INDIAN PENAL CODE
INTRODUCTION
History of the Indian Penal Code:
During the British Period the Governor General Appointed the “Indian Law Commissioners” in order to judge the condition of the penal laws prevalent in India and suggest a comprehensive Penal Code. In the year 1834 the First Law Commission was constituted headed by Lord Macauley for drafting the Indian Penal Code. The Draft underwent various levels of scrutiny and was finally passed and received the Governor General’s assent on 6th October 1860 and came to force on 1st January 1862.
The IPC is a comprehensive piece of legislation, which initially consisted of 23 Chapters and 511 Sections and as a result of various amendments that it has gone through there are finally 538 sections.
Extent and Operation of the Indian Penal Code:
The Chapter 1(Sections 1-5) of the Indian Penal Code deals with the extent and operation. According to Section 1 of the Code the Name of the Code shall be Indian Penal Code and the same shall be applicable to whole of India except Jammu and Kashmir vide Article 370 of the Constitution of India. Every person shall be liable to punishment under this code for every act or omission contrary to the Act and not otherwise.
Section 2 of the Act deals with the Intra Territorial Jurisdiction, i.e. offence committed in India and punished under the Code. This section asserts liability on the basis of locality and place of commission of offence. In order to invoke the code it must be proven that the offence was committed within the Indian Territory. The term “Indian Territory” has been defined to include land, water (inland water including the river, canals etc.) and the portions of sea. “Every Person” includes Citizen, non citizen and even Foreigners visiting India. Although the same excludes judicial person (companies etc.), though the same shall be liable for the actions of their directors because of the principle of Vicarious Liability.
Cases:
In the case of State of Maharashtra vs. M.H. George (AIR 1965 SC 722), it was held that the foreigner who enters India by accepting the allegiance of Indian laws is also liable for punishment in case an offence is committed under the code and that he cannot take a plea of “ignorance of law”. In the case of R vs. Esop [(1836) 7 ER 203], it was held that no person can take the plea of not being aware of the criminality of the act in the country. In this case the person had contended that unnatural offence was not a criminal act in his land of origin Baghdad and that he was not aware of the fact that the same was a criminal act. Such an argument was negated and the person was convicted.
In the case of Mobark Ali vs. State of Bombay (AIR 1957 SC 857), Pakistani citizen made a false representation while in Karachi o the complainant in Bombay through letters, phone calls and telegrams which induced the complainant to part with an amount of around Rs. 5 lacs to the agent of the accused in Bombay so that rice could be shipped from Karachi to Bombay. NO rice was supplied. The accused was caught in England and brought to Bombay where he was prosecuted and convicted under Section 420 for cheating. The Supreme Court upheld the conviction even though the person was physically present in Bombay.
The application of the Act depends upon the place where the offence is committed and not on the nationality or place of residence of the offender. So, a person physically present outside India can commit an offence within India and shall be Punishable under the code. Thus, the code shall be Extra Territorially applicable in the following cases:
1. any citizen of India in any place without or beyond India;
2. any person on a ship or aircraft registered in India;
3. any person in any place beyond India wherein the target of the offence being a computer resource located in India.
Section 4 of the IPC extends the application of the code to an offence committed outside India by an Indian citizen and offence committed on a ship or aircraft registered in India. The rationale behind this extension of criminal jurisdiction o the courts is based on the contention that every sovereign state can regulate the conduct of its citizen, where they might be for the time being. Clause 2 of section 4 gives Admiralty jurisdiction to the Indian Courts and the power to try offences committed on any ship or aircraft registered in India. A ship is considered to be a floating island belonging to the country whose flag it is bearing. Thus all the vessels are considered as the part of the territory of the country whose flag they fly.
Exception to applicability of the Act:
The Act is not applicable to soldiers, sailors or airmen ‘in the service of the Government of India’ because there are different laws for punishing such personnel.
DEFINITION OF CRIME
WHAT IS A CRIME? We must answer this question at the outset. In order to answer this question we must know first, what is law because the two questions are closely interrelated. Traditionally, we know a law to be a command enjoining a course of conduct. The command may be of a sovereign or of political superiors to the political inferiors; or it may be the command of a legally constituted body or a legislation emanating from a duly constituted legislature to all the members of the society. A crime may, therefore, be an act of disobedience to such a law forbidding or commanding it. But then disobedience of all laws may not be a crime, for instance, disobedience of civil laws or laws of inheritance or contracts. Therefore, a crime would mean something more than a mere disobedience to a law, "it means an act which is both forbidden by law and revolting to the moral sentiments of the society." Thus robbery or murder would be a crime, because they are revolting to the moral sentiments of the society, but a disobedience of the revenue laws or the laws of contract would not constitute a crime. Crime, as we have seen, is difficult to define in the true sense of the term, a definition of a crime must give us "the whole thing and the sole thing," telling us something that shall be true of every crime and yet not be true of any other conceivable non-criminal breach of law. We cannot produce such a definition of crime as might be flexible enough to be true in all countries, in all ages and in all times. Nevertheless, a crime may be described and its attributes and characteristics be clearly understood. There are two ways of understanding the nature and meaning of crime one is by distinguishing crimes from civil and moral wrong and second is by examining the definition given by various jurists.
Difference between civil, moral wrongs and crimes:
In order to draw a distinction between civil and criminal liability, it becomes necessary to know what is “wrong” of which all the three are species. There are certain acts done by us which a large majority of civilised people in the society look upon with disapprobation, because they tend to reduce the sum total of human happiness, to conserve which is the ultimate aim of all laws. Such acts may be called wrongs, for instance, lying, gambling, cheating, stealing, homicide, proxying in the class and so on.
Civil Wrongs and Crimes: crimes are graver wrongs; they are singled out for punishment with four-fold objects, namely, of making an example of the criminal, of deterring him from repeating the same act, of reforming him by eradicating the evil, and of satisfying the society’s feeling of vengeance. Civil wrongs, on the other hand, are less serious wrongs, as the effect of such wrongs is supposed to be confined mainly to individuals and does not affect the community at large.
Secondly, the accused is treated with greater indulgence than the defendant in civil cases. The procedure and the rules of evidence are modified in order to reduce to a minimum the risk of an innocent person being punished.
Thirdly, if there is any reasonable doubt regarding the guilt of the accused, the benefit of doubt is in favour of the accused. It is said that it is better that ten guilty men should escape rather than an innocent person should suffer. But the defendant in a civil case is not given any such benefit of doubt.
Fourthly, in case of a civil injury, the object aimed at is to indemnify the individual wronged and to put him as far as practicable in the position he was, before he was wronged. Therefore he can compromise the case, whereas in criminal cases generally the state alone, as the protector of the rights of its subjects, pursues the offender and often does so in spite of the injured party.
Crimes and Moral Wrongs: A criminal wrong may also be distinguished from a moral wrong. It is narrower in extent than a moral wrong. In no age or in any nation an attempt has ever been made to treat every moral wrong as a crime. In a crime an idea of some definite gross undeniable injury to someone is involved. Some definite overt act is necessary, but do we punish a person for ingratitude, hard-heartedness, absence of natural affection, habitual idleness, avarice, sensuality and pride, which are all instances of moral lapses? They might be subject of confession and penance but not criminal proceeding. The criminal law, therefore, has a limited scope. It applies only to definite acts of commission and omission, capable of being distinctly proved. These acts of commission and omission cause definite evils either on definite persons or on the community at large. Within these narrow limits there may be a likeness between criminal law and morality.
Definition by various jurists:
Sir William Blackstone in his classical work, Commentaries on the Laws of England which is devoted to “Public Wrongs or Crimes,” attempted to define crime at two different places in his work. We shall examine both these definitions given by him. At one place, he states that “crime is an act committed or omitted in violation of a public law forbidding or commanding it.” However the word Public law has different connotations. In Austin’s view ‘public law’ is identical ‘constitutional law’ and if such a view is accepted in that case the crimes would only cover political offences which are only a very small portion of the whole field of crime. If we were to follow Austin and interpret the definition given by Blackstone as violation of our constitutional law, namely, Articles 21 and 31, which guarantee protection of one's life, liberty and property, even then the definition of crime would remain too narrow. again, some take "public law" to mean positive law or municipal law, which would mean all laws made by the state. In that sense, the definition given by Blackstone obviously become too wide, for then crime will include every legal wrong or violation of law. Therefore, this definition given by Blackstone is not satisfactory. Blackstone visualised the short coming in the first definition and hence defined crimes in terms of public rights and duties. According to him, crime is a ‘violation of the public rights and duties due to the whole community considered as a community’. This definition was slightly modified by Sergeant Stephen. It read as ‘A crime is a violation of a right considered in reference to the evil tendency of such violation as regards the community at large. This definition is also inaccurate because the essential characteristic of crime is not infringement of right but doing the prohibited act. Enforcement of rights belongs to the administration of civil justice. The aspect of harm or injury to the community, which has been made to be the basis of crime in the above definitions, is true for some of the crimes but not all.
The next lines of thought is can crimes be defined in terms of morality? Most of the crimes are morally wrong but in many cases the test of morality will not stand scrutiny. Treason, as Sir Walter Scott says, "arises from mistaken virtue, and therefore, however highly criminal, cannot be considered disgraceful," a view which has even received legislative approval. Then again, mere omission to keep a highway in repair shocks nobody, yet it is crime. On the other hand, many grossly cruel and fraudulent breaches of trust are merely civil wrongs, for example, a man who stands by the river and watches a child drowning. He is a known swimmer but does not plunge into water to save the child.
Austin has, in defining crime, observed: A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury: a wrong which is pursued by the sovereign or his subordinates is a crime. It may be observed that his definition is not of substance but of procedure only. Moreover, under the Indian Penal Code there are several offences which cannot be pursued except by the injured party, for example, offences of criminal elopement under Section 498 of the Penal Code which can only be tried on a complaint being lodged by the husband. Professor Kenny modifies Austin and defines crime to be "wrongs whose sanction is punitive and is in no way remissible by any private person, but is remissible by the Crown alone, if remissible at all." This definition of crime as given by Professor Kenny is also open to criticism. Professor Winfield points out that the word "sanction," used in the definition must means punishment and the word "remissible" must refer to pardon by the Crown and observes that it is on the word "remissible" that the definition breaks down, for the only way in which the Crown can remit a punishment is by pardon.
