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CONTENTS
UNIT - I INTRODUCTION
General Definition of Crime Doctrine of Mens Rea Difference between Tort, Crime and Contract General Explanations Important Questions
UNIT-II GENERAL EXCEPTIONS AND SOME OFFENCES
General Exceptions Abetment Criminal Conspiracy Offences Against Public Tranquility False Evidence Offence Affecting Public Health Important Questions
UNIT-III OFFENCES AFFECTING THE HUMAN BODY
Offences Affecting Life Hurt Wrongful Restraint and Wrongful Confinement Criminal Force and Assault Kidnapping and Abduction Sexual Offences Unatural Offences Important Questions
UNIT-IV OFFENCES AGAINST PROPERTY
Theft, Extortion, Robbery & Dacoity Criminal Misappropriation of Property Criminal Breach of Trust Cheating and Mischief Criminal Trespass Forgery, Making False Documents Defamation Important Questions
UNIT-V OFFENCES RELATING TO MARRIAGE
Special Provision for Women in IPC Cruelty by Husband or Relatives of Husband Criminal Intimidation, Insult and Annoyance Attempt to Commit Offences Important Questions Suggested Readings
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Specific Offences (Section 120A to 511)
DEFINITION OF CRIME
Crime is what the State has by an act of legislature definitely declared as punishable.
The I.P.C. no where defines what is Crime. A crime can be said to be an act of commission or omission, contrary to law, tending to the prejudice of community for which punishments can be inflicted as the result of judicial proceeding. It tends directly to the prejudice of community, while torts tends more directly and immediately to the prejudice of a private right.
To define Crime is a task which so far has not been satisfactorily accomplished by any writer. So it would be appropriate to examine some of the definitions in order to understand the crime in correct Perspective.
"Commentaries on the Laws of England" define crime as - "An act committed or omitted in violation of public law forbidding or commanding it."
Blackstone - "A crime is a violation of public rights and duties to the whole community."
Criminal Conspiracy (SS120-120B) Offences Against the State (SS 121-130) Offence related to Army, ASR, Navy, Force (SS 131-140) Offence against Public Tranguility (SS 141-160) Offences by or relating to Public Servants (SS 161-171) Offence Related to Elections (SS 171 A-171) Contempt of Public Servants (SS 172-190) Giving False Evidence, offences Against Pub. Jus. (SS 1910229) Offences relating to Coin & Govt. Stamps (SS 2300263A) Offences Affecting (1) Public Health (2) Safety, Convenience (Decency & Moral (SS 268-294A)
Offence Related to Religion (SS 295-298) Offence Against Human Body (SS 299-377) Offence Against Property (SS 378-462) Offence Relating to Document and to Property Marts (SS 463 489E) Criminal Breach of Contract (SS490-492) Offence Related to Marriage (SS 493-498) Defamation (SS 499-502) Criminal Intimidation, Insults, Annoyance (SS 503-510) Attempts to Commit Offences (SS 511)
Specific Offences
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Stephen - modified the definition of Blackstone as - "A crime is a violation of right considered in reference to the evil tendency of such violation as regards the community at large."
This definition is not fully free from error, it narrows the scope of crime.
The definition given by Blackstone and Stephen further stresses that crimes are those breaches of laws which injure the community.
Romans define crime as "delicta publica" (Public wrong) and criminal trial as "judica publica (Public Justice).
Kenny pointed out that "all the acts that are injurious to the community are not necessarily crimes." One who commits a wrong is said to be liable for it. Liability is bond of necessity that exists between wrongdoer and the remedy for wrong. Penal liability arises when the following two conditions exist -
- Actus Reus (Guilty Mind)
- Act Done or Committed
DOCTRINE OF MENS REA
Guilty mind (Mens Rea): The fundamental principle of liability is that an act alone does not amount to a crime. It must be accompanied by a guilty mind. The Latin maxim "Actus non facit nisi mens sit rea" is a cardinal principle of Criminal Law.
- The Doctrine of mens rea is based on the Latin maxim "actus non facit nisi men sit rea"
- The maxim means wrongful act must be done with a guilty mind and then alone criminal liability is to arise.
- The doctrine originated when criminal law dealt with undefined offences. Today, the offences have been precisely, strictly and accurately and statutorily defined. In that view of the matter the doctrine becomes irrelevant or unnecessary in relation to defined offences.
- Although the doctrine is unnecessarily concerning the defined offences, yet every such definition incorporates the doctrine through some specific words or expressions forming part of the definition, saying it the other way.
