KAMKUS COLLEGE OF LAW

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1 KAMKUS COLLEGE OF LAW LAW OF CRIME (INDIAN PENAL CODE) (Paper Code: K-104) CHAPTER: 1 GENERAL PRINCIPAL OF CRIME TOPIC: Definition of crime Doctrine of Mens Rea Elements of crime Stages of crime Definition of Crime: Crime is what the State has by an act of legislature definitely declared as punishable. The I.P.C. no where defines what is Crime. A crime can be said to be an act of commission or omission, contrary to law, tending to the prejudice of community for which punishments can be inflicted as the result of judicial proceeding Blackstone - "A crime is a violation of public rights and duties to the whole community." Stephen - modified the definition of Blackstone as - "A crime is a violation of right considered in reference to the evil tendency of such violation as regards the community at large." This definition is not fully free from error; it narrows the scope of crime. The definition given by Blackstone and Stephen further stresses that crimes are those breaches of laws which injure the community. Romans define crime as "delicta publica" (Public wrong) and criminal trial as "judica publica (Public Justice). Doctrine of Mens Rea: The fundamental principle of criminal liability is that there must be a wrongful act actus reus, combined with a wrongful intention - mens rea. This principle is embodied in the maxim, actus non facit reum nisi mens sit rea meaning, and an act does not make one guilty unless the mind is also guilty'. In juristic concept, actus reus represents the physical aspect of crime and mens rea, its mental

2 aspects, which must be criminal and co-operate with the first. Actus reus has been defined as 'such result of human conduct'. Mens rea covers a wide range of mental states and conditions, the existence of which would give a criminal hue to actus reus. Actus reus connotes an overt act, the physical result of human conduct. In order to create criminal liability, it is not sufficient that there is mens rea and an act; the actus must be reus. In other words, the act must be one that is prohibited by law. Actus reus includes negative as well as positive elements. The requirements of actus reus varies depending on the definition of the crime. Actus reus may be with reference to place, fact, time, persons, etc. This is exactly the intention of law when it stipulates that mens rea or guilty intention is the sine qua non of a criminal act and is an essential element of a crime. Intention is the conscious exercise of the mental faculties of a person to do an act, for the purpose of accomplishing or satisfying a purpose. Objective The object of law is always to punish a person with a guilty mind. It does not want to put behind bars an innocent person who may have had the misfortune of being involved in a incident and event, which he did not have the intention of participating in. The existence of the mental element or guilty mind of mens rea at the time of commission of the actus reus or the act alone, will make the act an offence. Every overt or outward act or the actus reus has also an essential ingredient of a crime. The element of mens rea as an essential ingredient of a crime is also approved by the growing modern philosophy. The object is that punishment should fit the offender and not merely the offence. How to establish mens rea As intention is an abstract idea, it is difficult to establish it and the help is taken of surrounding facts or factors (i)previous relation between the accused and the victim, any object of hostility between them. (ii)existence of instigation, i.e. Whether accused was hired and what prompted him to commit crime; and (iii)whether the accused had something to gain out of the whole affair. Thus, guilty intention is always preceded by a motive or real causal factors. In R. Vs. Prince (1875) the accused was an adult person who got an affair with a girl he believed the girl to be adult as she seems adult due to physical built up but she is near about 14 Yrs of age. They

3 involved in relationship (physical etc.). The boy was caught and charged with the offence of Kidnapping and Rape. Court said this is a case of strict liability therefore the mens rea can't be taken as an Excuse. Mens Rea in the Indian Penal Code: Under the IPC, guilt in respect of almost all the offences is fastened either on the ground of intention, or knowledge or reason to believe. Though the word mens rea as such is no where found in the IPC, its essence is reflected in almost all the provisions of the Code. For framing a charge for an offence under the IPC, the traditional rule of existence of mens rea is to be followed. Chapter IV of the Code deals with General Exceptions, wherein acts which otherwise could constitute offences, cease to be so under certain circumstances. However, this general or traditional rule that mens rea is an essential element in IPC offences is not without its exceptions. Like all other statutes, the deciding factor on whether mens rea is required or not, depends on the language of statute and the intention of the legislature as gathered from the statute. Negligence as Mens Rea Mens rea is not an unitary concept. Depending on the nature of the crime, mens rea may be presence or existence of intention in some cases, or requirement of knowledge in some, and negligence in some others. Thus, law has developed various levels of mens rea or intent such a negligence, recklessness, knowledge and purpose. Based on the nature of the offence, the requirements of particular statutory provisions and the object of the particular statute, the courts have to decide what is the extent or level of criminal intent that is required to convict a person of an offence. In R vs. Wheals & Stock Mr. Wheals a person of very little education, want divorce from her wife. He asked solicitor for the purpose. One day when he was enjoying holiday, received some papers as required to be signed by him in order to file the divorce case. He signed them and sent back to solicitor, believing that he got divorced. He entered into marriage with Ms. Stock. His first wife filed a case of Bigamy against him. He pleaded before the court that he was not aware of the facts as he is a person of very little education and he had no mens rea. Held by the court that Bigamy is an offence under the rule of 'Mala in Se' and can not be tolerated by the state and he was held liable. Mens rea when not essential (Strict Liability)

