CONTENTS. General Definition of Crime Doctrine of Mens Rea. Difference between Tort, Crime and Contract General Explanations Important Questions

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1 UNIT - I UNIT-II UNIT-III UNIT-IV INTRODUCTION General Definition of Crime Doctrine of Mens Rea CONTENT Difference between Tort, Crime and Contract General Explanations Important Questions GENERAL EXCEPTION AND OME OFFENCE General Exceptions Abetment Criminal Conspiracy Offences Against Public Tranquility False Evidence Offence Affecting Public Health Important Questions OFFENCE AFFECTING THE HUMAN BODY Offences Affecting Life Hurt Wrongful Restraint and Wrongful Confinement Criminal Force and Assault Kidnapping and Abduction exual Offences Unatural Offences Important Questions OFFENCE AGAINT PROPERTY Theft, Extortion, Robbery & Dacoity Criminal Misappropriation of Property Criminal Breach of Trust Cheating and Mischief Criminal Trespass Forgery, Making False Documents Defamation Important Questions

2 UNIT-V OFFENCE RELATING TO MARRIAGE pecial Provision for Women in IPC Cruelty by Husband or Relatives of Husband Criminal Intimidation, Insult and Annoyance Attempt to Commit Offences Important Questions uggested Readings

3 trictly for Internal Circulation - KCL UNIT - I INTRODUCTION INTRODUCTION 1. Indian Penal Code 1860 is the general penal code of India. 2. The first law Commission of India was constituted in 1834 under the Chairmanship of Lord Macaulay. This Commission prepared the draft of IPC in ir Beranel Peacock and ir J.W. Colwille revised the draft of IPC. 4. The code was passed on 6th Oct It came into force w.e.f. 1st Jan The code came into force w.e.f. 1st Oct, 1963 in Goa, Daman, Diu & Pondicherry. 5. The code applies to the whole of India except the state of J&K. Preamble to the IPC - Whereas it is expedient to provide a general penal code for India, it is enacted as follows: The Preamble suggests that: (i) (ii) The code is not exhaustive. It is only a general penal code for India. The Indian Penal Code consists of 511 sections. It defines certain crimes in an elaborative sense. For convenience we can divide the code in to two parts. General Provisions (ec ) pecific offences (ec ) Intra Territorial (ec. 1,2) GENERAL PROVIION (EC ) Territorial Operation of Code Extra Territorial (ec. 3,4) General Explanation ec. 6-32, 36 ec A Joint Liability ec Punishments ec ec. 73, 74 ec. 71, 72, 75 General Exception (ec ) Abetment (ec ) 1

4 trictly for Internal Circulation - KCL pecific Offences (ection 120A to 511) Criminal Conspiracy ( B) Offences Against the tate ( ) Offence related to Army, AR, Navy, Force ( ) Offence against Public Tranguility ( ) Offences by or relating to Public ervants ( ) Offence Related to Elections ( 171 A-171) pecific Offences DEFINITION OF CRIME Contempt of Public ervants ( ) Giving False Evidence, offences Against Pub. Jus. ( ) Offences relating to Coin & Govt. tamps ( A) Offences Affecting (1) Public Health (2) afety, Convenience (Decency & Moral ( A) Offence Related to Religion ( ) Offence Against Human Body ( ) Offence Against Property ( ) Offence Relating to Document and to Property Marts ( E) Criminal Breach of Contract ( ) Offence Related to Marriage ( ) Defamation ( ) Criminal Intimidation, Insults, Annoyance ( ) Attempts to Commit Offences ( 511) Crime is what the tate has by an act of legislature definitely declared as punishable. The I.P.C. no where defines what is Crime. A crime can be said to be an act of commission or omission, contrary to law, tending to the prejudice of community for which punishments can be inflicted as the result of judicial proceeding. It tends directly to the prejudice of community, while torts tends more directly and immediately to the prejudice of a private right. To define Crime is a task which so far has not been satisfactorily accomplished by any writer. o it would be appropriate to examine some of the definitions in order to understand the crime in correct Perspective. "Commentaries on the Laws of England" define crime as - "An act committed or omitted in violation of public law forbidding or commanding it." Blackstone - "A crime is a violation of public rights and duties to the whole community." 2

5 trictly for Internal Circulation - KCL tephen - modified the definition of Blackstone as - "A crime is a violation of right considered in reference to the evil tendency of such violation as regards the community at large." This definition is not fully free from error, it narrows the scope of crime. The definition given by Blackstone and tephen further stresses that crimes are those breaches of laws which injure the community. Romans define crime as "delicta publica" (Public wrong) and criminal trial as "judica publica (Public Justice). Kenny pointed out that "all the acts that are injurious to the community are not necessarily crimes." One who commits a wrong is said to be liable for it. Liability is bond of necessity that exists between wrongdoer and the remedy for wrong. Penal liability arises when the following two conditions exist - 1. Actus Reus (Guilty Mind) 2. Act Done or Committed DOCTRINE OF MEN REA Guilty mind (Mens Rea): The fundamental principle of liability is that an act alone does not amount to a crime. It must be accompanied by a guilty mind. The Latin maxim "Actus non facit nisi mens sit rea" is a cardinal principle of Criminal Law. 1. The Doctrine of mens rea is based on the Latin maxim "actus non facit nisi men sit rea" 2. The maxim means wrongful act must be done with a guilty mind and then alone criminal liability is to arise. 3. The doctrine originated when criminal law dealt with undefined offences. Today, the offences have been precisely, strictly and accurately and statutorily defined. In that view of the matter the doctrine becomes irrelevant or unnecessary in relation to defined offences. 4. Although the doctrine is unnecessarily concerning the defined offences, yet every such definition incorporates the doctrine through some specific words or expressions forming part of the definition, saying it the other way. Doctrine of mens rea and the IPC 1. The doctrine has no general and direct application to the Indian Penal Code. Penal definitions are meticulous, precise and comprehensive under the code. Therefore, it is correct to say that there is no general application of the doctrine. 2. Every penal definition under the act states the following two things: a) The Act done by the accused person. b) The required state of mind while doing that act. 3