FUNDAMENTAL ELEMENTS OF CRIME
The fundamental element of criminal liability is that there must be a wrongful act –“Actus reus”, combined with wrongful intention –“mens rea”. This principle is embodied in the maxim “Actus non facit reum nisi mens sit rea”, ‘an act does not make one guilty unless the mind is also legally blameworthy’. Apart from these two elements that go to make up a crime, there are two more indispensable elements, namely, first, “a human being under a legal obligation to act in a particular way and a fit subject for the infliction of appropriate punishment,” and secondly, “an injury to another human being or to the society at large.”
Thus the four elements that go to constitute a crime are as follows:
-
A human being under a legal obligation to act in a particular way and a fit subject for the infliction of appropriate punishment;
-
An evil intent or mens rea on the part of such human being;
-
Actus reus, i.e., act committed or omitted in furtherance of such an intent; and
-
An injury caused to another human being or to society at large as a result of such an act.
-
A Human Being: The first element requires that the act should have been done by a human being before it can constitute a crime punishable at law. The human being must be “under a legal obligation to act, and capable of being punished.”
MENS REA: The second element, which is an important essential of a crime, is mens rea or guilty mind, the absence of which in any given particular occasion will negate the liability. Mens rea is the state of mind indicating culpability. It is commonly taken to mean some blameworthy mental condition, whether constituted by intention or knowledge, the absence of which on any particular occasion negatives the intention of a crime. The term ‘mens rea’ has been given to volition, which is the motive force behind the criminal act.
Illustration: If A is walking down a crowded street and B by mistake stamps his foot, A would accept B’s apology and move on. Whereas if C a person who doesn’t have a very cordial relation with A stamps his foot in that case A would abuse him and in retaliation may stamp his foot too. The reason for the difference in A’s reaction is the intention of the person. B stamped A’s foot by mistake whereas C stamped A’s foot in order to hurt him. This Guilty intention is Sina qua non of a criminal act.
The objective of the law is always to punish the person with guilty intention and that no innocent person should be put behind the bars. Therefore, as a general rule every crime requires a mental element, the nature of which will depend upon the definition of the particular crime in question. Even in crimes of strict liability some mental element is required. Expressions connoting the requirement of a mental element include: ‘with intent’, ‘recklessly’, ‘unlawfully’, ‘maliciously’, ‘wilfully’, ‘knowingly’, ‘knowing or believing’, ‘fraudulently’, etc. The meaning of each must be determined in the context in which it appears, and the same expression may bear a different meaning indifferent contexts. Under the IPC, guilt in respect of almost all offences is fastened either on the ground of intention or knowledge or reason to believe. All the offences under the Code are qualified by one or the other words such as wrongful gain or wrongful loss, dishonestly, fraudulently, reason to believe, criminal knowledge or intention, intentional co-operation, voluntarily, malignantly, wantonly. All these words describe the mental condition required at the time of commission of the offence, in order to constitute an offence.
Cases:
In the case of Ravule Hariprasad Rao vs. State, the Supreme Court ruled that unless the statute clearly or by implication rules out mens rea as a constituent element of a crime, a person should not be held guilty of an offence unless he had a guilty mind at the time of commission of the act.
In the case of Kartar Singh vs. State of Punjab, the court held that the element of mens rea must be read into the statutory penal provisions unless a statute either expressly or by necessary implication rules it out.
Intention: To define the word intention clearly is difficult. Though the meaning is known to all a precise definition cannot be attached to it. The word intention in law is not defined by the words intentionally, or with intent. It is expressed in such as ‘voluntarily’, ‘willfully’ or ‘deliberately’ etc. Section 39 of the Code states that a person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it , or by means which, at the time of employing those means, he knew or had reason to believe it to be likely to cause it. In the case of Abdul Majeed vs. State of Kerala the word Voluntarily is to be understood in relation to causation of effect and not doing of acts from which those effects result.
Section 298 of the Code makes the uttering of words or making gestures with deliberate intent to wound the religious feelings punishable under the Act. On a plain reading of the section, the words ‘deliberate’ and ‘intent’ seem synonymous. An act is intentional if, and in so far as it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied.
Transferred intention: Where a person intends to commit a particular crime and brings about the elements which constitute that crime, he may be convicted notwithstanding that the crime takes effect in a manner which was unintended or unforeseen.
Illustration: A, intends to kill B by poisoning. A places a glass of milk with poison on the table of B knowing that at the time of going to bed B takes glass of milk. On that fateful night instead of B, C enters the bedroom of B and takes the glass of milk and dies in consequence. A is liable for the killing of C under the principle of transferred intention or malice.
Intention and Motive: Intention and motive are often confused as being one and the same. The two, however, are distinct and have to be distinguished. The mental element of a crime ordinarily involves no reference to motive. Motive is something which prompts a man to form an intention.
Austin defined Motive as the ‘spring action’. Intention according to him is the aim of the act, of which the motive is a spring action. A motive is something which prompts a person to form an opinion or intention to do a certain illegal act. Intention has been defined as the fixed direction of the mind to a particular object, or determination to act in a particular manner and it is distinguishable from motive which incites or stimulates action. In Om Prakash v. State of Uttranchal the Supreme Court rejected the plea that the prosecution could not signify the motive for the crime holding that failure to prove motive is irrelevant in a case wherein the guilt of the accused is proved otherwise. It needs to be emphasised that motive is not an essential element of an offence but motive helps us to know the intention of a person. Motive is relevant and important on the question of intention.
Intention and knowledge: Intention and knowledge are two different things. Intention is the desire to achieve a certain purpose while knowledge is awareness on the part of the person concerned of the consequence of his act of omission or commission, indicating his state of mind. The demarcating line between knowledge and intention is no doubt thin, but it is not difficult to perceive that they connote different things. There may be knowledge of the likely consequences without any intention to cause the consequences.
Illustration: A mother jumps into a well along with her child in her arms to save herself and her child from the cruelty of her husband. The child dies but the mother survives. The act of the mother is culpable homicide. She might not have intended to cause death of the child but, as a person having prudent mind, which law assumes every person to have, she ought to have known that jumping into the well along with the child was likely to cause the death of the child. She ought to have known as prudent member of the society that her act was likely to cause death even when she may not have intended to cause the death of the child.
ACTUS REUS:
To constitute a crime the third element, which we have called Actus Reus or which Russell has termed as “physical event”, is necessary. It is a physical result of human conduct. When criminal policy regards such a conduct as sufficiently harmful it is prohibited and the criminal policy provides a sanction or penalty for its commission. The Actus Reus may be defined in the words of Kenny to be “such result of human conduct as the law seeks to prevent. Such human conduct may consist of acts of commission as well as acts of omission. Section 32 of our Penal Code lays down: “Words which refer to acts done extend also to illegal omissions.” An Actus Reus can consist of more than just an act; it comprises all the elements of the offence other than the state of mind of the defendant. Depending on the offence, this may include the circumstances in which it was committed, and/or the consequences of what was done.
Conduct must be voluntaryIf the accused is to be found guilty of a crime, his or her behaviour in committing the actus reus must have been voluntary. Behaviour will usually only be considered involuntary where the accused was not in control of his or her own body (when the defence of insanity or automatism may be available) or where there is extremely strong pressure from someone else, such as a threat that the accused will be killed if he or she does not commit a particular offence (when the defence of duress may be available).
Types of actus reus
Crimes can be divided into three types, depending on the nature of their actus reus.
Action crimes
The Actus Reus here is simply an act, the consequences of that act being immaterial. For example, perjury is committed whenever someone makes a statement which they do not believe to be true while on oath. Whether or not that statement makes a difference to the trial is not important to whether the offence of perjury has been committed.
State of affairs crimes Here the Actus Reus consists of circumstances, and sometimes consequences, but no acts they are ‘being’ rather than ‘doing’ offences.
Result crimes
The Actus Reus of these is distinguished by the fact that the accused’s behaviour must produce a particular result – the most obvious being murder, where the accused’s act must cause the death of a human being.
CAUSATION IN CRIME
Result crimes raise the issue of causation: the result must be proved to have been caused by the defendant’s act. If the result is caused by an intervening act or event, which was completely unconnected with the defendant’s act and which could not have been foreseen, the defendant will not be liable. Where the result is caused by a combination of the defendant’s act and the intervening act, and the defendant’s act remains a substantial cause, in that case he or she will still be liable. In the case of Suleman Rahim Mulani vs. State of Maharashtra, the accused hit the deceased with his jeep. After which he took him to the hospital in his jee, but the person eventually died. Accused cremated the body. After which accused was charged with 304A and 201. According to sec 304A there shall be a direct nexus between the death of the person and the negligent act. Before conviction of the accused under section 304A there must be proof that the accused drove in rash and negligent which resulted in death. In this case there was no evidence of driving negligently and no offence was made out.
Omissions
Criminal liability is rarely imposed for true omissions at common law, though there are situations where a non-lawyer would consider that there has been an omission but in law it will be treated as an act and liability will be imposed. There are also situations where the accused has a duty to act, and in these cases there may be liability for a true omission.
Injury to Human Being: The fourth element, as we have pointed out above, is an injury to another human being or to society at large. This injury to another human being should be illegally caused to any person in body, mind, reputation or property. Therefore, it becomes clear that the consequences of harmful conduct may not only cause a bodily harm to another person, it may cause harm to his mind or to his property or to his reputation.
Finally one can say that the four elements of crime are:
First, the wrongdoer who must be a human being and must have the capacity to commit a crime, so that he may be a fit subject for the infliction of an appropriate punishment.
Secondly, there should be an evil intent or mens rea on the part of such human being. This is also known as the subjective element of a crime. Thirdly, there should be an Actus reus, i.e. an act committed or omitted in furtherance of such evil intent or mens rea. This may be called the objective element of a crime. Lastly, as a result of the conduct of the human being acting with an evil mind, an injury should have been caused to another human being or to the society at large. Such an injury should have been caused to any other person in body, mind, reputation or property. If all these elements are present, generally, we would say that a crime has been constituted.
