meaning of Rashness- Rashness consists of hazarding a dangerous or wanton act with the
knowledge that it is so and may cause injury. The criminality lies in such a case in
running the risk of doing such an act with recklessness or indifference as to the
consequences.
➢ Meaning of Criminal negligence -Criminal negligence on the other hand, is the gross and
culpable neglect or failure to exercise that reasonable and proper care and precaution to
guard against injury either to the public generally or to an individual in particular, which,
having regard to all the circumstances out of which the charge has arisen, it was the
imperative duty of the accused person to have adopted.
➢ That the gate of the level crossing which is a manned gate, was open, indicating thereby
that no train was expected to come at the time and inviting vehicles to pass. The railway
track was at a higher level, and the road was lined with babool trees and, therefore, a
passing train coming from a distance was not visible from the bus.
➢ The bus was making a huge noise because it was not fitted with the silencer. As a cold
breeze was blowing some of the window screens of the bus were lowered for the comfort
of the passengers on the bus. There was less visibility.
➢ There is no evidence that the train while approaching the level crossing, gave any whistle
or whistles. In any case, there is no evidence that any whistle was heard by any of the
occupants of the bus.
UNIT - 5
(Principal Reading)
General Exceptions
The “general exceptions” contained in sections 76–106 make an offence a non-offence.

RATIONALE BEHIND RIGHT OF PRIVATE DEFENCE
Self-help is the first rule of criminal law. The right of private defence is absolutely necessary for
the protection of one’s life, liberty and property. The right of private defence is a
justificatory defence in that it involves a particular situation where the use of force is justified.
The law of private defence is based on two cardinal principles, viz.,
(i) Everyone has the right to defend his own body and property, as also another’s body and
property.
(ii) The right cannot be applied as a pretence for justifying aggression for causing harm to
another person, nor for causing more harm than is necessary to inflict for the purpose of defence.
Section 96 states the general proposition, that “nothing is an offence which is done in the
exercise of the right of private defence.” However, the right is not absolute and is subject to
restrictions. The subsequent sections 97 to 105 state the limits within which the right can be
exercised, the extent of injury that can be inflicted and against whom these rights can be
exercised.
The Penal Code envisages two measures of right of private defence. One is the first degree which
shall not reach up to causing of death of the wrongdoer. The other is the full measure which may
go up to causing death. Both measures are, however, subjected to the restrictions enumerated in
Section 99.
Section 104 IPC contains the bridle that right of private defence shall not cross the limit of first
degree as against acts which would remain as theft, mischief or criminal trespass. But Section
103 recognises extension of the said right up to the full measure, even as against the aforesaid
acts but only if such acts or their attempts are capable of inculcating reasonable apprehension in
the mind that death or grievous hurt would be the consequence if the right is not exercised in
such full measure.
The right of private defence will completely absolve a person from all guilt even when he causes
the death of
another person in the following situations, viz.;
(i) If the deceased was the actual assailant, and
(ii) If the offence committed by the deceased which occasioned the cause of the exercise of right
of private defence of body and property falls within anyone of the six or four categories
enumerated in sections 100 and 103 of the Penal Code respectively, or was an assault reasonably
causing the apprehension of his death, as explained in section 106 of the Code.
The right of private defence has been elaborately discussed in sections 97 to 106 from two
aspects, namely, defence of the body and defence of property. Sections 97, 98 and 99 are of a
general nature and deal with both aspects of right to the defence of body and property. On the
other hand, (i) sections 100, 101, 102 and 106 are concerned with defence of body and (ii)
sections 103, 104 and 105 with defence of property.
Section 97
Section 97 IPC deals with the subject-matter of right of private defence. The plea of right of
private defence comprises the body or property (1) of the person exercising the right, or (ii) of
any other person; and the right may be exercised in the case of any offence against the body, and
in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such
offences in relation to property.
Section 99
Section 99 stipulates the acts against which the right of private defence does not arise. It sets the
limits within which the right of private defence is to be exercised.
• the first clause refers to the acts of a public servant, while the second clause refers to
acts done under the authority or direction of a public servant.
• Clause 1: This clause applies to those cases in which the public servant is acting in good
faith under colour of his office, though the particular act being done by him may not be
justifiable by law.
The clause applies where a public servant acts irregularly in the exercise of his powers
and not where he acts outside the scope of his powers. If the act of a public servant is
ultra vires the right of defence may be exercised against him.
• Clause 2 speaks of acts done under the direction of public servant.
• Clause 3 lays down that there is no right of private defence or the protection of one’s
own body or property, as also another’s body or property, if there is reasonable
opportunity of redress by recourse to the public authorities. No man has a right to take the
law into his own hands.
• Clause 4 to section 99 provides that the injury to be inflicted should be proportionate to
the harm caused or attempted to be caused.
The right of private defence is a defensive right circumscribed by the statute, available
only when the circumstances clearly justify it. It should not be allowed to be used or
availed of as a gift for a vindictive, aggressive or retributive purpose. The right of private
defence in no case extends to the inflicting of more harm than is necessary in the
particular case.
However, explanations 1 and 2 to section 99 provide that the section will apply only if the
person, doing the act, has knowledge or has reason to believe that the doer of the act is a public
servant or is acting under the direction of a public servant. If the person is acting under directions
of a public servant then such person should state the authority under which he acts or if the
authority is in writing, he should produce the same if demanded in order to get the protection
under this section.
Section 100
Section 100 justifies the killing or of causing any other harm to the assailant under the
restrictions mentioned in section 99, if the offence which occasions the exercise of the right be of
any description enumerated in clauses
1 to 7 of section 100, IPC, namely, an assault:
(1) Causing the apprehension of death;
(2) Causing the apprehension of grievous hurt;
(3) With the intention of committing rape;
(4) With the intention of gratifying unnatural lust;
(5) With the intention of kidnapping or abducting;
(6) With the intention of wrongfully confining a person under circumstances which may give
apprehension that he will be unable to have recourse to the public authorities for his redress.
(7) Throwing or administering acid causing reasonable apprehension that it will result in
grievous hurt.
To invoke section 100, IPC, four conditions must exist, viz.,

firstly, that the person exercising the right of private defence must be free from fault in bringing
about the encounter;
secondly, there must be present an impending peril to life or of great bodily harm, either real or
so apparent as to create an honest belief of exceeding (great) necessity;
thirdly, there must be no safe or reasonable mode of escape by retreat; and
fourthly, there must have been a necessity for taking the life.
Section 101
Section 101, IPC provides that, if the offence which entitles a man to exercise the right of private
defence be not of such serious description as specified in clauses (i) to (vi) to section 100, the
right of private defence does not extend to the voluntary causing of death. That is to say, under
this section any harm short of death can be successfully inflicted in exercising the right of private
defence, subject to the restrictions mentioned in section 99 of Indian Penal Code.
Section 102
This section indicates when the right of private defence of the body commences and till what
time it continues.
Section 102 provides that the right of private defence commences as soon as a reasonable
apprehension of danger to the body arises from an attempt or threat to commit the offence,
though, the offence may not have been committed. It does not commence until there is a
reasonable apprehension. The danger or the apprehension of danger must be present, real or
apparent.
The right lasts so long as the reasonable apprehension of the danger to the body continues.
Reasonable ground for the apprehension is requisite.
CASES
Case - State of U.P. v. Ram Swarup, 1974
Fact - This is a case related to Sabzi Mandi at Badaun, U.P. At about 7 a.m. on June 7, 1970,
Ganga Ram is alleged to have gone to the market to purchase a basket of melons. Sahib Datta
Mal alias Munim ji (Deceased) declined to sell it, saying he had already marked it for another
customer.
Hot words followed, during which Sahib Datta Mal alias Munim ji (Deceased), asserting his
authority, said that he was the Thekedar of the market and his word was final. Offended by this
show of authority, Ganga Ram is alleged to have left in a huff.
An hour later, Ganga Ram went back to the market with his three sons, Ram Swarup, Somi and
Subhash. Ganga Ram had a knife, Ram Swarup had a gun, and the two others carried lathis.
They threw a challenge saying that they wanted to know whose authority prevailed in the market.
They advanced aggressively towards the deceased, who, taken by surprise, attempted to rush into
a neighboring Kothari. But that was much too late, before he could retreat, Ram Swarup shot him
dead at point-blank range.
Issue - Had Ram Swarup caused the death of Munimji in the exercise of Right of Private
Defence?
Whether the existence of Right of Private Defence must be proved beyond reasonable doubts?

➢ The Right of Private Defence is available in the face of imminent peril to those who act
in good faith and in no case the right be conceded to a person who stage-manages a
situation wherein the right can be used as a shield to justify an act of aggression. For
example, if a person goes with a gun to kill another, the intended victim is entitled to act
in self-defense and if he so acts, there is no right in the former to kill him in order to
prevent him from acting in selfdefence." Evidently the accused went to the market with a
preconceived design to pick up a quarrel.
➢ The burden which rests on the prosecution to establish its case beyond reasonable doubt
is neither neutralised nor shifted because the accused pleads the right of private defence.
The prosecution must discharge its initial traditional burden to establish the complicity of
the accused, and until it does so, the question whether the accused has acted in self
defence or not does not arise.
➢ Supreme Court said that the right of private defence constitutes a general exception to the
offences defined in the Penal Code. The burden which rests on the accused to prove the
exception is not of the same rigour as the burden of the prosecution to prove the charge
beyond a reasonable doubt. It is enough for the accused to show as in a civil case that the
preponderance of probabilities is in favour of his plea.
➢ The right of private defence is a right of defence, not retribution.
There were following reasons on the basis of which Ram Swarup was convicted for murder:
• Ram Swarup and his father & brothers were aggressors.

• Ram Swarup killed when Munimji was running away.
• Ram Swarup shot him dead at point-blank range.
• Ram Swarup was not able to prove that his matters were covered under “General
Exceptions”.
• Right of Private Defence is not available for “stage manager”.
Ram Swarup was convicted for murder under section 302. But his punishment from death
sentence (Convicted by Session Court) was converted into life imprisonment.
Case - Deo Narain v. State of U.P.,1973

Fact - There was some dispute with respect to the possession of certain plots of land in village
Baruara, Police Station Dildarnagar, District Ghazipur. There were several legal proceedings
between the rival parties with respect to both title and possession of the said plots. On September
17, 1965, there was a clash between the party of the accused (Deo Narain) and the party of the
deceased (Chanderama).
In this clash lathis and spear were used from both sides. The blow of lathi was aimed at the head
of Deo Narain. In consequence of this, Deo Narain, in the exercise of his right of private defence,
inflicted a fatal spear injury on the chest of the deceased causing death of Chanderama.
Issue - Had Deo Narayan exceeded his right of private defence?