6 trictly for Internal Circulation - KCL 3. In view of the above, no room is left for application of general doctrine of mens rea. The definitions are almost self sufficient. If the act of the accused falls within the four walls of the definition it would constitute an offence. Exceptions to the doctrine of mens rea 1. tatutes creating strict liability constitute an exception to the doctrine of mens rea. The exclusion may be either express or by necessary implication. 2. trict liabilities are created in consideration of public health, public safety, public welfare, matters of food and drugs etc. 3. In the case of ri Niwas Mal Bairdia, 1947, PC the privy council held that - a) In case of absolute prohibition the question of means rea becomes irrelevant. b) Liability without mens rea may be imposed only in exceptional and limited classes of offences and these offence are comparatively of minor character. 4. In the case of Nathu Lal V/s tate of M.P., 1966, c the Hon'ble upreme Court held that. a. Mens rea is an essential ingredient of an offence, but a legislature may enact a law and thereby excuse the requirement of mens rea regarding an offence or a class of offences. b. Unless mens rea has been excluded expressly or impliedly, every penal provision has to be construed in conformity to the doctrine of mens rea rather than against it. c. Merely because a statute is directed to social welfare it cannot be decisively presumed that requirement of mens rea has been done away with (no conclusive presumption). d. In some cases, exclusion of mens rea may be presumed. uch a presumption can be raised where this is absolutely clear from the statute that the subject of statute would otherwise be defeated. 5. There is yet another reason for exclusion of mens rea in cases of absolute or strict liability. trict liability may be imposed where it is difficult to prove mens rea. DIFFERENCE BETWEEN TORT, CRIME AND CONTRACT The wrongs which are completely less serious are considered to be private wrongs and have been labelled as civil wrongs whereas more serious wrongs, have been considered to be public wrongs and are known as crimes. According to Blackstone: Wrongs are divisible into two sorts or species - private wrongs and public wrongs. The former are the infringement or deprivation of private or civil rights belonging to individuals and latter are breach and violation of public rights or duties, which affect the whole community. 1) ince tort is considered to be a private wrong the injured party himself has to file a suit as a plaintiff. If at any stage the injured party likes he may agree to a compromise with the tort feasor and withdraw the 4

7 trictly for Internal Circulation - KCL suit filed by him. 2) In the case of crime, on the other hand, even though the immediate victim is an individual the criminal wrong is considered be to a public wrong and criminal proceedings are therefore brought by the state and not by the injured party. Moreover, in certain exceptional cases law does not permit a settlement in the criminal case between the wrongdoer and the aggrieved party. 3) In the case of tort the ends of justice are met by awarding compensation to the injured party. In the case of crime the wrongdoer is punished. The idea of awarding compensation to the injured party under civil law is to make good the loss suffered by him. The punishment under the criminal law protects the society by preventing the offender from committing further offences and deterring him and other potential offenders from committing further wrongs. metimes, the same set of facts may constitute both a tort and a crime. The civil and criminal -emedies in such a case are not alternative but they are concurrent. The wrongdoer may be required to ay compensation under the law of torts; he may also be liable under criminal law. For example, if A digs a ditch on road resulting in inconvenience to public at large A has committed the offence of public isance under section 268 IPC. If X, a passerby, falls into that ditch and thereby gets injured A's act also becomes a tort of private nuisance as against X. A will be punished under criminal law for the offence of public nuisances, he will also be liable to compensate X under torts. Object of Passing Act: The main purpose of passing this Act was to protect society from those people. ho either for their benefit do those activities which directly or indirectly affect people at large and to prevent them. o it became necessary to pass this code. Title and extent of operation of the code: ection- 1. ection 1 provides-"this Act shall be called the Indian Penal Code, and shall extend to the whole of India except the state of Jammu & Kashmir." 2. ection 18 of IPC defines India-"India means the territory of India, excluding the state of J&K." 3. Article 1 of the Constitution of India declares-"india shall be a union of states." 4. Thus the state of J&K is part of political India but it is not India for the purposes of IPC Fazal AIi, C.J., as he then was, held that exclusion of a territory postulates the existence of a territory itself; tate of Jammu and Kashmir cannot be taken as a foreign territory. 6. Indian maritime area or the continental shelf is included in the territory of India. Indian maritime area extends to 12 nautical miles measured from the base line. 7. Any person (irrespective of his citizenship) is subject to IPC as soon as he entered the Indian Territory. Territorial Operation of the Code 1. Every person shall be liable to punishment under this code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India. Every person within territory of India- Intra territorial operation (ection.2) 5

