IPC Writing For Class Discussion With Contents (Second Correction)

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Lord Sir Thomas James Babington Macaulay (Father of IPC, 1860)
Krishna Murari Yadav

Assistant Professor,
LC-I, Faculty of Law,
University of Delhi, Delhi
Contact no. -7985255882
Krishnamurari576@gmail.com
Contents
S. No. Topic P. No.

Nearabout
1 Elements of Crime 2-9
2 Rights of Private Defence 10-20
3 Section 299, Section 300 & Differences between Culpable 21 -37
Homicide and Murder
4 Sections 301 -304A 38-41
5 Kidnapping and Abduction 42-49
6 Rape and Unnatural offences 50-69
7 Joint Liability 70-75
8 Offences against property 76-94
9 Attempt 95-103
10 Annexure I 104-119
11 Annexure II 120-129
12 Annexure III 130-141
13 Annexure IV 142-145
14 Annexure V & VA 146-156
15 Annexure VI 157-163
16 Annexure VII 164-180
17 Annexure VIII 181-187
18 IPC – (1) UGC NET 2018 Dec. and (2) UP (J) (Pre) 2018 188- 196
19 Annexure IX 197-200
Krishna Murari Yadav, Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delhi.
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Elements of Crime
There are four elements of crime namely; (1) Human being (2) Mens Rea / Guilty Mind (3)
Actus reus / Prohibited act, and (4) Injury to society or human being.
Actus non facit reum , nisi mens sit rea (Common Law Doctrine)
Actus non facit reum, nisi mens sit rea means the act itself does not make a man guilty, unless
the mind is also guilty. This theory was developed be Common Law Courts. First time concept
of Mens Rea was discussed by Justice Coke. In case of Fowler v. Padget (1798) Lord Kenyon
held that actus reus and mens rea both are essentials for commission of crime. There are four
essential ingredients of crime, namely,(1) Human Being (2) Guilty Mind (3) Prohibited act, (4)
An injury to human being or society. This maxim denotes that guilty mind and prohibited act
both are part and parcel of crime. It is rule that without guilty mind, crime cannot be committed.
There are also certain exceptions.
If maxim applies – In case of application of this maxim, accused person would be benefited and
there would be utmost probability of to win the case because prosecutor would be bound to prove
prohibited act and guilty mind.
If maxim does not apply - It would be very easy for prosecutor to win the case because he would
be bound to prove only one condition i.e. prohibited act. To prove guilt mind always very
difficult. It in such case there would be a lot of harm for accused.
Meaning of Actus reus - Actus reus means physical condition of penal liability. Actus Reus is
defined as a result of voluntary human conduct which law prohibits. It is the doing of some act
by the person to be held liable an ‗act‘ is a willed movement of body.
Meaning of Mens Rea -
Mens Rea means guilty mind or an evil mala-fide or information of illegal act. It can be
identified as intention, knowledge, reason to believe, negligence and recklessness etc.
Exception of Actus non facit reum , nisi mens sit rea
Sometimes offence is constituted even without guilty mind it is called strict liability. There are
certain exceptions of Actus non facit reum , nisi mens sit rea. These exceptions are following -
(1)Criminal Libel (2)Public Nuisance (Hicklin Test) (3)Contempt of Court (4)
Abduction/Kidnapping (5) Bigamy (6) Statutory offences.
Schools of Mens Rea (Interpretation of statutes)
There are two schools regarding interpretation of statutes in context of mens rea. These Schools
are (1) Presumption of Existence of Mens Rea, and (2) Presumption of Absence of Mens Rea.
Both presumptions are rebuttable.
(1) Presumption of Requirement of Mens Rea- In every Statute mens rea should be treated as
part of crime unless contrary is shown. Existence of Mens Rea is presumed. In case of Q. v.
Tolson court acquitted lady on the ground of her innocent. She got marriage after full inquiry.
But Court also accepted that by statute mens rea may be excluded. This theory was led by Justice
Wright in case of Sherras v. De Rutzen (1895). In case of Sherras v. De Rutzen (1895) Justice
Wright said ―In every statute mens rea is to be implied unless contrary is shown‖. In case of
Brend v. Wood (1946), Justice Goddard, ―The general rule applicable to criminal case is actus
non facit reum nisi mens sit rea…It is of the of the utmost importance for the protection of the
liberty of the subject that a court should always bear in mind that, unless the statute, either
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clearly or by necessary implication rules out mens rea as a constituent part of a crime, a
defendant should not be found guilty of an offence against the criminal law unless he has got a
guilty mind”. Principle of mens rea was revived by Justice Goddard. In the case of Nathu Lal v.
State of M.P1 (1965) Supreme Court acquitted the accused on the basis of absence of mens rea.
(2) Presumption of Non-requirement of Mens Rea- According to second School, statute must
be interpreted in absence of mens rea unless requirement of mens rea has been specifically
mentioned. On the basis of this theory Justice Blackburn decided the R.v. Prince (1875) and he
convicted the accused who had no guilty mind. Accused believed that the girl was 18 year while
real age of girl was 14 year. At that time taking of girl below the age of 16 years out of keeping
of lawful guardian was crime. Appearance of Girl was age of 18 years. Court denied to accept
Actus non facit reum , nisi mens sit rea (Common Law Doctrine). This theory was led by Justice
Kennedy in Hobbes v. Winchester Corporation (1910). In the case of State of Maharashtra v.
M.H.George2 (1964) Supreme Court convicted the accused. Justice K.Subba Rao delivered
minority opinion.
Intention
There are two elements namely;

(1) Desire of consequence, and
(2) Foresight of consequences.
Knowledge
There are only one elements namely; Foresight of consequences. In knowledge desire of
consequences is missing. It is presumed that every sound person has knowledge.
Motive
Neither bad motive nor good motive is relevant to constitute offence. It is relevant under section
8 of Indian Evidence Act. Motive prompts a person to do something. Sometime offence is
committed with motive and sometimes without motive. Intention refers to the immediate object,
while motive refers to the ulterior object which is at the root of intention.
Negligence
Negligence is not taking care, where there is a duty to take care. Negligence or Carelessness
indicates a state of mind, viz. absence of a desire to cause a particular consequence.
Recklessness
1
This case was decided by Supreme Court on March 22, 1965.
2
This case was decided by Supreme Court on August 24, 1964.
4
Recklessness occurs when the actor does not desire the consequence, but foresees the possibility
and consciously takes the risk.
Some Leading Cases
There are some leading cases related to elements of crime –
Fowler v. Padget3 (1798) (Lord Kenyon)

Actus reus (prohibited act) and mens rea (guilty mind) both are essentials for commission of
crime. Lord Kenyon said, ―It is a principle of natural justice, and of our law, that actus non facit
reum nisi mens sit rea. The intent and the act must both concur to constitute the crime‖. 4 This
case was related to bankruptcy.
R. v. Prince5 (1875) (Blackburn)
Facts - Henry Prince was charged under section 556 of the Offences Against the Persons Act,
1861.7 This section was related to abduction. There was no any category of offence like
kidnapping under this Act. At that time unlawfully taking of a girl below the age of sixteen
years without permission of lawful guardian was an offence. It was proved that the prisoner took
the girl whose age was below the age of sixteen years from out of possession of lawful guardians
without their permission.8 Real age of girl was 14 years. Actus reus was present but mens rea
was absent. Accused proved that he took the girl who was looking age of 18 years and he took
with consent and after her replying that her age was 18 years. He did in good faith.
Decision - Court denied these defences. This section had not mention about mens rea i.e.
intention, knowledge, reason to believe etc. Justice Blackburn denied applying the maxim Actus
non facit reum, nisi mens sit rea and held that the provision did not require guilty intention or
knowledge so Court could not insert requirement of intention or knowledge only on the basis of
maxim. So Prince was convicted even without guilty mind. Principle of strict liability was
followed.
R. v. Tolson9 (1889) (Wills)
Facts – Mrs. Tolson married in Sept 1880. Her husband went missing in December 1881. She
was told that he had been on a ship that was lost at sea. She also inquired from elder brother of
her husband. Six years later, believing her husband to be dead, she married another. All the
circumstances were well known to second husband. Her husband returned after 11 months from
the date of marriage. She was charged with the offence of bigamy under section 57 of ‗Offences
3
(1798)7 TLR 509(514):101 ER 1103
4
K D Gaur, Textbook on Indian Penal Code, 107 (LexisNexis, Gurgaon, 6th edn., 2016).
5
(1875) L.R. 2 C.C.R. 154
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Section 55 of Offences Against the Persons Act, 1861 - Abduction of a girl under sixteen years of age -
Whosoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out
of the possession and against the will of her father or mother, or of any other person having the lawful care or charge
of her, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to
be imprisoned for any term not exceeding two years, with or without hard labour.
7
Offences Against the Persons Act, 1861 is available at:
http://www.legislation.gov.uk/ukpga/1861/100/pdfs/ukpga_18610100_en.pdf (Visited on August 31, 2018.
8
S.N. Mishra, Indian Penal Code …(Central Law Publications, Allahabad, 20th edn, 2017).
9
(1889) 23 QBD 168: (1886-1890)All ER Rep 26.
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Against the Persons Act, 1861‘.10 Reason was that she had got second marriage within 7 years.
She did in good faith. This section was silent regarding guilty mind.
Held: She was afforded the defence of mistake as it was reasonable in the circumstances to
believe that her husband was dead. She was acquitted.
Reason- Honest and reasonable mistake stands in fact of the same footing as absence of the
reasoning faculty, as in infancy ; preservation of that faculty , as in lunacy. These exceptions
apply equally in case of statutory offences unless they are excluded expressly or be necessary
implication. The Court applied the Actus non facit reum, nisi mens sit rea.
Justice Wills, said ―Although, prima facie and as a general rule, there must be a mind at fault
before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-
matter and may be so framed as to make an act criminal whether there has been any intention to
break the law or otherwise to do wrong or not‖.
Sherras v. De Rutzen11 (1895) (Wright )
Fact-Section 16(2) of the Licensing Act, 1872, prohibited a licensed victualler (victualler means
supplier of foods fit for human being) from supplying liquor to a police constable while on duty.
It was held that section did not apply where a licensed victualler bona fide believed that the
police officer was off duty.
Justice Wright said - (1) ―There is a presumption that mens rea, an evil intention, or knowledge
of the wrongfulness of the act, is an essential ingredient in every offence.‖
(2) ―In every statute mens rea is to be implied unless contrary is shown‖
(3) ―There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness
of the act, is an essential ingredient in every offence; but that presumption is liable to be
displaced either by the words of the statute creating the offence or by the subject-matter with
which it deals, and both must be considered.‖
Hobbs v. Winchester Corp. (1910) Kennedy
Kennedy said, ―You ought to construe the statute literally unless there is something to show that
mens rea is required.‖
Brend v. Wood (1946) (Goddard) - Revival of Mens rea
Goddard C. J. ―It is…............. of the utmost importance for the protection of the liberty of the
subject that a court should always bear in mind that, unless the statute, either clearly or by
necessary implication rules out mens rea as a constituent part of a crime, a defendant should not
be found guilty of an offence against the criminal law unless he has got a guilty mind‖.
The Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. (February 3, 1964)
Chief Justice Gajendragadkar said, ―The intention of the legislature in providing for the
prohibition prescribed by section 52 A of the Sea Customs Act is, inter alia, to put an end to
illegal smuggling which has the effect of disturbing very rudely the national economy of the
country. It is well-known, for example, that smuggling of gold has become a serious problem in
this country and operations of smuggling are conducted by operators who work on an
10
Offences Against the Persons Act, 1861 is available at:
http://www.legislation.gov.uk/ukpga/1861/100/pdfs/ukpga_18610100_en.pdf (Visited on August 31, 2018.
11
(1895) 1QB 918
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international basis. The persons who actually carry out the physical part of smuggling gold by
one means or another are generally no more than agents and presumably, behind them stands a
well- knit Organisation which, for motives of profit making, undertakes this activity.‖
Ranjit D.Udeshi v. State of Maharashtra (August 19, 1964)
Lady Chatterley‘s Lover. Seller was convicted under section 292 for selling this book, although
he had no knowledge of this book. Strict liability was imposed.
State of Maharashtra v. M.H.George (August 24, 1964)

Facts - Mayer Hans George, a German Smuggler, left Zurich by plane on 27th November 1962
with 34 kilos of gold concealed on his person to be delivered in Manila. The plane arrived in
Bombay on the 28th but the respondent did not come out of the plane. The customs authorities
examined the manifest of the aircraft to see if any gold was consigned by any passenger, and
not finding any entry they entered the plane, searched the respondent, recovered the gold and
charged him with an offence under ss. 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.
Decision - This case is related to economic condition of country. So Supreme Court did not
apply the maxim and applied the strict liability principle.
Majority Opinion - N. Ayyangar and J.R. Rajagopala Mudholkar convicted the accused.
Minority Opinion - Justice K. Subba Rao said that M.H. George had no intention to commit
crime in India. So he was not guilty.
Nathu Lal v. State of M.P.12 (22 March, 1965)
Facts - The appellant is a dealer in foodgrains at Dhar in Madhya Pradesh. He was prosecuted in
the Court of the AdditionalDistrict Magistrate, Dhar, for having in stock 885 maunds and 21/4
seers of wheat for the purpose of sale without a licence and for having thereby committed an
offence under section 7of the Essential Commodities Act, 1955. The appellant pleaded that he
did not intentionally contravene the provisions of the said section on the ground that he stored
the said grains after applying for a licence and was in the belief that it would be issued to him.
Reason – Supreme Court said, ―Mens rea is an essential ingredient of a criminal offence.
Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction
adopted in England and also accepted in India to construe a statutory provision creating an
offence in conformity with the common law rather than against it unless the statute expressly or
by necessary implication excluded mens rea.‖13
Decision - He was acquitted because he had without any guilty mind.14 Unless statute expressly
exclude, law should be construed as including mens rea.
12
AIR 1966 SC 43.
13
S.N. Mishra, Indian Penal Code 21 (Central Law Publications, Allahabad, … edn, 2006).
14
S.N. Mishra, Indian Penal Code 22 (Central Law Publications, Allahabad, … edn, 2006).
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Effect of Decision - After this case section 7 of Essential Commodities Act was amended in
1967 and mens rea was excluded. ―whether knowingly, intentionally or otherwise‖ were inserted.
State of M.P. v. Narayan Singh15 (25 July 1989)

Facts – Essential Commodities Act, 1955 were amended in 1967. The respondents who were
lorry drivers, cleaners and coolie were carrying fertiliser bags in trucks from Indore (Madhya
Pradesh) 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 Fertiliser (Movement Control) Order, 1973
read with section 3 and 7 of the of the Essential Commodities Act, 1955 for exporting fertilisers
from Madhya Pradesh to Maharashtra without a valid permit. They were charged under section
511.
Decision – There are following decisions of Supreme Court on following points -

(1) Mens Rea -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 fertiliser bags without a valid permit is therefore not a necessary ingredient for convicting a
person for contravention of an order made under Sec. 3 if the factum of export or attempt to
export is established by the evidence on record.
Section 7 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 fertiliser bags without a valid permit is therefore not a necessary ingredient for
convicting a person for contravention of an order made under Sec. 3 if the factum of export or
attempt to export is established by the evidence on record.
(2)Attempt – This was case of attempt. Whatever has been done was beyond preparation.
(3) Only conviction but not punishment -Supreme Court set aside the order of acquittal by Trial
Court and High Court and convicted the accused. But did not pass any order of punishment.
Reason was that more than fifteen years have gone by since they were acquitted by the Trial
Magistrate. The learned counsel for the appellant State was more interested in having the correct
position of law set out than in securing punishment orders for the respondents in the two appeals
for the offence committed by them.
15
AIR 1989 SC 1789.
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IMPORTANT MAXIMS RELATED TO CRIMINAL LAW
Pro Reo
Whenever any penal law is applied or construed , and that law is giving two interpretation, one
lenient to the offender and one strict to the offender , that interpretation which is lenient or
favorable to the offender will be adopted.
Nullum Crimen Sine Lege, Nulla Poena Sine Lege16
(No crime without law, no punishment without law)
According to this maxim there must be no crime or punishment, except in accordance with fixed
predetermined law. This maxim conveys four different rules, namely,
(1) Non retroactivity of penal laws-
It means penal laws which are against the interest of accused will not be applied from
retrospective effect. But it does not prohibit accused form taking benefit of retrospective laws. In
the case of Rattan Lal v. State of Punjab (1965 )Supreme Court also interpreted article 20 (1)
and said that ― Ex post facto laws which are beneficial to the accused is not prohibited by Art.
20(1) of the Constitution. In this case Justice Subba Rao said, ―The object of criminal law is
more to reform the individual offender than to punish him.
(2) Penal statutes must be construed strictly
Penal statutes must be construed strictly. It directly affects Fundamental Rights. So it must be
construed strictly.
(3)Certainty in legislation-
It should not be construed in such a way as to cover every act.
(4) Accessibility of the laws
Laws are binding over every people. So it must be published in proper way so that every people
may know it. Harla v. State of Rajasthan (1952) Supreme Court said, ―It would be against the
Principle of natural justice to permit the subjects of a State to be penalized by laws of which they
had no knowledge and of which they could not even with the exercise of due diligence have
acquired any knowledge . Natural justice required that before a law can be operative it must be
promulgated and published.‖
Stages of Crime
If a person commits a crime voluntarily, it involves four important stages, viz. (1) Intention of
Contemplation (2) Preparation; (3) Attempt; and (4) Commission of Crime or accomplishment /
execution. The first two stages would not attract culpability but the third and fourth stages
would certainly attract culpability.17
(1) Intention -
16
UGC NET Nov. 2017.
17
State of Madhya Pradesh v. Narayan Singh & Ors , AIR 1989 SC 1789
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Intention is mental status, which cannot be traced, so mere intention is not punishable.
(2) Preparation - Generally preparation is also not punishable. But there are some exceptional
cases when at the stage of preparation; offence is punishable, namely,
I. Preparation to wage war against the Government (Section 122)
II. Any one commits damages to the property and destruction of property within the territories of
our country and the country which is with peace with our government (Sec. 126)
III. Preparation for counterfeiting of coins or Government Stamps (Sections 233 to 235), 255
and 257.
IV. Possessing counterfeit coins, false weights or measurements and forged documents (Section
242, 243, 259, 266 and 474)
V. Making preparation to commit dacoity (Section 399).
(3) Attempt – Attempt is called inchoate crime (incomplete crime). It is punishable.
(4) Execution of Offence – When an offender achieved his desired goal i.e. called execution of
an offence.
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Right of Private Defence

(Sections 96 to 106 of IPC)
Contact no. -7985255882
Need of Right of Private Defence

Self-help is the first rule of criminal law.18 State has limited resources and it cannot protect every
person in every circumstances. At the same time it cannot expected when offence is going to be
committed. In a room husband and wife is sleeping. For example it might be that sudden struggle
starts on the issue of extra-matrimonial relation of either party and husband starts to beat his
wife. In this circumstances wife has right of private defence. Bentham in his book „Principle of
Penal Laws‟ elaborated need of right of private defence and said, “The right of defence is
absolutely necessary. The vigilance of Magistrates can never make up for the vigilance of each
individual on his own behalf. The fear of the law can never restrain bad man as the fear of the
sum total of individual resistance. Take away this right and you become in so doing the
accomplice of all bad men.”19So it has been provided that if an act is done in exercise of right of
private defence that act would not be an offence (section 96).
In the case of Munshi Ram and Others v. Delhi Administration20 Justice K.S. Hegde said, “The
right of private defence serves a social purpose and that right should be liberally construed.
Such a right not only will be a restraining influence on bad characters but it will encourage the
right spirit in a free citizen. There is nothing more degrading to the human spirit than to run
away in the face of peril.”
Nature of Right (Deo Narain v. State of U.P.)21
In the case of Deo Narain v. State of U.P.22(1972) nature of right of private defence was
discussed. Supreme Court said, ―This right rests on the principle that where a crime is
endeavored to be committed by force, it is lawful to repel that force in self-defence. The right of
private defence is available for protection against apprehended unlawful aggression and not for
punishing the aggressor for the offence committed by him. It is a preventive and not a punitive
right.
In case of excitement or disturbed mental equilibrium it is difficult to expect parties facing
grave aggression to coolly weigh, as if in golden scales, and calmly determine with a composed
18
K D Gaur, Textbook on Indian Penal Code 254 ( LexisNexis,Gurgaon,6th edn., 2016).
19
V Suresh and D Nagasila, PSA Pillai‟s Criminal Law 151,(LexisNexis, New Delhi, 9th edn. Fourth reprint 2007).
20
AIR 1978 SC 702. This case was decided on November 27, 1967.
21
AIR 1973 SC 473. This case was decided on December 11, 1972.
22
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mind as to what precise kind and severity of blow would be legally sufficient for effectively
meeting the unlawful aggression.‖
Own body & property or body &property of another person

Right of private defence is only for defence rather than for aggression. This right is available for
own body as well as body of another person (section 97). In case of property this right is
available in limited cases. This right is also available against a person who cannot commit crime
for example person of unsound mind or person doing act in mistake of fact (section 98). But this
right is subject to certain limitations (section 99). It may be used even there is risk for innocent
person (Section 106).
Death or Harm
In exercise of right of private defence in certain cases either harm or death may be caused
(sections 100 and 103). In other case only harm can be caused, causing of death is not allowed
(sections 101 and 104).
Commencement and continuance
Right of private defence of body and property commences from the reasonable apprehension of
danger of body or property as the case may be (sections 102 and 105).
Scheme of right of private defence in IPC
Chapter IV (Sections 76 -106) deals ‗General Exceptions‘. Right of private defence is part of
this chapter. right of private defence has been provided under sections 96 to 106. Sections 96 to
106 may be divided into three categories namely;
(1) Common sections - Sections 96, 97, 98, 99, & 106
(2) Sections related to body - Sections 100,101&102
(3) Sections related to property - Sections 103,104 &105.
Common sections are applicable either right of private defence is related to body or property.
Compare between sections of body and property

There are following comparison between both -
(1) Section100 (Body)-103(Property) -Circumstances in which death or any harm may be caused
(2) Section 101 (Body)-104(Property) - Circumstances in which harm may be caused &
(3) Section102 (Body)-105 (Property) - Commencement and continuance of right of private
defence.
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Burden of proof (Preponderance of probabilities)

Section 105 of Indian Evidence Act is relevant for this. In the case of State of U.P. vs. Ram
Swarup23 victim had started to run away even though he was shot dead. In this case 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 accused to show as in a civil case that the preponderance of probabilities is in favour
of his plea.
Common sections - Sections 96, 97, 98, 99, & 106
Section 96
Section 96 says “Nothing is an offence which is done in the exercise of the right of private
defence.” This section is declaratory nature. If anyone exceeds his power in exercise of right of
private defence and matters comes under exception 2 of section 300, it will amount to culpable
homicide.
Section 9724
Section 97 is genus. This section contains two clauses. First clause deals right of private defence
against any offence affecting the human body (Sections 299-377). Second clause deals right of
private defence in respect of property (movable or immovable) when offence is related to TRMC
(Trinmool Congress) (T-Theft, R-Robbery, M-Mischief, C-Criminal Trespass) or attempt to
commit these offences. There are only four offences right of private defence is available in case
of property. If any offence which derives from these offences even in that case right of private
defence would be available. In case of criminal misappropriation or breach of trust right of
private defence is not available because these are not covered under section 97(2). These rights
are not absolute. These are subject to section 99 of the Code, 1860. Body or property may be of
own or of other.
Section 9825
Section 98 is extension of section 97. Section 98 makes right of private defence very wider. This
section is applicable in all circumstances either right of private defence is related to person or
property of his own or other. Rule is that right of private defence is available only against
23
AIR 1974 SC 1570.
24
Section 97- Right of private defence of the body and of property.—Every person has a right, subject to the
restrictions contained in section 99, to defend— First- His own body, and the body of any other person, against any
offence affecting the human body; Secondly —The property, whether movable or immovable, of himself or of any
other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal
trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
25
Section 98 - Right of private defence against the act of a person of unsound mind, etc.—When an act, which
would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of
understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any
misconception on the part of that person, every person has the same right of private defence against that act which
he would have if the act were that offence.
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offences. But section 98 declares that even in certain cases right of private defence would be
available against acts. For example person of unsound mind cannot commit an offence due to
under section 84 but his act might cause reasonable apprehension of death of another person. So
against such act of person of unsound mind, another person has right of private defence.
There are following exceptional cases when right of private defence is available against acts –
When an act, which would otherwise be a certain offence, is not that offence,
(1) by reason of the youth,(Section 82)
(2) the want of maturity of understanding,(Section 83)
(3) the unsoundness of mind,(Section 84)
(4) the intoxication of the person doing that act, ,(Sections 85 & 86)
(5) by reason of any misconception of facts,(Section 76 and 79)26
every person has the same right of private defence against that act which he would have if the act
were that offence.
Illustrations- There are two illustrations. First illustration is based on section 84 and second
illustration is based on section 76. These illustrations are -
(a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the
same right of private defence which he would have if Z were sane.
(b) A enters by night a house which he is legally entitled to enter Z, in good faith, taking A for a
house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence.
But A has the same right of private defence against Z, which he would have if Z were not acting
under that misconception.
Section 99 (Acts against which there is no right of private defence)
Section 99 may be divided into four parts.
First part deals that when right of private defence is not available against public servant.
According to this parts if conditions mentioned in this part are not being fulfilled then right of
private defence is also available even against public servant. For example if there is reasonable
apprehension that police is about to kill then other person has right to kill that person. But this
right is not available for stage manager. If you have created such circumstances in which police
is about to kill you in his self defence and in counter you kill him then right to private defence is
not available for you. Second part covers those matters which had been done on the direction of
public servant. Third part covers those matters in which person has time to recourse protection
of public authorities. Fourth part deals that this right must not be used to take revenge. It must
be used only for the purpose of protection.
(1) Public Servant
26
K D Gaur, Textbook on Indian Penal Code 262 ( LexisNexis,Gurgaon,6th edn., 2016).
14
There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant
acting in good faith under colour of his office, though that act, may not be strictly justifiable by
law.
Explanation 1 - A person is not deprived of the right of private defence against an act done, or
attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that
the person doing the act is such public servant.
Kanwar Singh v. Delhi Administration27- A raiding party possessing authority u/s 418, Delhi
Municipal Corporation Act seized the stray cattle belonging to the accused. The accused resisted
the seizure of the cattle and inflicted injuries on the raiding party. Since the raiding party was
public servants discharging their lawful duties, they were justified in law to seize the cattle, no
right of private defence was available to the accused. He was convicted.
(2) Person doing on the direction of public servant

apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of
a public servant acting in good faith under colour of his office, though that direction may not
be strictly justifiable by law.
Explanation 2 — A person is not deprived of the right of private defence against an act done, or
attempted to be done, by the direction of a public servant, unless he knows, or has reason to
believe, that the person doing the act is acting by such direction, or unless such person states
the authority under which he acts, or if he has authority in writing, unless he produces such
authority, if demanded.
(3) Time for recourse to the protection of the public authorities

There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities.
Gurdatta Mal vs. State of U.P.28 There was a land dispute between the accused and the
deceased. There was prolonged civil litigation wherein the deceased had established his right of
title and physical possession of the property. He went along with his men to harvest the crop with
police protection. In such a situation, it was held that the accused had ample time to have
recourse to authorities and had no right to assault the deceased to claim possession of the
properties. Hence they had no right of private defence.
Right of self defence of either body or property can only be at the time when there is imminent
danger or harm.29
27
AIR 1965 SC 871.
28
AIR 1965 SC 257. UGC NET -2008.
29
V Suresh and D Nagasila, PSA Pillai‟s Criminal Law 151,(LexisNexis, New Delhi, 9th edn. Fourth reprint 2007).
15
(4) Extent to which the right may be exercised.

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 Narain v. State of U.P.30(1972)
Supreme Court said, ―If a blow with a lathi is aimed at a vulnerable part like the head it cannot
be laid down as a sound proposition of law that in such cases the victim is not justified in using
his spear in defending himself. In such moments of excitement or disturbed mental equilibrium
it is 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.‖
Section 100 (Seven circumstances when death is allowed)
Section 100- When the right of private defence of the body extends to causing death.—The
right of private defence of the body extends, under the restrictions mentioned in the last
preceding section, to the voluntary causing of death or of any other harm to the assailant, if the
offence which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely:—
First (Death) -Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault.
Secondly (Grievous hurt) -Such an assault as may reasonably cause the apprehension that
grievous hurt will otherwise be the consequence of such assault.
Thirdly (Rape) -An assault with the intention of committing rape.
Fourthly (Unnatural lust) - An assault with the intention of gratifying unnatural lust.
Fifthly (Kidnapping or abducting) -An assault with the intention of kidnapping or abducting.
Sixthly (Wrongfully confinement) - An assault with the intention of wrongfully confining a
person, under circumstances which may reasonably cause him to apprehend that he will be
unable to have recourse to the public authorities for his release.”
Seventhly (Acid attack) (Ins. in 2013) - An act of throwing or administering acid or an attempt
to throw or administer acid which may reasonably cause the apprehension that grievous hurt
will otherwise be the consequences of such act.
First (Death)
“Such an assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault”
Death may be caused by a person who is not competent to commit an offence. For example
person come under section ss. 82, 83, 84and 85. Even his death may be caused in private
defence. Death may also come under sections 299, 300 , 304A and 304B .
30
16
Amjad Khan v. State31 (1952) (Golden Scales) (Reasonable apprehension)
A communal riot broke out at Katni on the 5th of March, 1950, between some Sindhi refugees
resident in the town and the local Muslims. It was enough that the mob had actually broken into
another part of the house and looted it, that the woman and children of his family fled to the
appellant (Amjad Khan) for protection in terror of their lives and that the mob was actually
beating at his own doors with their lathis and that Muslim shops had already been looted and
Muslims killed in the adjoining locality. These things cannot be weighed in too fine a set of
scales or in golden scales.
Accused was justified to use right to private defence because there reasonable apprehension of
his death and death of his family.
Secondly (Grievous hurt) (Section 320)

―Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be
the consequence of such assault‖
Thirdly (Rape) (Ss. 375 & 376)
“An assault with the intention of committing rape”
Yeshwant Rao v. State of M.P.32(1992)
Minor daughter of the accused had gone to the toilet on the rear side of the house. The deceased
gripped her and had sexual intercourse with her. The accused seeing his minor girl being raped
by the deceased hit the deceased with a spade. Daughter was minor so her consent was
immaterial and act of the deceased would amount to committing rape under section 376 and
hence the father in defence of the body of his daughter was justified in exercising his right of
private defence.
Fourthly (Unnatural lust) (Section 377)

“An assault with the intention of gratifying unnatural lust”
Fifthly (Kidnapping or abducting) (Sections 359 and 362)
“An assault with the intention of kidnapping or abducting”
Vishwa Nath v. State of U.P.33 (1959)
The accused‘s sister was staying with her father and brother (accused) because she did not want
to live with her husband. Husband, with three others, went to the quarter of wife‘s father and he
went inside and came out dragging his reluctant wife behind him. She caught hold of the door
31
AIR 1952 SC 165
32
AIR 1992 SC 1683.
33
AIR 1960 SC 67. This case was decided on September 3, 1959.
17
and husband started pulling her. At this brother shouted to his father that sister‘s husband was
adamant and thereupon his father replied that he should be beaten. The appellant took out a knife
from his pocket and stabbed once. The knife penetrated the heart of sister‘s husband and he died.
The Court held that appellant had the right of private defence of person under the fifth clause
of s. 100 and did not cause more harm than was necessary and acquit him.
Sixthly (Wrongfully confinement) (Section 340)

“An assault with the intention of wrongfully confining a person, under circumstances which may
reasonably cause him to apprehend that he will be unable to have recourse to the public
authorities for his release.”
Seventhly (Acid attack) (Ins. In 2013) (Ss. 326A and 326 B).
“An act of throwing or administering acid or an attempt to throw or administer acid which may
reasonably cause the apprehension that grievous hurt will otherwise be the consequences of such
act.”
Section 101
Section 101 - When such right extends to causing any harm other than death. - If the offence
be not of any of the descriptions enumerated in the last preceding section, the right of private
defence of the body does not extend to the voluntary causing of death to the assailant, but does
extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant
of any harm other than death.
Combined reading of sections 100 and 101 denotes that in seven circumstances as mentioned in
section 100 either harm or death may be caused and in other cases only harm can be caused in
exercise of right of private defence. For example in the presence of reasonable apprehension of
rape, in exercise of right of private defence either harm or death may be caused. But in case of
reasonable apprehension of hurt, only harm can be caused. Causing death is not allowed because
offence of voluntary causing harm has not been mentioned in section 100.
Section 102
Section 102 - Commencement and continuance of the right of private defence of the body -
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 it continues as long as such apprehension of danger to the
body continues.
Deo Narain v. State of U.P.34(1972)
Facts – There were disputes and legal proceedings with respect to title and possession of the plot
situated in Ghazipur district. On September 17th 1965 after 12 noon there was a clash between
the party of the accused (Deo Narain) and the party of the complainant. In this clash lathis and
34
AIR 1973 SC473
18
spear were used from both sides. The blow of lathi was aimed at a vulnerable part like the head
of Deo Narain. In consequence of this Deo Narain in his private defence inflicted a fatal spear
injury on the chest of the deceased. All these things were going on in excitement. Trial Court and
High Court convicted the appellant for exceeding the right of private defence. It was said that
merely using of lathi did not justify for usuing the spear. Supreme Court said that Trial Court and
High Court did not understand sections 100 and 102. Supreme Court acquitted the accused on the
ground that he had not exceeded his right and there was reasonable apprehension of death.
Reason of Decision of Supreme Court – There are following reasons of decision of this case –
(1) Imminent danger -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
endeavored to be committed by force, it is lawful to repel that force in self-defense. Deo had
used in self defence. Use of lathi at head was imminent danger.
(2) Golden Scales - ―….In such moments of 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.‖ At the time of
fighting any one cannot be expected to calm and decide how much force have to use in self
defence.
(3) Preventive Right - The right of private defence is available for protection against
apprehended unlawful aggression and not for punishing, the aggressor for the offence committed
by him. It is a preventive and not punitive right. Whatever Deo had done, he had done only to
defend himself.
State of U.P. v. Ram Swarup35 (1974) ( Melon Case)
Facts - At about 7 a.m. on that day Ganga Ram is alleged to have gone to the market to purchase
a basket of melons. The deceased declined to sell it saying that it was already marked for another
customer. Hot words followed during which the 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 bad 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 to the gaddi of the deceased who, taken by surprise, attempted to rush in a
neighbouring kothari. But that was much too late for before he could retreat, Ram Swarup shot
him dead at point-blank range. It was at all stages undisputed that Ganga Ram and Ram Swarup
went to the market at about 8 a.m. that one of them was armed with a gun and that a shot fired
from that gun by Ram Swarup caused, the death of Munimji.
Decision – Ram Swarup was convicted under section 302.
35
AIR 1974 SC 1570.
19
The Court said -

(1) No right for stage manager -―The right of private defence is a right of defence, not of
retribution. It is available in 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-defence and if be so acts there is no right in the
former to kill him in order to prevent him from acting in self-defence.‖
(2) Burden of prove - Section 105 of Indian Evidence Act is relevant for this. In this case
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 accused to show as in a civil case that the preponderance of
probabilities is in favour of his plea.
It is responsibility of the accused to prove that his act come under general exception of which
right of private defence is part.
(3) Only for defence - The right of private defence is a right of defence, not of retribution.
Kishan v. State of M.P.36(Nov. 19, 1973)

Facts – There was dispute regarding use of bricks. There were four brothers- (1) Kishan (2)
Damrulal (3) Ganesh & (4) Har Charan. They reached at the home of Bucha.
Bucha was dragged out of his house upto a nearly neem tree. There he was given a beating by
fists and kicks by the appellant 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 on 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 on his
head. Bucha fell down on the ground and became unconscious.
Later on Har Charan and Bucha died. Kishan was prosecuted for murder.
Contention of Appellant - Arguments of Kishan was that he did in exercise of right of private
defence.
Rejection of Contention – The Court rejected this argument on the basis that appellant along
with his three brothers, Ganesh, Damrulal and Har Charan went to the house of Bucha, pulled
him out of his house upto 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 exercise of the right of self-defence.
Therefore, he was not an aggressor. The appellant could not claim to have beaten Bucha in
exercise of the right of self-defence
Decision -He was convicted for murder.
36
AIR 1974 SC 244.
20
James Martin v. State of Kerala37

James Martin & his father Xavier was charged for ss. 302,307 and 326 and for some other
offences.
There was Bharat Bandh on 15.3.1998 sponsored 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. Some activists 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 and making
him flee without shutting down the machines. There were reasonable apprehension of causing
death. In the circumstances, the inevitable conclusion is that the acts done by the accused were
in the reasonable limits of exercise of his right of private defence and he was entitled to the
protection afforded in law under section 96.
Self-preservation is instinct - Self-preservation is the prime instinct of every human being. The
right of private defence is a recognized right in the criminal law.
Hartal or Bandh do not authorize to violate the right of other person – Supreme Court said,
―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. It is high time that the authorities
concerned take serious note of this requirement while dealing with those who destroy public
property in the name of strike, hartal or bandh. Those who at times may have even genuine
demands to make should not lose sight of the overall situation eluding control and reaching
unmanageable bounds endangering life, liberty and property of citizens and public, enabling anti-
social forces to gain control resulting in all around destruction with counterproductive results at
the expense of public order and public peace. No person has any right to destroy another's
property in the guise of bandh or hartal or strike, irrespective of the proclaimed reasonableness of
the cause or the question whether there is or was any legal sanction for the same.
The case at hand is one which led to the destruction of property and loss of lives, because of
irresponsible and illegal acts of some in the name of bandh or hartal or strike. Unless those who
organize can be confident of enforcing effective control over any possible turn of events, they
should think twice to hazard themselves into such risk prone ventures endangering public peace
and public order. The question whether bandh or hartal or strike has any legal sanctity is of little
consequence in such matters. All the more so when the days are such where even law-enforcing
authorities/those in power also precipitate to gain political advantage at the risk and cost of their
opponents. Unless such acts are controlled with iron hands, innocent citizens are bound to suffer
and they shall be the victims of the highhanded acts of some fanatics with queer notions of
democracy and freedom of speech or association. That provides for no license to take law into
their own hands. Any soft or lenient approach for such offenders would be an affront to rule of
law and challenge to public order and peace.”
Decision – Supreme set aside the conviction and sentence.
37
(2004) 2 SCC 203
21
Section 299, Section 300 & Differences between Culpable Homicide and Murder
Contact no. -7985255882
HOMICIDE-(1st Stage) Homicide means killing of human being. All homicides are not
punishable, for example, any homicide which comes under chapter IV (Sections 76-106) of IPC.
Here, there is a relation between cause and death but guilty mind is absent. Actus non facit reum,
nisi mens sit rea. It means, the act itself does not make a man guilty, unless his intention was so.
When a homicide is committed with guilty mind, that homicide would be either culpable
homicide or murder. So it is said that all homicide is not culpable homicide, but all culpable
homicide is homicide.
Preparation to commit murder is not punishable offence.38
CULPABLE HOMICIDE – (2nd Stage) When homicide is done with guilty intention or
knowledge and degree of intention or knowledge is higher, then it is culpable homicide.
MURDER-3rd Stage When homicide is done with guilty intention or knowledge and degree of
intention or knowledge is highest, then it is murder.
Difference between Culpable Homicide and Murder depends upon degree of intention and
knowledge. So now I am going to search how in case of murder there is more degree of intention
and knowledge than degree of Culpable Homicide.
First of all we have to understand Culpable Homicide (Section 299) and Murder (300).
There are two conditions must be fulfilled namely (1) There must be cause-effect relationship,
and (2) Guilty Mind.
Section 299
(1) Cause-effect relationship -
―Whoever causes death (Section 46) by doing an act (Sections 32 &33)
(2) Guilty Mind -
(a) Intention to cause death - with the intention (Desire and foresight of consequences) of
causing death, or
(b) Intention to cause bodily injury - with the intention of causing such bodily injury as is
likely to cause death (there is no intention to cause death, only intention is to cause bodily injury)
or
38
U.P.H.J.S. Pre. 2009
22
(c) Knowledge -with the knowledge (foresight of consequences) that he is likely by such act to
cause death,
commits the offence of culpable homicide.‖
Illustrations
There are three illustrations. First illustration is related to sticks and turf over a pit. It is not
intended to kill particular person.39 Second illustration is related where A knows Z to be behind a
bush but B does not know it. Third illustration is related to shooting at fowl with intent to kill
and steal it. He was doing without intention or knowledge to kill human being. He was not guilty
of culpable homicide.
Explanation
There are three explanations clarifies the culpable homicide. First Explanation is related to
bodily injury, disorder & disease (BIDIDI) and acceleration of death, second Explanation is
related to proper remedies and skilful treatment and third Explanation is related to child who
has been brought forth even though he has not taken breath.
These explanations clarifying that merely acceleration of death, resorting of proper remedies and
skilful treatment and child not born completely cannot be taken defence. Even in these
circumstances persons shall be liable for culpable homicide.
First Condition
(1) There must be cause and effect relationship/ Causa causans (Immediate or operating
cause)
(i) Moti Singh and Anr. v. State of UP,40 (DOJ.Jan. 23, 1963). (Primary cause and the death
should not be too remote. You have to prove that by act of accused, death of victim has
occurred).
Deceased had been injured during the occurrence and had been taken to the hospital where his
dying declaration was recorded. He left the hospital and died 20 days later. Before any
postmortem examination could be held, his body was cremated. Prosecutor could not prove
what the reason of cause of death of victim was whether it was injury caused by accused or
negligence in taking medicine after discharge of hospital.
Moti Singh and Jagdamba were acquitted.
(II) Joginder Singh v. State of Punjab41 (1979)
The deceased Rupinder Singh had teased the sister of accused. In retaliation accused reached at
the house of deceased. Seeing these things deceased started to run away. Accused tried to hold
deceased. Accused were about 15 to 20 feet from victim when he jumped into well. There was
no cause & effect relationship. Here cause and effect means, there must be death of victim by act
of accused.
39
Emporer vs. M.S.Murthy (Halva Case) 1912, Mad. H.C.
40
AIR 1964 SC 900
41
AIR 1979 SC 1876
23
If this condition is not fulfilled, no further question regarding intention or knowledge.

Second Condition
(2) There Must Be Guilty Mind.
Act must be done with guilty mind. There are three degrees of mens rea- (i) Intention to cause
death, or (ii) Intention to cause such bodily injury as is likely to cause death, or (iii) With the
knowledge the he is likely by such act to cause death. Here ‗likely‘ word denotes probability. By
aiding some special words, this probability would be converted into certainty. Then culpable
homicide would be converted into murder.
In absence of guilty mind person would not be liable for CH. Example – Dispute was going
between husband and wife. Wife was along with baby. Husband struck a blow on her body rather
than vital part of her body. Accidently that blow struck baby and baby died. Husband was not
doing lawful work. So he would not get benefit of section 80. He had no intention to cause death
of wife or his blow was not sufficient to cause death of her wife. There is matter of transfer of
malice under section 301. So that person would be liable only for grievous hurt. Rather than
causing of culpable homicide.42
Emporer vs. M.S.Murthy (Halva Case) 1912, Mad. H.C.
Facts - Accused was not intended to kill Rajalakshmi. He 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) remaining halva he threw. Without
knowledge of accused the girl took the halva and eat and subsequently died. He was liable for
murder under section 302. But in this case section 299 was also discussed very thoroughly.
In this case Supreme Court discussed following important points –
(1) Intention to cause particular person is not necessary (2) Contributory action of victim does
not resolve the accused from his responsibility. (3) Contributory action of third party is also not
relevant.
(1)Death of Particular person - Intention to cause death of particular person is not necessary. It
becomes very clear 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 any one, whether the person intended to be killed or anyone else.
Illustration - This is clear from the first illustration to the section, ―A lays sticks and turf over a
pit, with the intention of thereby causing death, or with the knowledge that death is likely to be
thereby caused
Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence
of culpable homicide.‖
(2) Contributory action of victim or third party- Nor is it necessary that the death should be
caused directly by the action of the offender, without contributory action by the person whose
death is caused or by some other person. That contributory action by the person whose death is
42
U.P.A.P.O.(Special) 2007.
24
caused will not necessarily prevent the act of the offender from being culpable homicide, even if
the death could not have occurred without such contributory action, is clear from the above
illustration, and that contributory action by a third person will not necessarily prevent the act of
the offender from being culpable homicide, even if the death could not have occurred without
such contributory action, is clear from the second illustration, viz. A knows Z to be behind a
bush. B does not know it. A, intending to cause, or knowing it to be likely to cause, Z‘s death,
induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has
committed the offence of culpable homicide.
The language of the section and the illustration show that neither the contributory action of
Appala Narasimhulu in throwing away part of the sweetmeat, nor the contributory action of the
girl in picking it up and eating it prevent holding that it was the accused that caused the girl‘s
death.
Ganesh Dooley Case (1879)
(Sometimes even gross negligence may amount to knowledge)
A snake charmer exhibited in public a venomous snake whose fangs he knew had not been
extracted and to show his own skill but without intention to cause harm to anyone, placed the
snake on the head of the one of the spectators. The spectator in trying to push off the snake was
bitten and died in consequence. The snake charmer was held guilty of culpable homicide not
amounting to murder.
Mens rea and actus reus Relationship
Palani Goundan v. Emperor 1919, Mad. H.C.