➢ Right of Private Defence rests on the general principle that where a crime is committed
by force, it is lawful to repel that force in self-defense.
➢ The threat must reasonably give rise to the present and imminent and not remote or
distant danger. This right rests on the general principle that where a crime is endeavoured
to be committed by force, it is lawful to repel that force in self-defence. Deo had used a
spear in self-defence. Use of lathi at the head was imminent danger.
➢ In such moments of the excitement of disturbed mental equilibrium, it is somewhat
difficult to expect parties facing grave aggression to coolly weigh, as if in golden scales,
and calmly determine with a composed mind as to what precise kind and severity of blow
would be legally sufficient for effectively meeting the unlawful aggression.
➢ The right of private defence is available for protection against apprehended unlawful
aggression and not for punishing the aggressor for his offence. It is a preventative and not
punitive right.
➢ According to section 102, the right of private defence of the body commences as soon as
a reasonable apprehension of danger to the body arises from an attempt or threat to
commit the offence, though the offence may not have been committed, and such right
continues so long as such apprehension of danger to the body continues.
➢ Section 99 says that the right of private defence in no case extends to the inflicting of
more harm than it is necessary to inflict for the purpose of defence.
➢ Deo has exercised his right of private defence. He had not exceeded his right of private
defence. He was acquitted.
Case - Kishan v. State of M.P., 1974

Fact - There was a dispute regarding the use of bricks. There were four brothers, Kishan,
Damrulal, Ganesh & Har Charan. On May 4, 1968, Damrulal went to the house of Bucha. Bucha
was supervising foundation-digging near his house. Damrulal warned Bucha to abstain from
using bricks belonging to him. Bucha replied that he was using his own bricks. Then, there was
an exchange of hot words between them. Thereafter Damrulal left the place angrily after giving a
warning to Bucha that he would soon settle the score.
Four brothers reached the home of Bucha. Bucha was dragged out of his house. There he was
given a beating by fists and kicks by Kishan and his three brothers. Bucha contrived to extricate
himself from their grip and picked up a Khutai lying nearby. He gave three blows on the head of
Har Charan with the Khutai. Har Charan fell down to the ground and became unconscious.
Thereafter, Kishan and his remaining two brothers, Ganesh and Damrulal, caught hold of Bucha.
The appellant snatched the Khutai from the hand of Bucha and gave two or three blows to his
head. Bucha fell down on the ground and became unconscious. Later, Har Charan and Bucha
died. Kishan, Damarula and Ganesh were prosecuted for causing the murder of Bucha.
Issue - Whether Kishan caused death of Bucha in the exercise of ‘Right of Private Defence’?
Whether Kishan had caused the murder of Bucha?

➢ The Court found that on the basis that the appellant along with his three brothers, Ganesh,
Damrulal and Har Charan, went to the house of Bucha, and pulled him out of his house
up to the neem tree and there subjected him to punching and kicking. So, they were
aggressors. They took the law in their own hands.
➢ Bucha contrived to escape from their grip, caught hold of the khutai and struck three
blows on the head of Har Charan. Bucha was then acting in the exercise of the right of
self-defence. Therefore, he was not an aggressor. The appellant could not claim to have
beaten Bucha in the exercise of the right of self-defence.
➢ Dr. S. N. Banerji, who did the autopsy on the dead body of Bucha has deposed: With
these injuries, death was inevitable. This medical opinion clearly brings the appellant's
case within the purview of Section 300, the third clause.
➢ The right of Private defence is not available for an aggressor. So, the High Court is right
in convicting him under Section 302 I.P.C. The appeal is accordingly dismissed.
Case - James Martin v. State of Kerala 2004

Fact - There was Bharat Bandh call given by some political parties. James and his father Xavier
had their residence, besides a bread factory and a flour mill in the same compound in suburb of
Kochi. It was, however, said that their success in business was a matter of envy for Thomas
Francis, their neighbor, particularly who filed complaints to the local authorities against the
conduct of the mill and the factory.
The incident involved in this case took place when five young men, the two deceased in this
case, namely, Mohan and Basheer (deceased), and PW-1, PW-2 and PW-4, who were activists of
the bandh, got into the flour mill of the Xavier. They unlawfully entered into residence and
pressurized for closing the operation of flour mill. Bandh activists who got into the place by
scaling over the locked gate and that their entry was unlawful too, besides intimidating and
assaulting worker (PW -15) and making them flee without shutting down the machines. James,
on the instigation of his father Xavier, fired at the bandh activists. Two activists died.
Issue - Whether James Martin killed two persons in the exercise of right of private defence?

➢ The threat to life and property of the accused was not only imminent but did not cease,
and it continued unabated.
➢ Self-preservation is the prime instinct of every human being. The right of private defence
is a recognized right in every criminal law.
➢ Section 99, IPC denotes 'Lakshman Rekha'. Here 'Lakshman Rekha' means boundary
beyond which you cannot go. It means the right of private defence is not an absolute
right. It is subject to restrictions mentioned under section 99, IPC.
➢ In order to find whether the right of private defence is available or not, (i) the injuries
received by the accused, (ii) the imminence of threat to his safety, (iii) the injuries caused
by the accused and (iv) the circumstances whether the accused had time to have recourse
to public authorities are all relevant factors to be considered.
➢ It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive
or retributive purpose of offence. It is a right of defence, not of retribution, expected to
repel unlawful aggression and not as a retaliatory measure.
➢ The accused need not prove the existence of the right of private defence beyond a
reasonable doubt. It is enough for him to show as in a civil case that the preponderance of
probabilities is in favour of his plea.
➢ It is a well-settled principle that even if the accused does not plead self-defense, it is open
to the court to consider such a plea, if the same arises from the material on record.
➢ We part with the case it needs to be noted that in the name of Hartal or Bandh or strike no
person has any right to cause inconvenience to any other person or to cause in any
manner a threat or apprehension of risk to life, liberty, property of any citizen or
destruction of life and property, and the least any government or public property.
➢ There was a reasonable apprehension of causing death. In the circumstances, the
inevitable conclusion is that the acts done by the accused were within the reasonable
limits of exercise of his right of private defence and he was entitled to the protections
afforded in law under Section 96. Supreme Court acquitted the accused.
UNIT - 6
(Principal Reading)
Kidnapping and Abduction
359. Kidnapping—Kidnapping is of two kinds: kidnapping from 1[India], and kidnapping from
lawful guardianship.
360. Kidnapping from India—Whoever conveys any person beyond the limits of India without
the consent of that person, or of some person legally authorised to consent on behalf of that
person, is said to kidnap that person from India.
This section requires two things:—
(1) Conveying of any person beyond the limits of India.
(2) Such conveying must be without the consent of that person.
Comments:
➢ Conveys means to take or carry or transport from one place to another. So, it is the
physical act of taking, a person beyond the limits of India.
➢ The person must be conveyed without the consent of the person who is conveyed or the
consent of the legally authorised person of the person so conveyed. So, it means that the
conveyance may be of a major person or a minor or unsound person, beyond the limits of
India.
➢ The words used in the section are “beyond the limits of India”. This means that the
offence under this section is complete, the moment a person is taken outside the
geographical territory of India. It is not necessary that the persons should reach their
destination in some other foreign territory.
➢ By the same token, if, a person is apprehended before he crosses the Indian border, then
the offence will not be complete.
361. Kidnapping from lawful guardianship—

Object- The object of this section seems as much to protect the minor children from being
seduced for improper purposes as to protect the rights and privileges of guardians having the
lawful charge or custody of their minor wards.
The essential ingredients of the section are:

(i) taking or enticing away a minor or a person of unsound mind,
(ii) such a minor must be under the age of sixteen years, if a male, or under eighteen
years, if a female;
(iii) the taking or enticing away must be out of the keeping of the lawful guardian of
such minor or person of unsound mind and
(iv) such taking or enticing away must be without the consent of such guardian.
Analysis:
➢ “Taking” implies no active or constructive force. The word means “to go, to escort”.
➢ The consent of the minor child is of no relevance. Consent given by a minor or a person
of unsound mind is not consent. But there must be some active part played by the accused
for “taking” the minor. Simply permitting or allowing a minor to accompany one will not
amount to an offence.
➢ The offence of kidnapping from lawful guardianship is complete when the minor is
actually taken from lawful guardianship.
➢ The word “entice” connotes the idea of inducement or pursuance by offer of pleasure or
some other form of allurement.
➢ It is not necessary that the taking or enticing must be shown to have been by means of
force or fraud. Persuasion by the accused person which creates willingness on the part of
the minor to be taken out of the keeping of the lawful guardian would be sufficient to
attract the section.
➢ The word “keeping”, in the context, connotes the idea of charge, protection, maintenance
and control. It is not necessary that the minor should be under physical possession of the
guardian. It suffices for the purpose of the section if it is under a continuous control of the
guardian.
Section 362 - Abduction—Whoever by force compels, or by any deceitful means induces, any
person to go from any place, is said to abduct that person.
Ingredients—
The section requires two things:
(1) Forceful compulsion or inducement by deceitful means.
(2) The object of such compulsion or inducement must be the going of a person from any place.
Analysis:
➢ The term “force”, as embodied in section 362, IPC, means the use of actual force and not
merely show of force or threat of force.
➢ The expression “deceitful means” includes a misleading statement. It is a matter of
intention.
The intention of the accused is the basis and gravamen of the charge.
➢ Deceitful means misleading a person by making false representations and thereby
persuading the person to leave any place.
➢ The offence of abduction under section 362 of the Code involves use of force or deceit to
compel or induce any person to go from any place. Therefore, abduction per se is not
offence under the IPC. It is an offence when it is accompanied by certain intent to
commit another offence.
➢ Force or fraud is essential to make abduction punishable.
Difference between kidnapping and abduction
KIDNAPPING ABDUCTION
(1) ‘Kidnapping’ is committed only in respect (1) ‘abduction’, in respect of a person of any
of a minor under 16 years of age if a male, age.
and under 18 years if a female or a person of
unsound mind;
(2) Person kidnapped is removed out of (2) No such thing necessary. It has reference
lawful guardianship. exclusively to the person abducted.
(3) Taken away or enticed to go away with (3) Force, compulsion and deceitful means
the kidnapper. The means used are irrelevant. are used.
(4) Consent of the person kidnapped is (4) Consent of the person condones the
immaterial. offence.
(5) Intent of the kidnapper is irrelevant. (5) Intent of the abductor is the all important
factor.
(6) Not a continuing offence. It is complete as (6) It is a continuing offence. It continues so
soon as the long as the
minor or person of unsound mind is removed abducted person is removed from one place
from lawful guardianship. to another.
(7) Kidnapping is a substantive offence. (7) Abduction is an auxiliary act. It becomes
punishable only when it is done with either of
the intents specified in section 364 to 366.
(8) Kidnapping outside India. (8) Abduction may be anywhere within or
without.
CASES
Case - S. Varadarajan v. State of Madras, 1965
Fact - S. Natarajan was living on 6th Street, Lake Area, Nungumbakkam, along with his wife
and two daughters, Rama and Savitri. Rama was studying in the Madras Medical College while
the Savitri was a student of the second year B.Sc. class in Ethiraj College. A few months before
her 18th birthday Savitri became friendly with S. Varadarajan who was residing in a house next
door to that of S. Natarajan.
Savitri and Varadarajan fell in love with each other and wanted to get married. When Natrajan
came to know about this, he took Savitri to Kodambakkam and left her at the house of a relative,
the idea being that she should be kept as far away from S. Varadarajan as possible for some time.
On the next day, Savitri left the house of her relative at about 10.00 A.M. and telephoned the
appellant asking him to meet her on a certain road in that area and then went to that road herself.
By the time she got there, S. Varadarajan had arrived there in his car. She got into it and both of
them then went to the house of one P. T. Sami at Mylapore with a view to taking that person
along with them to the Registrar’s office to witness their marriage.
Thereafter the agreement to marry entered between S. Varadarajan and Savitri, which was
apparently written there, was got registered. Later, S. Varadarajan was arrested for kidnapping of
Savitri.
Issue - Had S. Varadarajan committed kidnapping of Savitri?