8 trictly for Internal Circulation - KCL Indian Territory territory Continental shelf. ection.2 Intr Territorial Operation Every person (Irrespective) of Citizenship Within territory of India Guilty Act Omission A IPC 2. Thus, section 2 provides for territorial operation of the code. 3. The word person has been defined in ec.11 IPC The word 'person' includes any company or association or body of persons, whether incorporated or not. Cases 4. ection 11 of I PC defines the word person widely and inclusively. However, it conveys natural persons alone. Therefore, as a general rule it conveys only natural persons and not a company or corporation. 5. In some cases a company or association or corporation may be liable under this code A company or corporation may be liable for filing fake income tax returns. 2. A Pakistani citizen while staying at Karachi made false representation to a complainant at Bombay through letters for supply of rice. He was arrested while he was in England and brought to Bombay. The Indian upreme Court upheld the order and convicted him u/ 420 IPC3. 3. Following are not included in the words 'every person' : a) President of India A Under Article 361 of the constitution of India. b) Governors of states c) Foreign overeign, Ambassadors Warships d) Enemies Alien (dealt in accordance with martial law) if commit an offence, be tried Under IPC. e) Foreign troops Extra territorial operation of the code: ec. 3 & ection-3 provides that an act which, would have constituted offence, if committed in India, may be an offence if committed beyond India. That would be so if any Indian law provides for that. 2. ection-3 refers to following laws: a) The extradition Act, 1962, (matters covered therein) b) ec. 187 & 188 Cr P.C. (matters covered therein) 3. ection-4 provides that the Act shall apply to following also: a) Act or omission by the Indian Citizens outside India. 6

9 trictly for Internal Circulation - KCL b) Offence committed by any person on any ship or aircraft registered in India.. 4. If an Indian citizen has committed a crime outside India, his act is punishable under IPC. The act 4 committed by him was not an offence at the place of commission. Held: That he can be tried and punished, in India. 5. The accused hailed from Multan. On partition he became a Pakistani citizen. He committed an offence in Pakistan. He came to India and acquired Indian citizenship. The question was whether he was triable in India for an offence committed by him in Pakistan as a Pakistani citizen. He cannot be 5 tried under IPC as at the time of commission of offence he was not Indian citizens. Certain Laws not to be affected by the code: ection-5 The Act shall not affect the provisions of any Act- a) Which makes it punishable for deserting or committing mutiny. b) The Act does not affect any special or local laws. c) Laws punishing mutiny or desertion by officers, sailors, soldiers, airmen in the service of Govt. of India are not affected by IPC. GENERAL EXPLANATION (ECTION 1 TO 52A) The Principle of Common Intention: ection 34 of IPC is related with doctrine of common intention. ection 34 - Acts done by several persons in Furtherance of Common Intention: "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." From the analysis of ec. 34 following essentials are made clear: 1. There must be two or more persons. 2. They must have a common intention. 3. Their common intention must have been furthered. If the above conditions are satisfied, each of the accused person would be liable for the resulted Criminal Act as if it were done by him alone. Common Intention 1) Common intention means following: a) Concerted action. b) Knowledge of each other's intention and sharing thereof. c) Prior meeting of minds. 2) Common intention is essential ingredient of ec. 34. Common Intention must not be confused with 7

10 trictly for Internal Circulation - KCL same or similar intention. 3) Presence of common intention is a question of facts and circumstances. 4) Common intention must be strictly proved. Courts cannot infer common intention readily. Furtherance of Common Intention 1) Presence of common intention is not enough. Its furtherance must also be proved. 2) Furtherance suggests participation or performance of some role. It was held that in a planned murder, one of the persons played the role of keeping of people from coming to the rescue of deceased. He and others were held guilty of murder u/s 302 read with ection ) It is not necessary that the roles should be same. Acts of the accused persons may differ. 4) Word 'Furtherance' enlarges the scope of ec. 34. The accused persons would be liable for a criminal act done in furtherance of common intention though it is different from what was commonly intended. 5) Where one of the accused persons develops an independent intention, the act done in furtherance thereof shall be his individual act and other co-accused persons would not be liable. 6) In the case of Barendra Kumar Ghosh vs. Emperor 52 IA 4014 (PC) : That act refers to the 'Criminal act' used in ection 34 which means the unity of criminal behaviour which results in some thing for which an individual would be punishable if it were all done by himself alone in an offence. Even if the appealant did nothing as he stood outside the door it is to be remembered that in crimes as in other things "they also serve who only stand and wait." 7) In the case of Mehboob hah vs. Emperor AIR 1945 PC 118: Common intention implies a pre arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group. Common Intention Must Precede the Criminal Act 1. Common intention must precede the criminal Act; the time interval between them may be narrow or 7 wide. In the case of Ram Chander vs. tate of Rajasthan 1970 Cr.L.J. 653: It is held that there need not be a long interval of time between the formation of the common intention and the doing of the Act. 2. Common intention may develop even on the spur of moment. Difference between Common intention, same or similar intention 8 9 1) In Mehboob hah case, it was held that common intention and same intention are different. The difference or distinction may be few but it is real and substantial. 2) ec. 34 requires common intention. Concerted Action is the essence of the term. In case of same or similar intention there is no concerted action. Framing of Charge U/s 34 is not necessary 8

