Criminal Law

Criminal law is the body of law that relates to crime. It is the body of rules that
defines conduct that is not allowed because it is held to threaten, harm or
endanger the safety and welfare of people. It is a body of rules and statutes that
defines conduct prohibited by the government because it threatens and harms
public safety and that establishes punishment to be imposed for the commission
of such acts. Criminal law also sets out the punishment to be imposed on people
who do not obey these laws.

The Indian Penal Code is a comprehensive code, intended to cover all substantive
aspects of criminal law. It was drafted in 1860 and came into force in colonial
India during the British Raj in 1862.

Five objectives are widely accepted for enforcement of the criminal law by
punishments: retribution, deterrence, incapacitation, rehabilitation and
restitution:

Retribution – Criminals ought to suffer in some way. This is the most widely seen
goal. Criminals have taken improper advantage, or inflicted unfair detriment,
upon others and consequently, the criminal law will put criminals at some
unpleasant disadvantage to "balance the scales." People submit to the law to
receive the right not to be murdered and if people contravene these laws, they
surrender the rights granted to them by the law. Thus, one who murders may be
executed himself. A related theory includes the idea of "righting the balance."

Deterrence – Individual deterrence is aimed toward the specific offender. The aim
is to impose a sufficient penalty to discourage the offender from criminal
behavior. General deterrence aims at society at large. By imposing a penalty on
those who commit offenses, other individuals are discouraged from committing
those offenses.
Incapacitation – Designed simply to keep criminals away from society so that the
public is protected from their misconduct. This is often achieved through prison
sentences today. The death penalty or banishment has served the same purpose.

Rehabilitation – Aims at transforming an offender into a valuable member of

society. Its primary goal is to prevent further offense by convincing the offender
that their conduct was wrong.

Restitution – This is a victim-oriented theory of punishment. The goal is to repair,

through state authority, any hurt inflicted on the victim by the offender. For
example, one who embezzles will be required to repay the amount improperly
acquired. Restitution is commonly combined with other main goals of criminal
justice and is closely related to concepts in the civil law, that is to say returning
the victim to his original position.

Mens Rea
A fundamental principle of Criminal Law is that a crime consists of both a mental
and a physical element. Mens rea, a person's awareness of the fact that his or her
conduct is criminal, is the mental element, and actus reus, the act itself, is the
physical element.

Mens rea is another Latin phrase, meaning "guilty mind". This is the mental
element of the crime. A guilty mind means an intention to commit some wrongful
act. Intention under criminal law is separate from a person's motive.

A criminal offence is only committed when an act which is forbidden by law is

done voluntarily. English jurists give the name of mens rea to the violation which
is the motive force behind the criminal act. If there is no mens rea, no offence is
committed although the act may prove detrimental to an individual or individuals.
The concept of mens rea developed in England during the latter part of the
common-law era (about the year 1600) when judges began to hold that an act
alone could not create criminal liability unless it was accompanied by a guilty
state of mind. The degree of mens rea required for a particular common-law
crime varied. Murder, for example, required a malicious state of mind.

Applicability to Penal Code- In some cases the statute expressly mentions the
particular kind of mens rea by using words like “intention”, “knowledge” or
“belief” in the definition of the offence itself. Mens rea is implied in every offence
except where it is expressly excluded by the statute itself or where the offences
themselves belong to that limited group of offences which do not call for
consideration of mens rea. The Indian Penal Code has recognized the principle
underlying mens rea in various forms and ways and given effect to it.

Section 300. Murder

Except in the cases hereinafter excepted, culpable homicide is murder,
if the act by which the death is caused is done with the intention of
causing death, or—

Secondly.—If it is done with the intention of causing such bodily

injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or—

Thirdly.—If it is done with the intention of causing bodily injury to

any person and the bodily injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death, or—

Fourthly.—If the person committing the act knows that it is so

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

(a) A shoots Z with the intention of killing him. Z dies in consequence. A

commits murder.

(b) A, knowing that Z is labouring under such a disease that a blow is

likely to cause his death, strikes him with the intention of causing bodily
injury. Z dies in consequence of the blow. A is guilty of murder, although
the blow might not have been sufficient in the ordinary course of nature
to cause the death of a person in a sound state of health. But if A, not
knowing that Z is labouring under any disease, gives him such a blow as
would not in the ordinary course of nature kill a person in a sound state
of health, here A, although he may intend to cause bodily injury, is not
guilty of murder, if he did not intend to cause death, or such bodily
injury as in the ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause

the death of a man in the ordinary course of nature. Z dies in
consequence. Here, A is guilty of murder, although he may not have
intended to cause Z’s death.

(d) A without any excuse fires a loaded cannon into a crowd of persons
and kills one of them. A is guilty of murder, although he may not have
had a premeditated design to kill any particular individual.

Section 300 tells when the offence is a murder and when it is culpable homicide
not amounting to murder. Section 300 begins by setting out the circumstances
when culpable homicide turns into murder which is punishable under section 302
and the exceptions in the section tell us when the offence is not murder but
culpable homicide not amounting to murder punishable under section 304.
murder is an aggravated form of culpable homicide. The existence of one of four
conditions turns culpable homicide into murder while the special exceptions
reduce the offence of murder again to culpable homicide not amounting to
murder.
The four clauses which turn culpable homicide into murder have been explained
by the Supreme Court as follows:

1. Under the first clause, culpable homicide is murder when the act by which
death is caused is done with the intention of causing death. An intentional
killing is always murder unless it comes within one of the exceptions
mentioned in section 300 if an exception applies then in that case even the
intentional killing would be culpable homicide not amounting to murder.

2. Under the second clause, culpable homicide is murder if the offender does
the act with the intention of causing such bodily injury which he knows to
be likely to cause the death of the person to whom the injury is caused.
This knowledge must be in relation to the person harmed and the offence is
murder even if the injury may not be generally fatal but is so only in this
special case provided the knowledge exists in relation to the particular
person. If the element of knowledge be wanting the offence would not be
murder but only culpable homicide not amounting to murder or even a
lesser offence.

3. The third clause speaks of an intension to cause bodily injury which is

sufficient in the ordinary course of nature to cause death. The determinant
factor is the intentional injury which must be sufficient to cause death in
the ordinary course of nature. The sufficiency of an intentional injury to
cause death in the ordinary way of nature is the gist of the clause
irrespective of an intention to cause death.

4. The fourth clause comprehends generally the commission of imminently

dangerous acts which must in all probability cause death or cause bodily
injury as is likely to cause death. When such an act is committed with the
knowledge that death might be the probable result and without any excuse
for incurring the risk of causing death or injury as is likely to cause death,
the offence is murder. This clause, generally, covers cases in which there is
no intention to cause the death of any in particular.
Clause 1: Act by which the death is caused is done with the intention
of causing death

In Ramesh v. State1, the accused gave repeated blows to the victim resulting in his
death, it was held that the intention was to kill. In Jagdish v. State of M.P.2, all the
parts of the body on which the injuries were caused, were vital parts of the body,
it was held that the accused who caused those injuries with deadly weapons must
be fixed with the intention of causing such bodily injury or injuries as would fall
within section 300.

In Rawalpenta Venkalu v. State of Hyderabad3, there was a longstanding dispute

between the deceased Md. Moinuddin and the family of Bodla Ram Narsiah over
land which belonged to the deceased but which was in cultivating possession of
Narsiah’s family. On one night, both Narsiah and Rawalpenta Venkalu in
pursuance of a conspiracy to commit murder of Moinuddin had set fire to the
single room hut in which he was sleeping after locking the door from the outside.
When the servant of Moinuddin, who were sleeping outside, came near the
cottage to save their master they were assaulted by the culprits and were kept at
bay by the superior force of the accused and their associates. The villagers too
were prevented from going to the rescue by throwing dust in their eyes and by
the free use of their sticks. The Supreme Court held that there was an intention to
kill Moinuddin and the accused were sentenced to death under section 302 of
IPC.

1
AIR 1979 SC 871
2
Criminal Appeal No. 933/77; decided on February 16, 1979
3
AIR 1956 SC 171
Clause 2: With the intention of causing bodily injury as the offender
knows to be likely to cause death

The second clause applies if there is first the intention to cause bodily harm and
next there is the subjective knowledge that death will be the likely consequence
of the intended injury. The expression “Intention to cause bodily injury as is likely
to cause death” merely means an intention to cause a particular injury, which
injury is, or turns out to be, one likely to cause death. It is not the death itself
which is intended nor the effect of injury. Where the deceased was merciless
beaten and he had as many as about forty injuries on his person, he was given
about ten to twelve blows even after he had fallen down, and one of the
assailants was armed with a spear, it was held that even though, there might not
have been any intention on the part of the accused to murder the deceased, it
was obvious that the act was done with the intention of causing bodily injury, and
the accused must be presumed to know that by causing such a large number of
injuries to a man who had already fallen down and was defenceless, they were
likely to cause death. In Ranjha v. Crown (1947), two men pursued an old man
and each of them gave him a blow on the head with such force that his skull was
cracked, it was held that both of them guilty of murder.

Poisoning : the prosecution has to establish three propositions in a case of

poisoning –

1. Death took place by poisoning :

2. Accused had the poison in his possession :
3. Accused had the opportunity to administer poison to the deceased

Though the three propositions must always kept in mind the sufficiency of the
evidence, direct or circumstantial, to establish murder by poisoning will depend
on the facts of each case.
Clause 3: With the intention of causing bodily injury to any person
sufficient in the ordinary course of nature to cause death

The third clause consists of two parts. Under the first part, it has to be shown that
there was an intention on the part of the accused to inflict the particular injury
which was found on the body of the deceased. The second part requires that the
bodily injury intended to be inflicted was sufficient in the ordinary course of
nature to cause death. So far as the first part is concerned, Court has to see
whether the injury which was found on the deceased was the one intended by
the accused or whether it was accidental without his having intended to cause
that bodily injury. Once it is found that injury was not accidental and that the
accused intended to cause the injury which was actually inflicted and found on
the body of deceased, the first part shall be satisfied. The court would then go
into the second part of the clause and find in the light of medical evidence as to
whether the bodily injury inflicted was sufficient in the ordinary course of nature
to cause death. If the court finds that the requirements of both the parts have
been satisfied, the case shall be held to be covered by third clause unless it falls
within one of the exception.

The Landmark Judgment Virsa Singh vs. State of Punjab 4

Facts: The appellant was allegedly guilty of the murder of one Khem Singh. There
was only one injury on his person, which was a result of a spear thrust. The doctor
said that the injury was sufficient in the ordinary course of nature to cause death.

Medical Report: The injury was a punctured wound 2- x transverse in direction on

the left side of the abdominal wall in the lower part of the iliac region just above
the inguinal canal. Three coils of intestine were also coming out.

4
AIR 1958 SC 465
The appellant was convicted by the first court under section 302 IPC and his
conviction was upheld by the High Court. He was granted special leave to the
Supreme Court on the following:

Issue: On the finding of High Court what offence is made out as having been
committed by the petitioner.

Arguments advanced: It was argued with much circumlocution that the facts set
out above do not disclose an offence of murder because the prosecution has not
proved that there was an intention to inflict a bodily injury that was sufficient to
cause death in the ordinary course of nature.

Reasoning and decision: The court said that actual reading of this section infers
that it is not enough to prove that the injury found to be present is sufficient to
cause death in ordinary course of nature but it must be in addition shown that the
injury found to be present was the same injury that was intended to be inflicted.
Whether it was sufficient to cause death in the ordinary course of nature is a
matter of inference or deduction from the proved facts about the nature of the
injury and has nothing to do with the question of intention.

The court gave a four-point test which prosecution must observe and prove in
order to bring the case under this section:

i) First, it must establish, quite objectively, that a bodily injury is present;

ii) Secondly, the nature of the injury must be proved; These are purely objective
investigations.

iii) Thirdly, it must be proved that there was an intention to inflict that particular
bodily injury, that is to say, that it was not accidental or unintentional, or that
some other kind of injury was intended. Once these three elements are proved to
be present, the enquiry proceeds further and,

iv) Fourthly, it must be proved that the injury of the type just described made up
of the three elements set out above is sufficient to cause death in the ordinary
course of nature. This part of the enquiry is purely objective and inferential and
has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, of course, the
burden is on the prosecution throughout) the offence is murder under s. 300,
thirdly.

Decision: The court held that the case is covered by third clause of s. 300. All the
acts were deliberate acts which were pre-planned and they thus satisfied the
subjective test involved in the clause. Also the act considered objectively were
sufficient to cause death in ordinary course of nature. The ordinary course of
nature was not interrupted with any intervening act of another and whatever
happened was the result of the acts of assailants and nothing else. It was hardly
necessary to prove more than the acts themselves and the causal connection
between the acts and the end result. The sufficiency of the injury was objectively
established by the nature and quality of the acts taken with the consequence
which was intimately related to the acts.

Clause 4: 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, without any accuse for incurring the
risk of causing death

In the first three clauses of section 300, intention or knowledge is the essential
ingredient, in absence of which the act will not be murder. The fourth clause
contemplates the doing of an imminently dangerous act in general, and not the
doing of any bodily harm to any particular individual. In the case of intentionally
causing bodily injury to a particular person, the question whether such an act is
murder has to be decided with reference to the first three clauses of section 300.
The fourth clause is designed to provide for rare class of cases, like putting, by act
done, in jeopardy lives of many persons and the like.
Clause 4 requires knowledge of the probability of the act causing death. It would
be applicable where the knowledge of the offender as to the probability of death
of a person or persons in general as distinguished from a particular person or
persons- being caused from his imminently dangerous act, approximates to a
practical certainty. Such knowledge on the part of the offender must be of the
highest decree of probability, the act having been committed by the offender
without any excuse for incurring the risk of causing death or such injury as
aforesaid.

Imminently dangerous: The main ingredient of this clause is that the person
committing the act in question should have had the knowledge that the act done
is so imminently dangerous that it must in all probability cause the death or such
bodily injury as is likely to cause death and that the act was committed without
any excuse for causing death or such bodily injury as is likely to cause death.
Where a person takes up and uses a deadly weapon against a vital part of his
opponent’s body, he must be held to have known that his act was so imminently
dangerous that it would, in all probability result in an injury likely to cause death.

Without any excuse for incurring the risk: It is not murder merely to cause death
by doing an act with the knowledge that it is so imminently dangerous that it
must in all probability cause death. In order that an act done with such knowledge
should constitute murder, it is necessary that it should be committed without any
excuse for incurring the risk of causing the death or bodily injury. An act done
with the knowledge of its consequence is not prima facie murder. It becomes
murder only if it can be positively affirmed that there was no excuse.

Section 302
302. Punishment for murder.— Whoever commits murder shall be punished with
death, or [imprisonment for life], and shall also be liable to fine.
Cases
In Tholan v. St. of Tamil Nadu5, the accused and deceased had no enmity but were
remonstrating with each other on some point. In the course, accused took out a
knife and stabbed deceased on right of side of chest. Deceased succumbed to the
injury and died. Cause of death was stated to be shock and haemorrhage on
account of stab injury and sufficient to cause death in ordinary course of nature.
Court concluded that there was no dispute, quarrel or malice of accused with
deceased and presence of deceased was wholly accidental. Everything happened
on the spur of the moment and requisite intention cannot be attributed to the
accused. Thus he was held guilty for committing culpable homicide not amounting
to murder under 304 of IPC.

In case of Abdul Waheed Khan and Ors. v. State of Andhra Pradesh6, three
accused rushed to the deceased and began stabbing him indiscriminately with
their three knives, while another accused tried to snatch the bag containing the
cash. Further knife blows were given by the three accused persons till the
deceased collapsed. They fled away with the cash bag. The three appellants had
indiscriminately stabbed the deceased, though their object was to rob him. The
doctor said that the stab wounds as well as the head injury are individually
sufficient to cause death. The stab wounds came first and then the possible fall.
Taking into account the totality of the circumstances the accused was held guilty
for murder.

In the case of Mahesh Balmiki alias Munna v. State of M.P.7, accused gave a single
fatal blow with knife on the chest on the left side of the sternum between the
costal joint of the 6th and 7th ribs, fracturing both the ribs and track of the wound
going through the sternum, anterior and posterior after passing the ribs and
thereafter entering the liver and perforating a portion of stomach. There,

5
AIR 1984 SC 759
6
Criminal appeal no. 917-920 of 2002
7
Date of Judgment 27 August 1999
conviction under Section 302 of the Penal Code was upheld by the High Court and
was further confirmed by the Supreme Court.