There are four conditions must be proved to make any person liable for kidnapping:
• (i) Taking or enticing – In this case there was neither taking nor enticing. There was
merely allowing.
• (ii) Minor (In case of female, under the age of 18 Yrs.) – Savitri was minor.
• (iii) Out of lawful guardian - Though Savitri had been left by S. Natarajan at the house of
his relative K. Natarajan, she still continued in the lawful keeping of the former.
• (iv) Without consent - S. Natarajan had not given consent.
➢ In this case Savitri was on the verge of attaining the age of maturity. She was well
educated. She was student of second year of B.Sc. She was living in urban area. She was
capable of knowing what is right and what is wrong. She called lover and she chose the
meeting point. There was no pre-planning. S. Varadarajan had neither administered threat
nor blandishment. So, he had only acted to fulfill her desire.
➢ She willingly accompanied him, and the law did not cast upon him the duty of taking her
back to her father’s house or even of telling her not to accompany him.
➢ Supreme Court observed, “In our, opinion if evidence to establish one of those things is
lacking it would not be legitimate to infer that the accused is guilty of taking the minor
out of the keeping of the lawful guardian merely because after she has actually left her
guardian's house or a house where her guardian had kept her, joined the accused and the
accused helped her in her design not to return to her guardian's house by taking her along
with him from place to place”.
➢ There is not a word in the deposition of Savitri from which an inference could be drawn
that she left the house of K Natarajan at the instance or even a suggestion of the
appellant. Savitri has stated that she had decided to marry the appellant and insisted the
appellant accordingly.
➢ In this case, there was no taking. S. Varadrajan was acquitted. There was no offence
under section 363, IPC.
Case - Thakorlal D. Vadgama v. State of Gujarat, 1973
Fact - Thakorilal D Vadgama, an industrialist, had a factory at Bunder Road for manufacturing
oil engines. Mohini was a schoolgirl of immature understanding having entered her 16th year.
Vadgama and Mohini developed a relationship, which was found by the parents of Mohini.
Out of emotion she wrote letters to the appellant exaggerating incidents of rebuking by her
mother and beating. The appellant had come to know about the frame of her mind disclosed from
the letters. With that view he told Mohini to come to his house and ad ded that he would keep her
with him permanently. This possibly caught the imagination of the girl, and the result was that
she left her father’s house with bare clothes on her body and with schoolbooks and went straight
to the appellant.
He kept her in the garage of his bungalow for 2 days, tried to hide her from the police and her
parents and had already made attempt to put the police and parents of Mohini on the wrong track.
There is no scope for an inference other than the inference that Mohini was kidnapped from
lawful guardianship, with an intention to seduce her to illicit inter-course. The intention
contemplated by section 366 of the Indian Penal Code is amply borne out by these
circumstances.
Issue – Whether Thakorilal D Vadgama would be convicted for the kidnaping even the girl left
her parent’s house out of her own accord.

➢ Taking means “to cause to go”, “to escort” or “to get into possession”. Taking means
physical taking, but not necessarily by use of force or fraud. It is not confined only to use
of force, actual or constructive.
➢ Enticement can take many forms, difficult to visualise and describe exhaustively; some of
them may be quite subtle, depending for their success on the mental state of the person at
the time when the inducement is intended to operate. This may work immediately or it
may create continuous and gradual but imperceptible impression culminating after some
time, in achieving its ultimate purposes of successful inducement.
➢ If the minor leaves her parental home, influenced by any promise, offer or inducement
emanating from the accused party, then the latter will be guilty of an offence as defined
in section 361I.P.C. even though enticement was not immediate prior.
➢ The statutory language suggests that if the minor leaves her parental home completely
uninfluenced by any promise, offer or inducement emanating from the accused party,
then the latter cannot be considered to have committed the offence as defined in Section
361, I.P.C.
➢ Appeal was dismissed. It means decision of High Court was upheld. He was convicted
under Section 366, IPC.
Case - State of Haryana v. Raja Ram, 1973

Fact - Santosh Rani, aged about 14 years, daughter of Narain Dass, a resident of village Jor
Majra, in the district of Karnal. Jai Narain, a resident of village Muradgarh, close to the village
Jor Majra, once visited the house of Narain Das for treating his ailing sons, Subhas Chander and
Jagjit Singh. When the two boys were cured by Jai Narain, Narain Dass began to treat him as his
Guru.
Jai Narain started paying frequent visits to Narain Das’s house and apparently began to cast an
evil eye on the Santosh Rani. He persuaded her to accompany him by inducing her to believe that
he would keep her like a queen, having nice clothes to wear, good food to eat and a servant at her
disposal.
On one occasion Narain Das happened to see Jai Narain talking to Santosh Rani and felt
suspicious with the result that he requested Jai Narain not to visit his house anymore. Having
been prohibited from visiting Narain Das’s house, Jai Narain started sending messages to the
Santosh Rani through Raja Ram. As desired by Jai Narain, Raja Ram persuaded Santosh Rani to
go with him to the house of Jai Narain.
Santosh Rani, as desired, went to Raja Ram’s house. Raja Ram went to bring Jai Narain, whom
he brought after some time, and handing over the Santosh Rani to Jai Narain.
Issue - Whether Raja Ram could be held to be guilty of offence under section 366, Indian Penal
Code.

➢ The object of section 361 seems as much to protect the minor children from being
seduced for improper purposes as to protect the rights and privileges of guardians having
the lawful charge or custody of their minor wards.
The ingredients of kidnapping from lawful guardian lies in the:
• taking or enticing
• of a minor under the ages specified in this section,
• out of the keeping of the lawful guardian
• without the consent of such guardian.
➢ The consent of the minor who is taken or enticed is wholly immaterial. It is only the
guardian’s consent which takes the case out of its purview.
➢ It is not necessary that the taking or enticing must be shown to have been by means of
force, or fraud. Persuasion by the accused person which creates willingness on the part of
the minor to be taken out of the keeping of the lawful guardian would be sufficient to
attract the section.
➢ Raja Ram actively participated in the formation of the intention of Santosh Rani to leave
her father‘s house, and the facts that the respondent did not go to her house to bring her
and that she was easily persuaded to go with him would not prevent the respondent from
being guilty of the offence. Her consent or willingness to accompany the respondent
would be immaterial and it would be equally so even if the proposal to go with the
respondent had emanated from her.
➢ Decision of High Court was overruled. Raja Ram was convicted for kidnapping. Decision
of ‘Additional Sessions Judge’ was affirmed on both the conviction and sentence.
UNIT - 7
(Principal Reading)
Sexual Offences
Based on the recommendations made by the Justice Verma Committee, the Criminal Law
(Amendment) Act, 2013, came into force with effect from 3 February 2013. The Criminal Law
(Amendment) Act, 2013 made amendments to the Cr PC, 1973, Indian Evidence Act, 1872 and
the IPC, 1860. The Criminal Law (Amendment) Act, 2013 expanded the definition of rape and
substituted new sections for old sections such as sections 370, 375, 376, 376A, 376B, 376C and
376D.
The revised section 375 has widened the definition of the offence of rape.
It, unlike its earlier version, not confined “rape” merely to penile-vaginal penetration (in the
circumstances specified thereunder), but is also extended to
(i) penile-urethra, penile-oral, or penile-anal penetration;
(ii) object-vaginal, object-urethra, or object-anal insertion;
(iii) insertion of a part of body, other than the penis, in the vagina, the urethra or anus of a
woman;
(iv) manipulation of any part of body of a woman for causing vaginal, urethral or anal
penetration and
(v) application by a man of his mouth to the vagina, urethra or anus of a woman or
making her to do so with him or any other person.
The essential ingredients of the offence of rape are:

(i) there must be sexual intercourse, as understood in terms of the provisions of section 375(a) to
(d), with a woman by a man;
(ii) such a sexual intercourse must be under any of the seven circumstances:
(a) against her will;
(b) without her consent;
(c) with consent obtained under fear of death
or of hurt;
(d) consent given under misconception of fact that the man is her husband;
(e) consent given by reason of unsoundness of mind, intoxication or under influence of any
stupefying or unwholesome substance;
(f) with a woman under eighteen years of age, with or without her consent; or
(g) with a woman who is unable to communicate her consent.
Analysis:
➢ Section 375 of Indian Penal Code makes an act both- ‘against her will’ and ‘without her
consent’, culpable.
➢ ‘Against her will’: When something is done against the will of the person, the element of
active opposition is absent. The word ‘will’ implies the faculty of reasoning power of
mind that determines whether to do an act or not.
➢ On the other hand, the expression ‘without her consent’ would comprehend an act of
reason accompanied by deliberation.
➢ ‘consent’ means an unequivocal voluntary agreement when the person by words, gestures
or any form of non-verbal communication, communicates a willingness to participate in
the specific sexual act. Thus, to absolve a person of criminal liability, consent must be
given freely and it must not be obtained by fraud or by mistake or under a misconception
of fact.
Clause 3
Clause (3) of section 375 stipulates that consent obtained by putting the woman or any person in
whom she is interested, in fear of death or of hurt is not consent and hence, the act would amount
to rape. The fear which led to her consent for sexual intercourse must be of death or of hurt to
herself to another person she is interested in.
Clause 4
Fourthly—With her consent, when the man knows that he is not her husband and that her
consent is given because she believes that he is another man to whom she is or believes herself to
be lawfully married.
If a girl does not resist intercourse in consequence of misapprehension this does not amount to a
consent on her part.
In such a situation, the essence of the clause, i.e. the man knows that he is not her husband and
the woman has been consenting for sexual intercourse believing that he is her husband, is met
with. Such a sexual intercourse becomes non-consensual and it amounts to rape.
Clause 5
Where a man had carnal knowledge of a girl of imbecile mind, and the jury found that it was
without her consent, she being incapable of giving consent from defect of understanding, it was
held that this amounted to rape. Where the accused made a woman quite drunk, and whilst she
was insensible violated her person, it was held that this offence was committed. These cases will
now fall within the mischief of the fifth clause to section 375, IPC, 1860.
Sixthly —With or without her consent, when she is under eighteen years of age.
Seventhly —When she is unable to communicate consent.
354. Assault or criminal force to woman with intent to outrage her modesty—Whoever
assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that
he will there by outrage her modesty, 1[shall be punished with imprisonment of either
description for a term which shall not be less than one year but which may extend to five years,
and shall also be liable to fine.
The essential ingredients of the offence under section 354, IPC, 1860 are as under:
(1) That the person assaulted must be a woman.
(2) Accused must have used criminal force on her intending thereby to outrage her modesty.
(3) Knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence
without any deliberate intention of having such outrage alone for its object.
Modesty Meaning—
The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux
of the matter.
The reaction of the woman is very relevant, but its absence is not always decisive. Modesty is an
attribute associated with female human beings as a class. The ultimate test for ascertaining
whether the modesty of a woman has been outraged, assaulted or insulted is that the action of the
offender should be such that it may be perceived as one which is capable of shocking the sense
of decency of a woman.
The word “modesty” is not to be interpreted with reference to the particular victim of the act, but
as an attribute associated with female human beings as a class. It is a virtue which attaches to a
female on account of her sex.
In State of Punjab v Major Singh, a three-Judge Bench of the Supreme Court considered the
question — Whether modesty of a female child of seven and half months can also be outraged.
The majority view was in the affirmative. Bachawat, J, on behalf of majority, opined as:
The offence punishable u/s. 354 is an assault on or use of criminal force to a woman with the
intention of outraging her modesty or with the knowledge of the likelihood of doing so. The
Code does not define ‘modesty’. What then is a woman’s modesty? … The essence of a
woman’s modesty is her sex. The modesty of an adult female is written large on her body.
Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty
capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty
commits an offence punishable u/s. 354.
The culpable intention of the accused is the crux of the matter. The reaction of the woman is very
relevant, but its absence is not always decisive, as, for example, when the accused with a corrupt
mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the
spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the
act; nevertheless, the offender is punishable under the section.
CASES
Case - Kanwar Pal Singh Gill v. State (Admn., U.T.
Chandigarh) through Secy., 2005
Fact - On July 29, 1988, Mrs. Rupan Deol Bajaj, an IAS Officer belonging to the Punjab Cadre
and then working as the Special Secretary, Finance, lodged a complaint with the Inspector
General of Police, Chandigarh Union Territory alleging commission of offences (under Sections
341, 342, 352, 354, and 509 of the IPC) by Mr. K.P.S. Gill, the Director General of Police,
Punjab on July 18, 1988 at a dinner party.
K.P.S.Gill had slapped on her posterior (Butt) part of body during dinner party. She was at a
dinner party along with her husband. Treating that complaint as the FIR, a case was registered by
the Central Police Station, Sector 17, Chandigarh and investigation was taken up.
Thereafter on November 22, 1988, her husband Mr. B.R. Bajaj, who also happens to be a senior
I.A.S. officer of the Punjab Cadre, lodged a complaint in the Court of the CJM for the same
offences, alleging, inter alia, that Mr. Gill being a high-ranking Police Officer, the Chandigarh
Police had neither arrested him nor conducted investigation in a fair and impartial manner and
apprehending that the Police would conclude the investigation by treating the case as untraced he
was filing the complaint.
Both the F.I.R. and the complaint were quashed by order of the High Court on May 29, 1989, on
the grounds of non-cognizable offence, application of Section 95 of IPC, fake allegations and
unreasonable delay of 11 days in lodging the F.I.R.
The Supreme Court directed the learned Chief Judicial Magistrate, Chandigarh to take
cognizance upon the police report in respect of the offences under Sections 354 and 509 IPC and
try the case himself in accordance with law. Both appeals were allowed. The decision of the
High Court was overruled.
CJM convicted KPS Gill and awarded punishment of imprisonment for a period of three months
and pay a fine of Rs.500.
In the appeal preferred by the accused, the Sessions Judge confirmed the conviction, but altered
the sentence and the accused was directed to be released on probation in lieu of custodial
sentence. The fine was enhanced to Rs.50,000 with a further direction to pay half of it to the
complainant.
The accused challenged the same in the revision before the High Court. The High Court did not
interfere with the conviction of the accused under Section 354 and Section 509. However, the
fine was enhanced to Rs.2,00,000/- and the entire amount was directed to be paid to the
prosecutrix.
Neither K P S Gill nor Mrs. Rupan Deol Bajaj was satisfied with the decision of the High Court.
KPS Gill was not satisfied because he was convicted by the High Court. Mrs. Rupan Deol Bajaj
was not satisfied because nominal punishment was awarded. Both appeals were clubbed together
and decided.

