Law of Crimes-I ( LLB -205)

Law of Crimes-I ( LLB -205)
SEMESTER: THIRD BBALLB / BALLB NAME OF THE SUBJECT: LAW OF CRIMES – I UNIT - 1 TOPIC: EXTENT AND OPERATION OF THE CODE FACULTY NAME: Ms. Anubha Jain (Assistant Professor)
HISTORY OF IPC • The Charter Act of 1833 provided for the appointment of a law member to the Council of the Governor General. • Thomas Babington Macaulay was appointed as law member on the council and assumed charge on 27 June 1834.
• On 14 October 1837, the Law Commission submitted the printed Draft Penal Code to Lord Auckland, the then Governor General in Council. • The Draft Code was revised clause by clause by the Commissioners, Charles Hay Cameron and D Elliot, who submitted their first report on 23 July 1846.These commissioners submitted the second and concluding report on 24 June 1847.
• The Draft Penal Code was then in 1851 referred to the judges of the Supreme Court of the three presidencies , the advocate general of Madras and other judges and jurists for their opinion. • The revised penal code was read for the first time in the legislative council on 28th December 1856.
• The Indian Penal Code published in the Calcutta Supplementary Gazette on 21, 24 and 28 January 1857. • It was then passed by the Legislative Council of India, and received assent of the Governor- General –in-Council on 6 October 1860. It was scheduled to come into force on 1 May 1861.
PURPOSE OF CRIMINAL LAW • It attempts to Control human behavior • Criminal Law is an offspring of personal vendetta • Punishment for violators.
Classification Under IPC
Extent & Applications in IPC Sections ( 1-4 ) Section 1:Title & Extent of operation of the code • This act shall be called The Indian Penal code. • Extends to whole of India except the state of J&K.
Section 2 : Punishment of offences committed within India. • Every person shall be liable to punishment under this code. • Not other wise for every act or omission contrary to provisions thereof ,of guilty within India. • Deals with intra-territorial operation of the code. • It makes code universal.
“Every Person” • It has wider connotation. • It includes citizens ,non-citizens & foreigners visiting India. • Foreigners who enters Indian territories by accepting the allegiance & protection of Indian laws.
Exemption from criminal prosecution According to provisions of Art.361 of the Constitution of India. High dignitaries of the State i.e the President of India and the Governors of the States. Not answerable to any court for the exercise and performance and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers.
Leading Case • Mubarak Ali v. State of Bombay, AIR 1957 SC 857.
Section 3 : Punishment of offences committed beyond ,but when by law may be tried within ,India. • Any person liable ,by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this code for any act committed beyond India in the same manner as if such act had been committed with in India. Extra territorial operation : • Section 3 & 4 of penal code give extra territorial operation to the code.
Section 3 gives criminal jurisdiction to the court to try for an offence committed by the person beyond the territory of India provided such a person is subject to Indian law. • Example: if an Indian army soldier commits a murder in Nepal ,while in service he is liable to be prosecuted for murder in India. • The scope of section 3 is so wide enough as it makes not only Indians citizens liable for an offences committed abroad, but also those who are covered by any special law bringing them under Indian jurisdiction.
Section 4:Extension of code to extra-territorial offences. • Any citizen of India in any place without & beyond India • Any person on any ship or aircraft registered in India where ever maybe. • Any person in any place without and beyond India, • committing offence targeting computer resource located in India.
Example : A who is citizen of India commits a murder in Uganda. He can be tried & convicted of murder in place in India in which he may be found. Crime committed outside India • Clause 1 of section 4 extends the code to an offence committed by a citizen of India in any place without &beyond India.
Admiralty jurisdiction • Section 4 of clause (2)of the penal code gives admiralty jurisdiction to the Indian courts &power to try offences committed on any Ship, or aircraft registered in India. • Ship is considered to be a floating island &belongs to the country whose flag is flying likewise also aircrafts. • A person committing a crime on board weather an Indian citizen or a foreigner, is amenable to Indian courts. If the vessel is flying Indian flag &registered in India .
• It may be noted that the IPC (Amendment) bill ,1972 had proposed to widen the scope of extra-territorial jurisdiction by making the provisions of the code applicable to an offence committed outside India by an alien. • If a foreigner after committing a crime outside India steps into India ,he may be sent back to the country where the offence was committed for trial ,on proper requisition by that country. • The requisition proceedings termed “Extradition proceedings” governed by Indian extradition Act of 1962.
Cyber crime targeting a computer resource located in India By the insertion of sub-section (3) in section 4 of IPC by the Information Technology (Amendment) Act,2008. The territorial operation of the code is extended to any offence committed by any person in any place without and beyond India targeting a computer resources located in India.
Introduction • Personal safety and security of life and property is of utmost importance to any individual. Maintenance of peace law and order is absolutely necessary in any society so that human being can live peacefully without fear of injury to their lives and property, thus of all branches of law the one which provides protection to public in such a scenario is Criminal Law. • A System of Law concerned with the punishment of offenders. The term criminal law generally refers to substantive criminals laws. Substantive Criminal laws define crimes and may establish punishments.
Definition of Crime • The term 'Crime' denotes an unlawful act and this unlawful act is punishable by a state. • It is very difficult to give correct and precise definition of crime. • Lord Atkin-”Crime is an act or omission in respect of which legal punishment is inflicted on the person who is in default either by acting or omitting to act and criminal law relates to crimes and their punishment.”
• Sir William Blackstone-”Any act committed or omitted in violation of public law forbidding or commanding it- WIDENED THE SCOPE-Crime is a violation of public rights and duties due to the whole community considered as community.” • Professor Kenny- “Crimes are wrongs whose sanction is punitive and is in no way remissible by any private person, but is remission by the crown alone, if remissible at all.” • Halsbury’s Laws of England- “A crime is an unlawful act or default which is an offence against public and renders the person guilty of the act or default liable to legal punishment.”
Criminal and Civil Criminal law is only small part of the entire legal fields. Crimes differs from civil wrongs. • Crimes, it is against State whereas Civil Is against Individual • Crime is a public wrong, whereas a civil wrong is a private in nature. • Burden of proof under criminal law lies upon the prosecution to establish guilty beyond doubt and in case of reasonable doubt, benefit of doubt must always be given to the accused whereas in civil law defendant is not entitled to any such benefit of doubt.
Crime and Moral Wrong A criminal Act may be distinguished from a moral wrong ,where a moral wrong is a wider concept while a criminal law is a narrower concept. As every moral wrong cannot be regarded as crime Similarly there may be acts which are criminal but not immoral. For e.g Driving a vehicle dangerously on a public road is an offence u/s 184 of MV Act but not morally wrong.
Elements of Crime There are four essential elements that constitutes a crime: Human being An Evil Intention: Mens Rea An Actus Rea i.e. an act committed Injury to Human Being
Stages Of Crime • There are four stages of crime: Intention Preparation Do not give rise to any form of criminal liability
Attempt Commission Liability arises
Intention • The intention is the first stage of any offense and is known as the mental or psycho stage. In this stage, the offender decides the motive and decides his course or direction towards the offense. The ironical fact about this stage is that the law cannot punish the person just for having an intention to do any illegal act. • Moreover, being the mental concept, it is very difficult to judge if a person possesses any such intention. Just by having an intention will not constitute an offense.
Preparation Preparation is the second stage amongst the stages of crime. It means to arrange the necessary resources for the execution of the intentional criminal act. Intention and preparation alone are not enough to constitute a crime. Preparation is not punishable because in many cases the prosecution fails to prove that the preparations in the question are for the execution of the particular crime.
Attempt • An attempt is a direct movement towards the execution of a crime after the preparation of the plan. According to law, a person is guilty of an attempt to commit an offense if he/she does an act which is more than simply preparatory to the commission of the offense. Moreover, a person is guilty of attempting to commit an offense even though the facts are such that the execution of the offense seems to be impossible. • Also known as Inchoate Crimes • Example: Section 307 Attempt to Murder
Accomplishment The last stage in the commission of an offense is its successful completion. If the accused becomes successful in his attempt to commit the crime, he will be guilty of the complete offense. Moreover, if his attempt is unsuccessful he will be guilty of his attempt.
The Elements of a Crime • Mens Rea and Actus Reus are two essentials of any crime and are the principles used in most common law countries. • Mens Rea is the ‘guilty mind’ or guilty intention to commit a crime, with the intention of causing hurt to another person, animal, or with the express intention of disturbing the peace. • Actus Reus, however, is the “guilty act”, which is a necessity in proving that a criminal act was committed. When dealing with any crime, there are certain principles that need to be followed, and the accused is given the benefit of the doubt. The onus is on the prosecution to prove his/her guilt, beyond a reasonable doubt.
Mens Rea • Mens rea is an essential part of deciding whether an act is culpable or not. Mens rea displays specific intent by the accused for the commission of the crime for which he is charged. • The accused must be proven to have knowingly committed the crime, and had full knowledge of their actions and must have malafide intent towards the victim. • Mens rea is also used in some civil suits, requiring the defendant to have been aware of the repercussions of their actions for a civil liability to arise, but usually, the Actus Reus takes precedence in cases of civil liability.
Actus Reus • Actus Reus is the physical aspect of a crime. The accused needs to have done something or omitted to do something, resulting in injury to the plaintiff, or the victim in civil cases. • Without a guilty act, there can be no crime and no suit for damages can arise. An act alone does not make a crime, however, and both the intention of the person and the act itself, if such act is prohibited, combine to form the crime. • In certain cases, circumstances of the case are also taken into consideration, and are often used to either conclusively prove guilt, or can be used to prove reasonable doubt of intention. (Example: – carrying a knife into someone’s house with the express intention of committing the act of murder, or driving a car on a foggy night and accidentally striking someone attempting to unsafely cross the road.)
• The word Actus connotes a 'deed‘ which is a physical result of human conduct. The word Reus means 'forbidden by law’. • It is made up of three constituent parts, namely: 1. An action or a conduct 2. The result of that action or conduct 3. Such act/conduct being prohibited by law Illustrations: • An executioner's job is to hang (no actus reus) • An army man kills as a part of his duty (no actus reus)
• Actus Reus can also be the omission of an act, by omitting to do something that the accused knows he is bound by duty or law to do • For example: – a mother intentionally omits to feed her female child, leading to the child’s death. The mother can legally be charged with causing death by negligence, and may also be charged with murder, if her intentions of murdering her infant can be proven in court.
Common law principle of Mens Rea • The guilty intent and act must both concur. This is what expressed by the maxim actus non facit reum, nisi mens sit rea i.e the act by itself does not constitute guilt unless done with guilty intent. Crime is not simply an act but an act coupled with full intent and preparedness. • Thus Mens Rea must extend to all the three constituents: 1. The physical doing or not 2. the Circumstances 3. the Consequences
Different Terms of Mens Rea • Intention • Transferred Intention • Motive • Intention and Knowledge • Recklessness • Negligence
Legal Position under English law We need to discuss following case laws: • R v. Prince(1875) • R v. Tolson, (23 QBD 168) • Sherras v. De Rutzen,(1895) • Brend v. Wood (1946)
Legal Position under Indian Law WE need to discuss the following cases: • Srinivas Mal v. Emperor, (1947) ILR 26 Pat 460 (PC) • R. Hari Prasad Rao v. State, AIR 1951 SC 204
Rule of Strict Liability and Absolute Liability • These are the cases in which mens rea is not essential. • Some cases have a strict liability clause, wherein Mens rea does not matter. Cases involving statutory rape and sale of alcohol or tobacco to minors are prime examples of this. It does not matter if the accused believed that his actions were legal, he will be guilty for the crime. In such cases, Actus Reus alone is sufficient to establish guilt, and to obtain a conviction from a competent court of law.
• Some crimes require a deeper level of Mens Rea, like theft. Crimes like theft involve the specific intention to deprive the rightful owner of the full use the stolen good and enjoyment of his personal property with no intention of returning the said goods to their rightful owner. However, in cases of theft, the object does not necessarily have to be removed from the victim’s immovable property • Example: – A person steals a diamond ring belonging to ‘A’ and hides it in a flower vase, in ‘A’’s house with the intention of retrieving the ring later and with no intention of returning it to ‘A’. The moment the ring is taken from the location where ‘A’ left it, theft has been committed, and the thief can be prosecuted. • Cyber crime is simpler since theft of digital data cannot be accidental, and theft of identity, data and confidential information is done with malicious intent to harm the reputation of the victim or to get wrongful gain from the use of someone else’s property or resources.
Leading Case Laws • State of Maharashtra v. M.H George, AIR 1965 SC 722 • M.C Mehta v. UOI, (1988) 1 SCC 471
UNIT - II TOPIC: GENERAL EXCEPTIONS(SECTION 76-106)
Definitions to be discussed under the Code: • Gender (Section 8) • Public ( Section 12) • Judge( Section 19) • Public Servant ( Section 21) • Movable Property ( Section 22) • Wrongful Gain ( Section 23) • Dishonestly ( Section 24) • Fraudulently ( Section 25) • Counterfiet ( Section 28) • Document ( Section 29) • Valuable Security ( Section 30) • Illegal Ommissions ( Section 32) • Act, Omission ( Section 33)
• Acts done by several persons in furtharence of common intention ( Section 34: Common intention) Essentials of Section 34 • A Criminal Act must be done by several persons • There must be common intention of all to commit that criminal act • There must be participation of all in the commission of the offence in furtherance of the common intention. Cases to be discussed • Barendra Kumar Ghosh v. King Emperor • Mahboob Shah v. Emperor • Tukaram Ganpat v. State of Mahrashtra • Discuss the distinction between Section 34 ( Common Intention) and Section 149 ( Common Object)
• Voluntarily ( Section 39) • Offence ( Section 40) • Injury ( Section 44) • Life ( Section 45) • Death ( Section 46) • Good Faith ( Section 52) • Harbour ( Section 52 A)
General Exceptions Generally there is presumption under law that man knows the nature and consequences of his act and is therefore responsible for it. But there are certain exceptions to this general rule, wherein a man is excused of crime. Thus the framers of IPC decided to put all cases of exceptions in One Chapter i.e IV commencing from Section 76 to 106. This chapter consists 31 sections which may be grouped under following heads: • Mistake of Fact and Mistake of Law ( Section 76 & 79) • Judicial Acts ( Section 77 & 78) • Accidental Acts ( Section 80) • Necessity (Section 81) • Incapability to commit crime ( Section 82- 87) • Acts Done with consent and without Consent ( Section 87-90 & 92) • Triviality ( Section 95) • Private Defence ( Section 96 – 106)
All the exceptions explained under this chapter can be grouped into two categories: • Excusable Exceptions • Justifiable Exceptions Excusable Exceptions: • Mistake of fact ( Section 76) • Incapability ( Infancy- Section 82 & 83, Insanity –Section 84, Intoxication – Section 85 & 86) • Accident ( Section 80) Justifiable Act • Judicial Act ( Section 78 & 177) • Necessity ( Section 80) • Duress ( Section 94) • Consent ( Section 87-90 & 92) • Communication ( Section 93) • Trifles ( Section 95) • Private Defence ( Section 96-106)
Mistake of Fact ( Section 76) Mistake of Law ( Section 79) This is based on Maxim Ignorantia Juris( legis) non excusat, Ignorantia facti excusat which means ignorance of fact excuses, ignorance of law does not excuse. Section 76: Act done by a person bound, or by mistake of fact believing himself bound, by law-Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it. Illustrations: A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.
Ingredients of Section 76: • When a person is bound by law to do something and does it • When a person believes in good faith, owing to a mistake of fact and not a mistake of law, that he is bound to do something and does it. In the second ingredient four things have been said: • Believes to be Bound by law • Such belief was a mistake of fact and not law • This was in good faith
• Section 79:Act done by a person justified, or by mistake of fact believing himself, justified, by law.— Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it. Illustrations • A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the fact, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence. Ingredients of Section 79: • When a person is justified by law to do something and does it • When a person believes in good faith, owing to a mistake of fact, that he is justified to do something and does it.
Things needs to be discussed: • Mistake of Fact • Mistake of Law • Distinction between Section 76 & 79 • Good Faith Leading Case Laws: • State of West Bengal v. Shew Mangal Singh , AIR 1981 SC 1917 • Raj Kapoor v. Laxman, AIR 1980 SC 605 • R v. Princes ( 1875)
When Mistake of Fact is No Defence: • The Act is itself is illegal • The orders of superior has no application in Criminal Law • Negligent Mistake • Statutory Offences without Mens Rea
Judicial Acts ( Section 77 & 78) Section 77:- Act of Judge when acting judicially • Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. Ingredients: 1. The act was performed by judge 2. The judge acted judicially in the exercise of the power conferred upon him 3. He exercised such power in good faith Cases to be discussed: • Delhi Judicial Service Association, Tiz Hazari Court v. State of Gujarat, AIR 1991 SC 2176 • Surendra Kumar Bhatiya v. Kanhaiya Lal & Others, AIR 2009 SC 1961
Accidental Acts(Section 80) Section 80:- Accident in doing a lawful act • Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. Illustrations • 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 A, his act is excusable and not an offence.
• Section 80 gives statutory recognition to the common law doctrine of Mens Rea, that there can be no crime without a criminal intention. • This Section excludes a person from criminal liability where such acts occur as a result of an accident. This means that although the person performed the act, such act was devoid of an intention. Essentials: 1. The act must be an accident or misfortune 2. It was done without criminal intention or knowledge 3. Must be in performance of lawful act 4. It must be exercised in a lawful manner and by lawful means 5. Such act must have been done with care and caution. Cases to be discussed: State v. Rangaswami, AIR 1952 Nag 268
Necessity( Section 81) Section 81:- Act likely to cause harm, but done without criminal intent, and to prevent other harm Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanations It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm. Illustration: A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act, A is not guilty of the offence.
• Section 81 introduces the concept of self-preservation and grants immunity to a man from criminal charge with respect to acts committed under compelling circumstances forced by necessity. • Section 81 basically provides immunity to those accused persons who did an act which was although evil, was committed in order to avert a bigger evil. The section actually embodies the principle laid down by the maxims hereunder: • Qoud necessitas non habet leegem (necessity knows no law) • Necessitas vincit legem (necessity overcomes the law) The Black Law Dictionary defines the word ‘necessity’ as Controlling force, irrestible compulsion, a power or impulse so great that it admits no choice of conduct.
Ingredients: • The Act must have been done without any criminal intention to cause harm • The act must be done in good faith for the purpose of preventing or avoiding other harm to person or property • The harm must have been done in order to avert a greater harm. Case Laws: • Queen v. Dudley and Stephens, 1884 14 QBD 273 • United States v. Holmes, 26 F.Cas. 360 • R v. Borne,1939 1 KB 687
Infancy( Section 82 & 83) • Section 82:- Act of a child under seven years of age Nothing is an offence which is done by a child under seven years of age. • Section 83:- Act of a child above seven and under twelve of immature understanding Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. Section 82 and 83 grant immunity to an infant below a particular age from criminal responsibility. Section 82 provides absolute immunity to a child under 7 years of age from criminal responsibility, whereas 83 grants partial immunity against prosecution and punishment for a child between the age of 7 and 12.
Section 82 states that a child below the age of 7 years is incapable of committing a crime i.e. he is doli incapax, and hence cannot be guilty of any offence. The adequate mental ability necessary to give birth to mens rea is absent and he is just not capable of understanding the nature and consequences of his actions. Section 83, however states that any child between the age of 7 to 12 years depending on the maturity of understanding can be deemed capable of committing a crime or not. The burden of proof is on the prosecution to show beyond reasonable doubt that the actus reus so committed was concomitant to a mens rea and he was capable of distinguishing between mischief and a ‘wrong’. Therefore, what is more important is not his age but the degree of requisite maturity required to comprehend the consequences while committing the crime. Illustrations: A child of 9 years of age took a necklace valued at Rs. 2/8/- from another boy and immediately sold it to another for five annas, the child was discharged under this section, but the accused was convicted of receiving stolen property for the court considered convict displaying sufficient intelligence to hold him guilty.
Things to Discuss: • Juvenile Justice( Care and Protection of Children) Act,2000 Case Laws: • Hiralal Mallick v. State of Bihar, AIR 1977 SC 2236 • Instance of Shaktiman show • Pratap Singh v. State of Bihar, AIR 2005 SC 273
Insanity ( section 84) Section 84:- Act of a person of unsound mind Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. Ingredients • The Act must be done by a person of unsound mind • Such person was unsound at the time when he committed the act and not merely before or after such act. • Such person was either incapable of knowing the nature of act or that he was doing what was either wrong or contrary to law. • Such incapacity must be by reason of unsoundness of mind of the accused.
This section is based on following maxims: • Furiosus furor sub puniter i.e a mad man is punished by his madness only. • Furiosus nulle voluntas est i.e a mad man is like one who is absent. Genesis of Law of Insanity Entire law as to criminal liability of a person of unsound mind owes its genesis to McNaughten Case(1843). This is one of the leading and most important case on this. Certain Prepositions were framed in this case regarding the law of insanity. • Every man is sane unless contrary is proved. • It must be shown that at time of committing the act he was under such a defect. • Test is whether he can distinguish between what is right and what is wrong. • It depends upon the nature of dilusion.
Things to be discussed: • Medical Insanity • Legal Insanity Case Laws: • Ashiruddin Ahmad v. King,AIR 1949 Cal 182 • Queen emperor v. K. N Shah, (1896) ILR 23 Cal 604 • Lakshmi v. State, AIR 1959 All 534 • Dahyabhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 • Shrikant Bhosale v. State of Maharashtra, 2002 7 SCC 748
Intoxication ( Section 85 and 86) Section 85:- Act of a person incapable of judgment by reason of intoxication caused against his will Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will. Section 86:- Offence requiring a particular intent or knowledge committed by one who is intoxicated In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.
• Intoxication impairs perception, reasoning and the ability to foresee consequences. An act committed under intoxication may not reflect a persons real character. Section 85: Involuntary Intoxication This Section accords immunity from criminal liability to a person who was intoxicated involuntarily. Ingredients: To avail exemption under Section 85 the following have to be established: • The inebriated state rendered him incapable of knowing the nature of his acts • The act was wrong or contrary to law • The intoxication was administered either without his will or without his knowledge
Section 86:Voluntary Intoxication An act done under the influence of self induced intoxication amounts to an offence even if the doer even if incapable of knowing the nature of act.Yhis Section is an exception to Section 85. Ingredients: • Offence requiring a particular intent or knowledge • Committed by an intoxicated person • Presumption of knowledge, unless proves intoxicated without his knowledge or against his will is never excusable in the court of law • The major difference between section 85 and 86 is that in sec 85, a person is intoxicated involuntarily and in sec 86, a person is intoxicated voluntarily. That’s why under sec 85, defense is provided to the accused. In sec 86, and person is held guilty of the offence
Case Laws: • Basdev v. State of Pepsu, AIR 1956 SC 488 • Bablu v. State of Rajasthan, 2007 CrLJ 1160 (SC)
Consent ( Section 87-90 & 92) Section 87:- Act not intended and not known to be likely to cause death or grievous hurt, done by consent Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm. Illustrations • A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.
Section 88:- Act not intended to cause death, done by consent in good faith for person’s benefit: Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied to suffer that harm, or to take the risk of that harm. Illustrations • A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence.
Section 89:- Act done in good faith for benefit of child or insane person, by or by consent of guardian Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person: Provided Provisos • That this exception shall not extend to the intentional causing of death, or to the attempting to cause death; • That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity; • That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity; • That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.
Illustrations • A, in good faith, for his child’s benefit without his child’s consent, has his child cut for the stone by a surgeon knowing it to be likely that the operation will cause the child’s death, but not intending to cause the child’s death. A is within the exception, in as much as his object was the cure of the child.
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
Section 92:- Act done in good faith for benefit of a person without consent Nothing is an offence by reason of any harm which it may causes to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provided-Provisos. Provisos • That this exception shall not extend to the intentional causing of death or the attempting to cause death; • That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity; • That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt; • That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.
Illustrations • Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence. • Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z’s benefit. A’s ball gives Z a mortal wound. A has committed no offence.
Section 93:- Communication made in good faith No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person. Illustrations • A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.
Section 94:- Act to which a person is compelled by threats ( Duress) Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence: Provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint. Explanations • A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit of this exception, on the ground of his having been compelled by his associates to do anything that is an offence by law. • A person seized by a gang of dacoits, and forced, by threat of instant death, to do a thing which is an offence by law; for example, a smith compelled to take his tools and to force the door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception.
Triviality( Section 95) Section 95:- Act causing slight harm Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.
Private Defence ( Section 96 – 106) Section 96:- Things done in private defence Nothing is an offence which is done in the exercise of the right of private defence. • Section 96 to 106 lay down law relating to private defence of person and property.It giver authority to a man to use necessary force against a wrong doer for protecting himself and his property or some other persons body or property. • Private Defence: Body or Person(Section 96,97,98,99,100,101 & 102) • Private Defence: Property ( Section 96,97,98,99, 103,104 & 105)
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 - • His own body, and the body of any other person, against any offence affecting the human body; • 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.
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. Illustrations • 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. • 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 • 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. • 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 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. • There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities. • 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.
Explanations • 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. • 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.
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: • Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; • Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; • An assault with the intention of committing rape; • An assault with the intention of gratifying unnatural lust; • An assault with the intention of kidnapping or abducting; • 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. • 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 consequence of such act.
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. 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.
Section 103:- When the right of private defence of property extends to causing death The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong- doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely: • Robbery; • House-breaking by night; • Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; • Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
Section 104:- When such right to causing any harm other than death If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.
Section 105:- Commencement and continuance of the right of private defence of property • The right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. • The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues. • The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. • The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.
Section 106:- Right of private defence against deadly assault when there is risk of harm to innocent person: If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. Illustrations • A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.
Case Laws: • Deo Narain v. State of U.P , AIR 1973 SC 473 • Kishan v. State of MP , AIR 1974 SC 244 • State of UP v. Ram Swarup, AIR 1974 SC 1574
UNIT - III TOPIC: INCHORENT FORMS OF CRIME
Joint and Constructive Liability • The concept of criminal liability generally states that if any criminal act is done by a person then he is solely responsible for such activities and only he can be held guilty for the same. However, there are few provisions laid down under Indian Penal Code 1860 embodying the principle of group liability (also termed as Joint liability, Constructive liability or vicarious liability) to determine the liability of each member of the group for the crime committed by the entire group or by any member thereof. • Offence committed by groups of persons is of frequent occurrence and courts are called upon to determine the liability of each member for the crime committed by the entire group or by any member or members thereof. • A person may be constructively and jointly liable for an offence which he did not actually commit.
The provisions contained in IPC laying down principles of joint and constructive liability may be broadly classified into five categories: • Where the criminal act is done with the common intention of the group( Section 34 to 38) • Where the offence is committed with the common object of an unlawful assembly(Section 149) • Where the persons are charged of a criminal conspiracy ( Section 120A, 121A) • Where five or more persons conjointly in the commission of dacoity commit murder( Section 396) • Where persons are jointly concerned in committing the offence of lurking house- tresspass or house-breaking by night(Section 460)
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. Section 34 of IPC embodies the common sense principle of joint liability laid down in the case of Reg v. Cruse, 1838 C&P 541, as per which if two or more persons intend to commit a crime jointly, it is the same as if each of them had done the act individually. Thus, each of them will be liable for the act in the same manner as if it were done by him alone. The present section does not create any specific offence except laying down the principle or a rule of evidence to apply in a situation wherein it may be difficult to distinguish between the acts of individual members of a group who commits a crime in furtherance of the common intention of all or to prove the liability of each individual in the group as if the act was done by each of them individually.
Object of the Act: This Section is intended to meet a case in which it may be difficult to distinguish between criminal act of individual members of a party, who act in furtherance of a common intention of all, or to prove exactly what part was taken by each of them. Illustration: A along with B & C proceeded to D’s house in order to avenge an insult by the brother of D. They opened fire on the members of D’s family. It was found that the shots of A did not hit anyone, but the shots of B and C succeeded in killing D. Since the act of firing was done in furtherance of the common intention of the group to take revenge. A is as much liable for the offence of murder as are B and C. Essentials of Section 34: • A criminal act done by several persons • Such act was done in furtherance of the common intention of all to commit that criminal act • Must participation of all by doing some act in the commission of the offence in furtherance of that common intention
Common Intention: • The essence of joint liability under Section 34 lies in the existence of a common intention to do a criminal act in furtherance of a common objective of all the members of the group. • Meaning: Section pre supposes prior concert, i.e pre arranged plan of the accused participating in an offence. It is an intention shared by the person who has committed the offence. • It may develop during the course of the occurrence and could develop on the spot- It can be formed at the spur of the moment. • In Joginder Singh v. the State of Haryana, 1995 SCC (Cri) 178, the Hon’ble Supreme Court observed that common intention can be inferred from the manner in which the accused arrived at the scene and attacked the victim along with the way of beating/ injuries caused by either of the accused and acts done by others to assist those causing the injuries. In this present case, the accused brought the weapons from the house by which other accused attacked. Thus, the common intention to commit murder was held as established.
Points of discussion: • Expression “ In furtherance of Common Intention” • Distinction between common intention and similar intention The Hon’ble Supreme Court explained the distinction between common and similar intentions in Dukhmochan Pandey v. the State of Bihar. [14]In this case, the complainant had sent some labourers to work on his field. At noon, the accused party numbering about 200 people assembled at the field with deadly weapons and asked the labourers to stop the work. When the complainant objected, two accused directed the mob to kill the labourers and thus shots were fired which resulted in the mass assault of labourers by the mob. The court while deciding the question as to whether the mob which had the common object to prevent the labourers from working in the field, had developed, on the spot, the common intention to commit murder, observed that intention could be formed previously or on the spot during the progress of crime. Thus, there should be a prearranged plan before constituting the offence under section 34, the plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly. But there must be a pre- arrangement and premeditated concert. `
• Must participation of all by doing some act in the commission of the offence in furtherance of that common intention • Participation through Physical Presence • Participation without physical presence In Tukaram Ganpat Panadare v. State of Maharashtra, AIR 1974 SC 514, the Hon’ble Supreme Court stated that the physical presence of the accused is not necessary at the place of crime, he might remain in the vicinity to alert his fellow criminals about the danger or assist them in any other way. However, the participation of each member of a group in the commission of a criminal act is a condition precedent in order to fix the joint liability.
Leading case Laws: • Mahbub Shah v. Emperor, AIR 1945 PC 118 • Barendra Kumar Ghosh v. King Emperor , AIR 1925 PC 1 • Pandurang v. State of Hyderabad, AIR 1955 SC 216 • Syresh v. State of U.P, (2001) 3 SCC 673
Unlawful Assembly ( Section 141 to 145 &149) • IPC does not punish mere assembly of persons but when such assemble is done in a way to cause terror I the minds of people and endanger public peace, the assembly is unlawful. • Section 141:Definition of ‘Unlawful Assembly’ • Section 142: Meaning of member of “ Unlawful assembly” • Section 143: Punishment for being member • Section 144 and 145 : Aggravated offences by members of such an assemble • Section 149: Liability of members of an unlawful Assembly for offence committed by one of them.
Points to be discussed: • Principle of Vicarious Liability • Membership of Unlawful Assembly • Mere presence not sufficient • Common Object In the case of Mohammad Arif v. State of Gujarat, AIR 1997 SC 105, the agreement was only to give a thrashing to the victim specifically, but one of them pulled out a knife and stabbed the victim, the Court held that the object to cause a fatal injury was not known to other members at the initial stage nor at the execution stage which could make all others liable for the death. Therefore, it can be construed that the other members of the unlawful assembly were not constructively liable for the offence committed by another member as the main ingredient, that is, the common object was not present.
Leading Case Laws: • Mizaji v. State of U.P, AIR 1959 SC 572 • Madan Singh v. State of Bihar, (2004) 4 SCC 622 Distinction between Section 34 and Section 149 • Section 34 is a mere principle of liability while section 149 creates a specific offence • The distinction between ‘Common Intention and Common Object’ • The distinction between ‘participation’ and ‘membership’ • Number of Participants
• In the leading case of Shiv Ram v. State of Uttar Pradesh, AIR 1998 SC 49 the accused persons committed murders of the family members of the deceased under a belief that they were giving shelter to suspects who alleged to have killed brother of the main accused, in a most brutal manner by severing three heads and roasting alive an innocent boy of 10 years in the fire. The Apex Court held that an unlawful assembly could develop a common object in a spur of the moment when five- person were put to death in a brutal manner. It provides that even if anyone member of the unlawful assembly commits an offence, then all the other members will be liable for it, even though there was no common intention between him and them to commit it, provided that the conditions of that section are fulfilled namely- • An offence committed in furtherance of the common object of the unlawful assembly • The offence committed was of such nature that the other members knew it to be likely to be committed in furtherance of the common object.
Criminal Conspiracy • Criminal conspiracy and joint liability are terms that go hand in hand. Joint liability is the liability that is shared by people who conspired to an unlawful act. All the people who have agreed on doing an unlawful act, with criminal intent, will be jointly liable for the conspiracy. • Chapter VII deals with this provision and consists of only two Sections 120A and 120B. These sections introduced the concept of Criminal Conspiracy. • In 1868, the scope was widened by adding Section 121A of the Indian Penal Code, 1862 as initially Criminal conspiracy was considered a civil offence. The idea behind this was two-fold Abetment in any offence; or Conspiracy with criminal intent.
• 120A. Definition of criminal conspiracy • When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: • Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. • Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
• 120B. Punishment of criminal conspiracy (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Meaning of Criminal Conspiracy: It is the agreement of two or more persons to do an illegal act, to do a legal act by illegal means. In other words, a joint evil intent is necessary to constitute crimes. No physical action need take place. For instance, A and B made a plan to murder C, letters passed between them as to movement of C. Here both A and B are liable for indictment to a charge of Criminal Conspiracy under thisSection. Ingredients • There must be two or more persons; • There must be an illegal act or an act in an illegal way; • There must be a meeting of minds; • There must be an agreement regarding the same thing.
• In Ram Narayan Poply v. CBI, (2003) 3 SCC 641 the court laid down several aspects of Criminal Conspiracy, (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. Cases to be discussed: • Bimbadhar Pradhan v. State of Orissa, AIR 1956 v. State of Orissa • State v. Nalini ( Rajiv Gandhi Murder Case), (1999) 5 SC 60
Abetment • Chapter V of the Indian Penal Code deals with the offences related to abetment. • A person not committing a crime himself, may still encourage, urge, command, request, induce or assist a third party in committing wrong and as a result of such commission be guilty of the offence of abetment. • In other words, Under the code a person becomes liable as an abettor if he instigates another to commit a crime and some act is done in furtherance of such conspiracy. • The term ‘abet’ in general usage means to assist, advance,aid,conduce, help and promote. • In Kartar Singh v. State of Punjab,(1994) Cr LJ 3139 SC, SC defined the word ‘abet’ as meaning to aid,to assist or to give aid, to command, to procure, to encourage or to set another one to commit.(The meaning of Abetment has been defined in Corpus Juris Secundum)
107. Abetment of a thing A person abets the doing of a thing, who - • First- Instigates any person to do that thing; or • Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or • Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation1- A person who by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration • 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. Here B abets by instigation the apprehension of C. Explanation 2- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.
108. Abettor A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. Explanation 1- The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act. Explanation 2- To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. Illustrations • (a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.
• Explanation 3- lt. is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or intention or knowledge as that of the abettor, or any guilty intention or knowledge. Illustrations • (a) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence, if committed by a person capable by law of committing an offence, and having the same intention as A. Here A, whether the act be committed or not, is guilty of abetting an offence.
• Explanation 4- The abetment of an offence being an offence, the abetment of such an abetment is also as offence. Illustration • A instigates B to instigate C to murder Z B accordingly instigates C to murder Z, and C commits that offence in consequence of B's instigation. B is liable to be punished for his offence with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same punishment.
• Explanation 5- lt. is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. Illustration • A concerts with B a plan for poisoning Z It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A's name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder.
Punishments 109. Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment • Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
• Explanation- An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment. Illustrations • (a) A offers a bribe to B, a public servant, as a reward for showing A some favor in the exercise of B's official functions. B accepts the bribe. A has abetted the offence defined in section 161.
110. Punishment of abetment if person abetted does act with different intention from that of abettor Whoever abets the commission of an offence shall, if the person abetted does the act with a different intention or knowledge from that of the abettor, be punished with the punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor and with no other.
111. Liability of abettor when one act abetted and different act done When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it: Proviso- Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment. Illustrations • A instigates a child to put poison into the food of Z, and gives him poison for that purpose. The child, in consequence of the instigation, by mistake puts the poison into the food of Y, which is by the side of that of Z. Here, if the child was acting under the influence of A 's instigation, and the act done was under the circumstances a probable consequence of the abetment. A is liable in the same manner and to the same extent as if he had instigated the child to put the poison into the food of Y.
112. Abettor when liable to cumulative punishment for act abetted and for act done If the act for which the abettor is liable under the last preceding section is committed in addition to the act abetted, and constitutes a distinct offence, the abettor is liable to punishment for each of the offences. Illustration • A instigates B to resist by force a distress made by a public servant. B, in consequence, resists that distress. in offering the resistance, B voluntarily causes grievous hurt to the officer executing the distress. As B has committed both the offence of resisting the distress, and the offence of voluntarily causing grievous hurt, B is liable to punishment for both these offences; and, if A knew that B was likely voluntarily to cause grievous hurt in resisting the distress A will also be liable to punishment for each of the offences.
113. Liability of abettor for an effect caused by the act abetted different from that intended by the abettor When an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment, caused a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect. Illustration • A instigates B to cause grievous hurt to Z. B, in consequence of the instigation, causes grievous hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt abetted was likely to cause death, A is liable to be punished with the punishment provided for murder.
114. Abettor present when offence is committed Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
115. Abetment of offence punishable with death or imprisonment for life-if offence not committed Whoever abets the commission of an offence punishable with death or [imprisonment for life], shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; If act causing harm be done in consequence- and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine. Illustration • A instigates B to murder Z. The offence is not committed. If B had murdered Z, he would have been subject to the punishment of death or [imprisonment for life]. Therefore A is liable to imprisonment for a term which may extend to seven years and also to a fine; and if any hurt be done to Z in consequence of the abetment, he will be liable to imprisonment for a term which may extend to fourteen years, and to fine. •
116. Abetment of offence punishable with imprisonment-if offence be not committed Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one-fourth part of the longest term provided for that offence; or with such fine as is provided for that offence, or with both; If abettor or person abetted be a public servant whose duty it is to prevent offence- and if the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence, for a term which may extend to one half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both. Illustrations • (a) A offers a bribe to B, a public servant, as a reward for showing A some favor in the exercise of B's official functions. B refuses to accept the bribe. A is punishable under this section.
117. Abetting commission of offence by the public or by more than ten persons Whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Illustration • A affixes in a public place a placard instigating a sect consisting of more than ten members to meet at a certain time and place, for the purpose of attacking the members of an adverse sect, while engaged in a procession. A has committed the offence defined in this section.
118. Concealing design to commit offence punishable with death or imprisonment for life Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with death or [imprisonment for life]; voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence or makes any representation which he knows to be false respecting such design, If offence be committed-if offence be not committed- shall, if that offence be committed, be punished with imprisonment of either description for a term which may extend to seven years, or, if the offence be not committed, with imprisonment of either description, for a term which may extend to three years; and in either case shall also be liable to fine. Illustration • A, knowing that dacoity is about to be committed at B, falsely informs the Magistrate that a dacoity is about to be committed at C, a place in an opposite direction and thereby misleads the Magistrate with intent to facilitate the commission of the offence. The dacoity is committed at B in pursuance of the design. A is punishable under this section. •
119. Public servant concealing design to commit offence which it is his duty to prevent Whoever, being a public servant, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence which it is his duty as such public servant to prevent; voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design;
• If offence be committed- shall, if the offence be committed, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of such imprisonment, or with such fine as is provided for that offence, or with both; • If offence be punishable with death, etc- or, if the offence be punishable with death or [imprisonment for life], with imprisonment of either description for a term which may extend to ten years; • If offence be not committed- or if the offence be not committed, shall be punished with imprisonment of any description provided for the offence for a term which may extend to one-fourth part of the longest term of such imprisonment or with such fine as is provided for the offence, or with both. Illustration • A, an officer of police, being legally bound to give information of all designs to commit robbery which may come to his knowledge, and knowing that B designs to commit robbery, omits to give such information, with intent to facilitate the commission of that offence. Here A has by an illegal omission concealed the existence of B's design, and is liable to punishment according to the provision of this section.
120. Concealing design to commit offence punishable with imprisonment Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design, If offence be committed-if offence be not committed- shall, if the offence be committed, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth, and, if the offence be not committed, to one-eighth, of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both.
Difference between Section 120B and Section 107, Indian Penal Code 1860 • Section 107 of the Indian Penal Code, 1860 states the offence of Abetment. The section states that: If a person is aiding in an illegal act; Instigates a person to do an illegal act; Engages in a conspiracy and an act is performed in pursuance of the conspiracy. • Section 120B is suggestive of the punishment of conspiracy. • The basic difference lies in the fact that in one case, there just needs to be a meeting of minds in order to do an illegal act, abetment requires an act in pursuance of the agreement. • Another point is that abetment involves aiding in a crime or a conspiracy, whereas criminal conspiracy just requires a meeting of minds.
Cases to be discussed: • Ram Kumar v. State of Himachal Pradesh, AIR 1995 SC 1965 • Noor Mohammad Yusuf v. State of Maharashtra, AIR 1971 SC 885
Attempt (Inchoate Crimes) • Liability begins only at a stage when the offendor has done some act which not only manifests his mens rea but goes way towards carrying it out. These are known as inchoate Crimes. Statutory Framework of Attempt • Criminal Law takes notice of attempt as a punishable wrong and awards punishment more or less severe according to the nature of the act attempted. The IPC has dealt with attempt in three different ways: • In some cases commission and attempt are dealt in the same section and punishment is prescribed for both ( Section, 398 and 460) • In some cases attempts are treated as separate offences and punished accordingly
(a ) Attempt to commit Murder ( Section 307) ( b) Attempt tocommit culpable homicide ( Section 308) (c ) Attempt to commit Suicide ( Section 309) (d)Attempt to commit Robbery (Section 393) • The offences of attempt which are not covered by the above two classes are governed by the general provisions contained in Section 511.
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 Zs having nothing in his pocket. A is guilty under this section. •
Definition of Attempt The absence of definition of attempt to commit offences made the courts in course of time to eveolve certain tests to determine whether the act amounts to attempt or not. These are: • Promixity Rule • Doctrine of Locus Paenitentiae • Impossibility Test • Social danger Test • Equivocality Test Case Laws: • Abhyanand Mishra v. State of Bihar, AIR 1961 SC 1698 • State of Maharashtra v. Mohd Yakub, AIR 1980 SC 111 • Om Prakash v. State of Punjab ( Attempt To Murder ) , AIR 1961 SC 1782
UNIT - IV TOPIC: PUNISHMENT
Offences Against the State • The Indian Penal Code, 1860 deals with offences against the State under Chapter VI (Section 121 to Section 130). The purpose of these codes is to ensure the safety of the State as a whole. The existence of the State can be safeguarded by giving severe punishments in case of offences against the State such as life imprisonment or the death penalty. Offences against the State as well as the government to disturb the public tranquillity, public order and national integration. The offences under this Chapter can be classified into five categories. These are: • Waging War against the Government of India ( Section 121-123) • Assaulting President, Governor ( Section 124) • Sedition ( 124A) • Waging War against Asiatic Power ( Section 125-126) • Permitting or aiding escape of a State Prisoner ( Section 128-130)
Waging War against the Government of India ( Section 121-123) • Waging war means an attempt to fulfill any purpose of public nature by the means of violence. Such a war occurs when several people rise and assemble against the State in order to attain any object of public nature by force and violence. • The Code has incorporated the common law concept of Self-Preservation of state and has provided for severe punishment. • Under Section 121, the following are considered as essentials of the offences as they need to be proved in order to constitute an offence for waging war against the Government of India: The accused must have: • Waged war; or • Attempted to wage war; or • Abetted the waging of war.
• For instance, in the case of Mumbai Terror Attack, the first and the primary offence committed by the appellant and other conspirators was the offence of waging war against the Government of India. The attack was by foreign nationals and aimed at Indians and India. The purpose of this attack was to accelerate communal tensions, affect the financial situation of the country and most importantly to demand India to surrender Kashmir. Therefore, under Section 121, 121A and 122 of the Code, the appellant was rightly held guilty for waging war against the Government of India. Things to Discuss: • Difference between Waging war and Rioting
Conspiracy to Wage War ( Section 121 A): • Section 121A was added to IPC in 1870. It states that it is not necessary for any act or illegal omission to take place explicitly in order to constitute a conspiracy. This section deals with two types of conspiracies: • Conspiring to commit an offence punishable under Section 121 of the Code, within or without India. • Conspiring to overawe, that is, intimidated by means of criminal force or a mere show of criminal force against the Government. The punishment under this Section includes imprisonment for ten years or life imprisonment along with a fine. Such punishment can be given by the Central Government as well as the State Government. Case: S.H Jhabwala v. Emperor ( Meerut Conspiracy Case),ILR (1933) 55 All 1040
Section 122 of the IPC deals with the preparation of war. There is a difference between an attempt and preparation for committing the offence. The essentials of this Section are: • Collection of men, arms and ammunition. • There must be an intention to wage war or make preparations to wage war for such collection. • The accused must participate in such collection. • The war must be waged against the Government of India. The punishment under this Section is either life imprisonment or imprisonment for ten years along with a fine. For instance, if print material along with other things are found in the room of the accused, then they are neither considered objectionable nor infuriating. Thus the accused cannot be convicted under this Section.
Section 123 of the IPC deals with the concealment of design to wage war. The essentials of this Section are: • There must be an existence of a design which is prepared to wage war against the Government of India. • The concealment should be done with the intention of facilitating the war against the Government of India. • The person should be knowing about the concealment of the design. The punishment under this Section is imprisonment of up to ten years along with a fine. For instance, in the Parliament attack case, the accused had information of conspiracy along with a plan of terrorists. Thus his illegal omission made him liable under Section 123 of the IPC.
Assaulting President, Governor ( Section 124) Section 124 of the IPC deals with the assault on high officials, that is, the President, Governor, etc. Such assault should be done with the intention of inducing or compelling the high officials to exercise or refrain from exercising their lawful powers. The ingredients of this Section are: • The accused should have assaulted the President or the Governor of any State; or • The accused should have wrongfully restrained the President or the Governor; or • The accused attempted to assault or wrongfully restrain the President or the Governor; or • The accused attempts to instigate or influence the President or the Governor with force or show of force with an intention to compel them from exercising or refraining from exercising their powers.
Sedition ( 124A) • Sedition is nothing but libel ( defamation) of the established authority of Law i.e Government. • Section 124A of IPC deals with sedition. This offence means that the intention is to bring hatred or contempt or excite disaffection (including disloyalty and a feeling of enmity) against the Government of India. • Abetting the war is a special type of offence. The main purpose of such instigation should be necessarily waging of war. • For instance, in Najot Sandhu’s case, the appellant was a part of the criminal conspiracy and was deemed to have abetted the offence. He took an active part in a series of steps taken for the purpose of the conspiracy. Therefore, the judgement given by the High Court was upheld and the appellant was convicted under Section 121 of IPC. • In a case under Section 121 of IPC if the charge doesn’t set out the speeches to be seditious, then this doesn’t spoil or affect the proceedings. Thus, it can be concluded that there is a difference between sedition and abetting war.
Ingredients: • Hatred • Disaffection • Words, Sign, Visible Representation or Otherwise • Act must be Intentional Constitutional Validity of Section 124A • In Ram Nandan v. State of U.P. was the first case in which the constitutional validity of sedition was questioned. The Allahabad High Court held that the Section imposed a restriction on freedom of speech and was not considered to be in the interest of the general public. Therefore, this Section was considered as ultra vires to the constitution. However, it was overruled in the case of Kedar Nath Das v. State of Bihar In this case, it was held that this Section would only limit the acts involving an intention to create a disturbance of law and order or enticement of violence. Thus, the Supreme Court held this Section intra vires.
Waging War against Asiatic Power ( Section 125-126) • Section 125 deals with ‘Waging war against any Asiatic Power in alliance with the Government of India. This Section contempts the waging of war against any Asiatic power. Here, the accused should have waged war against the State or attempted to wage war, or abetted the waging of war. The essentials of this Section are: • There must be an Asiatic State along with an international influence. • Such a State should be other than India. • Such a State should be in alliance with or at pace with the Government of India. The punishment under this Section is life imprisonment or imprisonment for seven years along with a fine in some cases; or fine.
• Section 126 deals with ‘Depredation on territories of Power at peace with the Government of India’. Depredation refers to an act of attacking. The essentials of this Section are: • The accused should have committed or prepared to commit depredation. • The act must be done on the territories of any power which is in alliance with or at peace with the Government of India. Punishment under this Section is imprisonment for a term of seven years along with a fine. Any property used for the purpose of committing such offence or acquired as a result of this offence can also be forfeited.
• Section 127deals with the ‘Receiving property taken by war or depredation as mentioned in Section 125 and 126’. The essentials of this Section are: • The accused must have received any property. • The accused must have been received the property by waging war with a Power at peace with the Government of India or by committing depredation on its territories. Punishment under this Section is imprisonment for a term of seven years along with a fine. Also, the property must be forfeited.
Permitting or aiding escape of a State Prisoner ( Section 128-130) • Section 128, 129 and 130 deals with the various aspects of the escape of a state prisoner. • The expression ‘State prisoner’ refers to a person whose imprisonment is necessary to preserve the security of India from internal disturbances as well as foreign hostility. • Section 128 of the IPC deals with ‘public servants voluntarily allowing prisoners of State or war to escape’. The ingredients of this Section are: • The accused should be a public servant; or • The confined person should be a prisoner of State or war; or • Such prisoner should be in the custody of the accused person; or • The accused servant should have allowed such a prisoner to escape voluntarily.
• Section 129 of the IPC deals with ‘public servant negligently causing the prisoner of State or war to escape’. The ingredients of this Section are: • The accused should be a public servant, necessarily at the time of committing the offence. • Such a prisoner should be in the custody of the accused person. • Such a prisoner should be rescued or escaped. • Such an escape or rescue should be due to the negligence of the accused.
• Section 130 of the IPC deals with the ‘any person who aids or assists the escape of, rescuing, or harbouring of a prisoner of State or the war to escape’. This Section is more extensive as compared to Section 128 and 129. The ingredients of this Section are: • The accused knowingly aids or attempts to aid, rescue, harbour or conceal such prisoner. • Such a prisoner should be in lawful custody. • The act or omission should be done intentionally or knowingly. Punishment under this Section is life imprisonment or imprisonment up to ten years, and a fine.
Offences Against Public Tranquility ( Section 141-160) • Under IPC chapter eight deals with public offences. These offences could be categorized into four: • Unlawful assembly; • Rioting; • Enmity amongst different classes; • Affray.
Unlawful Assembly: Section 141 • Section 141 of the IPC, 1860 deals with the unlawful assembly. Article 19(1)(B) of the Indian Constitution,1950 confers a fundamental right to assemble peacefully however this section seeks to criminalize an unlawful assembly. For the constitution of an offence of unlawful assembly five ingredients have to be established and they are as follows: • An assemblage of five or more persons- Mohan Singh v. State of Punjab, AIR 1963 SC 174 • All of them must have a common object • Object Must be one of Those Specified in Section 141
The common object could be: • To overawe the central or the state government or its officers by showing criminal force • Resisting the execution of legal process • Act of committing mischief, criminal trespass • Possession and dispossession of property by exercise of force • Illegal compulsion Section 142 lays down the provision with respect to the definition of a person who can be said to be a member of an unlawful assembly. There are two circumstances: • A person being aware of all all the required facts which make the assembly unlawful • Joins or continues being a part of it with all intention even after knowing all the facts
• Section 143 provides for Punishment. • Section 144 contemplates an aggravated form of the offence of unlawful assembly when the person joins it accompanied with a deadly weapon and a punishment of two years of imprisonment and fine is provided for the same. The Ingredients which need to be satisfied before Section 144 can be imposed on a person are as given below: • A member of an unlawful assembly • Use of a deadly weapon or a weapon which if used is likely to cause death • Section 145 lays down the provision wherein a person joins or continues in an unlawful assembly that has been commanded to be dispersed. Such a person shall be punished with imprisonment of two years. However, if such an assembly is not unlawful and constitute a group of five or persons who have been ordered to disperse, so any person joining or continuing to disturb the public peace shall be punishable under Section 151. Section mandates that the accused must have caused disturbance knowingly.
• Section 149 of the Act, makes the member of an unlawful assembly constructively liable for the act done by any member of the unlawful assembly, however, it is to be noted that the act done by the member should be in pursuance of the common objective, otherwise other members of the assembly, who have not committed the offence could not be held liable
Rioting (Section 146 – 148) • When an offence is committed by a group of people or any person belonging to that group, is termed as rioting. For rioting the presence of at least 5 people is necessary. • The application of section 146 presupposes the existence of an unlawful assembly with a common object to achieve. The other ingredients which must be satisfied for the conviction for an offence of rioting are: • Force or violence have been exercised by the assembly • Exercise of such force and violence has been done pursuance to achieving their common object. • Section 147:Punishment for the offence of rioting is imprisonment for two years or fine or both • Section 148 speaks about an aggravated version of Section 146 where the unlawful assembly commits riots by using a deadly weapon. The punishment for such an offence is three years. Nevertheless, if in an unlawful assembly committing riots only a few members are armed with deadly weapons then the other will not be held liable under Section 148 and will only be punished under Section 147
• Section 152 holds a person liable if he assaults or obstructs the suppression of a riot or affray by exercising force or threat to a public servant who is trying to disperse an unlawful assembly by punishing such a person with imprisonment for three years. • Section 153 is important with reference to provoking with an intention that a riot be carried out by an unlawful assembly. A person can be convicted under this section if he in pursuance to aforementioned intention does any act which illegal in a malicious or reckless manner. • Section 154 makes the owner or occupier of a land criminally liable who fails to give information to the public authorities or take necessary legal steps to the unlawful assembly or riot being carried out on such land. • Section 155 deals with the action of an owner or occupier of the land who claims any interest in the dispute which gave rise to the riot or derives any benefit due to such a riot, if fails to use any lawful means to prevent or suppress such riot must be punished • Section 156 deals contemplate the sanctions on an agent or manager or owner of the land on which riot has taken place if they had reasons to believe that such a riot may take place and have thereby have failed to suppress or prevent it and have derived some benefit therefrom.
Promoting Enmity between Classes(Section 153A, 153B, 153AA) • Section 153A was inserted in the Code in the year 1898 with a view to subside the breach of public peace and tranquillity due to conflicts and mutual abuse amongst various classes. • The section holds a person guilty who promotes or attempt to promote discord and animosity between different regional, caste, religion or racial communities and such act must disturb or must be likely to disturb the public tranquillity. Further, any sort of movement, exercise, activity or drill perpetuating the use of force or violence against any of the groups aforementioned shall also fall in the ambit of Section 153A. • Section 153AA prohibits any mass drill or mass training with carrying of arms in a public place by a person who does thiswhile knowing the fact that such an act is in contravention of a public notice issued under Section 144A of Code of Criminal Procedure. Such a person shall be punished with imprisonment for six months and a penalty of two thousand rupees

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