GENERAL EXCEPTIONS
The general exceptions have been dealt with in Chapter IV of the Indian Penal Code. As a general principle of law man is presumed to know the nature and consequence of his act, and is therefore responsible for it. However, there are certain exceptions to this general rule, wherein a person may be excused of the crime. In some cases the person may be excluded from the consequence of the offence by the virtue of being the head of the state. Others may be excused for not having the requisite mens rea necessary for the punishment. Chapter IV consists of 31 Sections.
Mistake of law and mistake of fact (Section 76 and 79)
Privileged Acts and Judicial Acts (Section 77 and 78)
Accidental acts (Section 80)
Necessity (Section 81)
Infancy (Section 82-83)
Insanity (Section 84)
Intoxication (Section 85-86)
Acts done with or without consent (Section 87-92)
Private defence (Section 96-106)
MISTAKE OF FACT or LAW
Any act done by a person who is, 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, bound by law to do it, is not an offence.[1]
Any act 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, is not an offence.[2]
The two sections revels that they lay down the law relating to mistake as an exception to the criminal liability. They also distinguish between mistake of fact and law, and clarifies’ that mistake of fact and not law exonerates a person from criminal liability. These two sections are though identical and accord same immunity, are distinct from each other. Section 76 provides immunity to a person who believes himself to be bound by law to do a thing, while under section 79 he acts because he thinks he is justified by law to a thing. But the same should be due to mistake of fact and in good faith. Mistake in both the cases negatives the existence of particular intent or foresight which penal law requires to make a person liable.
Conditions to use mistake as an excuse:
·The mistake must be of such nature, which had the supposed circumstances been real; they would have prevented liability from attaching to the person in doing what he did. Eg: it is no excuse for a burglar who mistook house no. 5 to be house no. 6, because Actus Reus and Mens rea would have existed.
·The state of mind of the defendant must be such that it proves ignorance.
·The mistake or ignorance so committed must be a reasonable one. Superstitious belief will not be a defence.
· Mistake must pertain to fact and not law for; ignorance of law is not an excuse.
Mistake of Fact:
Ignorance of fact is an excuse as it precludes the person from forming the required mens rea. The principle that this part of the section is based upon is, Ignorantia facti doth excusat; which means ignorance of fact can be an excuse (defence).
Illustration: A fires a bullet in the bushes which hits B and a result of the same B dies. A is not liable as he did not intentionally fired at B.
However the same is subject to two reservations:
·The mistake of fact cannot be pleaded in case where inquiry would have resulted in finding of the information. [3]
·It cannot be accepted as a plea, when an actus is made reas without reference to mens rea.[4]
The mistake must of a material fact i.e., facts essential to constitute the offence allegedly committed by the accused. He must be absolutely ignorant of the real circumstances. In case where the fact is unknown to the accused in that case his conduct must not be taken as intention. Where the act of the accused is in itself wrong, although not criminal, the ignorance on his part of the circumstances which makes the act criminal is no defence.[5]
In the case of Kochu Muhammad K Ismail vs Mohummad Kadeja Umma,[6] the accused Mrs. Umma was held liable for contracting bigamy under section 494 IPC while the first marriage was subsisting, she was acquitted on the ground that she honestly believed that she had already divorced the her husband, though the same was unacceptable under Hindu law.
Mistake of Law:
Mistake of law cannot be used as a defence in either civil or criminal cases. Mistake as to law means mistake as to existence or otherwise of any law on relevant subject. This is based on the principle of Ignorantia juris non excusat. If ignorance of law were a defence, it would open to an accused charged with a crime to allege that he was unaware of the law point. Both the sections mention above specifically exclude ignorance of law as defence. The maxim is applicable in its strict sense.
Illustration: If a police officer arrests a person for committing an assault, which he considers a cognizable offence, whereas it is non cognizable offence in which he cannot arrest and detain such a person, he shall be liable for wrongful confinement, as his mistake was one of law and not of fact.
In the case of State of Maharashtra vs. M H George, the Supreme Court refused to accept the plea of ignorance of notification issued by the RBI imposing restriction on the transit of gold to a place outside Indian Territory and held the accused, French national, on his way to manila liable for violating the said notification. [7] In this case the accused person was travelling from Zurich and when his flight touched the Santa Cruz Airport, the custom officer on basis of previous information searched him and found that he was carrying 34 kgs of gold with him. The same was prohibited as per the notification as mentioned above. The defence stated that the person was unaware of the law and hence shall not be liable for violation of the notification. But, it was held that ignorance of law shall not be a defence.
Bound by law:
Under section 76 of the act, the person by mistake of fact believes himself to be bound by law is protected from criminal liability. Illustration: A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence. This illustration clearly explains the meaning of the words “bound by law”. Acts that a person is “Legally bound to do” are acts which if not done result in illegality.[8]
In State of West Bengal vs. Shew Mangal Singh, the Supreme Court held that carrying out the orders of the superior officer in obedience of command is not guilty of offence. In this case the police officials shot the deceased and his brother at point blank range. The defence stated that the same was a result of mob attacking the patrol vehicle and injuring the assistant commissioner, that the command of shooting was given. The question arose as to the validity of the command and the execution of the same. Since the situation prevailing in the situation was such that it justified the order and hence the command was in conformity with the law.
In Nagraj vs. State of Mysore[9], it was held that the mere blind obedience by the soldier of the command of the superior is not recognised. He must show that the order was legal and binding or that the circumstance made him believe that the action was necessary (in good faith).
Justified by law:
Section 79 protects acts which are justified by law or in good faith by mistake of fact believe themselves to be justified by law. Good faith eliminates culpability. The act must be wholly justified by law.
In State of Andhra Pradesh vs. Venugopal[10], it was held that the police officials were not justified by law in beating the arrested person to death and throwing his body somewhere else, as the same was not a part of the investigation process. The police officials held the accused and had beaten him badly to extract information and the moment they realised he would soon die, they threw his body somewhere else. Their contention was that they were justified by law to do so and that they had done the same in good faith. The police officials were held liable for the offences under sections 348,331 and 201.
Good Faith: This is one of the essential ingredients to protect the accused under section 76 and 79. It is said to be done in good faith once it is done with due care and attention[11]. A thing is said to be done in good faith where it is in fact done honestly, whether done negligently or not.[12] In Re Ganpathia Pillai, the HC articulated that in section 52, good faith does not have any reference to honesty. According to the code an act is said to be done in good faith when the same is done with due care and attention. Due care denotes a degree of reasonableness in the case sought to be exercised. Enquiry conducted must be in-depth and with prudence.
NECESSITY
This section is based on the principle that where the accused chooses the lesser evil, in order to avert a bigger one, he shall be immune. This principle emanates from the maxim: quar necessitas non habet legem (necessity knows no law) and necessitas vincit legem (necessity overcomes the law).
Any act merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property is not an offence[13].
Explanation.- It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.
Illustration: A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down C.
Doctrine of Necessity:
This section embodies the doctrine of necessity as a defence against criminal liability. Necessity in legal context involves the judgment that the evil of obeying the letter of law is socially greater in particular circumstance than breaking it. In other word, law has to be broken to achieve greater good. In the above mentioned illustration the opinion to run down the smaller boat is protected under this section. This is only applicable when there is no intention to cause harm to the passengers of the smaller boat, but to prevent a greater damage.
No Mens Rea:
This section stipulates presence of criminal intention alone. This section contemplates a situation where in the accused has a clear knowledge of the fact that he is about to cause harm, but it is specifically stipulated that such knowledge shall not be held against him. Even though in general presence of knowledge is sufficient mens rea, but in this section knowledge without mens rea is a defence[14].
Preventing or avoiding other harm:
Immunity from criminal liability under this section will be available where an offence is committed without any criminal intention, to cause harm in good faith and if such offence is committed for the purpose of avoiding causing harm to other person or property. In order to attract this section, it is necessary to show that the act complained of was done in good faith in order to prevent a greater harm. However the harm caused need not be than the harm averted, though the question becomes material when act was in good faith or not being judged. The term harm as referred in this section means physical injury[15].
In the case of Ramaswamy Ayyar, [16]where a village magistrate put a restraint upon a drunkard who was threatening to commit breach of peace and was a danger to other villagers, it was held that the village magistrate, even as a private citizen was protected under this section. The judgment was also upheld in the case of Gopal Naidu vs. Emporer[17], where a drunkard man was carrying a gun, who was disarmed and put under police restraint, though the offence of public nuisance under section 290 is a non cognizable. The police officer being guilty of the offence of wrongful confinement, they could plead justification under this section.
Necessity as a reason for homicide:
Generally, necessity is not a reason or justification for murder, but in may not be the same in case of an emergency. Killing a person in self defence may appear to be an example of necessity. While self defence may over lap necessity, the two things are not the same. Private defence operates only against the aggressors. Unlike necessity, private defence involves no balancing of values.
In the case of United States vs. Holmes, the accused was a member of the crew of a boat after a shipwreck, fearing the boat would sink he over threw 16 male passengers. Though he was not convicted for murder, but was convicted for man slaughter and was sentences with six months of imprisonment.
In an English case, R vs. Dudley and Stephens, the crew of Mignonette yacht were cast away in storm and were compelled to put into an open boat, which had no water or food. On the 20th day, having nothing to eat for 20 days and being 1000 miles away from the shore, two the cabin crew (Dudley and Stephens) agreed that the cabin boy, who was about to die first, should be killed to feed themselves upon his body. The men ate his flesh and drank his blood for the next 4 days. They were rescued by a vessel passing by and charged of murder.
The principles laid down in this case were:
1. Self preservation is not an absolute necessity,
2. No person has a right to take the other person’s life in order to preserve his own,
3. There is no necessity that justifies homicide.
JUDICIAL AND PRIVIEGED ACT
This exception includes an act of judge while acting judicially and an act done in pursuance of a judgment or court orders, provided that the person acted in good faith. The object of the protection given under these sections is to give protection to the judges and his ministerial staffs, who is executing the order of the judge, is to ensure the independence of the judges and to enable them to discharge their duties without any fear of consequences and make the judicial orders and direction are carried of effectively.
Any act done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law, is not an offence.[18]
ELEMENTS OF SECTION 77
Judges:
Section 77 protects the judges from acts done. ‘Judges’ denotes not only a person who is officially designated as a judge, but also a person who is empowered by law to give a definitive judgment in any civil or criminal proceedings. It also includes person who is one of the body of persons, and the body of person is empowered by law to give such a definitive judgment.[19]
It has been held in Kamala Patel vs. Bhagwan Das[20], it does not confer immunity on a judge when, he makes some unwarranted and serious defamatory remarks about an accused that are not covered by any relevant exceptions of IPC
Acting Judicially:
The act of judge should be such that it is done in course of discharge of his judicial powers. A judge is protected only for those acts done by him when acting judicially. In the case of Anowar Ali vs. Ajoy Kumar Mukerjee[21], the accused officer was holding two offices-one, an executive office as the sub divisional officer and the other, a judicial office, sub divisional magistrate. He ordered the arrest of a person who was the owner of an extensive agricultural estate. The person was released on bail after three days. He filed a suit for compensation for false imprisonment. The trail court granted the complainant a decree for Rs. 5000, which was confirmed by the high court. The accused put up the defence that he ordered the arrest of the complainant on a bona fide exercise of his executive power on the information that he was involved in some offence. The Supreme Court held that since the accused officer acted in his executive capacity and not in discharge of his duties as a magistrate, he was not entitled to any protection from legal liability.
In Ram Pratap Sharma vs. Dayanand[22], a judge of Punjab and Haryana High Court visited a session court and also met members of bar. While addressing the members he criticised the government policy and attacked the government in its political and administrative decisions. The members of the bar wrote a letter to the Chief Justice of India and the prime Minister stating the judge’s action was not that of a judge but was like that of a politician and urged to take a required action. A contempt notice was issued by the Punjab and Haryana High Court against the signatories of the letter. In reply to the same the members of the bar stated that the same was addressed bona fide and in good faith and the same was contended to be a privileged communication. If the same was considered as the contempt of court in that case they shall tender their apology. The apology was accepted by the full bench of HC and the petitioners were discharged. On appeal, the Supreme Court held that if any judge addresses on political problems or controversies, the judge exposed himself to a public discussion. The judge in such case cannot take shelter behind his office. It was not a part of judge’s office or his discharge of duty. The same was a personal opinion and hence the protective umbrella of the courts cannot be taken.
In Daya Shankar vs. High Court of Allahabad, a judicial officer was found copying while writing his first semester LL M examination. The Supreme Court held that the conduct of the petitioner was unworthy of a judicial officer. According to the court, judicial officers cannot have two standards- one in the court and the other outside the court. They must have only on standard of rectitude, honesty and integrity. It upheld the petitioner’s dismissal from the judicial services.
ELEMENTS OF SECTION 78
Any act done in pursuance of, or which is warranted by the judgment or order of, a Court of Justice, if done whilst such judgment or order remains in force is not an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.[23]
For this section to be applicable the act should be done in pursuance of any order or judgment of the court of the court who may execute such awards, till such time that the same remains in force. This section mainly protects the ministerial and other staff. The protection extends even if the court order, pursuant to which the person may act, was actually without or in excess of the jurisdiction of the court, provided person executing the order believed in good faith that the court concerned had jurisdiction to pass such a judgment.
In Delhi judicial Service Association, Tis Hazari Court vs. State of Gujarat, the Chief Judicial Magistrate Nadiad in Gujarat had antagonised the local police. A false charge having consumed liquor in breach of prohibition law enforced in Gujarat was foisted on him. A police inspector arrests, assaulted and handcuffed the CJM, tied him with a rope and made a public exhibition of him by sending him to hospital for medical examination. The Supreme Court initiated contempt proceeding against all concerned police officers and also punished them for the same. Also that the court issued that in case of arrest of a judicial officer it should be done under the intimation to the district judge. It was also notified that in case of arrest of a judicial officer no hand cuffs shall be used.
In Sheo Narain vs. State of Rajasthan[24], the petitioner had obtained a decree in a civil suit and become a Khatedar tenant of a piece of land. Thereafter a complaint was registered against him under section 209,210 and420 of the IPC in the police station, stating that he had suppressed the fact that the land belonged to a person from scheduled caste and got the sale deed registered, on the basis of which the decree was obtained. The Rajasthan HC quashed the FIR, holding that the petitioner became a khaterdar tenant pursuant to the decree of the court. Until such a decree is set aside, he would be protected under section 78 of the IPC and no criminal complaint could be maintainable against him.
ACCIDENTAL ACTS
A person is exempt from liability if an act is done accidentally, by misfortune without any criminal intention or knowledge and the accident occurs while doing a lawful act in a lawful manner and by lawful means, wherein due care and caution was exercised. It exempts the doer from liability in case the offence results from the misfortune or accident.
Any act which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution, is not an offence.
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.
ELEMENTS OF SECTION 80
An accident or misfortune will operate as an exonerating factor, if it is shown that; first, the act was a mere accident or misfortune; second, the act was not accompanied by criminal intent; thirdly, it was an outcome of a lawful act done by lawful means and fourthly it was done with proper care with caution.
Accident or Misfortune
To bring the act within the purview of this section an essential is that the happening must be such that to which human fault does not contribute. It does not mean mere chance. It is rather unintentional or unexpected act. An effect is said to be accidental if the act by which it is caused is not done with the intention of causing it, and its occurrence as a consequence of such act is not so probable that a person of ordinary prudence under the circumstance in which it is done to take reasonable precaution against it.
Misfortune is same as accident plus is it as unwelcome as it was unexpected. It is only an accident with attendant evil consequence. Difference between the two words accident and misfortune lies in the fact that an accident involves only injury to another and misfortune causes as much injury to the author as it does an another unconnected person.
Absence of criminal intent or knowledge
For the application of this section, it is essential to establish that the act was done without any criminal intention or knowledge, i.e. it must be without mens rea or guilty mind. An act which the doer intended or had knowledge would not fall within the category of accident. In Tunda s. Rex[25], two friends were fond of wrestling and participated in a wrestling match. One of them sustained injuries which resulted in his death. The other person was charged under section 304A, IPC. The Allahabad HC held that when the two agreed to wrestle with each other, there was an implied consent on the part of each to suffer accidental injuries. Hence the act was held to be accidental and incidental.
In State Government of Madhya Pradesh vs. Rangaswamy[26], the accused fired at an object from a distance of 152 feet. To his horror he found out that he had shot a human being. The accused pleaded that he was under a bona fide belief that the object fired at was a hyena which he saw the previous day. At the time of shooting it was raining so he stated that he was not expecting a human being there. It was held that the act of causing death was a pure accident and accused was protected under section 80.
In State of Orissa vs. Khora Ghasi[27], the accused was watching his maize field at night. He heard some noise from the field and entered the same thinking that there was a bear, he shot an arrow in the direction of the noise. The arrow hit the deceased who had entered the field stealthily in order to commit theft. The HC held that the act was an accident and hence the accused was acquitted.
In Amarendra vs. State of Karnataka[28], the accused had fired at the deceased. The accused pleaded that it was an accident as the reaper swung by the deceased at the accused struck the gun. However no reaper was recovered from the place of occurrence. Further, the evidence of the ballistic experts ruled out that the firing took place from a short distance. Evidence was also found that there was a dispute between the accused and deceased. The SC held that the act of accused by intentional and accidental. He was convicted under section 302 and sentenced to life imprisonment.
A lawful act in lawful manner by lawful means If an act done is not lawful or not done in a lawful manner by lawful mean, in that case this section shall have no application. In Karali Bauri vs. Subhas Das Musib, it was held that if a blow is aimed at another individual unlawfully, and it strikes another and kills him, the accused cannot be protected under section 80.
Illustration: An accused kicked a trespasser in order to draw him out of the house, as a result of which the person dies. It was held that the person was guilty of man slaughter as a kick is not a justifiable method of stopping a person from trespassing.
Proper care and Caution
For an act to fall within this section there need not be utmost care but sufficient care that a prudent and reasonable man would take is expected to be taken. One of the primordial requirements of the section is proper care and caution, and the amount of care and caution must be that of a prudent man.
In Bhupendrasinh A Chudasama vs. State of Gujarat[29], the accused constable, along with the head constable was on patrol duty on the dam site, which was in danger on the account of heavy rainfall. The accused took a plea that the saw a fire and hence fired. The accused shot at a close range without knowing the identity of his target. The SC held that the act was done without taking proper care and caution. His conviction for murder was upheld and he was sentenced for life imprisonment.
In Shankar Narayan Badholkar vs. State of Maharashtra[30], the Supreme Court refused to give benefit of Section 80 to a person who picked up a gun, unlocked it, loaded it with cartridges and shot dead one of the invitees of dinner at his place. It held that the act of the accused was without proper care and caution.
INFANCY
Section 82 and 83 confer immunity from criminal liability to a child offender. This immunity is based on principle of juvenile justice, i.e. infancy is a defect of the understanding, and infants under the age of discretion ought not to be punished by any criminal prosecution whatsoever. An act committed by a child less than seven years of age is not an offence[31]. This section absolves a minor below the age of 7 years of age from criminal liability. The section is based on the rule that the minor below the age limit as provided is incapable of distinguishing between right or wrong and so no criminal responsibility is fastened upon him or her. It is presumed that a child below 7 years of age is Doli Incapax, he is incapable of committing a crime and cannot be guilty of an offence. A child lacks the adequate mental ability to understand the nature and consequence of his act and thereby an ability to form the required mens rea. In the case of Hira lal Mallick vs. State of Bihar[32], a boy of 8 years of ages a hidden disk of gold weighing 28 tolas. He did not report the same to the collector as required under the Indian Treasure Trove Act, 1878. The Patna High Court ruled that the boy was protected under section 82, IPC from being convicted under the above mentioned act.
This section provides a complete immunity to a minor below the age o f 7 years from criminal liability. It is to say that a child under such age cannot form the necessary intention to constitute the crime since he possesses no adequate discretion or understanding at this age. So, if a child below 7 years is charged with committing a crime then the answer to the prosecution is ipso facto the age of the child being under 7 years.
An act which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion[33].
A child above seven years of age and under twelve:
This section presumes that a child above 7 years and below 12 years of age is Doli Incapax, he is incapable of committing a crime and cannot be guilty of an offence. But the presumption in this case is rebuttable; the same can be rebutted by proof of “mischievous discretion” of the child. Liability of such a child depends upon his maturity of understanding of the nature and consequences of his act and not his age. The defence must prove that the child was not only below 12 years of age but also had not attained the requisite maturity to understand the consequence of his conduct. The presumption of innocence of a child is based upon the principle that ‘younger the child in age, the lesser the probability of being corrupt; i.e. immaturity of the intellect. This is to say that malice makes up for age; militia supplet aetatem. Hence, the more the age advances the maxim loses its force. The maturity can be understood from the nature of the act and his subsequent conduct and other factors.
In the case of Ulla vs. King[34], the accused, a girl of about 10 years of age was scolded by her father-in-law and her husband attempted to beat her. After a few days of the incident she struck her husband on his neck with a sharp instrument while he was asleep, which resulted in his death. After the assault she ran away and concealed herself. Judging from her conduct before and after the incident the court concealed that she was Doli Incapax, he is incapable of understanding the nature of the act and hence was held guilty for murder.
Sufficient maturity of understanding:
The court has to ascertain if the child has sufficient maturity of understanding, so as to understand the nature and consequence of his conduct. The terms consequence of conduct does not mean penal conduct but natural conduct of the same. The proof of attainment of sufficient maturity can be arrived at by a court on the consideration of all the circumstances of the case. It can be inferred from the nature of the act and the subsequent conduct and other allied factors. It need not be proved by the prosecution by positive evidence.
Determination of age of an accused juvenile:
Three issues have always cropped up before the court; first is the relevant date, the date of commission of offence or the date on which the accused was brought before the competent authority or the court for confirming the age. The second is the nature of evidence that is required to prove the age of juvenile. Third, the stage at which the plea of the person being a juvenile can be taken.
In Umesh Chandra vs. State of Rajasthan[35], in case of non compliance of statutory provisions, conviction of a child below 18 years of age will be set aside. One of the accused, Arvind singh was charged with murder under sections 302 r/w 149 and for causing hurt of grievous nature under section 324 of IPC of the IPC for using arms and ammunitions without license. He was 13 years old on the date of occurrence of the crime. The Supreme Court while dealing with the Rajasthan Children’s Act, 1970 held that the relevant date for the applicability of the act is the date of occurrence of the offence. In Arnit Das vs. State of Bihar[36], the SC held that the crucial date for finding out the age is the date on which the juvenile accused is produced before the court. But later a 5 judge bench overruled the opinion and refused on answer the question on the relevant date.
In Bhoop Ram vs. State of UP[37], the Supreme Court was dealing with a case where there was a conflict in respect of the age between the school certificate produced and the medical certificate of the doctor. The school certificate stated that the person was below 16 and themedical certificate stated that he was above 16 years. The court held that there are chances of error in case of the medical certificate and that there is no reason to doubt the school certificate and the same was relied on. The accused was treated as a minor.
In Bhola Bhagat vs. State of Bihar[38], the Supreme Court observed that when a plea is raised on behalf of an accused that he was a child at the time of commission of the offence, it becomes obligatory for the court in case it entertains any doubt about the age as claimed by the accused , to hold an enquiry for determination of the same. Keeping in mind the socially oriented legislation it is the duty of the court to examine the plea. The Apex court also stated that whenever there is any plea in the high courts or the subordinate courts the same must be enquired into in order to decide the age of the accused.
INSANITY
Insanity or mental abnormality is one of the general exceptions to criminal liability. It is based on the principle of mens rea. By the virtue of the maxim actus non facit reum nisi means sit rea, an act forbidden by penal law is not punishable if it is unaccompanied by a guilty mind. An act which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law is not an offence.
The justification for providing unsoundness of mind as a complete defence is that an insane person is incapable of forming a criminal intent.
In the M’Naghten case, the accused Daniel M’Naghten suffered from a delusion that Sir Robert Peel, the then PM of Britain had injured him. He mistook Edward Drummond to be Sir Robert Peel and shot him, which resulted in his death. The accused took the plea of insanity stating that he was not in control of his actions. His acquittal lead to a public uprising, which made the House of Lords debate the topic. The House of Lords laid down the following principles:
1. Every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crime until the contrary is proven.
2. To establish the defence of insanity, it must be clearly proven that at the time of committing the crime the person was insane to the extent of not knowing the nature and quality of the act he has done and that the same was wrong.
3. The test of wrongfulness of the act is in the power to distinguish right and wrong, not in abstract or in general, but in regard to particular committed.
Unsoundness of the mind has not been defined under the act, although there is no difference entomologically in the terms insanity and unsoundness of mind meaning ‘defect of reason arising from a disease of the mind’.
ELEMENTS OF SECTION:
The accused in order to seek the protection of this section must prove that he was incapable of knowing the nature of the actor the act was contrary to law or the act was wrong.
Unsoundness of Mind:
The term has not been defined under the act. It means a state of mind in which as accused is incapable of knowing the nature of the act. But, it has been equated by the court to mean insanity. For this section the insanity should be such that it completely impairs the cognitive faculty of the mind. This section applies to the cases of fits of insanity and lucid intervals. There are no hard and fast rules to identify the kind of insanity recognised by the courts. The same depends upon the opinions of various courts for the same. In re Manickam[39] the Madran High Court decided that hallucination or delusion are not included and such a person cannot get protection of this section. In re Pappathi Ammla[40], sleep walking has been included.
Dayabhai Chagganbhai Thakkar vs. State of Gujarat[41], the accused was convicted under section 302 of the IPC, for murdering his wife. One night the neighbours of the accused could hear the loud screams of the wife of accused and once they reached their house, they forum the room locked from inside and the accused and his wife were in the room. After the accused opened the door, the neighbours found that the wife was dead with 44 stab wounds on her body. The plea of insanity was rejected on the ground that the statement made by the accused to police immediate after the incident took place showed no sign whatsoever of the person being insane. The Supreme Court held that the evidence on record was not sufficient to produce a reasonable doubt that the accused committed the act under the fit of insanity. The nature and extent of insanity of the mind should be such that it would make the offender incapable of knowing the nature of the act.
Ashiruddin vs. King[42], the Calcutta HC allowed the defence of insanity under this section on the ground that the accused had sacrificed his son of 5 yrs while acting under the delusion of a dream. The accused had a dream that he was commanded by someone to sacrifice his son of 5 years of age. The man next morning killed his son by thrusting a knife in his throat. The Court held that the section has 3 basic elements:
1. That the nature of the act was unknown to the accused.
2. That the act was not known by him to be contrary to law.
3. That the act was not known to him to be wrong.
Ratan Lal vs. State of Madhya Pradesh[43], the appellant set fire on grass in open land of nemichand at the time of the setting sun. He was caught on the spot setting fire. On being asked why he was setting the land on fire, he replied that he did it because he wanted to and that he may do what he wishes to. The HC held the accused liable for an offence under section 435 and convicted him. The SC reversed the judgement of the HC and held that the behaviour of the appellant insanity within the meaning of the section.
Sheralli Wali Muhammad vs. State of Maharashtra[44], the accused having killed his wife and daughter with a chopper, locked himself inside the house and shouted ‘save my wife and child’ and ‘call the police’. When the door was open he was found standing inside with a chopper in his hands and the bloodied bodies were lying there and the moment the door was opened he tried to run away. A plea of insanity was rejected on the ground that neither absence of motive or his attempt to escape the scene was indicative of his being insane as under the section.
Presumption of Sanity:
The court will presume that every person is sane and in full control of all his facilities until the contrary is proven. As per section 105[45] of the Indian Evidence Act, the burden of proving the existence of the circumstance within the general exceptions under the IPC is upon the person and the court shall presume absence of such circumstance. The Supreme Court laid down the following propositions:
1. The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea and the burden of proving the same always rests on the prosecution.
2. There is a rebuttable presumption that the accused was not insane when he committed the crime in the sense laid down under this section: the accused may rebut it by placing the same before the court along with all the evidence.
3. Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind f court as regards, one or more of the ingredients of the offence, including mens rea of the accused and in case court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged[46].
INTOXICATION
Intoxication is quite strongly associated with crime and violence. The effect of intoxication on human brain is that of a depressant from the beginning. A person who may have committed a crime under the influence of intoxication may have otherwise led a normal and responsible life. Convicting a person who is under the influence of any intoxicant may appear harsh. A combined reading of Section 85 and 86 revels that a law relating to involuntary intoxication or drunkenness as a defence to criminal charge while the latter deals with criminal liability of voluntary intoxicated person when he commits an offence under the influence of self administered intoxicant.
INVOLUNTARY INTOXICATION:
Any act which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will[47].
If at the time of committing an offence, he was incapable of knowing the nature of the act or that he was doing something wrong or contrary to law by the reason of intoxication, provided that intoxicant was administered to him without his knowledge or against his will.
The following are the requirements for applicability of section 85:
1. Incapable of knowing the nature of the act committed
2. That he was doing something that was either wrong or contrary to law.
3. That the thing which intoxicated him was administered to him without his knowledge or against his will.
Incapable of knowing the nature of the act:
It must not only be established that the intoxicant was administered without his knowledge or against his will but also by reason of such intoxication the person concerned was incapable of understanding the nature of the act or that he is doing is wrong or contrary to law. In the case of Chet Ram vs. State of Himachal Pradesh, it was held that merely proving the fact that an intoxicant was administered to him without his knowledge or against his will does not qualify for exemption. Simply because his mind was so affected by the intoxicant that he readily gave way to some violent passion also does not bring him within the window of this section.
Without his knowledge or Against his will:
These terms in this section denote that the intoxication so taken place should be involuntary. Without his knowledge means that the person concerned is ignorant of the fact that what is consumed by him is an intoxicant or is mixed with intoxicant. Against his will mean that the person was forced or coerced into consuming the intoxicant[48].
VOLUNTARY INTOXICATION:
An act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will[49].
This section deals with immunity of a self intoxicated person when he commits an offence requiring particular knowledge or intention as a definitional ingredient, on part of the accused. It provides that if an offence requiring such an intention or knowledge is committed by a self intoxicated person only knowledge (and no intention) of the offence on his part will be presumed.
In the case of State of Maharashtra vs. Ashok Yashwant Atigre[50], the Bombay HC held that a person seeking protection under section 86 is required to show that the degree of his intoxication made him incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. Intoxication short of this degree shall not attract this section.
In the case of Sohon Manihi vs. State of Bihar[51], it was held that this section demands the accused to prove that the intoxication was not voluntary and that he by the reason of intoxication lost mental equilibrium to distinguish right from wrong or nature of act being committed by him.
Voluntary intoxication and Intention:
This section makes distinction between intention and knowledge. The first part of the section deals with intent or knowledge and the second part only deals with knowledge. Knowledge that a voluntarily intoxicated person is expected to have is that of a person who is not intoxicated, and so far as intention is concerned, it is to be gathered from the attending general circumstances of the case, paying due regard to the degree of intoxication.
In Basdev vs State of Pepsu[52], a retired military officer was charged with murder of 15 years old boy. Both of them, and other people from the same village attended a marriage. All of them went to the brides house to take mid day meals. Some had settled in their seats and some had not. The drunk and heavily intoxicated accused asked the boy to step aside so that he could take a convenient seat, when the boy did not step aside the person took out his pistol and shot the boy in his abdomen. The evidence showed that the accused was incoherent and staggered. But it also showed that he was able to walk on his own, it proved that he went to the bride’s house on his own and also chose his own seat and after injuring the deceased he tried to escape from the place. Based on all these facts the Supreme Court concluded that there was no proved incapacity in the accused to form an intention to cause bodily injury sufficient in ordinary circumstances to cause death. In other words he intended to inflict bodily injury and such injury was sufficient to result in the person’s death. The apex court also laid down the following guidelines:
1. The absence of understanding of the nature and consequence of an act whether produced by intoxication or otherwise is a defence against a crime.
2. Evidence of drunkenness of the accused that provides that the accused was incapable of forming a specific intention essential to constitute an offence should be taken into consideration along with other proved facts, to determine whether the accused had intent.
3. The evidence of drunkenness falling short of a proved incapacity to form an intention, and merely establishing that his mind was affected by drink and that he gave way to violent passion does not rebut the presumption that the man intends the natural consequence of the act.
In Sarthi vs. State of Madhya Pradesh[53], three drunken accused persons had overpowered the deceased and rendered him unconscious by rough handling. They had thus, a specific intention to cause grievous hurt, but the intention became dubious when the accused hanged him from the ceiling without trying to find out if he was dead or alive. The recklessness and gross negligence on the part of the accused, under the state of intoxication, gave accused the benefit to be convicted under culpable homicide not amounting to murder under section 304 instead of section 302.
ABETMENT
A person who does not himself commit a crime may however command, urge, encourage, induce, request or help a third person to bring it about and thereby be guilty of an offence of abetment. Chapter V of the IPC provides for the law governing the liability of all those considered in law to have abetted the commission of an offence. It has often been said that many crimes are not possible with the co-operation of others. The offender does not get the same confidence that he gets when working with other people. In this case there is a clear involvement of a third person who pursues the other to commit the crime. One needs to identify the degree of involvement of such a person. Therefore, abetment has been categorised as a separate offence by the legislature.
Abetment as defined under IPC
Section 107 says that a person abets the doing of a thing firstly, if he instigates any person to do that thing;
secondly, if he engages with one or more persons in any conspiracy for the doing of that thing, and if by such conspiracy any act or omission takes place in pursuance of that conspiracy; thirdly, if he aids, the doing of that thing.
Explanation 1 of the section says that the act is said to be instigation if a person wilfully misrepresents or conceals a material (important) fact which he has the duty to disclose, voluntary does not disclose or causes the doing of a thing.
Explanation 2 of the same section explains what constitute the doing of an act. It explains that if any person either prior to the act or at the time of doing the act does anything in order to take the act to its commission is said to be doing the act.
The definition of abetment in this chapter is in general in nature. It involves the active complicity on the part of the abettor at the point of time prior to the actual commission of the crime and it is the essence of the crime that the abettor should substantially assist the principle culprit. The abettor gets the act by the guilty agents. Mean rea is an essential precondition. In Shrilal vs. Madhya Bharat[54], it was held that in order to convict a person of abetting the commission of crime, it is not only necessary to prove that he has taken part in those steps of transaction which are innocent, but in some way or the other, it is absolutely necessary to connect him with those steps of transaction which are criminal. In Barendra Kumar Ghosh vs. King Emporer[55], it was held that the presence of a person at the scene of occurrence does amount to abetment if it is intended to encourage the commission of offence. Mere proof that the crime charged could not have been committed without the interpretation of the alleged abettor is not enough.
Abetment by instigation: the first form of abetment is by instigation. To instigate means to provoke, urge or bring about by persuasion. Such instigation may be in any form, law does not need instigation to be in any particular form, but there must be close causal relationship between instigation and the act committed.
Illustration: A says to B, I am going to kill C and B replied do you wish and take the consequence where upon A kills C, B cannot be said to have instigated A.
In the case of Ram Kumar vs. State of Himachal Pradesh[56], it was held that instigation has a wide meaning, it also includes instigation by conduct of the husband. It was conduct of the husband that abetted the commission of rape on wife. In some cases approval of an act leads to an instigation in a particular circumstance. For e.g. If a women is preparing her for committing sati and people chant sati mata ki jai, in that case the same shall be a case of instigation by approval.
Abetment by Conspiracy: A person is said to abet the commission of a crime by conspiracy, if he enters into an agreement with one or more persons to do an illegal act and some act is done in pursuance thereof.
Illustration: A, a servant enters into an agreement with thieves to keep the door of his master’s house open in the night to commit theft. In furtherance of the agreement A keeps the doors open and theft takes place. A is guilty of abetment by conspiracy.
In the case of Saju vs. State of Karnataka[57], it was held that in order to prove abetment by conspiracy, the prosecution is required to prove that the abettor has instigated the doing of a particular thing in conspiracy for doing the illegal act or omission.
Abetment by aid: A person is said to abet the commission of an offence, if he intentionally renders assistance or gives aid by doing an act or omitting to do an act. Mere intention to render assistance is not sufficient. Aid can be given by both an act of commission as well as an act of illegal omission. In the case of Faguna kant Nath vs. State of Assam[58], a police officer knowing that a certain person was being tortured for extorting information out of him, kept himself away from the place, he was held liable for offence of extortion by omission of act.
Abettor and Liabilities of an Abettor:
Meaning: A person abets an offence, who abets either the commission of an offence or the commission of an act, which would be an offence, if committed by a person capable by law committing that offence with the same intention or knowledge as that of the abetto[59]r.
Abettor could be an instigator or conspirator or person aiding a conspiracy. If the thing abetted is not an offence then the person abetting will not be considered as an abettor within the meaning of section 108.
Explanation I: Abetment of illegal omission: The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be found to do that act. In this case the abettor himself is not bound to do the act. Eg: If a private person instigates a police officer to leave a place a cognizable offence is being committed.
Explanation II: Effect of abetment is Immaterial: To constitute the offence of abetment it is not necessary that the abetment should be committed or that the effect necessary to constitute the offence should be caused. Abetment in this category depends upon the instigation and not its effect upon another. The abettor shall be liable even if the offence is not committed.
In the case of State of Maharashtra vs. Pandurang Ramji[60], A instigated B to murder D, in furtherance B stabs D but D recovers from the injury. A is guilty of instigating B to murder D even though the offence actually did not take place.
Illustrations: A, instigates B to murder C, B refuses to do so. A is guilty of abetting B to murder C.
Explanation III: Person abetted need not be capable of committing an offence: It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge. It is clear that even employment of a legally incapable agent to commit an offence does not absolve the abettor from a criminal liability.
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 of committing an offence and having the same design as A. Here A, whether the act be committed or not, is guilty of abetting an offence.
Explanation IV: Abetment of an offence is an abetment: the abetment of an abetment is an offence.
Illustration: A woman asks a physician to supply her with poison to help her to poison her son-in-law. If the physician supplies her poison he would be intentionally aiding her and thus abetting her to commit the murder of her son-in-law.
Explanation V: Abettor need not concert in abetment by conspiracy: It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.
Liability:
Section 109 and 110 provide for the punishment of abetment if the act has been committed in consequence of the abetment. Sec 109 is of a general nature and provides that if the act abetted is committed in consequence of the abetment, the abettor will be held liable for the punishment to the same act as provided for the offence. This section becomes applicable even if the actor is not present when the offence was committed. However a charge under section 109 has to be along with other substantive offences[61]. In the case of Sheo Barhi, it was found that the two accused and the approver conspired to commit theft and in pursuance of that conspiracy to kill, in order to enable them to commit theft. But there was no direct evidence as to who gave the fatal blow. It was held that the accused were guilty of abetment of murder under sec 302 r/w 109.
Section 110 provides for punishment of abetment in case where the person abetted does the act with intention or knowledge different from that of the abettor. In this case the punishment shall be for the offence which would have been committed had the person abetted acted with the same intention or knowledge of the abettor. Variation between the intention and knowledge of the abettor and abetted is immaterial so long as the act is committed.
Section 111 provides for the liability of abettor when one act abetted and different act done. In that case abettor shall be liable for the act done, in the same manner and to the extent as if he had abetted it, provided the act abetted was:
-
a probable consequence of abetment and
-
was committed under the influence of abetment or in pursuance of a conspiracy
Probable consequence may be an act which is likely or reasonably expected to follow from another.
Section 112 provides for the cumulative punishment of the act done and the act abetted. If in addition to the offence for which the abettor is liable in section 111, the offence for which the abettor had actually abetted has also been committed; in that case the abettor shall be liable for both the offences.
Section 113 provides for the liability of the abettor in cases where the effect of the act abetted is different from that intended. In this case the abettor is liable for the effect caused and not the effect intended in the same manner and to the extent as if he had abetted the act with intention of causing that effect, provided he knew that the effect caused was likely. There is a requirement of the “knowledge of likelihood” of the resultant intention.
Section 114 provides for the abettor being present at the time of commission of the offence. When and abettor is present at the time of commission of an offence abetted by him in that case he shall be punishable as if he himself has committed the offence.
Essential ingredients:
-
Abetment should be prior to the commission
-
Abetment must be complete by itself
-
Abettor must be present at the time of commission of the act.
This section is evidentiary in nature and not punitive because it establishes a presumption which is irrebuttable that actual presence and prior abetment means nothing but prior participation[62].
Section 115 and 116 provides for the punishment in case where the offence is not committed in consequence of abetment. Section 115 provides for punishment of abetment of an offence punishable with death or imprisonment for life, if offence not committed. In such a case if the code does not prescribe any specific punishment, then the abettor shall be punishable with imprisonment extending up to 7 years and fine. And if any act for which the abettor is liable in consequence of abetment which causes any hurt to the person, the punishment in that case shall be imprisonment extending up to 14 years and fine.
Section 116: Punishment for abetment of offence punishable with imprisonment for any term, not committed. Punishment in this case shall be imprisonment for one fourth part of the longest term provided for that offence, or with fine. if the abettor or person abetted is a public servant whose duty is to prevent offences the abettor shall be punished with imprisonment of any description for the offence, extending to one half of the longest period of the imprisonment.
Illustration: A offers B, a government official bribe, B does not take the same. A is liable under this section.
CRIMINAL CONSPIRACY
Under the Indian Penal code the law on conspiracy comprises of the following:
· Conspiracy as a substantive offence (sections 120 A and B)
· Conspiracy as a form of abetment (section 107 secondly)
· Conspiracy to wage, attempt to or abet was against the government of India (Section 121A)
MEANING OF CONSPIRACY:
Sections 120A and 120B deal with the offence of criminal conspiracy. The former section defines the term criminal conspiracy and the latter section provides the punishment for the offence of criminal conspiracy.
Definition of Criminal conspiracy: when two or more persons agree to do, or cause to be done,
· An illegal act, or
· An act which is not illegally by illegal means, such an agreement designated a criminal conspiracy:
provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some acts besides the agreement in done by one or more parties to such agreement in pursuance thereof.[63]
Main ingredients of s. 120A:
1. Two or more persons;
2. Agreement between themselves;
3. Agreement must be to do or cause to be done:
a) An illegal act or;
b) A legal act by illegal means.
The proviso to sec amplifies the scope of the liability of the section:
· In the case of conspiracy to commit an offence, mere agreement is sufficient to impose liability without the requirement that some overt act be committed in furtherance.
· In case of conspiracy o commit a legal act by illegal means, there ought to be some overt act apart from the agreement.
Two or more persons: to constitute an offence of conspiracy there must be an agreement of two or more persons to do an act which is illegal or which is to be done by illegal means[64]. There must be meeting of minds of two or more persons for doing such an act. The first stage of meeting of minds is sharing of information, followed by formation of intention for commission of the offence. All the conspirators need not participate right from the inception of the conspiracy. In furtherance of the conspiracy if the conspirators act independently towards the illegal act, all of them shall be liable.
In the case of Bimbadhar Pradhan vs. State of Orissa[65], the appellant, a Government servant and four other accused who were his subordinates were charged under section 120B r/w Sections 409 and 477 IPC. All accused entered into a conspiracy to misappropriate government funds placed at their disposal and in pursuance of the conspiracy they misappropriated the funds and also falsified the records. One accused turned approver and the rest were acquitted on benefit of doubt. Held, that the conviction of the appellant was absolutely justified. The very requirement of the concept of agreement as embodied under section 120A is satisfied when the charge proves the presence of appellant and approver in the act of conspiracy.
Agreement between the two to do or cause to be done an illegal act or a legal act by illegal means: conspiracy is a substantive offence the gist of which is the agreement between the two or more persons. The essence of the agreement is to break the law. The agreement may be made to carry out a number of illegal acts. The same is continuing offence and shall continue till the time the agreement to commit unlawful act remains. There must be unity of purpose; existence of plurality of means and methods is immaterial. When an offence is committed by different persons acting in same manner but independently, it cannot be said to be a conspiracy.
SECTION 34 AND 120A IPC
There is not much difference between conspiracy as defined under section 120A and acting on a common intention under section 34. While in the former the essential is the bare engagement and association to break the law even though the illegal act does not follow, whereas for section 34 it is the commission of a criminal act in furtherance of the common intentions of all the members, which means there should be unity of criminal behaviour resulting in something for which an individual shall be punishable.
In the case of section 120A, one person cannot be convicted where as in case of section 34 one person may be convicted as each person is responsible for the acts of all.
Proof of Conspiracy:
Section 120A must be read with section 10 of the Indian Evidence Act, which states that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence; anything said, done or written by any such person in reference to their common intention, after the time when the common intention was first entertained by any one of them is a relevant fact against each of the persons believed to be so conspiring as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that such a person was the party to it. It must be kept in mind that because conspiracy is hatched in utmost secrecy, it is almost impossible to find direct evidence. Conspiracy may be proved by circumstantial evidence, as it is the only type of evidence available to prove conspiracy. The onus to prove conspiracy is on the prosecution.
PUNISHMENT FOR CRIMINAL CONSPIRACY
-
Where two or more persons hatch a conspiracy to commit an offence punishable with death, or imprisonment for life, or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
-
Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both Section 120B is to be read with section 196 if Cr.P.C. it mandates the court to not take cognizance of criminal conspiracy to commit offence punishable with imprisonment of a term more than 2 years without a prior sanction in writing of the state government or district magistrate[66].
GENERAL EXCEPTIONS:
To constitute a criminal liability, as per Indian Penal Code- there should be the presence of two elements- “actus reus” and “mens rea”. This principle is very well understood through the maxim, actus non facit reum mens sit rea, which means, ‘an act does not make one guilty, it has to be accompanied by a guilty mind.’ The IPC has incorporated this maxim in two ways, firstly, by the inclusion of “mens rea” in the definition of an offense, and secondly through the chapter titled General Exceptions, given in Chapter IV of the IPC. This chapter includes sections 76 to 106 and exempts or absolves the criminal liability of certain persons. These sections help the accused to offer a defence against the prosecution’s allegations. These general exceptions can be categorized into two- excuses and justifications.
-
Excuse
-
Justification
The burden of proving that the case falls within one of the general exceptions is on the accused.[1]
a) Consent:
The maxim of ‘volenti non fit injuria’ has some role to play in criminal law. Although the word consent is not defined anywhere in the Indian Penal Code expressly, Sections 87 to 93 of the Code deals with consent as a general exception. Section 90 talks about what is not considered consent in the Code.
Section 87. Act not intended and not known to be likely to cause death or grievous hurt, done by consent— Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
Elements of Section 87:
1. Mens Rea should be absent.
2. Consent as a defense cannot be taken up when death and grievous hurt is intentionally caused. Nevertheless, the consent of the deceased can act as a mitigating factor.
3. There should be an absence of the knowledge that the act is likely to cause death or grievous hurt on the doer's part.
4. A person suffering the harm should give consent. The person giving consent should be above 18 years of age.
5. The consent can be either express or implied. The term implied consent means- a) consent by act and conduct b)consent presumed, though not given or signified in any way
6. Consent is irrelevant in the cases where the offense is too grave and of a public character.
7. Whether consent was given or not, is a matter of facts and circumstantial evidence.
Sections 88, 89 and 92 deal with situations where the harmful act is done to a person in good faith for her own benefit.
Section 88. Act not intended to cause death, done by consent in good faith for person’s benefit—Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
Illustration: A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death and intending in good faith, Z's benefit performs that operation on Z, with Z's consent. A has committed no offense.
Section 89. Act done in good faith for benefit of child or insane person, by or by consent of guardian—Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person:
Provided—
(First) — That this exception shall not extend to the intentional causing of death, or to the attempting to cause death;
(Secondly) —That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;
(Thirdly) — That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it is for the purpose of preventing death or grievous hurt or the curing of any grievous disease or infirmity;
(Fourthly) —That this exception shall not extend to the abetment of any offense, to the committing of which offense it would not extend.
Section 92. Act done in good faith for benefit of a person without consent—Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit.
Provided—
(First) — That this exception shall not extend to the intentional causing of death, or the attempting to cause death;
(Secondly) —That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;
(Thirdly) -— That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;
(Fourthly) —That this exception shall not extend to the abetment of any offense, to the committing of which offense it would not extend.
·All these three sections require that the act causing harm should be accompanied with no intention to cause death. Section 89 deals with acts for the benefit of children below 12 years of age, persons of unsound mind, and where a guardian with a lawful charge has given consent.
To avail exemptions under these sections, the following is needed-
1. No intention to cause death.
2. The act should be done for the benefit of the person concerned, i.e. it should be done in good faith. Section 52 of the IPC describes good faith.
Section 91. Exclusion of acts which are offences independently of harm caused—The exceptions in sections 87, 88 and 89 do not extend to acts which are offenses independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.
In the cases where the act committed with consent is itself illegal, then acts such as these will not fall under sections 87, 88 and 91 of IPC.
b) Good faith:
Section 52. “Good faith”—Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.
Sections 88, 89 and 92 take into account good faith, as discussed above. Therefore, a person committing an act is discharged from the criminal liability, if the person committing the criminal act which is likely to cause any harm or injury, does it in good faith, with or without consent, for the benefit of the sufferer.
Section 93 discusses communication made in good faith.
Communication made in good faith—No communication made in good faith is an offense by reason of any harm to the person to whom it is made if it is made for the benefit of that person.
Essentials of this section are-
1. The communication is to be made in good faith.
2. It should be for the benefit of the person to whom it is disclosed. ‘Benefit’ includes personal, pecuniary and spiritual benefit.