➢ It is clear that the behaviour of the accused on the date of the incident was not consistent
with the high standard expected of a topranking police officer.
➢ The findings of the various courts is to the effect that the accused gently slapped on the
posterior of the prosecutrix in the presence of some guests.
➢ The accused being a police officer of the highest rank should have been exceedingly
careful and failure to do so and by touching the body of the complainant with culpable
intention he committed the offence punishable under Section 354 and 509 IPC.
➢ It is proved that the accused used criminal force with intent to outrage the modesty of the
complainant and that he knew fully well that gently slapping on the posterior of the
prosecutrix in the presence of other guests would embarrass her.
➢ Knowledge can be attributed to the accused that he was fully aware that touching the
body of the prosecutrix at that place and time would amount to outraging her modesty.
➢ Had it been without any culpable intention on the part of the accused, nobody would have
taken notice of the incident. The prosecutrix made such a hue and cry immediately after
the incident and the reaction of the prosecutrix is very much relevant to take note of the
whole incident.
➢ The incedent happened in 1988. Despite the accused holding a high positition in the State
Police, the various courts found him guilty of the offence punishable under section 354
and section 509 and that by itself is a setting a model for others and would enhance the
faith in judicial system.
➢ Both appeals were dismissed. Neither punishment was enhanced, nor was conviction or
order of amount to pay money changed. The accused had completed probation without
any breach.
Case - Tukaram v. State of Maharashtra, 1979

Fact - Mathura’s parents died when she was a child and she was living with her brother, Gama.
Both worked as laborers to earn a living. Mathura used to go to the house of Nunshi for work and
during her visits to that house she met Ashok who was the sister’s son of Nunshi. The contact
developed into an intimacy between Ashok and Mathura. Both decided to become husband and
wife.
On 26th of March 1972 Gama lodged a report at the police station alleging that Mathura had
been kidnapped by Nunshi, her husband Laxman and Ashok. The report was recorded by Head
Constable Baburao, at whose instance all the three persons as well as Mathura was brought to the
police station at about 9 p.m. and the statements of Ashok and Mathura were recorded. By that
time, it was 10.30 p.m. and Baburao asked all the persons to leave with a direction to Gama to
bring a copy of the entry regarding the birth date of Mathura.
After Baburao left, all are started to leave the police station. Tuka Ram & Ganpat (constable),
however, asked Mathura to wait at the police station and told her companions to move out. The
direction was complied with. Immediately thereafter Ganpat took Mathura into a latrine room
and intercourse with her and thereafter dragged her to a Chapri on the back side and did again.
Thereafter, Tukaram fondled with her private parts but could not intercourse with her because he
was in a highly intoxicated condition.
Issue – Whether sexual intercourse by Ganpat was without consent?

Whether Tuka Ram had committed offence of molestation?

➢ There could be no fear because the girl was taken away by Ganpat from amongst her near
and dear ones. Even mere fear is not sufficient. Fear must be for death or hurt. In this
case she had fear that her boyfriend and his relative would not accept her.
➢ High Court concluded that there was fear. But High Court did not say that fear was for
death or hurt. So merely such fear did not vitiate consent.
➢ On the point of consent of the victim Supreme Court said that no marks of injury were
found on the person of the girl after the incident and their absence goes a long way to
indicate that the alleged intercourse was a peaceful affair. So, it was matter of “passive
submission”.
➢ Burden of proof lies over prosecution to prove that sexual intercourse was without
consent or consent was given under fear.
➢ There was no direct evidence. Case was decided by High Court on the basis of
circumstantial evidence. There were more conclusion than one.
➢ In this case appellants were acquitted.
Case - State of Punjab v. Gurmit Singh, 1996

Fact - A girl below the age of 16 years was kidnapped by Gurmit Singh and other 3 accused
when she was returning after appearing in Exam of 10th class at 12.30 p.m. on March 30, 1984.
She was taken to the ‘kotha’ of the Tubewell and raped. She was again raped at night.
Next morning, they dropped her in front of school. After appearing in exam, she went to home
and narrated all facts to her mother and mother narrated these facts to father. Father immediately
called Panchayat, but he was unable to get justice from Panchayat. Panchayat tried to
compromise. Finally, FIR was lodged.
Issue - Whether “Rape” had been committed by accused?

➢ A rapist not only violates the victim’s privacy and personal integrity, but inevitably
causes serious psychological as well as physical harm in the process. Rape is not merely a
physical assault. It is often destructive of the whole personality of the victim. A murderer
destroys the physical body of his victim, a rapist degrades the very soul of the helpless
female.
➢ Even if the prosecutrix has been promiscuous in her sexual behavior earlier, she has a
right to refuse to submit herself to sexual intercourse to anyone and everyone because she
is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.
➢ Even victim was accustomed to sexual intercourse, no such inference like the victim
being a girl of “loose moral character” is permissible to be drawn from that circumstance
alone. No stigma, like the one as cast in the present case should be cast against such a
witness by the Courts, for after all it is the accused and not the victim of sex crime who is
on trial in the Court.
➢ Section 327 of Cr.P.C. 1973 must always keep in mind. Trial of rape cases in camera
should be the rule and an open trial in such cases is an exception. It would enable the
victim of crime to be a little comfortable and answer the questions with greater ease in
not too familiar a surroundings.
➢ The victim is required to repeat again and again the details of the rape incident not so
much as to bring out the facts on record or to test her credibility but to test her story for
inconsistencies with a view to attempt to twist the interpretation of events given by her so
as to make them appear inconsistent with her allegations. The Court, therefore, should not
sit as a silent spectator while the victim of crime is being cross-examined by the defence.
It must effectively control the recording of evidence in the Court.
➢ Evidence of the victim of sexual assault is enough for conviction and it does not require
any corroboration unless there are compelling reasons for seeking corroboration. The
court may look for some assurances of her statement to satisfy judicial conscience.
➢ The Court held that the delay in filing FIR for sexual offence may not be even properly
explained, but if found natural, the accused cannot be given any benefit thereof.
The alarming frequency of crime against women led the Parliament to enact Criminal Law
(Amendment) Act, 1983 to make the law of rape more realistic:
• By the Amendment Act, Sections 375 and 376 were amended and certain more penal
provisions were incorporated for punishing such custodians who molest women under
their custody or care.
• Section 228 A was also inserted which prohibits disclosure of identity.
• Section 114-A was also added in the Evidence Act for drawing a conclusive presumption
as to the absence of consent in certain prosecutions for rape, involving such custodians.
• Section 327 of the Code of Criminal Procedure, which deals with the right of an accused
to an open trial, was also amended by the addition of sub-sections 2 and 3 after
renumbering the old Section as sub-section (1).
They were convicted for offences under Sections 363/366/368 and 376 IPC. The name of the
victim was not disclosed due to Section 228A, IPC.
UNIT - 8
(Principal Reading)
Joint Liability and Group Liability
Vicarious liability/Group liability

The principle of criminal liability is that the person who commits an offence is responsible and
he can only be held guilty. However, the IPC, through sections 34 and 149, makes an exception
to the rule by imposing criminal liability on the perpetrator and his associates, who in
“furtherance of the common intention” or “prosecution of common object”, participated in the
commission of the crime. In such situation, each one of them becomes jointly liable.
Sections 34
Ingredients:
1) Two or more persons.
2) They must have a common intention to commit an offence.
3) Participation by all the accused in doing act or acts in furtherance of that common intention.
The section is only a rule of evidence and does not create a substantive offence. section 34 will
come into play even when no specific charge thereunder is leveled against accused if evidence
shows that there was pre-arranged plan to commit a criminal act. Absence of charge under
section 34 is not fatal by itself unless prejudice to the accused is shown.
The distinctive feature of the section is the element of participation in action.
In order to invoke the principle of joint liability in the commission of a criminal act as laid down
in Section 34, the prosecution should show that the criminal act in question was done by one of
the accused persons in furtherance of the common intention of all. If this is shown, the liability
for the offence may be imposed on any one of the persons in the same manner as if the act was
done by him alone. It may be difficult to procure direct evidence to prove the intention of an
individual, and in most cases it has to be inferred from the facts and relevant circumstances of
the case. The common intention may be through a pre-arranged plan, or it may be generated just
prior to the incident.
Section 149
There are two essential ingredients of Section 149, viz.,
(1) commission of an offence by any member of an unlawful assembly and
(2) such offence must have been committed in prosecution of the common object of that
assembly or must be such as the members of that assembly knew to be likely to be committed.
The meaning of the word ‘object’ means the purpose and, in order to make it ‘common’, it must
be shared by all. Thus, the object is the goal that the members of the assembly set out to
accomplish.
The word "knew" used in the second limb of the section implies something more than a
possibility and it cannot be made to bear the sense of "might have been known". Positive
knowledge is necessary.
Section 149 is wider than Section 34. In it the joint liability is founded on 'common object'; in
Section 34 on common intention'. Both sections deal with liability for an offence not committed
by the person charged. Section 149 creates a specific offence and deals with the punishment of
that offence.
What constitutes an unlawful assembly is given in Section 141

Section 141
Ingredients
An 'unlawful assembly is an assembly of five or more persons if their common object is
a) To overawe by criminal force
i) The Central Government, or
ii) The State Government, or
iii) The Legislature, or
iv) Any public servant in the exercise of lawful power
b) To resist the execution of law or legal process.
c) To commit mischief, criminal trespass, or any other offence.
d) By criminal force
i) To take or obtain possession of any property, or
ii) To deprive any person of any incorporeal right, or
iii) To enforce any right or supposed right.
e) By criminal force to compel any person –
i) To do what he is not legally bound to do, or
ii) To omit what he is legally entitled to do.
CASES
Case - Suresh v. State of U.P., 2001
Fact - Ramesh and Suresh were brothers. Ramesh was living in his house along with his wife
and four children. There was some land disputes between Ramesh and Suresh. Suresh along with
his brother-in-law made plan for killing of all members of family of Ramesh. In midnight Suresh
along with his brother-in-law Ramji attacked over family of Ramesh and killed all members
except Jitendra (Seven Years) who also suffered injuries but fortunately survived. Pavitri Devi
w/o Suresh was also charged for exhortation. Suresh, Ramji and Pavitri were charged under
sections 302 r/w 34.
Issue - Whether Section 34 will be applicable in this case?