4 Although mens rea is a sacrosanct principle of criminal law, it can be waived in certain circumstances. There are some special circumstances under which the law imposes a strict or absolute liability, and such cases may be treated as exception to the doctrine of mens rea. Or it can be said that mens rea is an exception to the maxim 'actus non facit reum, nisi mens sit rea. But the principle of strict liability can not be imposed upon those people who are generally excepted ( like insane, child, etc.)the following are the exceptional cases in which mens rea is not required in criminal law (1)Language of the Statute and subject matter of legislation :- Language of the Statute and the intention of the legislation as gathered from statute shows whether the act imposes the strict liability or there is a requirement of mens rea in order to prosecute a accused person. This could be established by the following two modes:- (a) Express Words: Whether language of the statute expressly gives indication regarding the requirement of the mens rea or not. (b) Fair Implication: If it is not clearly expressed in the statute then the language of the statute should be observed that what kind of liability it intend to impose. (2) Nature of the act: Involving acts that are in real sense not criminal in nature, they are quasi-criminal in nature. They are prohibited in public interest. It includes public welfare offence. They are called as white collar crimes. Committed by persons at high position e.g. Crime relating foods and drugs, weights and packages etc. (3) Mens rea is not essential in respect of certain offence in I.P.C. Where the nature of offence is such that in commission bring a very serious damage to the society which cannot be compensated e.g. Kidnapping, counterfeiting coins, bigamy, waging war, sedition etc. (4) Cases of Public Nuisance: Under this head comes libel, defamation where intention of defamer is not real required. The legislature is well within its power to legislate that in respect of a particular offence, the existence of mens rea is not an essential requirement. State of Maharashtra vs. M H George In this case the question of necessity of mens rea for an offence under the FERA. M H George was a German national, who was apprehended for smuggling gold into India. According to the statement made by him to the customs authorities, some person met him in Hamburg and engaged him on certain terms of remuneration, to clandestinely transport gold from Geneva to places. The present case was concerned with the one that he undertook at the instance of an international gang of gold smugglers

5 carrying 34 kilo bars of gold concealed in a jacket which he wore. This trip started at Zurich on 27th November 1962 and his destination was Manila, where he was to deliver the gold. The plane arrived in Bombay on 28 November. The custom authorities who had evidently advance information of gold being attempted to be smuggled by the respondent, first examined the manifest of the aircraft to see if any gold had been consigned by any passenger. Not finding any entry there, after ascertaining that the respondent had not come out of the plane as usual to the airport lounge, entered the plane and found him seated there. The customs inspector upon inspection found some metal blocks on his person. On removing the jacket he wore, it was found to have 28 specially made compartments from the 19 compartments 34 bars of gold each weighing approximately one kilo were recovered. The respondent disclaimed ownership and gave the story of his several trips. The respondent was prosecuted and charged with having committed an offence under Sec. FERA. Sec 8 of the Act enacts the restrictions on the import and export inter alia. The point raised by the respondent before the magistrate was one of law based on his having been ignorant of the law prohibiting the carrying of the gold, as the respondent left Geneva on Nov and he was not aware of the change in the content of the exemption granted by the Reserve Bank in its 1 st notification dated August 25, In other words, the plea was that Mens rea was an ingredient of the offence with which he was charged. It was disputed by the prosecution that he was not actually aware of the 2 nd notification of the Reserve Bank of India Issued on 8th Nov. and Published on 24th Nov which rendered the carriage of gold in the manner that he did an offence, and henceforth he could not be held guilty. The learned magistrate rejected this defence and sentenced him to imprisonment for one Year. On appeal by the respondent, the learned judges of the High Court allowed the appeal and acquitted the respondent upholding the legal defence which raised. It is the correctness of this conclusion that came up for consideration before the Supreme Court. A number of cases were put up before the court for reference. As referring a decision of the Privy Council in Sriniwas Mall v. Emperor, The Board was, there, dealing with the correctness of a conviction under the Defence of India Rules, relating to the control of prices. The appellant before the Board was a dealer in wholesale who had employed a servant to whom he had entrusted the duty of allotting salt to retail dealers and noting on the buyer's licence the quantity which the latter had bought and received all of which were required to be done under the rules. For the contravention by the servant of the Regulation for the sale of salt prescribed by the Rules the appellant was prosecuted and convicted as being vicariously liable for the act of his servant. On appeal to the Privy Council stated : They see no ground for saying that offence against those of the Defence of India Rules here in question are within limitation and exceptional class of

6 offences which can be held to be committed without a guilty mind. Further in R vs. Tolson (1889) Tolson got married in. After 1 Yr. Mr. Tolson became missing there was no information about him for seven years. Mrs. Tolson waited for her husband during this period. Elder brother of Tolson told her that he has gone in vessel and it was sunk. So she decided to marry again as she believed vessel was lost and he is dead. Tolson came back when his wife get married again. He filed a case against her. In this case the court held that, Although, prime facie and as a general rule, there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not. After considering the plight and circumstances during the period of 7 Yrs. of the wife they acquitted the wife from charges. In another In the case of Lim Chin Aik v. Queen the Privy Council reviewed the entire law of the Immigration Ordinance of the State of Singapore. The Minister made an order under the powers conferred by the Ordinance in an instance of the exercise of delegated legislation, prohibiting the appellant from entering the colony and forwarded it to the Immigration Officer. There was no evidence that the order had in fact come to the notice of attention of the appellant. He was prosecuted for contravention of the Ordinance. On a review of the case on the subject and the principles enunciated therein, the Judicial Committee came to the conclusion that it is not enough merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. Another reference was of Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh Co. carries on the business of carriage of goods and passengers by sea, owns a fleet of ships. On its route a vessel arrived at Calcutta. On a search it was found that a hole was covered with a piece of wood, when the hole was opened a large quantity of gold was discovered. Custom Authorities ceased the vessel. One of the contentions raised was that S 52 A of Sea Custom Act. Under that section no vessel constructed, adapted, altered or fitted for the purpose of concealing goods shall enter, or be within, the limits of any port in India, or the Indian customs waters. The Court in construing the scheme and object of the Sea Custom Act came to the conclusion of the offence, as, if that was so, the statute would become a dead letter. That decision was given on the basis of the clear object of the statute and on a construction of the provisions of that statute which implemented the said object.

7 The court in this case held that the very object and purpose of the Act and its effectiveness as an instrument for the prevention of smuggling would be entirely frustrated, if condition of mens rea were to be read into the plain reading of the enactment. Therefore the accused M H George was convicted. Elements of Crime There are four elements which go to constitute a crime, these are:- 1. Human being 2. Mens rea or guilty intention 3. Actus reus or illegal act or omission 4.Injury to another human being Human Being- The first element requires that the wrongful act must be committed by a human being. In ancient times, when criminal law was largely dominated by the idea of retribution, punishments were inflicted on animals also for the injury caused by them, for example, a pig was burnt in Paris for having devoured a child, and a horse was killed for having kicked a man. But now, if an animal causes an injury we hold not the animal liable but its owner liable for such injury. So the first element of crime is a human being who- must be under the legal obligation to act in a particular manner and should be a fit subject for awarding appropriate punishment. Section 11 of the Indian Penal Code provides that word person includes a company or association or body of persons whether incorporated or not. The word person includes artificial or juridical persons. Mens Rea- The second important essential element of a crime is mens rea or evil intent or guilty mind. There can be no crime of any nature without mens rea or an evil mind. Every crime requires a mental element and that is considered as the fundamental principle of criminal liability. The basic requirement of the principle mens rea is that the accused must have been aware of those elements in his act which make the crime with which he is charged. There is a well known maxim in this regard, i.e. actus non facit reum nisi mens sit rea which means that, the guilty intention and guilty act together constitute a crime. It comes from the maxim that no person can be punished in a proceeding of criminal nature unless it can be showed that he had a guilty mind. Actus Reus [Guilty Act or Omission] - The third essential element of a crime is actus reus. In other words, some overt act or illegal omission must take place in pursuance of the guilty intention.

8 Actus reus is the manifestation of mens rea in the external world. Prof. Kenny was the first writer to use the term actus reus. He has defined the term thus- such result of human conduct as the law seeks to prevent. Injury- The fourth requirement of a crime is injury to another person or to the society at large. The injury should be illegally caused to any person in body, mind, reputation or property as according to Section 44 of IPC, 1860 the injury denotes any harm whatever illegally caused to any person in body, mind, reputation or property. Stages of A Crime If a person commits a crime voluntarily or after preparation the doing of it involves four different stages. In every crime, there is first intention to commit it, secondly, preparation to commit it, thirdly, attempt to commit it and fourthly the accomplishment. The stages can be explained as under- 1. Intention- Intention is the first stage in the commission of an offence and known as mental stage. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. But the law does not take notice of an intention, mere intention to commit an offence not followed by any act, cannot constitute an offence. The obvious reason for not prosecuting the accused at this stage is that it is very difficult for the prosecution to prove the guilty mind of a person. 2. Preparation- Preparation is the second stage in the commission of a crime. It means to arrange the necessary measures for the commission of the intended criminal act. Intention alone or the intention followed by a preparation is not enough to constitute the crime. Preparation has not been made punishable because in most of the cases the prosecution has failed to prove that the preparations in the question were made for the commission of the particular crime. If A purchases a pistol and keeps the same in his pocket duly loaded in order to kill his bitter enemy B, but does nothing more. A has not committed any offence as still he is at the stage of preparation and it will be impossible for the prosecution to prove that A was carrying the loaded pistol only for the purpose of killing B. Preparation When Punishable- Generally, preparation to commit any offence is not punishable but in some exceptional cases preparation is punishable, following are some examples of such exceptional circumstances- (a)preparation to wage war against the Government - Section 122, IPC 1860;

9 (b) Preparation to commit depredation on territories of a power at peace with Government of India- Section 126, IPC 1860; (c) Preparation to commit dacoity- Section 399, IPC 1860; (d) Preparation for counterfeiting of coins or Government stamps- Sections , S. 255 and S. 257; (e) Possessing counterfeit coins, false weight or measurement and forged documents. Mere possession of these is a crime and no possessor can plead that he is still at the stage of preparation- Sections 242, 243, 259, 266 and Attempt- Attempt is the direct movement towards the commission of a crime after the preparation is made. According to English law, a person may be guilty of an attempt to commit an offence if he does an act which is more than merely preparatory to the commission of the offence; and a person will be guilty of attempting to commit an offence even though the facts are such that the commission of the offence is impossible. There are three essentials of an attempt:- (a) Guilty intention to commit an offence; (b)some act done towards the commission of the offence; (c)the act must fall short of the completed offence. Attempt Under The Indian Penal Code, The Indian Penal Code has dealt with attempt in the following four different ways- (a) Completed offences and attempts have been dealt with in the same section and same punishment is prescribed for both. Such provisions are contained in Sections 121, 124, 124-A, 125, 130, 131, 152, 153-A, 161, 162, 163, 165, 196, 198, 200, 213, 240, 241, 251, 385, 387, 389, 391, 394, 395, 397, 459 and 460. (b)secondly, attempts to commit offences and commission of specific offences have been dealt with separately and separate punishments have been provided for attempt to commit such offences from those of the offences committed. Examples are- murder is punished under section 302 and attempt to murder to murder under section 307; culpable homicide is punished under section 304 and attempt to commit culpable homicide under section 308; Robbery is punished under section 392 and attempt to commit robbery under section 393. (c)thirdly, attempt to commit suicide is punished under section 309; (d)fourthly, all other cases [where no specific provisions regarding attempt are made] are covered under section 511 which provides that the accused shall be punished with one-half of the longest term of imprisonment provided for the offence or with prescribed fine or with both. 4. Accomplishment or Completion- The last stage in the commission of an offence is its

10 accomplishment or completion. If the accused succeeds in his attempt to commit the crime, he will be guilty of the complete offence and if his attempt is unsuccessful he will be guilty of an attempt only. For example, A fires at B with the intention to kill him, if B dies, A will be guilty for committing the offence of murder and if B is only injured, it will be a case of attempt to murder. ASSIGNMENT: 1. What are the different stages of crime? Discuss. 2. Discuss the various definitions of crime and explain the various elements of crime.

11 CHAPTER 2 COMMON INTENTION AND COMMON OBJECT COMMON INTENTION The Principle of Common Intention: Section 34 of IPC is related with doctrine of common intention. Section 34 of Indian Penal Code - 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." ESSENTIALS From the analysis of Sec. 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 people 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 Sec. 34. Common Intention must not be confused with 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 Section It is not necessary that the roles should be same. Acts of the accused persons may differ.

12 4. Word 'Furtherance' enlarges the scope of Sec. 34. The accused persons would be liable for a criminal act done in furtherance of common intention though it is different from what was commonly intended. 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 40 (PC) : That act refers to the 'Criminal act' used in Section 34 which means the unity of criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone in an offence. Even if the appealant did nothing as he stood outside the door it is to be remembered that in crimes as in other things "they also serve who only stand and wait." 7. In the case of Mehboob Shah vs. Emperor AIR 1945 PC 118: Common intention implies a pre arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group.. Difference between Common intention and Same or Similar intention: 1. In Mehboob Shah 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. Sec. 34 requires common intention. Concerted Action is the essence of the term. In case of same or similar intention there is no concerted action. Framing of Charge U/s 34 is not necessary Sec. 34 does not create any offence. It is a deemed provision and not a penal provision. It only provides for a rule of evidence. Since Sec. 34 does not create any substantive offence no charge is required to be framed U/s 34. COMMON OBJECT The Principle of Common Object (Section 149 IPC): Every member of an unlawful assembly is guilty of offence committed in prosecution of common Sec. 149 provides: "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members to that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. ESSENTIALS The following are the essentials of common object:

13 a. There must be an unlawful assembly. b. Any of the members of the unlawful assembly must have committed an offence. c. Offence must have been committed in prosecution of common object. (It includes the offence the likelihood of the commission of which was known to the members) If the above requirements are satisfied all the members of the unlawful assembly would be liable for the offence provided they were members at the time of commission of offence. Unlawful Assembly (Section 141): According to Section 149 IPC an assembly of five or more persons is designated as 'Unlawful Assembly', if the common object of the persons composing that assembly is: First - To overawe by criminal force, or show of criminal force, the Union or any State Government or Parliament or the Legislature of any state, or any public servant in the exercise of the lawful power of such public servant; or Second - To resist the execution of any law, or of any legal process; or Third - To commit any mischief or criminal trespass, or other offence; or Fourth - By means of criminal force, or by show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth - By means of criminal force, or show of criminal force to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation - An assembly, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Distinction between Common Intention and Common Object (Sec. 34 & sec, 149) COMMON INTENTION COMMON OBJECT 1. Sec. 34 does not create any substantive 1. Sec. 149 creates a substantive offence. It only provides for a rule of evidence Offence. offence. 2. Common intention is necessary to attract Sec. 34.Common intention means concerted action or common Prior meeting of mind of knowledge and sharing of each other's intention. 2. Common object must be proved to attract Sec.149.

14 3. Sec. 34 does not require any unlawful assembly. 3. Unlawful assembly is a condition President for Application of Sec Sec.34 requires participation or performance of some roles by accused of common intention. 4. Sec. 149 does not require participation by all accused persons. This Sec. imposes liability on persons who are members of Unlawful assembly. 5. Framing of charge is not necessary as it contemplates no offence 5. Framing of charge is necessary as it contemplates a substantive offence. Similarity: Both are examples of constructive criminal liability. ASSIGNMENT: 1. What do you understand by the phrase an act done in furtherance of common intention? What are the essentials of sec.34 I.P.C. which lays down joint responsibility in doing criminal a criminal act? 2. Discuss the difference between the common intention and common object?

15 CHAPTER: 3 GENERAL EXPLANATIONS (Sec.6-52A) Judge (Section 19): Judge denotes every person who is officially designated as a Judge. It also includes a person or a body of persons empowered to give definitive judgments in any legal proceeding. The test is that such a person or body should have the right to give judgment. Eg. (i) A Magistrate who commits a person to the sessions is not a 'judge' in that circumstance. (ii) A Magistrate conducting a summons-case is a judge. The definition is only inclusive and not exhaustive. Legislature may empower a sarpanch or panch under the Panchayat to act as a judge. An arbitrator is not a judge, as he cannot give a definitive judgment. Wrongful gain and Wrongful loss ( Section 23): Wrongful gain is the gain of property made by unlawful means. The test is that such a person is 'not legally entitled to such property. Wrongful loss is the loss of property incurred by unlawful means. The test is that such a person, so losing is legally entitled to such property. E.g.: Husband H had taken loan from C. When H died, C forcibly and illegally seized the bullocks of the widow of H. This is in satisfaction of the debt. C makes a wrongful gain but W has wrongful loss. Wrongful gain is only an ingredient of an offence and therefore it is part of an offence. E.g. Theft, Sec But In Mischief, [Sec. 425] there is wrongful loss, no wrongful gain. Dishonestly, Fraudulently (Section. 24 & 25). If a person does an act with the intention of causing wrongful gain to one person or wrongful loss to another he is doing that act dishonestly. If a person does a fraudulent act with intention to defraud, he is said to have done the act fraudulently. The intention of the person is important. Ex.: In theft Sec. 378, there is no fraud but there is the intention to cause wrongful loss or wrongful gain.

16 Under Sec. 411, receiving stolen property, the person is punishable if he dishonestly received property. In Cheating Sec. 415 there may be a fraudulent or dishonest intention. In forgery, Sec. 463 there is the fraudulent intention or intention to commit fraud. Defraud has two elements (i) Deception and (ii) Injury to the person deceived. The difference between fraudulently and dishonestly is that in 'Dishonestly' there will be no intention to defraud. But in 'fraudulently' fraud is an essential ingredient. Dr. Vimala V. Delhi Administration, the Accused had bought a car in her minor daughter's name & had made claims by signing minor's name. Held, deceit but no injury. Hence, not liable under Sec. 467 (Forgery.) Valuable security (Section30): It is a document or one which purports to be a document. It creates transfers, restricts, extends or extinguishes a legal right of a person. An acknowledgement of legal liability under a document is a valuable security. E.g.: Pronote, Bill of exchange, Cheque, sale deed, mortgage or lease deed. A endorses a cheque in favour of B. The endorsement is a valuable security. Further "Under purports to be a document", unstamped or blank documents or incomplete documents to be filled up later are valuable security A deed of divorce is a valuable security. Account books are not valuable security. Voluntarily (Section 39): A person is said to do an act voluntarily when he intends to cause an effect or at the time of employing those means he. Knows or has reason to believe that he is likely to cause it. This is defined, taking the relation of the causation and effects. Therefore it differs from the ordinary meaning. The result is that if a person does an act voluntarily, he is deemed to have known the consequences as well. E.g. A sets fire to the house of B, to commit robbery but causes the death B. A had not intended to cause the death of B, but if, he knows that by setting fire to the house, it was likely that B would be killed, he has "caused death voluntarily". Act, Omission Section 33: The word act denotes aperies of acts or a single act. The word omission includes a series of omissions, including a single omission. These words are not defined in the I.P.C. but are used in the definition of offences.

17 (i) Culpable homicide is murder if the act by which the death caused is done with the intention of causing death (Sec. 300 murder). A person is guilty of an illegal omission when that causes common injury (Public nuisance Sec. 268). Good faith (Section 52): Nothing is said to be done or believed, in good faith, which is done or believed, without due care and attention. The belief must be reasonable and well founded. The expression "good faith" is used in many sections of the I.P.C. Sec. 76, 79, 77, 78, 300, 339, etc. A quack conducted an operation for piles with an ordinary knife but the patient died. The plea of good faith was rejected by the court (Kaviraj's case). When a villager, returning home late in the night found near the entrance of his village, a devil, he hit hard on its head. In reality he had killed a child. The place was known for devils according to the villagers. The plea of good faith was rejected by the court. The person must act honestly. This means he must act with fairness and uprightness. This is judged on the facts and circumstances of each case. There is no good faith if a person acts negligently or with lack of fairness. A Sub-inspector saw a horse tied by B, and arrested B. He had jumped to the conclusion that the horse was the one his father had lost a few days ago. In reality, it was not the same horse. Held, that the officer had acted without "good faith" in arresting B. Harbour (Section 52 A) Harbour according to I.P.C includes supplying a person with shelter, food, drink, money, clothes, ammunition and means of conveyance or any means to evade apprehension. There is one exception to this. It is no harbour for the wife or the husband to give shelter, food, etc., to the other spouse. Harbouring deserter (Sec. 136) is an offense. A deserter from the Army, Navy, or Air Force may obtain the help of another to conceal himself. A person who knowingly harbours him is guilty of this offence. In harbouring offender (Sec. 212) a person who harbours, knowingly an offender is guilty of the offence. Counterfeit (Section 28) A person is said to counterfeit, when he causes one thing to resemble another thing with an intention to cause deception or with the knowledge that deception is thereby practised. The imitation need not be exactly the same. There is a presumption that when a person causes one thing to resemble another he has the intention to practice deception but this is a rebuttable presumption. Counterfeiting coin is an offence and is punishable under Sn.231

18 Common intention (Section 34) Briefly explained in chapter 2. Document (Section 29) It denotes any matter expressed or described on any substance, by means of letters, figures or marks intended to be used as "evidence". Example: A cheque, a power of attorney, all agreements, a map or a planto be used as evidence, are documents. A currency note is a "document". A printed wedding invitation is a document. In using any letters, figures or marks, the same meaning that is in usage or in mercantile transactions is to be given. A endorses a B/E payable to P. The bill as per mercantile usage means payable to P or to his order. Offence (Section 40) "Offence", according to the I.P.C. denotes a thing punishable under this code, or under any special or local law. The "thing" is comprehensive and includes the doer or the dead, or the subject or the object. It includes the acts or omissions made liable under the code. Though mens rea is part of the offence, the I.P.C. has specified the nature of the intention in the definitions of the various offences: Using "voluntarily" "dishonestly'' fraudulently etc. Hence, the English rule Actus non facit reum..nisi mens sitrea is not applicable in India. The nature of the intention of the act to be established is defined in the various sections of the I.P.C. ASSIGNMENT: 1. Define the term dishonest. 2. What do you mean by Good faith? 3. Define India? 4. Difference between Fraudulent and dishonestly? 5. Define injury? 6. Difference between giving false evidence and fabricating false evidence? 7. What do you mean by an Act, Omission?

19 CHAPTER: 4 GENERAL EXCEPTION Sections 76 to 106 of the IPC provide general exceptions to offences. These include mistake of fact, judicial acts, accident, necessity, infancy, insanity, intoxication, consent, duress, trivial acts and the right of private defense. Principle enunciated in chapter IV of Indian Penal Code are in fact rules of evidence carrying either conclusive or rebuttable presumption. Huda calls these principles "conditions of non imputability" Kenny calls them "conditions of exemption from criminal liability". General Exceptions can be divided into two parts: 1. Excusable defences (76-95) 2. Justifiable defences ( ) Mistake of Fact (Sections 76 and 79) Section 76 exculpates a person from criminal liability who is bound by law to do an act or who does an act in good faith under a mistake of fact that he was bound by law to do it. Mistake is considered excusatory in nature since the person did not intend nor foresee the consequences of his act. The mistake should be of such a nature that had the circumstances that the person believed to exist indeed prevailed, he would have been absolved from liability. The mistake must be a mistake of fact and not of law. The facts should be material to constitute an offence. Two cases that illustrate the application of Section 76 are State of West Bengal v Shiv Mangal Singh (AIR 1981 S.C).In this case, an Assistant Commissioner of Police was injured by a mob. The Deputy Commissioner of Police ordered the constables to open fire. They shot at some people from a point blank range. The court held that the constables were protected under Section 76 and it subsequently acquitted them. In the next case, the accused shot at a thief while chasing him. He pleaded that he believed that he was bound by law to do it. The court held the accused liable since he exceeded his power of arrest provided by Section 46 of the Code of Criminal Procedure. The defense under Section 76 did not apply to him.

20 In R.V. Tolson, Mrs. Tolson was charged with Bigamy as she had married her a icond husband. Her defense was that Mr. Tolson, her first husband could not be traced for over seven years despite all reasonable means to search adopted. There was not mens rea. Hence, it was held that she was not guilty. 'Mistake of the fact is an excuse' the court declared. In R.V. Prince, the accused was charged with kidnapping, Annie Phillips, a girl under 16 years of age. The plea of the accused that the girl looked to be above 16 was rejected by the court and he was held guilty. His reasonable belief as to her age was no legal defence. Act done by a Person Justified or by Mistake of Fact believing himself Justified, by Law :( Section 79) According to Section 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." Section 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' - Keso Sahu v. Saligram: 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 Section 341 as their case was covered by section 791PC. Raj Kapoor V/s Laxman: The producer of the film Sat yam Shivam Sundaram 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. Section 79 of the IPC excuses an act that the person felt was justified by law. It can be best elucidated in Justice Krishna Iyer s judgment in Raj Kapoor v Laxman (AIR1980 S.C)

21 The position that emerges is this. Jurisprudentially viewed, an act may be an offence, definitionally speaking but; a forbidden act may not spell inevitable [guilt,] the law itself declares that in certain special circumstances it is not to be regarded as an offence. Section 79 makes an offence a non-offence. When? Only when the offending act is actually justified by law or is bona fide believed by mistake of fact to be so justified. Thus a person will be protected under Section 79 only if there was a legal justification available for his actions and he applied the law to the best of his judgment in good faith. Judicial Acts (Section 77 and 78) These provisions protect judges and judicial officers when acting judicially in exercise of powers given to them by law or which they believe in good faith to be vested in them by the law. The acts are justified by law. The rationale behind these provisions is that judges and judicial officers should not be under any external influence so that they can act in a fearless and just manner. Judicial acts extend to orders passed in the chambers of a judge. If a judicial officer is involved in a criminal case, his arrest has to be in accordance with the directions issued by the Supreme Court in Delhi Judicial Service Association, Tis Hazari Court v State of Gujarat Accident in doing a lawful act (Section 80) 1. 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 A, 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

22 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 is 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. Necessity (Section 81) Sec. 81 provides:- "Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if : For the purpose of preventing or avoiding other harm to person or property." The harm intended to be avoided is to be judged in reference to following:- a) The nature of the harm intended to be avoided. b) The imminence of the harm sought to be avoided. To avail the benefit of Sec. 81 the accused must plead and prove the following: 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. The defense of necessity is considered to be a justifiable defense. The act is done without any criminal intention but not without knowledge. It is acceptable to do an act in good faith that prevents a greater harm from taking place. For example, if the police puts a drunk person under restraint without warrant for carrying a revolver, even though public nuisance is a non-cognizable offence, they will be protected under Section 80 for preventing

23 greater harm to other people and property. An important issue while applying this defense is whether necessity can be used to justify murder. In the old case of R v Dudley Stephens (1884 QB), a ship was cast away in a storm. The people on board had nothing to eat for many days. On the twentieth day, the accused decided to kill the cabin boy and feed on his body. After being rescued, they were charged for murder. They pleaded necessity but the court held that self-preservation was not an absolute right and convicted them of murder. Infancy (Sections 82 and 83) Infancy is classified as an excusable defense since it is believed that a child lacks the understanding of the nature and consequences of his actions and therefore cannot form criminal intention. Section 82: 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. (Sec. 82) 2. A conclusive presumption of innocence is raised in favour of a child under seven. The fact the delinquent child is under seven can give a complete answer to every question and argument of the prosecution. Bakhul Shah, 1866 : The accused purchased for one anna, from a child aged six years, two pieces of cloth valued at fifteen annas, which the child had taken from the house of a third person. It was held that, assuming that a charge of an offence of dishonest reception of property (section 411) could not be sustained owing to the incapacity of the child to commit an offence, the accused was guilty of criminal misappropriation, if he knew that the property belonged to the child's guardians and' dishonestly appropriated it to his own use. Section 83: Relates to an act done by a child above seven years of age and under twelve. Section - 83 is based on Latin Maxim 'Malitia supplet aetaten. (Malice supplies the defect of years). Sec. 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. Ulla Mahapatra v/s State: 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