Husband struck a violent blow on the head with ploughshare. She became unconscious. It was
not shown to be a blow likely to cause death. He thought that she had died. So for concealment
of evidence, he hanged her. She died due to hanging. He was not liable either for culpable
homicide or murder. He was liable only for causing of grievous hurt and concealing evidence.
He had neither intention nor knowledge to kill his wife.
In Re Thavamani Case, 1943 Mad. H.C.
There are two stages of the facts of the case.
First stage - In the first stage there was intention to cause death. They hit the woman. They
thought that she had died. In reality she was merely unconscious.
Second stage - After believing her death they threw in well to conceal evidence. She died in
well.
Second stage was continuation of first stage. So he was guilty of murder.
Emperor vs. Dhirajia (1940)
She jumped into the well along with her baby and her baby died. She jumped into the well with
excuse. Excuse was that she did due to fear of her husband who were running behind her.
Allahabad High Court held that every sane person shall be presumed to have knowledge about
his/ her own conduct. She had done with excuse. So she was liable only for culpable homicide
rather than murder.
Difference between Culpable Homicide (CH) and Murder
According to Sir James Fitzjames Stephen (Father of Indian Evidence Act) CH and Murder is
the weakest part of the Code because in both cases death of person is involved as well as
intention and knowledge. There are two leading cases one was decided by Justice Melvil (R v.
25
Govinda, July 18, 1876, Bombay High Court) and another decided by Justice Ranjit Singh
Sarkaria (State of A.P. v. R.Punnayya, September 15, 1976, Supreme Court).
There are two types of homicide namely; lawful homicide (Sections 76 to 106) and unlawful
homicide (299, 300, 301, 304A, 304B, 305, 306,307, 308, 309). All homicide is not culpable
homicide (unlawful homicide). But all culpable homicide is homicide. All culpable homicide is
not murders, but all murders are culpable homicide.
Example – Suppose there are three children namely A, B and C. Age of all is 18 years
(Homicide). But at the sharp age of 18 years A died but B and C completed age of 60 Years
(Culpable Homicide). But at the sharp age of 60 years B died, but C still surviving and
completed age of 90 years (Murder).
Age of 18 years is equal to - Homicide.
Age of 60 years is equal to - Culpable Homicide.
Age of 90 years is equal to - Murder.
C is person who completed age of 90 years. But before completing age of 90 years, he had to
complete age of 18 years (Homicide). He had also completed age of 60 years (Culpable
Homicide). After completing age of 60 years, he also completed age of 90 years. So all murder is
CH but all CH is not murder. All culpable homicide is homicide but all homicide is not culpable
homicide.
Difference among Homicide, Culpable Homicide and Murder depends upon mental condition of
human being. If person is doing without intention to commit wrong that will amount only
Homicide. For example death caused by person under section 100 or 103 is merely homicide.
If homicide is caused with guilty mind that will amount to culpable homicide. If there is higher
degree of guilty mind that culpable homicide amount murder. There are five exceptions of
murder. All exceptions are murder but they have been put under categories of culpable homicide
because of special reasons.
Division of Culpable Homicide and murder
It may be divided on the basis of two grounds mental condition and nature of injury.
Mental condition - Culpable Homicide and murder may be divided into two parts on the ground
of mental condition namely;
(1) Culpable Homicide and murder caused with intention and
(2) Culpable Homicide and murder caused with knowledge.
Nature of Injury - Culpable Homicide and murder may be divided into two parts on the ground
of nature of injury namely;
(1) Intention to cause death or
(2) Intention to cause bodily injury, and
(3) Knowledge of act.
R v. Govinda,
(Justice Melvil, Bombay High Court, July 18, 1876)
Facts – The Court observed ―In the present case the prisoner, a young man of 18, appears to
have kicked his wife, (a girl of 15) and to have struck her several times with his fist on the back.
These blows seem to have caused her no serious injury. She, however, fell on the ground, and I
think that the evidence shows that the prisoner then put one knee on her chest, and struck her
two or three times on the face. One or two of these blows, which, from the medical evidence, I
believe to have been violent and to have been delivered with the closed fist, took effect on the
26
girl‘s left eye, producing contusion (A wound in which the skin is not broken; often having
broken blood vessels and discolouration ) and discoloration. The skull was not fractured, but the
blow caused an extravasation (discharge) of blood on the brain, and the girl died in
consequence either on the spot, or very shortly afterwards.‖
Decision - Prisoner was convicted of culpable homicide not amounting to murder, and he was
sentenced to transportation for seven years.
Ratio- Justice Melvil made differences between CH and murder. For convenience he divided
guilty mind for culpable homicide under three categories namely; (a), (b) and (c).He made three
categories to make difference namely;
(1) Intention to cause death, (C.H. – (a), Murder – Firstly)
(2) Intention to cause bodily injury, (C.H. – (b), Murder – Secondly & Thirdly)
(3) Knowledge of act. (C.H. –(c), Murder – Fourthly)
(1) Intention to cause death - S. 299(a) and S.300 (Firstly)
In case of intention to cause death culpable homicide is always murder.
Justice S.299 (a) - Intention to cause death - On this S. 300(Firstly)- Intention to cause
Melvil point, there is no difference. It means death.
homicide is committed with intention to ―(a) and (1) show that where there is an
cause death, that homicide is always murder. intention to kill, the offence is always
murder.‖
(2) Intention to cause bodily injury - (S.299 (b) & S.300– (Secondly) & (Thirdly)
In section 299 only (b) category talks about intention to cause bodily injury while S.300–
Secondly & Thirdly deals intention to cause bodily injury. In section 300– Secondly & Thirdly
certain specific words have been which increase the gravity of guilty mind.
2 (b) Secondly
(b)Intention to cause bodily injury + (Secondly)Intention to cause bodily injury + Offender
by such bodily injury, it is likely to knows that by such bodily injury, it is likely to cause
cause death death.( Intention + knowledge+ likely).
(Intention +Likely). Here knowledge of offender has enhanced probability
Here knowledge is missing. of death.
(b) Thirdly
(b) Intention to cause bodily injury + Thirdly- With the intention of causing bodily injury to
by such bodily injury, it is likely to any person, and the bodily injury intended to be inflicted
cause death. (Intention + Likely). is sufficient in the ordinary course of nature to cause
(The distinction lies between a bodily death. By using the words sufficient in the ordinary
injury likely to cause death and a course of nature, enhanced the gravity of probability.
bodily injury sufficient in the (1)State of A.P. v. R.Punnayya. J Ranjit Singh Sarkaria.
ordinary course of nature to cause (2)Virsa Singh v. The State of Punjab, Justice Vivian
death.) Bose .
27
(3) Knowledge of act. (S.299 –(c), S. 300 – Fourthly)

Existence of imminently dangerous (ID Card) and all probability to cause death enhance the
gravity of knowledge.
3 Knowledge (c) Knowledge(Fourthly)
No Knowledge + Knowledge+ Imminently Dangerous(ID) + all probability
intention, Likely to cause to cause death + without excuse. For example-Terrorist attack
only death
knowledge
Without any excuse
(1) Emperor v. Dhirajia. Dhirajia has done with excuse. So
she was liable only for culpable homicide.
(2) Gyarsibai w/o Jagannath v. The State . Gyarsibai has
done without execuse. So She was liable for murder.
Conclusion –
There are following stages -
Homicide - (1) There must be death, (2) That death must be caused by act of accused. (Cause -
effect relationship). Culpable Homicide- Cause-effect relationship must be result of guilty mind
as mentioned in 299. Murder – Culpable homicide may come under the category of murder if
conditions mentioned under section 300 are being fulfilled. Murder may convert into CH only in
five exceptional circumstances mentioned in section 300
Differences between Section 299 and Section 300
Homicide CH Murder
Chapter 299 300
IV(Sections7
6-106)
1 Intention to cause death rather Intention to cause death rather than bodily
than bodily injury injury
Intention To (a)Intention to cause death (J. (Firstly) Intention to cause death. Justice
Cause Death Melvil , On this point , there is no Melvil-R v. Govinda (1876)
difference-. It means homicide is ―(a) and (1) show that where there is an intention
committed with intention to cause to kill, the offence is always murder.‖
death, that homicide is always
murder.
2 Intention to cause bodily injury Intention to cause bodily injury
(b) Secondly & Thirdly
Intention to (b)Intention to cause bodily (Secondly)Intention to cause bodily injury +
cause bodily injury + by such bodily injury, it Offender knows that by such bodily injury, it is
28
injury is likely to cause death likely to cause death.( Intention + knowledge+

rather than (Intention +Likely). likely). Here knowledge of offender has
death Here knowledge is missing. enhanced probability of death.
(b) Intention to cause bodily Thirdly- With the intention of causing bodily
injury + by such bodily injury, it
injury to any person, and the bodily injury
is likely to cause death. intended to be inflicted is sufficient in the
(Intention+Likely). ordinary course of nature to cause death; By
(The distinction lies between a using the words sufficient in the ordinary course
bodily injury likely to cause of nature, enhanced the gravity of probability.
death and a bodily injury State of A.P. v. R.Punnayya.
sufficient in the ordinary course
J Ranjit Singh Sarkaria.
of nature to cause death). In Virsa Singh v. The State of Punjab, Justice
Vivian Bose .
3 Knowledge (c) Knowledge(Fourthly)
No Knowledge + Likely to cause Knowledge+ Imminently Dangerous + all
intention, death probability to cause death + without excuse.
only For example-Terrorist attack
knowledge
Without any excuse
(1) Emperor vs. Dhirajia,
(2) Gyarsibai W/O Jagannath vs. The State
DIFFERENCE BET. SEC.299 & 300 REGARDING SENTENCES

Murder C H (Intention) C H (Knowledge)
Section 302 Section 304 ( Part 1) Section 304 (Part 2)
Death or LI and LI or Ten years imprisonment and fine Ten years of either description or
fine fine or both. No L I.
Section 299 (a) & Section 300 Firstly (Intention to cause death)
Rawalpenta Venkalu v. State of Hyderabad AIR 1956 SC 171
There was long dispute between the deceased and the family of the second appellant( Bodla Ram
Narsiah) regarding land. Rawalpenta Venkalu is the first appellant. After taking toddy and wine,
they went to the house of the deceased(Md. Moinuddin) to burn alive him and locked the house
and second appellant set the fire to the house with a match stick. Md. Moinuddin was crying for
help. His servants tried to save him. They were assaulted by the accused. Servants went towards
village for help. When villagers came for help they were also beaten indiscriminately. So they
returned back.
Supreme Court found that there was clear intention to cause death. So appeal was dismissed. It
means death sentence of appellant was confirmed.
29
Kapur Singh v. State of Pepsu43
Facts - 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 with the help of Chand Singh took revenge. 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 thus
inflicted none was inflicted on a vital part of the body.
Decision - Appellant had no intention to cause death. But by such bodily injury it was likely to
cause death. He was convicted under section 304(1) of IPC. The Court rejected to apply section
302.
Virsa Singh v. State of Punjab44 (March 11, 1958) (Justice Vivian Bose)
Facts – There was only one injury on the body of Khem Singh. Virsa Singh thrust a spear into
the abdomen of the deceased. This injury caused his death. In the opinion of the doctor the
injury was sufficient to cause death in the ordinary course of nature.
Section 300, thirdly
―If it is done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death.‖
Contentions of Appellant – Main contention of the appellant was that there are two parts of
section 300 thirdly and in both parts intention is necessary. It means (1) there must be intention
to cause bodily injury and (2) there must be intention to cause such bodily injury as is sufficient
in the ordinary course of nature to cause death. According to contention in both cases subjective
test must be followed.
Decision of Court – Supreme Court rejected this contention. Supreme Court held that there are
two parts of section 300 thirdly. The Court said that these two parts are disjunctive and separate.
These parts are namely;
Part1-If it is done with the intention of causing bodily injury to any person (Subjective test) and
Part 2- the bodily injury intended to be inflicted (It is descriptive of part 1) is sufficient in the
ordinary course of nature to cause death (Objective Test).
Part 1 & Intention – Intention is necessary only for part one. It must be proved that bodily
injury was caused with intention. It must not be accidental or unintentional. It must be decided
according to subjective test. Personal intention is necessary.
Part 2 & Intention – In the second part intention is not necessary. To decide whether bodily
injury is sufficient or not, objective test must be followed.
43
AIR 1956 SC 654
44
AIR 1958 SC 465.
30
Four Steps
To put it shortly, the prosecution must prove the following facts before it can bring a case under
section 300 thirdly-
First Step - it must establish, quite objectively, that a bodily injury is present ;
Secondly Steps- the nature of the injury must be proved; These are purely objective
investigations.
Thirdly Steps- 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- Subjective Test.
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourthly Steps - 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.
Once these four elements are established by the prosecution (and, of course, the burden is on the
prosecution throughout) the offence is murder under section 300 thirdly.
Decision – Virsa Singh was convicted by the first court under section 302 and his conviction and
sentence were upheld by the High Court. Appeal was dismissed by the Supreme Court.
Remarks – In Virsa Singh case Supreme Court has explained the meaning and scope of section
300(3).45 Guidelines were laid down to attract section 300(3).
Thus according to the rule laid down in Virsa Singh‘s case even if the intention of accused was
limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of
nature and did not extend to the intention of causing death, the offence would be murder.
State of A.P. v. R. Punnayya & Another46
(Sept. 15, 1976, S.C. Justice Ranjit Singh Sarkaria)
Facts -In Rompicherla village, there were factions belonging to three major communities viz.,
Reddys, Kammas and Bhatrajus.
45
M.P.H.J.S. (Pre) 2010.
46
AIR 1977 SC 45.
31
(1) Rayavarapu (Respondent No. 1 herein) was the leader of Kamma faction. Kammas were
supporters of Swatantra Party.
(2) Chopparapu Subbareddi was the leader of the Reddys. The Reddys were supporting the
Congress Party.
Several times disputes have occurred between both group during elections.
(3) Sarikonda Kotamraju, the deceased person in the instant case, was the leader of Bhatrajus.
In order to devise protective measures against the onslaughts of their opponents, the Bhatrajus
held a meeting at the house of the deceased, wherein they resolved to defend themselves against
the aggressive actions of the respondents and their party men. PW 1, a member of Bhatrajus
faction has a cattle shed. The passage to this cattle-shed was blocked by the other party. The
deceased took PW 1 to Police Station Nekarikal and got a report lodged there. On July 22, 1968
Sub-Inspector visited the place and directed to come at police station for compromise. There
were some disputes pending in Court before a Magistrate at Narasaraopet.
July 23, 1968 - On the morning of July 23, 1968, at about 6-30 a.m., the deceased with two other
person boarded bus for going to Nekarikal. Some minutes later, Accused 1 to 5 also got into the
same bus. When the bus stopped at Nekarikal Cross Roads, at about 7-30 a.m., the deceased and
his companions alighted for going 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 of 55 years. 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. One of the by-standers, asked the assailants as to why they were mercilessly beating a
human being, as if he were a buffalo. The assailants angrily retorted that the witness was nobody
to question them and continued the beating till the deceased became unconscious. The accused
then threw their sticks at the spot, boarded another vehicle, and went away. The victim was
removed to Narasaraopet Hospital in a temporar. There, at about 8.45 a.m., Doctor Konda Reddy
examined him and found 19 injuries, out of which, no less than 9 were (internally) found to be
grievous.
Autopsy Report - The autopsy was conducted by Dr. P.S. Sarojini in whose opinion, the injuries
found on the deceased were cumulatively sufficient to cause death in the ordinary course of
nature. The cause of death, according to the Doctor, was shock and haemorrhage resulting from
multiple injuries.
Decision of Supreme Court
Supreme Court laid down several important points –
(1) Genus and Species – In the scheme of the Indian Penal Code, ‗culpable homicide‘ is genus
and ‗murder‘ its species. All ‗murder‘ is ‗culpable homicide‘ but not vice-versa.
32
Speaking generally, ‗culpable homicide‘ sans (sans means without) ‗special characteristics of
murder‘, is ‗culpable homicide not amounting to murder‘. ‗Culpable homicide‘ with ‗special
characteristics of murder‘, is ‗culpable homicide amounting to murder‘.
(2) Degrees of Culpable Homicide –
For the purpose of fixing punishment, proportionate to the gravity of this generic
offence, IPC practically recognizes three degrees of culpable homicide.
(a) 1st Degree -The first is, what may be called, culpable homicide of the first degree. This is the
gravest form of culpable homicide which is defined in section 300 as ‗murder‘.
(b) 2nd Degree -The second may be termed as ‗culpable homicide of the second degree‘. This is
punishable under the 1st part of section 304. Culpable homicide committed with intention
(c) 3rd Degree - 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. Culpable homicide committed with knowledge.
Difference Bet. Sec.299 & 300 Regarding Sentences
1st Degree 2nd Degree (Middle Degree) 3rd Degree (Lowest Degree)
(Highest Degree) C H (Intention) C H (Knowledge)
Murder
(3) Difference between CH and Murder –

The safest way of approach to the interpretation and application of these provisions seems to be
to keep in focus the key words used in the various clauses of ss. 299 and 300. With the help of
comparative table, distinction was discussed.
(1) Clause (b) of s. 299 corresponds with cl. (2) of s. 300.
The distinguishing feature of the mens rea requisite under cl. (2) is the knowledge possessed by
the offender regarding the particular victim being in such a peculiar condition or state of health
that the intentional 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. It is noteworthy that the ‗intention to cause death‘ is not an essential
requirement of el. (2). 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 aspect of cl. (2) is borne out by
illustration (b) appended to s. 300.
(2) Clause (b) of s. 299 corresponds with cl. (3) of s. 300.
In clause (3) of s. 300, instead of the words ‗likely to cause death‘ occurring in the
corresponding el. (b) of s. 299, the words ―sufficient in the ordinary course of nature‖ have
33
been used. Obviously, 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. The distinction is fine but
real, and, if overlooked, may result ‘in miscarriage of justice. The difference between cl. (b) of
s. 299 and cl. (3) of s. 300 is one of the degree of probability of death resulting from the intended
bodily injury. To put it more broadly, it is the degree of probability of death which determines
whether a culpable homicide is of the gravest, medium or the lowest degree. The word ―likely‖
in cl. (b) of s. 299 conveys the sense of ‘probable‘ as distinguished from a mere possibility. The
words ―bodily injury... sufficient in the ordinary course of nature to cause death‖ mean that
death will be the ―most probable‖ result of the injury having regard to the ordinary course of
nature.
(3) Clause (c) of s. 299 and cl. (4) of s. 300
Both require knowledge of the probability of the causing death. It is not necessary for the
purpose of this case to dilate much on the distinction between these corresponding clauses. It will
be sufficient to say that cl. (4) of s. 300 would be applicable where the knowledge of the offender
as to the probability of death of a person or persons in general as distinguished from a particular
person or persons being caused from his imminently dangerous act, approximates to a practical
certainty. Such knowledge on the part of the offender must be of the highest degree of
probability, the act having been committed by the offender without any excuse for incurring the
risk of causing death or such injury as aforesaid.
(4) Bodily Injury (Singular) v. Bodily Injuries (Plural) - The mere fact that the beating was
designedly confined by the assailants to the legs and arms, or that none of the multiple injuries
inflicted was individually sufficient in the ordinary course of nature to cause death, will not
exclude the application of Clause 3rdly of section 300. The expression ―bodily injury‖ in Clause
3rdly includes also its plural, so that the clause would cover a case where all the injuries
intentionally, caused by the accused are cumulatively sufficient to cause the death in the ordinary
course of nature, even if none of those injuries individually measures up to such sufficiency. The
sufficiency spoken of in this clause is the high probability of death in the ordinary course of
nature, and if such sufficiency exists and death is caused and the injury causing it is intentional,
the case would fall under Clause 3rdly of section 300.
(5) Virsa Singh Case (1958) – Ruling of Virsa Singh Case was accepted. According to the rule
laid down in Virsa Singh‘s case even if the intention of accused was limited to the infliction of a
bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the
intention of causing death, the offence would be murder. Illustration (c) appended to s. 300
clearly brings out this point.
(6) Murder - All the conditions which are a pre-requisite for the applicability of this clause have
been established and the offence committed by the accused in the instant case was ‗murder‘.
34
Emperor v. Mt. Dhirajia47 (June 4, 1940) Justice Braund
Facts – . This is the case of Varanasi.There were dispute between Mt. Dhirajia and her husband
Jhagga. Husband was continuously beating. They had a six months old baby. the wife desired to
go to visit her parents whole Jhagga was opposing.One day she woke up and started to move
with her baby along with railway track. Late that night 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
Mt. Dhirajia turned round in a panic, ran a little distance with the baby girl in her arms and then
either jumped into an open well which was at some little distance from the path. Baby died and
she eventually survived. She was charged for committing murder of baby and attempt of suicide.
Decision –
Important point of this case -
(1) First step CH and Second step Murder - According to the scheme IPC, ‗murder‘ is merely a
particular form of culpable homicide, and one has to look first to see in every murder case
whether there was culpable homicide at all. If culpable homicide is present then the next thing to
consider is whether it is of that type which under section 300 is designated ‗murder‘ or whether it
falls within that residue of cases which are covered by Section 304 (Punishment for CH) and are
designated ‗culpable homicide not amounting to murder‘.
(2) Intention vs. Knowledge – 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 which 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.‖
(3) ..such act.. must be ―without any excuse for incurring the risk of causing death....‖ –
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
47
AIR 1940 All. H.C. 486
35
jumped into the well. She had excuse and that excuse was panic or fright. For these reasons Mt.
Dhirajia is not guilty of murder.
(4) Attempt to suicide – She was acquitted. She did not take conscious effort to take own life.
She did so in an effort to escape from her husband.
(5) Conviction for Killing of baby – She was convicted under section 304 because she had done
with knowledge under excusable circumstances.
(6) Punishment – 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.
Gyarsibai w/o Jagannath vs The State48 ( 23 Oct., 1952) Madhya Pradesh High Court
Justice Dixit
Facts - 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 and
very often Jagannath used to slap the appellant for picking up a quarrel with her sister-in-law
Kaisar Bai. It is alleged that one such quarrel took place on the morning of 14.8.1951 when
Jagannath was away from his home. 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. A few hours after, 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 Committing 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.
Decision – Gyarsibai was convicted for murder as well as for attempt of suicide. Appeal was
dismissed. (1) She jumped into the well in consciousness. So she was liable for attempt to
suicide. (2) She was liable for causing murder of three children because she had jumped into the
well without any excuse. She did this only for satisfaction of self-ego. There was no any
imminent danger.
Exceptions of Section 300
There are five exceptions of section 300 namely;
(1) Grave and sudden Provocation (2) Private Defence (3) Acts of Public Servants (4) Sudden
Fight (5) Consent
Exception 1 of Section 300 - Grave and sudden Provocation
K.M.Nanavati v. State of Maharashtra49 (Nov. 24, 1961)
Nanavati, a Naval Officer, was charged for committing murder of wife‘s paramour. She had
three children. On the day of occurrence his wife Sylvia confessed to him of her illicit intimacy
with Prem Bhagwandas Ahuja, a businessmen of Bombay. He drove his wife and children to a
cinema where he dropped them promising to pick them up when the show ended at 6 p.m.,
48
M.P.Civil Judge, 1989.
49
AIR 1962 SC 605
36
and the accused went to his ship, took from its stores a revolver and cartridges on a false
pretext, loaded the same, went to Ahuja‘s flat, entered his bed room and shot him dead.
Essential Ingredient of Exception - Homicide is the killing of a human being by another. Under
this exception, 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-
(1) 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.
(2) 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.
(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) 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.
Decision - He was liable for murder under section 302. He could not get benefit of section 300
Exception 1. In this case fact was grave (keeping of sexual intercourse without consent of
husband is grave) but death caused by Nanavati was not sudden. Grave and sudden must be
decided according to fact and circumstances of the case.
Ghapoo Yadav & Ors. v. State of M.P. ( Feb. 2003)
(Difference between Exception (1) and Exception(4)

Exception 4 -For bringing in its operation it has to be established that the act was committed
without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without
the offender having taken undue advantage and not having acted in a cruel or unusual
manner.
Facts of the Case - There was land dispute. After measurement of the land possession of berry
tree changed. It was cut down. On this point altercation and scuffle started. Without
premeditation fight started. During this one person seriously injured and felt down on earth.
After this no injury was caused this person (He was not beaten cruelly). His dying declaration
was recorded. He died.
Decision – He got the benefit of exception four and he was punished under section 304(1st Part).
Ratio of this Case – There are following important points which were discussed in this case –
37
(1) Difference between Exception 1 and Exception 4-

(i) Principle is same. 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 deeds which they would not
otherwise do.
(ii) There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct
consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding
that a blow may have been struck, or some provocation given in the origin of the dispute or in
whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts
them in respect of guilt upon equal footing.
(2) Meaning of Sudden Fight - 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.
(3) Mutual Provocation and aggravation -
There is no previous deliberation or determination to fight. A fight suddenly takes place, for
which both parties are more or less to be blamed. It may be that one of them starts it, but if the
other had not aggravated it by his own conduct it would not have taken the serious turn it did.
There is then mutual provocation and aggravation, and it is difficult to apportion the share of
blame which attaches to each fighter.
Poonai Fattemah v. Emperor50(1869)
Exception -5 of Section 300 and Section 90 (Consent)
Exception -5- The points to be proved are:
(1) The death was caused with the consent of the deceased;
(2) The deceased was then above 18years of age;
(3)That such consent was free and voluntarily and not given through fear or misconception of
facts.
Facts- The accused, who professed to be a snake-charmer persuaded the deceased to allow
himself to be bitten by a poisonous snake, including him to believe that he had power to protect
him from harm.
It was held that consent was given under a misconception of facts arising out of the
misrepresentation made by the accused that he had power by charms to cure snake bites and the
accused knew that the consent was given in consequence of such misconception and therefore,
the accused not entitled to protection on the ground of consent of the deceased.
Decision – Accused was guilty of murder.
Dashrath Paswan v. State of Bihar51 (Nov. 14, 1957) (Patna High Court)
Dashrath Paswan was a student of class X. He had failed at the annual examination for 3 years
in succession. The deceased, his wife, was aged about 19 years. It appears that she was a literate
50
UPHESC Exam, 2014.
51
AIR 1958 Pat. 190.
38
woman. The appellant was very much upset at these failures. He told his wife that he had
decided to end his life.
His wife told him in reply that he should first kill her and then kill himself. This talk took place
at about 8 a.m. on 13-6-55. That morning the parents of the appellant had gone out early in the
morning to work in the fields and there was nobody else in the house besides the appellant and
his wife. In accordance with the pact, about an hour later, the wife spread a mat on the floor in
one of the rooms in the house and lay down quietly. The appellant at first struck her with a bhala
causing a minor injury on her chest. Then he took up a sharp-cutting hasuli and gave her three
violent blows on the neck killing her on the spot.
He then ran out of the house with his bloodstained clothes in order to end his own life. He was
arrested.
Reason -It is undisputed that the deceased was above the age of 18 years and that she had
suffered death with her own free consent. Decision - He was punished under section 304, Part –I.
Section 301 (Transfer of Malice/Transmigration of motive)
The English doctrine of Transfer of Malice/Transmigration of motive has been embodied in

section 301.52 Example –A intends to kill B but kills C whose death he neither intends nor knows
to be likely to cause, the intention to kill C is by law attributed to him. A has committed an
offence under section 301.53
Section 302
Punishment for murder- Whoever commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to fine.
There are two types of punishment for death namely;
(1) Death Sentence/ Capital punishment and fine, or
(2) Imprisonment for life, and fine.
If a court of Session awards rigorous imprisonment for ten years to a person whose age was 70
years and he was also disabled, such punishment is unlawful because punishment for murder can
be either Capital punishment or imprisonment for life. There is no provision for awarding
punishment for ten years.54
Bachan Singh v. State of Punjab (9 May, 1980) - In this case Supreme Court said that death
sentence can be imposed only in the ‗rarest of the rare‘ cases.55 Capital punishment from Indian
Society cannot be abolished. Life imprisonment is rule while death sentence is an exception. 56
52
Uttarakhand (J) (Pre) 2011.
53
U.P.A.P.O 2002. M.P. Civil Judge, 2010.
54
M.P.Civil Judge, 1986.
55
U.P.A.P.O 2005 & 2007. M.P.APO 2009.
56
Uttarakhand (J) (Pre) 2011.
39
Section 303
Punishment for murder by life-convict -Whoever, being under sentence of imprisonment for
life, commits murder, shall be punished with death.
This section provides mandatory death sentence for murder committed by convict serving a
sentence of life imprisonment.
Since 1860- 1983 – Section 303 was valid during 1860- 1983.
After 1983 – Mithu Singh v. State of Punjab (April 7, 1983) – In this case Constitutional bench
comprises by five judges struck down section 303 on the basis of violation of article 14 and 21 of
the Constitution of India.57
Section 304
Punishment for culpable homicide not amounting to murder –
Part I (Intention) -Whoever commits culpable homicide not amounting to murder shall be
punished with imprisonment for life, or imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act by which the death is caused is
done with the intention of causing death, or of causing such bodily injury as is likely to cause
death, or
Part II (Knowledge) -with imprisonment of either description for a term which may extend to
ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to
cause death, but without any intention to cause death, or to cause such bodily injury as is likely
to cause death.
Division of Culpable Homicide
Culpable homicide may be divided into two parts –
(1) Culpable homicide not amounting to murder – Section 299, Exceptions of section 300 and
punishment therefore section 304.
(2) Culpable homicide amounting to murder – Section 300 and punishment therefore 302.
1st Degree 2nd Degree (Middle Degree) 3rd Degree (Lowest Degree)
(Highest Degree) C H (Intention) C H (Knowledge)
Murder
Sec. 299 (a) & (b)and Sec. 299 (c) and
Exceptions of 300 (If it is related to Exceptions of 300 (If it is related
Intention) to knowledge)
57
Uttarakhand PCS(J), 2002, 2005, 2009, UPHJS 2009, MPAPO 2008, UPAPO 2002, UPPCS J 2006
40
Example - If the offender has the intention to cause bodily injury accompanied with the
knowledge that such injury is likely to cause the death of the person injured as defined in s. 300,
cl.(2), then the offence will come under section 302 and not section 304, Part I, unless it falls
under any of the five exceptions u/s 300 of IPC.58
M.B.Singh v. Manipur Administration,59 it was held that the appellant was guilty of the offence
under Part I to section 304 of IPC, when he exceeded his right of private defence by brutally
killing the deceased who was an old person.
Section 304A
Section 304A. Causing death by negligence-Whoever causes the death of any person by doing
any rash or negligent act not amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.
Section 304A was inserted in 1870 to cover those cases which were caused by either rash or
negligent and not covered by section 299 and 300. Law Commission of India in its 42nd Report
(1971) recommended increasing punishment up to five years. Negligent or rashness driving is
main concern.
To bring homicide under section 304A following conditions must be fulfilled-
(1) There must be homicide (2) The accused must cause such death ( Cause-effect Relationship)
(3) Such death must be caused by rash or negligent act (4) Such death must not fall under
sections 299 and 300.
Rashness -
Cherubin Gregory v. State of Bihar,60 (July 31, 1963)
Facts - Cherubin Gregory was charged under section 304A of Indian Penal Code for causing the
death of Mst. Madilen . The deceased was residing near the house of the accused. The wall of
the latrine of the house of the deceased had fallen down about a week prior to the day of
occurrence and so the deceased along with others started using the latrine of the accused. The
accused protested against their coming there. The oral warnings however, proved ineffective
and so he fixed up a naked copper wire across the passage leading up to his latrine and that
wire carried current from the electrical wiring of his home to which it was connected. There
was no warning that the wire was live. The deceased managed to pass into the latrine without
contacting the wire but that as she came out her hand happened to touch it and she got a shock as
a result of which she died soon after.
Decision –
58
V Suresh & D Nagasila, PSA Pillai‟s Criminal Law 648 ( LexixNexis, New Delhi, Edn., 9th, Fourth Reprint,
2007).
59
AIR 1967 Manipur 41
60
AIR 1964SC 205
41
(1) Right of Private Defence – Although he was trespasser. But mere trespass has not been
mentioned under section 103 in which death of person may be caused.
(2) Culpable Homicide- Accused had no intention to cause death. So he was not liable for
culpable homicide.
(3) Duty towards trespasser -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.
(4) Rashness - 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 current of that voltage was a ‗rash act‘
done in reckless disregard of the serious consequences to people coming in contact with it.
Cherubin Gregory was liable under section 304A. Appeal was dismissed.
S.N.Hussain v. State of Andhra Pradesh61 (DOJ Jan. 5, 1972)

S.N.Hussain was bus driver. Accident occurred at the time of crossing railway gate. Gate was
open and he was driving in slow speed and due to cold freeze there was less visibility. Goods
train dashed against bus. Some passenger died and others severally injured. He was charged
under section 304A.
Meaning of Rashness- Rashness consists in hazarding a dangerous or wanton act with the
knowledge that it is so, and that it 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.
Decision – He was acquitted.
Important Facts of this case - (1) The bus was not driven and could not have been driven fast.
(2) 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.
(3) The railway track was at a higher level and the road was lined by babbool trees and,
therefore, a passing train coming from a distance was not visible from the bus.
(4) The bus was making a huge noise because it was not fitted with the silencer.
61
AIR 1972 SC 685
42
(5) As a cold breeze was blowing some of the window screens of the bus were lowered for the
comfort of the passengers in the bus.
(6) 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.
43
Kidnapping and Abduction

Contact no. -7985255882
Some Important Points
(1) There are two types of kidnapping (Section359).62
These are (I) Kidnapping from India, (II) Kidnapping from Lawful Guardianship.
(2) Kidnapping comes under category of strict liability. Intention of accused is immaterial.
Intention of accused is not essential ingredient of kidnapping.63
(3) For kidnapping – Under 16 years of age if a male and under 18 years of age if a female.64
(4) S. Varadrajan v. State of Madras is related to section 363 (Punishment for Kidnapping).65
(5) Importation of girl from foreign country for illicit intercourse, Section 366B– What should be
age? – Under 21 Years.66
Introduction – ‗Kidnapping‘ is combination of two words namely kid (child) and napping
which is American cant word means stealing. Kidnapping is an offence against lawful
guardianship.67 There are two types of kidnapping (Section359).68These are (I) Kidnapping from
India (Section 360), and (II) Kidnapping from Lawful Guardianship (Section 361).
Section 360- Kidnapping from India.—Whoever conveys any person (Section11) beyond the
limits of India (Sec. 18) without the consent (Section 90) of that person, or of some person
legally authorised to consent on behalf of that person, is said to kidnap that person from India.
Section 361 - Kidnapping from lawful guardianship –
(1) Whoever takes or entices any (TEA)
(2) minor under sixteen years of age if a male, or under eighteen years of age if a female, or any
person of unsound mind, (Minor or Person of Unsound mind)
(3) out of the keeping of the lawful guardian of such minor or person of unsound mind,
(4) without the consent of such guardian,
62
MP Civil Judge, 2002
63
UPAPO 2002
64
65
Uttarakhand Civil Judge, 2009.
66
Uttarakhand Civil Judge, 2011.
67
Law Commission of India, 42nd Report, Para No.16.93 (June 1971) available at:
http://lawcommissionofindia.nic.in/1-50/Report42.pdf (Visited on October 3, 2018).
68
44
is said to kidnap such minor or person from lawful guardianship.

Explanation -The words ―lawful guardian‖ in this section include any person lawfully
entrusted with the care or custody (CC) of such minor or other person.
Exception –
Illegitimate Child - This section does not extend to the act of any person who in good faith (52)
believes himself to be the father of an illegitimate child, or who in good faith believes himself to
be entitled to lawful custody of such child, unless such act is committed for an immoral or
unlawful purpose (I U.P.).
Law Commission of India -- Law Commission of India in its 42nd Report suggested to make
equal age of male and female and change in Explanation .It suggested under 18 years of age for
male and female.
S. No. Kidnapping from India Kidnapping from Lawful Guardianship
1 Conveys Taking or enticing
2 Any Person Minor or Person of Unsound mind
3 Beyond the limits of India Out of Lawful guardianship
4 Without consent Consent is immaterial
5 Out of keeping of lawful Out of keeping of lawful guardianship.
guardianship has not been Kidnapping of orphan is not possible. If he is in
mentioned here. Kidnapping of orphan home then kidnapping is possible.
orphan from India is possible.
Abduction
Section 362 - Abduction–
(1) -Whoever by force compels, or by any deceitful means induces, (FCDI) (2) any person (3)
to go from any place,
is said to abduct that person.
Vishwanath v. State of U.P.69

In this case following important points were laid down -
(1)For section 100 simple abduction is sufficient. No need of further object.
(2) Abduction per se is not an offence. Abduction pure and simple is not an offence under IPC.
Only abduction with certain intent is punishable as an offence. Abduction is an offence only if it
is done with intent to
69
AIR 1960 SC 67
45
(i) Murder (S. 364) (ii) Secretly and wrongfully confine person (S. 365) (iii) Induce women to
compel her marriage (S. 366) (iv) Grievous hurt, slavery etc.( S. 367) (v) Steal from a person
under 10 Years (S. 369).
Abduction is not offence. It is continuing offence.
Difference between Kidnapping and Abduction
S.N. Kidnapping Abduction
1 Kidnapping is substantive offence. It is an Abduction is not a substantive offence .
offence under section 363. It is an offence only when done with
some other intent as given in sections
363A, 364,364A to 369.
2 Kidnapping is not continuing offence. It is Abduction is a continuing offence and
complete as soon as the minor or person of continues so long as the abducted person
unsound mind is removed from lawful is removed from one place to another
guardianship. person.
3 Minor (M-16 Years, F-18Years) or Person Any person
of unsound mind
4 TEA FCDI
5 Without Consent of guardian Without Consent
6 Consent of victim is immaterial. He or Free and voluntarily consent of the
she is not capable to give consent. person abducted condones abduction.
7 Intention of the kidnapper is immaterial Intention of the abductor is an

for the offence. important factor in determining guilt
of the accused.
8 Out of keeping of Lawful Guardianship. Abduction of orphan is possible.
Kidnapping of orphan is not possible.
46
KIDNAPPING (Kid - Child+Napping – American word -

Thief)70
Sec.359 Kind of Kidnapping

360 Kidnapping from India
361 Kidnapping from lawful guardianship
363 Punishment for kidnapping
KIDNAPPING
TEA-(T-Take, E-entices, A-any minor)
9 Sep. 1964 S.C. S. Varadrajan vs. State of Madras.
No offence under section S. Varadrajan was acquitted.
363 ―There is a distinction between ―taking‖ and allowing a
minor to accompany a person.‖
In this case, there was no taking.
Savitri had fallen in love of neighboring person S. Varadrajan.
27 October, 1972 State of Haryana v. Raja Ram
Keeping =CPC….M
CPC=C—charge, P- protection, C- control
..M- Maintenance.
Force or fraud is not necessary. Persuasion is sufficient.
2 May Thakorilal D Vadgama vs. State of Gujarat
1973 Meaning of taking and enticing.
S.C. The appellant, an industrialist, had a factory at Bunder Road for
Mohini's birth-day, the manufacturing oil engines and adjoining the factory was his
appellant presented her with residential bungalow. During the bombardment of Jainnagar by
a parker pen. T.D. was Pakistan in 1965, Mohini's parents came to reside temporarily
liable for kidnapping. at Dhrol near Jamnagar. The appellant came to be introduced to
(Parker Pen Case) that family and on December 18, 1965, which was Mohini's
birth-day, the appellant presented her a parker pen.
S. Varadrajan v. State of Madras. 9 Sep. 1964 S.C.
Facts - Savitri had fallen in love of neighboring person S. Varadrajan.

There are five persons are involved in this case namely ;
(1) S. Varadrajan – Lover and Later on Husband. (2) Savitri – Beloved and Later on Wife (3)
Rama – Sister of Savitri (4) S.Natarajan – Father of Savitri (5) K. Natarajan – Relative of
S.Natarajan
Three important days –
70
Law Commission of India, 42nd Report,Para No.16.91 available at: http://lawcommissionofindia.nic.in/1-
50/Report42.pdf (Visited on October 3, 2018).
47
(1) DOB of Savitri – 13/11/1942

(2) Narrataion about love affairs by Rama to Her father and sending Savitri at home of relative -
30/09/1960
(3) Savaitri leaved home of relative and telephoned her lover. Both got marriage – 01/10/1960
Elements of Kidnapping
There are four conditions must be proved to make any person liable for kidnapping –
(1) TEA
(2) M-16Y, F -18Years/ Person of Unsound Mind ( Section 7 r/w Section 84)
(3) Out of keeping of lawful guardianship (S. Natarajan (Father) still had lawful guardianship)
(4) Without consent of such guardian.
Decision- In this case conditions numbers (2), (3) & (4) were fulfilled but first condition was
missing. There was neither taking nor enticing.
There was no taking, only allowing – In this case Savitri was at 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 to know what is right and what is wrong. She called lover and she
chose meeting point. There was no pre-planning. S. Varadarajan had neither administered threat
nor blandishment. So he had done only acted to fulfill her desire.
No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the
intention of the girl. That part falls short of an inducement to the minor to slip out of the keeping
of her lawful guardian and is, therefore, not tantamount to ―taking‖.
Difference between taking and allowing –
The two expressions are not synonymous. There are differences between both.
In this case the accused have not taken her away from the keeping of her lawful guardian.
Something more has to be shown in a case of this kind and that is some kind of inducement held
out by the accused person or an active participation by him in the formation of the intention of
the minor to leave the house of the guardian.
Burden of prove - It would, however, be sufficient if the prosecution establishes that though
immediately prior to the minor leaving the father's protection no active part was played by the
accused, he had at some earlier stage solicited or persuaded the minor to do so. 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.
It is not duty to return- 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.
Reason of Decision –
48
(1) There is a distinction between ―taking‖ and allowing a minor to accompany a person.
(2) In this case, there was no taking.
Decision - S. Varadrajan was acquitted. No offence under section 363.
State of Haryana v. Raja Ram (1972)
27 October, 1972 State of Haryana v. Raja Ram

Keeping =CPC….M
CPC=C—charge, P- protection, C- control
..M- Maintenance.
Force or fraud is not necessary. Persuasion is sufficient.
Facts -
(1)Santosh Rani-14Years D/O Narain Das, District – Karnal
(2)Jai Narain (32Years) visited the house of Narain Das for treatment of his sons and he had
fallen in love of Santosh Rani. Love started to culminate slowly and slowly. Narain Das opposed
and prohibited entry of Jai Narain in his house.
(3)Raja Ram (Messenger of Jai Narain)- Raja ram was giving message of Jai Narain. In
persuasion of Raja Ram, Santsh Rani leaved her house on the night between April 4 and 5 and
went along with raja Ram to meet Jai Narain. Finally she met with Jai Narain and both enjoyed
their life.
Arrest of Accused - On April 13, 1968 at about 7 a.m. Ram Shah, S.H.O. along with three other
persons and Narain Dass, saw Jai Narain and Santosh Rani coming from the side of Dera Waswa
Ram. As they reached near Dera Ganga Singh, Narain Dass identified his daughter and Jai
Narain, accused, was taken into custody. The prosecutrix had a jhola which contained one suit
and a shawl and two chunis which were taken into possession. The salwar of the, prosecutrix
appeared to have on it stains of semen.
Decision of High Court - Both the convicts appealed to the High Court of Punjab & Haryana. A
learned single Judge of that Court dismissed the appeal of Jai Narain maintaining his conviction
and sentence but acquitted the respondent Raja Ram of the charge under Section 366 IPC. It is
against the order of the respondent‘s acquittals that the State of Haryana has appealed to
Supreme Court.
Supreme Court –
Supreme Court laid down following important points-
49
(1) Object of Section 361- 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.
(2) Taking or enticing - The gravamen of this offence 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 words "takes or entices any minor out of the keeping of the lawful,
guardian of such minor" in section 361, are significant.
(3) Meaning of Keeping (CPC-M)-The use of the word ―keeping‖ in the context connotes the
idea of charge, protection, control and maintenance, further the guardian's charge and control-
appears to be compatible with the independence of action and movement in the minor, the
guardian's protection and control of the minor being available, whenever necessity arises.
(3) Consent of Minor/Guardian -On plain reading of this section 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.
(4) Persuasion is sufficient - Nor is it 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.
(5)Decision -The result is that the appeal is allowed and setting aside the order of the High Court
acquitting Raja Ram. Raja Ram should surrender to his bail bond to serve out the sentence.
Thakorilal D Vadgama vs. State of Gujarat (Parker Pen Case) (1973)
2 May Thakorilal D Vadgama vs. State of Gujarat

1973 Meaning of taking and enticing.
S.C. Thakorilal D Vadgama, an industrialist, had a factory at Bunder
Mohini's birth-day, the Road for manufacturing oil engines and adjoining the factory was
appellant presented her with his residential bungalow. During the bombardment of Jainnagar by
a parker pen. T.D. was Pakistan in 1965, Mohini's parents came to reside temporarily at
liable for kidnapping. Dhrol near Jamnagar. The appellant came to be introduced to that
(Parker Pen Case). family and on December 18, 1965, which was Mohini's birth-day,
the appellant presented her a parker pen. He was actually found by
the side of Mohini in Mohini's bed by Mohini's mother at Mount
Abu. She objected. But due to allurement of T. D. Vadagama,
Mohini leaved parental home and reached at the garage of accused
according to pre plan. They made sexual relation. She leaved the
garage at the instance of appellant.
Meaning of Taking - The word ‗takes‘ in s. 361 I.P.C. does not necessarily connote taking by
force and it is not confined only to use of force, actual or constructive. This word merely
means ―to cause to go‖, ―to escort‖ or ―to get into possession‖.
50
Meaning of Entice (IIIA)- The word ―entice‖ means to involve the idea of inducement or
allurement (IIIA)by giving rise to hope or desire (HD)in the other. If the minor leaves
her parental home, influenced by any promise, offer or inducement emanating from the
guilty party then the latter will be guilty of an offence as defined in section 361I.P.C.
Varadarajan and Rajaram – These case were cited.
Decision- He was convicted.
51
Indian Penal Code and Rape

LC-I, FOL, DU,

Definition of Rape
‗Rape‘ word has been defined under section 375. The word rape is derived from the Latin word
‗rapio‘ which means to seize. Thus rape literally means a forcible seizure and that is the
essentials characteristic feature of the offence.71 Justice J.S.Verma Committee suggested for
replacing definition of section 375.72
Rape may be committed by four methods i.e. PIMA (P- Penetrate, I- Insert, M-Manipulate, A-
Applies) in seven circumstances. Only man (section 10) can commit rape of woman (section
10). One woman cannot commit rape of either man or woman either by inserting sex toy or any
part of her body. One man cannot commit rape of another man. Definition of rape is gender
based rather than neutral.
Method to commit rape – There are four methods to constitute the rape which are following –
(1) P- Penetrates (Penis)–There must be penetration into four parts
(i) Anus (ii) Vagina (iii) Urethra and (iv)Mouth.
(2) I- Inserts (Any object or part of body other than penis) - (i) Anus (ii) Vagina (iii) Urethra
(3)M-Manipulates (Any part of the body of woman)- (i) Anus (ii) Vagina (iii) Urethra or (iv)
Any part of the body of woman.
(4) A-Applies – (Mouth) - (i) Anus (ii) Vagina (iii) Urethra
Common in all makes her to do so with him or any other person;
(1)P-Penetrate73 Penis (4) (i) Anus (ii) Vagina (iii) Urethra and (iv) Mouth.
(2) I- Insert74 Any object or part of body (i) Anus (ii) Vagina (iii) Urethra. In crowd area if
other than penis anyone insert his finger or pen into anus of
woman, it will be rape. You cannot take defence
(3) that it was not directly inserted.
Exception 1 Medical Treatment A medical procedure or intervention shall not
constitute rape.
(3) Any part of the body of (i) Anus (ii) Vagina (iii) Urethra or (iv) Any part
M-Manipulate75 woman…to cause of the body of woman – For example penetration
penetration (4) into navel or penetration between two boobs.
(4) A-Applies76 Mouth (3) (i) Anus (ii) Vagina (iii) Urethra
Explanation 1 Extension of Meaning of Vagina includes labia majora.
vagina
71
V Suresh and D Nagasaila ‗PSA Pillai‟sCriminal Law‟ 719 (Lexis Nexis, New Delhi, 9th Edn. 4th Reprint, 2007).
72
Justice J.S. Verma Committee Report, Page no.439, available at:
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf
(Visited on October 12, 2018).
73
Section 375(a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or makes
her to do so with him or any other person;
74
Section 375 (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so with him or any other person;
75
Section 375 (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra,
anus or any part of body of such woman or makes her to do so with him or any other person;
76
Section 375 (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any
other person,
52
Use of mouth in Rape
Mouth word has been used in two times. Insertion of anything into mouth of woman will not
constitute rape. Only penetration of penis into mouth of woman without her free consent will
constitute rape. Here penis means penis of man rather than penis of animal.
Mouth of (1)Victim &(2) Accused Mouth word has been used in two times
(1)Victim-375(a) Accused-375(d)
Penetration of penis into mouth of woman. A man applies his mouth to vagina, urethra
Penetration of penis into mouth of man will or anus of woman or makes her to do so with
not constitute rape. It may come under the him or with another person.
POCSO, 2012 or if without consent then If a man or woman applies his or her mouth to
under section 377. anus of man it will not constitute rape.
..…makes her to do so with him or any other person

Section 375 (a), (b), (c) and (d)
..…makes her to do so with him or any other person is common in all categories of section
375(a), (b), (c) and (d). These are great significant for protection of interest of women.
…..with him – Sometimes man does not do anything except for giving direction. For example –
suppose he is on bed. He is giving direction a female to rub her vagina with his mouth or with his
penis. The woman is doing so without her free consent as prescribed under seven circumstances
in second part of s.375. The man will be liable for committing rape.
…any other person -Generally video of pornography is prepared by two or more persons. One
person makes sexual relationship and another person gives direction how to make sexual relation
and takes click and shot of those scene. In this case both persons are liable for rape.
(i) Anus (ii) Vagina (iii) Urethra

Section 375 (a), (b), (c) and (d)
These are common in Section 375 (a), (b), (c) and (d) of woman.
Woman-According to section 10 the word ―woman‖ denotes female human being of any age. In
this way rape can be committed even of child whose age is one month. Rape can also be
committed of a woman whose age is of 90 years or above. Age of woman is immaterial.
Man- According to section 10 the word ―man‖ denotes male human being of any age. It means
even a person whose age is below the age of seven years can commit a rape. It is another thing
that he can get benefit of section 82 of IPC. A minor may commits rape. It is another point that
he is treated under special law.
Special (For example POCSO) or Local Laws -According to section 5 of Indian Penal Code ,
this Code shall not affect special or local law or laws related to mutiny or desertion of soldiers,
sailors or airmen etc.
….to any extent (Section 375 (a) & (b)
53
Penetration of full penis or insertion of full part of body or whole object is not necessary. Now
no need of rupture of hymen.
Two finger test77 – Two finger test has been prohibited by Supreme Court. So insertion of two
fingers for check up to decide commission of rape by medical practitioner will constitute rape.
Seven Circumstances -These seven circumstances are related to mental condition of victim.
There are two types of consent namely;(1) Voluntarily consent –Lawful consent, and (2)
Consent obtained under fear, fraud or misconception of fact or consent given by those person
who are not competent to give consent – Unlawful consent. In reality unlawful consent is no
consent in eyes of law. Sections 7, 90 and Explanation 2 of section 375 are also relevant.
There are seven circumstances when consent is treated unlawful consent. For the sake of
understanding these seven circumstances may be divided into four categories namely;
(1) No Consent – First and Secondly
(2) With Consent – Thirdly, fourthly and fifthly
(3) With or Without Consent – Sixthly (Modified in 2013 – 16 Years to 18 Years).
(4) Unable to communicate consent – Seventhly (Ins. 2013)
Consent is anti- thesis of rape.78 It was recommended to substitute the ‗consent‘ by ‗free and
voluntary consent‘.
Mental Condition of Victim

(1) No Consent- First and Secondly
First Against her will
Secondly Without her consent.
(2) With Consent- Thirdly, fourthly and fifthly
Thirdly With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.
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.
Fifthly With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.
(3) With or Without Consent – Sixthly
Sixthly With or without her consent, when she is under eighteen years of age.
(4) Unable to communicate consent - Seventhly (Ins. 2013)
Seventhly When she is unable to communicate consent
77
Lillu @ Rajesh and Anr. v. State of Haryana [(2013)14SCC643]. It violates right to privacy. The two finger test
and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus,
this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.
78
LCI, Report84, Para 2.6, Page no. 6 http://lawcommissionofindia.nic.in/51-100/Report84.pdf (Visited on October
12,2018).
54
Meaning of Consent
Explanation Consent means an unequivocal voluntary agreement when the woman by words,
2 gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act: Provided that a woman who
does not physically resist to the act of penetration shall not by the reason only of
that fact, be regarded as consenting to the sexual activity.
Two Exceptions of 375
Exception 1 Medical TreatmentA medical procedure or intervention shall not

constitute rape.
This exception excludes insertion of object for
medical treatment from section 375(b). In
absence of this exception several activity of
medical treatment will come under the
categories of rape.
Exception 2 Sexual intercourse by Sexual intercourse or sexual acts by a man with
(Now husband with wife. his own wife, the wife not being under fifteen
unconstitutional) years of age, is not rape.
Independent Married Unmarried Sexual intercourse with wife who is below the
Thought v. Below Below age of 15 years will constitute the rape.
Union Of India 15Yrs 18Yrs Independent Thought v. Union Of India &
& Anr.79 Rape Rape Anr.80
(1) Section 375 Exception 2 is arbitrary to
Married Unmarried Articles 14, 15 & 21 of the Constitution of India.
15 -18Yrs Below It makes unreasonable classification between
18Yrs married (15 -18 no rape) and unmarried girl (15 -
No Rape Rape 18 years – Rape).
(2) It is inconsistent with the provisions of
POCSO, which must prevail.
(3) Now in all cases, sexual intercourse with a
women including wife, if she is below the age of
18 years, is rape.
(4) In this way, now, there is no difference
between unmarried and married women. If wife
is below the age of 18 years, and husband makes
sexual relation with his wife whether with
consent or without consent, it would be amount
to rape.
79
Date of Judgment11Oct.2017.
80
55
Two Explanations
Explanation 1 Extension of Vagina includes labia majora.

Meaning of
vagina
Explanation 2 Meaning of Consent means an unequivocal voluntary agreement when

Consent the woman by words, gestures or any form of verbal or
non-verbal communication, communicates willingness to
Tukaram vs. participate in the specific sexual act:
State of
Maharashtra Provided that a woman who does not physically resist to
(Mathura the act of penetration shall not by the reason only of that
Rape Case) fact, be regarded as consenting to the sexual activity.
Provided has been mentioned in the light of decision of
Tukaram Case.
Consent for Specific sexual act
If a woman has given consent for penetration of penis into vagina but person intentionally had
inserted penis either into urethra or anus or mouth it will amount to rape.
Before 2013 Amendment, to constitute the rape insertion of penis into vagina was necessary. So
several accused persons were getting benefit by proving that there was no insertion into vagina.
Now law has been changed. Now penetration of penis into urethra ( Urine part), vagina ( Now
vagina includes labia majora. Earlier it was not so. There are two types of labia namely
(i) Labia minora and (2) Labia Majora. In Law Labia majora covers labia minora) , anus and
mouth also constitute rape. This law is in favour of women. So with the help of this chart we can
understand differences among vagina, urethra, labia majora and labia minora. In some cases
Courts held that rupture of humane was necessary. Later on in the case of Pani Bhushan Beheru
v. State of Orissa, High Court held that rupture of hymen was not necessary.
56
State of U.P. v. Chottey Lal (2011) S.C.

Difference between ―against her will‖ and ―without her consent‖
The expressions ―against her will‖ and ―without her consent‖ may overlap sometimes but surely
the two expressions in clause Firstly and clause Secondly have different connotation and
dimension. The expression ―against her will‖ would ordinarily mean that the intercourse was
done by a man with a woman despite her resistance and opposition. On the other hand, the
expression ―without her consent‖ would comprehend an act of reason accompanied by
deliberation.
It must be noted that the Courts have followed the tests laid down under Section 90 of the IPC
for establishing ―consent‖.
Section 90. Consent known to be given under fear or misconception.—A consent is not such a
consent as is intended by any section of this Code, if the consent is given by a person under fear
of injury, or under a misconception of fact, and if the person doing the act knows, or has reason
to believe, that the consent was given in consequence of such fear or misconception; or
[Consent of insane person] if the consent is given by a person who, from unsoundness of mind,
or intoxication, is unable to understand the nature and consequence of that to which he gives his
consent; or
[Consent of child] unless the contrary appears from the context, if the consent is given by a
person who is under twelve years of age.‖
Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and Justice and
Another (Date of Judgment - September 06, 2018).
(1)Para 206 - A cursory reading of Section 375 IPC divulges that it is a gender specific
provision for the protection of women as only a man can commit the offence of rape. The
Section has been divided into two parts. The former part, comprising of Clauses (a) to (d),
simply describes what acts committed by a man with a woman would amount to rape provided
that the said acts are committed in the circumstances falling under any of the seven descriptions
as stipulated by the latter part of the Section.
(2)While Section 375 permits consensual penetrative acts (the definition of ‗penetration‘
includes oral and anal sex), Section 377 makes the same acts of penetration punishable
irrespective of consent. This creates a dichotomy in the law.
(3)The proscription of a consensual sexual relationship under Section 377 is not founded on any
known or rational criteria. Sexual expression and intimacy of a consensual nature, between
adults in private, cannot be treated as ―carnal intercourse against the order of nature‖.
INDIAN PENAL CODE AND LEADING CASES-
When a person makes an assault with the intention of causing rape, victim may cause any harm
including death of assailant. Victim may claim right of private defence of body.81
(I) YESHWANT RAO VS. STATE OF M.P.82
81
The Indian Penal Code, 1860 (45 of 1860), Section 100.
57
Minor daughter of the accused had gone to the toilet on the rear side of the house. The deceased
gripped her and had sexual intercourse with her. The accused seeing his minor girl being raped
by the deceased hit the deceased with a spade. Daughter was minor so her consent was
immaterial and act of the deceased would amount to committing rape under section 376 and
hence the father in defence of the body of his daughter was justified in exercising his right of
private defence Section 100 Thirdly.
(ii) TUKARAM VS. STATE OF MAHARASHTRA83 (Mathura Rape case)
Mathura was a girl who was raped in Police Station by two policemen. Accused was acquitted by
Supreme Court on the ground that there was implied consent. Implied consent was drawn on the
basis that there was no injury on the body of victim. This judgment was vehemently criticized by
public and jurist. Mathura Case which led to the Criminal Law Amendment Act,1983.
CHART RELATED TO 1983 & 2013 AMENDMENTS RELATED TO RAPE.
AMENDMENT IN
1983
Reasons of The Criminal Law The 1983 Act discussed what constituted custodial
Amendment, (Amendment) Act, rape, provided for enhanced punishments under S.
1983 was 1983. 376(2), and brought in presumption of absence of
Mathura Tuka Ram & Anr. consent in cases booked under section 376(2) IPC,
Case (1978) Vs. State of 1860. This was done by bringing in an amendment in
Maharashtra the Indian Evidence Act; section 114(A) IEA.
IPC Punishment of rape were substituted- Sections 375 and
376.
Indian Evidence Act 114A- – Presumption as to absence of consent in rape
cases were inserted.
Cr.PC. S. 327(2) In case of rape trial, in camera proceedings to
be conducted; S.327(3) it shall not be lawful for any
person to print or publish any matter regarding
proceeding.
AMENDMENT in
2013
Delhi Gang The Criminal Law (1)S.166APublic Servant denying to register FIR, he
Rape Case (Amendment) Act, shall be punished,(2)S. 166BIn-charge of hospital shall
(16Dec.2012) 2013 First time death be punished for non-treatment of victim (3)– S. 375:
& sentence in rape case Rape, ,(4) –S. 376 : Punishment for Rape, ,(5) – S.
J.S.Verma was provided in two 376A : Punishment for causing death or persistent
Committee circumstances namely vegetative state due to rape, ,(6) –S. 376B-Sexual
Report- The (1) S. 376A, Intercourse by husband upon his wife during
Committee (2) S. 376A separation, ,(7) –S.376C -Sexual Intercourse by a
submitted its Person in Authority,(8) - S. 376D – Gang rape, ,(9) -
report on S.376E- Punishment for repeat,
January 23,
82
AIR 1992 SC 1683. Date of Judgment- 4 May, 1992.
83
Supreme Court , Date of Judgment15th September 1978,
58
2013.
(III) DEEPAK GULATI VS. STATE OF HARYANA84- Intercourse under promise to marry
constitutes rape only if from initial stage accused had no intention to keep promise. An accused
can be convicted for rape only if the court reaches a conclusion that the intention of the accused
was mala fide and that he had clandestine motives.
(IV)State of Punjab v. Gurmit Singh-
Facts – A girl below the age of 16 years was kidnapped by Gurmit Singh and another 3 accused
when she was returning after appearing in Exam of 10th class at 12.30 p.m.. Then went at
tubewell . She was taken to the ‗kotha' of the Tubewell and raped. She was again raped in 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. Finally FIR was lodged. High
Court acquitted them. Matter reached to the Supreme Court. Supreme Court convicted them and
laid down some important guidelines which are following –
(1) Effect of Rape -―….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.‖
(2) Previous sexual intercourse does not authorize everyone to make sex -“…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.”
(3) Trial of accused rather than rape of victim - Even in cases where there is some acceptable
material on the record to show that the victim was habituated 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.
(4) Duty of Court in Cross-examination - Some defence counsel adopt the strategy of continual
questioning of the prosecutrix as to the details of the rape. 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.
84
Date of Judgment –May 20, 2013.
59
(5) Trial in Camera rather than in open 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.
(V) Sakshi v. Union of India (2004) S.C.- In this case ‗Sakshi‘ is an NGO working for sexual
victim. It filed writ petition for direction especially for widening the definition of rape. It was
requested that "sexual intercourse" as contained in section 375 of the Indian Penal Code must
include all forms of penetration such as (1) penile/vaginal penetration, (2) penile/oral
penetration, (3) penile/anal penetration (4) finger/vaginal and finger/anal penetration and (5)
object/vaginal penetration.
After the change in definition of rape in 2013 maximum suggestions of ―Sakshi‖ have been
incorporated in sections 375 and 376. For example -
(1) penile/vaginal penetration –Section 375(a),
(2) penile/oral penetration- Section 375(a),
(3) penile/anal penetration - Section 375(a),
(4) finger/vaginal and finger/anal penetration Section 375(a),
(5) object/vaginal penetration- Section 375(b).
Following directions were issued in this case-
(1) The provisions of sub-section (2) of section 327 Cr.P.C. shall in addition to the offences
mentioned in the sub-section would also apply in inquiry or trial offences under section
354 and section 377 IPC.
(2) In holding trial of child sex abuse or rape :
(I) a screen or some such arrangements may be made where the victim or witnesses (who may be
equally vulnerable like the victim) do not see the body or face of the accused;
(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate
directly to the incident, should be given in writing to the presiding Officer of the Court who may
put them to the victim or witnesses in a language which is clear and is not embarrassing;
(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed
sufficient breaks as and when required.
These directions are in addition to those given in State of Punjab v. Gurmit Singh.
(VI) Mukesh and Anr. vs. State for NCT of Delhi85- This case is related to Delhi Gang Rape
Case (Dec.16,2012).This is related to confirmation of death sentence by Supreme Court.
85
Date of Judgment-05 May,2017.
60
(VII) INDEPENDENT THOUGHT VS. UNION OF INDIA & ANR.86 Sexual relations with
wife, when wife is below the age of 18 years is rape. Section 375 Exception 2 is arbitrary to
Articles 14, 15 & 21 of the Constitution of India. Court may take cognizance under section
198(6) of Cr. P.C. Now in all cases, sexual intercourse with a women including wife, if she is
below the age of 1 8 years, is rape. In this way, now, there is no difference between unmarried
and married women. If wife is below the age of 18 years, and husband makes sexual relation
with his wife whether with consent or without consent, it would be amount to rape.
FLOW-CHART
Year Age of Age mentioned Minimum age of
Consent under in the exception marriage under the Child
section 375, 6th to sec.375 Marriage Restraint Act,
Clause IPC 1929
1860 10 10 -
1891(After amendment 12 12 -
of IPC)
1925(After amendment 14 13 -
of IPC)
1929( After the passing 14 13 14
of Child Marriage
Restraint Act, 1929)
1940 (After the passing 16 15 15
of Child Marriage
Restraint Act, 1929 and
IPC)
1978 16 15 18
2017 18 15 PCMA, 2006. 18
(F) 21(M)
86
61
COMPARISON BET. BEFORE AND AFTER 2013 AMENDMENT REGARDING RAPE

Before 2013 Amendment After 2013 Amendment
Definition Sexual Intercourse was necessary.Now sexual intercourse is not
of Rape Earlier insertion of penis into vagina
necessary. Penetration of penis into the
was necessary. Such sexual
vagina, mouth, urethra or anus of a
intercourse must be in six
woman or insertion of any object into
circumstances namely , vagina, urethra or anus is sufficient. If a
man manipulates any part of the body
Firstly- Against her will. of woman for penetration or applies his
Secondly—Without her consent. mouth to the vagina, urethra or anus of
Thirdly— With her consent, when her a woman or make her to do so against
consent has been obtained by putting her will or without her consent or with
her or any person in whom she is or without her consent, when she is
interested in fear of death or of hurt. under eighteen years of age is rape.
Fourthly..Fifthly.. Sixthly — With or
without her consent, when she is under
sixteen years of age. Explanation.
Age to give Section 375 Sixthly — With or without Section 375 Sixthly — With or without
consent her consent, when she is under sixteen her consent, when she is under eighteen
years of age. years of age.
New There were six categories of consent. Now, there are seven categories of
ground consent.
regarding Seventhly- When she is unable to
consent communicate consent.
Punishment There was no provisions regarding There are two circumstances when in
punishment of death sentence. rape cases death sentence may be
awarded. These two cases are (1)
Section 376A-Punishment for causing
death or resulting in persistent
vegetative state of victim. (2) Section
376E- Punishment for repeat offenders.
Exception There was one exception- Sexual There are two exceptions.
intercourse by a man with his own Exception1-A medical procedure or
wife, the wife not being under fifteen intervention shall not constitute rape.
years of age, is not rape. Exception2-Sexual intercourse by a
man with his own wife, the wife not
being under fifteen years of age, is not
rape.
Exception 2 does not exist after
decision of Independent Thought vs.
Union of India & Anr.87
87
Available at: https://indiankanoon.org. (Visited on April 10, 2018). Date of Judgment11Oct.2017.
62
Before 2013 Amendment, to constitute the rape insertion of penis into vagina was necessary. So
several accused persons were getting benefit by proving that there was no insertion into vagina.
Now law has been changed. Now penetration of penis into urethra ( Urine part), vagina ( Now
vagina includes labia majora. Earlier it was not so. There are two types of labia namely
(i) Labia minora and (2) Labia Majora. In Law Labia majora covers labia minora) , anus and
mouth also constitute rape. This law is in favour of women. So with the help of this chart we can
understand differences among vagina, urethra, labia majora and labia minora. In some cases
Courts held that rupture of hymen was necessary. Later on in the case of Pani Bhushan Beheru v.
State of Orissa, High Court held that rupture of hymen was not necessary.
(9) PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 (POCSO)
Protection of Children from Sexual Offences Act, 2012 (POCSO) was enacted in pursuance of
Article 15(3) of Constitution of India and Convention on the Rights of the Child, 1989. This Act
came into force on November 14, 2012. Under this Act, it has been provided for the
establishment of Special Court, Special Public Prosecutor and Special Juvenile Police Unit so
that better protection may be given to children.
Conflict Between Protection Of Children From Sexual Offences Act, 2012 (POCSO)Act and
Section 375, Exception 2.
63
For the purpose of POCSO Act, 2012 a person who is below the age of eighteen years is a
child.88 According to section 2(2) of this Act, any word which has been used in this Act but not
defined in this Act and defined in IPC, 1860, Cr.P.C.1973 or Information Technology Act, 2000
shall have the same meaning respectively assigned to them in IPC, 1860, Cr.P.C.1973 or
Information Technology Act, 2000. Here child has not been divided on the basis of married.
Sexual relation with any child below the age of 18 is an offence.
Exception of Section 375 was clearly saying that sexual relation by husband with his wife even
below the age of 18 years and above 15 years was not rape. So it was direct conflict between two
statutes. This controversy was settled down by the decision of Independent Thought v. Union of
India & Anr.89
In this case Supreme Court held that a man will be punished for rape if he is found to be guilty of
having sexual intercourse with his minor wife i.e. below the age of 18 years.
With this verdict, the Supreme Court has ended the disparity between this exception to Section
375, which allows a husband to have sexual relationship with his 15-year-old wife, and the
definition of ‗child‘ in recent laws such as the Protection of Children from Sexual Offences Act,
2012, which includes any person below the age of 18.
SPECIAL FEATURES OF THE CRIMINAL LAW (AMENDMENT) ACT, 2018.90
Now Criminal Law (Amendment)‗Ordinance‘ has been replaced by the Criminal Law
Amendment Act, 2018.91 By this ―Act‖ changes have been done in IPC, 1860, Indian Evidence
Act, 1872, Code of Criminal Procedure, 1973 and Protection of Children from Sexual Offences
Act, 2012. Rape has been classified into four categories- (1) Rape with girl below the age of
twelve years (2) Rape with girl below the age of sixteen years (3) Rape with girl below the age
of eighteen years (4) Rape above the age of eighteen years.
88
Protection of Children from Sexual Offences Act, 2012 (No. 32 of 2012).Section 2(1) (d).
89
90
This Ordinance has been issued by President under Article 123(1). This Ordinance was signed by president on 21 st
April,2018. It is available at :
http://www.prsindia.org/uploads/media/Ordinances/The%20Criminal%20Law%20Amendment%20Ordinance%202
018.pdf (Visited on October 13, 2018).
91
THE CRIMINAL LAW (AMENDMENT) ACT, 2018. The Act of Parliament received the assent of the President
on the 11th August, 2018. It shall be deemed to have come into force on the 21st day of April, 2018. Available at:
https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf (Visited on October 13, 2018).
64
Provisions Before Criminal Law After Criminal Law (Amendment) Act,

(Amendment) Act, 2018. 2018.
INDIAN PENAL CODE,1860 INDIAN PENAL CODE,1860
Section 166A (c) 376B,376C, 376D, and 376E 376AB, 376B, 376C, 376D, and 376DA,
Public servant Substituted by 376DB.
disobeying
direction under law.
Section 228A 376A,376B,376C, 376D, Section 376 A, Section 376AB,
Disclosure of 376B,376C, 376D, and 376DA, 376DB.
identity
Section 376(1) …not be less than seven years but …not be less than ten years but which
Punishment for which may extend to imprisonment may extend to imprisonment for life..
rape for life…
Section 376(2)(i) Rape on a woman when she is Deleted
under sixteen years of age
Section 376 (3) Section 376 (3) was absent. Newly inserted.
(It had been provided under Rape on a woman when she is under
Section 376(2) (i) for which sixteen years of age – Not less than
punishment was……. twenty years –which may be
not be less than ten years but which imprisonment for life.
may extend to imprisonment for
life..
Section 376 A Section 376 A Section 376 A (No change)
Section 376 AB Absent Inserted. Punishment-
Rape with girl Not less than twenty Years – up to LI
below the age of 12 and fine or Death sentence
Years
Section 376DA Life Imprisonment
Punishment for
gang rape on a
women under
sixteen years of age
Section 376DB LI and Fine or Death Sentence
Punishment for
gang rape on a
women under
twelve years of age
Omitted Substituted Inserted
Section 376(2)(I) Section 166A,Section 228 A, Section 376(3), Section 376AB, Section
Section 376(1) 376DA, Section 376DB
Protection of Children From
Sexual Offences Act, 2012
Section 42 Section 376A, Section C, Section D Section 376A, Section 376AB, Section
Substituted 376B, Section 376C, Section 376D,
Section 376DA and Section 376 DB.
65
There are following special features of this ‗Act‘-

(1) Amendments in Four Statutes-
By this ―Act‖ changes have been done in IPC, 1860, Indian Evidence Act, 1872, Code of
Criminal Procedure, 1973 and Protection of Children From Sexual Offences Act, 2012.
(2) Classification of Rape Victims on the basis of age-
Rape has been classified into four categories- (1) Rape with girl below the age of twelve years –
Section 376AB and Section 376 DB.(2) Rape with girl below the age of sixteen years Section
376DA (3) Rape with girl below the age of eighteen years Section 376(1) (4) Rape above the
age of eighteen years.
(3)Enhancement of Punishment-
(i) Minimum Punishment- (a) According to section 376(1), minimum punishment in rape cases
is 10 years. Earlier minimum punishment was seven years.
(b)Minimum Punishment for Rape with women below the age of 16Years- According to
section 376(3), rigorous punishment for a term which shall not be less than twenty years.
(c )Minimum Punishment for Rape with women below the age of 12 Years- According to
section 376AB, rigorous punishment for a term which shall not be less than twenty years and
which may extent to LI or death sentence.
(ii) Life Imprisonment- According to Section 376DA Punishment for gang rape on a women
under sixteen years of age is imprisonment for life which shall mean imprisonment for the
remainder of that person‘s natural life, and with fine.
(iii) Death Sentence - (Section 376 AB Section 376DB)- Two more categories of offences
related to rape have been inserted when death sentence may be awarded. After this ―Act‖ there
are four categories of offences related to rape when death sentence may be awarded.
DEATH SENTENCE IN RAPE CASES

S.N. Act / Provisions Punishment
The Criminal Law (Amendment) Act, 2013
2013
1 Section 376A- Punishment for causing death or resulting in persistent Death Sentence
vegetative state of victim
2 Section 376E- Punishment for repeat offenders. Death Sentence
THE CRIMINAL LAW (AMENDMENT) Act, 2018.92
2018
3 Section 376AB- Rape with women below the age of 12 Years Death Sentence
4 Section 376DB- ―Gang Rape‖ with women below the age of 12 Years Death Sentence
92
This Ordinance has been promulgated by President under Article 123(1) on 22 nd April, 2018.
66
RAPE OF WOMEN AND PUNISHMENT

S.N. Age of Woman Punishment Sections
1 Under 12 Years
2018 Rape of Woman under 12 Years Minimum 20Years in Jail or Section 376AB
LI or Death Sentence
2018 Gang Rape of Woman under 12 Years LI and Fine or death Section 376DB
Sentence
2 Under 16 Years
2018 Rape of Woman under 16 Years Minimum punishment 20 Section 376(3)
years (Earlier it was 10Years)
which may extend to LI and
fine.
2018 Gang Rape of Woman under 16 Years LI and Fine Section 376DA
3 Under 18 Years
years (Earlier it was 7 Years)
fine.
2013 Gang Rape of Woman under 18 Years Not less than 20 years which Section 376D
may extend to LI and fine.
4 Under or above 18 Years Rape
whether rape has been committed with
or without consent
fine.
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Section 377
Section 377 - Unnatural offences.—Whoever voluntarily has carnal intercourse against the
order of nature with any man, woman or animal, shall be punished with imprisonment for life,
or with imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.
Important words
Lesbian: (woman and a woman),Women who are attracted to women. The word ―lesbian‖ is
derived from the name of the Greek island of Lesbos, where it was rumored that female same-
sex couples proliferated.
Gay: (Men to Men) - Men who are attracted to men, although this term is sometimes also used
generically for all same-sex attracted persons.
Bisexual: Women who are attracted to both sexes; men who are attracted to both sexes.
Transgender – Sex is not clear of these persons.
Homosexual (Same): People of either gender who are attracted, sexually, emotionally and in
relationships, to persons of the same sex. Gay and lesbian are two parts of homosexual. In case
of man to man – Gay, and in case of woman to woman – Lesbian.
The word ―homosexual‖ is not derived from ―homo‖ meaning man, but from ―homo‖ ( Greek
word) means ‗same‘.
Heterosexuals (Opposite) (man and woman) – Opposite sex attract to each other. This is most
popular form of sexual attraction. But bisexual is challenging its supremacy. Reason of this is
easy access of every types of pornography.
Penile – Related to penis
Carnal Intercourse – Sexual Intercourse between organs which are not part for the purpose
of procreation of child.
Introduction -Section 377 penalises all forms of non-penile-vaginal intercourse. Section 377
criminalizes sexual intercourse that is penile and non-vaginal, deeming it ―against the order of
nature‖. The law affects the rights of the lesbian, gay, bisexual and transgender (LGBT)
population, in particular, but its provisions can also be applied to heterosexual citizens.93
In 2009, the Delhi High Court had ruled in favour of decriminalising section 377. This decision
was overturned by Division Bench of Supreme Court in 2013, in the Suresh Kumar Koushal v.
Naz Foundation case. On Sep. 6,2018 S.K.Koushal Case was overruled by Constitutional Bench
of Supreme Court.
Leading Cases
Year/Court Leading Cases Remarks
2009 Naz Foundation Case Section 377 –Partially Unconstitutional
93
https://www.livemint.com/Politics/d8zjDGMLYr2hCHMt54iKcN/Section-377-verdict-by-Supreme-Court-today-
5-key-things-to.html
68
2013 Suresh Kumar Koushal & (1) Section 377- Constitutional (2)Naz Foundation case
Anr. v. Naz Foundation & Ors was overruled.
94
Reason of Decision – (i) The LGBT community
comprised only a minuscule fraction of the total
population and
(ii) that the mere fact that the said Section was being
misused is not a reflection of the vires of the Section.
2014 National Legal Services Transgenders are person
Authority v. Union of India
and others A person‗s sex is usually assigned at birth, but a relatively
small group of persons may be born with bodies which
incorporate both or certain aspects of both male and
female physiology.
2018 Navtej Singh Johar & Ors. V. Section 377 is partially struck down
Union Of India Thr. Secretary
Ministry of Law And Justice
Navtej The provisions of Section 377 Sex with consent -Section 377 IPC, so far as it penalizes
Singh will continue to govern non- any consensual sexual relationship between two adults, be
Johar consensual sexual acts against it homosexuals (man and a man), heterosexuals (man and
adults, all acts of carnal a woman) or lesbians (woman and a woman) cannot be
Case intercouse against minors, regarded as constitutional.
and acts of beastiality.
Sex without Consent -Any act of the description covered
under Section 377 IPC done between two individuals
without the consent of any one of them would invite penal
liability under Section 377 IPC.
Sex with animals - if anyone, by which we mean both a
man and a woman, engages in any kind of sexual activity
with an animal, the said aspect of Section 377 is
constitutional and it shall remain a penal offence under
Section 377 IPC.
Suresh Koushal Case – This case was overruled.
Reasoning of decision (1)Consensual sexual intercourse between two adult male
and female is valid while between two males or females it
is crime. It is volative of article 14.
(2) While Section 375 permits consensual penetrative acts
(the definition of ‗penetration‘ includes oral and anal sex),
Section 377 makes the same acts of penetration
punishable irrespective of consent. This creates a
94
(2014) 1 SCC 1
69
dichotomy in the law.
(1) Naz Foundation v. Government of NCT of Delhi and Others (2009) Division Bench of the
Delhi High Court- Hon‘ble JJ. Ajit Prakash Shah & S.Muralidhar –
Section 377 is Partially Unconstitutional.
Delhi High Court partially struck down Section 377 IPC clearly stating that carnal intercourse
between homosexuals and heterosexuals with consent cannot be an offence.
(2) Suresh Kumar Koushal & Anr v. Naz Foundation & Ors (11 December, 2013), Supreme
Court Division Bench – JJ. G.S. Singhvi, Sudhansu Jyoti Mukhopadhaya – Appeal was referred
from the judgment of Naz Foundation v. Government of NCT of Delhi and Others (2009). In this
case Supreme Court declared that Section 377 is constitutional.
(3)Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and Justice
(September 6, 2018) Constitutional Bench
Hon‘ble JJ. (1) Dipak Misrahon‘ble (2) Rohinton Fali Nariman, (3) A.M. Khanwilkar, (4) Dr.
Justice D.Y. Chandrachud, (5) Indu Malhotra (Four concurring Order).
After this judgment section 377 may be divided into two parts –
Constitutional part of section 377
Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal
intercouse against minors, and acts of beastiality.
In following cases section 377 is constitutional
(1)Sex without Consent -Any act of the description covered under Section 377 IPC done
between two individuals without the consent of any one of them would invite penal liability
under Section 377 IPC.
(2)Sex with Minor – According to section 5 special law (POCSO Act) shall prevail over general
law (IPC). But where special law is salient general law (section 377) shall apply.
(3) Sex with animals (Beastiality) - if anyone, by which we mean both a man and a woman,
engages in any kind of sexual activity with an animal, the said aspect of Section 377 is
constitutional and it shall remain a penal offence under Section 377 IPC.
Suresh Koushal Case – This case was overruled.
Unconstitutional Part of Section 377
LGBT(Lesbian, Gay, Bisexual and Transgender)

In following cases section 377would be unconstitutional-
(1) Sex with consent -Section 377 IPC, so far as it penalizes any consensual sexual relationship
between two adults at private place, be it homosexuals (man and a man), heterosexuals (man and
70
a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. Now in these
case section 377 would not be applicable.
Indu Malhotra
(i)In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises
consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to
consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however,
clarified that such consent must be free consent, which is completely voluntary in nature, and
devoid of any duress or coercion.
ii. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the
reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters
whether they are at the trial, appellate, or revisional stages.
iii. The provisions of Section 377 will continue to govern non-consensual sexual acts against
adults, all acts of carnal intercouse against minors, and acts of beastiality.
iv. The judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. is hereby
overruled.
Justice Deepak Mishra
Distinction between ‗natural‘ and ‗unnatural‘ is not acceptable - Rejecting the distinction
between ‗natural‘ and ‗unnatural‘ sexual relations, said that ―what nature gives is natural‖, and
―the natural identity of an individual should be treated to be absolutely essential to his being‖.
Sexual attraction for the same sex is controlled by neurological and biological factors; an
individual‘s natural orientation is innate and lies at the core of her/his being and identity.
Majoritarian Rule is not acceptable- The Constitution is not for just the majority, the
fundamental rights are guaranteed to ―any person‖ and ―any citizen‖, and the sustenance of these
rights does not require majoritarian sanction.
Homosexuality is not mental illness -―Homosexuality is neither mental illness nor moral
depravity,‖ CJI Misra said in clear terms. Nor does one choose to be homosexual — the science
of sexuality says an individual has little or no control over whom she/he is attracted to. Research
shows sexual orientation is decided very early, possibly even before birth.
Section 377 criminalises carnal intercourse even between heterosexuals, and is legally
unsustainable for the simple reason that Section 375 IPC clearly stipulates that carnal intercourse
between a man and a woman with the wilful and informed consent of the woman does not
amount to rape, and is not punishable.
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Sections 34 and 149of IPC

Section 34 -Acts done by several persons (Section 11) in furtherance of common intention -
When a criminal act (S. 32- Act includes illegal omission and S. 33- “Act” denotes as well as a
series of acts as a single act) is done by several persons in furtherance of the common intention
of all (Ins. in 187095 to make more clear), each of such persons is liable for that act in the same
manner as if it were done by him alone.
Act Criminal Act
(Here I am using ‗act‘ in not legal sense). (Section 32 – Acts includes illegal omission)
Several persons had attended marriage Several persons had attended marriage
ceremony and performed dance. It is act. ceremony and performed dance. At the time of
performing dance some disputes aroused
between two parties. They started to fight each
other. This is criminal act.
Act does not attract section 34. Only Criminal act attracts section 34.
All acts are not criminal act. But all criminal acts are act.
Introduction – Section 34 creates sever (separate) and joint liability.96 Section 34 is based on the
ratio of decision of Reg v. Cruise (1838). In this case Police Constable went to arrest A at his
house. B C & D came out of house gave him a blow. In this case the Court evolved the Doctrine
of Joint liability. …in furtherance of the common intention of all were inserted in 187097.
No specific offence, only evidence - Section 34 does not create specific offence. It has been
mentioned under Chapter II (General Explanations, Sections 6-52A). It only lays down rule of
evidence that if two or more than two persons commits criminal act in furtherance of the
common intention of all each of the persons will be liable on the principle of joint liability.
Section 149 -Every member of unlawful assembly guilty of offence committed in prosecution of
common object – If an offence (Section 40) is committed by any member of an unlawful
assembly (Section 141 – Minimum 5 persons) in prosecution of the common object (Section 141
– 5 types of circumstances) of that assembly, or such as the members of that assembly knew to
be likely to be committed in prosecution of that object, every person who, at the time of the
committing of that offence, is a member of the same assembly, is guilty of that offence.
There are four parts of section 149 –
(1) Member of unlawful assembly – If person is not member or he was member but ceased to be
member of unlawful assembly then section 149 shall not attract.
95
UPPCS 2001, UKAPO 2010
96
UPPCS 1991.
97
UPPCS 2001, UKAPO 2010
72
(2) Committed some work -He had done some work in prosecution of common object, or
(3) Mere knowledge is sufficient - He had knowledge but personally he did nothing. He did not
perform any act but he was member of unlawful assembly and he knew that such act was likely
to be committed in prosecution of common object.
(4) Vicarious Liability - Every person who, at the time of the committing of that offence, is a
member of the same assembly, is guilty of that offence.
No new offence – It does not create new offence like sections 34 and 120B. It is merely
declaratory section. Difference between 34 and 149
Section 34 Section 149
1 It does not create substantive offence. It It creates substantive offence. It has been
deals only rule of evidence. mentioned under Chapter VIII.
2 Active participation either in form of Being a member of unlawful assembly is
overt act or covert act is necessary. sufficient. He will be liable even he does
not do any act.
3 Common intention is sine qua non. Common object is sine qua non. Common
Common intention is wider. object is limited up to five circumstances.
4 Criminal act must be done at least by Offence must be done at least five persons.
two persons. Maximum person has not Maximum persons have not been
been mentioned. It may be 3,4,5,6,7,8,9 mentioned.
10 persons or more persons.…..Only
condition is that other conditions must
be fulfilled.
5 There is only one part of section 34. There are two parts of section 149.
When a criminal act is done by several First Part - If an offence is committed by
persons.. any member of an unlawful assembly in
prosecution of the common object of that
assembly, or
Second Part - Such as the members of that
assembly knew to be likely to be
committed in prosecution of that object,
6 Section 34 was amended in 1870. Till now it has not been amended.
JOINT LIABILITY -Sections 34,35,37,38 and 149

SECTION 34 When a criminal act is done by several persons in furtherance of the
common intention of all, each of such persons is liable for that act in the
same manner as if it were done by him alone
Amendment1870 …in furtherance of the common intention of all,
Milton ―They also serve who only stand and wait‖. Later on it was used in
law by Lord Sumner in case of Barendra Kumar Ghosh vs. king
Emperor, 23 Oct.1924.
Lord Sumner ―They also serve who only stand and wait‖. Barendra Kumar
Ghosh vs. king Emperor, 23 Oct.1924.P.C. Post Office case.
73
Sir Madhavan Mahaboob Shah vs. Emperor, 1944, Sir Madhavan Nair, ―…Care
Nair must be taken not to confuse same or similar intention with common
intention, the partition which divides ‗their bonds‘ is often very thin ;
nevertheless, the distinction is real and substantial , and if overlooked ,
will result in miscarriage of justice..‖
23 Barendra Kumar The Sub-Postmaster at Sankaritolla Post Office was counting money at
Oct. Ghosh vs. king his table in the back room, when several men appeared at the door
1924. Emperor, which leads into the room from a courtyard, and, when just inside the
Sankaritolla door, called on him to give up the money. Almost immediately
Post Office Case. afterwards they fired pistols at him. He was hit in two places, in one
Barendra Kumar hand and near the armpit, and died almost at once. Without taking any
Ghosh was a money the assailants fled, separating as they ran. Appellant was
freedom fighter. caught. He was the man outside the room. Lord Sumner, ―They also
He was convicted serve who only stand and wait‖.
for murder u/s302 A criminal act means unity of criminal behaviour which results in
r/w section 34. something, for which an individual would be punishable, if it were all
done by himself alone, that is, in a criminal offence.
By section 33 a criminal act in section 34 includes a series of acts. “The
act” in the latter part of the section must include the whole action
covered by “a criminal act” in the first part, because they refer to it.
st
31 Mahaboob Shah In this case there was dispute regarding cutting of reed on the bank of
Jan. v. Emperor river. Allah Dad and his companion were given warning not to cut reed.
1945 (Indus River Ignoring this warning they cut the reed. Altrcation started. Quasim
Case ) Shah shouted out for help and Wali Shah and Mahbub Shah came up.
They had guns in their hands. When Allah Dad and Hamidullah tried to
run away, Wali Shah and Mahbub Shah came in front of them and Wali
Shah fired at Allah Dad who fell down dead and Mahbub Shah fired at
Hamidullah, causing injuries to him. In this case there was common
intention to save Quasim Shah.
Sir Madhavan Nair, ―…Care must be taken not to confuse same or
similar intention with common intention, the partition which divides
‗their bonds‘ is often very thin ; nevertheless, the distinction is real and
substantial , and if overlooked , will result in miscarriage of justice..‖
Common intention within the meaning of section 34 implies a pre-
arranged plan.
Mahaboob Shah succeeded in his appeal. His conviction for murder and
the sentence of death set asided.
3 Dec. Pandurang v. The common intention should be prior or antecedent to the
1954 State of occurrence.
Hyderabad Supreme Court observed, ―Now in the case of section 34 we think it is
well established that a common intention presupposes prior concert. It
requires a pre-arranged plan because before a man can be vicariously
convicted for the criminal act of another, the act must have been done in
furtherance of the common intention of them all.
3 Feb. Rishi Deo Pandey Common intention may develop on the spot.
1955 vs. State of U.P.
74
1965 Gurdatta Mal vs. This principle that the provisions only lays down the rule or principle of
UGC State of U.P. joint liability and does not create a separate offence was considered by
2008 Section 34doesthe Supreme Court in this case. Sections 34 and 96 of IPC were
not create distinct
involved.
offence. Supreme Court observed, ―It is well settled that Section 34 of the
Indian Penal Code does not create a distinct offence: it only lays
down the principle of joint criminal liability.
Physical Presence and Active Participation
1955 Shree Kantia vs. Physical presence and active Participation of every person is necessary.
S.C. State of Bombay
1960 J.M. Desai vs. In case of offences against property, presence of every person is not
S.C. State of Bombay necessary.
Difference between 34 and 149
25 Nanak Chand vs. S.C. observed, ―There is a clear distinction between the provisions of
Janua The State Of sections 34 and 149 of the Indian Penal Code and the two sections are
ry, Punjab98 not to be confused….
1955
Suresh and Another v. State of Uttar Pradesh

(Date of Judgment –March 2, 2001,Supreme Court)(Sections 34 r/w 302)
Facts
In this case 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.
Decision
In this Case Supreme Court held that Pavitri Devi was not involved and she was acquitted and
Ramji and Suresh were liable for murder.
Important Points
In this leading case Supreme Court laid down several important points –
(i) Meaning of ‗Criminal act‘ - 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.
98
MPPCS J,1993, UPPCS 2006, UPAPO 2007
75
(ii) Juxtaposition of Section 34 – Sections 35 37, 38 are juxtaposition of Section 34. All sections
deal joint liability.
(iii) Vicarious liability -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 recognises the principle of vicarious liability in the criminal jurisprudence.
Meaning of vicarious liability - 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.
(iv) Not substantive offence, only evidence - It is a rule of evidence and does not create a
substantive offence. It means this section itself does not constitute any offence. Only use of this
section is to prove the liability of co-accused. So if there is only one person has committed crime
this section will not be applicable.
(v) Commonsense Principle -The section gives statutory recognition to the commonsense
principle that if more than two persons intentionally do a thing jointly, it is just the same as if
each of them had done it individually.
(vi) Pre-plan - There is no gainsaying that a common intention pre-supposes prior concert, which
requires a pre- arranged plan of the accused participating in an offence. Such a pre- concert or
pre-planning may develop on the spot or during the course of commission of the offence but the
crucial test is that such plan must precede the act constituting an offence. 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.
(vii) Some act must be done by all – 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.
Section 34 Supposed section 34
When a criminal act is done by several When a criminal act is done by one person in
persons in furtherance of the common furtherance of the common intention of several
intention of all, each of such persons is liable persons, each of such several persons is liable
for that act in the same manner as if it were for that act in the same manner as if it were
done by him alone. done by all such persons.
Participation of all is necessary. Activity of one is sufficient in furtherance of
common object.
(viii) Presence on the spot is not necessary - binoculars or mobile phones (Para 22) - Due to
scientific development a person may actively involve in commission of crime from far away (It
is my example - In Mumbai attack in 2008 some terrorist in sitting Pakistan were guiding
another terrorist who were directly involve in commission of crime). In this case the Court said
that due to advancement of electronic equipment like binoculars or mobile phones a person may
effectively participate in commission of crime.
76
(ix) Either overt or covert act is sufficient (Para 24) – 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. For
example – A co-accused, standing near the victim face to face saw an armed assailant nearing the
victim from behind with a weapon to inflict a flow. The co-accused did not inform with the idea
that the blow should fall on the victim.
Hence an act, whether overt or covert is indispensable to be done by the co-accused to be
fastened with the liability.
(x) Barendra Kumar Ghosh Case, Mahbub Shah Case, Pandurang Case, Iftikhar Khan Case
Tukaram Case were also discussed in this case.
Mizaji and Anr. v. State of Uttar Pradesh AIR 1959 SC 572
Section 149(Second Part)
In this case sections 141(Fourth), 149 and 302 are involve. According to section 141(Fourth),
An assembly of five or more persons is designated an ―unlawful assembly‖, if the common
object of the persons composing that assembly is-
Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain
possession of any property, or to deprive any person of the enjoyment of a right of way…
Facts- In this case there was dispute regarding possession of field. One day Tez Singh (spear),
his son Mizaji (pistol in the fold of dhoti) and three other persons - Maiku ,Subedar and Machal
(lathis) made a plan 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. 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 I
hour later.
Reason of decision - 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 complainants‘ party objected to what
the appellants did, they all collected together and used threats towards the complainants' party
telling them to go away otherwise they would be finished and this evidence was accepted by the
High Court. 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.
77
Theft (Sections 378-382)

Whoever, intending to take dishonestly (Section 24- dishonestly, Section 23- Wrongful gain or
wrongful loss) any moveable property (Sec. 22 and Explanation 1 Animal are also movable
property - Ill.b ) out of the possession (Section 27 and De facto and de jure possession) of any
person (Section 11) without that person‘s consent (Section 90 and Explanation 5), moves
(Explanations 3 & 4) that property in order to such taking, is said to commit theft.
Explanation 1-A thing so long as it is attached to the earth, not being movable property, is not
the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed
from the earth.
Explanation 2.-A moving effected by the same act which affects the severance may be a theft.
Explanation 3.-A person is said to cause a thing to move by removing an obstacle which
prevented it from moving or by separating it from any other thing, as well as by actually moving
it.
Explanation 4.-A person, who by any means causes an animal to move, is said to move that
animal, and to move everything which, in consequence of the motion so caused, is moved by that
animal.
Explanation 5.—The consent mentioned in the definition may be express or implied, and may be
given either by the person in possession, or by any person having for that purpose authority
either express or implied. Illustrations
(a) Explanation I and taking- A cuts down a tree on Z‘s ground, with the intention of dis-
honestly taking the tree out of Z‘s possession without Z‘s consent. Here, as soon as A has
severed the tree in order to such taking, he has committed theft. (Explanation I)
(b) Theft of animal-A puts a bait for dogs in his pocket, and thus induces Z‘s dog to follow it.
Here, if A‘s intention be dishonestly to take the dog out of Z‘s possession without Z‘s consent. A
has committed theft as soon as Z‘s dog has begun to follow A. ( Pet animals are also subject
matter of theft)
(c) Animal - A meets a bullock carrying a box of treasure. He drives the bullock in a certain
direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to
move, A has committed theft of the treasure.
(d) Possession - A, being Z‘s servant, and entrusted by Z with the care of Z‘s plate, dishonestly
runs away with the plate, without Z‘s consent. A has committed theft. (De facto possession – A
(Servant), De Jure possession – Z (Owner).
(e) Possession - Z, going on a journey, entrusts his plate to A, the keeper of the warehouse, till
Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z‘s
possession. It could not therefore be taken out of Z‘s possession, and A has not committed theft,
though he may have committed criminal breach of trust.
(f) Possession - A finds a ring belonging to Z on a table in the house which Z occupies. Here
the ring is in Z‘s possession, and if A dishonestly removes it, A commits theft.
78
(g) Without possession, no theft - A finds a ring lying on the highroad, not in the possession of
any person. A by taking it, commits no theft, though he may commit criminal misappropriation
of property.
(h) Taking- A sees a ring belonging to Z lying on a table in Z‘s house. Not venturing to
misappropriate the ring immediately for fear of search and detection, A hides the ring in a place
where it is highly improbable that it will ever be found by Z, with the intention of taking the ring
from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving
the ring, commits theft.
(i) Without dishonest - A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his
shop. A, not owing to the jeweller any debt for which the jeweller might lawfully detain the
watch as a security, enters the shop openly, takes his watch by force out of Z‘s hand, and carries
it away. Here A, though he may have committed criminal trespass and assault, has not committed
theft, in as much as what he did was not done dishonestly.
(j) Theft of own property -If A owes money to Z for repairing the watch, and if Z retains the
watch lawfully as a security for the debt, and A takes the watch out of Z‘s possession, with the
intention of depriving Z of the property as a security for his debt, he commits theft, in as much as
he takes it dishonestly.
(k) Theft of own property - Again, if A, having pawned his watch to Z, takes it out of Z‘s
possession without Z‘s consent, not having paid what he borrowed on the watch, he commits
theft, though the watch is his own property in as much as he takes it dishonestly.
(l) Temporary Taking - A takes an article belonging to Z out of Z‘s possession, without Z‘s
consent, with the intention of keeping it until he obtains money from Z as a reward for its
restoration. Here A takes dishonestly; A has therefore committed theft.
(m) Implied Consent - A, being on friendly terms with Z, goes into Z‘s library in Z‘s absence,
and takes away a book without Z‘s express consent for the purpose merely of reading it, and with
the intention of returning it. Here, it is probable that A may have conceived that he had Z‘s
implied consent to use Z‘s book. If this was A‘s impression, A has not committed theft.
(n) Implied Consent - A asks charity from Z‘s wife. She gives A money, food and clothes,
which A knows to belong to Z her husband. Here it is probable that A may conceive that Z‘s
wife is authorised to give away alms. If this was A‘s impression, A has not committed theft.
(o) Section 27 Wife is equal to Clerk and servant - A is the paramour of Z‘s wife. She gives a
valuable property, which A knows to belong to her husband Z, and to be such property as she has
no authority from Z to give. If A takes the property dishonestly, he commits theft.
(p) No Dishonest Intention- A, in good faith, believing property belonging to Z to be A‘s own
property, takes that property out of B‘s possession. Here, as A does not take dishonestly, he does
not commit theft.
Difference between Larceny and Theft