➢ According to Section 32 ‘act’ includes omission and according to Section 33 ‘act’
denotes as well as series of acts as single act. This means a criminal act can be a single
act or it can be the conglomeration of a series of acts.
➢ There are two types of vicarious liability namely; (a) vicarious liability in the criminal
jurisprudence (b) vicarious liability in the civil jurisprudence (Law of Torts). Section 34
of IPC recognizes the principle of vicarious liability in the criminal jurisprudence.
➢ It makes a person liable for action of an offence not committed by him but by another
person with whom he shared the common intention.
➢ It is a rule of evidence and does not create a substantive offence. It means this Section
itself does not constitute any offence. The only use of this Section is to prove the liability
of the co-accused. So, if there is only one person who has committed crime this Section
will not be applicable.
➢ Common intention can be formed previously or in the course of occurrence and on a spur
of moment. The existence of a common intention is a question of fact in each case to be
proved mainly as a matter of inference from the circumstances of the case.
➢ Participation of all is necessary. If there is only common intention but there is no
participation, person may be liable under Section 109 or 120B but his matter will not
cover under Section 34. Even exhortation to another accused would amount to
participation.
➢ No need of substantial act. It is enough that the act is only for guarding the scene. Here
covert act means illegal omission. According to Section 32 act includes illegal omission.
The act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to
do certain act in certain situation can amount an act.
➢ Hence an act, whether overt or covert is indispensable to be done by the co-accused to be
fastened with the liability.
Case - Mizaji v. State of U.P., 1959

Fact - In this case there was a dispute regarding possession of field. One day Tez Singh (with
spear), his son Mizaji (with pistol in the fold of dhoti) and three other persons - Maiku ,Subedar
and Machal (with lathis) planned for acquisition of property forcefully. They reached the field
along with their arms.
They divided themselves into three parties. Maiku was in the field where jowar was sown and he
was ploughing it. Mizaji, Subedar and Machal were in the sugar field and cutting the crop. Tej
Singh was keeping watch. The victim and his parties reached and started to protest to Tej Singh.
Thereupon, all the members of Tej Singh’s party gathered at the place where Tej Singh was and
asked the complainants “to go away otherwise they would be finished”, but they refused to go.
Thereupon Tej Singh asked Mizaji to fire at them and Mizaji fired the pistol which he was
carrying in the fold of his dhoti as a result of which Rameshwar was injured, fell down and died
hour later.
Issue - What is the scope of Section 149, Second part?

What would be liability of other if one killed a person in pursuance of common object?

➢ Two of them were armed, one with a spear and the other with a pistol. The rest were
armed with lathis. The evidence is that when the complainant’s party objected to what the
appellants did, they all collected together and threatened the complainant’s party telling
them to go away otherwise they would be finished, and this evidence was accepted.
➢ The circumstances show that the appellants must have known that Mizaji was carrying a
pistol.
➢ The fact that the appellants went to take possession in the absence of the complainants
did not show that the common object was not to take forcible possession as proceedings
were going on between the parties in the Revenue Court for possession over the field and
the appellants had gone armed with lethal weapons prepared to overcome the opposition
which they knew they would meet.
➢ From this conduct it appears that members of the unlawful assembly were prepared to
take forcible possession at any cost and the murder must be held to be immediately
connected with the common object and therefore the case falls under section 149 and they
are all guilty of murder.
➢ Supreme Court said, “In our opinion the courts below have rightly imposed the sentence
of death on Mizaji. Other appellants being equally guilty under Section 149, Indian Penal
Code, have been rightly sentenced to imprisonment for life. The appeals must therefore
be dismissed”.
Case - Maina Singh v. State of Rajasthan, 1976

Fact - The deceased Amar Singh and accused Maina Singh and his three sons Hardeep Singh,
Jeet Singh and Puran Singh used to live in Ganganagar district of Rajasthan. It was alleged that
the relations between Amar Singh and Maina Singh were strained, as Maina Singh suspected that
Amar Singh was giving information about his smuggling activities.
Amar Singh and his son Ajeet Singh were having some construction work in his house and had
engaged Isar Ram as a mason. It is alleged that at that time Maina Singh, and his three sons
Hardeep Singh, Jeet Singh and Puran Singh came along with Narain Singh. Maina Singh was
armed with a 12-bore gun, Puran Singh with a ‘takua’ and the other three with ‘gandasis’. Maina
Singh gun shots hit Ajeet Singh on his legs, and he jumped into a dry water course which was
nearby to take cover. Amar Singh ran towards the sugarcane field crying for help but was chased
by the accused. Ajeet Singh thereupon ran away and ultimately went and lodged a report at
Anoopgarh Police Station.
The five accused followed Amar Singh. Maina Singh fired his gun at Amar Singh, and he fell
down. The other accused went near him and gave blows by gandasi, and Maina Singh gave a
blow with the butt end of his gun. Amar Singh succumbed to his injuries on the spot, and the
accused ran away.
Issue - Whether one person (Maina Singh) can be convicted under Section 34 or Section 149, in
the circumstances when other accused (four accused in this case) had been acquitted, and also no
direct or circumstantial evidence to show that the offence was committed by the appellant along
with any other unnamed person?
➢ Supreme Court observed, the charge in the present case related to the commission of the
offence of unlawful assembly by the appellant along with the other named four co-
accused, and with no other person. The trial in fact went on that basis throughout. There
was also no direct or circumstantial evidence to show that the offence was committed by
the appellant along with any other unnamed person.
➢ So, when the other four co-accused have been given the benefit of doubt and have been
acquitted, it would not be permissible to take the view that there must have been some
other person along with the appellant Maina Singh in causing the injuries to the deceased.
It was as such not permissible to invoke Section 149 or Section 34 IPC Maina Singh
would accordingly be responsible for the offence, if any, which could be shown to have
been committed by him without regard to the participation of others.
➢ Maina Singh was guilty of voluntarily causing grievous hurt to the deceased and his son
by means of an instrument for shooting, and was guilty of an offence under Section 326.
➢ Conviction of Maina Singh under Section 302/34 IPC is altered to one under Section 326
IPC. He was liable only for his act. He was not liable for acts of other persons.
➢ It was not permissible for the High Court to invoke Section 149 or Section 34, IPC.
UNIT - 9
(Principal Reading)
Attempt
Stages of crime
The crime involves 4 different stages.
1. Intention
2. Preparation
3. Attempt
4. Completion of crime.
If a person commits a crime voluntary or after preparation the doing it involves four different
stages. In every crime, there is first intention to commit it, secondly preparation to commit it and
fourthly the accomplishment. The following are the stages of crime.
(1) Intention
Intention is the mental element of a crime. One of the most important ingredients of a crime is
Mens rea i.e. an intention to do a wrongful act knowing the evil consequences of the same.
However, It is very difficult to prove the intention of anyone, just having an intention will not
constitute an offence.
(2) Preparation
Preparation is the second stage of a crime it means to arrange the necessary measures for the
commission of an intended criminal act. In general, preparation is not punishable, because a
preparation apart from its motive would generally be a harmless act. It would be impossible in
most cases to show that the preparation was directed to a wrongful end, or was done with an evil
motive, or intent, and it is not the policy of the law to create offences that in most cases it would
be impossible to bring home the culprit, or which might lead to harassment of innocent persons.
There are however exceptional cases, wherein the contemplated offence may be so grave that it
would be of the utmost importance to stop it at its initial stage and punish it at the preparatory
stage itself. These are preparations to:
(i) collecting arms, etc., with the intention of waging war against the Government of India
(section 122, IPC);
(ii) committing depredation on territories of power or at peace with the Government of India
(section 126, IPC);
(iii) making or selling or being in possession of instruments for counterfeiting coins or
Government stamps (sections 223-235 and 257, IPC);
(iv) possession of counterfeit coin, Government stamp, false weight, or measure (sections 242,
243, 259 and 266, IPC); and
(v) Making preparation to commit dacoity (section 399, IPC).
(3) Attempt
The general meaning of attempt is an effort to achieve tasks or activities.
Attempt Under IPC
The attempt is not defined in the Indian penal code. S. 511 of the IPC only dealt with punishment
for attempting to commit offences. This section deals with the one-half of imprisonment for life
or one- half of fine as provided for offences or both. According to MAYNE: An attempt is a
direct movement towards commission of an act after preparation has been made.
“Attempt” has been dealt with in three ways under IPC

1. General provisions
s. 511 and compare with chapter IV by virtue of S. 40 of the IPC and same as S. 34 both
sections cannot stand on its own.
2. Specific Provisions.
S. 307 - Offence of attempt murder
S. 308 - Offence of attempt culpable homicide
S. 309 - Offence of attempted suicide
S. 393 - Offence of attempted robbery.
3. Provisions which contain the offence and attempt to commit the offence and its
prescribed punishment
S. 121- Waging war
S. 385 & 386 Extortion etc..
Tests to determine Attempt:

There are various tests to determine what constitutes an attempt to commit a crime and they are
applied depending on the facts of each case.
➢ The Proximity Rule
According to this test/rule an act or series of acts constitute an attempt if the offender has
completed all or at any rate all the more important steps necessary to constitute the offence, but
the consequence which is the essential ingredient of the offence has not taken place. In order to
designate an act or series of acts as attempt to commit an offence, the act or series of acts must
be sufficiently proximate to the accomplishment of the intended substantive offence. In other
words, an act or series of acts must be sufficiently proximate and not remotedly connected, to the
crime intended.
➢ The Doctrine of Locus Poenitentiae
The doctrine of locus poenitentiae denotes the possibility of person who, having made
preparations to commit an offend actually backs out of committing it, due to change of heart or
out of any other type of compulsion or fear. Therefore, an act will amount to a mere preparation
and not an attempt, if the person of his own accord, drops the idea of committing a crime before
the doing of a criminal act. In other words, as long as the steps taken by the person leave
opportunity for a reasonable expectation that he might, either of his own because of fear of
consequences that he might face or for whatever reason, desist from going further for the
contemplated act, then in law, he will be treated at the stage of preparation and criminal liability
will not be fastened on him. However, if he stops from moving further due to his being detected
or because the police officer was at his elbow, then he ceases to be a beneficiary of the doctrine
of locus poenitentiae, because thereafter he has no time for repentance.
➢ The Equivocality Test
The equivocality test, a continuation of the proximate rule and the doctrine of locus poenitentiae,
suggests, that an act done towards the commission of the offence would amount to an attempt to
commit an offence, if and only if, it indicates beyond reasonable doubt what is the end towards
which it is directed" i.e. if it unequivocally indicates the intention of the doer to accomplish the
criminal object. In other words, the act must be unequivocally referable to the commission of
crimes and must speak for themselves.
The position of attempt under Sec 307 vis-à-vis Section 511 of the IPC
Section 511 talks about the general nature of the crime and Section 307 talks about the particular
nature. Section 511 is wider than section 307. It is not the last penultimate act. It may be an act
towards the commission of the offence. It takes care of cases not covered under section 307, 308
and 309.
(4) Accomplishment Or Completion
The last stage in the commission of an offence is its accomplishment or commission. It means
that if the accused succeeds the attempt to commit the crime, he will be guilty of the complete
offence and if his attempt is unsuccessful he will be guilty of an attempt only.
CASES
Case - Asgarali Pradhania v. Emperor, 1933
Fact - The complainant was 20 years of age. She was living in her father’s house. Asgarali
Pradhania was a neighbour who had lent money to her father and was on good terms with him.
He was a married man with children. According to the complainant he promised to marry her. As
a result, sexual intercourse took place, and she became pregnant. She asked him to fulfil his
promise, but he demurred and suggested that she should take drugs to procure a miscarriage.
One night he brought her a bottle half full of a red liquid, and a powder. After he had gone, she
tasted the powder, but finding it salty and strong, she had spat it out. The following night the
appellant came again and finding that she had not taken either the powder or the liquid, he
pressed her to take them, but she refused saying that she was afraid for her own life.
Thereupon he approached her with the bottle and took hold of her chin. But she snatched the
bottle from him and cried out loudly, and her father and some neighbors came, the appellant fled.
The police were informed, and upon analysis, sulphate of copper was detected in the powder, but
the amount was not ascertained. No poison was detected in the liquid.
Issue - Whether activity of accused crossed stage of preparation?

➢ It is beyond dispute that there are four stages in every crime, the intention to commit, the
preparation to commit, the attempt to commit, and if the third stage is successful, the
commission itself. Intention alone, or intention followed by preparation are not sufficient
to constitute an attempt. But intention followed by preparation, followed by any act done
towards the commission of the offence is sufficient. Act done towards the commission of
the offence are the vital words in this connection.
➢ In each of the illustrations to Section 511, there is not merely an act done with the
intention to commit an offence which is unsuccessful because it could not possibly result
in the completion of the offence, but an act is done 'towards the commission of the
offence,' that is to say the offence remains incomplete only because something yet
remains to be done, which the person intending to commit the offence is unable to do, by
reason of circumstances independent of his own volition.
➢ If there is fault of accused and act could not completed, that act will not amount to
attempt. There is difference between ‘does an act towards the commission of the
offence’, and ‘an act towards the commission of something which cannot result in hurt to
another’.
➢ There are following examples which do not come under category attempt:
• If one who believes in witchcraft puts a spall on another575, or
• burns him in effigy, or
• curses him with the intention of causing him hurt, and believing that his actions will have
that result,
• if a man with intent to hurt another by administering poison prepares and administers
some harmless substance, believing it to be poisonous, he cannot be convicted of an
attempt to do so.
➢ In these examples accused is not liable for attempt because what he does is not an act
towards the commission of that offence, but an act towards the commission of something
which cannot, according to ordinary human experience result in hurt to another, within
the meaning of the Penal Code.
➢ His failure to cause hurt is due to his own act or omission, that is to say, his act was
intrinsically useless, or defective, or inappropriate for the purpose he had in mind, owing
to the undeveloped state of his intelligence, or to ignorance of modern science. His failure
was due, broadly speaking, to his own volition.
➢ What he did was not an act done towards the commission of the offence of causing a
miscarriage. It was only preparation. It was not an attempt. Neither the liquid nor the
powder being harmful, they could not have caused a miscarriage. The appellant’s failure
was not due to a factor independent of himself.
➢ High Court observed that Asgarali Pradhania cannot in law, be convicted of an attempt to
cause a miscarriage. He was acquitted.
Case - Abhayanand Mishra v. State of Bihar, 1961

Fact - Abhayanand Mishra applied to the Patna University for permission to appear at the 1954
M. A. Examination in English as a private candidate, representing that he was a graduate having
obtained his B.A. Degree in 1951 and that he had been teaching in a certain school. In support of
his application, he attached certain certificates purporting to be from the Headmaster of the
School, and the Inspector of Schools. The University authorities accepted the appellant’s
statements and gave permission and wrote to him asking for the remission of the fees and two
copies of his photograph.
Proper admission card for him was dispatched to the Headmaster of the School. Information
reached the University about the appellant’s being not a graduate and being not a teacher.
Inquiries were made and it was found that the certificates attached to the application were forged,
that the appellant was not a graduate and was not a teacher.
Issue - Whether acts done be Abhayanand Mishra only amount to preparation, or he had crossed
stage of attempt?

➢ Supreme Court said that we may summarize our views about the construction of s. 511,
Indian Penal Code, thus a person commits the offence of attempt to commit a particular
offence when:
• (i) he intends to commit that particular offence; and
• (ii) he, having made preparations and with the intention to commit the offence, does an
act towards its commission; such an act need not be the penultimate act towards the
commission of that offence but must be an act during the course of committing that
offence penultimate act means final act.
➢ The Court held that preparation was complete when the accused prepared the application
for submission to the university and that the moment, he had dispatched.
➢ There are following essential ingredient of section 415:
• (1) Deception- There must be deception of any person.
• (2) Property - fraudulently or dishonestly induces the person so deceived to deliver any
property to any person, or to consent that any person shall retain any property,
• (3) Injury (To do or omit to do) – intentionally induces the person so deceived 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.
➢ Supreme Court said, There is no doubt that the appellant, by making false statements
about his being a graduate and a teacher, in the applications he had submitted to the
University, did deceive the University and that his intention was to make the University
give him permission and deliver to him the admission card which would have enabled
him to sit for the M.A. Examination. This card is “Property”. The appellant would
therefore have committed the offence of ‘cheating’ if the admission card had not been
withdrawn due to certain information reaching the University.
➢ He was convicted for Section 420 read with Section 511 on the ground that he had
crossed stage of preparation for committing offence of cheating.
Case - Om Parkash v. State of Punjab, 1962
Fact - The appellant was charged and convicted by the session’s court under section 307, IPC,
for attempt to murder his wife, Bimla Devi, by deliberately and systematically starving her for
days together. The High Court on appeal confirmed the conviction. Hence this appeal.
Due to the strained relations between the appellant and his wife, the wife was deprived of food
and was not permitted to go out of the house. She was severely beaten. When she finally
managed to escape and visited the district hospital, the lady doctor, on examining her, diagnosed
her condition as critical.
Issue - Whether if Bimla Devi had been deprived of food for a certain period, the act of so
depriving her, will come under section 307? as that act could not, by itself, have caused her
death.

➢ SC observed that there is no difference between meaning of attempt in context of Section
307 and Section 511. In both cases, penultimate act is not necessary. It can be inferred
from illustration (d) of Section 307 also.
➢ According to Section 32 act includes omission. According to section 33, the act includes
series of acts.
➢ Section 307, Illustration (d) says, “A, intending to murder Z, by poison, purchases poison
and mixes the same with food which remains in A’s keeping; A has not yet committed
the offence in this section. A places the food on Z’s table or delivers it to Z’s servants to
place it on Z’s table. A has committed the offence defined in this section”.
➢ The act must be done with the intent or knowledge requisite for the commission of the
offence of murder. The expression “by that act” does not mean that the immediate effect
of the act committed must be death. Such a result must be the result of that act whether
immediately or after a lapse of time.
➢ Ratio of Anhayanand Mishra Case was followed in this case and observed that
penultimate act is not necessary to constitute offence under section 307 and act during
curing course is sufficient.
➢ Conviction under section 307 of Om Prakash was upheld. He had crossed stage of
preparation for committing murder of Vimla Devi. Supreme Court said that even there
was chance to survive two or more days without food, but for attempt last act or
penultimate act is not necessary. Once any act is done after preparation with intention to
commit offence is sufficient. Act during course is sufficient.
State of Maharashtra v. Mohd. Yakub, 1980
Fact - The prosecution alleged that on the night of the occurrence the respondents carried in a
truck and a jeep silver ingots some of which were concealed in a shawl, and some others hidden
in saw-dust bags from Bombay to a lonely creek nearby and that when the ingots were unloaded
near the creek the sound of the engine of a mechanized sea-craft from the side of the creek was
heard by the Customs officials.
The accused was convicted by the trial court for attempting to smuggle silver out of India in
contravention of Customs Act 1962 and Foreign Exchange Regulation Act 1947. The sessions
court in appeal acquitted the accused on the ground that the facts proved by the prosecution fell
short of establishing that the accused had attempted to export silver in contravention of the law,
because the facts proved, showed no more than that the accused had only made preparations for
bringing this silver to the creek and had not yet committed any act amounting to a direct
movement towards the commission of the offence.
Issue - Whether accused has took the “attempt” to smuggle the silver out of India?

➢ In order to constitute ‘an attempt’, first, there must be an intention to commit a particular
offence, second, some act must have been done which would necessarily have to be done
towards the commission of the offence, and third, such act must be ‘proximate’ to the
intended result. The measure of proximity is not in relation to time and action but in
relation to intention.
➢ In other words, the act must reveal, with reasonable certainty, in conjunction with other
facts and circumstances and not necessarily in isolation, an intention, as distinguished
from a mere desire or object, to commit the particular offence, though the act by itself
may be merely suggestive or indicative of such intention; but, that it must be, that is, it
must be indicative or suggestive of the intention.
➢ The expression “attempt” within the meaning of the penal provisions is wide enough to
take in its fold any one or series of acts committed beyond the stage of preparation in
moving contraband goods deliberately to the place of embarkation, such act or acts being
reasonably proximate to the completion of the unlawful export.
➢ The fact that the truck was driven upto a lonely creek from where the silver could be
transferred into a sea-faring vessel was suggestive or indicative though not conclusive,
that the accused wanted to export the silver. It might have been open to the accused to
plead that the silver was not to be exported but only to be transported in the course of
inter-coastal trade. But, the circumstance that all this was done in a clandestine fashion, at
dead of night, revealed, with reasonable certainty, the intention of the accused that the
silver was to be exported.
➢ The court allowed the appeal and set aside the acquittal of the accused respondents and
convicted them under Section 135(a) of the Customs Act, 1962 read with Section 5 of the
Imports and Exports Control Act, 1947.
Case - Gian Kaur v. State of Punjab, 1996

Fact - Gian Kaur and her husband Harbans Singh were convicted by the Trial Court under
Section 306, IPC and each sentenced to six years rigorous imprisonment and fine of Rs. 2,000/-,
or, in default, further rigorous imprisonment for nine months, for abetting the commission of
suicide by Kulwant Kaur. On appeal to the High Court, the conviction of both has been
maintained but the sentence of Gian Kaur alone has been reduced to rigorous imprisonment for
three years.
The first argument advanced to challenge the constitutional validity of Section 306 rests on the
decision in P. Rathinam v. Union of India by a Bench of two learned Judges of this Court
wherein Section 309 has been held to be unconstitutional as violative of article 21 of' the
Constitution. It is urged that right to die being included in Article 21 of the Constitution as held
in P. Rathinam declaring Section 309 to be unconstitutional, any person abetting the commission
of suicide by another is merely assisting in the enforcement of the fundamental right under
article 21 and, therefore, section 306 penalizing assisted suicide is equally violative of Article 21.
Issue – Whether 306 of IPC is constitutionally valid?

