Law of crimes(class 1)

 Difference between criminal wrong and civil wrongs based on :

1. Kind of punishment- higher level of punishment in criminal law and lower
for civil wrongs.
2. Prosecution – state prosecutes in criminal law
3. Intention – it is taken into consideration for criminal law.
 Punishment is the touchstone whether there is a crime or not. Punishment includes:
-death
-imprisonment
-penal servitude
-forfeiture of property
-fine
Fine goes to the state and compensation goes to the individual.
Tests
 For a crime to be committed, the following test have to be satisfied:
1. Beyond reasonable doubt – look for more evidence; make sure that the person has
committed the crime.
 For a civil wrong to be committed, the test looks at preponderance of probabilities.

 To prove a person liable in criminal law is slightly higher than in civil law. The burden of
proof is higher in the case of criminal law as compared to civil law.
 Criminal law punishes for attempt and commission but does not punish for preparation.

Class 2

 Technocratic view of law requires punishment.

 Human level of interpretation –

Antonio Gramsci distinguishes between common sense and good sense. What you believe is a
freely willed conduct is sometimes a manufactured conduct. In reality, you are a puppet but
you think you are performing that act freely.
Gramsci’s sense of common sense is related to the society.
 Criminal law is a product of power; as an instrument to maintain the status quo.
 Michel Foucault ‘s Centre- periphery analysis –
Every society has a centre and a periphery. At the centre, there is the state/family/market.
There would be corresponding peripheries. Those who are at the centre are the ones who have
authority.
State is the one which makes the law and the corresponding periphery is the prison. Prisons
consist of those people who are in some way not following the rules of the state are thrown to
the periphery. Those who were not agreeing to the state were thrown into prison. It is not
necessary that the centre is right and the prisoners are wrong.
Periphery for family- asylum
Periphery for market – slum
Centre has to make sure that certain periphery is remained. Centre has to push certain people
to the periphery or organise the periphery.
Family is at the centre. Those who do not fit with the notion of family belong to the asylum.
The notion of family prevalent in the society is the hetero-normative notion of family. Those
 people who question the notion of family are pushed to the periphery. For example:
Homosexuality is pushed to the periphery.
 Robert Merton says that there are goals in the society created by the media and other
individuals. It throws certain images of the community. These goals cannot be attained by
everyone. Those who cannot attain these goals, break the norms. Those who are unable to
achieve these goals and are courageous enough become suicides. Durkheim and Merton say
that suicide occurs because of the social setup.
 According to this, criminal law can be used as an instrument of power. Criminals are people
who are unable to attain the image set by the society and hence turn out to be suicides.
Class 3

 Jeremy Bentham – codification of law and theory of legislation

 Elements of crime:
1. Actus reus- an act which is prohibited by the state.
Acts include illegal omissions. An act of not saving a child by a stranger is not an
illegal omission because there is no legal duty. However, when you are the mother of
the child then you have the legal duty to save the child. Law and morality occupy a
different space. Moral fabric also affects criminal law. What is morally wrong cannot
be legally right. Law influences morality – article 17 prohibits untouchability.
2. Mens Rea – guilty mind and criminal intention. It brings about the basic distinction
between criminal law and civil law.
Difference between intention and motive – motive has a role to play in criminal
culpability. Motive is the ulterior objective and not considered for criminal law.
3. Causal chain – causation means the act and the effect should be related. There should
be a cause-effect relationship. There should be a chain connecting the cause and
consequence.
There are two principles which can break the chain of causation:
1. Intentional intervention of a third party – if a third party intervention results in a
crime, then the original person is liable for culpable homicide. Rationale use:
when a third party intervention occurs, then you cannot be certain of the result.
For e.g. When SRK throws Shilpa Shetty from the terrace with an intention to kill and
at the same time a gunmen from the second floor shoots Shipla Shetty in the head
while she is falling with an intention to kill without knowing that SRK had pushed
her; then this act would break the chain of causation.
2. Unforeseen cause of events

Emperor v. Mushnooru Suryanarayana Murthy

Facts –

The appellant with the intention of killing Appala Narasimhulu gave him some sweetmeat with poison
containing arsenic and mercury mixed in soluble form. The appellant ate a portion of the sweet meat
and threw the remaining portion of it. The thrown half was eaten by the niece of the appellant,
Rajalakshmi, and another child who died as result. However, Appala Narasimhulu survived.

Issue

Whether the court should hold the appellant liable for Rajalakshmi’s murder?
Rule

Section 299, 300 and 301 of the IPC.

Application

Section 299, i.e. culpable homicide in general does not refer to the death of a particular person. For
example, suppose A lays sticks and turf over a pit with the intention to cause death and with the
knowledge that death will be likely to be caused. But then Z comes along and falls into the pit, then A
will be liable for culpable homicide even though he intended not to kill Z. Section 300 is a furtherance
of this principal. Moreover, it is clearly laid down in section 301 that a person who causes death of a
person other than the person he/she intended will be still liable for culpable homicide under section
301.Section 301 also functions as the doctrine of transferred malice where the malicious ill-will is
transferred when C dies instead of B dying and A will be still liable.

Conclusion

The court held that the accused is guilty of murder as defined in sections 299 to 301 of the IPC.

Palani Goudan V. Emperor

Facts

The accused kept constantly beating his wife. One day he hit the wife on her head with a ploughshare
and knocked her down. Believing her to be dead, he immediately hung her in order to show that she
had committed suicide. She died as a result due to suffocation.

Issue

Will the accused be liable for murder or culpable homicide? Whether we can say that initial intention
of causing hurt can be transferred to the subsequent transaction resulting in death of the person?

Rule

Section 201 and 307.

Application

Here the judges say that the person cannot be held liable for murder or culpable homicide as the
intention of the accused was to cause hurt and not to murder his wife. The initial act of hitting her
wife is a completely different transaction as compared to the second act of killing her. There is no
concurrence of means rea and actus rea in this case. Hence, here the initial intention cannot be
transferred to the subsequent act. Therefore, here the accused will be held liable for tampering with
the evidence under Section 201 and will be liable for causing injury.

Conclusion

Hence the accused is liable for the original assault on his wife and his attempt to create false evidence
by hanging her.

Emperor v. Dhirajia
Facts

Mt. Dhirajia was married to Jhagga. She had a 6 months old baby. Jhagga treated Mt. Dhirajia treated
cruelly – abused her and beat her quite frequently.One day, Mt. Dhirajia trying to escape from Jhagga
jumps into a well along with her baby.Mt. Dhirajia survives and the baby dies. Mt. Dhirajia tried for
murder by the Sessions judge of Benares and attempt to commit suicide by a jury.

Issue

Whether it is a case of culpable homicide under section 299(c) or murder under section 300(4)?

Rule

Section 299 (c), section 300 (4) and section 309.

Section 299 – culpable homicide

Section 299 (c) – the knowledge of that fact that such an act would likely cause death.

Section 300 – Murder

Section 300 (4) –

If the person committing the act knows that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely to cause death, and commits such an act
without any excuse for incurring the risk of causing death or injury as aforesaid

Application

Here the appellant had no intention to cause death of the baby. No room for intention as she was in a
panic to run away from her spouse. She did have the knowledge that her act would likely to cause
death of the child and cannot be ignorant. Hence it was held that this was a case of culpable homicide.
The court held that it is not a case of murder as here she had an excuse of to escape from her spouse
because of the panic or fright. Also she could not have committed suicide under section 309 as her act
of jumping into the well was not a conscious effort to take her own life but an effort to escape from
her husband. The court used the subjective test to determine the practicality of her excuse.

Conclusion

The court held that she was liable for culpable homicide and not murder. Further, she was also
acquitted from the charge of attempt to commit suicide.

Gyarsibai V. The state

Facts

The appellant’s husband and her sister-in-law kept troubling and harassing the appellant.The appellant
jumped into the well along with her three children in order to escape the torment of her husband and
her sister-in-law. However, her children died and she survived.

Issue

Whether she is liable for murder and attempt to commit suicide?

Rule

Section 300(4), Section 302 and Section 309.

Application

The court held that according to Section 300 (4), she is liable for murder. The appellant had no
intention of causing death to her children but at the same time she had no proper excuse of jumping
into the well along with her kids. The mere excuse of harassment and trauma she faced at her house is
not sufficient to cause death to her children. Also, she attempted to commit suicide as she main
intention was to take her own life. The court used the objective test to determine the practicality
of her excuse.

Conclusion

The court punished her for murder under section 302 and attempt to commit suicide under section
309.

Subjectivism Unlawful act theory

You are liable for what you can foresee. The IPC If a person is consciously committing an unlawful
relies more on subjectivism. act and during the commission of the act causes
someone’s death, then he should be held liable for
it. When you do an illegal act, you cross the
moral threshold. If you rob a bank and in the
process kill someone, then you will be liable.

How do we decide that someone is liable for a

crime?
 Unlawful theory act
 Felony-murder rule – this rule is a part of
English law and has been rejected by the
IPC. According to this rule, if it can be
proved that you are committing a grave
crime and in the process cause the death
of someone else. It is a slight
modification of the unlawful act theory.

Culpable homicide Murder

(a) Death has to be caused with the intention
to cause death.(no change)
(b) With the intention of causing bodily
injury likely to cause death
(c) With the knowledge that the act is likely
to cause death
(1) Intention to cause death(no change)
(2) With the intention to cause bodily injury
where the offender knows to whom the
harm will be caused;
(3) With the intention to cause death and is
sufficient in the ordinary course of nature
(4) So imminently dangerous that it must in
all probability cause death
Distinction between b and 2 – in 2 the offender knows that the particular person injured is likely ,
either from peculiarity of constitution, or immature age or special circumstance to be killed by an
injury which not ordinarily cause death.

Distinction between b and 3 – bodily injury inflicted is likely to cause death under culpable homicide
and in murder the injury inflicted is sufficient in the ordinary course of nature to cause death.

Section 299 and its inherent contradiction

Explanation 1 is an inherent contradiction to the section. It covers egg shell skull cases.

Explanation 2 - you will be liable for death caused by bodily injury even if you have resorted to
proper means to the save the life of that person

Explanation 3- a person will not be liable for culpable homicide if the child is in the mother’s womb.

Murder is an aggravated form of culpable homicide. A person falling under section 300 has an
aggravated form of men’s rea. In order for an act to be a murder it has to qualify as culpable homicide
first.

Virsa Singh V. State of Punjab

Facts

The appellant Virsa Singh inflicted an injury on Khem Singh on the lower abdomen which resulted in
the death of the person. The doctor’s report showed that the injury was in the ordinary course of
nature sufficient to cause death.

Issue

Whether the appellant is liable under section 300 (3) for murder? Whether the appellant had the
intended to cause bodily injury of the type he wanted to inflict?

Rule

Section 300 (3) – intention of causing bodily injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death.

Application

The court used the subjective test to determine the intention of the appellant to cause bodily injury.
The first clause is satisfied as here the appellant was clearly inflicting an injury of the kind he wanted.
In order to determine whether it was sufficient enough in the ordinary course of nature to cause death,
the court applied the objective test. The objective test takes into account the vital organs of the body
and whether the injury was inflicted on the vital organs of the body. The court used the post-mortem
report (doctor’s evidence) to declare that the injury was sufficient in the ordinary course of nature to
cause death.

Conclusion

The appellant was held liable under section 300(3) for murder and was convicted under section 302 of
the IPC.
Gudhar Dusadh V. State of Bihar

Facts

Prasadi Dusadh and Ganesh Dusadh killed a goat which belonged to Baharan Bhagat. Baharan Bhagat
filed a police compliant upon the deceased’s advice (Ramlal). However, on the next day when the
deceased and his son went to their field, they were assaulted by a group of six men. The appellant
inflicted a lathi blow on Ramlal’s head and a result he died.

Issue

Whether offence committed by the appellant is murder or culpable homicide ?

Rule

Section 300(3) and Section 302.

Application

The court held that it was not a case of culpable homicide not amounting to murder as the act was
premeditated and not accidental in nature. The court used the subjective test and confirmed that here
there was a clear intention to cause bodily injury. The court used the objective test to prove that the
injury inflicted was in the ordinary course of nature sufficient to cause death. This was concluded on
the medical testimony provided by the doctor.

Conclusion

The appellant was liable under section 300(3) and convicted under sections 302 and 147 of the IPC.

Major criticism of the case

The present case reduced Virsa Singh’s case to the doctor’s test. The judgement completely
relies on medical evidence.

Culpable homicide (section 299) – murder (section 300) – culpable homicide (exceptions to murder)

Culpable homicide (section 299) is the simplictor.

Special exceptions are only partial defence to criminal liability. General exceptions give you a
complete defence. Provocation is a special exception and we give this exception to accept human
frailty.

Across the common-law world, there are two types of tests applied for the defence of provocation:

1. Objective test
2. Subjective provocation
If you claim provocation you apply the objective test. The defence of provocation is not given
to hyper-sensitive people. Whether a reasonable man in your position will be provoked?
Subjective test – you have to prove the accused is provoked and not just an ordinary person is
provoked. We look at you and your beliefs. We also look at whether not just you were
provoked but whether an ordinary person is provoked. Whether words or gestures are
sufficient enough for provocation or being a witness is sufficient?
1. Yes , words are sufficient – KM Nanavati
 2. Grave and sudden – no cooling down period
The Supreme Court held that provocation happened when the women confessed adultery,
but, there was sufficient cooling down period.
Cumulative Provocation- many things happened taken together has a bad effect.
In Indian law, the status on cumulative provocation is not accepted. In India, cumulative
provocation was given for many cases despite the presence of sudden provocation. Indian
law is more progressive than English and Australian law.

R V. Tran

Facts

The appellant entered to the house of his estranged wife unexpected and uninvited. His wife and her
lover were having their lone moments and he witnessed them naked. In a fit of rage he went to the
kitchen and brought two knives with which he killed the wife and her lover brutally.

Issue

Whether the appellant was provoked which led to his committing the crime?

Rule

Section 300- exception 1

Application

The court used the objective test as well as the subjective test to determine whether the appellant was
provoked. According to the objective test, any wrongful act or insult was sufficient enough to deprive
an ordinary person of the power of self-control. The court held that an ordinary person must be
informed by contemporary norms of behaviour including fundamental values such as the commitment
to equality as provided in the Canadian charter of rights and freedoms. Once it has been established
that the wrongful act or insult was sufficient to deprive an ordinary person from self-control, and then
we have to move on the subjective test. Here the appellant was already divorced and hence his
discovery of the affair between his wife and her lover does not support the contention of an insult. The
subjective element is described as two-fold: 1. the accused must have acted in response to the
provocation 2. On the sudden before there was sufficient time cooling down. Here, the appellant had
sufficient time to react to the situation as there was sufficient cooling down period before the act of
picking up knives from the kitchen and hence it was not a sudden act.

Conclusion

The appellant was convicted for murder.

Muthu V. State by Inspector of Police

Facts

The appellant was working in a waste paper merchant’s shop. The deceased who collected waste
paper and cardboard from the roadside picked up waste paper and threw it into the shop. The
appellant got angry and pulled the hair of the deceased. The deceased pushed the appellant. The
appellant in a fit of rage took a knife from the top table and killed the appellant.
Issue

Whether the appellant was provoked? Whether the appellant’s act is an act of murder or culpable
homicide?

Rule

Section 299©, Section 300 (exception 1 and 4) and Section 304 (II).

Application

The court held that any act of throwing garbage into a shop or a house would lead to grave and sudden
provocation because everyone wants to keep their premises clean. Also, here the incident in question
occurred in a sudden fight or heat of passion by a sudden quarrel without the appellant having taken
undue advantage or acted in a cruel or unusual manner. Here the appellant is entitled the benefit of
exceptions 1 and 4 and comes under section 304 of the IPC. The act was committed with the
knowledge to cause death without any intention to cause death or such bodily injury likely to cause
death. Hence, the offence comes under part 2 of section 304.

Conclusion

The accused was sentenced to a period of five years simple imprisonment and any period of
incarceration in jail which the accused has undergone will be deducted from the aforesaid period of
five years.

Section 304 –A – A shows that it was added subsequently. Not to confuse 304 –A with 300 (1).

Section 300(4) is a substantive section defining negligence whereas section 304(1) defines
punishment for culpable homicide.

It is an amended section. Section 304 –A does not apply for those who are falling under section 299.

Elements 304-A

-Rash or negligent act not amounting to culpable homicide.

- it involves two years punishment or fine or both.

- Much less punishment than section 299.

German law punishes negligence for 5 years. Different jurisdictions punish differently.

Rashness is when you choose to take a risk and negligence is failure to perceive the risk. Negligence
is the failure to conform to the standard of a reasonable man.

For example, a doctor that it is ok to carry out operation without a boiler and in that case the patient
dies whereas if the doctor does not check the boiler or fails to perceive the risk, then it is a negligent
act.

Overlapping of concepts of rash and negligent acts-

Singapore act 2007

Rash – 5 yrs
Negligent – 2 yrs

India – Rash and negligent for two years.

There is thin line between section 299 and 304- A.

Your arguments take precedence here.

For example, you can argue in the

BMW case – that there was no intention to kill neither intentional bodily injury or likely an element of
knowledge

Or

There was no knowledge but it was a rash and negligent act.

In Bhopal gas tragedy – case of 299© and not 304-A.

- In Dr. Suresh Gupta V. Delhi Administration, the court held that the doctor’s act was a negligent act
but not an act of gross negligence. The concept of negligence covered by criminal law is far greater
than in civil law. Hence, gross negligence would fall under the IPC. Therefore, Dr. Suresh cannot be
held liable for gross negligence under the IPC. But, the question remains as to what defines
negligence.

Sexual offences

 Theoretically loaded area

 Sections 375 and 376 are controversial
 Section 377 (why was this conceptualised?)
 Concept of rape and outraging of modesty

Rape

 Not gender-neutral - can happen to a women and not a man. If man rapes a man then this
offence falls under section 377.
 Violation of equality
 Question of constitutionality

Perception of law

-In law, generally, differences based on sex are permissible but treating people differently on
the basis of gender is not permissible.

Hierarchy of punishment under IPC

1. S. 377(unnatural offences or sex) – punishment slightly higher for life or for 10 yrs.
2. S.375-S.376 (rape and what constitutes rape) – punished for 7 yrs
3. S. 354 (outraging the modesty) – for 2 yrs
4. S. 509 ( eve-teasing and gesture) – simple imprisonment for 1 yr
Elements of rape

 Involving Sexual intercourse

 Against the will – overpowering the violation of the women physically
 Without her consent
 Passive submission – women is not resisting but has said ‘yes’.
 Penetration – common law understands penetration as peno-vaginal. This comes from the 13th
century understanding in England, where rape was defined as the theft of virginity of a
woman.

Two kinds of offences

1. Bail able or compoundable – For petty offences

2. Non – Bail able or non-compoundable– serious offences ( murder and rape)
Reasoning for non – bail able: if you give bail to this person, he will tamper with the
evidence; possibility of influencing evidence.

Tukaram V. State of Maharashtra

Facts

The appellant was a casual labourer who fell in love with Ashok in the house she went to
work in. As a result, she and Ashok decided to marry. However, on one day she went missing
and her brother filed a police complaint in the police station. She was later on brought to the
Police station along with her lover. There were three persons who were present in the police
station who were Nunshi (Ashok’s brother-in-law), Ashok and Gama (appellant’s brother).
But the police constable Ganpat asked the appellant to stay back and the remaining three to
wait outside. He took her to a corner room and raped her despite her silent resistance. Then
Tukaram, another police constable, came for her and fondled with her private parts. The lights
were off in the police station and the doors were closed. The doctor’s report showed that she
was between 14-16 years of age. She was already habituated to sexual intercourse. It also
showed that there were no marks of injury which could be found on the appellant.

Issue

Whether it was a case of consensual sexual activity or rape?

Rule

Section 354 and Section 375.

Application

Session’s court

 Established that there was sexual intercourse which had taken place.
 Sexual intercourse had been proved but no rape.
 Due finding of the court based on the circumstantial evidence showed that there was
consensual sexual activity. The court held that there was no evidence to show that the
 appellant was of 16 years of age at the time the rape occurred. The mere presence of
semen on her vagina does not prove rape and she might be lying as she was already
habituated to sexual intercourse.

Bombay High court

 Differed with the Session court’s view that there was consensual sexual activity.
 The fact that the police men were strangers to the appellant and hence she cannot consent
to sex.
 The situation was also of strange nature and she was with three other companions. The
fact that her brother and lover were present could not have made her provide an invitation
to the police.

Supreme court

 Concurred with the session’s court decision.

 The fact that there were no injury marks on her body proves that there was no question of
rape.
 Since the appellant did not raise any alarm when the police constable clutched her hand or
loosened her underwear proves that the alleged intercourse was a peaceful affair.
 Her failure to appeal to her companions and her conduct to meekly follow the police
constable shows her consent.
 Hence it was not a case of passive submission as there was consensual sexual activity
which took place.

Conclusion

The judgement of the High court was reversed and the accused were convicted.

Critique of the Judgement

 The circumstantial evidence used by the court can be seen in two ways.
 The open letter asks difficult questions. Why did the Policeman ask Mathura to come
inside? Why was the fact that the policemen being intoxicated during works of duty not
being taken seriously?
 To call a woman to a police station is illegal under section 160 of the Crpc.
 The court did not take into account the socio-economic background of the girl and the
fact that the girl had no knowledge of her legal rights.

Important changes
 Signs of injury on the body proved rape. This idea was overruled in the latter cases.
 A new clause was added in 1983 which was section 376(2).

Punishment of rape
S.376 – either described or not less than 7 years. For the rape of a wife between 12- 15 years, 2 years
punishment is provided. If the wife is less than 12 years the punishement is rigorous.

S.376(2) – Rigorous and for 10 years.

For adequate and special reasons – punishment below 7 years.

Baldev Singh and others V. State of Punjab

Facts

The girl was gang raped by three men when she was on her way back to her house.
Issue

Whether the act of compromise can put the offence under the proviso special and adequate of
S. 376?
Rule

Section 376
For special and adequate reasons – punishment is reduced to less than 10years.
Application

 The parties were married and there was a compromise where each had to pay RS.50, 000.
 It was an old case pending since 1997.

Conclusion

The accused were only sentenced to 3 years of imprisonment under the special and adequate clause.

Critique

- Can the court invoke the proviso for something illegal and for a non-compoundable offence such as
rape.

-If you are saying the parties have compromised, then why are they compromising? There is no
discussion as such.

- The idea of compromise was only taken up by the Supreme Court. Why are the parties
compromising when the compromise is not happening in the trail and the high courts?

- Can you ask the victim to compromise in spite of the law of the land categorically says that rape is a
non-compoundable offence?

- What is the misunderstanding between the parties which had been resolved?

Important amendments in 1983

1. Section 376 (2)

2. IEA, 1872 – section 114 –A
Legal point: According to 114 – A, offences falling in 376(2), if sexual intercourse is proved and the
women says that sexual intercourse was without her consent. Then the court presumes that the sexual
intercourse was without her consent. Therefore, automatically the onus to prove whether there was
consent or not shifts on to the accused. Hence, the burden of proof is reversed and the woman does
not have to proof the consent. Even though, the intial presumption is in the favour of the women, there
can be rebuttal by showing evidence to the contrary. Moreover, this provision is only applicable to
forms of rape under section 376(2). But in other cases of rape which fall under section 375, the onus is
on the women to prove any consent.

Section 354

 It does not fall under rape and does not require penetration of any kind.
 It covers those acts which outrage the modesty of a woman. Modesty means in sexual
connotation that you are being prurient about your sexuality which implies that women
need to be modest in sexual matters.
 Requires assault or criminal force.
 Punishment extends to 2 years.
 The offence is a bail able offence under the Crpc. If you are booked under this section
you can get a bail in the police station itself.
 S.354 includes anything less than penetration.
Inherent problems

 This law is flawed. Rape is a sexual assault and there can be various degrees of rape.
Rape means basically outraging the modesty of a woman.
 According to the Michigan criminal court, any assault which is of sexual nature
constitutes rape.
 Law defines things for us and has defined penetration as rape. Rape should mean
anything which involves playing with the body as a sex toy. Also, due to hegemonic
discourse we are not able to conceptualise that penetration is not rape.
Section 377

 Punishes voluntary sex which is problematic.

 We also bring in issues of involuntary sex under this section, which is the perversity of
the law as this section is meant to only punish voluntary sex.
 It defines the order of nature for sex as procreation. Natural is something which takes
nature ahead.
 This section punishes anything which is not penetration, for example, masturbation, oral
sex, bestiality, etc. Sexuality for pleasure is taken out of the window.
 It punishes people who voluntarily have sexual intercourse for a period of life or 10 years
which is higher than rape. This is another perversity of the law.

Philosophical point-of-view
 Some things are criminalised due to the idea of disgust generated in the society.
 The question to ask is ‘Can we criminalise human behaviour based on disgust of the
society?’
 Wolfendand committee report (1957)
 England was for a long time against the idea of sexuality. J.S Mill was arrested in
the 19th century for distributing contraceptives.
  Public V. Private – what you in private is not the law’s business.This report
stated that it was not the function of the law to interfere in private matters of the
people or how people were to make love in their bedrooms. Hence, it proposed
the decriminalization of homosexuality and prostitution.
 The committee supported the harm principal.
 Lord Delvin in disagreement: His first response was that the idea of individual
liberty is not accepted principally in today’s England. The concept of paternalism
is engrained in the legal system of England. His second argument was that the
society had a right to save itself. If there is anything which is going to destroy the
society, then such an act must be opposed. If the society feels disgusted,
abhorrent and indigenised abot a particular act, then it must be criminalised.
Since, the society had a right to save itself and therefore homosexuality should be
criminalised.
 Two ends of the spectrum: Individual liberty and Communitarian belief.
 Communitarian belief: You cannot live without the society and as a part of the society.
The society strives to protect you and you are dependent on the society. Therefore, you
have to agree to certain cardinal beliefs of the society. Hence, anything the society finds
disgusting must not be allowed and the individual interest is subordinate to the
community.
 HLA Hart’s Argument: Delvin fails to make a distinction between knowing and
witnessing. Hart says that there is a difference between you feeling disgusted when you
witness something and other being the mere knowledge of something which causes
disgust. Hart also says that he agrees to paternalism but makes a distinction between
paternalism and legal moralism. Paternalism is where the state acts as a father to save you
from yourself. But, legal moralism is where the state is enforcing its morality on you.
Hart says that here the state is not being paternalistic but moralistic. Hart criticises Delvin
and says that what Delvin finds disgusting falls under the realm of legal moralism. Delvin
is unable to give an empirical argument whether homosexuality if decriminalised will
make the society to collapse.
 In 1967- The sexual offence act decriminalized homosexuality in England.

Naz foundation case

 Naz foundation is saying that section 377 is not constitutional. It is reading down this article.
This section does not apply to consensual homosexual sex in private.
 Delhi HC by decriminalising homosexuality gave the idea of constitutional morality. The
court makes a difference between constitutional morality and popular morality. Popular
morality is based on subjective ideas of right and wrong. Constitutional morality is derived
from constitutional values. It goes back to the constituent assembly.
 Dr B.R Ambedkar said that there is a need to diffuse constitutional morality and make it a
part of people’s live. It is not an ordinary sentiment and we need to cultivate it. He believed
that the Indian society is essentially undemocratic.
 He says that even something as basic as democracy should be instilled in the Indian people.
The Delhi HC uses the concept of homosexuality. The constitution of India recognises,
protects and celebrates diversity, so, to stigmatise and criminalise homosexuals based on
 sexual orientation would be against the constitutional morality. Hence, here diversity also
becomes a part of constitutional morality.
 The court held sexual orientation as a part of the diversity of India. This argument goes way
beyond the Hart- Devlin debate. It recognises personhood of gays. Then, even gay marriages
should be allowed or gay adoptions should be allowed. Even publicly witnessing a gay couple
kissing should be allowed.
 Two cases which talk about constitutional morality – R V Tran/ Naz foundation case

Adultery

 How far is commitment important or loyalty important? Should betrayal be allowed?

 If a person is unpatriotic, should he be punished? Should a person pay a price for betraying
his/her partner?
1. Fraudulent consent of marriage
If a boy sleeps with a girl with the promise to marry her but does not do so. So, is this
fraudulent consent? Can this be rape?
R V. Willams

 A girl sleeps with her singing instructor believing by doing so that she would
become a great vocalist.
 Opposing: Here there is fraud with respect to the transaction of sexual
intercourse. This may be an act of cheating because it is an act of sexual
intercourse made consensual.
 The Indian Supreme Court has, however, considered it to be rape.
 Issue: false promise and sexual intercourse. Whether it is rape or cheating?
2. Judicial stereotyping
In Premchand V. State of Haryana –
 The defence of special and adequate reason was applied here. The reason being that the
girl has loose character and used to sexual intercourse.
 Punishment was reduced based on the above reason of special and adequate reasons.
 The question of judgement writing by using terms like loose character or stong character
relevant in determining the punishment.

In Rahul Mukherji V. State of Delhi


A married couple kissed on the railway station. The police put this couple behind bars for
being obscene. They were not even given bail. The case was filed in the Supreme Court
and decided by Justice Murlidhar.
 The court emphasised that they were married. Now, the question raised would be what if
they were in fact an unmarried couple. Another issue raised is that an act of love is
obscenity but an act of violence is not.
 Section 497 falls in a chapter called offences against marriage.

Elements :
1. Wife of another man – which makes it clear that only a man can commit adultery.
 2. The domain of adultery requires consensual sexual intercourse not amounting to
rape.
3. Wife is not an abettor and also cannot be punished as an abettor under section 497.

Issues :
1. What about a man who sleeps with an unmarried woman? What if a man sleeps
with a widow or a divorcee or has same-sex intercourse? All this does constitute
adultery.
2. Issue of Crpc ( s.198) Who can take action in case of adultery?
-The state cannot take action in case of adultery and it is only the aggrieved
party who can take recourse in case of adultery.
- The aggrieved party can only be the husband whereas the wife cannot file a
case against the husband for adultery. This means that the wife is treated as the
chattel or property of another man. There is no agency given to the women and
safeguard which secures the rights of the husband.

Yusuf Abdul Aziz V. State of Bombay

Issue

Whether section 497 of the IPC contravenes the principles of article 14 and 15 of the constitution?
Why is the wife not punishable as an abettor?

Rule

Article 15 (3)

Application

Here there is no discrimination based on sex as the state is entitled to make laws which are beneficial
to the interests of women and children under Article 15(3) of the Indian constitution. Also, this
provision should not be understood as license given to women to commit crimes. Article 14 is general
and must be read with other provisions set out in ambit of the fundamental rights.

Conclusion

Section 497 does not contravene article 14 and 15 of the Indian constitution.

Soumitra Vishnu V. Union of India

Issue

Whether the provision which creates the offence of adultery under section 497 is unconstitutional?
Whether the husband should be allowed to claim adultery?

Rule

Section 497
Application

Petitioner’s arguments – section 497 amounts for

1. Gender discrimination
2. Legislative despotism
3. Male chauvinism
4. Treatment of women as chattels or property of men
5. women not being able to be the aggrieved party

Section 497 does not take into account cases where

1. the wife has no right to prosecute the woman adulterer

2. the wife has no right to prosecute her husband
3. does not arise in cases where man has affairs with unmarried women

The court said that it is commonly accepted that a man is the seducer and not the woman. Therefore,
only a man can commit adultery. The wife is a victim but not the author of the crime. This provision
does not give total freedom to men to have extra-marital relations but focuses on a particular extra-
marital relation which the most dangerous of all being a man seducing the wife of another woman.
Moreover, a wife can take civil action of separation against the husband. Just because this legislation
does not provide for the hearing of the married woman against her husband does not necessarily mean
that she cannot make an application to be heard in court.

Conclusion

The court did not allow for the claim of adultery as the husband was already divorced and it would
hence serve no useful purpose.

Joint Liability

The first instance of Joint liability that a careful reader of IPC comes across is encoded
under section 34 of IPC. Its main ingredients include:
There should be a criminal act done
By two or more persons (several persons)
Common intention (and not common object2) should be present
The criminal act done should be in furtherance of the common intention3
Participation

CONSEQUENCEEach of such persons would be liable for the criminal act done as
if it were done by him alone.
First ingredient: there should be a criminal act which should have already taken place.
That is, the crime must been committed for persons to be held liable under s.34.
Second ingredient: s.34 will hold good only if there are 2 or more people involved in the
crime. Or minimum number of persons required for the rule of join liability to become
effective is two.

Third Ingredient: Common Intention: There should be present a common intention in

the minds of all the people to do the criminal act. Here it may be noted that the common
intention must not be confused with common object or similar intention. There must
have been a confluence or ‘meeting of minds’, or a pre-arranged plan, or to say a ‘prior
concert’ among the persons involved. Two or more people must have had the same
intention and there must have been a consensus and agreement between all of them to
do the act done. It may also be noted that this consensus among the minds can also take
place within the spur of the moment by mere gestures.
Participation
Participation in the criminal act done is important to hold the person liable u/s.34. The
requirement of participation comes from the fact that section 34 requires that the
criminal act should be done in furtherance of the common intention. You cannot act in
furtherance of the common intention unless you participate in the event. Thus,
participation in the commission of the crime is one of the essential requirements under
section 34.
However, this definition given by the Supreme Court was over ruled in J.M. Desai v.
State where it was held that participation may not necessarily mean physical proximity
but can also mean participation in any form in the crime. This kind of interpretation
seems to make more sense in the era of advanced technology whereby a person sitting in
one far corner of the earth can manage virtually anything at the other end.

There is no vicarious liability in law of crimes and you cannot punish someone for someone else’s
crimes.

Section 34 –

 Criminal act must be done

 There must be several persons
 Common intention
Common intention V. Common object
Common intention is when two people have agreed to the same thing in the same manner
(there is consensus ad idem).
Similar intention or common object – same thing we wanted to do but no meeting of minds
(No consensus ad idem).

Barendra Kumar Ghose V. Emperor (common intention)

Facts: Barendra Kumar was charged under section 302/ 34 for committing the murder of
the postmaster. Four persons broke open the door of Shankari Tola Post Office. Almost
immediately afterwards they shot at him. He was hit at two places and died almost at
once. The appellants fled away and one of them (Barendra Ghosh) was caught. His
contention was that he was standing outside the door and he never fired the pistol.
Verdict: The Privy Council upholding his conviction for the murder of the
postmaster elaborated upon the scope of section 34. Lord Sumner famously
observed: “Even if the appellant did nothing as he stood outside the door, it is to
be remembered that in crimes [of joint liability] as in other things “they also serve
who only stand and wait”5

Priya Patil V. State of M.P

Facts
The accused met the prosecrutrix at the railway station and told her that he was meant to pick her
from the railway station. He took her home and raped her. The wife of the accused did not do
anything to stop the rape from taking place instead slapped the prosecrutrix when she was shouting
out for help. She also closed the door and left without informing anyone.

Issue

Whether the accused’s wife is jointly liable for commission of rape? Whether S.34 will be applicable
in this case?

Rule

S. 376(2) and S. 34

Application

For S.34 to apply there must be a common intention for committing a crime and also an act must be
done in furtherance of the intention. Here common intention is not of any relevance as a woman
cannot have the common intention to commit a rape.

Conclusion

The woman was hence not convicted for rape under section 376(2) of the IPC.

Mahboob Shah V. Emperor

Facts

The deceased collected reed from the property of the accused. Therefore, the accused approached the
deceased and tried to stop him from taking away the reed. The deceased hit the accused. The accused
called out for help. His brothers came out of the bushes and fired at the deceased thereby killing him.

Issue

Whether the accused had the common intention of committing murder?

Rule

S. 34

Application

The Privy Council held that no joint liability is possible to be made applicable here. Why? Because
one of the main ingredient of section 34 – common intention – is missing. The two of them came
from different directions and they never had the occasion to have a meeting of minds. Therefore the
accused cannot be held liable. They both never shared the intention among themselves.

Conclusion

The accused was not convicted in this case.

S. 149

Elements
  Unlawful assembly
 Common object – in prosecution of that object
 Knew to be likely
 Every person is guilty

S.149 is much broader section; a merely common objective is sufficient. Meeting of minds is not
required and very less is at stake here.

S.142

Intentionally joins and continues to be a member of an unlawful assembly

Offences against public peace

 You can be liable here easily just by having a common objective.

Why is the IPC drawing a lien between the mob and an individual differently?
 Freud says that in a mob your individuality ceases in comparison to commission of a crime
independently.
 hence.
 Section 149 makes it mandatory that if there is an existence of what IPC
describes as unlawful assembly and the act done must be by a member of that
unlawful assembly. A member is understood as a person who has intentionally
joined the assembly and has continued to be a part of it (s.142) Unlawful
assembly is defined in the IPC u/s.141 as one with minimum of 5 persons having
a common objective. It is noteworthy here that the persons should have the
common object and there is no need for them to have a common or shared
intention among themselves to be tried under this section. Mere sharing of the
common objective is enough.

1. While s.34 requires a minimum of 2 people, for s.149 to be applied there has to be an
unlawful assembly, that is, a minimum of 5 people should be there.
2. Under section 34, a common intention among the persons should be present, that is, a
meeting of minds must be present. But for one to be tried under section 149, a mere
presence of a common object is enough. The persons should have the common object to
be achieved and there is no need of a prior concert of all the minds.
3. Section 34 only punished for the criminal acts which are done with the common
intention, while s.149 also is applicable for the crimes or acts which are likely to be done
too.

one: Section 149, inter alia (among other things)6, makes a person punishable even if the
person knew to be likely that in prosecution of the common object certain casualties may
occur. This means, that even if the member of the unlawful assembly never really
participates in the commission of a criminal act but merely knew it to be likely s/he can
be prosecuted and persecuted. In other words, some participation is sine qua non
(essential requirement) to bring an offence under section 34 but NO PARTICIPATION is
required under section 149 except sharing the common object of the assembly and being a
member in the same.
Anyone who intentionally joins the mob sharing the common object (ethnic cleansing) would
become liable for anything that is likely to be committed by such a mob. Loot, arson and murder are
well documented instances of any form of ethnic cleansing (Be it Rwanda, Yugoslavian terror, 2002
Gujarat riots, Sikh riots of 1984 or whatever). Thus, a member of such an unlawful assembly sharing
the common object of like nature would be liable for murder or anything that can be proved that
s/he knew it to be likely in prosecution of the object in spite of the fact that the accused may not
have participated at all in commission of that particular offence.7This possibility of liability without
participation can never arise under section 34 of IPC.

Matthew V. State of Tranvancore

The Supreme Court said that though we agree that though your clients did not want to murder but
these clients joined others armed with weapons and hence had a common objective to resist the
police. Then in this case, you are liable for murder.

Twenty-nine accused hatched a conspiracy to release their comrade from the police lock-up at
about 2 a.m. They were armed with deadly weapons. As a result two police constables were
killed in the raid. They were all convicted by high court under 302/ 149. They were held liable for
murder committed by some others because they shared a common objective.

s.34 – some participation in some way but you are not held liable for likely acts. It has a higher
requirement of agreement of minds.

S.149- it is broader where all likely acts are covered under this section. This section is
contemplating a mob mentality.

Offences against property

Theft (378- 379)

s.378 –

Elements of theft

 Movable property is the subject matter of theft

 It must be out of possession of any person
 Without the consent of the person
 Actus reus of theft is moving property.
1. Theft is offence against POSSESSION not OWNERSHIP.

Intentionally want to take property from another person – physical possession.

It is not an offence against the owner but person who has the possession. You will be liable if
you fulfil the conditions of S.378.
In reality, the actual owner can be held for the theft of his own property if conditions under
S.378 are fulfilled.
2. Technocrats of Indian Law say that it is important to dispossess the other person
(wrongful gain and wrongful loss).
S.24 dishonestly – wrongful gain or wrongful loss.
 Dishonesty is not a word for English but a word of law. Wrongful game if
something you are legally entitled to. You take something temporarily for a
genuine purpose and then replace it, and then it is still theft.
 Actus reus is movement and not restoration. Permanent deprivation is necessary
in English law but temporary deprivation is sufficient under Indian Law.
  Why you were taking the property and restoration of property is not necessary
under S.378.

K.N Mehra V.State

Dishonestly covered under section 378.

They were playing a prank and not planning to steal. The fact that you were not
authorised and you still took the property. So, you have an unlawful gain which
resulted in an unlawful loss. So, there was dishonesty in this context.
How dishonesty has a very technocratic meaning under criminal law. They were
aware that they were making the authorities to suffer an unlawful loss.
Pyarelal V. State
Here the movable property never went out of possession. Property remained in
the possession of Pyare Lal. The actual possession is in the hands of the
Government of India but only the custody belongs to you (servant of India).
The moment you take away the file home you have deprived the government of
India possession. But, the other side was arguing that you have restored the
property.

Section 379 – punishment for theft

Section 380 – theft in dwelling house
Section 381 – theft by clerk or servant of property in possession of master
Section 382 – theft mad for causing death, hurt or restraint

Section 383 –extortion

Elements
 Fear of injury
 The persodn(close relative )
 Dishonest (s.24)
 Any property ( movable)
In extortion you are overpowering consent.
Injury – including body property or reputation.

Section 390 (robbery)

 Robbery is the aggravated form of theft or extortion.
When theft becomes robbery –
a. Attempt to commit theft or attempt to carry away property
b. Causing death/hurt/wrongful restrain or fear of death/hurt/wrongful restrain
While or after committing theft, you hurt someone, cause death to someone or
wrongfully restrain that person.
 When extortion is robbery –
1. Fear of instant death/hurt/wrongful restrain
2. In the presence of the person
 Section 391 – Dacoity
When 5 or people commit robbery

 Section 403 – criminal misappropriation

Elements
 1. Use it as your own
2. Movable property
3. When movable property is in nobody’s possession; abandoned property
In theft the initial encounter is always with a guilty mind but in the case of criminal
misappropriation; the initial taking of the property is innocent.
Criminal misappropriation is taking the property for some time with an innocent
intention.
Section 404 –
Movable property found on a dead man (abandoned property) under criminal
misappropriation.
Section 405 (criminal breach of trust) –

 Property is given to you by the owner

 You misuse the property
 Here the property is entrusted to you. Entrustment means dominion and ownership.
 When property is given to you, it cannot be the subject matter of theft.

Under section 378, illustration (d) comes under theft. In this illustration, the servant of Z,
i.e. A runs away with the possession of the plate which is under the care of the servant.
Hence, he has committed theft in this case because section 27 applies in this case.
Illustration (e) is criminal breach of trust because here A is not the servant of Z.

Inchoate offences(incomplete or half-baked)

Inchoate offences essentially mean incomplete offences.

These mainly include: 7 7
Criminal conspiracy
Attempt
Abetment

Criminal Conspiracy

 Prior to the amendment the offence of criminal conspiracy was punished

under section.107 of IPC1.
 The amendment was basically aimed at making stricter laws by the colonial
British Government in India against the revolutionaries.

 . S.120B punishes an act even before the preparation stage, i.e it punishes the
mere agreement to commit an offence, or in other words, a mere outward
manifestation of intention is enough for the crime of criminal conspiracy.

 Section 120A provides stricter liability for conspiring by punishing two or

more persons who agrees to do an ‘illegal act’ or an ‘act which is legal by way
of illegal means’.
  Here, the section seems to provide an exception to the general rule of criminal
liability followed in the IPC otherwise and punishes the crime at the stage of
attempt only or when an act has gone beyond the stage of preparation.

 The proviso to the section makes the distinction between the acts for which
the section would apply. It defines an agreement as one for a criminal offence
and provides that the mere agreement in this case would be punishable. It
also provides that if there is an agreement to do any illegal act other than an
offence (e.g. a civil wrong, or a tort, etc.) and if it is accompanied by any other
overt act in its furtherance, then this may also be punished under this
section. Interestingly enough, the latter proviso makes the section potent for
even a civil, tortuous, etc wrong a criminal offence. For an instance, if two
parties to a contract agree to conspire against the third party to breach that
contract and take any step in its furtherance, then ideally and strictly
speaking, they can be held liable for criminal conspiracy under this section of
the IPC!

 The section, thus, remains a controversial one as it provides for repressive punishment
even when the act has not even reached the stage of preparation which otherwise
would never be punishable under the criminal law. The colonial government was
ready to utilise criminal law as an instrument of repression in order to tackle the voice
of political subversiveness or rebellion.

1. Attempt
2. Conspiracy
3. Abetment
I. S.120.A – Criminal Conspiracy
Post Macaulay added edition to IPC.
Under conspiracy, elements of S.107 should be fulfilled.
Elements
1. Agreement to do an illegal act
2. Agreement is criminalized
3. Mere agreement is criminal conspiracy
Exception – an agreement to commit an offence

Proviso – if agreements are not criminal acts, then any act done in furtherance of it shall be punished.

For instance, civil wrongs will also be punished by this law. So, if I agree with someone to breach a
contract, then it should fall under criminal law.

So the big question is that whether criminal conspiracy should fall under criminal law in this case.

Criminal conspiracy came in the amendment of 1913. This amendment was passed in order to curb
the activities of Indian freedom fighters by the British.

II. Attempt
Criminal law can be divided into:
1. Thoughts
2. Preparation
 3. Attempt
4. Commission

Ordinarily, criminal thoughts are not punished. Preparation is also not punished. However, attempt is
punished under criminal law. Attempt constitutes 50 per cent of the original punishment.

R V. Robinson

Robinson tries to cheat the insurance company. The court of appeal decided it to be preparation and
not attempt according to the proximity theory.

Two theories

1. Proximity theory
2. Change of mind

Court of Appeals V. Glanville Williams

William’s substantial argument: look at how far the person has gone from the initial intention.

Malkiat Singh V. State of Punjab

Facts

Malkiat Singh drove a truck loaded with 75 bags of paddy starting from Punjab in order to
deliver it in Delhi. He was stopped by the police at the Samalkha border which was 32 miles
away from Delhi as the export of paddy outside Punjab was illegal according to Para 2 (a) of
the Punjab Paddy Order, 1959.
Issue

Whether there was attempt on behalf of the appellants to transport paddy to Delhi?

Rule

s. 511 of the IPC

Application
On the facts found, there was no attempt on the part of the appellants to commit the offence of
export. It was merely a preparation on the part of the appellants and as a matter of law a
preparation for committing an offence is different from attempt to commit it. The preparation
consists in devising or arranging the means or measures necessary for the commission of the
offence. On the other hand, an attempt to commit the offence is a direct movement towards
the commission after preparations are made.
Conclusion
In the present case it is quite possible that the appellants may have been warned that they
had no licence to carry the paddy and they may have changed their mind at any place
between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further
in their journey. Section 8 of the Essential Commodities Act states that "any person who
attempts to contravene, or abets a contravention of, any order made under section 3 shall be
deemed to have contravened that order". But there is no provision in the Act which makes a
preparation to commit an offence punishable. It follows therefore that the appellants should
not have been convicted under s. 7 of the Essential Commodities Act.

Adhyanand Mishra V. State of Bihar

In this case, the court rejected the penultimate act theory. The court said that there was
attempt because he has gone far from the initial intention. It also rejected the proximity theory
and change of mind. Law of attempt was very conservative when it supported the penultimate
theory. When should preparation end and attempt start?

Facts

The appellant applied to Patna University to sit for the English exam by producing false
certificates in order to show that he was a graduate in English and was Professor in a college.
Believing the appellant’s statements to be true, the Headmaster dispatched an admit card to
him. Later, the appellant was barred from writing the exam as the true facts were revealed to
the University.

Issue

Whether the appellant had attempted in cheating the University?

Rule

s. 511 and s. 420.

Application

The court read section 511 as follows:

(i) he intends to commit that particular offence; and

(ii) he, having made preparations and with the intention to commit the offence, does
an act towards its commission;

Such an act need not be the penultimate act towards the commission of that offence
but must be an act during the course of committing that offence.
In the present case, the appellant intended to deceive the University and obtain the
necessary permission and the admission card and, not only sent an application for
permission to sit at the University examination, but also followed it up, on getting the
necessary permission, by remitting the necessary fees and sending the copies of his
photograph, on the receipt of which the University did issue the admission card. There is
therefore hardly any scope for saying that what the appellant had actually done did not
amount to his attempting to commit the offence and had not gone beyond the stage of
preparation. The preparation was complete when he had prepared the application for the
purpose of submission to the University. The moment he dispatched it, he entered the
realm of attempting to commit the offence of 'cheating'.
Conclusion

Hence was held liable under attempt to commit cheating under Section 511.

Mohammad Yakub V. State

 Overruled Malkiat Singh.

 It was held that there was attempt in this case and its facts are similar to Malkiat
Singh’s case.
 Re-defined proximity: what is proximity is not in relation to time and place but in
relation to intention. It is a substantial act.
 In attempt, you will be punished if you have done a substantial act.
 An act attempted would become an offence if the act is uninterrupted.

R V. Collins
 An uninterrupted act would cause an offence.

R V. MacPherson
 It is impossible that the attempt could have happened because the property is already
been stolen.
 S. 511 – is a residuary section where attempt to commit an offence is punishable with
imprisonment unless there is a provision which is described elsewhere in the IPC.
Impossible attempts in India
 Accepts that impossible attempts from the beginning are punished.

Asgar Ali V. Pradhania

Facts

The complainant was a 20-year old divorced woman. The appellant was a married man who
was he neighbour. They started seeing each other and he promised her that he would marry
her. Later, they had intercourse and she became pregnant. The appellant gave her copper
sulphate solution in order to cause miscarriage. However, the medical evidence showed that
such little amount of copper sulphate solution was not enough to cause miscarriage and a
larger amount was needed.

Issue

Whether it was an attempt to cause miscarriage within section 511 of the IPC?

Rule

S. 511
 Application

Within the meaning of Section 511, Penal Code, the appellant cannot in law, be convicted of
an attempt to cause a miscarriage. What he did was not an "act done towards the commission
of the offence" of causing a miscarriage. Neither the liquid nor the powder being harmful,
they could not have caused a miscarriage. The appellant's failure was not due to a factor
independent of himself. Consequently, the conviction and sentence must be set aside and the
appellant acquitted.
Conclusion

There was no attempt to cause miscarriage in this case.

Calcutta high court held that it is not attempt. It is attempt only when the ends are impossible. There
are two possible ways of understanding impossibility:

1. When ends are impossible- when you shoot at a dead body

2. When means are impossible – when your pistol is defective

In this case, when ends are impossible, then, it will be punished but when means
are impossible, then it will not be punished.

Theories
1. Putative theory – we will focus on the mind of the accused
2. Actual fact theory – we will look at the actual facts of the case.

Asif Ali Pradhania is still the law which is applicable in India today.

Criminal Attempts Act, 1981- English law on attempt; full-fledged act on criminal attempts

Belief of the mind

English law takes into account only the putative theory. If the accused believed that the gun was real
then he would be liable under English law. However, Indian law partially accepts putative theory.

Attempt

When preparation ends and attempt begins?

England – R V. Brown

- Impossible acts are punished categorically under the IPC.

English law is based on the putative law theory.

Anderton V. Ryan

In this case, a women believes that the VCR she was stolen. Criminal law says that despite actual
facts, there should be belief.

She was held not guilty for attempt.

R V. Shivpuri

In this case, the facts were similar to that of Anderton V. Ryan and they were charged for attempt.

- HLA overruled Anderton V. Ryan. They accepted that they wrong.

- There was acknowledgement of mistake by looking at Glanville Williams. How much courts
use academic material and journal.
- Lord Bridges: I am not interested in the language of the article but how it is written.
- Under English criminal law, you are liable for attempt if you have mens rea whereas Indian
law is less progressive law.
- But in the case of voodoo or witchcraft cannot be punished because it is not legally possible.

Kidnapping

Section 359:

Section 360- India

Section 361 – lawful guardianship

Elements of S. 361:

a. Kidnapping from lawful guardianship

b. Male – under 16
c. Female-under 18
d. Out of the keeping of the lawful guardianship
e. Takes/entices
Significance:
Kidnapping is not an offence of a legal guardian but a lawful guardian. A lawful guardian is
the police who keep custody of the child whereas a legal guardian is a parent.
-statutory provision is silent on the shade of mens rea. Mens rea is excluded in the strict
liability offences.
-legal language interpretation:
1. Intentionally or voluntarily or has no knowledge
2. Excluding mens rea
3. When mens rea requirement is silent in law
General rule in IPC:
If the statute is silent, then you have mens rea unless there are compulsory rules which take it
away.
Regina V. Prince

Section 362 – abduction

Elements:

1. Uses force to compel

2. From any place ( fraudulently or induction)

Abduction is not punished simplicitor in the IPC.

 General exceptions:
1. Mistake
2. Insanity
3. Private defence
4. Necessity

General exceptions completely exonerate criminal liability.

Mistake

Section 6: scope of chapter for general exceptions

Section 6 –

1. Covers all offences

2. Penal provisions – subject to general exceptions
3. Illustrations ( legal)

Mistake – s. 76 and s. 79

s. 76 – belief is bound by law

1. Mistake of fact is excused and not of law.

2. Good faith (due care and caution)

3. You are bound by law.

If you doing something contrary to law, then you will not get the defence of mistake.

Section 79 – belief – it must be justified by law- what I did was legal or I genuinely believed
it was legal.

Mistake:

1. Mistake of fact
2. Mistake of law

In India, private defence does not include just defending yourself or your property but also
defending strangers. In England, law of private defence is not as broad as that in India. you
cannot save a stranger and take the defence of private defence.

R V. Papa John

- Based on objective and subjective element.

- A man sleeps with his real estate agent. However, the real estate agent sues him for rape. The
man says that he was under the impression that she agreed to it. According to S.79, the court
says that he believed that he was justified by law that legitimate sexual intercourse was taking
place.
 Sansregret v. The Queen

Facts

The appellant was charged with several offences such as rape with the complainant’s consent
extorted by threats or fear of bodily harm under s. 140 (b)(i) of the criminal code. The
appellant was the ex-boyfriend of the complainant and their relationship ended in a year.
However, the appellant broke into her house twice and threatened her with a knife. The
complainant in fear of the appellant reconciled with him and consented to sexual intercourse.
Issue

Whether the appellant can take the defence of mistake of fact where he honestly believed that
the woman consented to sexual intercourse?

Application
The appellant here blinded himself to the obvious and made no enquiry as to the nature of
consent being given. The appellant was aware of the likelihood of the complainant’s reaction
to his threats and to precede with sexual intercourse in this case definitely amounts to wilful
blindness. The court also made a distinction between recklessness and wilful blindness. The
culpability in recklessness is justified by consciousness of the risk and by proceeding in the
face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing
to inquire when he knows there is reason for inquiry.
Conclusion
He was charged for rape and was not given the defence of mistake of fact.

Insanity

Mc Naughten’s case

- HL: How defence of insanity should be given?

- Insanity ( unsoundness of mind) :
1. Medical insanity the bigger sphere
2. Legal insanity the smaller sphere

Section 84

Incapacity – Blackstone commentary

Ashruddin Ahmed V. Emperor

Facts

The accused murdered his 5 year old son in the mosque. He believed that Allah had ordered
him to do so as he would then be send to paradise. Later, after the act he confessed to his
Uncle.

Issue
Whether he must be allowed to take the defence of incapacity under s. 84 of the IPC?

Application

The accused had to establish that he was incapable of knowing that the act done by him was
(a) wrong and (b) contrary to law. The accused knew that what he was doing was against the
law because he confessed to his uncle soon after killing his son. However, he did not seem to
think that sacrificing his son was wrong as he believed that god has ordered him to do so.
Therefore, he the act of murdering his son was made under the delusion of a dream in belief
of a sacrifice which he thought was right.

Conclusion

The court allowed the defence of insanity as the appellant due to unsoundness of mind was
incapable of knowing the act was wrong.

Lakshmi V. State

Facts

The appellant was in a habit of taking drugs and alcohol. He used to beat his wife and mother
repeatedly when they refaused to give him any money. His step-brother chhedi lal although
opposed him from taking narcotics, used to give him money in order to indulge in those vices.
One day he appellant was tied to chains by Chhedi Lal and his other relations when he tried to
hurt his mother and wife. However, he broke free and stopped talking to his brother for some
time. Later, he broke into his brother’s house and stabbed him. On arrival of other of his other
relations, he fled.

Issue

Whether the act of murdering Chhedi Lal fell in the exception provided under section 84 of
the IPC?

Rule

Section 84

Application

The prosecution evidence was divided in three elements: motive, conduct of the appellant
prior to the incident, during the incident and shortly after the incident; subsequent conduct of
the individual and his conduct during the trial of the case. There was a motive in the present
case as Chhedi Lal had stopped supplying him drugs. His conduct prior to the incident, during
the incident and subsequently after the incident did not prove unsoundness of mind. The act
of running away from his relatives after killing his brother shows that he was sane.

The decision in Ashruddin Shah’s case was overruled. There is a difference ixn claiming
protection under insanity when the appellant does not know of a thing to be right or wrong or
when he is incapable of knowing the act done by him is right or wrong. Law protects organic
and inherent incapacity and not erroneous beliefs. Legal insanity is different from medical
insanity where in the former case, the appellant is struck with a delusional belief whereas in
the latter he is basically suffering from organic incapacity. The appellant belongs to the
former category and cannot be protected by law.

Conclusion

The appellant was not given the defence of insanity in this case.

Private defence

S. 96 – S. 106

Two kinds:

1. Private defence to property

2. Private defence of body
s. 99- limits the right of private defence
s. 97 – right to private defence of your body and against any other person
Distinction between English law and Indian law
English law permits private defence to only people you know but Indian law extends
private defence even to strangers.
s. 98 – irrespective the person is of unsound mind, the defence of private defence is
allowed.
s. 82 – nothing is offence by a child under seven years of age. Above 7 till 18, it is an
offence.
s.99 –
 Reasonable apprehension of death or grievous hurt
 Time – only in those times when the person has no recourse to state authorities.
But if you have the time to take recourse to public authorities; then you cannot
take this defence.
 Harm- no right to private defence should be given when the harm done is more
than necessary.

Amjad Khan V. State

Facts
A communal riot was taking place where Sindhi refugees were looting and
murdering Muslims. The appellant, a local shopkeeper, shot dead two Sindhi’s
when their mob had approached his house.
Issue

Whether the right to private defence under section 97 be extended to the

appellant? Whether the appellant firing was due to reasonable apprehension of
death or grievous hurt? Whether the firing was more than necessary?

Rule
Section 97 – right to private defence, section 102.
 Application

Here it is expected that the mob would have killed and looted the appellant’s
house as a communal riot was already taking place. He could not have taken
recourse of public authorities at that point of time. The mob had already killed
many Muslims and also looted their homes before they came for the appellant.
Therefore, the appellant had a reasonable fear of death and grievous hurt. His act
of private defence was to protect his family and his properties which are elements
covered under s. 97 of the IPC. Moreover, the firing was not more than necessary
as his life and his family’s life was in danger.
Conclusion
The court allowed the appellant to take the defence of private defence under s. 97
of the IPC.

s. 100 - when the right of private defence extends to causing death

Elements

 Reasonable apprehension
 Grievous hurt
 Rape
 Gratifying unnatural lust
 Kidnapping or abduction
 Unlawful confinement with a reasonable apprehension that he is unable to take
recourse to public authorities

Vishwananth V. State of Uttar Pradesh

Facts

Gopal was living away from his father-in-law’s house where his wife lived. Upon
procuring a job he came to his father-in-law’s house and forced her to come with
him. However, she did not agree and he began dragging her out. The appellant,
her brother took out a knife and stabbed Gopal.
Issue
Whether the appellant can claim for private defence for murder under the
exceptions provided in section 100? Whether abduction simplicitor is enough to
establish private defence for murder under s. 100, fifthly or should abduction be
an offence as defined in the IPC?
Rule
Section 100- fifthly
Application
The court looked at the interpretation of clause fifthly described by section 100.
According to this clause, an assault committed against the human body with an
intention to abduct would make one capable of using this as a defence. Abduction can
be divided into two: 1. where a person is compelled to leave a place through force 2.
 A person is made to leave a place through deceitful means. Section 100 contemplates
only that kind of abduction where force is used by a person with an intention of
abducting. From a plain reading of section 100, there is nowhere mentioned that
abduction should be an offence described under the IPC( section 365, 366, 367, 369).
Conclusion

Therefore, when the appellant's sister was being abducted, even though by her
husband, and there was an assault on her and she was being compelled by force to go
away from her father's place, the appellant would have the right of private defence of
the body of his sister against an assault with the intention of abducting her by force
and that right would extend to the causing of death.

Necessity
s. 81
Whether section 81 of the IPC would permit persecution of an innocent person in
the form of due necessity?
Any killing which is intentional is criminal intent.
Bentham v. Kant

Bentham – greater good

Kant – guilty or not; punishment is an end in itself