Larceny Theft
Only permanent gain or loss is Either temporary or permanent gain or less is
necessary. sufficient.
79
Pyare Lal Bhargava v. State of Rajasthan99, Oct. 22,1962 Supreme Court

Facts - Ram Kumar Ram obtained permission from the Alwar Government to supply electricity
in November 24, 1945. 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
‗Office‘.
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 an office 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.
Arguments of Appellant Decision of Court
Possession The Superintendent(Pyare Lal) The file was in the Secretariat of the Department
was in possession of the file and concerned, which was in charge of the Chief
therefore he could not have Engineer. The appellant was only one of the officers
taken the file from himself working in that department and it cannot, therefore,
be said that he was in legal possession of the file.
There was no intention to take it To commit theft one need not take movable property
Temporary dishonestly as he had taken it permanently out of the possession of another with
only for the purpose of showing the intention not to return it to him. It would satisfy
the documents to Ram Kumar the definition if he took any movable property out of
Ram and returned it the next day the possession of another person though he intended
to the office and therefore he to return it later on. Illustration 378(b) and (l).
had not taken the said file out of
the possession of any person.
Dishonestly He did not intend to take it The appellant unauthorisedly took the file from the
dishonestly, as he did not office and handed it over to Ram Kumar Ram. He
(Wrongful receive any wrongful gain or had, therefore, unlawfully taken the file from the
gain or cause any wrongful loss to any department, and for a short time he deprived the
wrongful other person. Engineering Department of the possession of the
loss 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.
Illustration (b)-Temporary removal of a dog which might ultimately be returned to the owner or
Illustration (l)-the temporary taking of an article with a view to return it after receiving some
reward constitutes theft, indicating thereby that temporary deprivation of another person of his
property causes wrongful loss to him.
Decision – Pyare Lal Bhargava was liable for theft.
99
AIR 1963 SC 1094.
80
K N Mehra v. State of Rajasthan100(February 11,1957. Supreme Court)

(Theft of Aircraft) (Jodhpur to Pakistan)
Both Mehra and Phillips were cadets on training in the Indian Air Force Academy, Jodhpur. The
prosecution is with reference to an incident which is rather extraordinary being for alleged theft
of an aircraft, which, according to the evidence of the Commanding 'Officer, P.W. 1, has never
so far occurred. The alleged theft was on May 14, 1952. Phillips was discharged from the
Academy just the previous day, i.e., May 13, 1952, on grounds of misconduct. Mehra was a
cadet receiving training as a Navigator. The duty of a Navigator is only to guide a pilot with the
help of instruments and maps. It is not clear from the evidence whether Phillips also had been
receiving training as a Navigator. It is in evidence, however, that he knew flying. On May 14,
1952, Phillips was due to leave Jodhpur by train in view of his discharge. Mehra was due for
flight in a Dakota as part of his training along with one Om Prakash, a flying cadet. It is in
evidence that he had information about it. The authorised time to take off for the flight was
between 6 a.m. to 6-30 a.m. The cadets under training have generally either local flights which
mean flying area of about 20 miles from the aerodrome or they may have cross-country exercises
and have flight in the country through the route for which they are specifically authorised. On
that morning admittedly Mehra and Phillips took off, not a Dakota, but a Harvard H.T. 822. This
was done before the prescribed time, i.e., at about 5 a.m. without authorisation and without
observing any of the formalities, which are prerequisites for an aircraft-flight. It is also admitted
that some time in the forenoon the same day they landed at a place in Pakistan about 100 miles
away from the Indo-Pakistan border. It is in the evidence of one J. C. Kapoor who was the
Military Adviser to the Indian High Commissioner in Pakistan at Karachi, that Mehra and
Phillips contacted him in person on the morning of May 16,1952, at about 7 a.m. and informed
him that they had lost their way and force-landed in a field, and that they left the plane there.
They requested for his help to go back to Delhi. Thereupon Kapoor arranged for both of them
being sent back to Delhi in an Indian National Airways plane and also arranged for the Harvard
aircraft being sent away to Jodhpur. While they were thus on their return to Delhi on May 17,
1952, the plane was stopped at Jodhpur and they were both arrested.
(1)Taking- Flying of aircraft was taking.
(2) Movable Property - Aircraft was movable property.
(3) Dishonestly (Wrongful gain or wrongful loss) -In the present case there can be no
reasonable doubt that the taking out of the Harvard aircraft by the appellant for the unauthorised
flight has in fact given the appellant the temporary use of the aircraft for his own purpose and has
temporarily deprived the owner of the aircraft, viz., the Government, of its legitimate use for its
purposes, i.e., the use of this Harvard aircraft for the Indian Air Force Squadron that day. Such
use being unauthorised and against all the regulations of aircraft-flying was clearly a gain or loss
by unlawful means. Further, the unlawful aspect is emphasised by the fact that it was for flight to
a place in Pakistan.
(4) Out of possession – It was out of the possession of Government of India(Indian Air Force
Academy).
(5) Without Consent – Both were not authorised for flying Harvard T-22.
100
AIR 1957 SC 369
81
Decision – Conviction was upheld. K N Mehra was punished under section 379.
Avtar Singh v. State of Punjab (Supreme Court 24 August, 1964)
Electricity is not movable property. So it is not subject matter of theft. Dishonest abstraction of
electricity is an offence under Electricity Act, 1910.
Dinner Party and Theft (De facto and De jure Possession)
There are two types of possession namely De facto and De jure Possession. For example A the
master of house gives a dinner party; the plate and other things on the table are in his de jure
possession though from time to time they are in the de facto possession of his guests or servants.
Theft of own property

For theft possession is deciding factor rather than ownership. If owner takes his property from
the possession of another person dishonestly without his consent , he has committed the theft.
Illustration (j) and (k) mekaes this things clear.
(j) Theft of own property -If A owes money to Z for repairing the watch, and if Z retains the
watch lawfully as a security for the debt, and A takes the watch out of Z‘s possession, with the
intention of depriving Z of the property as a security for his debt, he commits theft, in as much as
he takes it dishonestly.
(k) Theft of own property - Again, if A, having pawned his watch to Z, takes it out of Z‘s
possession without Z‘s consent, not having paid what he borrowed on the watch, he commits
theft, though the watch is his own property in as much as he takes it dishonestly.
Theft of property of husband by wife
Butchit (1893)17 Mad 401 Case Madras High Court

A wife during her husband‟s absence removed his property and handed over her paramour. Both
of them convicted for theft. In India there is no presumption regarding unity of husband and wife.
If the wife, removing the husband‟s property from his house, does so with dishonest intention,
she is guilty of theft.
82
Robbery (Section 390)

Section 390 - Robbery is either theft or extortion. Robbery is aggravated form of theft or
extortion. There are two types of robbery namely, (1) Robbery by theft & (2) Robbery by
extortion
When theft becomes robbery – There are five essentials of theft. If two more conditions are
added in theft then theft converted into robbery.
Section Theft (1) Dishonest intention
378 (2) Movable Property
(3) Out of possession
(4) Without consent
(5) Moves that property
Section Robbery (6) Voluntarily (section 39) causes or attempts to cause
390 (a) death or hurt or wrongful restraint or
(b) fear of instant death or hurt or wrongful restraint
(7) Why death….?
(a) in order to committing theft or
(b) in committing theft or
(c) carrying away the property obtained in theft or
(d) attempting to carrying away the property obtained in theft
Robbery (1) Dishonest intention
(Theft + Robbery) (2) Movable Property
(3) Out of possession
(4) Without consent
(5) Moves that property
(6) Voluntarily (section 39) causes or attempts to cause
(a) death or hurt or wrongful restraint or
(b) fear of instant death or hurt or wrongful restraint
(7) Why death….?
(c) carrying away the property obtained in theft or
(d) attempting to carrying away the property obtained in theft
83
When extortion becomes robbery –

There are six essentials of extortion. If three more conditions are added in extortion then
extortion converted into robbery.
Section Extortion (1) Dishonest intention
383 (2) Putting any person into fear
(3) Fear of injury (section 44- Mind, body, reputation or
property) to the person so put into fear or any other person
(4) Dishonest inducement
(5) to deliver
(6) Any property (Movable or immovable) or valuable
security (section 30) or anything signed or sealed which may
be converted into valuable security
Robbery (7) Offender is in the presence of the person put in fear
(8) There must be in fear of instant death or instant hurt or
instant wrongful restraint to that person or to some other
person
(9) Then and there delivery
Section Robbery (1) Dishonest intention
390 (Extortion + (2) Putting any person into fear
Robbery) (3) Fear of injury (section 44- Mind, body, reputation or
property) to the person so put into fear or any other person
(4) Dishonest inducement
(5) to deliver
(6) Any property (Movable or immovable) or valuable
security (section 30) or anything signed or sealed which may
be converted into valuable security
(7) Offender is in the presence of the person put in fear
(8) There must be in fear of instant death or instant hurt or
instant wrongful restraint to that person or to some other
person
(9) Then and there delivery
Distinction between Theft & Extortion
S.No. Theft Extortion

1 Movable property (Section 22) Any property (Movable or immovable) or valuable
security (section 30) or anything signed or sealed
which may be converted into valuable security
2 Taking Delivery
3 Without Consent With unlawful consent
4 No fear of injury Fear of injury
84
Jadunandan Singh v. Emperor101

(Difference between ‗taking‘ and ‗delivery‘)
Facts –
(1)Narain Dusadh and Sheonadan Singh, were returning after the inspection of their fields. The
two petitioners and others assaulted them.
(2)The petitioner Alakh gave bhala blow to Narain on the right leg, and then other people
assaulted him with lathis.
(3) Jadunandan and others then assaulted Sheonandan.
(4) Jadunandan after this forcibly TOOK the thumb impressions of Narain on one piece of blank
paper, and of Sheonandan on three blank papers.
Magistrate – (1) Conviction of Alakh – 324 (2) Conviction of Jadunandan – Section 384 and
Section 323
High Court - Cases frequently occur which turn on the difference between the giving and the
taking of thumb impressions. But in this case there was no delivery. So it was not extortion. In
this case taking was involved. But this taking of documents was not out of possession of victim.
So it was not theft. In this case the use of criminal force or an assault punishable under Section
352, IPC was involved. So Jadunandan was punished under section 352 of IPC.
Sekar v. Arumugham102
Sekar had loan from Bank of Madura for purchase of Ashok Leyland Lorry. He had executed a
deed of hypothecation in favour of the bank and the said lorry was security. The bank was
continues to be the owner of the lorry.
The petitioner defaulted in payment of the monthly installments and because of this, the
respondent bank seized the lorry on 30-7-1998.
When the respondent has been empowered to seize the lorry under Clause 14(e), it cannot be said
that the respondent has committed theft of the lorry when the petitioner has committed default in
payment of installments, the bank has seized the lorry.
101
AIR 1941 Pat. 129
102
(2000) Cr. L.J 1952 (Mad.)
85
State of Karnataka v. Basavegowda103

Facts - Basavegowda was the husband of Bhagyamma and 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 that he threatened to kill her unless she parted with all her
ornaments. Bhagyamma, finding no other option, removed all her jewellery 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
town and ultimately to the hospital. He was charged with offences punishable under Sections
307 and 392.Majority of witnessed turned hostile.
Decision - Accused was punished under section 325 and section 384.
Reason- She stated that ornaments 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.
The Court said, ―We need to add here that ornaments and personal property belonging to a wife
necessarily constitute her personal possessions and divesting a wife of these against her wishes
or without her consent would clearly bring the case within the ambit of a criminal offence. It is a
misnomer to argue that irrespective of such a situation, that the possession of the wife's personal
ornaments by husband still continues to be lawful. 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”.
Cases in Case Material of Law Faculty of D.U.
Supreme Pyare Lal Bhargava v. State of Theft was committed.

Court Rajasthan
(1962) (Temporarily removal of document
from office)
Pat. H.C. Jadunandan Singh v. Emperor Difference between ‗taking‘ and
(1941) (Forcefully taking thumb impression) ‗delivery‘. Not convicted for extortion.
He was convicted under section 352.
Mad. Sekar v. Arumugham It was not theft.
H.C.(2000) (Recovery of Bank Loan)
Kant.H.C. State of Karnataka v. Basavegowda Husband was punished for extortion.
1997 (Extortion with his own wife)
103
(1997) Cr.L.J 4386 (Kant)
86
Dacoity (Section 391)

There are following essential ingredients of dacoity –
(1) There must be robbery (section 390)
(2) That robbery must be committed or attempted to commit or aiding to commit robbery
(3) By five or more persons (minimum five and maximum is unlimited)
(4) Conjointly – All persons must committed robbery conjointly.
Difference between Robbery and Dacoity
Deciding factors to make differences between robbery and dacoity are number of persons and
share of common intention of committing robbery. Suppose that 100 persons are committing
robbery without conjointly then that is merely robbery and it cannot convert into dacoity merely
due to number of persons of more than five.
(1) Every dacoity is robbery but every robbery is not dacoity.
(2) In dacoity minimum number is five while in case of robbery minimum number is one.
(3) Only that robbery can convert into dacoity when number of persons is five or more and they
are doing conjointly. If number of persons is five or more and they are not conjointly to each
other that is merely robbery.
87
Criminal Misappropriation
(Sections 403 and 404)
Section 403. Dishonest misappropriation of property.—Whoever dishonestly misappropriates or
converts (DMC- Delhi Municipal Corporation. D- Dishonestly, M- Misappropriates, C-
Converts) to his own use any movable property, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
Ingredients – There are following essential ingredients of criminal misappropriation –
(1) Dishonestly (Intention to cause wrongful gain or wrongful loss)
(2) Misappropriation or conversion
(3) For his own use
(4) Moveable property( Section 22)
Illustrations
(a) A takes property belonging to Z out of Z‘s possession, in good faith, believing, at any time
when he takes it, that the property belongs to himself. A is not guilty of theft;
but if A, after discovering his mistake, dishonestly appropriates the property to his own use, he
is guilty of an offence under this section.
(b) A, being on friendly terms with Z, goes into Z‘s library in Z‘s absence, and takes away a
book without Z‘s express consent. Here, if A was under the impression that he had Z‘s implied
consent to take the book for the purpose of reading it, A has not committed theft.
But, if A afterwards sells the book for his own benefit, he is guilty of an offence under this
section.
(c) A and B, being joint owners of a horse, A takes the horse out of B‘s possession, intending to
use it. Here, as A has a right to use the horse, he does not dishonestly misappropriate it.
But, if A sells the horse and appropriates the whole proceeds to his own use, he is guilty of an
offence under this section.
Explanation I - A dishonest misappropriation for a time only is a misappropriation with the
meaning of this section.
Illustration - A finds a Government promissory note belonging to Z, bearing a blank
endorsement. A, knowing that the note belongs to Z, pledges it with a banker as a security for a
loan, intending at a future time to restore it to Z. A has committed an offence under this section.
88
Explanation 2 - A person who finds property not in the possession of any other person, and
takes such property for the purpose of protecting it for, or of restoring it to, the owner does not
take or misappropriate it dishonestly, and is not guilty of an offence;
but he is guilty of the offence above defined, if he appropriates it to his own use, when he knows
or has the means of discovering the owner, or before he has used reasonable means to discover
and give notice to the owner and has kept the property a reasonable time to enable the owner to
claim it. What are reasonable means or what is a reasonable time in such a case, is a question of
fact. It is not necessary that the finder should know who is the owner of the property, or that any
particular person is the owner of it; it is sufficient if, at the time of appropriating it, he does not
believe it to be his own property, or in good faith believe that the real owner cannot be found.
Illustrations
(a) A finds a rupee on the high road, not knowing to whom the rupee belongs. A picks up the
rupee. Here A has not committed the offence defined in this section.
(b) A finds a letter on the road, containing a bank note. From the direction and contents of the
letter he learns to whom the note belongs. He appropriates the note. He is guilty of an offence
under this section.
(c) A finds a cheque payable to bearer. He can form no conjecture as to the person who has lost
the cheque. But the name of the person, who has drawn the cheque, appears. A knows that this
person can direct him to the person in whose favour the cheque was drawn. A appropriates the
cheque without attempting to discover the owner. He is guilty of an offence under this section.
(d) A sees Z drop his purse with money in it. A picks up the purse with the intention of restoring
it to Z, but afterwards appropriates it to his own use. A has committed an offence under this
section.
(e) A finds a purse with money, not knowing to whom it belongs; he afterwards discovers that it
belongs to Z, and appropriates it to his own use. A is guilty of an offence under this section.
(f) A finds a valuable ring, not knowing to whom it belongs. A sells it immediately without
attempting to discover the owner. A is guilty of an offence under this section.
89
Criminal Misappropriation and Theft

Criminal misappropriation is very close to theft. There are following relation between both –
Theft Criminal Misappropriation
Similarity Similarity
1 Movable Property Movable Property
2 Dishonest Intention Dishonest Intention
3 Temporary or Permanent Temporary or Permanent
Illustrations (b) and (l) and Explanation I
Pyare Lal Bhargawa Case.
Differences Differences
1 Taking Taking /Found
(a) A TAKES property belonging to Z out of
Z‘s possession, in good faith, believing, at any
time when he takes it, that the property belongs
to himself. A is not guilty of theft; but if A, after
discovering his mistake, dishonestly appropriates
the property to his own use, he is guilty of an
(e) A FINDS a purse with money, not knowing
to whom it belongs; he afterwards discovers that
it belongs to Z, and appropriates it to his own
use. A is guilty of an offence under this section.
2 Out of possession Out of possession / Without possession
Above discussed illustration namely (a) and (e).
3 Dishonest intention Dishonest intention or in beginning good faith
and later on dishonest intention.
Criminal Breach of Trust

(Sections 405-409)
Section 405 - Criminal breach of trust –
―(1) Whoever, being in any manner entrusted with property, or with any dominion over
property,
(2) The person who was entrusted or have dominion over property
(a) dishonestly misappropriates or converts (DMC) to his own use that property, or
(b) dishonestly uses or disposes of that property or wilfully suffers any other person so to do
in violation of
90
(i) any direction of law prescribing the mode in which such trust is to be discharged, or
(ii ) any legal contract, express or implied, which he has made touching the discharge of such
trust,
commits ―criminal breach of trust‖.
Comments
(1) Getting of property in two ways -In criminal breach of trust person gets property in two
ways –
(a) Either he is entrusted possession of property or
(b) He is given dominion of property.
(2) Mens Rea – Dishonestly (section 24 –Intention to cause wrongful gain or wrongful loss)
denotes mens rea.
(3) What is he (abetting another person - wilfully suffers any other person so to do) doing with
those properties?
(a) dishonestly misappropriates or converts (DMC) to his own use that property
(b) ) dishonestly uses or disposes of that property
(4)Against which?
(a) against direction of law or
(b)against legal contract.
Jaikrishnadas Manohardas Desai (J.M.Desai) and Another vs. State of Bomaby 104
(Section 34 and Section 405)
Facts - 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. 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 in spite of
repeated demands. Ultimately the two appellants were prosecuted for criminal breach of trust
under section 409 read with section 34 of the Indian Penal Code.
Trial Court – They were convicted for the same in a trial by jury.
High Court - In appeal the High Court reviewed the evidence on the ground of misdirection to
the jury but found that the two appellants were liable to account for the cloth over which
104
AIR 1960 SC 889
91
they had dominion, and having failed to do so each of them was guilty of the offence of criminal
breach of trust. The High Court refused to accept the appellants‘ plea that the cloth was old and
was eaten up by white ants and moths.
Supreme Court –
Section 405- 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 of criminal breach of trust being dishonest misappropriation 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.
Section 34 (No need of physical presence in all cases)- Shreekantiah Ramayya Munipalli vs.
The State of Bombay was cited on behalf of first appellant in which Supreme Court had held that
for application of Section 34 presence of accused is necessary.
But in this case Supreme Court held that physical presence of the accused at the scene of offence
of the offender sought to be rendered liable under section 34 is not, on the words of the
statute, one of the conditions of its applicability in every case.
But this participation need not in all cases be by physical presence. In offences involving
physical violence, normally presence at the scene of offence of the offenders sought to be
rendered liable on the principle of joint liability may be necessary, but such is not the case in
respect of other offences where the offence consists of diverse acts which may be done at
different times and places.
Decision of Supreme Court – Supreme Court dismissed the appeal and held that conviction of
both persons under section 409 r/w 34 by High Court was justified. It was accepted that First
appellant had dominion over property.
Cheating (Section 415)

Section 415- Cheating - Whoever, by deceiving any person, fraudulently or dishonestly
induces (D FDI) the person so deceived to deliver any property to any person, or to consent
that any person shall retain any property, or intentionally induces the person so deceived to do
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, is said to ―cheat‖.
Explanation.-A dishonest concealment of facts is a deception within the meaning of this section.
Illustrations
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus
dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A
cheats.
92
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this
article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and
pay for the article. A cheats.
( c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that
the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for
the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and
by which A expects that the bill will be dishonored, intentionally deceives Z, and thereby
dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
( e) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives
Z, and thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to
him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.
(g)A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of
indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance
money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money,
intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he
does not cheat, but is liable only to a civil action for breach of contract.
(h) A intentionally deceives Z into a belief that A has performed A‘s part of a contract made with
Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no
right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous
sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats.
There are following essential ingredient of section 415 –
(1)Deception- There must be deception of any person. (A person deceives another when he
causes to believe what is false or misleading as to matter of fact, or leads into error).
(2)
(a) Property - fraudulently or dishonestly induces (FDI) the person so deceived
(i) to deliver any property to any person, or
(ii) to consent that any person shall retain any property,
(b) 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.
93
Ram Jas v. State of U.P. (Date of judgment 11/09/1970)105

The ingredients required to constitute the offence of cheating are :--
(i) There should be fraudulent or dishonest inducement of a person by deceiving him;
(ii)
(a) The person so deceived should be induced to deliver any property to any person, or to
consent that any person shall retain any property; or
(b) The person so deceived should be intentionally induced to do or omit to do anything which
he would not do or omit if he were not so deceived; and
(iii) In cases covered by (ii) (b), the act or omission should be one which causes or is likely to
cause damage or harm to the person induced in body, mind, reputation or property.
Mahadev Prasad v. State of Bengal (1954 Supreme Court )

(Breach of Contract v. Cheating)
Facts
Mahadev Prasad agreed to purchase from the complainant Dulichand Kheria 25 ingots of tin on
the 5th May 1951. Price was to be paid by the Appellant against delivery. The Appellant 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 had no sufficient money which he knew.
The Additional Presidency Magistrate,
The Additional Presidency Magistrate, Calcutta held that the charge against the Appellant was
proved and convicted him and sentenced him as above. The Appellant took an appeal to the High
Court against this conviction and sentence passed upon him.
High Court
The High Court dismissed the appeal and confirmed the conviction and sentence passed upon the
Appellant by the Additional Presidency Magistrate, Calcutta.
Supreme Court accepted the view of High Court.
Breach of Contract -The High Court observed rightly that if the Appellant had at the time he
promised to pay cash against delivery an intention to do so, the fact that he did not pay would not
convert the transaction into one of cheating.
Cheating - 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.
105
Available at https://www.sci.gov.in/jonew/judis/1333.pdf (Visited on 08 /11/2018).
94
Supreme Court
(1) No miscalculation - 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 upto the 4th May 1951.
(2) Attempt to settlement- 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.
(3) Convicted under section 420 - 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.
Akhil Kishor Ram v. Emperor (AIR 1938 Pat. 185)
(Vashi Karan Mantra)(Love Sex and Dhokha)
Akhil Kishor Ram was doing his business. He advertised ―Gupta Mantra‖ and claimed that
person will achieve his desire. In case of non-success reward for 100 rs. was advertised.
Object of Charm - It was claimed that the objects which cannot be achieved by spending lacs of
rupees may be had by repeating this Mantra seven times. There is no necessity of undergoing any
hardship to make it effective. It is effective without any preparation. She whom you want may be
very hard-hearted and proud, but she will feel a longing for you and she will want to be for ever
with you, when you read this Mantra. This is a ―Vashi Karan Mantra.‖ It will make you
fortunate, give you service, and advancement, make you victorious in litigation, and bring you
profits in trade. A reward of Rs. 100,if proved fallible.
Method to read formula - Read the Mantra seven times and look at the moon for fifteen minutes
without shutting up your eyes even for a moment. Have a sound sleep with desired object in your
heart after that and you will succeed.
Decision- Finally he was convicted for cheating.
Sri Bhagwan S.S.V.V.Maharaj v. State of A.P. AIR 1999 SC 2332
Sri Bhagwan S.S.V.V.Maharaj represented to have divine healing powers through his touches,
particularly of chronic diseases. Complainant approached him for healing his 15 year old
daughter who is congenitally a dumb child. Appellant 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/-. Complainant paid that amount and later he paid a
further amount of Rs.1,000/- towards incidental expenses. He waited eagerly for improvement of
his dump child till 1994 which was the time limit indicated by the appellant for the girl to start
speaking. But he could not get result.
95
In the meanwhile he got the news that he 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.
Hence a complaint was lodged with the police for cheating.
Magistrate
Magistrate ordered for re-investigation the case.
The Magistrate took cognizance of the offence on receipt of the said report and issued warrant of
arrest against the appellant. Appellant moved the High Court for quashing the proceedings on
two grounds.
High Court
First is that the Magistrate has no jurisdiction to order reinvestigation after receipt of the first
report of the police, without affording an opportunity to the appellant. Second is that allegations
of the complainant would not constitute an offence of cheating. But the High Court dismissed the
petition for which the impugned order was passed.
Supreme Court
(1) Power of the police to conduct further investigation, after laying final report, is recognised
under section 173(8) of the Code of Criminal Procedure.
(2) For the aforesaid reasons, we are unable to interfere with the order passed by the magistrate.
Appeal is accordingly dismissed.
96
Section 511 Attempt (Residuary section & Inchoate crime)

Contact no. -7985255882
Inchoate crime
An inchoate offense, preliminary crime, or inchoate crime, incomplete crime is a crime of
preparing for or seeking to commit another crime. The most common example of an inchoate
offense is ―attempt‖. Abetment and conspiracy are also example of inchoate crime.
Section 511
―Section 511- Punishment for attempting to commit offences punishable with imprisonment for
life or other imprisonment.-
Whoever attempts to commit an offence punishable by this Code with imprisonment for life or
imprisonment, or to cause such an offence to be committed, and in such attempt does any act
towards the commission of the offence, shall, where no express provision is made by this Code
for the punishment of such attempt, be punished with imprisonment of any description provided
for the offence, for a term which may extend to one-half of the imprisonment for life or, as the
case may be, one-half of the longest term of imprisonment provided for that offence, or with such
fine as is provided for the offence, or with both. Illustrations
(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening
the box, that there is no jewel in it. He has done an act towards the commission of theft, and
therefore is guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z‟s pocket. A fails in the
attempt in consequence of Z‟s having nothing in his pocket. A is guilty under this section.‖
Section 511 can be elaborated with the help of following points -
(1) Residuary Section
(……where no express provision is made by this Code for the punishment of such attempt….)
There are four types of provisions under IPC namely,
(i) Same section for offence and attempt – Same sections which deal offence and attempt
within own sphere and provide same punishment. For example Sections 121, 124, 124A, 161
&196 etc.
(ii) Different sections- In second category those provisions come which discuss separately for
commission of offence (section 302) and attempt to commission of offence (section 307). There
are also different punishment for commission of offence and attempt to commission of offence.
97
(iii) Only attempt is an offence while actual completion of act is not an offence. For example
section 309.
(iv) No specific provision for attempt – There are several offences for which there is no
specific provisions for attempt. For example theft (sections 378 – 382). For such types offences
section 511 has been provided.
Section 511 covers attempt for all types of offences for which there is no specific provisions
which deals attempt.
(2) Limited application
(……with imprisonment for life or imprisonment……..)
This section will be applicable only offence is punishable either with imprisonment for life or
imprisonment.
If any offence is punishable only either with death sentence or fine section 511 will not be
applicable.
(3) Half Punishment
Section 57 Fractions of terms of punishment - In calculating fractions of terms of
punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty
years.
….. one-half of the imprisonment for life (Half of 20 years – 10 years) or, as the case may be,
one-half of the longest term of imprisonment provided for that offence ( Section 376B –
Minimum 2 years and maximum seven years –Half of maximum punishment i.e. three & half
years), or with such fine ( Full fine , rather than half of fine) as is provided for the offence, or
with both.
(4) Meaning of attempt
……….. does any act towards the commission of the offence…..
There are four stages of crime-
(I) Intention to commit crime (Not punishable) - Intention is mental status, which cannot be
traced, so mere intention is not punishable.
(II) Preparation to commit crime (Not punishable except in few cases – Section
122,126,223-235, 242, 243, 257, 259, 266 & 399) - Generally preparation is also not punishable.
But there are some exceptional cases when at the stage of preparation, offence is punishable,
namely, 1. Preparation to wage war against the Government (Section 122) 2. Any one commits
damages to the property and destruction of property within the territories of our country and the
country which is with peace with our government (Sec. 126) 3. Preparation for counterfeiting of
coins or Government Stamps (Sections 233 to 235), 255 and 257. 4. Possessing counterfeit coins,
false weights or measurements and forged documents (Section 242, 243, 259, 266 and 474) 5.
Making preparation to commit dacoity (Section 399)
(III) Attempt to commit crime – It is punishable in all cases.
98
(IV) The actual commission of crime – It is punishable in all cases.

Definition of Attempt
Sir James Stephen
―An act done with intent to commit that crime, and forming part of a series of acts which
would constitute its actual commission if it were not interrupted. The point at which such a series
of acts begins cannot be defined, but depends upon the circumstances of each particular case.‖
Abhayanand Mishra v. State of Bihar (1961)

Justice Raghubar Dayal,
―The distinction between preparation and attempt may be clear in some cases, but, in most
of the cases, the dividing line is very thin. Nonetheless, it is a real distinction. The crucial test is
whether the last act, if uninterrupted and successful, would constitute a crime.
(5) Difference between preparation and attempt

As a rule in case of preparation person will not liable while in case of attempt person will be
liable. So to establish clarity between preparation and attempt following principles have been
accepted. It depends upon judge in which case he is going to apply which principle. These are
following principles –
(I) Proximity Rule (II) Doctrine of Locus Paenitentiae (III) Impossibility Test
(IV) Social Danger Test (V) Equivocality Test
(I) Cogitationis Poenam Nemo Patitus (Proximity Rule)

No man can safely be punished for his guilty purpose, save so far as they have manifested
themselves in overt acts which themselves proclaim his guilt. Proximity must be not in relation
to time and action but to intention.
(1) Abhayanand Mishra vs. State of Bihar (24 April,1961 S.C. Justice Raghubar Dayal).
(2) Om Prakash vs. State of Punjab 1961 (24 April,1961 S.C. Justice Raghubar Dayal).
(3) Sudhir Kumar Mukherjee vs. State of West Bengal, 1973
(4) State of Maharashtra v. Mohammad Yakub
Abhayanand Mishra vs. State of Bihar106
(Sections 420 r/w 511
Facts - The appellant 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
106
24 April,1961 S.C. Justice Raghubar Dayal
99
statements and gave permission and wrote to him asking for the remission of the fees and two
copies of his photograph. The appellant furnished these and on April 9, 1954, 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 and that in fact he had
been debarred from taking any University examination for a certain number of years on account
of his having committed corrupt practice at a University examination. In consequence, the matter
was reported to the police who, on investigation, prosecuted the appellant.
Arguments of Appellant in Supreme Court - The appellant contended that on the facts found
the conviction was unsustainable on the grounds
(1) that the admission card had no pecuniary value and was therefore not property under
Section 415, and
(2) that, in any case, the steps taken by him did not go beyond the stage of preparation for the
commission of the offence of cheating and did not therefore make out the offence of attempting
to cheat.
Supreme Court said-
(1) , ―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.
(2) 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
(3) Essential ingredient of section 415 and this case –

There are following essential ingredient of section 415 –
(1)Deception- There must be deception of any person. (A person deceives another when he
causes to believe what is false or misleading as to matter of fact, or leads into error).
(2) (a) Property - fraudulently or dishonestly induces (FDI) the person so deceived
(i) to deliver any property to any person, or (ii) to consent that any person shall retain any
property,
(b) Injury (To do or omit to do) –
(i) 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
(ii) which act or omission causes or is likely to cause damage or harm to that person in body,
mind, reputation or property.
Now we have to compare this case with ingredient of section 415 -
100
The appellant would therefore have cheated the University if he had (i) deceived the University;
(ii) fraudulently or dishonestly induced the University (iii) to deliver any property to him; or
(iv) had intentionally induced the University to permit him to sit at the M.A. Examination which
it would not have done if it was not so deceived and (v) the giving of such permission by the
University caused or was likely to cause damage or harm to the University in reputation.
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.
(4) Conviction - He was convicted for 420 r/w 511.
Om Prakash vs. State of Punjab107 (1961)

(Attempt to cause death of married woman by starvation)
Section 307 (Attempt to murder)
Facts - Bimla Devi was married to the appellant in October, 1951. Their relations got strained by
1953 and she went to her brother‘s place and stayed there for about a year, when she returned to
her husband‘s place at the assurance of the appellant‘s maternal uncle that she would not be
maltreated in future. She was, however, ill-treated and her health deteriorated due to alleged
maltreatment and deliberate undernourishment. In 1956, she was deliberately starved and was
not allowed to leave the house and only sometimes a morsel or so used to be thrown to her as
alms are given to beggars. She was denied food for days together and used to be given gram husk
mixed in water after five or six days. She managed to go out of the house in April 1956, but
Romesh Chander and Suresh Chander, brothers of the appellant, caught hold of her and forcibly
dragged her inside the house where she was severely beaten. Thereafter, she was kept locked
inside a room.
On June 5, 1956, she happened to find her room unlocked, her mother-in-law and husband away
and, availing of the opportunity, went out of the house and managed to reach the Civil Hospital,
Ludhiana, where she met lady Doctor Mrs. Kumar and told her of her sufferings. The appellant
and his mother went to the hospital and tried their best to take her back to the house, but were not
allowed to do so by the lady Doctor. Social workers got interested in the matter and informed the
brother of Bimla Devi, one Madan Mohan, who came down to Ludhiana and, after learning all
facts, sent information to the Police Station by letter on June 16, 1956.
107
24 April,1961 S.C. Justice Raghubar Dayal
101
Arguments of Appellant - Contention for the appellant is that the ingredients of an offence
under section 307 are materially different from the ingredients of an offence under section 511,
IPC. The difference is that for an act to amount to the commission of the offence of attempting to
commit an offence, it need not be the last act and can be the first act towards the commission of
the offence, while for an offence under section 307, it is the last act which, if effective to cause
death, would constitute the offence of an attempt to commit murder. The contention really is that
even if Bimla Devi had been deprived of food for a certain period, the act of so depriving her
does not come under section 307, as that act could not, by itself, have caused her death, it being
necessary for the period of starvation to continue for a longer period to cause death.
The Court rejected this contention.
Relation between section 511 and 307 - The expression ‗whoever attempts to commit an
offence‘ in section 511, can only mean „whoever intends to do a certain act with the intent or
knowledge necessary for the commission of that offence‟. The same is meant by the expression
used in section 307 ‗whoever does an act with such intention or knowledge and under such
circumstances that if he, by that act, caused death, he would be guilty of murder‘.
According to section 33, act denotes series of acts.
In Emperor v. Vasudeo Balwant Gogte - a person fired several shots at another. No injury was
in fact occasioned due to certain obstruction. The culprit was convicted of an offence under
section 307 . Beaumont, C. J.,said
―I think that what section 307 really means is that the accused must do an act with such a guilty
intention and knowledge and in such circumstances that but for some intervening fact the act
would have amounted to murder in the normal course of events‖.
This is correct. In the present case, the intervening fact which thwarted the attempt of the
appellant to commit the murder of Bimla Devi was her happening to escape from the house and
succeeding in reaching the hospital and thereafter securing good medical treatment.
―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.‖
A‘s last act, contemplated in this illustration, is not an act which must result in the murder of Z.
The food is to be taken by Z. It is to be served to him. It may not have been possible for A to
serve the food himself to Z, but the fact remains that A‘s act in merely delivering the food to the
servant is fairly remote to the food being served and being taken by Z.
Penultimate act is not necessary to constitute offence under section 307.
Conviction under section 307 was upheld.
102
Sudhir Kumar Mukherjee v. State of West Bengal

24 September, 1973 S.C. Justice A. Alagiriswami
The accused person Sudhir Kumar Mukherjee, an employee of a firm had attempted, in collusion
with a limestone dealer, to show false delivery of limestone to his company by forging the
signature of his superior on the invoice after which it would be presented for payment. At the
time when he was caught, he had himself not signed the challan evidencing receipt of the goods.
S.C. followed the ratio of Abhayananda case held that the fact that a challan had been prepared
and that the initial of the concerned clerk had been obtained by the accused on the challan
showed that definite steps had been taken by the accused to commit the offence of cheating. He
was liable for cheating under section 420 r/w section511.
State of Maharastra v. Mohammad Yakub
4March 1980 S.C., Justice R.S. Sarkaria
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.
He was held liable.
(II) Doctrine of Locus Paenitentiae (Time for Repentance)
An opportunity to withdraw from a contract or obligation before it is completed or to decide not

to commit an intended crime.
Queen-Empress v. Ramakka
(Section 309) Madras High Court (Decided On: 11.10.1884).
In this case , a woman on account of a quarrel with her father and brother rushed towards a well,
shouting that she would jump into it. The Court held she she could not be held guilty for
attempt to suicide as her act amounted only to a preparation to commit suicide. She must have
reached into the well and done a further act, such as trying to jump from the parapet wall of the
well, for her to be liable for conviction.
It was held that she had not gone past the Locus Paenitentiae allowed to her by the law, i.e.
there was every chance that she could have repented at the very last moment and not gone ahead
with her threats and therefore her acts were merely preparatoryband not an attempt. She was
acquitted.
Malkiat Singh v. State of Punjab (8 November, 1968 S.C. Justice V. Ramaswami)
103
(Section 511 is not involved although concept of attempt was involved. Special Law is involved)
Facts- Essential Commodities Act, 1955 section 3 and section 7 and Punjab Paddy (Export
Control) Order, 1959, para.3.Paddy consigned from Punjab to Delhi--Truck carrying paddy
stopped by police at Samalkha barrier post within Punjab which is about 14 miles from the the
Punjab-Delhi Border.
On October 19, 1961 Sub Inspector Banarasi Lal of Food and Supplies Department' was present
at Smalkha Barrier along with Head Constable Badan Singh and others. The appellant Malkiat
Singh then came driving truck no. P.N.U. 967. Babu Singh was the cleaner of that truck. The
truck carried 75 bags of paddy weighing about 140 maunds. As the export of paddy was contrary
to law, the Sub Inspector took into possession the truck as also the bags of paddy.
Provisions of Essential Commodities Act, 1955, section 3 and section 7 and Punjab Paddy
(Export Control) Order, 1959, para.3 are involved in this case.
Decision - Justice V. Ramaswami said, ―The test for determining whether the act of the
appellants constituted an attempt or preparation is whether the overt acts already done are such
that if the offender changes his mind and does not proceed further in its progress, the acts already
done would be completely harmless. In the present case it is quite possible that the appellants
may have been warned that they had no licence to carry the paddy and they may have changed
their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have
proceeded further in their journey. Section 8 of the Essential Commodities Act states that "any
person who attempts to contravene, or abets a contravention of, any order made under Section 3
shall be deemed to have contravened that order". But there is no provision in the Act which
makes a preparation to commit an offence punishable. It follows therefore that the appellants
should not have been convicted under Section 7 of the Essential Commodities Act.‖
(3) Impossibility Test

Punishing the guilty mind even the act itself is innocent. Section 511, Illustration (a).
The crucial aspect is the belief of the person, and the intention preceding his action to do a
particular act. If he has crossed preparation , then it would be an attempt.
Asgarali Pradhania v. Emperor . 21 July, 1933

(Sections312r/w 511)
The complainant was 20 years of age, and had been married but divorced by consent. She was
living in her father's house, where she used to sleep in the cook shed. The appellant 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 gave her presents, and 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 paper packet containing a
104
powder. After he had gone she tasted the powder, but finding it salty and strong, spat it out. She
did not try the liquid. 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, and that the powder irritated her tongue. Thereupon he asked her to
open her mouth, and 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 neighbours came, and 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. According
to the medical evidence, copper sulphate has no direct action on the uterus, and is not harmful
unless taken in sufficiently large quantities, when it may induce abortion.
McNair, J. ―On the facts stated in this case, and for the reasons already given, the appellant
cannot in law, be convicted of an attempt to cause a miscarriage. What he did was not an "act
done towards the commission of the offence" of causing a miscarriage. 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. Consequently, the conviction and sentence must
be set aside and the appellant acquitted.‖
He was not held liable for miscarriage.
Munah Binti Ali vs. Public Prosecuter (1958)
Accused was charged section 312 r/w section 511of with voluntarily attempting to cause one
Chee Yew Cheng to have miscarriage and in such attempt did insert an instrument into her
vagina.
Whether an accused is liable for an attempt to cause abortion, when the woman (complainant)
was not actually pregnant, as it came to be known later.
Accused was convicted under section 312 r/w section 511of the Malaysian Penal Code.
Job Test is connected to impossibility.
A person on the job may be held guilty. Aman trying to break the best of steel safes with totally
inappropriate or inadequate instrument , would steel be guilty of attempting to steal, even though
it is probably impossible to actually achieve it.
Social Danger Test
A gives pills to a pregnant woman to procure abortion, but they have no effect because the drug
turns out to be innocuous. A would be guilty of an attempt to cause miscarriage since the act
would cause an alarm to society and would have social repercussions.
Some Important Illustration –
(1) A with intention to cause death of B gave sugar under believe that sugar was arsenic. B ate
sugar. A had not caused any offence. UK (J) 2005.
105
Annexure I (Previous Year Question Paper 2013. LLB-DU)

Contact no. -7985255882
SN Contents P. No
1 Distinction amongst ‗motive‘, ‗intention‘ and ‗knowledge‘
2 Distinction amongst the offences of ‗theft‘, ‗extortion‘ and ‗robbery‘.
Distinction between in Exception I and IV to section 300 IPC
3 Distinction and similarities between ‗criminal misappropriation‘ &‗criminal breach of
trust‘.
4 Difference between Kidnapping and Abduction
5 Salient features of the Criminal Law (Amendment) Act, 2013
6 Special features of the criminal law (amendment) ordinance, 2018. ( Read only IPC)
7 ‗Reasonable man‘ for determining the ‗grave‘ and ‗sudden‘ under Exception 1of Sec.300
Question 1. Write short notes on any two of the followings:

(a) Explain and illustrate distinction amongst ‗motive‘, ‗intention‘ and ‗knowledge‘.
Question 1 (a) Distinction amongst ‗motive‘, ‗intention‘ and ‗knowledge‘
According to Stephen ― 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, e.g., if a
person kills another, the intention directs the act which causes death, the motive is object which
the person had in view, i,g., the satisfaction of some desire, such as revenge etc.‖
According to Austin ―The intention is the aim of the act, of which the motive is the spring.‖
Basdev v. The State of Pepsu (17 April,1956 S.C )108
In this case Supreme Court said, ―Motive is something which prompts a man to form an intention
and knowledge is an awareness of the consequences of the act. In many cases intention and
knowledge merge into each other and mean the same thing more or less and intention can be
presumed from knowledge. The demarcating line between knowledge and intention is no doubt
thin but it is not difficult to perceive that they connote different things.‖
Neither bad motive nor good motive is relevant to constitute offence. It is relevant under section
8 of Indian Evidence Act. Motive prompts a person to do something. Sometime offence is
committed with motive and sometimes without motive. Intention refers to the immediate object,
while motive refers to the ulterior object which is at the root of intention.
Motive Intention Knowledge
108
The accused was prosecuted for a kill a boy in marriage ceremony during dispute for seat.
106
(1) Motive is the feeling which prompts Intention is an operation of Knowledge is only
Definition the operation of the will. the will directing an overt foresight of
act. Intention is the consequences. Here
combination of desire and desire is missing.
foresight of consequences.
Illustration if a person kills another, the A with desire to kill B A without desire to kill B
intention directs the act which threw from fourth floor to and for saving life threw
causes death, the motive is object ground. He foresighted that from fourth floor to
which the person had in view, i,g., throwing from fourth floor ground. He foresighted
the satisfaction of some desire, such was likely to cause death. that throwing from fourth
as revenge etc. So in this case in presence floor was likely to cause
of desire and foresight death. So in this case in
there is intention. absence of desire and
presence of foresight is
involved. So it is
knowledge.
2 It is the ulterior object It is immediate object. It is immediate object.
3 Motive is not part of crime. So either Presence or absence of It is also relevant.
good motive or bad motive shall not intention is very relevant.
commission of offence. It means Rule is that ―Actus non
presence or absence of motive is not facit reum, nisi mens sit
relevant to constitute offence. It is rea”
relevant to decide quantum of
punishment. It is relevant under
section 8 of Indian Evidence Act.
Example A removes a cow belonging to B A is in a house which is on
to save her from being fire, with Z, a child. People
slaughtered. A will be liable for below hold out a blanket. A
theft if other condition of theft drops the child from the house-
are being fulfilled. His good top, knowing it to be likely that
motive cannot save him. the fall may kill the child, but
not intending to kill the child,
and intending, in good faith,
the child‘s benefit. Here, even
if the child is killed by the fall,
A has committed no offence.
4 A crime committed with A crime committed with
Gravity intention is more serious. knowledge is lesser
Example sec. 304 Part One serious in comparison
with intention.
Example sec. 304 Part
Two.
Question no. 1 (b) Distinction amongst the offences of ‗theft‘, ‗extortion‘ and ‗robbery‘.
107
Distinction between Theft & Extortion

S.No. Theft Extortion
1 Movable property (Section 22) Any property (Movable or immovable) or valuable
security (section 30) or anything signed or sealed
which may be converted into valuable security
2 Taking Delivery
3 Without Consent With unlawful consent
4 No fear of injury Fear of injury
Theft Extortion Robbery

There is no kind of theft. There is no kind of There are two types of robbery namely;
extortion. (i) robbery by theft
(ii) robbery by extortion
Theft is less serious in Extortion is less serious in Robbery is aggravated form of either
comparison to robbery. comparison to robbery. theft or extortion.
Here taking is necessary. Here delivery is necessary. Here in case of robbery by theft taking
Jadunandan Singh v. Jadunandan Singh v. is necessary and in case of robbery by
Emperor109 Emperor110 extortion delivery is necessary. In this
way in case of robbery taking and
delivery both are relevant.
No fear Fear of injury Fear of death, hurt or wrongful restraint
or
Fear of instant death, instant hurt or
instant wrongful restraint
Moveable Property Any property (Movable or In case of robbery by theft – movable
immovable) or valuable property and
security (section 30) or in case of robbery by extortion – any
anything signed or sealed types of property.
which may be converted
into valuable security
Without consent Unlawful consent In case of robbery by theft - Without
consent
in case of robbery by extortion-
unlawful consent
(1) Dishonest intention In case of adding of two more
(2) Movable Property conditions in five condition of theft ,
(3) Out of possession theft converts into robbery by theft -
(4) Without consent (6) Voluntarily (section 39) causes or
(5) Moves that property attempts to cause
(a) death or hurt or wrongful restraint or
(b) fear of instant death or hurt or
109
AIR 1941 Pat. 129
110
AIR 1941 Pat. 129
108
wrongful restraint
(7) Why death….?
(c) carrying away the property obtained
in theft or
(d) attempting to carrying away the
property obtained in theft
(1) Dishonest intention In case of adding of three more
(2) Putting any person into conditions in six conditions of extortion
fear , extortion converts into robbery by
(3) Fear of injury (section extortion -
44- Mind, body, (7) Offender is in the presence of the
reputation or property) to person put in fear
the person so put into fear (8) There must be in fear of instant
or any other person death or instant hurt or instant wrongful
(4) Dishonest inducement restraint to that person or to some other
(5) to deliver person
(6) Any property (9) Then and there delivery
(Movable or immovable)
or valuable security
(section 30) or anything
signed or sealed which
may be converted into
valuable security
Every theft is not robbery Every extortion is not In all robbery there is either theft or
robbery. extortion.
Question 3. (a) Bring out clearly the distinction in the degree of rashness required under section
304A IPC and that under section 304 part II, IPC for conviction of offenders with the help of
decided cases and illustrations.
Question no. 4 (a) Bring out clearly the distinction between the requirements of the partial
defence contained in Exception I and IV to section 300 IPC with the help of decided cases and
also the similarity in some of the essentials, if any, of two exceptions.
Answer – Once it is proved that homicide is culpable homicide, then next question arises
whether that culpable homicide is murder or not. Once it is proved that culpable homicide is
murder then accused is entitled to argue that the murder comes under any of the five exceptions
of section 300. If murder comes under any of the exceptions section 300 then murder converts
into culpable homicide. So culpable homicide has been divided into two parts namely;
(i) culpable homicide not amounting to murder – Sections 299 and five exception of section 300
(ii) culpable homicide amounting to murder – Section 300.
Exception 1- Culpable homicide is not murder if the offender, whilst deprived of the power of
self-control by grave and sudden provocation, causes the death of the person who gave the
provocation or causes the death of any other person by mistake or accident.
109
Exception 4 -Culpable homicide is not murder if it is committed without premeditation in a

sudden fight in the heat of passion upon a sudden quarrel and without the offender having
taken undue advantage or acted in a cruel or unusual manner.
Relation between Exception 1 and Exception 4
In the K.M. Nanavati Case Supreme Court discussed Exception 1 of Section 300. Ghapoo Yadav
& Ors. v. State of M.P. ( Feb. 2003) and Surain Singh v. The State of Punjab (DOJ-10 April
2017) are leading cases in which Supreme Court thoroughly discussed relations between
Exception 1 and Exception 4 of section 300 which are following -
Exception 1 -Grave and Sudden Exception 4 - Sudden Fighting
Provocation
(1) Both are based on same principle (2) Provocation is involved in both the cases.
i.e. both depend upon without
premeditation.
1 Here one party is to be blamed. He A fight suddenly takes place, for which both
has created grave and sudden parties are more or less to be blamed.
provocation. A ―sudden fight‖ implies mutual provocation
and blows on each side. The homicide
committed is then clearly not traceable to
unilateral provocation, nor could in such cases
the whole blame be placed on one side.
2 It covers matters of grave and sudden This covers matters of sudden fight.
provocation.
3 There is total deprivation of self- There is only that heat of passion which clouds
control men‘s sober reason and urges them to deeds
which they would not otherwise do.
4 Act is done in direct consequences of The injury done is not the direct consequence
that provocation. of that provocation..
110
Question 6 (a) - Bring out clearly the distinction and similarities, if any, between the offences of
‗criminal misappropriation‘ and ‗criminal breach of trust‘.
Answer –
Criminal Misappropriation Criminal Breach of Trust
(Sections 403 - 400) (Sections 405 - 409)
Similarities Similarities
(1) Both offences have been mentioned in Chapter
XVII (Sections 378-462) which is related to offences
against property. It means both offences are related to
property.
(2) Dishonestly (Section 24) is common in both
offences.
(3) DMC to his own use is common.
Dishonestly misappropriates or converts to his own use
is common in both offences.
Movable Property Any types of property whether movable

or immovable
Taking /Found A person is entrusted with property or
In case of Criminal Misappropriation accused either dominion over property.
takes property or finds the property accidentally.
There is no fiduciary relationship. There is fiduciary relationship.
Here there is violation of law. Here there is no question Here there is either violation of law or
of violation of contract. contract.
Accused is doing only one work i.e. dishonestly Accused is doing two works –
misappropriates or converts (DMC) to his own use (i) dishonestly misappropriates or
that property, or converts (DMC) to his own use that
property, or
(ii) dishonestly uses or disposes of that
property or willfully suffers any other
person so to do
in violation of
(a) any direction of law prescribing the
mode in which such trust is to be
discharged, or
(b ) any legal contract, express or
implied, which he has made touching
the discharge of such trust,
111
Question7 (a) Bring out clearly the distinction between kidnapping and abduction under the IPC.
Ans. There are two types of kidnapping (Section 359) i.e. kidnapping from India and kidnapping
from lawful guardianship. There is no kind of abduction.
Difference between Kidnapping and Abduction
S.N. Kidnapping from Lawful guardianship Abduction
1 Kidnapping is substantive offence. It is an Abduction is not a substantive offence.

363A, 364,364A to 369.
of unsound mind
4 TEA (T-Taking, E-Enticing, A-Any minor). FCDI (F-Force, C-compels or D-
Without taking or enticing kidnapping is not Deceitful means I-Induces)
possible. S. Varadrajan v. State of Madras.
In this case, there was no taking. Except
taking all the conditions were available. So
S. Varadrajan was acquitted.
6 Consent of victim is immaterial. He or she Free and voluntarily consent of the
is not capable to give consent. person abducted condones abduction.
7 Intention of the kidnapper is immaterial for Intention of the abductor is an important

the offence. factor in determining guilt of the
accused.
S. No. Kidnapping from India Kidnapping from Lawful Guardianship

1 Conveys Taking or enticing
2 Any Person Minor or Person of Unsound mind
3 Beyond the limits of India Out of Lawful guardianship
4 Without consent Consent is immaterial
5 Out of keeping of lawful Out of keeping of lawful guardianship.
guardianship has not been Kidnapping of orphan is not possible. If he is in
mentioned here. Kidnapping of orphan home then kidnapping is possible.
orphan from India is possible.
Question 5 (a) Clearly bring out the salient features of the Criminal Law (Amendment) Act,
2013 bringing in changes in rape law and introducing some new offences in the IPC in the
category of offences against women.
COMPARISON BET. BEFORE AND AFTER 2013 AMENDMENT REGARDING RAPE
112
Before 2013 Amendment After 2013 Amendment

Definition Sexual Intercourse was necessary. Now sexual intercourse is not necessary.
of Rape Earlier insertion of penis into vagina Penetration of penis into the vagina, mouth,
was necessary. Such sexual intercourse urethra or anus of a woman or insertion of
must be in six circumstances namely , any object into vagina, urethra or anus is
Firstly- Against her will. sufficient. If a man manipulates any part of
Secondly—Without her consent. the body of woman for penetration or applies
Thirdly— With her consent, when her his mouth to the vagina, urethra or anus of a
consent has been obtained by putting woman or make her to do so against her will
her or any person in whom she is or without her consent or with or without her
interested in fear of death or of hurt. consent, when she is under eighteen years of
Fourthly..Fifthly.. Sixthly — With or age or when she is unable to communicate
without her consent, when she is under consent is rape.
sixteen years of age. Explanation.
Age to Section 375 Sixthly — With or without Section 375 Sixthly — With or without her
give her consent, when she is under sixteen consent, when she is under eighteen years of
consent years of age. age.
New There were six categories of consent. Now, there are seven categories of consent.
ground Seventhly- When she is unable to
regarding communicate consent.
consent
Punishme There was no provisions regarding There are two circumstances when in rape
nt punishment of death sentence. cases death sentence may be awarded. These
two cases are (1) Section 376A-Punishment
for causing death or resulting in persistent
vegetative state of victim. (2) Section 376E-
Punishment for repeat offenders.
Exception There was one exception- Sexual There are two exceptions.
intercourse by a man with his own Exception1-A medical procedure or
wife, the wife not being under fifteen intervention shall not constitute rape.
years of age, is not rape. Exception2-Sexual intercourse by a man with
his own wife, the wife not being under fifteen
years of age, is not rape. Exception 2 does not
exist after decision of Independent Thought
vs. Union of India & Anr (Oct.11, 2017).
New Section 354 Section 354 A, Section 354B, Section 354C,
sections Section 354 D,Section 326A, Section 326B
Section166A, Section166B
113
SPECIAL FEATURES OF THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018.1

Or
SPECIAL FEATURES OF THE CRIMINAL LAW (AMENDMENT) Act, 2018.1
Now ‗Ordinance 2018‘ has been substituted by ‗..Act,2018‘. Either they ask ‗Ordinance 2018‘ or
‗..Act,2018‘will be same. Most important point is that they will ask only those changes which were
made in IPC. Don‘t emphasize on Criminal Procedure Code or Evidence or POCSO. But for safe side
you can read. 99.9% chance is that they will ask question from ‗..Act,2018‘ related to IPC.
By this ―Ordinance‖ changes have been done in IPC, 1860, Indian Evidence Act, 1872, Code of
Criminal Procedure, 1973 and Protection of Children from Sexual Offences Act, 2012. Rape has
been classified into four categories- (1) Rape with girl below the age of twelve years (2) Rape
with girl below the age of sixteen years (3) Rape with girl below the age of eighteen years (4)
Rape above the age of eighteen years.
INDIAN PENAL CODE,1860

Provisions Before Criminal Law After Criminal Law (Amendment)
(Amendment) Ordinance, 2018. Ordinance, 2018.
INDIAN PENAL CODE,1860 INDIAN PENAL CODE,1860
Section 166A (c) Public 376B,376C, 376D, and 376E 376AB, 376B, 376C, 376D, and 376DA,
servant disobeying Substituted by 376DB.
direction under law.
Section 228A 376A,376B,376C, 376D, Section 376 A, Section 376AB,
Disclosure of identity 376B,376C, 376D, and 376DA, 376DB.
Section 376(1) …not be less than seven years but …not be less than ten years but which may
Punishment for rape which may extend to extend to imprisonment for life..
imprisonment for life…
Section 376(2)(i) Rape on a woman when she is Deleted
under sixteen years of age
Section 376 (3) Section 376 (3) was absent. Newly inserted.
(It had been provided under Rape on a woman when she is under
Section 376(2) (i) for which sixteen years of age – Not less than twenty
punishment was……. years –which may be imprisonment for life.
not be less than ten years but
which may extend to
imprisonment for life..
Section 376 A Section 376 A Section 376 A (No change)
Section 376 AB Absent Inserted. Punishment-
Rape with girl below Not less than twenty Years – up to LI and
114
the age of 12 Years fine or Death sentence

Section 376DA Life Imprisonment
Punishment for gang
rape on a women under
sixteen years of age
Section 376DB LI and Fine or Death Sentence
Punishment for gang
rape on a women under
twelve years of age
Omitted Substituted Inserted
Section 376(2)(I) Section 166A,Section 228 A, Section 376(3), Section 376AB, Section
Section 376(1) 376DA, Section 376DB
INDIAN EVIDENCE ACT, 1872
Provision Before Criminal Law After Criminal Law (Amendment)
Section 53A Section 376A, Section 376B, Section 376A, Section AB, Section 376B,
Substituted Section C and 376 D Section C and 376 D, Section 376D and
Section 146 Section 376A, Section 376B, Section 376A, Section AB, Section 376B,
Code of Criminal Procedure
1973
Provision Before Criminal Law After Criminal Law (Amendment)
Section 26 Substituted Section 376A, Section 376B, Section 376A, Section AB, Section 376B,
Section C and 376 D Section C and 376 D, Section 376D and
Section 164 (5A) Section 376A, Section 376B, Section 376A, Section AB, Section 376B,
Section 173(1A) Investigation in relation to rape of Investigation in relation to rape of child
Substituted child may be completed within shall be completed within two months
three months
115
Section 309 When the inquiry or trial relates

When the inquiry or trial relates to an
Substituted to an offence under Section 376A,
offence under Section 376A, Section AB,
Section 376B, Section C and 376
Section 376B, Section C and 376 D,
D the inquiry or trial shall, AS
Section 376D and Section 376DA and
FOR AS POSSIBLE, be
Section 376 DB of IPC, the inquiry or trial
completed within the period of
shall be completed within the period of two
two months from the date of months from the date of filling of the
filling of the charge sheet. charge sheet.
Section 327(2) Section 376A, Section 376B, Section 376A, Section AB, Section 376B,
Substituted Section 376DA and Section 376 DB.
Section 357 B- Section 326A and Section 376D Section 326A and Section 376AB, Section
Substituted D, Section DA and Section DB.
Section 357 C- Section 376A, Section 376B, Section 376A, Section AB, Section 376B,
Section 377 (3)Appeal There was no limitation period Section 377 (3)- When appeal has been
Inserted disposal of appeal filed against a sentence passed under
Section 376A, Section AB, Section 376B,
Section C and 376 D, Section 376D and
Section 376DA and Section 376 DB of IPC
, the Appeal shall be disposed of within a
period of six months from the date of filing
of such appeal
DEFECTIVE REASON -Section 377 (3) has It is a silly mistake and human error.
ORDINANCE been inserted without either
substituting clause (3) or
renumbering clause (3) as clause
(4).
Section 438 (4) Absent No anticipatory bail when offence is
Inserted. related to Section 376(3), Section 376AB
Section 439 (1) Second Absent High Court or Court of Session shall
Proviso before, before granting a bail to a person
Inserted who is accused of an offence under Section
376(3), Section 376AB Section 376DA and
Section 376 DB give notice to the
application for bail to the Public Prosecutor
within a period of fifteen days from the
date of receipt of the notice of such
application.
Schedule Section 376 AB, Section DA, Section DB,-,
Cognizable, Non-Bailable , Court of
Session
Protection of Children From
Sexual Offences Act, 2012
116
Section 42 Section 376A, Section C, Section Section 376A, Section 376AB, Section
Substituted D 376B, Section 376C, Section 376D, Section
376DA and Section 376 DB.
There are following special features of this ‗Ordinance‘-
(1) AMENDMENTS IN FOUR STATUTES- By this ―Ordinance‖ changes have been done in
IPC, 1860, Indian Evidence Act, 1872, Code of Criminal Procedure, 1973 and Protection of
Children From Sexual Offences Act, 2012.
(2) CLASSIFICATION OF RAPE VICTIMS ON THE BASIS OF AGE- Rape has been
classified into four categories- (1) Rape with girl below the age of twelve years – Section
376AB and Section 376 DB.(2) Rape with girl below the age of sixteen years Section 376DA
(3) Rape with girl below the age of eighteen years Section 376(1) (4) Rape above the age of
eighteen years.
(3)ENHANCEMENT OF PUNISHMENT- (i) Minimum Punishment- (a) According to section
376(1), minimum punishment in rape cases is 10 years. Earlier minimum punishment was seven
years.
(b)Minimum Punishment for Rape with women below the age of 16Years- According to
section 376(3), rigorous punishment for a term which shall not be less than twenty years.
(c )Minimum Punishment for Rape with women below the age of 12 Years- According to
section 376AB, rigorous punishment for a term which shall not be less than twenty years and
which may extent to LI or death sentence.
(ii) Life Imprisonment- According to Section 376DA Punishment for gang rape on a women
under sixteen years of age is imprisonment for life which shall mean imprisonment for the
remainder of that person‘s natural life, and with fine.
(iii) Death Sentence - (Section 376 AB Section 376DB)- Two more categories of offences
related to rape have been inserted when death sentence may be awarded. After this ―Ordinance‖
there are four categories of offences related to rape when death sentence may be awarded.
DEATH SENTENCE IN RAPE CASES
S.N. Ordinance/ Provisions Punishment
The Criminal Law (Amendment) Ordinance, 2013(Now Act)
2013
1 Section 376A- Punishment for causing death or resulting in persistent Death Sentence
vegetative state of victim
2 Section 376E- Punishment for repeat offenders. Death Sentence
THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018.111
2018
3 Section 376AB- Rape with women below the age of 12 Years Death Sentence
4 Section 376DB- ―Gang Rape‖ with women below the age of 12 Years Death Sentence
111
This Ordinance has been promulgated by President under Article 123(1) on 22nd April, 2018.
117
RAPE OF WOMEN AND PUNISHMENT

S.N. Age of Woman Punishment Sections
1 Under 12 Years
2018 Rape of Woman under 12 Years Minimum 20Years in Jail or Section 376AB
LI or Death Sentence
2018 Gang Rape of Woman under 12 Years LI and Fine or death Section 376DB
Sentence
2 Under 16 Years
years (Earlier it was 10Years)
fine.
2018 Gang Rape of Woman under 16 Years LI and Fine Section 376DA
3 Under 18 Years
fine.
4 Under or above 18 Years Rape
whether rape has been committed with
or without consent
fine.
(4) INVESTIGATION- Investigation in relation to rape of child shall be completed within two
months. Earlier period was three months. Earlier it was not mandatory to complete investigation
within three months. Now it is mandatory to complete investigation within two months.
(5) TRIAL- When the inquiry or trial relates to an offence under Section 376A, Section AB,
Section 376B, Section C and 376 D, Section 376D and Section 376DA and Section 376 DB of
IPC, the inquiry or trial shall be completed within the period of two months from the date of
filling of the charge sheet. Earlier it was discretionary power of court to complete trial as for as
possible within two months. Now it is mandatory to complete trial within two months.
(6) LIMITATION PERIOD FOR DECISION OF APPEAL-Section 377 (3)- When appeal has
been filed against a sentence passed under Section 376A, Section AB, Section 376B, Section C
and 376 D, Section 376D and Section 376DA and Section 376 DB of IPC , the Appeal shall be
disposed of within a period of six months from the date of filing of such appeal.
118
LIMITATION PERIOD
Ordinance
The Criminal Law (Amendment) The Criminal Law (Amendment)
Ordinance, 2013(Now Act) Ordinance, 2018
Limitation Three months - Investigation in Two Months -Investigation in relation
Period for relation to rape of child may be to rape of child shall be completed
Investigation completed within three months. within two months. Now it is mandatory
It was discretionary power. to complete investigation within two
Section 173(1A). months. Section 173(1A).
Three months Two Months

Discretion Mandatory
Limitation Section 376A, Section 376B, Section 376A, Section AB, Section
Period for Trial Section C and 376 D 376B,
Section C and 376 D, Section 376D and
When the inquiry or trial relates to When the inquiry or trial relates to an
an offence under Section 376A, offence under Section 376A, Section
Section 376B, Section C and 376 AB, Section 376B, Section C and 376
D the inquiry or trial shall, AS D, Section 376D and Section 376DA
FOR AS POSSIBLE, be and Section 376 DB of IPC, the inquiry
completed within the period of two or trial shall be completed within the
months from the date of filling of period of two months from the date of
the charge sheet. filling of the charge sheet.
Two Months Two Months
As for as possible… It was , the inquiry or trial shall be completed..
discretionary power of Court. Now it is mandatory.
Limitation On this point law was silent. Section 377 (3)- When appeal has
Period for been filed against a sentence passed
disposal of under Section 376A, Section AB,
Appeal Section 376B, Section C and 376 D,
Section 376D and Section 376DA and
Section 376 DB of IPC , the Appeal
shall be disposed of within a period of
six months from the date of filing of
such appeal.
No limitation period Six Months
Remarks Limitation period for Limitation period for appeal– Three
investigation and trial – Two Months
Months
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(7) ANTICIPATORY BAIL Section 438 (4)--No anticipatory bail when offence is related to
Section 376(3), Section 376AB Section 376DA and Section 376 DB.
ANTICIPATORY BAIL and RAPE
BAIL RAPE Important Point
RAPE ANTICIPATORY Section 376(3) Rape with a woman below the
Section 438(4) BAIL IS NOT Section 376AB age of sixteen years, anticipatory
ins. by 2018 ALLOWED (Only in Section 376DA bail is not allowed.
Ordinance. those rape case and Section 376DB
punishment which
have been inserted in
2018)
Section 376(3) Rape on a woman when she is
under sixteen years of age.
Sect.376 AB Rape with girl below the age of
12 Years
Section 376DA Punishment for gang rape on a
women under sixteen years of
age
Section 376DB Punishment for gang rape on a
women under twelve years of
age
RAPE ANTICIPATORY Section 376 (1)
BAIL IS ALLOWED Section 376 (2)
Section 376 A
Section 376 B
Section 376 C
Section 376 D
Section 376 E.
Question 4 (b) - Explain with the help of decided cases the legal fiction of ‗reasonable man‘ for
determining the ‗grave‘ and ‗sudden‘ provocation and the concept of ‗cooling down period‘ for
reducing the criminality of an accused for murder to culpable homicide not amounting to murder
under Exception I to section 300 IPC.
Answer – Reasonable Man‘s Test - In the case of K.M. Nanavati v. State of Maharashtra
‗reasonable man‘ test was laid down to decide ―What is grave & Sudden Provocation?‖ Question
is that on what basis a man can be said a reasonable man.
In this case Supreme Court said, “No abstract standard of reasonableness can be laid down.
What a reasonable man will do in certain circumstances depends upon the customs, manners,
way of life, traditional values etc.; in short, the cultural, social and emotional background of
the society to which an accused belongs. In our vast country there are social groups ranging
from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down
any standard with precision : it is for the court to decide in each case, having regard to the
relevant circumstances.
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The Indian law, relevant to the present enquiry, may be stated thus :
(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 of the
Indian Penal Code.
(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.
Cooling Time - 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. So he was convicted for murder. His
matter did not came under Exception1 of Section 300. In case of Babu Lal v. State (1960 All.
H.C.) there was no cooling time. If there is cooling time then Exception 1 cannot be invoked.
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Annexure II (Previous Year Question Paper 2014. LLB-DU)

Contact no. -7985255882
SN Contents P. No
1 Communal riots between Community and Right to Private Defence
2 Statutory limitations on the exercise of Right of Pvt. defence
3 Promise to marriage and Caste System in India ( Law related to Rape)
4 Sections 326A, 354C, 354D, 354A,
5 Grave and Sudden Provocation
6 Impossible attempts
Question 4. (a) Due to breaking of communal riots between Community A and B. Members of
Community A caused loot, plunder and fire of the property belonging to members of Community
B. X, who was a member of Community B was also targeted. He tried to remain within closed
door, to save himself and his family. However, the mob reached and started knocking at his door.
Before the mob could enter, X fired from his licensed revolver and killed a member out of the
mob. Mr. X is charged of murder, however he pleads his right of Pvt. defence against his charge.
Can he do so? Give reasons.
Answer – This problem is based on sections 100 & 102 and Amjad Khan v. State (AIR 1952
SC 165). According to section 96 ―Nothing is an offence which is done in the exercise of the
right of private defence.‖ According to section 97 Firstly, every person has a right, subject to the
restrictions contained in section 99, to defend his own body, and the body of any other person,
against any offence affecting the human body. 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 it continues as long as such apprehension of danger to the body continues.
Under section 100, there are seven circumstances when a person may either cause death or any
other harm. According to section 100 Firstly if there is an assault which reasonably cause the
apprehension that death will otherwise be the consequence of such assault then victim may
cause death.
Amjad Khan v. State (Golden Scales) (Reasonable apprehension) - A communal riot broke out
at Katni on the 5th of March, 1950, between some Sindhi refugees resident in the town and the
local Muslims. It was enough that the mob had actually broken into another part of the house and
looted it, that the woman and children of his family fled to the appellant (Amjad Khan) for
protection in terror of their lives and that the mob was actually beating at his own doors with
their lathis and that Muslim shops had already been looted and Muslims killed in the adjoining
locality. Supreme Court said that these things cannot be weighed in too fine a set of scales or in
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golden scales. Accused was justified to use right to private defence because there reasonable
apprehension of his death and death of his family.
Co-relation between Law and problem – In these problem rioters had already caused loot,
plunder and fire of the property belonging to members of Community B. X was also member of
community B. X was also targeted. He tried to remain within closed door, to save himself and his
family. However, the mob reached and started knocking at his door. It was reasonable
apprehension of death of X and his family (Section 100 Firstly). After 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. X was justified to use right of private defence (Section 102).
Although mob had not entered into the house but knocking to door was sufficient for
commencement of right to private defence. In the Amjad Khan Case Supreme Court said that it
is not possible to weight reasonable apprehension with golden scales.
Conclusion - Killing of member of mob by X is justified on the basis of sections 100 and 102
and Amjad Khan Case. According to section 96 nothing is an offence which is done in the
exercise of the right of private defence. So X has not committed any offence. X will succeed to
defend himself on the basis of right to private defence.
Question 4 (b)
Discuss statutory limitations on the exercise of Right of Pvt. defence as laid down in Indian
Penal Code.
Answer – If there is right then question arises limitations on the right. In absence of right no
question arises any types of limitation. According to section 97 right to private defence can be
exercised subject to restrictions mentioned in section 99.
Section 99 (Acts against which there is no right of private defence)
Section 99 may be divided into four parts.
First part deals that when right of private defence is not available against public servant.
According to this parts if conditions mentioned in this part are not being fulfilled then right of
private defence is also available even against public servant. For example if there is reasonable
apprehension that police is about to kill then other person has right to kill that person. But this
right is not available for stage manager. If you have created such circumstances in which police
is about to kill you in his self defence and in counter you kill him then right to private defence is
not available for you. Second part covers those matters which had been done on the direction of
public servant. Third part covers those matters in which person has time to recourse protection
of public authorities. Fourth part deals that this right must not be used to take revenge. It must
be used only for the purpose of protection.
(1) Public Servant
apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant
acting in good faith under colour of his office, though that act, may not be strictly justifiable by
law.
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Explanation 1 - A person is not deprived of the right of private defence against an act done, or
attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that
the person doing the act is such public servant.
Kanwar Singh v. Delhi Administration(1965 SC)- A raiding party possessing authority u/s 418,
Delhi Municipal Corporation Act seized the stray cattle belonging to the accused. The accused
resisted the seizure of the cattle and inflicted injuries on the raiding party. Since the raiding party
were public servants discharging their lawful duties, they were justified in law to seize the cattle,
no right of private defence was available to the accused. He was convicted.
(2) Person doing on the direction of public servant
apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of
a public servant acting in good faith under colour of his office, though that direction may not
be strictly justifiable by law.
Explanation 2 — A person is not deprived of the right of private defence against an act done, or
attempted to be done, by the direction of a public servant, unless he knows, or has reason to
believe, that the person doing the act is acting by such direction, or unless such person states
the authority under which he acts, or if he has authority in writing, unless he produces such
authority, if demanded.
(3) Time for recourse to the protection of the public authorities
There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities.
Gurdatta Mal vs. State of U.P. (1965 SC)- There was a land dispute between the accused and the
deceased. There was prolonged civil litigation wherein the deceased had established his right of
title and physical possession of the property. He went along with his men to harvest the crop with
police protection. In such a situation, it was held that the accused had ample time to have
recourse to authorities and had no right to assault the deceased to claim possession of the
properties. Hence they had no right of private defence.
Right of self defence of either body or property can only be at the time when there is imminent
danger or harm.
(4) Extent to which the right may be exercised.
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 Narain v. State of U.P. (1972 SC)
Supreme Court said, ―If a blow with a lathi is aimed at a vulnerable part like the head it cannot
be laid down as a sound proposition of law that in such cases the victim is not justified in using
his spear in defending himself. In such moments of excitement or disturbed mental equilibrium
it is 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.‖
124
Question 5 (a)
Mr. B and A who were class fellows from class Xth, developed infatuation towards each other.
They carried the relationship for 6 long years till the boy did his master's course and was
employed in good multinational. They had promised to marry each other and were firm to do so,
knowing fully well that they belonged to different castes. On the basis of this promise and long
relationship they entered into sexual relationship many a times. However, finally, when boy
disclosed it to his parents, they refused to do so on the basis of caste. They threatened the boy of
social ostraization and even death of both of them in case they do the same. Compelled by these
reason the boy married another girl. A, charges the boy B of having committed rape · Decide the
fate of B.
Answer – In this problem section 375 Secondly and section 90 are involved. This probleb
depends upon meaning of consent. This problem can be solved with help leading cases especially
Uday v. State of Karnataka and Deepak Gulati v. State of Haryana. These cases are following -
Uday v. State of Karnataka (2003 SC) – In this case man and woman were from different caste.
She was well aware of this fact and at the time of proposal she raised this issue. She knew, as we
have observed earlier, that her marriage with the appellant was difficult on account of caste
considerations. So she had not given consent under misconception of facts as mentioned in
section 90. To apply section 90 two conditions must be fulfilled namely;
Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it
must be proved that the person who obtained the consent knew, or had reason to believe that the
consent was given in consequence of such misconception. This is what appears to have happened
in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the
appellant with whom she was deeply in love, not because he promised to marry her, but because
she also desired it.
Deepak Gulati v. State of Haryana (20 May, 2013). In this case Supreme Court said that this
Court considered the issue involved herein at length in the case of Uday v. State of Karnataka
(2003 SC) Deelip Singh @ Deelip Kumar v. State of Bihar (2005 SC); Yedla Srinivasa Rao v.
State of A.P. (2006 SC) and came to the conclusion that in the event that the accused‘s promise
is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in
sexual acts, such an act(s) would not amount to rape. Section 90 of the Act 1872 provides, that
any consent given under a misconception of fact, would not be considered as valid consent, so
far as the provisions of Section 375 IPC are concerned.
Intercourse under promise to marriage constitutes rape only if from initial stage accused had no
no intention to keep promise. An accused can be convicted for rape only if the court reaches a
conclusion that the intention of the accused was mala fide, and that he had clandestine motives
Law and This Problem – In this case they were knowing that they belong from different caste.
According to Deepak Gulati Case if false promise to get marriage has been made since inception
then there is no consent. B could not fulfill his promise due to the occurrence of facts which were
beyond him.
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Question 5(b)
Write short notes on any two of the following:

(i) Voluntarily causing grievous hurt by acid attack
(ii) Voyeurism
(iii) Stalking
(i) Voluntarily causing grievous hurt by acid attack
Voluntarily causing grievous hurt by acid attack was inserted in section 326A by Criminal Law
(Amendment) Act, 2013.
According to this section ―Whoever causes permanent or partial damage or deformity to, or
burns or maims or disfigures or disables, any part or parts of the body of a person or causes
grievous hurt by throwing acid on or by administering acid to that person, or by using any other
means with the intention of causing or with the knowledge that he is likely to cause such injury
or hurt, shall be punished with imprisonment of either description for a term which shall not be
less than ten years but which may extend to imprisonment for life, and with fine;
Provided that such fine shall be just and reasonable to meet the medical expenses of the
treatment of the victim;
Provided further that any fine imposed under this section shall be paid to the victim.‖
(ii) Voyeurism – Section 354C

Voyeurism has been provided under section 354C which was inserted by Criminal Law
Any man who watches, or captures the image of a woman engaging in a private act in
circumstances where she would usually have the expectation of not being observed either by the
perpetrator or by any other person at the behest of the perpetrator or disseminates such image
shall be punished on first conviction with imprisonment of either description for a term which
shall not be less than one year, but which may extend to three years, and shall also be liable to
fine, and be punished on a second or subsequent conviction, with imprisonment of either
description for a term which shall not be less than three years, but which may extend to seven
years, and shall also be liable to fine.
Explanation1- For the purpose of this section, ―private act‖ includes an act of watching carried
out in a place which, in the circumstances, would reasonably be expected to provide privacy and
where the victim‘s genitals, posterior or breasts are exposed or covered only in underwear; or
the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily
done in public.
Explanation 2 - Where the victim consents to the capture of the images or any act, but not to
their dissemination to third persons and where such image or act is disseminated, such
dissemination shall be considered an offence under this section.
There are following ingredient of voyeurism –
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(1) Expectation of woman- There must be expectation of woman that no one must she her. If she
is taking kiss with her boyfriend in public auto rickshaw and another passenger is seeing rather
than grazing it will not amount voyeurism.
(2) ―Private Act‖ - The woman must engage in ‗private act‘. According to explanation 2
“private act” includes an act of watching carried out in a place which, in the circumstances,
would reasonably be expected to provide privacy and where the victim‘s genitals, posterior or
breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim
is doing a sexual act that is not of a kind ordinarily done in public.
(3)Watching, capturing or disseminating – When she is engaging in private act someone is
either watching or capturing the images of woman or he disseminates such images. According to
explanation 2 where the victim consents to the capture of the images or any act, but not to their
dissemination to third persons and where such image or act is disseminated, such dissemination
shall be considered an offence under this section.
(4) Perpetrator or on behalf of perpetrator – Such Watching, capturing or dissemination may be
occurred either by perpetrator or on behalf of perpetrator.
(5)Conviction for first time – He shall be punished on first conviction with imprisonment of
either description for a term which shall not be less than one year, but which may extend to three
years, and shall also be liable to fine.
(6) Second or subsequent conviction, with imprisonment of either description for a term which
shall not be less than three years, but which may extend to seven years, and shall also be liable to
fine.
(iii) Stalking (Physical or Electronic ) –Section 354D
Stalking has been provided under section 354D which was inserted by Criminal Law
Kinds of Stalking -There are two types of stalking namely; (1) Physical and (2) Electronic
(1)Physical Stalking - Any man who follows a woman and contacts, or attempts to contact such
woman to foster personal interaction repeatedly despite a clear indication of disinterest by such
woman or
(2) Electronic Stalking- Any man who monitors the use by a woman of the internet, email or any
other form of electronic communication, commits the offence of stalking.
Three categories of conduct will not amount stalking –
(i) Prevention of Crime - It was pursued for the purpose of preventing or detecting crime and
the man accused of stalking had been entrusted with the responsibility of prevention and
detection of crime by the State; or
(ii) Compliance of Law -It was pursued under any law or to comply with any condition or
requirement imposed by any person under any law; or
(iii)Reasonable conduct- in the particular circumstances such conduct was reasonable and
justified.
127
Burden of these three types of conduct will lies on that person who wants to take benefit.
Punishment for Stalking - Punishment for stalking may be divided into two categories namely
(i) First Conviction and (ii) Subsequent Conviction
(i) First Conviction - Whoever commits the offence of stalking shall be punished on first
conviction with imprisonment of either description for a term which may extend to three years,
and shall also be liable to fine;
(ii) Subsequent Conviction – He shall be punished on a second or subsequent conviction, with
imprisonment of either description for a term which may extend to five years, and shall also be
liable to fine.
Sexual Harassment (PDS and M.Sc.) Section 354A

Sexual Harassment has been provided under section 354A which was inserted by Criminal Law
(Amendment) Act, 2013. According to section 354A (1) A man committing any of the following
acts-
(i) P -physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) D- a demand or request for sexual favours; or
(iii) S- showing pornography against the will of a woman; or
(iv)M.Sc. making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
Punishment for sexual harassment - Punishment for sexual harassment may be divided
into two parts –
(1) Punishment for PDS (i)(ii) and (iii) (Three Years) -Any man who commits the offence
specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with
rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(2) Punishment for M.Sc. (iv) (One Year) -Any man who commits the offence specified in
clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a
term which may extend to one year, or with fine, or with both.
Question 8
Write notes on the following:

(a) Grave and Sudden Provocation
(b) Impossible attempts
(c) Distinction between kidnapping and abduction (Already discussed in Annexure I).
(a) Grave and Sudden Provocation
To get the benefit of Exception 1 of section 300 is that there must be provocation and
provocation must not only grave but also sudden. Every provocation will not reduce the crime of
murder to homicide. The provocation, to have that result, must be such as temporarily deprives
the person provoked of the power of self- control , as a result of which he commits the unlawful
act which causes death.
128
(1) There must be provocation (2) That provocation must be grave and (3) That provocation must
be sudden and (4) effect of grave and sudden provocation must be so powerful that person
deprived from self- control. To decide grave and sudden provocation ―Reasonable Man‘s Test‘
is applied. It means object test is followed. In the case of K.M.Nanavati case this test was
thoroughly discussed. In this case Supreme Court said “No abstract standard of reasonableness
can be laid down. What a reasonable man will do in certain circumstances depends upon the
customs, manners, way of life, traditional values etc.; in short, the cultural, social and
emotional background of the society to which an accused belongs. In our vast country there are
social groups ranging from the lowest to the highest state of civilization. It is neither possible nor
desirable to lay down any standard with precision : it is for the court to decide in each case,
having regard to the relevant circumstances.
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.
For example certain abusive words are common in Haryana State. If one people of Haryana says
to another people is not grave for them but same words for Bihari People is offensive. At the
time of deciding ‗grave and sudden provocation‖ Bihari people must be treated in different
categories because there culture are different.‖ A thing which is grave for one person may not be
grave for another person.
In the case of K.M. Nanavati v. State of Maharashtra (1961SC) it was accepted that keeping
sexual intercourse with wife of any person was grave for provocation but action was not
sufficient. It was sufficient time to cool the mind. After listening confession of wife he dropped
his wife and children at a cinema, went to the ship, collected revolver, did some official business
there, drove his car to the office of the deceased and later to his house. Three hours had lapsed by
then and therefor, there was sufficient time for him to regain his self -control. The Court held
that provisions of section 300 Exception 1 would not be applicable in this case. The accused was
convicted for murder and sentenced to the life imprisonment.
In the case of Hansa Singh v. State of Punjab (1976 SC) the deceased saw the accused
commiting an act of sodomy on his son, which enraged him and killed the deceased. It was held
that it amounted to a grave and sudden provocation. The conviction under section 302 was set
aside. He was convicted under section 304 of IPC.
(b) Impossible attempts
In the impossible test guilty mind is punished even when the act itself is innocent. The crucial
aspect is the belief of the person and intention preceding his action to do a particular act.
Illustration (a) and (b) of section 511 is based on impossible test. These illustrations are
following -
(a) Opening an empty box - A makes an attempt to steal some jewels by breaking open a box,
and finds after so opening the box, that there is no jewel in it. He has done an act towards the
commission of theft, and therefore is guilty under this section.
129
(b) Thrusting hand into empty pocket -A makes an attempt to pick the pocket of Z by thrusting
his hand into Z‘s pocket. A fails in the attempt in consequence of Z‘s having nothing in his
pocket. A is guilty under this section.
These illustrations clearly shows, it does not matter that it is after breaking open a box with the
intention of stealing jewels which he believes to be inside it or the person who picks another‘s
pocket with the intention of picking whatever valuable he finds inside both persons find their
intentions incapable of fulfillment.
The crucial test was whether they had crossed the stage of preparation.
Munah Binti Ali vs. Public Prosecuter (1958)
Accused was charged section 312 r/w section 511of with voluntarily attempting to cause one
Chee Yew Cheng to have miscarriage and in such attempt did insert an instrument into her
vagina. Whether an accused is liable for an attempt to cause abortion, when the woman
(complainant) was not actually pregnant, as it came to be known later. Accused was convicted
under section 312 r/w section 511of the Malaysian Penal Code.
Asgarali Pradhania v. Emperor ( 21 July, 1933)
McNair, J. ―On the facts stated in this case, and for the reasons already given, the appellant
cannot in law, be convicted of an attempt to cause a miscarriage. What he did was not an ―act
done towards the commission of the offence‖ of causing a miscarriage. 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. Consequently, the conviction and sentence must
be set aside and the appellant acquitted.‖ He was not held liable for miscarriage.
This judgment can be criticized and in this case impossible test should have been applied.
Reason is that he had intention of causing miscarriage. After this he purchased liquid and powder
for this purpose. It was preparation. Once he provided those liquid and powder for that purpose.
He had attempted. Again once he tried to put the liquid and powder into her mouth by holding
her chin was also attempt.
Later on in Abhayanand Mishra vs. State of Bihar (1961 SC) Justice Raghubar Dayal defined
the word ―attempt‖ in wider sense and said- ―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.
R. v. Shivpuri (House of Lords, May 1986)
In this case there was matter of smuggling of prohibited drugs. Accused was believing that he
was carrying prohibited drugs. When he was arrested he confessed. In due course the powdered
substance in the several packages was scientifically analysed and found not to be a controlled
drug but snuff or some similar harmless vegetable matter.
130
Whether an offence which is impossible to commit amounts to a conviction of an attempt. House

of Lords held that accused had committed offence. Principle laid down in this case is that the
accused is punished for his guilty although the act actually committed was innocent.
131
Annexure III (Previous Year Question Paper 2016. LLB-DU)

Contact no. -7985255882
SN Contents P. No
1 Section 299 and Palani Goundan v. Emperor (1919, Mad. H.C.)
2 Section 300 Thirdly and Exception 4 of Section 300 and Leading case.
3 Motive, Intention and Murder
4 Differences and similarities between grave and sudden provocation and sudden fight.
5 Problem based on Cheating (Section 415 Illustration i)
6 Problem based on Criminal Misappropriation (Section 403 Illustration a)
7 Differences and between theft and Criminal Misappropriation.
8 Differences between motive and intention.
9 Constitutional validity of section 309
132
Question 1(a) - A, B, and C assaulted their junior and fresher X in their hostel room while
ragging him. They punched and kicked him on non-vital parts of his body as he refused to dance
on a song played by them on their mobile phone. X fell down and became unconscious.
Presuming him to be dead they hanged him from the ceiling fan by a rope, so as to create an
impression that X had committed suicide. The post-mortem examination showed that death was
due to asphyxiation. Decide culpability of A, B and C with the help of decided case.
Answer
In this problem sections 201, 299, 321& 323 and ratio of judgment of Palani Goundan v.
Emperor (1919, Mad. H.C.) are involved. Actus non facit reum, nisi mens sit rea means the act
itself does not make a man guilty, unless the mind is also guilty.
Section 321 related to voluntarily causing heart and its punishment has been provided under
section 323. Section 299 deals culpable homicide.
Section 299 Culpable Homicide - Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily injury as is likely to cause death, or
with the knowledge that he is likely by such act to cause death, commits the offence of culpable
homicide.
There are two parts of section 299. First part i.e. “Whoever causes death by doing an act” is an
actus reus i.e prohibited act. There must be cause effect relationship. Second part deals mens rea
i.e. guilty mind. Second part may be divided into three parts namely (a) Intention to cause death
or (b) Intention to cause bodily injury or (c) Knowledge. If either condition is missing, section
299 shall not be applicable.
Palani Goundan v. Emperor (1919, Mad. H.C.)
Husband struck a violent blow on the head with ploughshare. She became unconscious. It was
not shown to be a blow likely to cause death. He thought that she had died. So for concealment
of evidence, he hanged her. She died due to hanging. He was not liable either for culpable
homicide or murder. He was liable only for causing of grievous hurt and concealing evidence.
He had neither intention nor knowledge to kill his wife.
Evaluation of problem
(1) Section 299
(I) Cause – effect relationship
Here cause-effect relationship means death must be occurred by act of accused. If reason of
death is not act of accused then no further question arises regarding application of guilty mind. In
the Moti Singh v. State of UP, Supreme Court said that there must be connection between the
primary cause and the death which should not be too remote.
In this problem Z died due to hanging him by all accused from the ceiling fan by a rope. So in
this case first condition of section 299 is being fulfilled.
(II)Guilty Mind – Without guilty mind homicide is possible but culpable homicide is not
possible. In this problem there was no intention to cause death. Although there was intention to
cause bodily injury but bodily injury was on non-vital part by which there was no probability to
cause death. Here knowledge was that they were inflicting the injury on non-vital part. But by
that injury there was no probability to cause death.
So in this problem guilty mind as required under section 299 is missing.
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So conclusion is that they will not be liable to culpable homicide. Here death occurred due to
hanging. At the time of hanging mere intention was to conceal the evidence rather than to cause
death.
(2) Palani Goundan Case
In this case it was held, ―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. It follows that a man is not guilty of culpable homicide, if his intention was
directed only to what he believed to be a lifeless body.‖
In this problem they presumed him to be dead. So they hanged him from the ceiling fan by a
rope, so as to create an impression that X had committed suicide.
So we can say that they had not committed culpable homicide.
(3) Voluntarily Causing Hurt
According to section 319 a person who causes bodily pain, disease or infirmity to any person is
said to cause hurt. Hurt is not punishable because here guilty mind is missing. Only voluntarily
causing hurt is punishable. According to section 321 if hurt is caused with the intention or
knowledge then it is called voluntarily causing hurt which is punishable under section 323.
In this problem A, B, and C had caused hurt voluntarily. This hurt is not coming under the
category of grievous hurt as mentioned in section 320. So they will be liable for voluntarily
causing hurt.
(4) Disappearance of evidence (section 201)

Presuming him to be dead they hanged him from the ceiling fan by a rope, so as to create an
impression that X had committed suicide. So they will be punished under section 201.
(5)Conclusion
From the above discussion it becomes clear that A, B, and C had not committed culpable
homicide. They had committed offences under section 323 (voluntarily causing hurt) and section
201(Disappearance of evidence) of IPC, 1860.
Question 1(b) Ajay and Vijay got into an argument while playing cricket match. Ajay suddenly
struck Vijay with his cricket bat and vijay retaliated by forcefully hitting him on the head by the
cricket ball which he was holding. The injury so inflicted caused brain haemorrhage in Ajay and
he died soon afterwards. The doctor stated that the injury was sufficient in the ordinary course of
nature to cause death. A case was registered against Vijay under section 302IPC. Discuss the
criminal liability of Vijay citing relevant case law.
Answer
This problem is based on Section 300 thirdly and Exception 4 of section 300. Relevant cases for
this problem are Virsa Singh v. State of Punjab(1958 SC), Ghapoo Yadav & Ors. v. State of
M.P. ( Feb. 2003) and Surain Singh v. The State of Punjab (April, 2017)
(1) Homicide
Death of Ajay is homicide committed by Vijay. Reason is that Ajay died due to injury caused by
Vijay.
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(2) Culpable Homicide

There are two types of homicide namely; (1) Justified Homicide and (2) Unjustified Homicide.
Culpable Homicide is unjustified homicide which is committed with guilty mind.
Homicide is culpable homicide only both the conditions of section 299 are being fulfilled
namely; (1) Actus reus. There must proximate connection between death of victim and act of
accused. In this problem death of Ajay occurred due to act of Vijay. (2) Mens Rea (Guilty mind).
Guilty mind under section 299 can be divide three parts namely;(1) Intention to cause death or
(2) intention of causing such bodily injury as is likely to cause death, or (3) with the knowledge
that he is likely by such act to cause death. In this problem there was neither intention to cause
death nor knowledge that by his act it was likely to cause death.
But in this problem there was intention to cause bodily injury and by such bodily injury there
was possibility to cause death. So Vijay had committed culpable homicide which comes under
section 299 (b).
(3) Murder
Murder is at the third stage. First of all homicide have to be proved. If there is homicide then
next question arises whether it is culpable homicide. Once it is proved that there is homicide.
Next question arises whether that culpable homicide amounts to murder or not. In this problem it
has already been proved that there was homicide. Section 300 defines murder.
Section 300 Thirdly -Except in the cases hereinafter excepted, culpable homicide is murder, if
the act by which the death is caused is done
Thirdly -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. In the Virsa Singh v.
State of Punjab (SC 1958) Case it was said that there are two clauses of ―Thirdly‖ and both
clauses are disjunctive and separate. Only intention is necessary for first part. For the first part
‗subjective test‘ will be applied and for second part ‗objective test‘ will be applied.
In this problem there was intention to cause bodily injury. According to medical report that the
injury was sufficient in the ordinary course of nature to cause death.
So it becomes clear that this is the murder which comes under section 300,thirdly.
(4) Section 300 Exception 4
Once it is proved that there is murder. Accused can claim that although that is murder but it
comes under exceptions of section 300. So it is only culpable homicide. According to section
105 of Indian Evidence Act in such cases burden of proof shall lies over accused.
Section 300 Exception 4 -Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel or unusual manner.
Ghapoo Yadav & Ors. v. State of M.P. ( Feb. 2003) and Surain Singh v. The State of Punjab
In these cases it was said that this section is based on act without premeditation. A fight suddenly
takes place, for which both parties are more or less to be blamed. A “sudden fight” implies
mutual provocation and blows on each side. The homicide committed is then clearly not
traceable to unilateral provocation, nor could in such cases the whole blame be placed on one
side. There is only that heat of passion which clouds men‘s sober reason and urges them to deeds
which they would not otherwise do. The accused should not have taken undue advantage or
acted in a cruel or unusual manner.
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Evaluation of Problem
(1) Without premeditation - In this problem Ajay and Vijay were playing cricket. There was
bonhomie between both. Suddenly argument started. For this there no pre-planning. It occurred
without premeditation.
(2) Sudden quarrel & fight - Ajay suddenly struck Vijay with his cricket bat and vijay
retaliated by forcefully hitting him on the head by the cricket ball which he was holding. In the
case of Ghapoo Yadav Case and Surain Singh Case Supreme Court held that a “sudden fight”
implies mutual provocation and blows on each side. So in this case there was sudden fight.
(3) Heat of passion – After striking of Ajay by cricket bat, passion of Vijay became heat. In the
case of Ghapoo Yadav Case and Surain Singh Case Supreme Court held that ―There is only that
heat of passion which clouds men‘s sober reason and urges them to deeds which they would not
otherwise do.‖. This heat clouded Vijay‘s sober reason. So he did.
(4)Without taking undue advantage or acted in a cruel or unusual manner. In this problem
Vijay retaliated by the cricket ball which he was holding. After this he did nothing. He did not
committed more injury.
(5) Conclusion
From the above discussion it becomes clear that in this problem Vijay would be entitled to get
benefit of Exception 4 of Section 300. So he will be punished under Section 304 Part 1.
Question 2(a) – Omprakash, a farmer was very depressed because of recurrent crop failure and
economic hardship caused thereby. He was hard pressed for money. To end his suffering once
and for all times to come he gave poison to his wife and two children. He planned to poison
himself too but panicked at last moment. The wife and children died of poisoning. Omprakash
pleaded depression and poverty as an excuse for killing his family. Will he succeed? Discuss.
Answer – In this problem motive and intention are involved. Section 299(a) and section 300
firstly are also involved.
Motive v. Intention
Motive and intention both are different. There are following differences -
Motive Intention
1 Motive is the feeling which prompts the Intention is an operation of the will directing
operation of the will. an overt act.
Intention is the combination of desire and
foresight of consequences.
2 It is the ulterior object. It is immediate object.
3 Motive is not part of crime. So either good Presence or absence of intention is very
motive or bad motive shall not be relevant relevant. Rule is that ―Actus non facit reum,
for commission of offence. It means nisi mens sit rea”
presence or absence of motive is not relevant
to constitute offence. It is relevant to decide
quantum of punishment. It is relevant under
section 8 of Indian Evidence Act.
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Motive – Motive is not relevant factor to decide crime. Either good motive or bad motive is not
relevant to decide offence. Motive is relevant only at the time of deciding punishment. In this
problem motive is to end his suffering from poverty. It might be good motive for him. But it is
not relevant. He wanted to permanently get rid of poverty.
Intention – Presence or absence of intention is very relevant to decide the commission of
offence. He gave poison to his wife and two children. Intention was to kill family members.
Omprakash pleaded depression and poverty as an excuse for killing his family. He did not plead
that there was no intention to kill.
Culpable Homicide
He had caused culpable homicide with the intention of causing death. Justice Melvil (R v.
Govinda, July 18, 1876, Bombay High Court), to make differences between sections 299 and
300, divided section 299 into three parts namely;(1) Sec. 299(a) (2) Sec. 299 (b) & (3) Sec.
299(c) and Justice Ranjit Singh Sarkaria (State of A.P. v. R.Punnayya, September 15, 1976,
Supreme Court) also discussed differences and accepted the differences made by justice Melvil.
Omprakash had caused death with the intention of causing death. So this is culpable homicide
under section 299(a).
Murder (Section 300 Firstly)
Section 300 defines murder which is following -
Section 300 Firstly -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.
Justice Melvil said that if there is intention to cause death then culpable homicide is always
murder unless it comes under exceptions of section 300.
So Omprakash has committed murder under section 300, firstly.
Conclusion
Motive is immaterial. There was intention to cause death. So Omprakash has committed murder
as defined under section 300, firstly. So he will be punished under section 302 of IPC, 1860.
Question 2(b)
Bring out the differences and similarities between grave and sudden provocation and sudden
fight.
Answer – I have already discussed at pp.4-5 of Annexure I. So no need to repeat here.
Question 7 (a)
A sells and conveys a farmland to B. Thereafter he mortgages the same farmland to Z, without
disclosing the fact of the previous sale and receives the mortgage money from Z. What offence
has A committed?
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Answer – This problem is based on section 415 and its illustration (i).
Cheating (Section 415)
Section 415- Cheating - Whoever, by deceiving any person, fraudulently or dishonestly
induces (D FDI) the person so deceived to deliver any property to any person, or to consent
that any person shall retain any property, or intentionally induces the person so deceived to do
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, is said to ―cheat‖.
Explanation.-A dishonest concealment of facts is a deception within the meaning of this section.
Essential ingredients of section 415 were discussed by Supreme Court in Ram Jas Case.
Ram Jas v. State of U.P. (DOJ-11/09/1970 S.C.)
The ingredients required to constitute the offence of cheating of under section 415 are:-
(i) There should be fraudulent or dishonest inducement of a person by deceiving him;
(ii)
(a) The person so deceived should be induced to deliver any property to any person, or to
consent that any person shall retain any property; or
(b) The person so deceived should be intentionally induced to do or omit to do anything which
he would not do or omit if he were not so deceived; and
(iii) In cases covered by (ii) (b), the act or omission should be one which causes or is likely to
cause damage or harm to the person induced in body, mind, reputation or property.
Illustration (i) of Section 415
A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right
to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale
and conveyance to B, and receives the purchase or mortgage money from Z. A cheats.
Solution of Problem
(1) Deceiving – According to Explanation of section 415 a dishonest concealment of facts is a

deception within the meaning of this section. Here A who had already sold and conveyed
farmland to B. But this fact was concealed from Z. So A had deceived Z.
(2) Dishonestly – According to section 24 ―Whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to another person, is said to do that thing
―dishonestly‖.
Here A received mortgage money (wrongful gain defined under section 23) from Z for which he
was not authorised and he knew this fact. So he had received money dishonestly.
(3) To deliver any property to any person – A had after deceiving fraudulently induced to
deliver the mortgage money and in consequence of this Z delivered money.
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Conclusion
From the above discussion it may be concluded that A has committed cheating defined under
section 415 and punishable under section 420 of Indian Penal Code, 1860.
Question 7 (b) A in good faith, believing property belonging to Z to be A‘s own property takes
that property out of Z‘s possession. After a week A realizes his mistake, but as Z didn‘t
complain. A keeps the property himself. Has A committed any offence? Decide.
Answer
This problem is based on section 403 and its illustration (a).
Criminal Misappropriation
Section 403. Dishonest misappropriation of property- Whoever dishonestly misappropriates or
converts (DMC- Delhi Municipal Corporation. D- Dishonestly, M- Misappropriates, C-
Converts) to his own use any movable property, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
Ingredients – There are following essential ingredients of criminal misappropriation –
(1)Dishonestly (Section 24, Intention to cause wrongful gain or wrongful loss) (2)
Misappropriation or conversion (3) For his own use (4) Moveable property (Section 22)
Illustration (a) of section 403
A takes property belonging to Z out of Z‘s possession, in good faith, believing, at any time
when he takes it, that the property belongs to himself. A is not guilty of theft;
but if A, after discovering his mistake, dishonestly appropriates the property to his own use, he
is guilty of an offence under this section.
This problem can be evaluated on the following grounds –
(1)Dishonestly- When A took the property in good faith, he did not commit any offence.
According to section 24 when a person does anything with the intention of causing wrongful
gain to one person or wrongful loss to another is said to do that thing dishonestly. Here once A
realized the mistake and decided to keep it at the same moment dishonestly occurred. -
(2) Misappropriation or conversion – Once he decide to keep it, misappropriation occurred.
(3) For his own use - A keeps the property himself. This denotes that he keeps the property for
his own use. Conclusion
On the basis of above explanation of section 403 and its illustration (a) it becomes clear that A
had committed an offence of ―Criminal Misappropriation‖ as defined and punishable under
section 403 of Indian Penal Code, 1860.
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Question 8 – Write short notes –

(a) Explain and illustrate differences and between theft and Criminal Misappropriation.
(b) Bring out clearly the differences between motive and intention.
Question 8(a)
Criminal Misappropriation and Theft
Criminal misappropriation is very close to theft. There are following relation between both –
Theft Criminal Misappropriation
1 Movable Property Movable Property
2 Dishonest Intention Dishonest Intention
3 Temporary or Permanent Temporary or Permanent
Illustrations (b) and (l) and Explanation I
Pyare Lal Bhargawa Case.
1 Taking Taking /Found
(a) A TAKES property belonging to Z out of
Z‘s possession, in good faith, believing, at any
time when he takes it, that the property belongs
to himself. A is not guilty of theft; but if A, after
discovering his mistake, dishonestly appropriates
the property to his own use, he is guilty of an
(e) A FINDS a purse with money, not knowing
to whom it belongs; he afterwards discovers that
it belongs to Z, and appropriates it to his own
use. A is guilty of an offence under this section.
2 Out of possession Out of possession / Without possession
Above discussed illustration namely (a) and (e).
3 Dishonest intention Dishonest intention or in beginning good faith
and later on dishonest intention.
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Question 8(b)
Differences between motive and intention
Motive Intention
(1) Motive is the feeling which prompts the Intention is an operation of the will
operation of the will. directing an overt act.
Definition
Intention is the combination of desire
and foresight of consequences.
Illustration if a person kills another, the intention directs the A with desire to kill B threw from
act which causes death, the motive is object fourth floor to ground. He foresighted
which the person had in view, i,g., the that throwing from fourth floor was
satisfaction of some desire, such as revenge etc. likely to cause death. So in this case in
presence of desire and foresight there
is intention.
2 It is the ulterior object It is immediate object.
3 Motive is not part of crime. So either good Presence or absence of intention is
motive or bad motive shall not commission of very relevant. Rule is that ―Actus non
offence. It means presence or absence of motive facit reum, nisi mens sit rea”
is not relevant to constitute offence. It is relevant
to decide quantum of punishment. It is relevant
under section 8 of Indian Evidence Act.
Example A removes a cow belonging to B to save her A is in a house which is on fire, with
from being slaughtered. A will be liable for theft Z, a child. People below hold out a
if other condition of theft are being fulfilled. His blanket. A drops the child from the
good motive cannot save him. house-top, knowing it to be likely that
the fall may kill the child, but not
intending to kill the child, and
intending, in good faith, the child‘s
benefit. Here, even if the child is
killed by the fall, A has committed no
offence.
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Question 1(b) Critically analyze the Constitutional validity of section 309
Gian Kaur Vs. State of Punjab (1996 SC)
The appellants Gian Kaur and her husband Harbans Singh were convicted by the Trial Court
under Section 306,IPC 1860 and each sentenced to six years R.I. and fine of Rs. 2,000/-, or, in
default, further R.I. 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 R.I. for three years. These appeals by special leave are
against their conviction and sentence under Section 306.
The conviction of the appellants has been assailed, inter alia, on the ground that Section 306 is
unconstitutional. The first argument advanced to challenge the constitutional validity of Section
306 rests on the decision in P.Rathinam vs. UOI ,(1994) SCC 394, 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 sec.309 to be unconstitutional, any person
alletting the commission of suicide by another is merely assisting in the enforcement of the
fundamental right under article 21 and, therefore, section 306 penalising assisted suicide is
equally violative of Article 21.
Decision – Section 306 and section 309 both are constitutional and they are not violative.
P.Ratthinam Case was overruled by Constitutional Bench.
Reason of decision
Relation between Article 21 and section 309- (1)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‘.
(2) ‗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‘.
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RIGHT TO DIE
HC 1987 Maruti Shri Pati Right to life includes right to die. Section 309 has been declared
Dubal v. State of unconstitutional
Maharashtra
HC 1988 Chenna agadeeswar Right to life does not include right to die. Section 309 is
and Anr. v. State of constitutional.
Andhra Pradesh
SC 1994 P.Rathinam vs. UOI Right to life includes right to die. Section 309 has been declared
unconstitutional.
1996 Gian Kaur Vs. State Right to life does not include right to die. Section 309 is
of Punjab constitutional.
12 EUTHANASIA
2011 Aruna R.Shanbaugh J.Markandey Katju- Passive euthanasia was allowed and for this
vs.UOI guidelines were laid down.
3 09 Common Cause (A (1) Right to die with dignity is a fundamental right under
Mar Regd. Society) Vs. Article 21, (2) Passive euthanasia is legally valid and
ch Union of India and (3) Living will is legally valid.
2018 Another. Meaning of Living Will- Living will is a written document that
allows a patient to give explicit (express) instructions in advance
about the medical treatment to be administered when he or she is
terminally ill or no longer able to express informed consent.
143
Annexure IV (Previous Year Questions related to Sections 34 &149, LLB-DU)

2010 Question (a) – ―The essential distinction between section 34 and 149 of IPC is between
„participation‟ and „membership‟ respectively‖. Discuss.
Answer
Participation and section 34-- For application of section 34, participation of each and every
person is necessary. Merly member of group is not sufficient. Particiation may be either in form
of overt act or covert act. In the case of Barendra Kumar Ghosh v. king Emperor (23
Oct.1924.P.C. Post Office case), Lord Sumner said, ―They also serve who only stand and wait‖.
Standing and waiting of Barendra Kumar Ghosh outside of Post office was treated in
participation in commission of crime. The participation must be in doing the act, not merely in its
planning. It was accepted that leading feature of section 34 is ‗participation‘.
Shreekantiah Ramayya Munipalli v. State of Bombay (1955 SC) Supreme Court held that
physical presence is necessary for participation in commission of crime for application of section
34. But in the case of J.M. Desai v. State of Bombay (1960 SC) Supreme Court held
that participation need not in all cases be by physical presence. In offences involving physical
violence, normally presence at the scene of offence of the offenders sought to be rendered liable
on the principle of joint liability may be necessary, but such is not the case in respect of other
offences where the offence consists of diverse acts which may be done at different times and
places.
This Court again in Tukaram Ganapat Pandare v. State of Maharashtra (Feb. 6, 1974)
reiterated that section 34 lays down the rule of joint responsibility for criminal act performed by
a plurality of persons and even mere distance from the scene of crime cannot exclude the
culpability of the offence. ―Criminal sharing, overt or covert, by active presence or by distant
direction making out a certain measure of jointness in the commission of the act is the essence
of section 34‖.
In the case of Suresh v. State of Uttar Pradesh (SC2001) Supreme Court held that the act
mentioned in section 34 IPC need not be an overt act, even an illegal omission (covert) to do
certain act in certain situation can amount an act. Due to scientific development a person may
actively participate in the commission of crime from far away (It is my example - In Mumbai
attack in 2008 some terrorist in sitting Pakistan were guiding another terrorist who were directly
involve in commission of crime). In this case the Court said that due to advancement of
electronic equipment like binoculars or mobile phones a person may effectively participate in
commission of crime.
Membership and section 149 – Under section 141 ‗Unlawful Assembly‘ has been described. The
word ‗offence in clause Third of section 141 is intended to include all offences both against body
and property.112 Section 142 declares who is member of unlawful assembly. For being a member
of unlawful assembly, he must aware about common object of the assembly. If some entered into
112
Ghansa Singh v. State of Rajasthan (AIR 1958 Raj. 226).
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the assembly merely due to curiosity to know about object of the assembly, he cannot be
declared member of the assembly. According to section 142 ―Whoever, being aware of facts
which render any assembly an unlawful assembly, intentionally joins that assembly, or
continues in it, is said to be a member of an unlawful assembly.‖ Here ‗continues‘ means
physical presence with the knowledge of unlawful character of the assembly. A member of
unlawful assembly may withdraw from the assembly. It may be either actual and voluntarily or
involuntarily depending on the facts and circumstances of the case.
Section 149 –―If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the members of that assembly
knew to be likely to be committed in prosecution of that object, every person who, at the time of
the committing of that offence, is a member of the same assembly, is guilty of that offence.‖
Section 149 is very wider. There are two parts of section 149 namely (1) Offence is committed in
prosecution of common object, and (2) Members knew to be likely to be committed. For
application of section 149 participation of every member is not necessary. Being a member of
unlawful assembly is sufficient for application of section 149.
Example- A, B, C, D, and E (Five persons) decided to commit murder of X in night. They were
going towards house of X. E was behind all other fellows. He fell into dug which was very deep.
E was unable to come out. In next day with the help of villagers he came out. Other members
were too much busy. They forgot E and committed murder of X.
E will not be liable. Reason is that he was not member at the time of commission of murder of X.
Section 149 will also will not be applicable. According to section 149 person must be member at
the time of the committing of that offence.
2010 Question (b)
A,B,C, and D attacked E a lady who was allegedly having illicit relationship with X. A inflicted
an injury on the backside of E near her shoulder with a weapon uttering words ―die with this‖. B
gave blow with a ganadasa on the right side of the head while C and D gave blow on the neck.
Thereafter, all ran away and E died on the spot. Medical examination confirmed death due to
head injury. While all four (A,B,C, and) are being prosecuted for causing death to E. C and D
take the plea that the injury caused by them is not fatal hence should not be held liable for death
of B along with other. Is the plea of C and D acceptable as per law, if not, give reasons.
Answer
In this case sections 302 r/w 34 and differences between similar/ same intention and common
intention are involved. This case is open ended. Here question is silent whether there was
common intention or not. From the facts there is possibility of presumption of two things
namely; (1) presence of common intention and (2) presence of similar/same intention.
(1) Presence of common intention - From the nature of attack over E by A, B, C, and D , it can
be presumed that there was common intention to cause death of E.
Section 34 -Acts done by several persons (Section 11) in furtherance of common intention -
When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by him alone.
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According to section 34 if any crime is committed in furtherance of the common intention of all,
liability of each person shall be equal.
Here C and D will also be liable for murder. Reason is that they actively participated in
furtherance of the common intention of all i.e. causing death of E. So C and D will also liable for
causing death of E. Plea of C and D is not acceptable.
(2) Presence of similar/same intention – In the case of Mahaboob Shah v. Emperor (1944), Sir
Madhavan Nair said, ―…Care must be taken not to confuse same or similar intention with
common intention, the partition which divides ‗their bonds‘ is often very thin ; nevertheless,
the distinction is real and substantial , and if overlooked , will result in miscarriage of justice..‖
Suppose in this case there was neither pre-meeting of mind nor it developed on the spur of the
moment. There was only similar intention i.e. to cause death of E. In such types situation C and
D will be liable only for causing grievous hurt rather than for the death of E.
Conclusion
In the presence of common intention C and D will also be liable for causing death. In the absence
of common intention and presence of similar intention C and D will be liable only for causing
grievous hurt.
2014 Question 7. (a) ―Establishment of an overt act is not a requirement of law to allow Section
34 to operate in as much as the Section gets attracted when a criminal act is done by several
persons in furtherance of a common intention of all.‖ Explain.
Ans. Already discussed.
2015 Question 5 (20 Marks) – Six persons enter a house at night to commit theft. While others
are busy looking for valuables on the ground floor of the house, one of them climbs up to the
first floor of the house and finding the maid servants sleeping alone there rapes her and threatens
to kill her if she raises an alarm. Then he comes down and joins his associates in the process of
collecting valuables after which they all leave the house. Discuss the laibility of all of them for
the offences of theft and rape.
Answer - Section 149 is very wider. There are two parts of section 149 namely (1) Offence is
committed in prosecution of common object, and (2) Members knew to be likely to be
committed. Here if a member of unlawful assembly (section 142) knew that it was possibility to
be committed an offence although it was not in prosecution of common object, he will be liable
for commission of that act. For application of section 149 participation of every member is not
necessary. Being a member of unlawful assembly is sufficient for application of section 149.
Theft was done in prosecution of common object.

Rape was neither done in prosecution of common object nor other members knew that such act
was likely to be committed.
Conclusion – For theft all the members will be liable.
For rape only one member who had committed rape will be liable for rape. Other members will
not be liable for rape.
2015 (OC) Question 4 (20 Marks) - ABCD and E went to the office of X at night to commit
theft in the office knowing it to be guarded by the watchman. While they were committing theft,
146
watchman came there and tried to stop them. ABCD and E started assaulting him while E took
out small knife from his pocket and killed the watchman. Discuss the liability of all.
Answer – Theft – Theft was done in prosecution of common object. For theft all the members
will be liable.
Voluntarily Causing Hurt – All the members will be liable for voluntarily causing hurt.
Liability for death - Knife was small. E took out small knife from his pocket and killed the
watchman . Liability of other members depends upon knowledge of knife into pocket of E. If
they had knowledge about knife then they knew that it might be used. So they will liable for
causing death of watchman. If they had no knowledge then they will not be liable for death of
watchman. Causing death was done in prosecution of common object.
2016 Question 2 (b) (20 Marks) -In the wake of demonetization a group of 50 people forcibly
entered a leading bank and started vandalizing the premises. The bank employees who
intervened or tried to restrain the crowd were assaulted. Five group members who carried lathis
and rods with them played an active part whereas the rest of the people quietly witnessed the
proceedings. The two bank employees sufferred grievous injuries and one another suffered
simple hurt. Discuss the liability of those who were armed and those who were unarmed.
Answer – All the members will be liable. Reason is that they were member of unlawful
assebmly. They kney that other person who were carrying lathis and rods they will use for
causing hurt or grievous hurt. There is no difference between the liability of those who were
armed and those who were unarmed.
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Annexure V& VA
Marital Rape, Rape and POCSO Act, 2012
Meaning of Marital Rape - Marital means pertaining to marriage. Sexual intercourse between
husband and wife is called marital sexual intercourse. Essence of rape is consent. If sexual
intercourse is occurred in presence of free consent there is no rape. If it is happened without free
consent, it is rape.
If husband has made sexual intercourse against the consent of her wife, this is marital rape.
Difference between marital rape and rape is that in case of marital rape sexual intercourse
occurred between spouses against free consent of another spouse. In case of rape sexual
intercourse occurred between two persons (In some countries rape laws are neutral and in some
countries it is gender based. In India it is gender based. Only man can commit rape.) against free
consent of another person. Here relationship of husband and wife is missing.
Common in both Marital Rape Rape
Essence of both rapes is Existence of relationship Here there is marital
against free will of another between husband and wife is relationship.
person. sine qua non.
Basis of non-marital rape- The exemption for marital rape stems from a long out-dated notion
of marriage which regarded wives as no more than the property of their husbands. According to
the common law of coverture, a wife was deemed to have consented at the time of the marriage
to have intercourse with her husband at his whim. Moreover, this consent could not be revoked.
Sir Matthew Hale in his book ‗The History of the Pleas of the Crown‘ published in 1736
declared: ―The husband cannot be guilty of rape committed by himself upon his lawful wife, for
by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto
her husband which she cannot retract‖. Essence of rape is against will or consent of woman.
According to Mr. Hale consent is given at the time of getting marriage. From that woman cannot
retract from own words. Thought of Mr. Hale was good at that time. In most of the countries
marriage institution was treated sacrament. In Religious phenomenal there was no scope for wife
to take divorce. After changing of time wives were allowed to take divorce under certain
circumstances. Now wife has also independent personality. She has right to live with dignified
life. Several countries have declared sexual intercourse with wife against her will or without her
free consent is rape.
English Law
Sexual Offences Act 1956 rape was not possible by husband even marriage is invalid. According
to Section 6 (2) Where a marriage is invalid under section two of the Marriage Act, 1949, or
section one of the Age of Marriage Act, 1929 (the wife being a girl under the age of sixteen), the
invalidity does not make the husband guilty of an offence under this section because he has
148
sexual intercourse with her, if he believes her to be his wife and has reasonable cause for the
belief. By section 142 of the Criminal Justice and Public Order Act 1994 definition of rape was
changed.
This immunity has now been withdrawn in most major jurisdictions. In England and Wales, the
House of Lords held in 1991 that the status of married women had changed beyond all
recognition since Hale set out his proposition. Most importantly, Lord Keith, speaking for the
Court, declared, ‗marriage is in modern times regarded as a partnership of equals, and no longer
one in which the wife must be the subservient chattel of the husband.‘
Section 142 of the Criminal Justice and Public Order Act 1994 abolished the marital rape
exception by excluding the word 'unlawful' preceding 'sexual intercourse' in s. 1 of the Sexual
Offences Act 1956.113
Judgment of the European Commission of Human Rights in C.R. v UK which endorsed the
conclusion that a rapist remains a rapist regardless of his relationship with the victim.
Importantly, it acknowledged that this change in the common law was in accordance with the
fundamental objectives of the Convention on Human Rights, the very essence of which is respect
for human rights, dignity and freedom. This was given statutory recognition in the Criminal
Justice and Public Order Act 1994.‖ In U.K. marital rape is a kind of rape which is punishable
Difference between UK and India
United Kingdom India
A man can commit rape of man or Here rape of man is not possible.
woman. Section 142 of the Criminal
Justice and Public Order Act 1994
definition of rape was changed.
Here marital rape is rape. Here if the age of wife is above the age of 18 years,
marital rape is not possible. This must be read in the
light of Independent Thought Case.
J.S. Verma Committee recommended that the
exception for marital rape must be removed. But this
recommendation was rejected at the time of making
amendment in criminal law.
USA
In Eisenstadt v. Baird the US Supreme Court observed that a ―marital couple is an independent
entity with a mind and heart of its own, but an association of two individuals each with a
separate intellectual and emotional makeup.‖
113
J.S. Verma Committee Report, Page no.114, Available at:
https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf
(Visited on December 1, 2018).
149
Canada, South Africa and Australia

These countries have declared marital rape as rape.
India
Section 375, Exception 2 -―Sexual intercourse or sexual acts by a man with his own wife, the
wife not being under fifteen years of age, is not rape.”
Marital Rape can be divided into three parts namely; (1) Minor Marital Rape (Birth to 15 Yrs.)
(2) Minor Marital Rape (Since 15 years – 18 Years) (3) Adult Marital Rape (Since 18 Years to
onwards).
Marriage Marriage Marriage
Since birth to 15 years Since 15 years – 18 Years Since 18 Years to onwards
Rape Rape No Rape
Reason -Exception of section Reason –Interpretation of Reason –Interpretation of

375. Marital Rape from the Exception -2 of section 375 in Exception -2 of section 375 in
very beginning the case of Independent the case of Independent
Thought Thought. In this case SC did
not consider beyond statutory
provisions.
(1) Minor Marital Rape (Birth to 15 Yrs.)– This is marital rape declared by the Indian Penal
Code under section 375, Exception 2. Section 375, Exception 2 says ―Sexual intercourse or
sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not
rape.‖ It means if wife is below the age of fifteen years then sexual intercourse or sexual acts by
her husband whether with consent or without consent of her will amount to rape. If wife is
above the age of 15 years, then there is no rape. Sexual intercourse by husband with wife who is
above 15 yrs. and below 18 years was challenged in Independent Thought Case.
(2) Minor Marital Rape (Since 15 years – 18 Years) – Exception 2 of section 375 deals marital
rape. According to bare reading of this provision sexual intercourse with wife (Since 15 years –
18 Years) by husband is not rape. But after the decision of Independent Thought case this is the
rape.
After the decision of division bench of Supreme Court in the case of Independent Thought v.
Union of India on October 11, 2017 sexual intercourse by a husband with his wife whether with
or without consent is rape if she is below the age of eighteen years. It was interpreted in the light
of POCSO and Article 14 of the Constitution of India.
In the case of Independent Thought v. Union of India Supreme Court confined itself only with
marital rape of a girl child between 15 and 18 years of age in the context of Exception 2 to
Section 375 of the IPC.
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(3) Adult Marital Rape – In India Adult Marital Rape is no rape. But marital rape victim has
civil remedy under the Protection of Women from Domestic Violence Act, 2005.
Justice J. S. Verma Committee Report - The IPC differentiates between rape within marriage
and outside marriage. Under the IPC sexual intercourse without consent is prohibited. However,
an exception to the offence of rape exists in relation to un-consented sexual intercourse by a
husband upon a wife. The Committee recommended that the exception to marital rape should be
removed. Marriage should not be considered as an irrevocable consent to sexual
acts. Therefore, with regard to an inquiry about whether the complainant consented to the sexual
activity, the relationship between the victim and the accused should not be relevant.
J.S.Verma Committee said that notion has changed and now wife is not property of husband.
Even the United Kingdom and several other countries have changed its law. The Committee was
in favour of deletion of section 375 Exception and declaration of marital rape as a rape in India
also.
Report of this Committee was discarded.
Recommendation of Human Rights Council- In the Report of the Human Rights Council on its
thirty-sixth session recommended to remove exception for IPC and declare marital rape as rape
(June 2018).114
QUESTION 7 (B) (2015)
“Rape is a question of law.” Explain the essentials of crime of rape. How is this law different
from the law against sexual assault provided under POCSO.
Answer
Rape under IPC - According to section 375 ―Rape is PIMA committed by a man (section 10)
against woman (section 10) under seven circumstances and which does not come under two
exceptions.‖ I have already discussed rape. So no need to repeat again and again.
Categories of offences under POCSO Act, 2012 – There are six categories of offences which are
following- (1)Penetrative Sexual Assault (Section -3) (2) Aggravated Penetrative Sexual Assault
(Section - 5) (3) Sexual Assault (Section - 7) (4) Aggravated Sexual Assault (Section -9) (5)
Sexual Harassment of the Child (Section - 11) (6) Use of Child for Pornographic Purposes
(Section -13).
Sexual Assault (Section 7) - Section 7 of POCSO Act which deals ‗Sexual assault‘ says ,
―Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the
child touch the vagina, penis, anus or breast of such person or any other person, or does any
other act with sexual intent which involves physical contact without penetration is said to
commit sexual assault. Section 8 deals punishment for Sexual assault.
114
Available at: https://www.ohchr.org/en/hrbodies/hrc/regularsessions/session36/pages/36regularsession.aspx
151
Difference between POCSO Act, 2012 and Rape under IPC, 1860
Basis POCSO Act, 2012 IPC, 1860
Sex It is gender neutral. Here accused may be either It is gender specific. In case of
man or woman. Even gender of victim is immaterial. rape only man can commit rape.
Victim may be either man or woman. Only woman can be victim of
rape.
Age It covers only child. Here child means any person In case of rape age of woman is
below the age of eighteen years (section 2 (d)). Sex immaterial. It covers minors as
of child is immaterial. It does not cover persons who well as majors.
have attended age of majority.
Marriage It covers all types of women whether married or Section 375,Sixthly- Sexual
unmarried if she is below the age of eighteen years. intercourse with a woman who is
under the age of eighteen years is
rape and her consent is immaterial.
Marital Intercourse- Exception 2
of section 375. It says that sexual
intercourse with wife with or
without consent is not rape if she
is above the age of fifteen years.
Nature Special Law. Combined reading of Article 15(3) of General Law. According to
of law Constitution of India and sections 5 & 41 it becomes section 5 IPC shall not affect
clear that in case of conflict between general law special laws. Section 41 Special
(IPC) and special law (POCSO Act), special law law is a law applicable to
shall prevail over general laws. particular subject. Article 15(3)
State is empowered to make
special laws.
Relation Independent Thought Case. In this case Exception 2 of section 375was declared
between unconstitutional. It was inconsistent with POCSO Act, 2012, Articles 14, 15 and 21and
IPC, section 375, sixthly of IPC.
POCSO
& Const.
152
Independent Thought v. Union of India & Anr. (11Oct. 2017.)

This case is a leading case which was decided by Division Bench of Supreme Court on October
11, 2017. In this case triangle relationship of POCSO, IPC and Constitution was involved.
Independent Thought v. Union Of India & Anr. (11Oct.2017.)
Married Unmarried (1) Section 375 Exception 2 is arbitrary to Articles 14, 15 & 21 of the
Below Below Constitution of India. It is unconstitutional. It makes unreasonable
15Yrs 18Yrs classification between married (15 -18 no rape) and unmarried girl (15 -
Rape Rape 18 years – Rape).
(2) It is inconsistent with the provisions of POCSO, which must
Married Unmarried prevail.
15 -18Yrs Below (3) Now in all cases, sexual intercourse with a women including wife,
18Yrs if she is below the age of 18 years, is rape.
No Rape Rape (4) In this way, now, there is no difference between unmarried and
married women. If wife is below the age of 18 years, and husband
makes sexual relation with his wife whether with consent or without
consent, it would be amount to rape.
Question No. 5 (2016)

Meenu, a 16 years old girl worked as domestic servant in Anita‘s house. Anita lost her necklace
and suspected that Meenu had stolen it. She filed a complaint against Meenu and both were
called to the police station. Meenu came with her mother and Anita came with her husband. All
were asked to leave the police station except Meenu, whose presence was required for further
investigation. A Gopal a police constable then had sexual intercourse with Meenu in the Police
Station, whereas another constable Madan touched her private parts. Meenu said that she did not
consent to the sexual intercourse and had protested touching her body in an appropriate manner.
Can Gopal and Madan held liable for rape?
Answer
In this problem Tukaram vs. State of Maharashtra (Mathura Rape Case) (1978), section 375 (a),
(c), Sixthly, section 376 C, and section 376D of IPC are involved.
Tukaram Case was decided by Supreme Court in 1978 in which it was said that there were no
physical injury on body of victim. It means she had not resisted. She had given implied consent.
Appellant was acquitted. After this decision, movement started all over India against ratio of this
judgment. Rape law was amended in 1983. Again after Delhi Gang Rape case definition of rape
was substituted and punishment was made harsher. In the light of current definition of rape under
section 375, this problem needs to be discussed.
According to section 375 (a) a man is said to be commit rape if he penetrates his penis, to any
extent, into the vagina, mouth urethra or anus of a woman or makes her to do so with him or any
other person.
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According to section 375 (c) a man is said to be commit rape if he manipulates any part of the
body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of
such woman or makes her to do so with him or any other person.
First part of section 375 deals about actus reus and second part deals mens rea.
According to section 375 sixthly, if prohibited act is done with or without her consent, when she
is under eighteen years of age then it is rape.
Section 376 C deals punishment for sexual intercourse done by person in authority and Section
376 D deals punishment for gang rape.
Meenu, was 16 years old girl. So according to section 375 sixthly, her consent was immaterial.
Even she had also said that she had not given consent. Gopal had sexual intercourse with Meenu
in the Police Station. So sexual intercourse made by Gopal had fallen into section 375(a). He has
penetrated his penis into vagina of Meenu. Madan touched her private parts which will come
under section 375(c). He was touching the private parts of Meenu to cause penetration.
Gopal was police constable and Madan was constable. They had raped into police station. So
they will be punished under section 376 C. If they had raped in furtherance of common
intention, they will also be liable for ‗Gang rape‘ under section 376D of IPC.
Conclusion
From the abode discussion it becomes clear that Gopal and Madan will be held liable for rape
under section 376 C and section 376D of IPC.
Question 7 (2015 OC)

Seema, girl of 16 years had sexual intercourse with her boyfriend Mohan on the promise made
by him of getting married. However, he went to Bombay and stopped entertaining her any more.
Seema filed a complaint against her boyfriend of committing rape on the pretext of getting
married. Decide what offence has been committed by the Mohan.
Answer (Already discussed)
Section 375(a).
Section 375 is gender specific. Only man commits rape. Rape con be committed only of woman.
There are two parts of section 375 namely; (1) Actus reus - (a) to (d) (2) Mens rea –Firstly to
Seventhly.
Seema is woman and Mohan is man. Mohan had sexual intercourse with Seema. Sexual
intercourse means penetration of penis into vagina (including labia majora), urethra anus or
mouth. So sexual intercourse of Mohan with Seema will come under section 375(a).
Section 375 Sixthly
Seema was below the age of eighteen years. She was age of sixteen years. According to section
375 sixthly, sexual intercourse with a woman who is under the age of eighteen years is rape and
her consent is immaterial. So Mohan has committed rape.
Section 375 Secondly, Section 90 & Deepak Gulati Case
According to section 90, a consent is not such a consent as it intended by any section of this
Code, if the consent is given by a person under fear of injury, or under a misconception of fact,
and if the person doing the act knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception.
154
Section 375 Secondly – If PIMA is done against consent of woman then such PIMA will be
rape.
Deepak Gulati v. State of Haryana (SC 2013)- Intercourse under promise to marry constitutes
rape only if from initial stage accused had no intention to keep promise. An accused can be
convicted for rape only if the court reaches a conclusion that the intention of the accused was
mala fide and that he had clandestine motives.
In this problem Seema had sexual intercourse with her boyfriend Mohan on the promise made by
him of getting married. It means Seema was under misconception of fact that Mohan will get
marriage. While Mohan knew that Seema had ready to make sexual intercourse on his promise to
get marriage. But he went to Bombay and stopped entertaining her. It means he was not
interested in getting marriage. He had mala fide and clandestine motives. So Mohan has
committed rape.
Conclusion
From the above discussion it becomes clears that Mohan has raped Seema.
Question 5 (2012)
M, a young girl of 16 years having lost her both parents lived with her brother G. M developed
relationship with A and they decided to get married. G filed a report with police that A had
kidnapped M. The police swung into action and brought M, G, and A to the police station at
8p.m. when their statement were recorded. After recording their statements, the inquiry officer
left the station. When M, G, and A started leaving the police station at around 9.30 PM, T a head
constable and P , a constable directed the M remain at police station for further investigation.
Immediately, thereafter T and P took M into a room. T loosened her underwear, lit a torch and
stared at her private parts. He then felled her on the floor in the room and had sexual intercourse
with her. P was impatience to have sexual intercourse with M but could not do so as there were
wide protests from G and A outside as a result of which a crowd had collected outside the police
station.
The crowd broke open the gate and apprehended T and P. It was found that P had already
unbuttoned his trousers. While coming out of the police station, M cried repeatedly that she had
been subjected rape by T. She further cried that had she not been rescued by the people P too
would have raped her. Accordingly, FIR was lodged against T and P for the offence of rape.
After investigation T and P are being tried for the offence of rape u/s 376 (2) (a) and (g) of IPC.
The defence of T and P at the trial, inter alia ( among other things) , is that it was M who had
shown interest in them and that she had voluntarily played back and shown no resistance when T
and P purposed sexual intercourse to her. Further, P‘s defence is that he cannot be held guilty as
he had no sexual intercourse with her.
Discuss whether the prosecution can succeed in proving the guilt of the accused P & T under
sections 376(2)(a) & (g) of IPC.
Question 5(a) (2015)
Akriti, a girl of 17 years of age ran away with her boyfriend. She was brought to the police
station as her father had filed a complaint of kidnapping against her boyfriend. Sexual
intercourse in the police station between Akriti and Ghanshyam, a police constable was proved.
Akriti said that she did not consent to the sexual intercourse. There are no marks of injury on her
person or that of Ghanshyam. Can Ghanshyam be held liable for rape?
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Answer (Question 5 (2012)Question 5(a) (2015)

(I am replying the answers according to current position of law i.e. law in 2018)
In these problems Tukaram vs. State of Maharashtra (Mathura Rape Case) (1978), section
114A of the Indian Evidence Act and section 375 (a), secondly, sixthly, Explanation 2 of IPC
are involved.
Tukaram v. State of Maharashtra (Mathura Rape Case)
Mathura‘s parents died when she was a child and she was living with her brother, Gama. Both of
them worked as labourers to earn a living. Mathura used to go to the house of Nunshi for work
and during the course of her visits to that house she came in contact with Ashok who was the
sister‘s son of Nunshi. The contact developed into an intimacy so that Ashok and Mathura
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 complained against as well as Mathura were 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 Mathura, Nunshi and Gama and Ashok
started to leave the police station. The appellants, 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 raped her and thereafter dragged her to a
Chhapri on the back side and raped her again. Thereafter, Tukaram fondled with her private parts
but could not rape her because he was in a highly intoxicated condition. Nunshi, Gama and
Ashok who were waiting outside the police station for Mathura grew suspicious. They therefore
shouted and attracted a crowd. Thereafter, a complaint was lodged.
Mathura was examined by a doctor who found that she had no injury on her person. Her
hymen revealed old ruptures. The vagina admitted two fingers easily. The age of the girl was
estimated by the doctor to be between 14 and 16 years. The Chemical Examiner did not find the
traces of semen in the pubic hair and vaginal-smear slides. The presence of semen was,
however, detected on the girl‘s clothes.
Supreme Court wrongly presumed and said that there could be no fear because the girl was taken
away by Ganpat from amongst her near and dear ones. 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‖. In this case appellants were acquitted. At that time
burden of prove lies over prosecution.
Effect of Tukaram Case - Against ratio of this judgment protest started all over India. Due to
public pressure criminal laws were changed to nullify the ratio of judgment of this case. In 1983
Indian Evidence Act, IPC and Cr.P.C. were amended at large scale. Section 114A were inserted
in Indian Evidence Act and definition of rape was substituted.
After Delhi Gang Rape Case in 2013 again due to pressure of public criminal laws were
amended in 2013. After Kathua and Unnav Rape Case again criminal laws were amended in
2018.
Section 114A
156
According to section 114A of Indian Evidence Act, in rape cases if question arises whether
sexual intercourse had been done with or without consent then Court shall presume that there
was absence of consent if two conditions are being fulfilled –
(1) where sexual intercourse by the accused is proved and
(2) such woman states in her evidence before the court that she did not consent.
If both the conditions is proved then presumption of absence of consent will be and burden of
prove regarding presence of consent shall lies over accused.
Explanation 2 of section 375
According to Explanation 2 of Section 375, ―Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of verbal or non-verbal
communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.”
‗Provided that‘ has been inserted to prevent repetition like ratio of Tukaram Case.
Section 90
According to section 90, a consent is not such a consent as it intended by any section of this
Code, if the consent is given by a person under fear of injury, or under a misconception of fact,
and if the person doing the act knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception.
Deepak Gulati Case
Deepak Gulati v. State of Haryana (SC 2013)- Intercourse under promise to marry constitutes
rape only if from initial stage accused had no intention to keep promise. An accused can be
convicted for rape only if the court reaches a conclusion that the intention of the accused was
mala fide and that he had clandestine motives.
Evaluation of Problems
Sexual intercourse between Aktiti and Ghanshyam is being evaluated on following grounds-
(1) Sexual intercourse between Aktiti and Ghanshyam will come under section 375(a).
(2)Aktiti was below the age of 18 years. So her consent was immaterial. Her rape comes under
section 375 sixthly.
(3) She had not given consent. Both conditions of section 114A are being fulfilled. First
condition i.e. sexual intercourse has been proved between Akriti and Ghanshyam, a police
constable. Second condition i.e. denial of giving consent had also been proved i.e. Akriti said
that she did not consent to the sexual intercourse. So Court shall presumed that there was no
consent.
(4) According to Explanation 2 of 375, a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as consenting to the sexual
activity. So marks of injury on her person or that of Ghanshyam is immaterial.
Conclusion
From the above discussion it becomes very clear that Ghanshyam has committed rape.
Question 5(b)2013
You are required to decide the criminality of Tukaram and Ganpat under Law as amended under
the Criminal Law (Amendment) Act, 2013 in the following facts and circumstances:
157
Mathura, an unmarried girl about 18 years of age was called to police station by the above named
policemen in respect of her role in a kidnapping case. After she came out of the police station she
complained that the above two accused confined her in one room and Ganpat undressed her and
before having penile penetration in her vagina he inserted two of his fingers in her vagina. It was
at that time that she was able to run away from the room by forcefully pushing both of them on
one side. She stated that she could thus save herself from being forced to penile sexual
intercourse against her will and without her consent. She also stated in her statement to the police
that when Ganpat had overpowered her, Tukaram was also undressing himself with intent to
have forced penile sexual intercourse with her. Decide.
Answer
Rape
According to section 375 (b) A man is said to commit "rape" if he inserts, to any extent, any
object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman
or makes her to do so with him or any other person.
In this problem Ganapat inserted two of his fingers in her vagina. It was without consent. . It was
at that time that she was able to run away from the room by forcefully pushing both of them on
one side. She stated that she could thus save herself from being forced to penile sexual
intercourse against her will and without her consent. According to section 114 A of IEA once
insertion is proved and woman denies her consent, the court shall presume absence of consent.
So as soon as Ganapat inserted his two fingers into vagina of Mathura against her will (Section
375 firstly) or without her consent (Section 375 secondly), he committed rape.
Gang Rape
Section 376D- Where a woman is raped by one or more persons constituting a group or acting
in furtherance of a common intention, each of those persons shall be deemed to have committed
the offence of rape and shall be punished with rigorous imprisonment for a term which shall not
be less than twenty years, but which may extend to life which shall mean imprisonment for the
remainder of that person's natural life, and with fine.
In this problem she was called by policemen. Ganapat and Tularam confined her in one room.
when Ganpat had overpowered her, Tukaram was also undressing himself with intent to have
forced penile sexual intercourse with her. These facts denote that both were acting in furtherance
of common intention. Common intention was commit rape. Liability of both persons will be
same. So both will be liable for committing gang rape under section 376D.
Conclusion
From the above discussion it becomes very clear that Ganapat had committed rape as well as
gang rape. Tukaram has committed gang rape along with Ganapat.
158
Annexure VI Kidnapping and Abduction (Previous Year Question Papers, LLB-DU)

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Bring out clearly the distinction between kidnapping and abduction under the IPC.
Answer
Differences between Kidnapping and Abduction
S.N. Kidnapping Abduction
1 Kidnapping is substantive offence. It is an Abduction is not a substantive offence .
363A, 364,364A to 369.
of unsound mind
4 TEA (Taking or enticing any minor) FCDI (..by force compels or by
deceitful means induces)
6 Consent of victim is immaterial. He or she Free and voluntarily consent of the
is not capable to give consent. person abducted condones abduction.
7 Intention of the kidnapper is immaterial for Intention of the abductor is an important
the offence. factor in determining guilt of the
accused.
Question 7(b) (2013)

Rakhi, a female, aged about 15 years, and Raj, a male, aged about 15 years, were good friends in
the school. One day Rakhi proposed to marry Raj but Raj did not heed because he was afraid of
his step mother who would ill-treat him. Rakhi visited Raj‘s home in his absence and came to
know from the servants that he was being ill-treated by his step- mother and his father could do
nothing as he was forced by his parents to remarry after he had lost his first wife i.e. Raj‘s
159
mother. Rakhi went home and told her mother about this whole story and sought her help in
arranging for permanent stay of Raj in their out house where he could concentrate on his studies.
Rakhi‘s mother expressed no objection should Raj agree to this arrangement. Rakhi gave this
offer to Raj and told him that only after he settled down in his life that she would again propose
marriage with him. Raj thought over the matter and finally decided to shift to the outhouse
offered to him by Rakhi without discussing with his father anything about this matter. When Raj
did not return home his father filed an FIR alleging that his son has been kidnapped by Rakhi and
his mother. Decide if Rakhi can be held guilty of kidnapping Raj with the help of judicial
decisions and decided cases.
Answer
In this case sections 361,363 and 34 are involved. Leading cases on these points are Thakorilal D
Vadgama v. State of Gujarat (Parker Pen Case) (1973), State of Haryana v. Raja Ram (1972)
and Suresh v. State of U.P. (2001).
The object of section 361 is to protect the rights and privileges of guardians having the lawful
charge or custody of their minor wards. Section 361 defines kidnapping from lawful
guardianship which is following -
Section 361 - Kidnapping from lawful guardianship

―Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen
years of age if a female, or any person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind, without the consent of such guardian, is said
to kidnap such minor or person from lawful guardianship‖.
There are following ingredients of section 361 which are following-
(1) Age and Sex – ‗Whoever‘ denotes any person either male or female. Age and sex of accused
are immaterial. Only age of victim or his mental condition is deciding factor. Victim may be
minor or person of unsound mind. In case of male victim must be below the age of 16 years.
(2) Meaning of Taking or enticing – In the case of Thakorilal D Vadgama v. State of Gujarat
(Parker Pen Case) (1973) Supreme Court defined the words ‗taking‘ and ‗enticing‘. These
meanings are following -
The word ‗takes‘ in s. 361I.P.C. does not necessarily connote taking by force and it is not
confined only to use of force, actual or constructive. This word merely means ―to cause to go‖,
―to escort‖ or ―to get into possession‖.
The word ―entice‖ means to involve the idea of inducement or allurement (IIIA)by giving rise to
hope or desire (HD)in the other.
In this case Supreme Court said, ―If the minor leaves her parental home, influenced by any
promise, offer or inducement emanating from the guilty party then the latter will be guilty of
an offence as defined in section 361Indian Penal Code.‖
In the case of State of Haryana v. Raja Ram (1972) Supreme Court held that persuasion is
sufficient. 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
160
minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the
section.
(3) Consent of Minor/Guardian - In the case of State of Haryana v. Raja Ram (1972) Supreme
Court held on plain reading of this section 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.
(4) Out of Keeping of Lawful guardianship - In the case of State of Haryana v. Raja Ram
(1972) Supreme Court said the use of the word ―keeping‖ in the context connotes the idea of
charge, protection, control and maintenance (CPC-M)-, further the guardian‘s charge and
control-appears to be compatible with the independence of action and movement in the minor,
the guardian's protection and control of the minor being available, whenever necessity arises.
Rakhi is accused. Her age is immaterial. Raj age is about 15 years i.e. below the age of 16 years.
Motive of Rakhi is good to support Raj in his studying. But for kidnapping motive, intention or
knowledge are immaterial. Kidnapping comes under the category of strict liability where mens
rea of accused is immaterial.
Rakhi enticed Raj. Rakhi induced and created hope and desire in the mind of Raj for better life
and comfortable environment for studying. Raj leaved his home in pursuance of offer given
Rakhi. In this process Rakhi did not take consent of father of Raj. Father of Raj was guardian of
Raj. So Raj was kept out of keeping of lawful guardianship.
All the conditions of section 361 are being fulfilled. So Rakhi has kidnapped Raj.
Responsibilities of mother
Section 34 –―Acts done by several persons in furtherance of common intention - When a
criminal act is done by several persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it were done by him alone.‖ In the case
of Suresh v. State of U.P. (2001) Supreme Court held that either overt or covert act is sufficient.
Presence on the spot is not necessary in all case.
Mother and sister are several persons. There was common intention to bring Raj out of lawful
guardianship of father of Raj. Mother after knowing all the facts she permitted her daughter to
entice Raj. So liability of Rakhi and her mother will be same. Both will be liable for kidnapping
under sections 34 r/w363.
Conclusion
From the above discussion it becomes clear that Rakhi and her mother had committed
kidnapping from lawful guardianship which is punishable under section 363.
Sorry Rakhi and your Mother. At the anvil of law I could not save. Both of you
have won my heart and I realized my old days. I am always with you.
HAHAHAHAHAHAHH
161
Question 6 (2014)
A young girl was left to live with his maternal grandfather, as the relationship between her
mother and father were strained. One day the father (F) visited himself where she was kept and
took her with him for a picnic. Mother (M) on reaching home (the place where she was living,
found that minor daughter has been taken away without her or maternal grandfathers consent.
She files and FIR, where she alleges that her daughter has been kidnapped. Advise her about the
success of her case.
Answer
I have already discussed section 361. In the case of State of Haryana v. Raja Ram (1972)
Supreme Court said the use of the word ―keeping‖ in the context connotes the idea of charge,
protection, control and maintenance (CPC-M). Here lawful guardianship was in the hand of
mother. Relationship between husband and mother was strained. So it was also implied that
lawful guardianship was in the hand of mother. Girl was minor i.e. below the age of 18 years.
Father took without consent of mother of minor.
So father has kidnapped his daughter. So he will be liable under section 363.
Question 6 (b) (2014)
Bring out clearly the distinction between kidnapping and abduction under the IPC. Discuss
kidnapping from lawful guardianship as a strict liability offence.
Answer
I have already discussed distinction between kidnapping and abduction under the IPC.
Kidnapping from lawful guardianship as a strict liability offence

essential ingredients of crime, namely,(1) Human Being (2) Guilty Mind (3) Prohibited act, (4)
An injury to human being or society. This maxim denotes that guilty mind and prohibited act
both are part and parcel of crime. It is rule that without guilty mind, crime cannot be committed.
Sometimes offence is constituted even without guilty mind it is called strict liability. There are
certain exceptions of Actus non facit reum , nisi mens sit rea. These exceptions are following -
(1) Criminal Libel (2) Public Nuisance (Hicklin Test) (3) Contempt of Court (4)
Abduction/Kidnapping (5) Bigamy (6) Statutory offences(7) Bigamy.
There are two schools to interpret statutory provisions namely;
(1) Presumption of Requirement of Mens Rea- In every Statute mens rea should be treated
as part of crime unless contrary is shown. Existence of Mens Rea is presumed.
mentioned.
162
R. v. Prince115 (1875) (Blackburn)

Facts - Henry Prince was charged under section 55116 of the Offences Against the Persons Act,
1861. This section was related to abduction. There was no any category of offence like
kidnapping under this Act. At that time unlawfully taking of a girl below the age of sixteen
years without permission of lawful guardian was an offence as abduction. ‗Kidnapping‘ was
missing from statutory provisions of British Law. It was proved that the prisoner took the girl
whose age was below the age of sixteen years from out of possession of lawful guardians without
their permission. Real age of girl was 14 years. Actus reus was present but mens rea was absent.
Accused proved that he took the girl who was looking age of 18 years and he took with consent
and after her replying that her age was 18 years. He did in good faith.
Decision - Court denied these defenses. This section had not mention about mens rea i.e.
intention, knowledge, reason to believe etc. Justice Blackburn denied applying the maxim Actus
knowledge so Court could not insert requirement of intention or knowledge only on the basis of
maxim. So Prince was convicted even without guilty mind. Principle of strict liability was
followed.
Section 361 - Kidnapping from lawful guardianship
―Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen
years of age if a female, or any person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind, without the consent of such guardian, is said
to kidnap such minor or person from lawful guardianship‖.
In section 361 intention or knowledge of offender is missing. For application of section 361
guilty mind of offender is missing. So Section 361 is an offence which comes under the category
of strict liability offence. Purpose of law is to secure the rights of guardian and interest of minor.
So keeping these things condition of mens rea was not made.
Krishna Maharana v. The King Emperor (1929) Patna High Court
The defence that the accused did not know that the girl was under statutory age or that from her
appearance the girl looked quite older than that age and that the accused took her to have attained
the age of consent could not be accepted.
Question 6 (2016)
Namita, a fifteen year old girl is devastated when her father remarries immediately upon her
mother‘s death. She runs away from the house and seek shelter from Rakesh. Rakesh is her
teacher in school. He persuades Nitibha to return back but she refuses to go back and volunteers
to cook and clean for him if he allows her to stay with him. After a week police recover Nitibha
from Rakesh‘s house. He is charged under section 363 IPC for kidnapping Nitibha from lawful
guardianship. Discuss the liability of Rakesh.
115
(1875) L.R. 2 C.C.R. 154
116
Section 55 of Offences Against the Persons Act, 1861 - Abduction of a girl under sixteen years of age -
Whosoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out
of the possession and against the will of her father or mother, or of any other person having the lawful care or charge
of her, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to
be imprisoned for any term not exceeding two years, with or without hard labour.
163
Answer
In this case sections 361 & 363 and ration of S. Varadrajan v. State of Madras (1964) are
involved. I have already discussed section 361 and section 363. So no need to discuss again.
In the case of S. Varadrajan v. State of Madras (1964) Supreme Court made distinction between
taking and allowing a minor. The Court said that merely playing role for facilitating the
fulfillment of the intention of the girl will not amount taking. That part falls short of an
inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not
tantamount to ―taking‖.
The two expressions are not synonymous. There are differences between both.
In this case the accused have not taken her away from the keeping of her lawful guardian.
Something more has to be shown in a case of this kind and that is some kind of inducement held
out by the accused person or an active participation by him in the formation of the intention of
the minor to leave the house of the guardian. 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. In this case, there was no taking. S. Varadrajan was acquitted.
In this problem Rakesh had neither taken nor enticed Nitibha. Although he was her teacher. But
there is no evidence that he had either earlier or immediately enticed her. Even he persuades
Nitibha to return back but she refuses to go back and volunteers to cook and clean for him if he
allows her to stay with him. He merely allowed her to stay along with him. It was not his duty to
return back.
Conclusion
From the above discussion it becomes clear that there was neither taking nor enticing. So Rakesh
had not kidnapped Nitibha from her lawful guardian.
Question (4) 2014
Savitri, aged 15 years, became friendly with Varadaraj an, a boy aged 19 years, who was residing
in a house next door to that of Savitri‘s father, Mr. Natrajan. They would often talk to each other
from their respective roof tops. Varadarajan was keen to marry Savitri. The intimacy between the
two came to the knowledge of Mr. Natrajan. Parents of Savitri took her to a distant place and
kept her in the house of a close relative, Mr. Rarigrajan, the idea being that she should be kept as
far away from Varadaraj as possible for some time. On the next day Savitri informed
Varadarajan about her whereabouts and also how she missed him. Varadarajan arrived in the
house of Rangrajan next day and explained to him that his liking for Savitri was banafide and
gained his confidence. He persuaded Rangrajan to permit him to take Savitri for a cinema show
and an outing with the promise that they will return in the evening. They returned back in the
evening as promised. After a few days Savitri sought permission from Rangrajan to join
Varadarajan for an outing to which he did not object. Having gone out to meet Varadarajan
whom she met at Railway station, they both decided not to return and got married in a temple
164
and left for honeymoon. The father of the girl on coming to know of these developments filed an
FIR against the boy, Varadarajasn, under section 363 IPC for which he is facing trial. He pleads
the following in his defence: (i) It is Savitri who summoned him to Rangrajan‘s place; (ii) She
had voluntarily come out of the keeping of her lawful guardians and he only allowed her to
accompany; (iii) She joined him after seeking permission of Rangrajan which amounted to
consent within the meaning of section 363 IPC. Varadarajan submits that in view of the aforesaid
reasons, no case is made out against him and he is entitled to be acquitted of the charge. Decide.
Answer
This problem is based on S. Varadrajan v. State of Madras Case.
165
Annexure VII ( Sections 299 -304A)

( I have also discussed these topics in other annexures)
Contact no. -7985255882
Question (3) (a) 2014 OC

Due to rivalry arising out of landed property between A and B. A caused multiple injuries to B
and various parts of body to teach him a lesson. B was admitted to the hospital, where he was
treated and discharged. When B was on his way to recovery, he became negligent about his
medicines. He, therefore, developed fever and septic of two wounds. B died a week later. State
the liability of A. Cite relevant legal provisions and decided cases.
Answer
Statutory Provisions and Cases
In this problem Actus non facit reum, nisi mens sit rea, section 299 and ratio of Moti Singh and
Anr. v. State of U.P., (Jan. 23, 1963 SC) and Joginder Singh v. State of Punjab (1979 SC) are
involved.
Actus non facit reum, nisi mens sit rea
Actus non facit reum, nisi mens sit rea which means the act itself does not make a man guilty,
unless the mind is also guilty. Section 299 is based on this maxim.
Section 299
Section 299 - ―Whoever causes death (Section 46) by doing an act (Sections 32 &33) with the
intention (Desire and foresight of consequences) of causing death, or with the intention of
causing such bodily injury as is likely to cause death (there is no intention to cause death, only
intention is to cause bodily injury) or with the knowledge (foresight of consequences) that he is
likely by such act to cause death, commits the offence of culpable homicide.‖
There are two conditions must be fulfilled to apply section 299 namely; (1) Actus reus
(Prohibited Act). There must be cause and effect relationship. It means Causa causans
(Immediate or operating cause) is sine qua non and (2) Mens Rea (Guilty Mind).
First Condition
(1) There must be cause and effect relationship/ Causa causans (Immediate or operating
cause) – Primary cause and the death should not be too remote. Prosecutor has to prove that by
act of accused, death of victim has occurred. Here cause and effect means, there must be death of
victim by act of accused rather than act of third person. On this topic there are following leading
cases -
(i) Moti Singh and Anr. v. State of U.P.
Deceased had been injured during the occurrence and had been taken to the hospital where his
dying declaration was recorded. He left the hospital and died 20 days later. Before any
postmortem examination could be held, his body was cremated. Prosecutor could not prove
what the reason of cause of death of victim was whether it was injury caused by accused or
negligence in taking medicine after discharge of hospital. Prosecutor failed to prove cause- effect
relationship.
166
Moti Singh and Jagdamba were acquitted.

(II) Joginder Singh v. State of Punjab (1979 SC)
The deceased Rupinder Singh had teased the sister of accused. In retaliation accused reached at
the house of deceased. Seeing these things deceased started to run away. Accused tried to hold
deceased. Accused were about 15 to 20 feet from victim when he jumped into well. There was
no cause & effect relationship.
If this condition is not fulfilled, no further question regarding intention or knowledge arose.
Second Condition
There must be Guilty Mind. There are three degrees of mens rea- (i) Intention to cause death, or
(ii) Intention to cause such bodily injury as is likely to cause death, or (iii) With the knowledge
the he is likely by such act to cause death.
Application of Law with the problem
A caused multiple injuries to B. B was admitted to the hospital, where he was treated and
discharged. In this problem B developed fever and septic of two wounds due to his negligence
and he died a week later. Reason of death is not injuries caused by A. So there is no relationship
between death of B and act of A. So A will not be liable for causing death of B. Causa causans
(Immediate or operating cause) is missing in this problem. First condition of section 299 is not
being fulfilled.
Conclusion
On the basis of above discussion it can be concluded that A has not committed culpable
homicide. He will be liable only for voluntarily causing hurt.
Question 1 (2014)
Ravi suffered serious injuries on his right leg at the hands of Kavi resulting in the amputation of
his leg. Rajinder, father of Ravi, harboured a grudge against Kavi since that time and was out
to take revenge. One day he caught hold of Kavi while he was coming back from work and
indiscriminately pounded legs and arms of Kavi with a heavy stick which he was carrying. In all
there were 18 injuries on the body of Kavi who suffered multiple fractures on arms and legs and
died after two days. The medical report suggested that the cause of death was shock and
haemorrhage resulting from multiple injuries. The trial court held that in the circumstances of
the case since Rajinder could not be attributed with intention to kill, he was guilty of only
culpable homicide not amounting to murder under section 304 Part-I, although the charge was
under section 302 IPC. The high court concurred with the view of the trial court. The state wants
to file special leave to appeal in the Supreme Court against the concurrent judgments of the
courts below for seeking his conviction under section 302 IPC. But before doing so, it seeks your
legal opinion whether a case under s. 302 IPC is made out.
Draw a legal opinion in the matter as required.
Answer
Statutory Provisions and Cases
In this problem sections 299, 300, ratio of R v. Govinda (1876), State of A.P. v. R.Punnayya
(1976) and Virsa Singh v. The State of Punjab are involved.
Difference between Culpable Homicide (CH) and Murder
167
In this problem Rajinder caused 18 injuries to take revenge. There was intention to cause
multiple injuries. He had been convicted under section 304 Part I. State wants to in appeal for
conviction under section 302. So problem requires making differences between section 299 and
section 300 on the issue of intention to cause bodily injuries.
There are two leading cases one was decided by Justice Melvil (R v. Govinda, July 18, 1876,
Bombay High Court) and another decided by Justice Ranjit Singh Sarkaria (State of A.P. v.
R.Punnayya, September 15, 1976, Supreme Court) in which differences between section 299 and
section 300 were discussed thoroughly.
Justice Melvil made differences between culpable homicide and murder. For convenience he
divided guilty mind for culpable homicide under three categories namely; section 299(a), section
299 (b) and section 299(c).
Intention to cause bodily injury - (S.299 (b) & S.300– (Secondly) & (Thirdly)
In section 299 only (b) category talks about intention to cause bodily injury while S.300–
Secondly & Thirdly both deal intention to cause bodily injury. In section 300– Secondly &
Thirdly certain specific words have been added which increase the gravity of guilty mind.
Section 299 (b) Section 300, Secondly
(b)Intention to cause bodily injury + (Secondly)Intention to cause bodily injury +
by such bodily injury, it is likely to offender knows that by such bodily injury, it is likely
cause death to cause death.( Intention + knowledge+ likely).
(Intention +Likely). Here knowledge of offender has enhanced
Here knowledge is missing. probability of death.
(b) Thirdly
(b) Intention to cause bodily injury + Thirdly- With the intention of causing bodily injury
by such bodily injury, it is likely to to any person, and the bodily injury intended to be
cause to death. (Intention + Likely). inflicted is sufficient in the ordinary course of
(The distinction lies between a bodily nature to cause death. By using the words sufficient
injury likely to cause death and a in the ordinary course of nature, enhanced the gravity
bodily injury sufficient in the ordinary of probability of death.
course of nature to cause death.)
In this problem Rajinder caused injuries only on arms and legs. He did not knowing that by
those injuries shock and haemorrhage might be occurred and finally death would be happened.
So section 300 secondly is not applicable.
Next question is whether 300 thirdly will be applicable.
Virsa Singh v. State of Punjab (1958 SC, Justice Vivian Bose).
In Virsa Singh v. State of Punjab Supreme Court held that there are two parts of section 300
thirdly. The Court said that these two parts are disjunctive and separate. These parts are namely;
Part1-If it is done with the intention of causing bodily injury to any person (Subjective test),
and Part 2- the bodily injury intended to be inflicted (It is descriptive of part 1) is sufficient in
the ordinary course of nature to cause death (Objective Test).
Only for first part intention of accused is necessary. For second part intention of accused is not
necessary. For first part subjective test is applied while for second part objective test is applied.
Main difference between section 299 (b) which contains ‗likely to‘ while section 300 contains
‗sufficient in the ordinary course of nature‘ which increases probability of death.
168
State of A.P. v. R.Punnayya,

(Sept. 15, 1976, Supreme Court, Justice Ranjit Singh Sarkaria)
In this case several accused pounded legs and arms of deceased by lathis and caused 19 injuries.
No injuries were caused on vital parts. Intention was only to cause bodily injuries. The autopsy
was conducted by Dr. P.S. Sarojini in whose opinion, the injuries found on the deceased were
cumulatively sufficient to cause death in the ordinary course of nature. The cause of death,
according to the Doctor, was shock and haemorrhage resulting from multiple injuries. Supreme
Court held that they confined to legs and arms. So it can be inferred that there was no intention to
cause death as contemplated under section 299(a) and section 300firstly.
Cumulatively injuries are sufficient- In this case Supreme Court said, ―The expression ―bodily
injury‖ in Clause 3rdly includes also its plural, so that the clause would cover a case where all
the injuries intentionally, caused by the accused are cumulatively sufficient to cause the death in
the ordinary course of nature, even if none of those injuries individually measures up-to such
sufficiency. The sufficiency spoken of in this clause as already noticed, is the high probability of
death in the ordinary course of nature, and if such sufficiency exists and death is caused and the
injury causing it is intentional, the case would fail under Clause 3rdly of section 300.‖ Accused
were convicted under section 302.
Evaluation of problem with law
In this problem the medical report suggested that the cause of death was shock and haemorrhage
resulting from multiple injuries. Supreme Court in the case of R.Punnayya which contains
similar facts convicted accused on the basis of cumulative effect of injuries under section 302.
Cumulative effect of such injuries is sufficient in the ordinary course of nature to cause death. So
it comes under section 300 thirdly.
Conclusion
After observing above discussed laws and cases my legal opinion is that State should file a
petition for special leave. This matter comes under section 300 thirdly. Trial Court and High
Court had ignored the decision of Supreme Court. State can use cases of Virsa Singh Case, Anda
and Ors. v. The State of Rajasthan (1965 SC) and R.Punnayya Case as a precedent. State will
win the case.
Question 2 (2013)
Critically explain the test laid-down by the Supreme Court in Virsa Singh v. State of Punjab AIR
1958 SC 465 for invoking the charge of murder under section 300(3) read with section 302 IPC.
Comment on principles in Kapur Singh v. State of Pepsu AIR 1956 SC 654 and of Virsa Singh
the latter case.
Answer
Statutory Provisions and Cases -In this problem sections 299, 300, Virsa Singh v. The State of
Punjab and Kapur Singh v. State of Pepsu are involved.
Culpable homicide is murder ―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.‖
Test in Virsa Singh v. State of Punjab (March 11, 1958) (Justice Vivian Bose)
169
Four test were laid down in this case for application of section 300 (3) read with section 302 IPC.
which are following –
First Test (Bodily injury) - Prosecution must establish, quite objectively, that a bodily injury is
present,
Second Test (Nature of Bodily injury) - the nature of the injury must be proved. These are
purely objective investigations.
Third Test (Intention to inflict bodily injury) - 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- Subjective Test.
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourth Test (the injury sufficient….) - 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.
Subjective and objective test – First, second and fourth tests are related to objective test while
third is related to subjective test.
Comment on principles
Both the cases have been decided by Supreme Court. In Kapur Singh case Supreme Court
converted section 302 into section 304 Part I. In Virsa Singh Case Supreme Court dismissed
appeal of Virsa Singh.
Kapur Singh v. State of Pepsu (1956 SC)

Facts - 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 with the help of Chand Singh took revenge. Chand Singh held 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 thus inflicted
none was inflicted on a vital part of the body.
Decision - Appellant had no intention to cause death. But by such bodily injury it was likely to
cause death. He was convicted under section 304(1) of IPC. The Court rejected to apply section
302. The Court did not say anything about section 303 thirdly.
Criticism – On section 300 thirdly this judgment is silent. Its reason might be that on this point
no argument was done by respondent party or argument was done but it was not written in
judgment.
Virsa Singh v. State of Punjab (March 11, 1958) (Justice Vivian Bose)
Facts – There was only one injury on Khem Singh. Virsa Singh thrust a spear into the abdomen
of the deceased. This injury caused his death. In the opinion of the doctor the injury was
sufficient to cause death in the ordinary course of nature.
―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.‖
Contentions of Appellant – Main contention of the appellant was that there are two parts of
section 300 thirdly and in both parts intention is necessary. It means (1) there must be intention
to cause bodily injury and (2) there must be intention to cause such bodily injury as is sufficient
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in the ordinary course of nature to cause death. According to contention in both cases subjective
test must be followed.
Decision of Court – Supreme Court rejected this contention. Supreme Court held that there are
two parts of section 300 thirdly. The Court said that these two parts are disjunctive and separate.
These parts are namely;
Part1-If it is done with the intention of causing bodily injury to any person and (Subjective test)
Part 2- the bodily injury intended to be inflicted (It is descriptive of part 1) is sufficient in the
ordinary course of nature to cause death (Objective Test).
Part 1 & Intention – Intention is necessary only for part one. It must be proved that bodily
injury was caused with intention. It must not be accidental or unintentional. It must be decided
according to subjective test. Personal intention is necessary.
Part 2 & Intention – In the second part intention is not necessary. To decide whether bodily
injury is sufficient or not, objective test must be followed.
Four Test
I have already discussed above. Once these four tests are established by the prosecution the
offence is murder under section 300 thirdly.
Decision – Virsa Singh was convicted by the first court under section 302 and his conviction and
sentence were upheld by the High Court. Appeal was dismissed by the Supreme Court.
Remarks – In Virsa Singh case Supreme Court has explained the meaning and scope of Article
300(3). Guidelines were laid down to attract section 300(3).
Thus according to the rule laid down in Virsa Singh‘s case even if the intention of accused was
limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of
nature and did not extend to the intention of causing death, the offence would be murder.
Question (2) (a) 2014

Arguments between X (husband) and W (wife) on repayment of loan to the Bank, turned ugly.
Husband slapped his wife and not satisfied with this threw a burning stove (kerosene oil) on her.
The oil with flame resulted into fire in which the wife was engulfed. Husband tried dose it off.
However, the burn injuries were beyond 70% which resulted into death of wife four days after in
the hospital. Determine the liability of the husband X in the case.
Answer
In this problem section 300 (3) and ratio of Virsa Case is involved. I have already discussed
these things.
In this problem there was no intention to cause death. It can be inferred from the facts that
Husband tried dose fire off.
There was intention to cause bodily injury (Section 300 thirdly, First Part). Dispute was going
on. Husband slapped his wife and not satisfied with this threw a burning stove (kerosene oil) on
her. By these facts it can be inferred that there was desire and foresight of consequences. Burning
of 70% is sufficient in the ordinary course of nature to cause death (Section 300 thirdly, Second
Part). So X (husband) has committed murder which comes under Section 300 thirdly. He shall
be punished under section 302.
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Question (2) (2014)
Rajesh, a liquor baron, with intent to make quick money, adulterated country liquor with methyl
alcohol and water and sold the same in the market through his outlets on holi festival. As a
consequence, the festival day of holi brought disaster to many families inasmuch as 40 person
died and 14 lost eye sight permanently after consuming liquor bought from his outlets Rajesh is
being prosecuted for the offences under sections 302 and 326 IPC. He pleads that he neither had
intention to kill nor knowledge of such imminent disaster. Will the prosecution succeed? Decide
with the help of legal provisions and judicial decisions.
Answer
Statutory Provisions and Cases – In this problem section 299 (c) section 300 fourthly, section
302, section 326 and ratio of State of Haryana v. Krishan (June 9, 2017 SC) are involved.
Section 300 fourthly
Culpable homicide is murder 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.
Knowledge of act. (S.299 (c), S. 300 Fourthly)
Existence of ID (Card) and all probability to cause death enhance the gravity of knowledge.
Knowledge Sec. 299(c) Section 300, Knowledge(Fourthly)
No Knowledge + Knowledge+ Imminently Dangerous(ID) + all
intention, Likely to cause death probability to cause death + without excuse. For
only example-Terrorist attack
knowledge
Section 326
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by
means of any poison or any corrosive substance, or by means of any substance which it is
deleterious to the human body to inhale, to swallow, or to receive into the blood shall be
punished with imprisonment for life, or with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
State of Haryana v. Krishan (June 9, 2017 SC)
In December, 1980, a very brazen, bizarre and outlandish incident took place, commonly known
as ‗hooch tragedy‘. The deleterious consequence was that 36 persons who had purchased liquor
from a licensed vend in Village Kalanwali, District Sirsa, Haryana lost their lives after
consuming the same. Another 44 persons who too had purchased the liquor from the same shop
and consumed that liquor lost their eye-sight permanently. Accused adulterated liquor with
methyl alcohol. They were convicted under section 302 and section 328. It was held that that had
knowledge that they were mixing methyl. So this matter comes under section 300 fourthly. It
was imminently dangerous.
Application of law with problem
In Dhirajia Case Supreme Court said that some degree of knowledge must be attributed to every
sane person. Rajesh was liquor-baron. He was well known about effect of methyl. After knowing
these effect he adulterated country liquor with methyl alcohol and water and sold the same in the
market through his outlets on holi festival. He took the risk of life and health of other persons.
172
He adulterated without any excuse. His act was imminently dangerous and all probability to
cause death. So he committed murder of 40 persons who consumed his liquor. He also
committed voluntarily grievous hurt under section 326 to 14 persons who lost eye sight
permanently after consuming liquor bought from his outlets.
Conclusion
From the above discussion it becomes clear that Rajesh had committed an offence punishable
under section 302 and section 326 of IPC. Prosecution will get success.
Question 5 (a) (2016)
Discuss the criminal liability of Raghu in the following case -
Raghu stabs Rinku who is five years old son of Ram in his leg, due to which there is significant
blood loss. Doctor advises blood transfusion but Ram refuses to get it done since his religious
belief does not allow the same. Rinku dies three days later due to extreme loss of blood.
Answer
In this problem ‗Eggshell Skull Rule‘, R. v. Blue (1975), Explanation 2 of section 299 and
section 300 thirdly of IPC are involved.
‗Eggshell Skull Rule‘ (You take your victim as you find them)
The eggshell skull rule, also known as the thin skull rule, is a principle which says that the
frailty, weakness, sensitivity, or feebleness of a victim cannot be used as a defense in a tort or
criminal cases. The Egg-Shell Rule can be recognized in S.299 and illustration of S.300 of Indian
Penal Code. The Egg-Shell Rule acts as an exception to the reasonability test which is commonly
used to determine causal responsibility.117 It is immaterial that the unusual sensitive condition of
victim was unforeseeable by the ordinary person. Section 299 of IPC is based on this rule.
R. v. Blue (1975)
The defendant entered the home of an 18-year-old woman and asked for sex. When she declined
his advances, he stabbed her four times; the wound penetrated her lung which necessitated both a
blood transfusion and surgery in order to save her life. After refusing treatment because of her
religious beliefs she died. Medical evidence showed that she would not have died if she had
received treatment. The defence argued that the victim‘s refusal to accept medical treatment
broke the chain of causation between the stabbing and her death. Justice Lawton invoking the
‗Eggshell Skull Rule‘ said that as a matter of policy that those who use violence on others must
take their victims as they find them. The accused was held liable for manslaughter.
Explanation 2 of Section 299
―Where death is caused by bodily injury, the person who causes such bodily injury shall be
deemed to have caused the death, although by resorting to proper remedies and skilful treatment
the death might have been prevented.‖
If all conditions of section 299 are being fulfilled then accused cannot take defence that by
resorting proper remedies and skillful treatment the death might have been prevented. This is
based on ‗Eggshell Skull Rule‘.
Section 300 Thirdly
For application of this provision two conditions must be fulfilled namely; (1) There must be
intention to cause bodily injury, and (2) the bodily injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death.
117
http://www.droitpenaleiljcc.in/PDF/V1I2/8.pdf
173

By application of ‗Eggshell Skull Rule‘ refusal of Ram for blood transfusion is immaterial. It is
subsequent act. It is independent act from act of accused. Cases are decided according to act of
accused. Explanation 2 of section 299 clarifies that accused cannot take defence for resorting of
proper remedies and skillful treatment.
Cause–effect relationship - Raghu stabs Rinku his leg, due to which there is significant blood
loss. Rinku dies three days later due to extreme loss of blood. It fulfills first condition of section
299.
Mens Rea- On the point of mens rea, problem is silent. If there is no mens rea Raghu is not
liable for any offence. Raghu has caused injury in leg and that injury is serious. He has not
caused injury on vital parts. So it can be supposed that he had intention to cause bodily injury.
So Raghu has caused culpable homicide. If child was normal (not suffering from any types of
disease) Raghu shall be liable for causing death. It was sufficient in the ordinary course of nature
to cause death (section 300 thirdly). Raghu will be liable for causing death.
By application of section
Conclusion
From the above discussion it becomes clear that Raghu has committed murder punishable under
section 302 of IPC.
Question 5 (b)(2016)
Discuss the criminal liability of Raghu in the following case -
Raghu is learning shooting. Despite being cautioned against practicing in crowded places, he
practices shooting on a dummy target after placing it in a marketplace during daytime. A shot
from his gun hits a person due to which that person dies.
Answer
In this problem section 300 fourthly and illustration (d) are involved.
Section 300 fourthly
Culpable homicide is murder if the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.
Illustration (d) of section 300
A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is
guilty of murder, although he may not have had a premeditated design to kill any particular
individual.
Raghu was, despite being cautioned against, practicing in crowded places. He knew activity of
his act. He was doing at crowded place. It was all probability to cause death or such bodily injury
as it was likely to cause death. He was doing without any excuse. He was practicing shooting. It
was imminently dangerous. So he has committed murder under section 300(4) which is
punishable under section 302. Illustration (d) of section 300 also suggests such inference.
Conclusion
174
On the basis of above discussion it can be concluded that Raghu has committed murder.
Question 8(b) (2016)

Discuss the criminal liability of Raja in the following case: Raja hits Ramu, his servant with a
stick in his stomach as he suspects him of stealing. As a result of that injury his intestine got
ruptured as it was inflamed due to appendicitis. This causes the death of Ramu.
Answer
In this problem section 299 Explanation 1 and section 304A are involved.
According to Explanation 1 of section 299, accused shall not be allowed to take defence that he
has merely accelerated the death of the person who was already suffering from disorder, disease
or bodily injury. To bring homicide under section 304A following conditions must be fulfilled-
In this problem there was no intention to cause to cause death because Raja hits wih stick. There
was intention to cause bodily injury but by that bodily injury it was not likely to cause death. So
no question arose regarding application of Explanation 1. For application of this Explanation all
condition of section 299 must be fulfilled. Raja negligently Raja hits Ramu, his servant with a
stick in his stomach as he suspects him of stealing. If he had doubt he should have taken recourse
of public servants. No one should be allowed to take laws in his own hands.
Raja has committed offence under section 304A.
Conclusion
From the above discussion it becomes clear that Raja has committed offence under section 304A
of IPC.
175
Annexure VII - Negligence

Contact no. -7985255882
Discuss the criminal liability of Raja in the following case:
Raja, while driving his car in a drunken state at night, kills a man and injures three others who
were sleeping on a pavement.
Answer
In this case sections 299, 304 Part II, and ratio of Alister Anthony Pareira v. State of
Maharashtra ( Jan. 12, 2012 SC) and State Tr. P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda
(BMW Case) (DOJ August 3, 2012) are involved.
Section 299 and 304 Part II.

or (b) Intention to cause bodily injury as is likely to cause death or (c) knowledge that he is
likely by such act to cause death. If either condition is missing, section 299 shall not be
applicable. Section 304 Part II deals for punishment of culpable homicide caused with
knowledge.
Alister Anthony Pareira Vs. State of Maharashtra ( Jan. 12, 2012 SC)
Facts of the Case -
In the night of November 11 -12, 2006, the labourers were asleep in front of their huts on the
pavement. Between 3.45 to 4.00 a.m., that night, Alister Anthony Pareira while driving the car
rashly and negligently with knowledge that people were asleep on footpath rammed the car over
the pavement; caused death of seven persons and injuries to eight persons. At the time of
incident, the appellant was found to have consumed alcohol. A liquor bottle was recovered from
the appellant's car.
Meaning of Knowledge -Knowledge is awareness on the part of the person concerned of the
consequences of his act of omission or commission indicating his state of mind.
Conviction under section 304A - A person, responsible for a reckless or rash or negligent act
that causes death which he had knowledge as a reasonable man that such act was dangerous
enough to lead to some untoward thing and the death was likely to be caused, may be attributed
176
with the knowledge of the consequence and may be fastened with culpability of homicide not
amounting to murder and punishable under section 304 Part II IPC.
Supreme Court observed, ―Drunken driving has become a menace to our society. Everyday
drunken driving results in accidents and several human lives are lost, pedestrians in many of our
cities are not safe. Late night parties among urban elite have now become a way of life followed
by drunken driving. Alcohol leads to loss of coordination, poor judgment, slowing down of
reflexes and distortion of vision.‖
State Tr. P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda (BMW Case) (August 3, 2012, SC)
In this case Sanjeev Nanda who had drunk was driving BMW. Two more persons were in that
car. Just at the corner from where Lodhi Road starts, seven persons including three police men
were standing on the road at about 4.00 a.m. In the meantime, BMW car driven rashly and
negligently came from Nizamuddin side at a high speed and dashed violently against them. The
impact was so great and severe, that they flew in the air and fell on the bonnet and wind screen
of the car. Some of them rolled down and came beneath the car. Some of them started to cry for
help. But three people without helping ran away. Six of them died and one survived. They
managed the Court. Again trial started. Session Court convicted them for section 304 Part II.
High Court converted the punishment into section 304A. Supreme Court held that although there
was no intention to cause death but there was knowledge that driving in unusual speed after
taking drink was possibility to hit someone or something. Supreme Court held that Sanjeev
Nanda had committed offence under section 304 Part II of the IPC.
In this problem Raja drank. Raja, while driving his car in a drunken state at night. He knew that
alcohol leads to loss of coordination, poor judgment, slowing down of reflexes and distortion of
vision. He kills a man and injures three others who were sleeping on a pavement.
Conclusion
After observing the ratio of Alister Anthony Pareira v. State of Maharashtra ( Jan. 12, 2012 SC)
and State Tr. P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda (BMW Case) (August 3, 2012), it
can be concluded that Supreme Court is taking stern action in drunken driving cases. Drunken
driving has become a menace to our society. Everyday drunken driving results in accidents and
several human lives are lost; pedestrians in many of our cities are not safe. From the above
discussion it can be concluded that Raja will be liable for committing culpable homicide with
knowledge(section 299 (c)) which is punishable under section 304 Part II of Indian Penal Code.
In order to prevent the ingress of intruders into his washroom which had been exposed to public
due to the fall of the wall of the washroom in his house and to make such ingress dangerous
enough, Rani fixed up a copper wire across the passage to the washroom. This wire was naked
and uninsulated and carried current from the electric wiring of his house to which it was
connected. Reshma, her neighbour who wanted to take advantage of the situation, came to use
the washroom of Rani, managed to pass into the washroom without contacting the wire but as
she came out her hand happened to touch the live wire. She got a shock as a result of which she
died soon after. The Session Judge before whom Rani was charge sheeted under section 304 IPC
177
held her guilty only of the offence under section 304A and not section 304 IPC which decision
was upheld by the high court in appeal preferred by the State. The State wants to prefer an appeal
to the Supreme Court seeking her conviction under section 304 IPC. You are required to advice
the State as to whether it has a case on merits to support its stand. Discuss.
Answer
This problem is based on section 304A and Cherubin Gregory v. State of Bihar (1963.)
Section 304A
According to Section 304A ―Whoever causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.‖
Section 304A was inserted in 1870 to cover those cases which were caused by either rash or
negligent and not covered by section 299 and 300. Law Commission of India in its 42nd Report
(1971) recommended increasing punishment up to five years. Negligent or rashness driving is
main concern.
Cherubin Gregory v. State of Bihar (July 31, 1963)
Facts - Cherubin Gregory was charged under section 304A of Indian Penal Code for causing the
death of Mst. Madilen . The deceased was residing near the house of the accused. The wall of
the latrine of the house of the deceased had fallen down about a week prior to the day of
occurrence and so the deceased along with others started using the latrine of the accused. The
accused protested against their coming there. The oral warnings however, proved ineffective
and so he fixed up a naked copper wire across the passage leading up to his latrine and that
wire carried current from the electrical wiring of his home to which it was connected. There
was no warning that the wire was live. The deceased managed to pass into the latrine without
contacting the wire but that as she came out her hand happened to touch it and she got a shock as
a result of which she died soon after.
Decision – Supreme Court laid down following important points -
(1) Right of Private Defence – Although he was trespasser. But mere trespass has not been
mentioned under section 103 in which death of person may be caused.
(2) Culpable Homicide- Accused had no intention to cause death. So he was not liable for
culpable homicide.
(3) Duty towards trespasser -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.
178
(4) Rashness - 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 current of that voltage was a ‗rash act‘
done in reckless disregard of the serious consequences to people coming in contact with it.
Cherubin Gregory was liable under section 304A. Appeal was dismissed.
Evaluation of problem and Conclusion- This problem is similar to Cherubin Gregory v. State of
Bihar. In this problem Rani fixed up a copper wire across the passage to the washroom. This
wire was naked and un-insulated and carried current from the electric wiring of his house to
which it was connected. Rani had neither intention nor knowledge to cause death. So she had not
committed offence of culpable homicide (section 299 and section 300). She had committed death
by her rashness act.
Rani fixed up a copper wire across the passage to the washroom. This wire was naked and
uninsulated and carried current from the electric wiring of his house to which it was connected. It
was lethal. It was rash act of Rani. It was done in reckless disregard of the serious consequences
to people coming in contact with it. So she will be liable under section 304A of IPC.
Conclusion
Ratio of decision of Supreme Court in Cherubin Gregory v. State of Bihar is good. So it can be
suggested the State that no need to go in appeal. Her punishment under section 304A is good. It
needs only to implement the 42nd Report of Law Commission of India (1971) in which it was
recommended for increasing punishment up to five years.
Question (3) (b) 2014 (OC)
Accused X was running a bus at a high speed on a dusty and damaged road. While negotiating a
curve with the same speed, without applying breaks, the bus over turned, killing a pedestrian and
injuring some of the passengers. Prosecution is interested to prosecute X under Section 304-A of
IPC. Can they do and will they succeed? Give reasons.
Answer
This problem needs elaboration of section 304A and S.N.Hussain v. State of Andhra Pradesh
(Jan. 5, 1972, S C).
Section 304A
S.N.Hussain v. State of Andhra Pradesh118 (DOJ Jan. 5, 1972)
S.N.Hussain was bus driver. Accident occurred at the time of crossing railway gate. Gate was
open and he was driving in slow speed and due to cold freeze there was less visibility. Goods
118
AIR 1972 SC 685
179
train dashed against bus. Some passenger died and others severally injured. He was charged
under section 304A. He was acquitted.
Supreme Court laid down some important points -
Meaning of Rashness- Rashness consists in hazarding a dangerous or wanton act with the
knowledge that it is so, and that it 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.
Decision – He was acquitted. There were following reasons of his acquittal -
Reason of Acquittal (1) The bus was not driven and could not have been driven fast. (2) 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. (3) The railway track was at a higher
level and the road was lined by babbool trees and, therefore, a passing train coming from a
distance was not visible from the bus. (4) The bus was making a huge noise because it was not
fitted with the silencer. (5) As a cold breeze was blowing some of the window screens of the bus
were lowered for the comfort of the passengers in the bus.(6) 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.
Facts of this case is totally different from S.N.Hussain v. State of Andhra Pradesh (Jan. 5, 1972).
In the case of S.N.Hussain, he was driving in moderate speed and due to fog and open gate he
could not know about coming train. In this problem X was running a bus at a high speed on a
dusty and damaged road. He curved the bus in same speed without applying breaks. He was duly
bound by duty to take care to his passengers and pedestrians. He had committed negligence. He
was well aware about condition of Road. He had killed a pedestrian. He had neither intention nor
knowledge to commit death of pedestrian. So death of pedestrian will not come either under
section 299 or section 300. It will come under section 304A of IPC.
Conclusion
From the above discussion it becomes clear that X had committed an offence punishable under
section 304A. Prosecution will succeed.
Question 1 B (2015)
Raghav Ram, a film actor was returning from a party past midnight when he dozed off and the
car that he was driving ran over two persons sleeping on the pavement killing them and
thereafter rammed into a pole. He was jolted out of sleep by the impact of the accident when his
car hit the pole. Tests confirmed high dosage of alcohol in his blood. Discuss his liability for the
death of those two persons.
Answer
180
In this problem sections 299, 304 Part II and ratio of Emporer v. Dhirajia , Alister Anthony
Pareira Vs. State of Maharashtra (Jan. 12, 2012 SC) State Tr. P.S.Lodhi Colony, New Delhi v.
Sanjeev Nanda (BMW Case) (August 3, 2012, SC) are involved.
Introduction - In the Alister Anthony Pareira Case Supreme Court observed, ―Drunken driving
has become a menace to our society. Everyday drunken driving results in accidents and several
human lives are lost, pedestrians in many of our cities are not safe. Late night parties among
urban elite have now become a way of life followed by drunken driving. Alcohol leads to loss of
coordination, poor judgment, slowing down of reflexes and distortion of vision.‖ Now time has
come to apply stricter law in such cases when lives of other persons are in danger. At the time
enactment of 304 A, during the British era there was no concept of fundamental rights of victims.
Section 299 and Section 304 Part II.
or (b) Intention to cause bodily injury as is likely to cause death or (c) knowledge that he is
likely by such act to cause death. If either condition is missing, section 299 shall not be
applicable. Section 304 Part II deals for punishment of culpable homicide caused with
knowledge.
Section 304 A applies only when homicide is not culpable homicide i.e. section 299 and 300.
Emperor vs. Dhirajia (1940)
Allahabad High Court held that every sane person shall be presumed to have knowledge about
his/ her own conduct.
Alister Anthony Pareira Vs. State of Maharashtra ( Jan. 12, 2012 SC)
Knowledge is awareness on the part of the person concerned of the consequences of his act of
omission or commission indicating his state of mind.
Alister Anthony Pareira and Sanjeev Nanda Case
I have discussed both the cases earlier. Both the cases are related to drunken driving and killing
pedestrian. In both the cases Supreme Court took stern action against convicted them under
section 304 Part II. Supreme Court held that although there was no intention to cause death but
there was knowledge that driving in unusual speed after taking drink was possibility to hit
someone or something.
After observing the ratio of Alister Anthony Pareira v. State of Maharashtra and State Tr.
P.S.Lodhi Colony, New Delhi v. Sanjeev Nanda (BMW Case), it can be concluded that Supreme
Court is taking stern action in drunken driving cases.
Raghav Ram was film actor. He knew consequences of his act even though he took high dosage
of alcohol. After this he was driving on highway. He was well aware of his conduct. The car that
he was driving ran over two persons sleeping on the pavement killing them. He caused death of
pavement knowingly. Knowledge means foresight of consequences. He has committed culpable
homicide punishable under section 304 Part II.
181
Conclusion
After observing above discussed provisions and ratio of cases, it can be inferred that Raghav
Ram had committed culpable homicide punishable under section 304 Pat II of IPC.
Write short notes on the following - Illustrate and explain the concept of transfer of malice under
common law and its place under the Indian Penal Code.
A‘s car hit B's scooter while taking a turn negligently. An argument ensued between A and B. A
slapped B. B left the place immediately and came back after 10 minutes along with his 10 friends
and hit A with lathis and hockey sticks. A died on the spot. B pleaded ‗right of private defence‘.
Will he succeed in availing this defence? Give your answer citing relevant legal provisions and
case law.
182
Annexure VIII (Elements of Crime)

(I have also discussed these topics in other annexures)
Contact no. -7985255882
Question1 (2010)
Explain the essential elements of crime.
Answer
Definition of Crime
According to Blackstone ―Crime is an act committed or omitted in violation of public law either
forbidding or commanding it.‖
According to Stephan ―Crime is an act forbidden by law and which is at the same time revolting
to the moral sentiments of the society.‖
Elements of Crime
There are four elements of crime namely; (1) Human being (2) Mens Rea / Guilty Mind (3)
Actus reus / Prohibited act, and (4) Injury to society or human being.
(1) Human being – Only Human being can commit crime under IPC. In European Countries
animals were also punished for committing crime during medieval era. In Hindu criminal
jurisprudence did not provide for trail and punishment of animals or inanimate objects. Only a
human being under a legal obligation and capable of being punished can be the proper subject of
criminal law. It means a human being must have a body. Legal person like company or idol will
not come under human being.
Mens Rea – Mens Rea means guilty mind. It is denoted with intention, knowledge, negligence,
rashness, wrongful gain or wrongful loss, voluntarily or reason to believe, mala fides etc. Actus
non facit reum, nisi mens sit rea means the act itself does not make a man guilty, unless the mind
is also guilty. Chapter IV (General Exception) of IPC is itself recognition of requirement of mens
rea.There are certain cases in which human being can be punished even without guilty mind.
Such types of offences come under the principle of strict liability. For examples kidnapping,
bigamy, economic offences (M.H. George Case) etc.
(3) Actus reus / Prohibited act- According to Kenny ‗actus reus is such result of human
conduct as the law seeks to prevent. Professor Glanville Williams has given wider meaning of
actus reus. According to him actus reus means the whole definition of crime with the exception
of mental elements. Actus reus includes negative as well as positive elements. According to
section 32 of IPC ‗act‘ includes omission. According to section 33‗act also includes series of
acts. Mens rea itself is not sufficient to constitute offence. Guilty mind cannot be identified
unless some overt act is done.
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(4) Injury – According to section 44 of IPC the word ―injury‖ denotes any harm whatever
illegally caused to any person, in body, mind, reputation or property. In certain situation person
is punished even though he has not committed injury to another person. These are the case of
inchoate crime for example abetment, conspiracy and attempt.
Question1 (2011)
Explain the common law principle of ―actus non facit reum, nisi mens sit rea‖ with the help of
decided case. What are the exceptions, if any, to this principle?
Answer
Actus non facit reum , nisi mens sit rea
essential ingredients of crime, namely,(1) Human Being (2) Guilty Mind (3) Prohibited act, and
(4) An injury to human being or society. This maxim denotes that guilty mind and prohibited act
both are part and parcel of crime. In the case of Nathulal v. State of Madhya Pradesh (1965)
Justice Subba Rao observed, ―Mens rea is an essential ingredient of a criminal offence.
Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction
adopted in England and also accepted in India to construe a statutory provision creating an
offence in conformity with the common law rather than against it unless the statute expressly or
by necessary implication excluded mens rea.‖ Justice Subba Rao also delivered same view in
minority opinion of M.H.George Case (1964).
It is rule that without guilty mind, crime cannot be committed. There are also certain exceptions.
If maxim applies – In case of application of this maxim, accused person would be benefited and
there would be utmost probability of to win the case because prosecutor would be bound to prove
prohibited act and guilty mind.
In the case of Brend v. Wood (1946) Chief Justice Goddard observed the benefit of application of
this maxim and said that application of this maxim is of the utmost importance for the protection
of the liberty of the subjects (citizens).
If maxim does not apply - It would be very easy for prosecutor to win the case because he would
be bound to prove only one condition i.e. prohibited act. To prove guilt mind always very
difficult. It in such case there would be a lot of harm for accused.
Schools of Mens Rea (Interpretation of statutes)

There are two schools regarding interpretation of statutes in context of mens rea. These Schools
are (1) Presumption of existence of Mens Rea, and (2) Presumption of absence of Mens Rea.
Both presumptions are rebuttable.
(1) Presumption of Requirement of Mens Rea- In every Statute mens rea should be treated as
part of crime unless contrary is shown. Existence of Mens Rea is presumed. In case of Q. v.
Tolson court acquitted lady on the ground of her innocent. She got marriage after full inquiry.
But Court also accepted that by statute mens rea may be excluded. This theory was led by Justice
Wright in case of Sherras v. De Rutzen (1895). In case of Sherras v. De Rutzen (1895) Justice
Wright said ―In every statute mens rea is to be implied unless contrary is shown‖. In case of
Brend v. Wood (1946), Justice Goddard, ―The general rule applicable to criminal case is actus
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non facit reum nisi mens sit rea…It is of the of the utmost importance for the protection of the
liberty of the subject that a court should always bear in mind that, unless the statute, either
clearly or by necessary implication rules out mens rea as a constituent part of a crime, a
defendant should not be found guilty of an offence against the criminal law unless he has got a
guilty mind”. Principle of mens rea was revived by Justice Goddard. In the case of Nathu Lal v.
State of M.P. (1965) Supreme Court acquitted the accused on the basis of absence of mens rea.
mentioned. On the basis of this theory Justice Blackburn decided the R.v. Prince (1875) and he
convicted the accused who had no guilty mind. Accused believed that the girl was 18 year while
real age of girl was 14 year. At that time taking of girl below the age of 16 years out of keeping
of lawful guardian was crime. Appearance of Girl was age of 18 years. Court denied to accept
Actus non facit reum , nisi mens sit rea (Common Law Doctrine). This theory was led by Justice
Kennedy in Hobbes v. Winchester Corporation (1910). In the case of State of Maharashtra v.
M.H.George (1964) Supreme Court convicted the accused. Justice K.Subba Rao delivered
minority opinion.
Exceptions of Actus non facit reum, nisi mens sit rea
Sometimes offence is constituted even without guilty mind it is called strict liability. Judges
applies this principle only when statutory provisions are silent on the intention of accused.
Application and non-application of this maxim depends upon sound logic and reasonable
discretion of judges.There are certain exceptions of Actus non facit reum, nisi mens sit rea.
These exceptions are following -
(1) Sale, etc., of obscene books(Section 292 of IPC) – Section 292 deals sale, etc., of obscene
books, etc. In the case of Ranjit D.Udeshi v. State of Maharashtra (August 19, 1964) Supreme
Court convicted seller under section 292 for selling Lady Chatterley‘s Lover book, although he
had no knowledge of this book. The Court held that in section 292 of IPC unlike several other
sections did not contain the words knowingly, or negligently etc. ‗Principle of Strict Liability‘
was applied.
(2) Sexual Harassment (Section 354A of IPC) - Sexual Harassment has been provided under
section 354A which was inserted by Criminal Law (Amendment) Act, 2013. In this section
nothing has been mentioned about guilty mind of accused. SO in this case principle of strict
liability will be applicable. Section 354A deals about sexual harassment.
(3) Kidnapping from lawful guardianship (Section 361 of IPC) - Section 361 of IPC deals
kidnapping from lawful guardianship. Mental condition of accused is immaterial. Whether
accused is doing in good faith or not wholly irrelevant.
In the case of R. v. Prince (1875) Justice Blackburn said that section 55 of the Offences Against
the Persons Act, 1861 had not mention about mens rea . He denied applying the maxim Actus
knowledge so the Court could not insert requirement of intention or knowledge only on the basis
of maxim. So Prince was convicted even without guilty mind. Principle of strict liability was
followed.
(4) Bigamy (Section 494 of IPC) - Whoever, having a husband or wife living, marries in any
case in which such marriage is void by reason of its taking place during the life of such husband
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or wife, shall be punished with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.
(5) Economic offences – Economic offences affect not only develop of nation and life of
citizens but also integrity and sovereignty of nation. In the case of State of Maharashtra v.
M.H.George (1964) majority opinion of Supreme Court observed, ―The Foreign Exchange
Regulation Act, 1947 is designed to safeguarding and conserving foreign exchange which is
essential to the economic life of a developing country. The provisions have therefore to be
stringent and so framed as to prevent unauthorized and unregulated transactions which might
upset the scheme underlying the controls; and in a larger context, the penal provisions are aimed
at eliminating smuggling which is a concomitant of controls over the free movement of goods or
currencies.‖ The Court further said that 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 of mens rea were to be read into the plain reading of the enactment. In this case
―Principle of strict liability was applied and accused was convicted.
(6) Public Health –
In the case of Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Others (Oct. 31, 1973 S C)
Supreme Court said that It is trite law (Trite law means laws that are obvious or common
knowledge) that in food offences strict liability is the rule not merely under the Indian Law but
the entire world over. Nothing more than the actus reus is needed where, regulation of private
activity in vulnerable areas like public health is intended. Social defence reasonably overpowers
individual freedom to injure, in special situations of strict liability. Section 7 of Prevention of
Food Adulteration Act, 1954 casts an absolute obligation regardless of scienter, bad faith and
mens rea. If you have sold any article of food contrary to law, you are guilty. The law denies the
right of a dealer to rob the, health of a supari consumer.
State of M.P. v. Narayan Singh (25 July 1989) -Essential Commodities Act, 1955 were amended
in 1967 to nullify the judgment of Nathulal v.State of Madhya Pradesh (1965). 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. Principle of strict liability was applied in the case of State of M.P. v. Narayan
Singh (1989).
American Jurisprudence
Jurisprudence of application of strict liability in adulterated food has been explained in American
Jurisprudence (2d, Vol. 35, p. 864) which are following ―The distribution of impure or
adulterated food for consumption is an act perilous to human life and health, hence, a dangerous
act, and cannot be made innocent and harmless by the want of knowledge or by the good faith of
the seller; it is the act itself, not the intent, that determines the guilt, and the actual harm to the
public is the same in one case as in the other. Thus, the seller of food is under the duty of
ascertaining at his peril whether the article of food conforms to the standard fixed by statute or
ordinance, unless such statutes or ordinances, expressly or by implication, make intent an
element of the offence.‖
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Question1 (2013) & Question1 (2015)
―The nature of mens rea that will be implied in a statute creating an offence depends upon the
object of the Act and provisions thereof.‖ Discuss with the help of decided cases.
Answer
Actus non facit reum, nisi mens sit rea is accepted by all over world subject to statutory
provisions. Question arises when statute is silent about guilty mind of accused whether mens rea
should be treated part of statute or not. It has been observed that in certain cases Judges has
incorporated it as a part of statute and in certain cases not. For example in the case of
M.H.George majority opinion did not borrow this maxim. Justification was given by majority
opinion was that object of FERA was prevent economic condition of country.
Lord Simonds (Halsbury‘s Laws of England)
In Halsbury‘s Laws of England written by Lord Simonds (3rd edn. Vol. 10, in para, 508, at p.
273,) the following passage appears: ―A statutory crime may or may not contain an express
definition of the necessary state of mind. A statute may require a specific intention, malice,
knowledge, willfulness or recklessness. On the other hand, it may be silent as to any requirement
of mens rea, and in such a case in order to determine whether or not mens rea is an essential
element of the offence, it is necessary to look at the objects and terms of the statute.‖
Archbold (Criminal Pleading, Evidence and Practice)
Archbold in his book on ―Criminal Pleading, Evidence and Practice‖, 35th edn., says much to the
same effect at p. 24 thus: ―It has always been a principle of the common law that mens rea is an
essential element in the commission of any criminal offence against the common law In the case
of statutory offences it depends on the effect of the statute...... There is a presumption that mens
era is an essential ingredient in a statutory offence, but this presumption is liable to be displaced
either by the works of the statute creating the offence or by the subject matter with which it
deals.‖
Sherras v. De Rutzen (1895)
Wright J., observed ―There is a presumption that mens rea, an evil intention, or a knowledge of
the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is
liable to be displaced either by the words of the statute creating the offence or by the subject-
matter with which it deals, and both must be considered.‖
The Indo-China Steam Navigation Co. Ltd., v. Jasjit Singh (Feb. 03, 1964 Supreme Court)
The Indo-China Steam Navigation Co. Ltd., which carries on the business of carriage of goods
and passengers by sea, owns a fleet of ships, and has been carrying on its business for over 80
years. One of he routes plied by its ships in the Calcutta - Japan-Calcutta route. 'Me vessel
―Eastern Saga‖ arrived at Calcutta on October 29, 1957. On a search it was found that a hole was
covered with a piece of wood and over painted and when the hole was opened a large quantity of
gold in bars was discovered. Gold was confiscated.
This Court in construing the scheme and object of the Sea Customs Act came to the conclusion
that mens rea was no a necessary ingredient of the offence, as, if that was so, the statute would
become a dead-letter. That decision was given on the basis of the clear object of the statute and
on a construction of the provisions of that statute which implemented the said object.
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Supreme Court said, ―The intention of the legislature in providing for the prohibition prescribed
by Section 52A of Sea Custom Act, 1878, is, inter alia, to put an end of illegal smuggling which
has the effect of disturbing very rudely the national economy of the country. It is well-known, for
example, that smuggling of gold has become a serious problem in this country and operations of
smuggling are conducted by operators who work on an international basis. The persons who
actually carry out the physical part of smuggling gold by one means or another are generally no
more than agents and presumably, behind them stands a well-knit organisation which for motives
of profit-making, undertakes this activity.‖
State of Maharashtra v. M.H. George (1964 SC)
Supreme Court observed that 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 of mens
rea were to be read into section 8 (1) or section 23(1-A) of the Act qualifying the plain 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.
Language of the enactment, the object and subject-matter of the statute and the nature and
character of the act ought to be considered.
Nathulal v. State of Madhya Pradesh (1965)
Justice Subba Rao observed, ―Mens rea by necessary implication may be excluded from a statute
only where it is absolutely clear that the implementation of the object of the statute would
otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an
offence depends on the object of the Act and the provisions thereof.‖
Question1 (a) (2014 B)
The fundamental principal of Criminal Liability is that, ―there must be wrongful act combined
with wrongful intention‖. Elaborate.
Answer
With the help of above case this question can be solved.
Question1 (a) (Dec. 2015)
Explain the rational behind punishing a person guilty of strict liability offence in the absence of
guilty mind.
Answer
Rationality behind application of strict liability
Answer of this question is based on conflict between individual rights vs. interest of public at
large. Strict liability is imposed that other person must, in certain cases, take extra care.
Selling of obscene books is dangerous for development of children and nation. It creates lust and
lust creates environment for commission of crime. In case of Ranjit D.Udeshi v. State of
Maharashtra section 292 was interpreted and mens rea was ignored.
For protection of right of guardian application of mens rea is not necessary. For example R. v.
Prince (1875) and section 361 of IPC.
It is necessary for protection of institution of family and health of family. For example in case of
bigamy mens rea is not necessary
Economic offences affect not only develop of nation and life of citizens but also integrity and
sovereignty of nation. In the case of State of Maharashtra v. M.H.George (1964) majority
opinion of Supreme Court observed, ―The Foreign Exchange Regulation Act, 1947 is designed to
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safeguarding and conserving foreign exchange which is essential to the economic life of a
developing country. The provisions have therefore to be stringent and so framed as to prevent
unauthorized and unregulated transactions which might upset the scheme underlying the
controls; and in a larger context, the penal provisions are aimed at eliminating smuggling which
is a concomitant of controls over the free movement of goods or currencies.‖ It is necessary for
the prevention of smuggling would be entirely frustrated if a condition of mens rea were to be
read into the plain reading of the enactment.
In the case of Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Others (1973) Supreme
Court said nothing more than the actus reus is needed where, regulation of private activity in
vulnerable areas like public health is intended. Social defence reasonably overpowers individual
freedom to injure, in special situations of strict liability. If you have sold any article of food
contrary to law, you are guilty. The law denies the right of a dealer to rob the health of other.
Jurisprudence of application of strict liability in adulterated food has been explained in American
Jurisprudence which are following ―The distribution of impure or adulterated food for
consumption is an act perilous to human life and health, hence, a dangerous act, and cannot be
made innocent and harmless by the want of knowledge or by the good faith of the seller; it is the
act itself, not the intent, that determines the guilt, and the actual harm to the public is the same in
one case as in the other. Thus, the seller of food is under the duty of ascertaining at his peril
whether the article of food conforms to the standard fixed by statute or ordinance, unless such
statutes or ordinances, expressly or by implication, make intent an element of the offence.‖
Question1 (2015)
The exclusion of Mens rea by necessary implication depends on the object and provisions of
statute. Discuss the Mens rea under strict liability.
Answer
Already discussed
Question1 (a) (2016)

Mens Rea is the very cornerstone of criminal jurisprudence.
Question 1 (2017)
In State of Maharashtra v. M.H. George, AIR 1965 SC 722 the majority did not hold mens rea to
be an essential ingredient of an offence under section 23(1-A) of the FERA, 1947. Whereas
Justice Subba Rao in his dissenting opinion held so. Discuss and State the reasons for their
difference of opinion. Which opinion do you agree with and why?
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IPC – (1) UGC NET 2018 Dec. and (2) UP (J) (Pre) 2018
Contact no. -7985255882
Contents
UGC NET 2018 Dec. ................................................................................................................................ 189
UP (J) (Pre.) 2018 (Booklet B) ................................................................................................................. 191
UGC NET (July 2018) .............................................................................................................................. 194
UGC NET (Nov. 2017) ............................................................................................................................. 197
UP (Higher Judiciary) Pre. Exam 2018 .................................................................................................... 197
UGC NET 2018 Dec.
Question 13 - ‗A‘ enters into the house of ‗B‘ with the intention to commit theft. ‗B‘ along with
other members of the family surrounded and attack ‗A‘ with wooden sticks. ‗A‘ finding his life
in danger fires with pistol causing death to ‗B‘. Here ‗A‘ has committed :
Option - (1) Culpable homicide not amounting to murder (2) Murder (3) Theft (4) No offence as
he acted in self –defence.
Answer - Murder. Right of private defence is not available against right of private defence. It is
also not available for stage manager.
Question 14 – Match the items of List I (Name of Cases) with the items of List II (Offence) and
choose the correct answer from the code given below –
List I List II
(a) Vishwanath vs. State of U.P. (i) Kidnapping
(b) State of Punjab vs. Major Singh (ii) Private defence
(c) S.Varadarajan vs. State of Madras (iii) Modesty of women
(d) Amar Singh vs. State of Rajasthan (iv) Dowry Death
Options
(1) (a)ii (b) iii (c) iv (d) i
(2) (a) iv(b) ii (c) i (d) iii
(3) (a) ii(b) iii (c) i (d)iv
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(4) (a)iv (b) ii (c) iii (d) i

Answer – (3) (a) ii(b) iii (c) i (d)iv
List I List II
(a) Vishwanath vs. State of U.P. (ii) Private defence
(b) State of Punjab vs. Major Singh (iii) Modesty of women
(c) S.Varadarajan vs. State of Madras (i) Kidnapping
(d) Amar Singh vs. State of Rajasthan (iv) Dowry Death
Question 41 – Who among the following defined crime as ―an act committed or omitted in
violation of a public law either forbidding or commanding it‖?
Options – (1) Kenny (2) Russel (3) J.F. Stephen (4) Blackstone
Answer - (4) Blackstone. (It was asked in Nov. 2017 NET also).
Question 54 – A, a police office, tortures B to induce him to point out where certain stolen
property is deposited. Here A is guilty of an offence under –
Options- (1) S. 330 (2) S. 331(3) S.332 (4)S. 333 IPC
Answer – Section 330 (Illustration (b)).
Question 62 - A, a public officer, is authorized by a warrant from a Court of Justice to
apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z,
and thereby intentionally causes A to apprehend C. In this case ‗B‘ abets the apprehension of ‗C‘
by-
Option - (1) Aiding and instigation (2) Conspiracy only, (3) Aiding only (4) Instigation only.
Answer – (4). Section 107, Explanation 1, Illustration.
Question – 69 - Match the items of List I with the items of List II and choose the correct answer
from the code given below –
List 1 (Provisions for) List II (Section of IPC)
General Explanation of life Section 45
Act of Judge when acting judicially Section 52
Act of child under seven years of age Section 77
Explanation of ‗Good Faith‘ Section 82
Answer –
List 1 (Provisions for) List II (Section of IPC)
General Explanation of life Section 45
Act of Judge when acting judicially Section 77
Act of child under seven years of age Section 82
Explanation of ‗Good Faith‘ Section 52
Question 71 – ―The right of private defence of the body commences as soon as a reasonable
apprehension of danger to the body arises and continues so long as such apprehension of danger
continues.‖ This observation was made by the Supreme Court in :
Option (1) Ranga Billa vs. Union of India (2) State of Punjab vs. Nanak Chand (3) Deo Narain
vs. State of U.P. (4) Ram Swaroop vs. State of U.P.
Answer – (3)Deo Narain vs. State of U.P. 1972.
Question 77 -Which theory of punishment is based on the humanistic principle that even if an
offender commits a crime, he does not cease to be a human being?
Option (1) Deterrent Theory (2) Preventive theory (3) Retributive theory (4) Reformative theory
Answer - (4) Reformative theory.
191
Question 78 – ‗A‘ a woman knowing that his husband ‗B‘ has recently committed dacoity,
harbours him with the intention of screening him from punishment. In this case ‗A‘ is :
Option - (1) guilty for harbouring as well as screening (2) guilty for harbouring only (3) Not
guilty (4) guilty for screening only.
Answer - (3) Not guilty. Section 212, Exception.
Question 84
Under which of the following situations would Indian Courts have jurisdiction?
(1) Crime committed by an Indian in a foreign country.
(2) Crime committed by a foreigner in India
(3) Crime committed by a person on an Indian ship
Option – (1) 1 and 3 (2) 1 and 2 (3) 2 and 3 (4) All1, 2 and 3.
Answer – (4) All -1, 2 and 3. In all cases Indian Courts have jurisdiction.
(1) Crime committed by an Indian in a foreign country (Section 4(1)).
(2) Crime committed by a foreigner in India (section 2- The phrase ‗every person‘ has a wider
connotation. It includes not only citizens, but also non-citizens and even foreigners visiting
India.)
(3) Crime committed by a person on an Indian ship (Section 4(2)).
Section 2 deals intra-territorial jurisdiction while section 3 and section 4 deal extra-territorial
jurisdiction.
Question – 96 - Match the items of List I with the items of List II and choose the correct answer
(a) Ex turpi causa non oriture (i) Immediate cause
(b) de minimis non curat lex (ii) From an immoral cause no action arises
(c) Causa causans (iii) From day to day
(d) de die in diem (iv) Law does not concern with trifles
Answer –
(a) Ex turpi causa non oriture (ii) From an immoral cause no action arises
(b) De minimis non curat lex (iv) Law does not concern with trifles (Section 95)
(c) Causa causans (i) Immediate cause (Section 299
(d) De die in diem (iii) From day to day
UP (J) (Pre.) 2018 (Booklet B)
Question 37 – The Criminal Law (Amendment) Act, 2018 comes into force -
(a) 11 August, 2018 (b) 21 April, 2018, (c) 1 Sep. 2018 (d) 1 July, 2018
Answer - (b) 21 April, 2018.
Explanation -According to Section 1(2) of The Criminal Law (Amendment) Act, 2018, it shall
be deemed to have come into force on the 21st day of April, 2018.
Question 38- In case of criminal misappropriation subsequent intention must be –
192
(a) Fraudulent (b) Dishonest (c) Innocent (d) Illegal.

Answer -(b) Dishonest.
Explanation - Section 403 deals about dishonest misappropriation of property.
Question 39- The ‗Doctrine of joint liability‘ as envisaged by section 34 of the IPC is based on
the decision of the following –
(a) Barendra Kumar Ghosh v. Emperor(b) Mulcahy v. R ( c) Pandurang v. State of Hyderabad
(d) Reg v. Cruise
Answer - (d) Reg v. Cruise. Section 34 is based on the ratio of decision of Reg v. Cruise (1838).
In this case Police Constable went to arrest ‗A‘ at his house. B C & D came and gave him a
blow. In this case the Court evolved the Doctrine of Joint liability.
Explanation - (a) Barendra Kumar Ghosh v. Emperor (1924) (b) Mulcahy v. R (1868) ( c)
Pandurang v. State of Hyderabad (1954) (d) Reg v. Cruise (1838)
Question 40- Which of the following combinations are correctly matched ?
(1) Harbour – Section 51A (2) Wrongful loss – Section 23 (3) Gang Rape of woman under 12
Years of age Section 375DB (4) Gang Rape - Section 375D.
Option – (a) 1, 3 & 4(b) 1, 2&3(c) 2,3&4 (d) 1,2&4.
Answer - (c) 2,3&4. Harbour – Section 52A rather than Section 51A.
Question 41- Which of the following is not correctly matched ?
(a) Navtej Singh Johar v. Union of India – Section 498A
(b) K.N. Mehra v. State of Rajasthan- Section 378
(c) Niharendu Datt Majumdar v. Emperor- Section 124A
(d) State of Haryana vs. Raja Ram – Section 361
Answer - (a) Navtej Singh Joharv. Union of India – Section 498A.
Explanation - Navtej Singh Joharv. Union of India is a leading case on section 377 in which
Supreme Court partially struck down section 377. This was decided by Constitutional bench on
September 6, 2018.
Question 42 – Consider the following cases and arrange them in chronological order –
(1) W.Kalyani v. State Tr.Insp.Of Police & Anr (2) Yusuf Abdul Aziz v. The State of Bombay
(3) Joseph Shine v. Union of India (4) V. Rewathi v. Union of India.
Code: (a) 4,1, 2,3 (b) 2,4,1,3 (c) 1, 3,4,2 (d) 3,2,1,4.
Answer –(b) 2,4,1,3
(2) Yusuf Abdul Aziz v. The State of Bombay (1954)
(4) V. Rewathi v. Union of India 1998
(1) W.Kalyani v. State Tr.Insp.Of Police & Anr (2011)
(3) Joseph Shine v. Union of India (2018).
All cases are related to section 497 of IPC. In Joseph Shine v. Union of India Supreme Court
declared section 497 as unconstitutional. In this case all previous cases were also discussed.
Question 43 – In which of the following cases, the Supreme Court has remarked that ‗
husband is not the master of his wife‘?
(a) Joseph Shine v. Union of India (b) Sarla Mudgal, President, Kalyani v. Union of India (c)
Lily Thomas v. UOI (d) Kailash Singh v. Priti Pratihar.
Answer (a) Joseph Shine v. Union of India – Hon‘ble Dipak Misra, CJI, ―A woman cannot be
asked to think as a man or as how the society desires. Such a thought is abominable, for it
193
slaughters her core identity. And, it is time to say that a husband is not the master. Equality is
the governing parameter.‖
Question 44 – ‗A‘ with intent to murder, administered a fatal dose of poison to ‗Z‘, and then
while ‗Z‘ was still alive, a stranger ‗B‘, without A‘s knowledge attacked ‗Z‘ and shot him dead.
(a) ‗A‘and ‗B‘ both would be guilty of murder (b) ‗A‘ would be guilty of culpable homicide and
‗B‘would be guilty of murder (c) ‗A‘ would be guilty of attempt to murder and ‗B‘would be
guilty of murder (d) ‗A‘ would be guilty of instigating ‗B‘ to commit murder and ‗B‘would be
guilty of murder.
Answer - (c) ‗A‘ would be guilty of attempt to murder and ‗B‘would be guilty of murder.
Explanation – For murder two things must be proved namely; (1) Causa causans (Immediate
cause) and (2) guilty mind. In this problem ‗A‘ had guilty mind and he was knowing that by that
dose it was likely to cause death. But reason of death of ‗Z‘ was not poison. So there was
absence of Causa causans of death. So ‗A‘ would be liable for attempt to murder.
‗B‘ would be liable for murder because he shot ‗Z‘ with the intention to cause death. ‗A‘ and ‗B‘
both were stranger to each other. So no question arises regarding joint liability.
Question 45 – A, a police-officer, tortures Z in order to induce Z to confess that he committed a
crime. A is guilty of an offence under –
(a) Section 325 IPC (b) Section 326 IPC (c) Section 330 IPC (d) Section 331 IPC
Answer - (c) Section 330 IPC. Explanation Section 330, Illustration (a).
Question 46 – ‗A‘ who was entrusted by ‗B‘ with certain blocks for printing a catalogue, prints
catalogue of rival‘s firm with the same block. ‗A‘ is guilty of
(a) Criminal breach of trust (b) Criminal misappropriation (c) Cheating (d) Theft
Answer - (a) Criminal breach of trust
Question 47 – Disclosure of identity of a victim of rape is punishable under
(a) Section 376D, IPC (b) Section 376 E, IPC (c) Section 228, IPC (d) Section 228A, IPC.
Answer - (d) Section 228A, IPC.
Question 48- No right of private defence is available against the offence of
(a) Criminal breach of trust (b) Theft (c) Robbery (d) Criminal Trespass.
Answer -(a) Criminal breach of trust. Explanation- Section 97 Secondly.
Question 49- Match the items of List I with the items of List II and choose the correct answer
List I List II
(a) Delivery of property (1) Criminal breach of trust

(b) Taking of property (2) Criminal misappropriation of property
(c)Entrustment of property (3) Theft
(d) Convertibility of property got innocently to one‘s own use (4) Extortion
Code – (a) 4,3,1,2 (b) 3,4,1,2 (c) 4,2,3,1(d) 3,1,2,4
Answer - (a) 4,3,1,2
(a) Delivery of property (4) Extortion

(b) Taking of property (3) Theft
(c)Entrustment of property (1) Criminal breach of trust
194
(d) Convertibility of property got innocently to one‘s own use(2) Criminal misappropriation of
property
Question 50 - Voyeurism is defined under which section of IPC-
(a) Section 354 A (b) Section 354 B (c) Section 354C (d) Section 355.
Answer - (c) Section 354C.
Question 51 – In which case, the Supreme Court unanimously ruled that individual autonomy
and intimacy and identity are protected under fundamental rights?
(a) Navtej Singh Johar v. Union of India
(b) Suresh Kumar Kaushal vs. Naz Foundation
(c) Castle Rock v. Gonzales
(d) None of the above
Answer - (a) Navtej Singh Johar v. Union of India.
UGC NET (July 2018)
Question 58. Point out the correct statement :

(1) Crime is necessarily an immoral act.
(2) Crime is necessarily an anti-social act.
(3) Crime is necessarily an anti-communal act.
(4) Crime is necessarily an anti-religious act.
Answer – (2)Crime is necessarily an anti-social act.
Question 59. Four accused with common intention to kill, shot one B in the bona fide belief that
B was A. In this case :
(1) None of them is liable for the offence of murder.
(2) All accused are guilty of causing death.
(3) Section 34 of Indian Penal Code does not apply.
(4) All accused are guilty of causing death without invoking Section 34.
Answer - (2) All accused are guilty of causing death.
Question 60. Under Section 65 of Indian Penal Code, 1860, sentence of imprisonment for non-
payment of fine shall be limited to :
(1) One-half of the maximum term of imprisonment fixed for the offence.
(2) One-third of the maximum term of imprisonment fixed for the offence.
(3) One-fourth of the maximum term of imprisonment fixed for the offence.
(4) One-fifth of the maximum term of imprisonment fixed for the offence.
Answer - (3) One-fourth of the maximum term of imprisonment fixed for the offence.
195
Question 61. Under which of the following sections of the Indian Penal Code, 1860, promoting
enmity between different groups on grounds of religion, race, place of birth, residence, language
etc. and doing acts prejudicial to maintenance of harmony is dealt with ?
(1) Section 153 (2) Section 153-A (3) Section 153-AA (4) Section 153-B
Answer - (2) Section 153-A
Question 62. A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers
from the wound. Here A is guilty of :
(1) Instigating B to commit murder
(2) Instigating B to commit attempt to murder
(3) Instigating B to commit grievous hurt
(4) No offence
Answer - (1) Instigating B to commit murder . Section 108, Explanation 2, Illustration (b).
Question 63. Under which of the following provisions of the Indian Penal Code, 1860, an assault
or criminal force used in attempting to commit theft of property is punishable ?
(1) Section 356 (2) Section 378 (3) Section 379 (4) Section 384
Answer -(1) Section 356
Question 64. ‗X‘ gives grave and sudden provocation to ‗Y‘. ‗Y‘ on this provocation, fires a
pistol at ‗X‘, neither intending nor knowing himself to be likely to kill ‗Z‘, who is near him, but
out of sight. ‗Y‘ kills ‗Z‘. Here ‗Y‘ has committed :
(1) Death by negligence (2) Murder (3) Culpable homicide not amounting to murder (4) No
offence.
Answer - (3) Culpable homicide not amounting to murder. Section 300, Exception 1, Illustration
(b).
Question 65. Match List-I with List-II and give the correct answer by using the code given
below :
List - I List-II
(a) Dishonest taking of property (i) Criminal breach of Trust
(b) Dishonestly inducing any person to deliver property (ii) Extortion
(c) Entrustment of property (iii) Criminal Misappropriation
(d) Conversion of property (iv) Theft
Code :
(a) (b) (c) (d)
(1) (i) (ii) (iii) (iv)
(2) (iv) (ii) (i) (iii)
(3) (iii) (iv) (ii) (i)
(4) (ii) (iii) (i) (iv)
Answer - (2) (iv) (ii) (i) (iii)
List - I List-II
(a) Dishonest taking of property (iv) Theft
(b) Dishonestly inducing any person to deliver property (ii) Extortion
(c) Entrustment of property (i) Criminal breach of Trust
(d) Conversion of property (iii) Criminal Misappropriation
196
Question 66. Read Assertion (A) and Reason (R) and give the correct answer by using the code
given below :
Assertion (A) : Nothing is an offence which is done by a person who, at the time of doing it, by
reason of unsoundness of mind, is incapable of knowing the exact nature of the act.
Reason (R) : Mistake of fact is a good defence and mistake of law is no defence.
Code :
(1) Both (A) and (R) are true, and (R) is the correct explanation of (A).
(2) Both (A) and (R) are true, but (R) is not the correct explanation of (A).
(3) (A) is true but (R) is false.
(4) (A) is false but (R) is true.
Answer - (2) Both (A) and (R) are true, but (R) is not the correct explanation of (A). Person of
unsound mind always gets benefits whether he has done under mistake of facts or laws.
below:
List - I List-II
(a) Mehboob Shah Vs. Emperor (i) Mens rea

(b) State of Maharashtra Vs. M.H. George (ii) Intoxication
(c) Director of Public Prosecutions Vs. Beard (iii) Common Intention
(d) R.V. Dudley Vs. Stephens (iv) Necessity
Code :
(a) (b) (c) (d)
(1) (i) (ii) (iii) (iv)
(2) (ii) (iv) (i) (iii)
(3) (iii) (i) (ii) (iv)
(4) (iv) (ii) (iii) (i)
Answer -(3) (iii) (i) (ii) (iv)
List - I List-II
(a) Mehboob Shah Vs. Emperor (iii) Common Intention
(b) State of Maharashtra Vs. M.H. George (i) Mens rea
(c) Director of Public Prosecutions Vs. Beard (ii) Intoxication
(d) R.V. Dudley Vs. Stephens (iv) Necessity
below :
List – I(Provision for) List-II (Sections of I.P.C.)

(a) Punishment for causing death or resulting
state of victim in persistent vegetative state of victim (i) Section 376-D
(b) Sexual intercourse by husband upon his wife
during separation (ii) Section 376-B
197
(c) Sexual intercourse by a person in authority (iii) Section 376-A

(d) Gang rape (iv) Section 376-C
Code:
(a) (b) (c) (d)
(1) (i) (ii) (iii) (iv)
(2) (ii) (iv) (i) (iii)
(3) (iii) (ii) (iv) (i)
(4) (iv) (i) (iii) (ii)
Answer -(3) (iii) (ii) (iv) (i)
List – I(Provision for) List-II (Sections of I.P.C.)
(a) Punishment for causing death or resulting
state of victim in persistent vegetative state of victim (iii) Section 376-A
(b) Sexual intercourse by husband upon his wife
during separation (ii) Section 376-B
(c) Sexual intercourse by a person in authority (iv) Section 376-C
(d) Gang rape (i) Section 376-D
UGC NET (Nov. 2017)
Question 27. The right to private defence against an act done by a public servant is not available:
(1) When it is discharged in good faith
(2) When it is attempted to be done by him
(3) When it was done while he was not in his office
(4) When it is strictly to be justifiable by law
Answer (1) When it is discharged in good faith. Explanation – Section 99 of IPC.
Section 99 (Part 1) -There is no right of private defence against an act which does not reasonably
cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public
servant acting in good faith under colour of his office, though that act, may not be strictly
justifiable by law.
UP (Higher Judiciary) Pre. Exam 2018

Question no. 28 – The Criminal Law (Amendment) Act, 2013 has four new Sections after
section 354 of the Penal Code. One of the newly inserted sections deals with Voyeurism. Mark
that section: (A) Section 354A (B) Section 354B (C) Section 354C (D) Section 354 D.
Answer -(C) Section 354C
Question no. 45 – A police officer has received a sum of Rs. 5000/-against fine from the persons
violating traffic rules, instead of depositing the fine money with State Treasury, he utilized the
198
same for his personal use. What offence under Indian Penal Code, the police officer has
committed:
(A) Criminal Breach of Trust (B) Mischief (C) Cheating the Government (D) None of the above.
Answer - (A) Criminal Breach of Trust. Explanation – Section 403. Silmilar to illustration (e).
IPC , Annexure IX (Question Paper of 2018. LLB-DU)
Marks are given on the basis of logic Assistant Professor,
rather than conclusion. I have tried only LC-I, Faculty of Law,
to find out some conclusion. University of Delhi, Delhi
Suggestions are expected. After your Contact no. -7985255882
suggestions, I will explain these Krishnamurari576@gmail.com
answers in detail.
Question (1) (a)

Is mens rea necessary for all crimes? If not, discuss the circumstances when mens rea may be
excluded in fixing criminal liability.
Answer – Discussion about ‗ Actus non…..and ‗Strict liability.
Question (1) (b)
‗A‘ a man whose crop was frequently stolen, found ‗B‘ committing theft and gave him some
blows with a Lathi which resulted in his death. Is he justified in killing ‗B‘ in exercise of right of
private defence of property.
Answer – He exceeded his right of private defence. Section 103, sections 300 Exception 2,
James Martin Case.
Question (2) (a)
‗X‘ finds a diamond ring belonging to ‗Y‘ on a table in latter‘s house and X puts the same under
the carpet there with the intention of taking it later. The ring still lies there in the house of ‗Y‘
undetected. Better side of man prevails over ‗X‘ and he decides not to take out the ring. Has ‗X‘
committed any offence?
Answer . There are five essential ingredients of theft. As soon as ‗X‘ moves the ring which is
movable property dishonestly, he committed theft.
Section 378, Illustration (h). A sees a ring belonging to Z lying on a table in Z‘s house. Not
venturing to misappropriate the ring immediately for fear of search and detection, A hides the
ring in a place where it is highly improbable that it will ever be found by Z, with the intention of
taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time
of first moving the ring, commits theft.
199
Question (2) (b)

Mira, a girl of 16 years, was living with her aged father and step mother who used to ill-treat her.
She would often narrate her woes to Gopal, her 22 year old neighbor. One day Gopal suggested
that they go to Mumbai and start their lives afresh. He also promised to marry her. Mira agreed
and as planned they boarded the train to Mumbai. What offence, if any, has been committed by
Gopal?
Answer – Gopal has committed kidnapping. He has enticed a minor girl. Meaning of enticing
must be discussed.
Question (3)
Tej had scolded Teena, daughter of Shan, for misbehaving with his daughter. Shan did not like
this and was looking for an opportunity to give good thrashing to Tej. One day Shan saw that Tej
was passing through his place and seizing this opportunity, Shan caught hold of a stick lying
nearby and gave nineteen blows with the stick on the legs and arms of Tej. Tej was removed to a
near by hospital and died after two days. The post-mortem report attributed death to multiple
fractures on arms and legs and internal bleeding. Shan is tried for the offence of murder under
section 300 (3) IPC. Decide with the help of decided cases.
Answer. Anda Case and Kapoor Singh Case and some other cases.
Question (4)
Sunil, a senior Air Force Officer, one day invited his junior female colleague, Mamta to his
house at night for having dinner with him in the absence of his wife. Later, he raped her. She
struggled and screamdbut no one came for her rescue. Immediately after words, she drove to the
hospitaland complained that she has been raped. There was no explanation of any complaining
reasons for meeting the officer at night. She asserted virginity but medical evidence showed that
she was habitual to sex. On Mamta‘s complaint, Sunil was arrested and tried for rape. Sunil
contended consent on the part of Mamta for the intercourse and pleaded not guilty. Decide the
case.
Answer – Sunil has committed rape. Section 375 of IPC, 114A of Indian Evidence Act, Tukaram
Case and Gurmit Singh Case.
Question (5) (a)
‗A‘ was in the habit of beating up his wife over trivial issues. One day, during such fight, ‗A‘
picked up a lathi lying nearby and hit his wife on her head. Consequent to the lathi blow, the
woman fell unconscious. Believing her to be dead he hung her body by a rope in order to create
an appearance that the wife committed suicide. However, postmortem examination showed that
death was due to hanging. With the help of decided cases determine the culpability of A.
Answer – Palani Goundan v. Emperor 1919, Mad. H.C. ‗A‘ has not committed culpable
homicide. He has committed voluntarily hurt.
200
Question (5) (b)

A, a driver of double-decker bus was driving the bus. A pedestrian suddenly crosses the road
without taking note of the approaching bus. The pedestrian was hit by the bus. Although the
driver was driving the bus very slowly, but he could not apply the brakes so quickly as to save
the pedestrian. The driver was prosecuted and punished under section 304-A IPC for negligent
driving. Has he been rightly convicted?
Answer – A has wrongly been convicted under section 304-A. He was drivingly double-decker
bus negligently. S.N.Hussain v. State of Andhra Pradesh (DOJ Jan. 5, 1972) is relevant case.
Question (6)
‗A‘ and ‗B‘ agreed to rob the owner of a Liquor Store. The plan was that just before the Store
closes, they would enter the store, and while ‗A‘ would threaten the owner with a knife, ‗B‘
would empty the cash box. ‗A‘ asked ‗B‘ what happens if the owner puts up a fight. ‗B‘ replied
―Use your knife‖.
On the appointed day and time they went to the shop. ‗A‘ threatened the owner with the knife.
The owner of the store offered no resistance. ‗B‘ emptied the cash box and then both of them
walked towards the door. At that moment ‗X‘ a customer walked in and realized at once what
was happening. He tried to seize the cash bag from ‗B‘. ‗A‘ stabbed ‗X‘ several times in the neck
and back. The owner also tried to assist ‗X‘. ‗B‘ punched him in his stomach causing him to fall
and hit his head on the counter. ‗X‘ died as a result of the injuries and the owner suffered a deep
cut on his forehead which required a few stiches. Later on, both were convicted for the murder of
‗X‘ under section 302 IPC. Discuss.
Also consider ‗A‘s liability for the injuries caused to the owner.
Answer – Both have committed murder.
First approach - Here section 34 r/w section 302 will be applicable. Common intention may
develop on the spur. Suresh and Another v. State of Uttar Pradesh - Common intention can be
formed previously or in the course of occurrence and on a spur of moment.
Second approach – section 302 r/w section 301.
Question (7) (a)

‗A‘ hits ‗B‘, his servant with a stick in the stomach for being careless and lazy ‗B‘ dies as a
result of the injury which caused rupture in the intestine, which was inflamed as a result of
appendicitis. Discuss ‗A‘s liability.
Answer –
Question (7) (b)
Rohan is a ware-house keeper. Gopal going on a journey, entrusts his furniture to Rohan, under a
contract that it shall be returned on payment of a stipulated sum for the ware-house room. Rohan
dishonestly sells the goods. What offence, if any, has Rohan committed.
201
Answer – Section 405, Illustration (b).

Question (8) (a)
Karim, a Police Inspector, invited his subordinate Shyam to his room and they started discussing
some political issues. Suddenly, Shyam made a sarcastic (taunt) remark indicating that Karim
favoured certain accused due to his political associations. Karim got annoyed and started abusing
Shyam in filthy language to which Shyam objected. This further infuriated Karim and a fight
ensued between the two. Shyam punched him in his stomach. Karim picked up his service
revolver which was kept nearby and fired a shot at Shyam causing his death. Karim has been
charged with murder. Prepare arguments in his defence.
Answer – Offence has been committed under Section 300 Exception 4. relations between
Exception 1 and Exception 4 of section 300, K.M. Nanavati Case Ghapoo Yadav & Ors. v. State
of M.P. ( Feb. 2003) and Surain Singh v. The State of Punjab (DOJ-10 April 2017).
Question (8) (b)
Is ‗A‘ liable for committing an attempt to commit an offence in the following cases:
(i)
‗A‘ during the quarrel with a woman ‗B‘, flung her child about 2 years old into a 4 feet deep
pond out of anger. But ‗C‘ who was standing near the pond immediately picked up the child
from the pond and the child did not die.
Answer – Attempt to murder (Section 307).
(ii)
‗A‘ enters into ‗B‘s house and peeps through a window into B‘s room where B‘s coat is hanging
on chair. ‗A‘ mistaking the coat for ‗B‘ fires.
Answer – Attempt to murder. Social danger theory and American Case. ( ‗Wharton‘ – Whether
it is book or case, I am searching.)
Special thanks and dedicated to sections G, K, and

L of LC-1, Faculty of Law, University of Delhi.

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1

Lord Sir Thomas James Babington Macaulay (Father of IPC, 1860)

Krishna Murari Yadav

S. No. Topic P. No.

There are two elements namely;

Some Leading Cases

There are some leading cases related to elements of crime –

Fowler v. Padget3 (1798) (Lord Kenyon)

Ranjit D.Udeshi v. State of Maharashtra (August 19, 1964)

State of Maharashtra v. M.H.George (August 24, 1964)

Nathu Lal v. State of M.P.12 (22 March, 1965)

State of M.P. v. Narayan Singh15 (25 July 1989)

Decision – There are following decisions of Supreme Court on following points -

IMPORTANT MAXIMS RELATED TO CRIMINAL LAW

Right of Private Defence

Need of Right of Private Defence

Own body & property or body &property of another person

Scheme of right of private defence in IPC

Compare between sections of body and property

Burden of proof (Preponderance of probabilities)

Common sections - Sections 96, 97, 98, 99, & 106

(2) Person doing on the direction of public servant

(3) Time for recourse to the protection of the public authorities

(4) Extent to which the right may be exercised.

Amjad Khan v. State31 (1952) (Golden Scales) (Reasonable apprehension)

Secondly (Grievous hurt) (Section 320)

Fourthly (Unnatural lust) (Section 377)

Sixthly (Wrongfully confinement) (Section 340)

State of U.P. v. Ram Swarup35 (1974) ( Melon Case)

Decision – Ram Swarup was convicted under section 302.

The Court said -

Kishan v. State of M.P.36(Nov. 19, 1973)

James Martin v. State of Kerala37

If this condition is not fulfilled, no further question regarding intention or knowledge.

Palani Goundan v. Emperor 1919, Mad. H.C.

Difference between Culpable Homicide (CH) and Murder

(1) Intention to cause death - S. 299(a) and S.300 (Firstly)

In case of intention to cause death culpable homicide is always murder.

(3) Knowledge of act. (S.299 –(c), S. 300 – Fourthly)

Differences between Section 299 and Section 300

injury is likely to cause death likely to cause death.( Intention + knowledge+

DIFFERENCE BET. SEC.299 & 300 REGARDING SENTENCES

Kapur Singh v. State of Pepsu43

State of A.P. v. R. Punnayya & Another46

(Sept. 15, 1976, S.C. Justice Ranjit Singh Sarkaria)

(3) Difference between CH and Murder –

Emperor v. Mt. Dhirajia47 (June 4, 1940) Justice Braund

Important point of this case -

(Difference between Exception (1) and Exception(4)

(1) Difference between Exception 1 and Exception 4-

Section 301 (Transfer of Malice/Transmigration of motive)

The English doctrine of Transfer of Malice/Transmigration of motive has been embodied in

S.N.Hussain v. State of Andhra Pradesh61 (DOJ Jan. 5, 1972)

Kidnapping and Abduction

is said to kidnap such minor or person from lawful guardianship.

Vishwanath v. State of U.P.69

7 Intention of the kidnapper is immaterial Intention of the abductor is an

KIDNAPPING (Kid - Child+Napping – American word -

Sec.359 Kind of Kidnapping

S. Varadrajan v. State of Madras. 9 Sep. 1964 S.C.

Facts - Savitri had fallen in love of neighboring person S. Varadrajan.

(1) DOB of Savitri – 13/11/1942

State of Haryana v. Raja Ram (1972)