➢ To give meaning and content to the word ‘life’ in Article 21, it has been construed as life
with human dignity. Any aspect of life which makes it dignified may be read into it but
not that which extinguishes it and is, therefore, inconsistent with the continued existence
of life resulting in effacing the right itself. The ‘right to die’, if any, is inherently
inconsistent with the ‘right to life’ as is ‘death with life’.
➢ ‘Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural
termination or extinction of life and, therefore, incompatible and inconsistent with the
concept of ‘right to life’.
➢ Article 21 is a provision guaranteeing “protection of life and personal liberty” and by no
stretch of imagination can extinction of life be read to be included in the protection of
life.
➢ In certain other jurisdictions, even though attempt to commit suicide is not a penal
offence, yet the abettor is made punishable. The provision there, provides for the
punishment of abetment of suicide as well as abetment of attempt to commit suicide.
Thus, even where the punishment for attempt to commit suicide is not considered
desirable, its abetment is made a penal offence. In other words, assisted suicide and
assisted attempt to commit suicide are made punishable for cogent reasons in the interest
of society.
➢ Supreme Court held that Section 306 and Section 309 both are constitutional, and they
are not violating Article 21. P. Ratthinam Case was overruled by the Constitutional
Bench.
UNIT - 10
(Principal Reading)
Offences of Theft, Extortion, Robbery and Dacoity
Sec 378 - Theft

Essential ingredients:
• Dishonest intention to take the property;
• The property must be moveable;
• It should be taken out of the possession of another person;
• It should be taken without the consent of that person;
• There must be some moving of the property to accomplish it’s taking;
Sec 383 – Extortion
• intentionally putting a person in fear of injury;

• the purpose of which is to dishonestly induce the person put in fear and
• to deliver property or valuable security.
The offence of extortion is intermediary between the offence of theft and robbery. Extortion
becomes robbery, if, the offender at the time of committing the offence puts the person in fear
and commits the extortion by causing fear of instant death, hurt or wrongful restraint. However,
in “robbery”, the property can be removed by force without the person delivering the property.
Section 390 - Robbery

Robbery is an aggravated form of either theft or extortion.
Theft or extortion or attempt to commit any one of the two is an inevitable ingredient for
robbery.
Theft becomes robbery, if, in order to facilitate the committing of theft or in carrying away or
attempting to carry away the stolen property, the offender (i.e., the thief) voluntarily causes or
attempts to cause death, hurt or wrongful restraint or fear of instant death, instant hurt or instant
wrongful restraint.
Extortion is robbery, if, the extortionist at the time of committing the extortion, is in the
immediate presence of the victim and puts the victim in fear of instant death, of instant hurt or of
instant wrongful restraint, either to that person or to some other person. If out of this fear induced
in the victim by the extortionist, he is able to obtain delivery of the thing extorted, then the
offence of extortion is committed.
The explanation to section 390 states that the extortionist is said to be present, if he is
sufficiently near to put the person in fear of instant death, of instant hurt or of instant wrongful
restraint.
Section 391 – Dacoity

Dacoity is nothing but robbery committed by five or more persons.
Essentials of Crime of Dacoity
▪ Five or more people should be concerned in the commission of the offence.
▪ Act must be robbery or attempt to commit robbery.
▪ Five persons must consist of those who themselves commit or attempt to commit robbery
or those who are present and aid the principal actors in the commission or attempt of such
robbery.
CASES
Case - Pyare Lal Bhargava v. State of Rajasthan, 1963
Fact - Ram Kumar Ram obtained permission from the Alwar Government to supply electricity.
Ram Kumar Ram was a friend of Pyarelal Bhargava, who was a Superintendent in the Chief
Engineers Office, Alwar. At the instance of Ram Kumar Ram, Pyarelal Bhargava got the file Ex.
PA/ 1 from the Secretariat and took the file to his house and made it available to Ram Kumar
Ram and some documents were substituted. It was again put in the ‘Office.
Issue - Whether temporary deprivation of document amount to theft?

Whether unlawfully taking the file from the department amount to dishonestly?

➢ Supreme Court observed that it is not necessary that the taking should be of a permanent
character, or that the accused should have derived any profit. A temporary removal of file
from the office of a Chief Engineer and making it available to a private person for a day
or two amounts to the offence of theft.
➢ The file was in the Secretariat of the Department concerned, which was in charge of the
Chief Engineer. The appellant was only one of the officers working in that department
and it cannot, therefore, be said that he was in legal possession of the file.
➢ To commit theft one need not take movable property permanently out of the possession
of another with the intention not to return it to him. It would satisfy the definition if he
took any movable property out of the possession of another person though he intended to
return it later on. Illustrations 378(b) and (l) support this reasoning.
➢ The appellant unauthorizedly took the file from the office and handed it over to Ram
Kumar Ram. He had, therefore, unlawfully taken the file from the department, and for a
short time he deprived the Engineering Department of the possession of the said file.
➢ The loss need not be caused by a permanent deprivation of property but may be caused
even by temporary dispossession, though the person taking it intended to restore it sooner
or later. A temporary period of deprivation or dispossession of the property of another
causes loss to the other.
➢ Monetary loss is not necessary. Pyare Lal Bhargava was liable for theft.
Case - Jadunandan Singh v. Emperor, 1941

Fact - Narain Dusadh and Sheonandan Singh, were returning after the inspection of some fields
when the two petitioners and others assaulted them. The petitioner gave a blow to Narain on the
right leg, and then other people assaulted Sheonandan. Jadunandan, after this, forcibly took the
thumb impression of Narain on one piece of blank paper, and of Sheonandan on three blank
papers. According to these findings, the two petitioners and two others were convicted for
extortion under section 384 of IPC by the lower court.
Issue - Whether Jadunandan had committed offence of extortion?

Whether Jadunandan had committed the offence of theft?

➢ It is clear from the definition of extortion that the prosecution to prove that the victims
Narain and Sheonandan were put in fear of injury to themselves or to others, and further,
were thereby dishonestly induced to deliver paper containing their thumb impressions.
➢ The prosecution story in the present case goes no further than that thumb impressions
were ‘forcibly taken’ from them. The lower courts only speak of the forcibly taking of the
thumb impressions of the victim; and this does not necessarily involve inducing the
victim to deliver papers with his thumb impressions (papers which could no doubt be
converted into valuable securities).
➢ In this case taking was involved. But this taking of documents was not out of possession
of victim. So it was not theft.
➢ The offence of extortion is not established. On the findings, the offence is no more than
the use of criminal force of an assault punishable under section 352, IPC.
Case - Sekar v. Arumugham, 2000

Fact - Sekar had taken loan for a sum of Rs. 4 lakhs during November 1994 from the Bank of
Madura, cantonment Branch, Trichy towards purchase of Ashok Leyland Lorry. The petitioner
executed a deed of hypothecation dated 9- 11-1994 in favour of the bank and in terms of which
had hypothecated the lorry in question as a security towards the due repayment of the amount
borrowed by him. The loan was repayable in 60 monthly instalments.
In terms of Clause 14(3) of the deed of hypothecation, in the event of any default in the payment
of the loan instalments, the bank had the right to seize the said lorry. As per Clause 15(b) of the
deed of hypothecation, the bank upon seizure of the vehicle was vested with the right to sell the
same and appropriate the sale proceeds towards the outstanding due and payable to it.
He had defaulted in payment of monthly instalments. On 30-7-1998 the bank seized the lorry due
to non-payment of instalment. The private complaint has been filed against the respondent for
alleged offence under Section 379, IPC.
Issue - Is the Bank liable for theft?

➢ When the respondent had been empowered to seize the lorry under Clause 14(e), it
cannot be said that the respondent had committed theft of the lorry when the petitioner
had committed default in payment of installments, the bank has seized the lorry.
➢ The bank was continues to be the owner of the lorry till the payment of all the
installments.
➢ Bank had not committed offence of theft. Lorry was ceased according to terms and
conditions of the hypothecation.
Case - State of Karnataka v. Basavegowda, 1997
Fact - Basavegowda was the husband of Bhagyamma. It was alleged that about 10 days after
their marriage, on 30-4-1987, he took her to the Burudala Bore Forest under the pretext of going
for the wedding of a friend and, there he threatened to kill her unless she parted with all her
ornaments. Bhagyamma, finding no other option, removed all her jewelry valued at around Rs.
11,000/- and handed the same over to the accused who wrapped the same in a handkerchief and
put it in his pocket.
Thereafter, the accused is alleged to have assaulted her with a big stone whereupon, Bhagyamma
screamed. The accused continued to assault her with his fists and seeing two other persons
coming there, he ran away. Bhagyamma was thereafter taken to the hospital. He was charged
with offences punishable under Sections 307 and 392. The majority of witnesses turned hostile.
Issue – Whether Basavegowda has committed the robbery?

➢ Merely because she has subsequently divorced the accused and remarried, would not
necessarily indicate that she was hostile to the accused at the time of the incident and that
she would go to the extent of fabricating serious charges against him if these were not
true.
➢ It is true that the Doctor has initially opined that such an injury would have been unlikely
having regard to the fact that the stone was of the dimension of I0"x 8", but subsequently,
the doctor himself has agreed that such an injury could be caused by the stone in
question. This in our opinion sets the matter at rest.
➢ Cumulatively, therefore, we are of the view that merely because Bhagyamma escaped
with some injuries, that it cannot lead to the conclusion that the accused did not assault
her at all on that day.
➢ The fact that the majority of witnesses have not supported the prosecution case is
therefore, not a factor in favour of the accused, but one which militates heavily against
him.
➢ We have taken note of the fact that Bhagyamma has very clearly stated in her evidence
that these ornaments belong to her as they had been made by her father for her wedding.
She also states that they were in her custody and on her person and that the accused under
threat, took the ornaments away from her. If the custody of the ornaments has come to the
accused under these circumstances, then his possession becomes clearly unlawful.
➢ We are of the view that Bhagyamma’s evidence alone, which finds considerable support
from the other material which we have discussed above, is sufficient to establish the
charge against the accused.
➢ Accused was punished under section 325 and section 384. In our considered view, the
extortion of the ornaments from Bhagyamma under threat and the subsequent recovery of
these ornaments from the custody of the accused would clearly make him liable for an
offence of extortion.
UNIT - 11
(Principal Reading)
Offences of Criminal Misappropriation, Criminal
Breach of Trust and Cheating
S 403 - Dishonest misappropriation of property