11 trictly for Internal Circulation - KCL 1) ec. 34 does not create any offence. It is a deemed provision and not a penal provision. It only provides for a rule of evidence. 2) ince ec. 34 does not create any substantive offence no charge is required to be framed U/s 34. The Principle of Common Object (ection 149 IPC): Every member of an unlawful assembly is guilty of offence committed in prosecution of common ec. 149 provides: "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members to that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. Ingredients: The following are the essentials of common object: a) There must be an unlawful assembly. b) Any of the members of the unlawful assembly must have committed an offence. c) Offence must have been committed in prosecution of common object. (It includes the offence the likelihood of the commission of which was known to the members) If the above requirements are satisfied all the members of the unlawful assembly would be liable for the offence provided they were members at the time of commission of offence. Unlawful Assembly (ection 141): According to ection 149 IPC- An assembly of five or more persons is designated as 'Unlawful Assembly', if the common object of the persons composing that assembly is: First - To overawe by criminal force, or show of criminal force, the Union or any tate Government or Parliament or the Legislature of any state, or any public servant in the exercise of the lawful power of such public servant; or econd - To resist the execution of any law, or of any legal process; or Third - To commit any mischief or criminal trespass, or other offence; or Fourth - By means of criminal force, or by show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth - By means of criminal force, or show of criminal force to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation - An assembly, which was not unlawful when it assembled, may subsequently become an 9

12 trictly for Internal Circulation - KCL unlawful assembly. Distinction between Common Intention and Common Object (ec. 34 & sec, 149) 1. ec. 34 does not create any substantive ec. 149 creates a substantive offence. It only provides for a rule of evidence.offence. 2. Common object must be proved to attract ec. Common intention is necessary to Common intention means concerted action or attract ec ; common Prior meeting of mind of knowledge and sharing of each other's intention. 3. ec. 34 does not require any unlawful assembly. Unlawful assembly is a condition President for Application of ec ec.34 requires participation or performance ec. 149 does not require of some roles by accused of common intention. Participation by all accused persons. This ec. imposes liability on persons who are members of unlawful assembly at 5. Framing of charge is not necessary as it Framing of charge is necessary as it contemplates no offence. contemplates a substantive offence. Difference between ection 34 & ection 149 was laid down in Barendra Kumar Ghosh v Emperor 52 IA 40 (PC imilarity: Both are examples of constructive criminal liability. Cooperation by Doing One of everal Acts Constituting an Offence ection-37 ection 37 The accused must have cooperated in the commission of the offence by doing any of those acts. The accused must have done that act either singly or jointly. If the above conditions are satisfied the accused shall be liable for the commission of that offence. Illustration - 'A' is a jailor. T is a prisoner under his charge. 'A', intends to kill 'Z'. 'A', commits illegal omissions in supplying food to T. 'Z' is much reduced in strength. However the starvation is not sufficient to cause death. 'A' is dismissed from service. 'B' is a new jailor. There is no collusion or cooperation between 'B' & 'A'. 'B' too, commits illegal omissions in supplying food to T. 'B' knows that 'Z' may die. T dies of hunger. Determine the Cr. liabilities of 'A' & 'B'. 'A' is liable for attempt to murder while 'B' is guilty of murder. (as he has knowledge that Z could die). 10

13 trictly for Internal Circulation - KCL IMPORTANT QUETION Q.1. Q.2. Q.3. Q.4. Discuss the various definitions of crime and explain the essential elements of crime. Explain the doctrine of mensrea and its importance in I.P.C. Explain the maxim "Actus non facit mens sit rea". Whether Common intention is different from same intention. Discuss. Q.5. What is the difference between common intention and common object? Q.6. Q.7. Q.8. "Mistake of fact is defence but not the mistake of law". Explain the statement. Explain mens rea and its exception with illustration. Distinguish between Tort and Crime. 11

14 trictly for Internal Circulation - KCL UNIT II GENERAL EXCEPTION AND OME OFFENCE 1. Chapter IV of IPC (General Exception) deals with the various offences which a person accused of an offence under this court or any special or local law can plead. 2. If an act accused plead an exception within the meaning of this chapter there is a presumption against him and the burden to rebut that presumption is on him. (K.M. Nanavati vs. tate of Maharashtra, AIR 1962, C 605) 3. Principle enunciated in chapter IV are in fact rules of evidence carrying either conclusive or rebuttable presumption. 4. Huda calls these principles "conditions of non imputability" Kenny calls them "conditions of exemption from criminal liability". GENERAL EXCEPTION (ECTION 76 TO 106) General Exceptions can be divided into two parts: 1. Excusable defences (ections 76-95) 2. Justifiable defences (ections ) Mistake of Fact (ection 76): Act done by a person bound, or by mistake of fact believing himself bound by law. According to section 76 IPC: "Nothing is an offence which is done by a person who is, or who by reason of a mistakes of fact and not by reason of a mistake of law, in good faith believes himself to be bound by law to do it." In the case of Chaman Lal (1940) 21 Lah 521; Mangal ingh, 1981 Cr. LJ 84 (Cal) : Held that for a manifestly illegal superior order, that is an order which is illegal on the face of it, e.g., to kill an innocent bystander or to torture an accused in custody or to fire on a group of people who have assembled for a lawful purpose, the superior order affords no protection to a subordinate. 1 In the case of Gopalia Kalliaya : A police-officer came to Bombay from up-country with a warrant to arrest a person. After reasonable inquiries and on well-founded suspicion he arrested the complainant under the warrant, believing in good faith that he was the person to be arrested. The complainant having proceeded against the police-officer for wrongful confinement, it was held that the police-officer was guilty of no offence as he was protected by this section. 12

15 trictly for Internal Circulation - KCL Other Important Cases are: R. Vs. Prince (1875) LR 154 and R. Vs. Tolson (1889) 23 QBD 168 Act of Judge when Acting Judicially - ection-77: Under this section a Judge is exempted not only in those cases in which he proceeds judicially in the exercise of a power which the law gives him, but also in cases where he, in good faith, exceeds his jurisdiction and has no lawful powers. It protects judges from criminal process just as the Judicial Officers Protection Act, 1850, saves them from civil suits. Act done Pursuant to the Judgment or Order of Court - ection-78: This section is merely a corollary to ection 77. It affords protection to officers acting under the authority of a judgment, or order of a Court of Justice. It differs from ection 77 on the question of jurisdiction. Here, the officer is protected in carrying out an order of a Court which may have no jurisdiction at all, if he believed that the Court had jurisdiction; whereas under section 77 the Judge must be acting within his jurisdiction to be protected by it. Mistake of Law (ection 79): Act done by a Person Justified or by Mistake of Fact Believing himself Justified, by Law. According to ection 79 IPC - "Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it." ection 79 is based on the following Maxims - a) Ignorantia facit excusat b) Ignorantia legis neminem excusat Mistake of Law is not Excusable: Mistake of Law is not excusable. Law presumes that everyone knows the law of the land. The presumption had its basis in public policy. Chaman Lal, 1940 Lahore: Held: The maxim ignorantia juris non excusat has no exceptions. Yet an act done under the mistake of law may be a ground for a concessional punishment. Latif Khan, 1895: Held: A person blindly following orders of his parents, superior or Master cannot avoid liability. In such cases the maxim respondent superior (let the superior be liable) is inapplicable. Justified by Law: Justified by Law means 'Not prohibited by Law' - 2 Keso ahu v. aligram : Where the accuseds while helping the police stopped a cart which they in good faith believed to be incorrect, it was held that they could not be prosecuted for wrongful restraint under ection 341 as their case was covered by section 791PC. 3 Raj Kapoor V/s Laxman : The producer of the film at yam hivam undaram was prosecuted u/s 292 IPC. The censor board had in sued a certificate for public exhibition of the film. The producer in good faith believed that now he was justified in the public exhibition of the film. Held: In the circumstances of the case the producer may be said to have believed that he was justified by law in the public exhibition of the film. 13

16 trictly for Internal Circulation - KCL Accident in Doing a Lawful Act - ection Accidents are not excusable. Injuries caused by an accidental act may be excused subject to the fulfilment of requirements of Law. 2. This section exempts the doer of an innocent or lawful act in an innocent or lawful manner and without any criminal intention or knowledge from any unforeseen evil result that may ensue from accident or misfortune. 3. Nothing is an offence which is done : a) By accident or misfortune. b) Without any criminal intention or knowledge i) In the doing of a lawful act. ii) In a lawful manner. iii) by lawful means 4. Illustration: 'A' is at work with a hatchet. The head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of '1\, his act is excusable and not an offence. Accident of Misfortune 1) An effect may be accidental. It is to be seen whether the act done was intentional or with knowledge or not. Any effect caused by an act which was not done with an intention to cause that effect or which was done without a reasonable forcibility of the effect so caused cannot create a liability. 2) Accident and event are not one and the same thing. Accident contemplates something unexpected; it is something which takes place outside the ordinary course of things. Lawful Act: Accident may be a good defence only when the act done was lawful and it was done in a lawful manner and by lawful means and with care but without mens rea. Lack of Care and Cautions: 1) Any injury resulting frorn an act done without due care and caution cannot be said to be accidental or occurring by misfortune. 2) Rangaswamy, 1952, Nag. 93: Accused fired a shot from an unlicensed gun. The court took a liberal view and held that shooting with an unlicensed gun does not debar an accused from claiming immunity under this section. Act likely to cause harm, but done without criminal intent and to prevent other harm ection- 81 1) The principle in ec. 81 is that where in a grave and sudden emergency one of the two evils is inevitable, it would be logical as well as legal to direct the events so as to suffer the slighter of them. 14

17 trictly for Internal Circulation - KCL 2) ec. 81 of the code in essence adopts the above principle but it adopts those principles only which are conditional. The benefit of this section can be availed if done in good faith for the purpose of avoiding other evils. Lack of mens rea shall be established. 3) ec. 81 provides:- "Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if : 4) For the purpose of preventing or avoiding other harm to person or property." The harm intended to be avoided is to be judged in reference to following:- a) the nature of the harm intended to be avoided. b) the imminence of the harm sought to be avoided. To avail the benefit of ec. 81 the accused must plead and prove the following: 1) That the act causing harm was not done with an intention of causing harm (although it was known that the act was likely to cause that harm). 2) That he was acting in good faith while doing the act complained of. 3) That the act complained of was done to prevent any other harm to person or property. 4) That in view of the nature of the harm sought to be avoided the act complained of was justifiable or excusable. R. V/s Dudley & tephens, (1884): The question was whether the need for self preservation extends to causing harm to an innocent person, and that to what extent it would be justified. Held: Accordingly, the court convicted the accused persons for murdering the minor boy, R. V. Martin, (1889) - ir James tephen has Criticized : The decision; he suggests that when the two persons holding a plank after a ship wrecked, and one of them pushes the other off resulting into death of that person would not be an offence. At the best it can be said that he has left such person to a chance of holding some other support. 1. A minimum level of maturity of mind is a must to maintain mens rea. The legislature in its wisdom declared that a child under seven years of age does not have that much maturity of mind which is a must for entertaining a guilty intent. In that view of the matter, law declares a child under seven years of age as doli in capex i.e. one incapable of committing an offence. (ec. 82) 2. A conclusive presumption of innocence is raised in favour of a child under seven. The fact tha the delinquent child is under seven can give a complete answer to every question and argument of the prosecution. Bakhul hah, 1866 : The accused purchased for one anna, from a child aged six years, two pieces of cloth valued at fifteen annas, which the child had taken from the house of a third person. It was held that, assuming that a charge of an offence of dishonest reception of property (section 411) could not be sustained owing to the incapacity of the child to commit an offence, the accused was guilty of criminal misappropriation, if he knew that the property belonged to the child's guardians and' dishonestly appropriated it to his own use. ection 83 Relates to an act done by a child above seven years of age and under twelve. 15

18 trictly for Internal Circulation - KCL It does not contemplate conclusive presumption of innocence of the child. Benefit is given to a child who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct. ection - 83 is based on Latin Maxim 'Malitia supplet aetaten. (Malice supplies the defect of years). ec. 83 relates to exceptional immaturity of understanding. Therefore, the defence has to establish that the accused did not have sufficient maturity. Generally, it is to be presumed that child had sufficient maturity. 4 Ulla Mahapatra v/s tate : Where the accused, a boy over eleven years but below twelve years of age, picked up his knife and advanced towards the deceased with a threatening gesture, saying that he would cut him to bits, and did actually cut him, his entire action can only lead to one inference, namely, that he did what he intended to do and that he knew all the time that a blow inflicted with a kathi (knife) would effectuate his intention. 5 Krishna v/s tate : Where a child of nine years of age stole a necklace, worth Rs , and immediately afterwards sold it to the accused for five annas, the accused could be convicted of receiving stolen property, because the act of the child in selling the necklace showed that he had attained a sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion within the meaning of this section. Act of a Person of Unsound Mind - ection Legal insanity - incapable of knowing - Nature of his act or what he is doing is wrong/contrary to law. 2. At least legal insanity is required to give the benefit u/s It contemplates only legal insanity. 4. It does not provide benefit to medically/socially insane person. Essential Elements of ec. 84 Nothing is an offence which is done by a person who: At the time of doing it, by reason of unsoundeness of mind, is incapable of knowing: 1) The nature of the Act; or 2) That he is doing what is either wrong or contrary to law. Following essentials are made out from the analysis u/s The act complained of must have been done by a person of unsound mind. 2. The accused must have been suffering from instant unsoundness of mind at the time of the act. 3. The accused must have become incapable of knowing the nature of his act or that what he was doing was wrong or contrary to law. 16

19 trictly for Internal Circulation - KCL Unsoundness of Mind: Persons of unsound mind are called non compos mentis. Persons of unsound mind / non compos mentis. Idiot - Acquired Non campos Non compos - by birth Insanity mentis by mentis for any - (Natural Insanity) -Curable/may reason of other reason e.g. - Incurable be proved if some physical in shock fear - Tested by not cured ailment. etc. asking questions. At the Time of Doing 1. Benefit under ec. 84 IPC is available only to a person who suffered from legal insanity at the time of alleged commission of the act complained of. 2. Neta Ram v/s tate, 1866: In this case the accused suffered from legal insanity at the date of trial but he did not suffer that on the date of alleged commission. The benefit u/s. 84 was not given. 3. Court must ensure that the insanity existed at the given point of time. English Law as to Insanity: Under English law the principle laid down in Mc Naughton's, case6 where the accused, Daniel Mc Naughton's, was charged for the murder of Edward Drummond, ecretary to then Prime Minister, ir Robert Peel, on January 20, The accused was suffering from an insane delusion that ir Robert Peel had injured him and that he mistook Drummond for ir Robert. Accordingly, he shot and killed him. The accused pleaded not guilty on the ground of insanity. The defence led evidence of accused's insanity, particularly his obsession with the given morbid delusion. The jury returned a verdict of 'not guilty' on the. ground of insanity. English law now recognized social and medical insanity. Criticism u/sec. 84 IPC 1. ec. 84 is based on the principle laid down in Mc Naughton's case. The principle laid down in the case is no longer a guiding principle under the English law. Therefore, it is hardly justified to base ec. 84 IPC on that decision. 2. ec. 84 IPC does not recognise medical or social insanity. This is hardly justified. ec. 84 must be amended to do justice in cases of partial insanity. Act of a Person uffering Intoxication - ection-85 read with ection ections 85&86 provide for law as to intoxication. Voluntary intoxication is no defence. Voluntary intoxication may be relevant in the determination of particular intention or knowledge required for a given offence. 2. Intoxication was no defense under English common Law till the beginning of 19th Century. In the later half of the 19th Century involuntary intoxication was recognised as a defence. 17

20 trictly for Internal Circulation - KCL 3. Intoxication is a kind of insanity. Insanity is a disease while intoxication is an evil. Persons suffering from insanity deserves mercy but an intoxicated person deserves to be condemned. 4. Under the IPC, intoxication may be a defence provided the intoxicant was administered to the accused without his knowledge or against his wishes. Essentials u/sec. 85- a) At the time of doing it; b) By reason of intoxication a) Is incapable of knowing the nature of his ct; or b) That what he is doing is wrong or contrary to law. c) Provided that the thing which intoxicated him was administered to him without his knowledge or against his will. From the Analysis of ection-85 following Essentials are Made Out: 1) The act complained of must be done by an intoxicated person. 2) The accused must be suffering from intoxication at the time of the commission of the Act. 3) The accused must have become incapable of knowing the nature of the act and that what he is doing is wrong or contrary to law. 4) The intoxication must be either without his knowledge or against his will. Presumption of particular intention of knowledge- ection 86 1) ec. 86 provides for a presumption of law. 2) Thus where a person does an act requiring a particular knowledge or intention to constitute an offence, such intention or knowledge is to be presumed against the accused person. 3) There shall be a presumption that accused did entertain the required criminal intent or criminal knowledge. 4) The presumption is rebutable. Accused may show that he did not entertain the required criminal intention or knowledge in as much as he was intoxicated against his will or without his knowledge. 7 5) Basudev v/s tate of PEPU : The appellant was charged with the murder of a young boy. The two of them and others of the same village went to attend a wedding in another village. All of them went to the house of the bride to take the mid-day meal. ome had settled down in their seats and some had not. The appellant asked Maghar ingh, the young boy, to step aside a little so that he might occupy a convenient seat. But Maghar ingh did not move. The appellant whipped out a pistol and shot the boy in the abdomen. The injury proved fatal. He was charged rejecting the plea of the accused to allow him the benefit of section 86 and reduce the charge from murder to culpable homicide. 8 The Director Public Prosecution v. Beard : In this case the accused was held guilty for his offence of murder of a girl aged thirteen whom the accused raped and placed his hand over her mouth and pressed his thumb on her throat in a bid to prevent her from screaming. In this endeavour he unintentionally killed her. The Court of Criminal Appeal found him guilty of manslaughter but the House of Lords restored the conviction for murder. 18

21 trictly for Internal Circulation - KCL Acts not intended and not known to be likely to cause death or grievous hurt, done by consent - ection-87 Following Two Benefits may be claimed on the Basis of Consent 1. A) Complete exemption from criminal liability. (87, 88, 89). B) Reduction in criminal liability. (Exception 5-ec.300) 2. ec. 87, 88, 89 relate to law as to consent. (complete exemption) 3. Consent is a good defence against offences relating to property. 4. Consent is a good defence even against offence against human body (except cases where death or grievous hurt is caused). 5. Causing death with consent is not excusable. Nor has a right to consent to self killing. 6. From the analysis of ec. 87 following essentials are made out. a) The victim must have consented to, expressly or impliedly to the act of the accused. b) The person consenting (victim) must have been above 18 yrs at the time of consent. c) The Act of the accused must have been without an intention or knowledge of likelihood of causing death or grievous hurt. Act not intended to cause death, done by consent in good faith, for person's benefit - ection Nothing would be an offence which was not done with intention to cause death if it was done for a person's benefit and in good faith by consent. 2. ec. 88 does not provide for the age of the person giving consent. Essentials of ec. 88 a) The Act of the accused must have been done for the benefit of the victim. b) The Act must have been under expressed or implied consent of the victim. c) The Act of the accused must have been in good faith. d) The accused must not have intended to cause death. Illustration: 'A' is a surgeon. 'B' is suffering from a serious disease. 'A' not intending to cause B's death though he knew that death may ensue, makes an operation with B's consent for B's benefit and in good faith. 'A' commits no offence. 3. In ec. 88 benefit does not mean only a pecuniary benefit. It may be a benefit of any kind. 4. For the purposes of ec. 88 any person who is under 12 yrs. of age is not competent to give consent u/s 88 (from ec. 90) Act done in Good Faith for Benefit of a Child or Insane Person, by or by Consent of Guardian - ection

22 trictly for Internal Circulation - KCL 1. "Nothing is an offence which is done in good faith for the benefit of a person under 12 years or of unsound mind, if done with the consent of the guardian." Following essentials are made out a) The act done by the accused must be in good faith. b) The victim must be under 12 years or a person of unsound mind. c) The Act must have been done with the consent of the guardian or any person incharge of such person. d) The Act done must have been for benefit of victim. 2. Benefit of ec. 89 shall not be available in following cases: a) An act done with the intention of causing death or with an intention of attempting to cause death. b) Anything about which the doer knows that death is likely thereby. c) Anything done with an intention of voluntary act causing grievous hurt or attempt thereof. d) Abetment of any offence when the offence is not within ec.89. Consent known to be given under fear or misconception - ection Consent given under fear or misconception is not a valid consent. Therefore, such a consent cannot be the basis of defence. In Poonai Fattemah vis tate C (1869): The accused, who professed to be a snake charmer persuaded the deceased to allow himself to be bitten by a poisonous snake, inducing him to believe that he had power to protect him from harm. It was held that the consent was given by the deceased under a misconception of fact arising out of the misrepresentation made by the accused that he had power by charms to cure snake bites and the accused knew that the consent was given in consequence of such misconception and therefore, the accused was not entitled to protection on the ground of consent of the deceased. 9 In Dasrath Paswan vis tate : The accused had failed at an examination for three successive years. He was very much upset at these failures. Accordingly he decided to end his life. He informed of his decision to his wife who was a literate woman of 19 years of age. His wife asked him to kill her first and then kill himself In consequence of this pact the accused killed his wife but was arrested before he could kill himself It was held that the wife had not given her consent under fear of injury or misconception of fact. Here the accused would not be liable for murder but for culpable homicide not amounting to murder as the case is covered by exception 5 to section 300 of the Code. 2. Consent would not be valid when given by a person of unsound mind or an intoxicated person unable to understand the nature and consequences of that to which he consents. 3. Consent by a child under 12 is also not valid (unless the contrary appears from the context). 20

23 Exclusion of Acts which are offence independently of harm caused- ection 91 trictly for Internal Circulation - KCL 1. ec. 91 relates to acts which are offences even without any harm. In such cases consent will be of no use. Therefore ec. 91 relates to cases where consent is no defence. 2. ec. 91 is therefore an exception to ections 87, 88 & Following are certain acts which are offences though no harm resulted from such acts: a) Causing miscarriage b) Public nuisance c) Acts against the public safety and morality. 4. Essentials of ec. 91: a) The accused must have done some act. b) The act must be an offence independent of any injury. If the above requirements are satisfied the accused would be liable notwithstanding that the Act was consented to. Act done, in good faith for benefit of a person without consent - ection Act done for another's benefit and in good faith though without consent is no offence though harm might have resulted. 2. ec. 88 & 89 excuse an act done for a person's benefit but a valid consent would be necessary under these two sections. Therefore, cases are not covered u/s 88 or 89 may still be covered u/s ec. 92 shall apply in following cases: a) When it is not possible for the victim to give consent. b) When the victim is incapable of giving consent. c) When it is not possible to obtain consent from guardian or person in lawful charge. d) ec. 92 generally protects medical personnel. The medical men become guardians in the face of necessity. A temporary emergency confers guardianship to them. In such a case every person may take necessary steps. 4. Benefit of ec. 92 shall not be available in the following cases.: a) where the death is caused intentionally. b) where there is knowledge that death may be caused. c) where the hurt is caused voluntarily or where it is attempted voluntarily. d) Where abetment of the above is made. Where there was a knowledge of likely death benefit of ec. 92 may still be available in following cases a) when the intention was to prevent death or grievous hurt. b) When the intention was to cure a serious disease or physical infirmity. 21

24 trictly for Internal Circulation - KCL Despite voluntary hurt or attempt thereof benefit of ec. 92 may still be available in following cases: a) where intention was to prevent death. b) where intention was to prevent hurt. Communications Made in Good Faith - ection- 93 1) Communication made in good faith for the benefit of a person does not create any criminal liability. 2) ec. 93 provides "No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person". Illustration: 'A' is a surgeon. 'A' in good faith communicates to the patient his opinion that he (patient) cannot live. The patient dies in consequence of the shock. 'A' has committed no offence though he knew that death might be caused Essentials of ection 93 a) Accused must have made a communication. b) The communication must have been made for the benefit of the person to whom it was made. c) The communication must have been made in good faith. The communication of the above kind would not create any criminal liability notwithstanding the harm caused thereby. Act to which a person is compelled by threats - ection ec. 94 is based on the Latin maxim actus me invito factus non estmens actus' (Act done by me against my will is not my act). 2. Any act done under the threat of instant death is no offence. The following acts are not excusable u/s 94; an offence against the state is punishable with death. 3. The policy underlining u/s 94 is as under: a) if you have to choose between your death and that of any other you choose your own death. b) Accept your own death instead of committing against the state any offence punishable with death. 4. Compulsion arising out of necessity is not within the preview of ec. 94. Essentials of ection 94 a) The accused must have done some act. b) The accused must have been under the threat of instant death. c) The act must not be any of the following: i) Death ii) Any offence against the state punishable with death. 5. The accused must not have of his own accord or from a reasonable apprehension of a harm shorter 22