Doctrine of mens rea and the IPC
- The doctrine has no general and direct application to the Indian Penal Code. Penal definitions are meticulous, precise and comprehensive under the code. Therefore, it is correct to say that there is no general application of the doctrine.
- Every penal definition under the act states the following two things:
a) The Act done by the accused person. b) The required state of mind while doing that act.
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suit filed by him.
In the case of crime, on the other hand, even though the immediate victim is an individual the criminal wrong is considered be to a public wrong and criminal proceedings are therefore brought by the state and not by the injured party. Moreover, in certain exceptional cases law does not permit a settlement in the criminal case between the wrongdoer and the aggrieved party.
In the case of tort the ends of justice are met by awarding compensation to the injured party. In the case of crime the wrongdoer is punished. The idea of awarding compensation to the injured party under civil law is to make good the loss suffered by him. The punishment under the criminal law protects the society by preventing the offender from committing further offences and deterring him and other potential offenders from committing further wrongs.
Smetimes, the same set of facts may constitute both a tort and a crime. The civil and criminal -emedies in such a case are not alternative but they are concurrent. The wrongdoer may be required to ay compensation under the law of torts; he may also be liable under criminal law. For example, if A digs a ditch on road resulting in inconvenience to public at large A has committed the offence of public isance under section 268 IPC. If X, a passerby, falls into that ditch and thereby gets injured A's act also becomes a tort of private nuisance as against X. A will be punished under criminal law for the offence of public nuisances, he will also be liable to compensate X under torts.
Object of Passing Act: The main purpose of passing this Act was to protect society from those people. ho either for their benefit do those activities which directly or indirectly affect people at large and to prevent them. So it became necessary to pass this code.
Title and extent of operation of the code: Section-
- Section 1 provides-"This Act shall be called the Indian Penal Code, and shall extend to the whole of
India except the state of Jammu & Kashmir."
- Section 18 of IPC defines India-"India means the territory of India, excluding the state of J&K."
- Article 1 of the Constitution of India declares-"India shall be a union of states."
- Thus the state of J&K is part of political India but it is not India for the purposes of IPC.
- Fazal AIi, C.J. , as he then was, held that exclusion of a territory postulates the existence of a^1
territory itself; State of Jammu and Kashmir cannot be taken as a foreign territory.
- Indian maritime area or the continental shelf is included in the territory of India. Indian maritime area
extends to 12 nautical miles measured from the base line.
- Any person (irrespective of his citizenship) is subject to IPC as soon as he entered the Indian
Territory.
Territorial Operation of the Code
- Every person shall be liable to punishment under this code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.
Every person within territory of India- Intra territorial operation (Section.2)
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Indian Territory territory Continental shelf.
Section.2 Intr Territorial Operation Every person (Irrespective) of Citizenship Within territory of India
Guilty Act Omission IPC
- Thus, section 2 provides for territorial operation of the code.
- The word person has been defined in Sec.11 IPC The word 'person' includes any company or association or body of persons, whether incorporated or not.
- Section 11 of I PC defines the word person widely and inclusively. However, it conveys natural persons alone. Therefore, as a general rule it conveys only natural persons and not a company or corporation.
- In some cases a company or association or corporation may be liable under this code.
Cases
- A company or corporation may be liable for filing fake income tax returns.^2
- A Pakistani citizen while staying at Karachi made false representation to a complainant at Bombay through letters for supply of rice. He was arrested while he was in England and brought to Bombay. The Indian Supreme Court upheld the order and convicted him u/S 420 IPC3.
- Following are not included in the words 'every person' :
a) President of India Under Article 361 of the constitution of India. b) Governors of states c) Foreign Sovereign, Ambassadors Warships d) Enemies Alien (dealt in accordance with martial law) if commit an offence, be tried Under IPC. e) Foreign troops
Extra territorial operation of the code: Sec. 3 & 4.
1. Section-3 provides that an act which, would have constituted offence, if committed in India, may be an offence if committed beyond India. That would be so if any Indian law provides for that. 2. Section-3 refers to following laws: a) The extradition Act, 1962, (matters covered therein) b) Sec. 187 & 188 Cr P.C. (matters covered therein) 3. Section-4 provides that the Act shall apply to following also: a) Act or omission by the Indian Citizens outside India.
A
A
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same or similar intention.
- Presence of common intention is a question of facts and circumstances.
- Common intention must be strictly proved. Courts cannot infer common intention readily.
Furtherance of Common Intention
- Presence of common intention is not enough. Its furtherance must also be proved.
- Furtherance suggests participation or performance of some role.
It was held that in a planned murder, one of the persons played the role of keeping of people from coming to the rescue of deceased. He and others were held guilty of murder u/s 302 read with Section 34.
- It is not necessary that the roles should be same. Acts of the accused persons may differ.
- Word 'Furtherance' enlarges the scope of Sec. 34. The accused persons would be liable for a criminal act done in furtherance of common intention though it is different from what was commonly intended.
- Where one of the accused persons develops an independent intention, the act done in furtherance thereof shall be his individual act and other co-accused persons would not be liable. 6) In the case of Barendra Kumar Ghosh vs. Emperor 52 IA 4014 (PC) : That act refers to the 'Criminal act' used in Section 34 which means the unity of criminal behaviour which results in some thing for which an individual would be punishable if it were all done by himself alone in an offence. Even if the appealant did nothing as he stood outside the door it is to be remembered that in crimes as in other things "they also serve who only stand and wait." 7) In the case of Mehboob Shah vs. Emperor AIR 1945 PC 118: Common intention implies a pre arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group.
Common Intention Must Precede the Criminal Act
- Common intention must precede the criminal Act; the time interval between them may be narrow or wide.^7 In the case of Ram Chander vs. State of Rajasthan 1970 Cr.L.J. 653: It is held that there need not be a long interval of time between the formation of the common intention and the doing of the Act.
- Common intention may develop even on the spur of moment.^8
Difference between Common intention, same or similar intention
In Mehboob Shah case , it was held that common intention and same intention are different. The^9 difference or distinction may be few but it is real and substantial.
Sec. 34 requires common intention. Concerted Action is the essence of the term. In case of same or similar intention there is no concerted action.
Framing of Charge U/s 34 is not necessary
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- Sec. 34 does not create any offence. It is a deemed provision and not a penal provision. It only provides for a rule of evidence.
- Since Sec. 34 does not create any substantive offence no charge is required to be framed U/s 34.
The Principle of Common Object (Section 149 IPC): Every member of an unlawful assembly is guilty of offence committed in prosecution of common Sec. 149 provides:
"If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members to that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
Ingredients: The following are the essentials of common object:
a) There must be an unlawful assembly. b) Any of the members of the unlawful assembly must have committed an offence. c) Offence must have been committed in prosecution of common object. (It includes the offence the likelihood of the commission of which was known to the members)
If the above requirements are satisfied all the members of the unlawful assembly would be liable for the offence provided they were members at the time of commission of offence.
Unlawful Assembly (Section 141):
According to Section 149 IPC-
An assembly of five or more persons is designated as 'Unlawful Assembly', if the common object of the persons composing that assembly is:
First - To overawe by criminal force, or show of criminal force, the Union or any State Government or Parliament or the Legislature of any state, or any public servant in the exercise of the lawful power of such public servant; or
Second - To resist the execution of any law, or of any legal process; or Third - To commit any mischief or criminal trespass, or other offence; or
Fourth - By means of criminal force, or by show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or
Fifth - By means of criminal force, or show of criminal force to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation - An assembly, which was not unlawful when it assembled, may subsequently become an
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IMPORTANT QUESTIONS
Q.1. Discuss the various definitions of crime and explain the essential elements of crime.
Q.2. Explain the doctrine of mensrea and its importance in I.P.C.
Q.3. Explain the maxim "Actus non facit mens sit rea".
Q.4. Whether Common intention is different from same intention. Discuss. Q.5. What is the difference between common intention and common object?
Q.6. "Mistake of fact is defence but not the mistake of law". Explain the statement.
Q.7. Explain mens rea and its exception with illustration.
Q.8. Distinguish between Tort and Crime.
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UNIT – II
GENERAL EXCEPTIONS AND SOME OFFENCES
- Chapter IV of IPC (General Exception) deals with the various offences which a person accused of an offence under this court or any special or local law can plead.
- If an act accused plead an exception within the meaning of this chapter there is a presumption against him and the burden to rebut that presumption is on him. (K.M. Nanavati vs. State of Maharashtra, AIR 1962, SC 605)
- Principle enunciated in chapter IV are in fact rules of evidence carrying either conclusive or rebuttable presumption.
- Huda calls these principles "conditions of non imputability" Kenny calls them "conditions of exemption from criminal liability".
GENERAL EXCEPTIONS (SECTION 76 TO 106)
General Exceptions can be divided into two parts:
- Excusable defences (Sections 76-95)
- Justifiable defences (Sections 96-106)
Mistake of Fact (Section 76): Act done by a person bound, or by mistake of fact believing himself bound by law.
According to section 76 IPC: "Nothing is an offence which is done by a person who is, or who by reason of a mistakes of fact and not by reason of a mistake of law, in good faith believes himself to be bound by law to do it."
In the case of Chaman Lal (1940) 21 Lah 521; Mangal Singh, 1981 Cr. LJ 84 (Cal) : Held that for a manifestly illegal superior order, that is an order which is illegal on the face of it, e.g., to kill an innocent bystander or to torture an accused in custody or to fire on a group of people who have assembled for a lawful purpose, the superior order affords no protection to a subordinate.
In the case of Gopalia Kalliaya : A^1 police-officer came to Bombay from up-country with a warrant to arrest a person. After reasonable inquiries and on well-founded suspicion he arrested the complainant under the warrant, believing in good faith that he was the person to be arrested. The complainant having proceeded against the police-officer for wrongful confinement, it was held that the police-officer was guilty of no offence as he was protected by this section.
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Accident in Doing a Lawful Act - Section-
- Accidents are not excusable. Injuries caused by an accidental act may be excused subject to the fulfilment of requirements of Law.
- This section exempts the doer of an innocent or lawful act in an innocent or lawful manner and without any criminal intention or knowledge from any unforeseen evil result that may ensue from accident or misfortune.
- Nothing is an offence which is done :
a) By accident or misfortune.
b) Without any criminal intention or knowledge
i) In the doing of a lawful act. ii) In a lawful manner. iii) by lawful means
4. Illustration: 'A' is at work with a hatchet. The head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of '1, his act is excusable and not an offence.
Accident of Misfortune
An effect may be accidental. It is to be seen whether the act done was intentional or with knowledge or not. Any effect caused by an act which was not done with an intention to cause that effect or which was done without a reasonable forcibility of the effect so caused cannot create a liability.
Accident and event are not one and the same thing. Accident contemplates something unexpected; it is something which takes place outside the ordinary course of things.
Lawful Act: Accident may be a good defence only when the act done was lawful and it was done in a lawful manner and by lawful means and with care but without mens rea.
Lack of Care and Cautions:
- Any injury resulting frorn an act done without due care and caution cannot be said to be accidental or occurring by misfortune.
2) Rangaswamy, 1952, Nag. 93: Accused fired a shot from an unlicensed gun. The court took a liberal view and held that shooting with an unlicensed gun does not debar an accused from claiming immunity under this section.
Act likely to cause harm, but done without criminal intent and to prevent other harm Section- 81
- The principle in Sec. 81 is that where in a grave and sudden emergency one of the two evils is inevitable, it would be logical as well as legal to direct the events so as to suffer the slighter of them.
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- Sec. 81 of the code in essence adopts the above principle but it adopts those principles only which are conditional. The benefit of this section can be availed if done in good faith for the purpose of avoiding other evils. Lack of mens rea shall be established.
3) Sec. 81 provides:- "Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if :
- For the purpose of preventing or avoiding other harm to person or property."
The harm intended to be avoided is to be judged in reference to following:-
a) the nature of the harm intended to be avoided.
b) the imminence of the harm sought to be avoided.
To avail the benefit of Sec. 81 the accused must plead and prove the following:
That the act causing harm was not done with an intention of causing harm (although it was known that the act was likely to cause that harm).
That he was acting in good faith while doing the act complained of.
That the act complained of was done to prevent any other harm to person or property.
That in view of the nature of the harm sought to be avoided the act complained of was justifiable or excusable.
R. V/s Dudley & Stephens, (1884): The question was whether the need for self preservation extends to causing harm to an innocent person, and that to what extent it would be justified. Held: Accordingly, the court convicted the accused persons for murdering the minor boy, R. V. Martin, (1889) - Sir James Stephen has Criticized : The decision; he suggests that when the two persons holding a plank after a ship wrecked, and one of them pushes the other off resulting into death of that person would not be an offence. At the best it can be said that he has left such person to a chance of holding some other support.
- A minimum level of maturity of mind is a must to maintain mens rea. The legislature in its wisdom declared that a child under seven years of age does not have that much maturity of mind which is a must for entertaining a guilty intent. In that view of the matter, law declares a child under seven years of age as doli in capex i.e. one incapable of committing an offence. (Sec. 82)
- A conclusive presumption of innocence is raised in favour of a child under seven. The fact tha the delinquent child is under seven can give a complete answer to every question and argument of the prosecution.
Bakhul Shah, 1866 : The accused purchased for one anna, from a child aged six years, two pieces of cloth valued at fifteen annas, which the child had taken from the house of a third person. It was held that, assuming that a charge of an offence of dishonest reception of property (section 411) could not be sustained owing to the incapacity of the child to commit an offence, the accused was guilty of criminal misappropriation, if he knew that the property belonged to the child's guardians and' dishonestly appropriated it to his own use.
Section 83
Relates to an act done by a child above seven years of age and under twelve.
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Unsoundness of Mind: Persons of unsound mind are called non compos mentis.
Persons of unsound mind / non compos mentis.
Idiot - Acquired Non campos Non compos
- by birth Insanity mentis by mentis for any
- (Natural Insanity) -Curable/may reason of other reason e.g.
- Incurable be proved if some physical in shock fear
- Tested by not cured ailment. etc. asking questions.
At the Time of Doing
- Benefit under Sec. 84 IPC is available only to a person who suffered from legal insanity at the time of alleged commission of the act complained of.
- Neta Ram v/s State, 1866: In this case the accused suffered from legal insanity at the date of trial but he did not suffer that on the date of alleged commission. The benefit u/s. 84 was not given.
- Court must ensure that the insanity existed at the given point of time.
English Law as to Insanity: Under English law the principle laid down in Mc Naughton's, case6 where the accused, Daniel Mc Naughton's, was charged for the murder of Edward Drummond, Secretary to then Prime Minister, Sir Robert Peel, on January 20, 1843. The accused was suffering from an insane delusion that Sir Robert Peel had injured him and that he mistook Drummond for Sir Robert. Accordingly, he shot and killed him. The accused pleaded not guilty on the ground of insanity. The defence led evidence of accused's insanity, particularly his obsession with the given morbid delusion. The jury returned a verdict of 'not guilty' on the. ground of insanity. English law now recognized social and medical insanity.
Criticism u/sec. 84 IPC
- Sec. 84 is based on the principle laid down in Mc Naughton's case. The principle laid down in the case is no longer a guiding principle under the English law. Therefore, it is hardly justified to base Sec. 84 IPC on that decision.
- Sec. 84 IPC does not recognise medical or social insanity. This is hardly justified. Sec. 84 must be amended to do justice in cases of partial insanity.
Act of a Person Suffering Intoxication - Section-85 read with Section-
- Sections 85&86 provide for law as to intoxication. Voluntary intoxication is no defence. Voluntary intoxication may be relevant in the determination of particular intention or knowledge required for a given offence.
- Intoxication was no defense under English common Law till the beginning of 19th Century. In the later half of the 19th Century involuntary intoxication was recognised as a defence.
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- Intoxication is a kind of insanity. Insanity is a disease while intoxication is an evil. Persons suffering from insanity deserves mercy but an intoxicated person deserves to be condemned.
- Under the IPC, intoxication may be a defence provided the intoxicant was administered to the accused without his knowledge or against his wishes.
Essentials u/sec. 85-
a) At the time of doing it; b) By reason of intoxication a) Is incapable of knowing the nature of his ct; or b) That what he is doing is wrong or contrary to law. c) Provided that the thing which intoxicated him was administered to him without his knowledge or against his will.
From the Analysis of Section-85 following Essentials are Made Out:
- The act complained of must be done by an intoxicated person.
- The accused must be suffering from intoxication at the time of the commission of the Act.
- The accused must have become incapable of knowing the nature of the act and that what he is doing is wrong or contrary to law.
- The intoxication must be either without his knowledge or against his will.
Presumption of particular intention of knowledge- Section – 86
Sec. 86 provides for a presumption of law.
Thus where a person does an act requiring a particular knowledge or intention to constitute an offence, such intention or knowledge is to be presumed against the accused person.
There shall be a presumption that accused did entertain the required criminal intent or criminal knowledge.
The presumption is rebutable. Accused may show that he did not entertain the required criminal intention or knowledge in as much as he was intoxicated against his will or without his knowledge.
5) Basudev v/s State of PEPSU :^7 The appellant was charged with the murder of a young boy. The two of them and others of the same village went to attend a wedding in another village. All of them went to the house of the bride to take the mid-day meal. Some had settled down in their seats and some had not. The appellant asked Maghar Singh, the young boy, to step aside a little so that he might occupy a convenient seat. But Maghar Singh did not move. The appellant whipped out a pistol and shot the boy in the abdomen. The injury proved fatal. He was charged rejecting the plea of the accused to allow him the benefit of section 86 and reduce the charge from murder to culpable homicide.
The Director Public Prosecution v. Beard :^8 In this case the accused was held guilty for his offence of murder of a girl aged thirteen whom the accused raped and placed his hand over her mouth and pressed his thumb on her throat in a bid to prevent her from screaming. In this endeavour he unintentionally killed her. The Court of Criminal Appeal found him guilty of manslaughter but the House of Lords restored the conviction for murder.