To constitute the offence of criminal misappropriation
prosecution, therefore, has to prove that: (i) the property was of the complainant, (ii) the accused
misappropriated
the same or converted to his own use and (iii) he did it dishonestly
S 405 - Criminal breach of trust
The essential ingredients of criminal breach of trust are:
(i) a person must be entrusted with property or with dominion over it, and
(ii) he must have dishonestly misappropriated the property or converted it to his
own use or dishonestly disposed of it, and
(iii) such misappropriation, conversion, use or disposal has been done in violation
of such trust.
S 415 - Cheating
The Section requires:
deception of any person by
• fraudulently or dishonestly inducing that person to deliver any property to any person or
to consent that any person shall retain any property; or
• intentionally inducing a person to do or omit to do anything which he would not do or
omit if he were not so deceived, and the act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or property.
Section 415 has two alternate parts, while in the first part the person must “dishonestly” or
“fraudulently” induce the complainant to deliver any property, in the second part, the person
should intentionally induce the complainant (the person so deceived) to do or omit to do a thing.
In other words, in the first part, inducement must be dishonest or fraudulent. And in the second
part, inducement should be intentional. “Deception” is common element in both the parts. It is,
however, not necessary that deception should be by express words but it may be by conduct or
implied in the nature of transaction itself.
CASES
Case - Jaikrishnadas Manohardas Desai v. State of
Bombay, 1960
Fact - On June 15, 1948, the Textile Commissioner invited tenders for dyeing Pugree Cloth.
Jaikrishnadas Manohardas Desai was the Managing Director and the second appellant, a Director
and technical expert of a cloth dyeing concern known as Parikh Dyeing and Printing Mills Ltd.
They submitted their tender, and their tender was accepted.
The company entered into a contract with the Textile Commissioner undertaking to dye a large
quantity of cloth which was supplied to the company for that purpose. In pursuance of the
contract certain quantity of cloth was dyed and delivered to the Textile Commissioner by the
company but it failed to dye and deliver the balance of cloth which remained in its possession
and was not returned to the Textile Commissioner despite repeated demands.
On November 20, 1950, the contract was cancelled by the Textile Commissioner in respect of
the balance of cloth and the company was called upon to give an account without any further
delay of the balance undelivered and it was informed that it would be held responsible for
material spoiled or not accounted for. The company admitted its liability. On December 29,
1952, the premises of the company and the place of residence of the appellants were raided, but
no trace of the cloth was found. A complaint was then filed with the police charging the two
appellants with criminal breach of trust in respect of 1,32,4041 yards of cloth belonging to the
Government.
Issue - Whether appellants had dominion over yards of cloth?

Whether breach of trust must be proved by direct evidence and by precise mode?

➢ To establish a charge of criminal breach of trust, the prosecution was not bound to prove
the precise mode of conversion, misappropriation or misapplication by the accused of the
property entrusted to him or over which he had dominion.
➢ The principal ingredient of the offence being dishonest misappropriation or conversion
which may not ordinarily be a matter of direct proof and failure in breach of an obligation
to account for the property entrusted, if proved, may in the light of other circumstances,
justifiably lead to an inference of dishonest misappropriation or conversion.
➢ The mere failure of the accused to account for the property entrusted to him might not be
the foundation of his conviction in all cases. But where he was unable to account and
rendered an explanation for his failure which was untrue, an inference of
misappropriation with dishonest intent might readily be made.
➢ No information was given at any time to the Textile Commissioner after December 4,
1950, that the cloth had been eaten up by white-ants and moths, and was therefore thrown
away or otherwise destroyed. Nor was any evidence led in support of the plea by the
appellants.
➢ Supreme Court dismissed the appeal and held that conviction of both persons under
section 409 r/w section 34 by High Court was justified. It was accepted that First
appellant had dominion over property.
Case - Mahadeo Prasad v. State of West Bengal, 1954

Fact - Mahadev Prasad agreed to purchase from the complainant Dulichand Kheria 25 ingots of
tin on May 05, 1951. Price was to be paid Mahadev Prasad against delivery. He took delivery of
the ingots but kept the Jamadar awaiting and did not pay the price to him. The Jamadar waited
for a long time. The Appellant went out and did not return to the Guddi and the Jamadar
ultimately returned to the complainant and reported that no payment was made though the ingots
were taken delivery of by the Appellant.
He took up the defence that he had not sufficient money, which he knew.
Issue - Whether accused had caused cheating?

➢ The High Court observed rightly that if the Appellant had at the time, he promised to pay
cash against delivery and with the intention to do so, the fact that he did not pay would
convert the transaction into Breach of Contract.
➢ But if on the other hand he had no intention whatsoever to pay but merely said that he
would do so in order to induce the complainant to part with the goods then a case of
cheating would be established.
➢ There was no question of any miscalculation made by the Appellant in the matter of his
ability to pay the cash against delivery. He knew fully well what his commitments were,
what moneys he was going to receive from outside parties and what payments he was to
make in respect of his transactions up to the 4th May 1951.
➢ The anxiety to arrive at a settlement could easily be explained by the fact that the
Appellant knew that he had taken delivery of the ingots without payment of cash against
delivery and the only way in which he would get away from the criminal liability was to
arrive at a settlement with the complainant.
➢ The Appellant was therefore rightly convicted of the offence under section 420 of the
Indian Penal Code and both the Courts below were right in holding that he was guilty of
the said offence and sentencing him to one year’s rigorous imprisonment as they did.
Case - Akhil Kishore Ram v. Emperor, 1938

Fact - Akhil Kishore Ram resides at Katri Sarai, police station Giriak, in Patna District, where in
his own name and under thirteen other aliases he carries on a business of selling charms and
incantations which he advertises in a number of newspapers in several provinces of India, and
dispatches by value payable post to persons answering the advertisements. Six of these
transactions have been the subject matter of the charges. He advertised “Gupta Mantra” and
claimed that person will achieve his desire. In case of unsuccess reward of 100 Rs. was
advertised.
The petitioner was brought before the Magistrate on six charges which were tried in two batches
of three each and was convicted of cheating on all the charges and sentenced in each trial to
undergo rigorous imprisonment for 18 months.
Issue - Whether the accused has committed the offence of cheating?

Whether the sentences imposed are excessive against accused?

➢ The substance of the prosecution case and the findings of the Courts below was that
whereas by the advertisement clients were made to believe that “there is no necessity of
undergoing any hardship to make it effective” and that “it is effective without
preparation”, they were disappointed by finding on receipt of the leaflets that in order to
work the miracle they must stare unwinking at the moon for fifteen minutes; a feat which
if not impossible as some of the prosecution witnesses have represented it to be, is at any
rate beyond the powers of ordinary human beings except by long training and
preparation.
➢ The victims concerned in the six transactions which are before us have all said that had
they known of the condition precedent to the using of the Mantra, they would never have
sent for it; And the Courts below have accepted that evidence.
➢ Prospective purchasers are left to hope that by seven times repeating the Mantra they will
attain their object whatever it may be with the assurance that in the event of failure they
will get Rs. 100 reward and in case they should still be so sceptical as to wonder whether
there is not a catch somewhere, there is the added assurance that the Mantra is effective
without preparation and without the necessity of undergoing any hardship.
➢ The accused was liable to be sentenced to seven years’ imprisonment of either
description for any one of the six offences of which he has been convicted, and in my
opinion the sentences of substantive imprisonment imposed, namely eighteen months
which will amount to no more than consecutive sentences of three months for each
offence are not excessive; nor are the fines.
Case - Shri Bhagwan S.S.V.V. Maharaj v. State of A.P.,

1999
Fact - Sri Bhagwan S.S.V.V. Maharaj represented to have divine healing powers through his
touch, particularly of chronic diseases. The complainant approached him for healing his 15 year
old daughter who is congenitally a dumb child. Sri Bhagwan S.S.V.V. Maharaj assured the
complainant that the little girl would be cured of her impairment through his divine powers. He
demanded a sum of Rs.1 lac as consideration to be paid in instalments. The first instalment
demanded was Rs.10,000/- which, after some bargaining, was fixed at Rs.5,000/-.
He waited eagerly for the improvement of his dumb child till 1994 which was the time limit
indicated by the appellant for the girl to start speaking. But he could not get a result. In the
meanwhile, he got the news that accused had cheated several persons and earned more than one
crore of rupees. It was then that the complainant realized the fraud committed by the appellant.
When he moved the High Court to quash the criminal proceedings pending against him, the
motion was dismissed as per the impugned order against which the present appeal has been filed
by special leave.
Issue – Whether this matter falls in ambit of section 420 of IPC and fulfills its ingredients?
➢ If somebody offers his prayers to God for healing the sick, there cannot normally be any
element of fraud. But if he represents to another that he has divine powers and either
directly or indirectly makes that other person believe that he has such divine powers, it is
inducement referred to in Section 415 IPC.
➢ Anybody who responds to such inducement pursuant to it and gives the inducer money or
any other article and does not get the desired result is a victim of the fraudulent
representation. The court can in such a situation presume that the offence of cheating
falling within the ambit of Section 420 IPC has been committed.
➢ So the contention that the allegations do not disclose an offence under Section 420 IPC
has to be repelled and we are of the opinion that the Magistrate has rightly taken
cognizance of the said offence.
➢ Power of the police to conduct further investigation, after laying final report, is
recognised under Section 173 (8) of the Code of Criminal Procedure. Even after the court
took cognizance of any offence on the strength of the police report first submitted , it is
open to the police to conduct further investigation.

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EXAM CAPSULE

Prepared by Law Exam Destination (LED)

• Intention and motive

Observation & Judgement:

State of M.P. v. Narayan Singh, 1989

Section 299 Section 300

A person commits culpable homicide if the Subject to certain

It is noteworthy that the ‘intention to cause death’ is not an essential requirement of

300. Murder—Except in the cases hereinafter excepted, culpable homicide is murder,

First clause of sec 300 –

These are purely objective investigations.

The essential ingredients of this clause are:

Issue - Were appellants had caused the murder of Moinuddin?

Observation & Judgement:

Case - Palani Goundan v. Emperor, 1919

Observation & Judgement:

Case - In re Thavamani, AIR 1943

Issue - Whether Thevamani (second accused) caused murder?

Observation & Judgement:

Case - Emperor v. Mushnooru Suryanarayana Murthy,

Observation & Judgement:

Case - Kapur Singh v. State of PEPSU, 1956

Issue - Whether Kapur Singh caused Murder or Culpable Homicide?

Observation & Judgement:

Case - Virsa Singh v. State of Punjab, 1958

Issue – Whether Virsa Singh caused Murder or Culpable Homicide?

Observation & Judgement:

Case - State of Andhra Pradesh v. R. Punnayya, 1977

Observation & Judgement:

Case - Emperor v. Mt. Dhirajia, 1940

Observation & Judgement:

Case - Gyarsibai v. The State, 1953

Observation & Judgement:

Exception 1—Grave and Sudden Provocation

Observation & Judgement:

• (1) The deceased must have given provocation to the accused.

Case - Ghapoo Yadav v. State of M.P, 2003

Issue - Was causing death of Gopal amounts to murder?

Observation & Judgement:

➢ Difference between Exception 1 and Exception 4 - Both depend upon without

Observation & Judgement:

Case - S.N. Hussain v. State of Andhra Pradesh, 1972

Observation & Judgement:

The “general exceptions” contained in sections 76–106 make an offence a non-offence.

To invoke section 100, IPC, four conditions must exist, viz.,

Observation & Judgement:

• Ram Swarup and his father & brothers were aggressors.

Case - Deo Narain v. State of U.P.,1973

Issue - Had Deo Narayan exceeded his right of private defence?

Observation & Judgement:

Case - Kishan v. State of M.P., 1974

Observation & Judgement:

Case - James Martin v. State of Kerala 2004

Observation & Judgement:

361. Kidnapping from lawful guardianship—

The essential ingredients of the section are:

Difference between kidnapping and abduction

Issue - Had S. Varadarajan committed kidnapping of Savitri?

Observation & Judgement: