M.A,B.Ed,L.L.B TheLegal.co.in IPC Question 1 :-Discuss the right of private defence against offences relating the human body. Is there any difference between Indian Law and English Law.? OR Section 97 of IPC defines that the right of private defence of the body and of property? Every person has a right, subject to the restrictions contained in section 99, to defend : 1. First : His own body, and the body of any other person, against any offence affecting the human body. 2. Secondly: The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is ana attempt to commit theft, robbery, mischief or criminal trespass. RIGHT OF PRIVATE DEFENCE OF BODY Section 97 lays down that every person has a right subject to restrictions contained in section 99, to defend his own body, and the body of any other person, against any offence affecting the human body. Section 102 of IPC provides that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed, and it continues as long as such apprehension of danger to the body continues. It is clear from the wording of the section that the right commences and continues as long as danger to body lasts. The extent to which the exercise of the right will be justified will depend not on the actual danger but on whether there was reasonable apprehension of such danger. There must be an attempt or threat, and consequent thereon an apprehension of danger, but it should not be a mere ide threat. There must be reasonable ground for the apprehension. The right of private defence of the body extends to the voluntary causing of death or any other harm to the assailant if the offence occasioning the exercise of the right be of any of the following descriptions, viz : 1. An assault causing reasonable apprehension of death. 2. Even injury to innocent persons in the right of private defence against an assault is excusable. 3. Assault with the intention of committing rape, gratifying unnatural lust, kidnapping or abducting or wrongfully confining a person causing reasonable apprehension that he will not be able to have recourse to the public authorities for his release. For the purpose of exercising he right of private defence physical or mental incapacity of he person against whom the right is exercised is no bar. There is however no right of private defence : 1. Against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant or by the direction of a MA,B.Ed,LLB. Page 1
public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law. 2. In cases in which there is time to have recourse to the protection of the public authorities. 3. Nor does the right of private defence extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence(sec.99) The measure of defence must bear proportion to the quantum of force used by the attacker and which it is necessary to repel. Thus where the accused who was attacked by another with a kirpan succeeded in disarming his opponent by taking away his weapon and showered blows after blows including the serious once on the chest. It was held that he must be held to have exceeded the right of self defence and was guilty under section 304 Part I of IPC. The right of private defence provided by section 97 IPC is a right of protection and not of vengeance or aggression. An act done in exercise of a right of private defence does not give rise to any right of private defence in return. Case : Mukhtiar Singh v. State of Punjab 1973. Question No. 2 : Define criminal conspiracy and its ingredients given in Section 120A of IPC. How it punishable.? INTRODUCTION: The original Indian Penal Code did not have an offence by the name of criminal conspiracy. However the need to have this offence was felt later on and this chapter V-A relating to criminal conspiracy with only two sections in it i.e. section: 120-A which provides definition of criminal conspiracy and Sec. 120-B providing its punishment was added in IPC by the Criminal Law Amendment act 1913. Definition of Criminal conspiracy under Sec.120-A When two or more persons agree to do or cause to be done I) An illegal Act II) An act which is not illegal but when it is done by illegal means. Such an agreement is designated/made a criminal conspiracy. INGREDIENTS:- 1.There shall be minimum two or more person. 2. Agree for illegal act. The expression illegal has been defined in Sec.43 of the code. According to this section, the word illegal is applicable to everything : i) Which is an offence ii) Which is prohibited by law iii) Which is furnishes ground for a civil action iv) Act is done by illegal means. Further provided that no agreement except an agreement to commit an offence, shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation : It is immaterial whether he illegal act is the ultimate object of such agreement or is merely incidental to that object. In other words, the conspirator is guilty of criminal conspiracy; whether the illegal act is the ultimate object of the agreement or it is merely incidental to the object of the agreement. The law does not treat these cases differently. Case : Mohd. Usman v/s State 1981 : In this case the accused persons were selling explosive substances without valid license for a very long time. The SC held that they were guilty of criminal conspiracy, as they had been doing this for a very long time, which could not have been possible without an agreement between then, and this agreement was proved by necessary implication. ILLUSTRATION: A the wife of B had illicit connection with C, who wanted to murder B. Instead of telling B that C waned to murder him, told C that B would go to lonely place on a particular day & time. C murdered B at that particular place, date and time. Thus A and C both are guilty of the offence of criminal conspiracy. C is also guilty of adultery and murder. MA,B.Ed,LLB. Page 2
CONVICTION OF A SINGLE PERSON FOR CRIMINAL CONSPIRACY:- An important question arises whether a single individual can be held guilty of this offence. For criminal conspiracy, there must be at-least two persons. Thus the section only says that agreement must be between two or more persons and not that the connection must be of at-least two persons. ILLUSTRATION :- Where the prosecution case is that, four : persons had entered into an agreement to commit murder of Z and out of these four one is D without a shadow of doubt. The other three might be A,B and C or might not be A,B and C because the evidence against them is doubtly. In such case, since two things are certain the member of conspirators was four and one of these four was definitely D thus D alone is guilty of criminal conspiracy. Case : B.H. Narasimha Rao V/s Govt. Of A.P 1995 The accused was charged for committing an offence in conspiracy with seven other who were al acquitted. It was held that the accused could not be convicted under section 120-B on the mere ground that he was head of a section of he branch where the fraud was alleged to have been committed. Section 120-B : Punishment of criminal conspiracy: Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years of upwards shall, where were no express provision is made in this code for punishment of such conspiracy, be punished in he same manner as if he had abetted of such offence. # Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable with imprisonment for a term not exceeding six month or with fine or with both. Question No. 3 : Define Murder and distinguish it from culpable homicide no amounting to murder OR Every murder is a culpable homicide, but every culpable homicide is not murder. Discuss. Ans :INTRODUCTION; Homicide means the killing of a man by man. The homicide may be lawful or unlawful. Culpable homicide means death through human agency punishable by law. All murders are culpable homicide but all culpable homicide is not murder. There are two classes of culpable homicide : 1. Culpable Homicide Amounting to Murder: It is known as simple murder. 2. Culpable homicide not amounting to Murder: There is necessarily a criminal or knowledge in both. The difference does not lie in quality, it lies in the quantity or degree of criminality closed by the act. In murder there is greater intention or knowledge than in culpable homicide not amounting to murder. The culpable homicide is defined in sec. 299 of the IPC which is as under : CULPABLE HOMICIDE UNDER SEC.299 OF IPC Whoever causes death by doing any act :- (i) With the intention of causing death (ii) With the intention of causing such bodily injury as is likely to cause death. (iii) With the knowledge that he is likely, by such act, to cause death commits the offence of culpable homicide. ILLUSTRATION A knows that Z is behind a bush, B does not know it. A intending to cause or knowing that is likely to cause Z s death induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence, but A has committed the offence of culpable homicide. Here is the three explanations of this section which are as under :- MA,B.Ed,LLB. Page 3
Explanation No. 1 :- A person who causes bodily injury to another who is labouring under disorder decease, or bodily infirmity and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation No. 2 : Where death is caused by bodily injury the person who causes such bodily injury shall be deemed to have caused death, although by resorting to proper remedy and skilful treatment, the death might have been prevented. Explanation No. 3 : The causing of death of a child in the mother s womb is not homicide, but it may amount to culpable homicide to cause the death of a living child if any part of that child has been brought forth, though the child may not have breathed or been completely born. Case: Kedar Parsad V/s State 1992: It was held by the court that the first accused was liable U/s 304 and the other U/s 324 for causing hurt by dangerous weapon & the third U/s 323 for causing simple hurt only. Case:- Ghanssham V/s State of Maharashtra 1996 : The accused husband stabbed his wife on chest resulting in her death on her refusal to have sexual intercourse with him. It was held that the act was done in sheer frustration and anger and so his liability was based on sec. 299(2) of IPC. Case: Sarabjeet Singh V/s St ate 1994. The accused did not have good relation with complainant on account of sale transaction of piece of land. He went to the house and assaulted the complainant and his wife. He also picked up the infant child of the complainant and threw him down on the ground with force as a result of which the child died some time later. The accused was held guilty under sec. 304 Part-II. When culpable homicide amounts to murder : According to sec.300 of IPC except the exceptions culpable homicide is murder, it the act by which death is caused: 1. It is done with the intention of causing death or 2. It is done with the intention of causing such bodily injury as the offender knows that it is to be likely to cause the death of the person to whom the harm is caused. 3. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient ordinary cause of nature to cause death 4. If the person committed the act knows that it is so imminently dangerous that it must in all probability, cause death or such bodily injury as is like to cause death; and commits such act without any excuse for incurring death or such injury as said above. ILLUSTRATION: A. A shoots Z with intention of killing him, Z dies in consequence, A commits murder. B. A knowing that Z is labouring under such disease that a blow is likely to cause his death, strike him with the intention of causing bodily injury, Z dies in consequences of blow. A is guilty of murder. C. A intention gives Z a sword cut sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequences. Here A is guilty of murder although he may not have intended to cause Z s death. D. A without any excuse fires a loaded cannon in to a crowd of persons and kills one of them. A is guilty of murder although he may not have had a pre-meditated design to kill any particular individual. Cases:- Sridharan Sathesan V/s State of Keral 1995:- There was a dispute between the accused and the deceased regarding the payment of money. The accused who was a driver caused serious injuries by his mini bus and hit the deceased with great speed in he middle portion of the body. Tyre marks were also found on the thighs of the deceased. It was held that it was an intentional killing and Sec.300 (1) was applicable. Case : State V/s Sadanand 1987 :- Accused caused the first injury on the stomach of the deceased by Rampuri Knife with a blade of more than six inches long. While the deceased started running away from the place MA,B.Ed,LLB. Page 4
to save himself, the accused gave another blow by the same knife on his back. The injuries caused his death. The SC held that the accused was guilty of murder and Sec.300 (3) was applicable. Case: - Lakha Singh V/s state of Rajasthan: The accused was held guilty on the basis of cause (3) of section 300 of IPC. Case: Dulal Hazara V/s State 1987: The accused tied the mouth and throat and hands of the deceased causing her death by asphyxiation due to throttling, he was held guilty of murder. He knew that his act was so imminently dangerous as to cause death probability. Thus except the exceptions cases culpable homicide is murder, if the circumstances described above any of the four clauses are present. In other words, only these four classes of culpable homicide are murder and any other kind of culpable homicide continues to be culpable homicides and does not become murder. EXCEPTIONS OR WHEN CULABLE HOMICIDE IS NOT MURDER Five exceptions have been provided u/s 300 wherein causing death does not amount to murder. If any of these exceptions is held to be applicable in a case, the conviction of the accused in that case would be for culpable homicide not amounting to murder. In this sense, therefore, these five exceptions are partial defences to murder thus following are the exceptions:- 1. Grave and sudden provocation: Culpable homicide is not murder if the offended, who deprived of the self control by grave and sudden provocation, causes the death of a person, who gave the provocation or causes the death of any other person by mistake or accident. Thus for the first exception following things are necessary :- a) There must be provocation. b) Provocation must be grave and sudden. c) By reason of such provocation the offender have been deprived of the power of self control. d) The death must be of that person who gave the provocation or any other person by mistake or accident. ILLUSTRATION: Y gives grave and sudden provocation to A. A on this sudden provocation fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z who is near him but out of sight. A kills Z here, A has not committed murder but merely culpable homicide. Ajit Singh v/s State l991 : In this case the accused found his wife and a neighbours in a compromising position and shot both of them dead. It was held that he was acting under provocation and is liable for sudden provocation. 2. RIGHT OF PRIVATE DEFENCE;- For the application of this exception the following conditions must be fulfilled :- A. Act must be done in good health. B. Act must be done in exercise of the right of private defence of person or property. C. The person doing the act must have exceeded in his right given to him by law and thereby caused death. D. The act must be done without premeditation and without any intention of causing more harm then was necessary for the purpose of such defence. ILLUSTRATION:- Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. A believing in good faith that he can by no other mean, prevent himself from being horsewhipped shoots Z and kills. A has not committed murder but culpable homicide. Bahadur Singh v/s State 1993 :The complainant party assaulted the accused person who were also armed with sharp weapons like Gandasa by the use of which death caused. It was held they had excluded their right of private defence in good faith and so exception N s was available to them. 3. OFFENCE BY PUBLIC SERVANT OR PERSON AIDING PUBLIC SERVANT. Culpable homicide is not murder if the following conditions are there :- MA,B.Ed,LLB. Page 5
a. Offence must be committed by public servant or by some other person acting in the aid of a public servant in advancement of public justice, b. Public servant or such person must have exceeded the power given to him by law. c. Death must be caused by doing an act which he, in good faith, believes to be lawful & necessary for discharge of his duty. d. The act must have been done without any malafide intention towards the person whose death is caused. Case : Dakhi Singh V/s State 1955.: It was held by the Court that he was entitled to have the benefit of this exception and so he was liable only for culpable homicide not amounting to murder. 4. Death caused by sudden fight. For the application of this exception The following conditions must be ful-filled :- a. Death must be caused by sudden fight. b. Fight must be without any pre-meditation. c. It must be occur in the heat of passion upon a sudden quarrel. d. It must be committed without the offender s having taken undue advantage or acted in a cruel or unusual manner. Explanation :- It is immaterial in such cases where party offers the provocation or commits the first assault. Case :- State v/s Jodha Singh 1989: A quarrel between accused and the deceased parties changed in to a sudden fight in which weapon were used by both parties resulting in injuries on both sides and death of the deceased. This exception was held to be applicable. 5. Death caused with the consent: Culpable homicide is not murder when the person whose death is caused being above the age of eighteen years suffers death or takes the risk of death with his own consent. Illustration :- A by instigation, voluntarily caused Z, ( a person under l8 years of age) to commit suicide. Here on account of Z s death (he was incapable of giving consent to his own death). A has, therefore abetted murder. Case :- Dashrath Paswan V/s State 1958 : The accused could not passed the Xth Class examination for three years in a row and become frustrated and decided to commit suicide and informed his wife who asked him to kill her first which he did, the exception was held to apply. DISTINCION BETWEEN SECTION 299 AND 300 OF IPC One of the most complex matters under the code is to distinguish between culpable homicide and murder. The first real attempt in this regard was made in the case :- Case : Reg. V/s. Govinda 1876 (Bom): In this case the accused kicked his wife who was 15 years old and gave her a few blow on the body with the result she fell down on the ground. Then he put one knee on her chest and struck her a few more blow resulting in her death. The lower court convicted him of murder. There were different opinions amongst the two judges of the High Court and consequently the matter was referred to a third Judge, Justice Melvil, who held the accused guilty under clause (2) of sec.299 for culpable homicide and sentenced him u/s 304 part I on the grounds that the death was caused with the intention on the part of the accused to cause such bodily injury as was likely to cause death. Justice Melvil discussed the two sections clause by clause and attempted to bring out the difference between the two offence clearly in following manner :-- Q. No. 4: What do mean by kidnapping? Distinguish between Kidnapping & Abduction. Answer :-INTRODUCTION: Kidnapping and abduction are particular types of offences under the law of crime. Under these offences, a person is taken away secretly or forcible without his consent or without the consent of authorised guardian. Under kidnapping a person is MA,B.Ed,LLB. Page 6
kidnapped from lawful custody. Under section 359 of IPC, there are two types of kidnapping :- 1. Kidnapping from India. 2. Kidnapping from lawful guardianship. Section 360 : defines that kidnapping from India and section 361 defines that kidnapping from lawful guardian ship. The offence of abduction is defined under section 362 of IPC. 1. KIDNAPPING FROM INDIA: Section 360 says that whoever conveys any person beyond the limit of India without the consent of that person or of any person legally authorised to consent on behalf of that person, is said to kidnap that person from India. Age limit is immaterial. This has two essentials : (i) Convey any person beyond the limits of India. (ii) Such conveying must be without the consent of that person or of the person legally authorised to give consent on behalf of that person. 2. KIDNAPPING FROM LAWFUL GUARDIANSHIP : SEC.361 Sec. 361 says that whoever takes or entices any minor under sixteen years of age if a male or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardianship of such minor or person of unsound mind, without the consent of such guardian is said to kidnap such minor or person from lawful guardianship. The word lawful guardian here mans any person lawfully interested with care or custody of such minor or other person. 3. EXCEPTIONS :- There is one exception of this section, this section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith, believes himself to be entitled the lawful custody of such child unless such act is committed for an immoral or unlawful purpose. Take or entice away :- Take away or entice away means to induce a person for going to another place. The object of this Sec. Is to protect minor children from being reduced ( to corrupt) for improper purpose. Guadian consent :- The kidnapping must be without the consent of the guardian. The consent may be expressed or implied. Thus, to attract this sec. there must be taking or enticing away any minor or unsound mind person out of lawful guardianship. ABDUCTION Section 362 says that whoever by force compels or by any deceitful induces any person to go from any place, is said to abduct that person. This section may read with section 364, 365 and 360. This section contains two essentials for the offence of abduction :- 1. Forcible compulsion or inducement by deceitful means. 2. The object of such compulsion or inducement must be going of a person from any place. Thus abduction is an offence under sec.362. If by force a person compels or even by fraudulent means induce any other person to go from any place taken is called abduction. PUNISHMENT FOR KIDNAPPING UNDER SEC. 363 : Whoever kidnaps any person from India or from Lawful guardianship shall be punished with imprisonment or either description for a term which may extend to seven years and shall be liable to fine. DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION: KIDNAPPING ABDUCTION 1. It is committed only in respect of 1.It is committed in respect of any A minor under 16 years of age if person of any age. A male and 18 years of age if a Female, or a person of unsound mind. 2. In kidnapping consent of the 2.Consent of the person removed, if MA,B.Ed,LLB. Page 7
Person enticed is immaterial. Freely and voluntarily given, Condones the offence. 3. In kidnapping the intention of 3.In abduction intention is a very The offender is irrelevant. Important factor. 4. It is not a continuing offence. The 4. It is a continuing offence. A Offence is completed as soon as person is being abducted both The minor is removed from the when he is first taken from one Custody of his or her guardian. Place to and also when he is Removed from one place to Another. UNIT IV Question No. 11:- What is defamation? What defences are available to a person who is charged with the offence of defamation.? OR Can a wrongful act of a defamation constitute an offence? What are the defences available to the alleged wrong-doer? Describe. Answer : INTRODUCTION:- Defamation is a crime against the reputation of a person. Defamation is also a tort. It is one of the most important rights of a person or right of his reputation. If any person by way of libel i.e. written words or by salener i.e. spoken words lowers the reputation of a person then it is called defamation. The reputation must be lowered among the reasonable person including relation of a person. DEFINITION OF DEFAMATION :- Section 499 of IPC says that whoever by words, spoken or written or by sign or by visible representation, makes or publishes any imputation concurring any person invading to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said, except in the case of hereinafter accepted, to defamed that person. This section 499 of IPC contains the following things :- 1. Whoever makes publishes any imputation concurring any person. 2. Such imputation must be made by words, signs or by visible representation. 3. Such imputation must be made or published with the intention of harming or with the knowledge or having reason to believe that it will harm the reputation of such person. ESSENTIAL OF THIS SECTION The following are the essentials of this section regarding defamation:- 1. PERSON :- Person means the person who publishes are the person who makes an imputation. Person includes like editor or a journal, the printer or the writer of the articles in the paper. 2. PUBLICATION :- The expression makes or publishes has to be understood. The meaning of this expression is publication. Publication of the defamatory statement is essential. If a person merely writes out a defamatory matter but does not publish, then the same will not be defamation. Publication means the defamatory statement, must come into the notice of third person. Because the reputation of a person remains in the eye of third person. Publication may be done by :- 1. An act which conveys the defamatory statement to a third person. 2. By drawing the attention of others towards the defamatory matters already existed. Thus, this communication of defamatory matter to the person defamed and to the third person is necessary. A case Krishana Nand v/s Emperor : The Allahabad High Court held that the publication to a third person was deemed to be necessary. However, in case of best land, the presumption being that it was needed by other. Its sending or pasting ward amount to publication. MA,B.Ed,LLB. Page 8
3. Publication of defamatory statement must be intending to harm the reputation of another person:- The information to cause harm is the most essential part of an offence under section 499 of IPC. There must be an intention of harming or knowing or having reasons to believe that the imputation will harm the reputation. It is sufficient that there was reason to believe that the imputation made would harm the reputation. There are some explanations attached to this section:- 1. Explanation No. 1:- If any amount of defamation is against the deceased person and the imputation would harm the reputation of that person of living and is intended to be harmful to the feelings of the family or relatives. 2. Explanation No.2 : This may amount to defamation to take an imputation concerning to a company or association selection of such person. 3. Explanation No.3: An imputation in the form of an alternative or expressed ironically may amount to defamation. 4. Explanation No.4 :- No estimate is said to harm a person s reputation unless that imputation directly or indirectly in the estimation of others, lowers the normal instinctual character of that person in respect of caste or if his calling in respect of his caste lowers, the creditor of that person in a locality or in a state is generally considered as disgraceful. Such as A draws a picture of Z running with B s watch intending to cause it to be believed that Z has stolen B s watch. This is defamation unless it falls within one of exception. EXCEPTIONS : Following are the exceptions to this offence :- 1. True statement : It is not defamation if any thing which is true concerning only person if it is for the public interest or welfare good. The imputation should be in good faith and for public. 2. Public conduct of public servant:- It is not defamation to express, in good faith any opinion whatever respecting the conduct of a public servant in discharge of his public sanctions or respecting his character so far as his character appears in that conduct and not further. 3. Public quotation: It is not a defamation to express in good faith any opinion whether respecting the conduct of any person so far his character appears in that conduct and no further. 4. Publication of court proceedings. It is not defamation to publish a substantial true report of the proceedings of court of justice. 5. Conduct of witness in the court:- It is not a defamation to express in good faith any opinion whatever respecting the writ of any case, civil or criminal which has been decided by a court of justice or respecting the conduct of any person. Along with witness or any agent in any such case or respecting the character of such person as far as his character appears in the conduct and no further. 6. Merit of public performance :- It is not defamation to express in good faith any opinion respecting the merit of any performance. Which is submitted to the judgment of public or respecting the authority that appear in such performance and no further. 7. Censure passed in good faith:- It is not a defamation of a person to pass, In good faith any censure on the conduct of that person in consented matter. 8. It is not defamation to perform in good faith, an accusation against any person to any of these who has lawful authority over that person with respect to subject matter or within this exception. 9. It is not defamation to make an imputation if the impanation is made in good faith for the protection of the interest of the person making it. 10. It is not defamation to convey a caution that is intended in the good faith of the person. These are the exceptions to the offence of defamation. Under these exceptions no offence of defamation is proved. PUNISHMENT FOR THE ACT OF DEFAMATION MA,B.Ed,LLB. Page 9
Under section 500 of IPC it is provided that the punishment for the offence of defamation, which is simple imprisonment for a term which may extend to two years or with fine or with both. Q. No 9:- What do you mean by Kidnapping? Distinguish between Kidnapping and Abduction. OR What are the ingredients of the offence of kidnapping? Answer : INTRODUCTION :- kidnapping and adduction are particular types of offence under the law of crime. Under these offences, a person is taken away secretly or forcible without his consent or without the consent of his authorised guardian. Under kidnapping a person is kidnapped from lawful custody. Kidnapping is defined under section 359 of IPC, which gives two type of kidnapping:- i) Kidnapping from India. ii) Kidnapping from lawful guardianship. Section 360 says that Kidnapping from India end. Section 361 defines that Kidnapping from lawful guardianship. The offence of abduction is defined under section 362 of IPC. Section 359 of IPC says that there are two types of kidnapping:- 1. Kidnapping from India: Under section 360 of IPC :- This section provides that whoever conveys any person beyond the limit of India without the consent of that person or any person legally authorised to consent on behalf of that person, is said to kidnap that person from India. Age limit immaterial. This section has two essentials :- I) Convey any person beyond the limits of India. II) Such conveying must be without the consent of that person or the person legally authorised to give consent on behalf of that person. 2. Kidnapping from lawful guardianship 361 IPC:- It defines as that whoever takes or entices any minor under sixteen years of age if a male or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardianship of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. The word lawful guardian here means any person lawfully interested with care or custody of such minor or other person. 3. Exception :- There is one exception of this sec. This section does not extend to the act of any person who in good faith, believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled the lawful custody of such child unless such act is committed for an immoral or unlawful purpose. #.Take or Entice Away:- means to induce a person for going to another place. Object of this section is to protect minor children from being reduced ( to corrupt) for improper purpose. #. Guardian consent: The kidnapping must be without the consent of the guardian. The consent may be expressed or implied. Thus to attract this section there must be taking or enticing away any minor or unsound mind person out of lawful guardianship. ABDUCTION Section 362 of IPC says that whoever by force, compels or by any deceitful means induces any person to go from any place,is said to abduct that person. Two essential ingredients of the offence of abduction are : i) Forcefully compulsion or inducement by deceitful means. ii) The object of such compulsion or inducement must be the going of a person from any place. Thus abduction is an offence under section 362. If a person compels or even by fraudulent means induce by.other person to go from any place taken is called abduction. PUNISHMENT FOR KIDNAPPING UNDER SEC.363 IPC Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment or either description for a term which may be extended to seven years, and shall be liable to fine. MA,B.Ed,LLB. Page 10
DIFFERENCE BETWEEN KIDNAPPING & ABDUCTION KIDNAPPING ABDUCTION 1. It is committed only in respect It is committed in respect of any Of minor under 16 years of age person of any age. If a male and 18 years if a female Or a person of unsound mind. 2. In kidnapping the consent of Consent of the person removed, if Enticed is immaterial. Freely and voluntarily given, Condones the offence. 3. In kidnapping the intention In abduction intention is a very Of the offender is irrelevant. Important factor. 4. It is not a continuing offence 4.It is a continuing offence. A person Is completed as soon as the is being abducted both when he is Minor is removed from the first taken from one place to and Custody of his or her also when he removed from one Guardian. Place to other. Unit No. 1 Q. No. 12: Explain in detail the concept of Abetment. Answer :- INTRODUCTION :- A crime may be committed by one or more persons involved in crime then their liability depends upon the extent of their participation. Thus this rule of joint liability comes into existence. But there is an important fact which is that the law has a knowledge about the abettor, who has given help to another in crime. This rule is very ancient and was applied in Hindu Law also. In English Law, criminals are divided in four categories, but in India there is only one distinction between the doer and his helper who is known as abettor. The crime of abetment come under section 107 to 120 of the IPC. Section 107 defines abetment of a things and section l08 defines about the abettor. SECTION 107 IPC ABETMENT OF THING : A person abets the doing of a thing by instigation :- 1. Instigate any person to do that things 2. By conspiracy. 3. By aids. BY INSTIGATION ANY PERSON TO DO THAT THINGS :- According to the first clause of section 107 a person abets of thing that instigates any person to do that thing. A person is said to instigate another when he incites, urges, encourages, provokes, counsels, procures or command him to do something. EXPLANATION :- A person who by wilful misrepresentations or by wilful concealment of a material fact, which he is bound to disclose, voluntary causes or procures or attempts to cause or procures a thing to be done, is said to instigate the doing of that things. ILLUSTRATION :- A Police Officer is authorised by a warrant from a court of justice to apprehend Z. B knowing that fact and also that C is not Z, wilfully represents to A that C is Z and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Case : Gurbachan Singh v/s Sat Pal Singh, AIR- 1990 A newly wedded girl died of burns. The father of deceased had stated in FIR that the deceased committed suicide because of harassment and constant taunt for insufficient dowry. It was held by the SC that the deceased had committed suicide at the instigation of her husband and in laws and it was not a case of accidental death. 2. ABETMENT BY CONSPIRACY MA,B.Ed,LLB. Page 11
The second clause of this section states that a person abets the doing of a thing who engages with one or more other persons in conspiracy for the doing of that thing. If an act or illegal omission takes place in pursuance of that conspiracy and in order to doing of that thing then it is called abetment by conspiracy. If an act or illegal omission takes place in prurience of that conspiracy. ILLUSTRATION :- A concerts with B a plans for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A s name. C agrees to procure the poison and deliver it to B for the purpose explained A administers the poison and Z dies. Here A and C have not conspired together, yet C has therefore committed the offence and is liable for punishment. A case : Rup Devi v/s State : 1955. The deceased & his wife had strained relationship. The wife had illicit intimacy with the accused. The deceased was scheduled to go to Sadhu on a particular day. The wife told the accused about this programme even though she knew that the accused was waiting for the opportunity to kill her husband and taking the opportunity he killed him. It was held that the wife was not guilty of abetment by conspiracy, even though her conduct was open to censure. 3. ABETMENT BY AIDING: The third clause of the section says that, A person abets the doing of thing who intentionally aids by any act in the illegal omission of the doing of that thing. EXPLANATION :- Whoever either prior to or at the time of the commission of an act does anything in order to facilitate the commission of that act thereby facilitates the commission thereof, is said to aid the doing of that act. ILLUSTRATION :- If the servant keeps the gate open of the master s house so that thrives may enter and thieves do not come, he cannot be held to have abetted the commission of theft. A case: Ram Kumar v/s State of H.P. 1995. The 19 years old prosecutrix was taken to the police station by the accused that kept watch over her husband while she was raped by the co-accused. In this custodial rape the accused turned deaf ears towards the cries of the prosecutrix and did nothing to help her. The SC implied abetment of the accused for abetment of rape. SECTION 108 OF IPC: ABETTOR : A person can become an abettor in two ways :- 1. When he abates the commission of an offence : Example : Where he abets B to commit murder of Z. Here A is an abettor. 2. When the abets the commission of an offence it is committed by a person capable by law to commit an offence with the same intention or knowledge as that of the abettor. Example : A abets B, a five year old child, to commit murder of Z, he is still an abettor under the 2nd category because even though the child will not be guilty of anything by virtue of the protection given to him by section 82 of the IPC. To define the abettor the explanation must be read as :- EXLPLANATION No.1 :- The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act. ILLUSTRATION :- A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder. Explanation No.2 :- To constitute the offence of abetment it is not necessary that the particular act of abettor should be committed. ILLUSTRATION :- A instigates B to Murder D. B in pursuance of the instigation stabs D. D recovers from wound. A is guilty of instigation B to commit murder. Explanation No. 3 :- It is not necessary that the abettor & the person abetted must have same guilty intention or knowledge. MA,B.Ed,LLB. Page 12
ILLUSTRATION :- A with a guilty intention, abets a child or a lunatic to commit an act which would be an offence if committed by a person capable by law lof committing an offence and having the same intention as A. Here A, whether the act be committed or not is guilty of abetting an offence. EXPLANATION NO. 4 :-The abetment of an offence being an offence the abetment of such an abetment is also an offence. ILLUSTRATION :- A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z and C commits that offence in consequences of B s instigation. B is liable to be punished for his offence with the punishment for murder and as A instigated B to committed the offence. A is liable to the same punishment. EXPLANATION NO 5 ;-It is not necessary to the commission of the offence of abetment by conspiracy that the abettor shoulbigamyd concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy. ILLUSTRATION : A concerts with B a plan of poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison but without mentioning A s name C agrees to procure the poison & deliver lit to B the purpose of its being used in the matter explained. A administers the poison, Z dies in consequence, Here though A and C did not conspired together, Yet C has been engaged in the conspiracy in pursuance of which Z had been murdered. C has therefore committed the offence defined in the section and is liable to the punishment of murder. Unit No. iv Question No. 13 :-What are the ingredients of the offence of Bigamy? Discuss in detail. OR What are the several offences set out in the IPC relating to Marriage? OR What is bigamy? Under what circumstances would a woman, who in the life-time of one husband, marries another, not be guilty of bigamy.? Answer : INTRODUCTION :- OFFENCES RELATING TO MARRIAGE :- The following are the provisions in the Indian Penal Code dealing with the offences relating to marriage. Under section 494 defines the offence of bigamy as under: Whoever having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. In Bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it must be proved. Admission of marriage by the accused is not the evidence of it in bigamy case. Under section 494 and 109 of IPC the evidence of witness called to prove the marriage ceremonies showed that the essential ceremonies had not been performed. On admission of the accused in a written statement that the parties married after the first marriage was dissolved & was not justified, In a case Kanwal Ram v/s Himachal Pradesh Administration 1966. An another case of Shanti Dev Barma v/s Kanchan Prava Devi 1991 Orissa, it was held that No plea was raised that the second marriage was performed as per custom which dispensed with saptapadi oral evidence was adduced that the accused and his alleged second wife were living as husband and wife. It was not found sufficient to draw an inference as to performance of ceremonies essential for valid marriage. The accused was entitled to be acquitted. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. Dishonestly or fraudulently going through a marriage ceremony knowing that no lawful marriage is hereby created Bigamy i.e. marriage again during the lifetime of the husband or wife where such marriage is void. If the former marriage is concealed from the person with whom the subsequent marriage is contracted, the punishment is ten years or fine or both. MA,B.Ed,LLB. Page 13
The exception to section 494 provides the circumstances where a woman in the life-time of one husband or vice versa can marry another without incurring the offence of bigamy. It provides that section 494 does not extend :- a) To any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction. b) To any person who contracts a marriage during the life of a former husband or wife, it such husband or wife at the time of the subsequent marriage shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time, such marriage can takes place. Chapter-IV Question :-14: What is an attempt to commit offences. Discuss in the light of section 511 of IPC. OR How far are attempts to commit offences punishable under section 511 of IPC? What must be proved in order to support the conviction of an attempt under this section.? OR What are the different stages of the commission of an offence and how far each of them is punishable? (b) Distinguish between preparation to commit an offence and attempt to commit an offence. Answer: INTRODUCTION:- ATTEMPTS TO COMMIT OFFENCES : Section 511 lays down that, whoever attempts to commit an offence punishable by this code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence. The points which require proof under the above section they are as follows :- 1. That the accused attempted to commit some offence punishable with imprisonment for life or imprisonment or he attempted to cause such and offence to be committed. 2. That in attempting to do the above act he did some act towards the commission of the offence. ILLUSTRATION :- a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box that there is no jewel in it. He had done an act towards the commission of theft, and therefore is guilty under this section. b) A makes an attempt to pick pocket of Z by thrusting his hand into Z s Pocket and fails to pick the pocket with the result A found nothing in the pocket of Z and was held guilty of an offence under this section. DIFFERENT STAGES OF THE COMMISSION OF AN OFFENCE There are three stages for the commission of a crime in the section number 511 of IPC, which are as under :- i) Intention to commit a crime. ii) Preparation to commit it and attempt to commit it. The crime is when complete is successful. INTENTION TO COMMIT THE CRIME : It consists the evil intention or design to commit the crime. Mere intention or evil design not followed by an act, does not constitute an offence. The will cannot be taken for the deed, unless there has been some external act showing the progress made towards maturing the crime. The judges cannot look into the breast of the criminals. PREPARATION TO COMMIT IT AND ATTEMPT TO COMMIT IT:- As clear from the above heading that preparation to commit a crime, It is devising or arranging the means or measures necessary for commission of an offence. Mere preparation to commit an offence is punishable only in three cases :- MA,B.Ed,LLB. Page 14
a) Preparation to wage war against the Govt of India u/s 122. b) Preparation to commit depredation on territories of any power at peace with the govt. Of India u/s 126. c) Preparation to commit dacoity under section 399. Preparation widely differs from attempts. Attempt is therefore, preparation plus something more. Attempt begins where preparation ends. A preparation is generally not punished while every attempt is the reason being that a preparation apart from its motives would generally be a harmless act. It is impossible to show in most cases that the preparation was directed to a wrongful end or was done with an evil motive or intention. An attempt is however made punishable because every attempt, although it fails to achieve the result, must create alarms which of itself is an injury and the moral guilt of the offender is the same as if he had succeeded. There are however some exceptional cases where the contemplated offence may be so grave that it must be nipped in the bud at its earlier stage. Such as :- 1. Preparation to wage war against Govt., of India, preparation to commit depredation on territories of any power at place with the government of India and preparation to commit dacoity. 2. There are also a few cases where even mere preparation is made punishable because they cannot by the very nature of things be meant for innocent purposes e.g. provision against making mending buying or selling or being in possession of instruments for counterfeiting coins, or making the dies or other instruments used in the manufacture of coin. 3. There are also a few acts which although in reality are mere preparation have been regarded as substantive offence, viz., possession of counterfeit coins, false weights and forged documents. Question No.15: What is criminal trespass.? Critically examine the essential ingredients of criminal trespass with special reference to Section 441 of IPC. OR Can an owner himself be guilty of criminal trespass of his own property.? Explain with the help of cases. OR A entered the house of K at night to carry on an intrigue with the grown up unmarried daughter of B, having taken precautions not to let his presence in the house be known to anyone. A was surprise and caught by B. Is A guilty of any offence? Give full reasons for your Answer.: INTRODUCTION :- Criminal trespass is dependent not upon the mere nature of the act, but upon the intention of the offender. As to what intentions constitute criminal trespass enumerated in the section itself, and beyond these no other intention will constitute criminal trespass. In other words, not all intents of the offender will constitute criminal trespass but only those mentioned in the section. DEFINITION OF CRIMINAL TRESPASS Criminal trespass as define in Section 441 of IPC as follows :- Whoever trespass into or upon property in the possession of another with intent to commit an offence or to insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with the intent to commit an offence is said to commit criminal trespass. INGREDIENTS OF CRIMINAL TRESPASS The following are the ingredients of criminal trespass :- MA,B.Ed,LLB. Page 15