3. Private defense against body and property:
The basis-
I. Self-preservation is the prime instinct of every human being.[2]
II. Social purpose- It helps to develop the right spirit in the citizens. There is nothing more degrading to the human spirit than to run away in the face of peril.[3]
The provisions regarding private defense are found in sections 96 to 106 of the IPC. The right to private defense has been restricted to offenses against the human body and those relating to aggression on property.[4]
Section 96. Things done in private defence—Nothing is an offence which is done in the exercise of the right of private defence.
Section 97. 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—
(First) — His own body, and the body of any other person, against any offence affecting the human body;
(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 an attempt to commit theft, robbery, mischief or criminal trespass.
-- The right of private defence is a defensive and not a punitive right.
-- It cannot be exercised to punish the offender who has committed an offense.[5]
-- No aggressor can claim the right to private defence.
-- In a free fight, (where the parties entered mutually with the interest of harming each other) no right of private defence is available to either party and each individual is responsible for his own acts.
-- This right is not available against a lawful act.
-- As to unlawful assembly and private defence, the law is that when five or more persons come together to form an assembly, in order to exercise their right of private defence (in respect of their person, body or property), such an assembly is not an unlawful assembly.
Section 98. Right of private defence against the act of a person of unsound mind, etc—When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.
Section 99. Acts against which there is no right of private defence—There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
Extent to which the right may be exercised.—the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
No private defence is available against any act or attempt to commit any act by a public servant. Public servant is defined in Section 21 of the IPC. This section cannot be exercised when there is time to have recourse to the protection of public authority. This right is also subject to the condition that no harm more than necessary to prevent the attack is caused.[6]
Section 100. When the right of private defence of the body extends to causing death—The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—
(First) — Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
(Secondly) —Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
(Thirdly) — An assault with the intention of committing rape;
(Fourthly) —An assault with the intention of gratifying unnatural lust;
(Fifthly) — An assault with the intention of kidnapping or abducting;
(Sixthly) — An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
Four important conditions to be satisfied in this section:
1) The accused must be free from fault in bringing about the encounter.
2) Impending peril to life or great bodily harm, either real or apparent to create an honest belief of an existing necessity.
3) There must be no safe or reasonable mode of escape by retreat.
4) There must have been a necessity for taking life.[7]
Section 101. When such right extends to causing any harm other than death—If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death. The right of private defence of the body will extend to causing the death of the assailant only in situations mentioned in Section 100 of IPC.
Section 102. Commencement and continuance of the right of private defence of the body—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.
The right of private defence under this section does not commence unless there is a reasonable apprehension.[8]
A person cannot avail the benefit of this section if he continues her attack even when the apprehension of the danger becomes past.[9]
Section 103. When the right of private defence of property extends to causing death—The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:—
(First) — Robbery;
(Secondly) —House-breaking by night;
(Thirdly) — Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;
(Fourthly) —Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
Section104. When such right extends to causing any harm other than death—If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.
Example: The accused party was the owner of some land. The claimant attempted to forcibly cut down the crops and take away the harvest. He did not possess any weapon and there could not have been any fear of death or grievous hurt. On this reasoning, Section 104 of the IPC was applied by the Court in this case.[10]
Section 105. Commencement and continuance of the right of private defence of property—the right of private defence of property commences when a reasonable apprehension of danger to the property commences.
The right of private defence of property against theft continues until the offender has affected his retreat with the property or the assistance of the public authorities is obtained, or the property has been recovered.
The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.
The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.
The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.
Section 106. Right of private defence against deadly assault when there is risk of harm to innocent person—If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. Illustration A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.
Section 106 is to be always read in the light of section 100 and certain restrictions with which it operates.[11]
INCOHERENT FORMS OF CRIME
Incoherent forms of crime include some preliminary crimes, which do not reach the final stage of commission. The act is not accomplished but the thought in pursuance of the same is punished. Examples include attempt, abetment, and conspiracy.
a) Abetment is committed when a person urges someone else to commit a crime and he himself does not take part in the said crime. Law relating to abetment is found in sections 107 to 120 in Chapter V of the IPC. In the case of abetment, the incitement that is given to the offender from the abettor is the actus reus and the intention to impel somebody to commit the crime on behalf of the instigator constitutes the mens rea.
b) Attempt- The commission of any crime can be categorised in four- i) intention ii) preparation iii) attempt and iv) the final commission. Attempt to commit any offence is an act or a series of acts, which leads to the commission of the offense, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. It can also be said to be an unfinished but intended crime. Section 511 of the IPC is the sole provision, which punishes attempt to commit a crime.
c) Conspiracy- 120 A and 120 B of the IPC contain provisions relating to criminal conspiracy. The sine qua non of conspiracy is that there has to be some prior agreement between the individuals.
Joint and constructive liability:
The law relating to joint liability is contained in sections 34 to 38 of the IPC. Sections 149, 396 and 460 also contain the element of joint liability. Through the section 34 and 149 of the IPC, criminal liability is imposed on not only a person who commits a criminal act but also on his associates who carry out the act in ‘furtherance of common intention’ or ‘prosecution of common object’. Each one of them becomes jointly liable. The concept of constructive liability is the same as that of joint liability; the law punishes some persons who did not commit a particular offence for reasons such as common intention or common object.
Section 34: Acts done by several persons in furtherance of common intention—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Explanation:
The act of the persons involved might not be similar, what is important is the common intention of the perpetrators. ‘Common intention’ implies a pre-arranged plan and acting in concert pursuant to the plan. The facts and circumstances can only show proof of common intention. It may also develop spontaneously. However, in such cases, there has to be a presence of cogent evidence to impose vicarious liability on the offenders. Common intention is also to be differentiated from similar intention. The same intention of several persons does not constitute common intention unless they share it with each other. The participation in the commission of the offence is an important ingredient of this section, but it is not necessary that it be always through physical presence.
Section 149: Every member of unlawful assembly guilty of offence committed in prosecution of common object—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 of 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 of Section 149:
1. There has to be a minimum of five persons.
2. Common object.
3. The offense was commissioned in the prosecution of the common object.
Section 141 lays down the meaning of unlawful assembly.
Section 141. Unlawful assembly—An assembly of five or more persons is designated an "unlawful assembly" if the common object of the persons composing that assembly is—
(First) — To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legis¬lature 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 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 assem¬bled, may subsequently become an unlawful assembly.
b) Attempt:
The term ‘attempt’ is not defined in the Indian Penal Code. As mentioned above, it only prescribes punishment for attempt in Chapter V of the Code.
The ‘actus reus’ of an attempt is the moment at which the non-criminal planning of an offence turns into a criminal attempt. The ‘mens rea’ involved here is the intention to commit a particular offense, which later falls short of complete commission.
The elements of liability in the case of attempt-
1. There is evidence of liability of some overt act.
2. Mens rea is present.
3. There must have been an interruption caused during the act or series of acts, and had this not occurred, the crime would have accomplished.
Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment—Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment, or to cause such an offence to be commit¬ted, 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 2[imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprison¬ment provided for that offence], or with such fine as is provided for the offence, or with both.
Illustrations to this Section:
(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 has done an act towards the commission of theft and therefore is guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.
Essentials of Section 511:
1. The attempted offence should be punishable under IPC.
2. Mens rea should be present to commit the offense.
3. There should be some act or actus reus towards the commission of that offense.
The Supreme Court in the case of Abhyanand Mishra v State of Bihar laid down the elements of attempt.
Tests for determining whether a particular act amounts to attempt-
Test 1- The Proximity Test- Proximity should be in relation to intention, and not in relation to time and action. An act of the accused is considered proximate, if, though it is not the last act, that he intended to do, is the last act that was legally necessary for him to do, if the contemplated result is afterward brought above without further conduct on his part.
Test 2- Doctrine of Locus Ponitentiae- This doctrine refers to a possibility where a person has made all necessary arrangements to commit a crime but backs out eventually because of a change of heart or some other compulsion or fear. If the accused leaves the scope of desisting from the crime because of some reason, then, he will be taken to be in the stage of preparation only and not attempt.
Test 3- The Equivocality Test- According to this, an act towards the commission of an offense, will be considered as an attempt only if it unequivocally indicates the intention of the person attempting to commit the offense. The acts done by the person accused must speak for itself.
GENERAL EXCEPTIONS
[1] Section 105 Indian Evidence Act.
[2] James Martin v State of Kerala AIR (2004) 2 SCC 203.
[3] Munshi Ram v Delhi Administration AIR 1968 SC 702.
[4] Darshan Singh v State of Punjab AIR 2010 SC 1212.
[5] Deo Narain v State of Uttar Pradesh AIR 1973 SC 473.
[6] Puran Singh v State of Punjab AIR 1975 SC 1674.
[7] Balbir Singh v State of Punjab AIR 1959 Punj 332.
[8] George Dominic Varkey v State of Kerala AIR 1971 SC 1208.
[9] State of Uttar Pradesh v Ram Swarup AIR 1974 SC 1570.
[10] Ghansham Dass v State AIR 1979 SC 44.
[11] State of Karnataka v Madesha (2007) 7 SCC 35.
[1] Section 76
[2] Section 79
[3] Krishna Maharana vs. Emperor AIR 1929 Pat 651
[4] Foley vs. Hill (1848) 153 ER 907
[5] King Emperor vs. Tustipada Mandal AIR 1951 Ori 284
[6] AIR 1959 Ker 151
[7] AIR 1965 SC 722
[8] Section 43 IPC
[9] AIR 1981 SC 1917
[10] AIR 1952 SC 33
[11] Section 52 IPC
[12] Section 3(22) The General Clauses Act, 1897
[13] Section 81
[14] Basdev vs. State of Pepsu AIR 1956 SC 488
[15] Veeda Menezes vs Yususf Khan AIR 1966 SC 1773
[16] AIR 1921 Mad. 458
[17] AIR 1922 Mad. 523
[18] Section 77 IPC
[19] Section 19
[20] AIR 1934 Nag 123
[21] AIR 1965 SC 1651
[22] AIR 1977 SC 809
[23] Section 78
[24] (1999)2 Crimes 169 (Raj.)
[25] AIR 1950 All 95
[26] AIR 1952 Nag 268
[27] (1978) Cr LJ 1305 (Ori.)
[28] AIR 1998 SC 1985
[29] AIR 1997SC 3790
[30] AIR 2004 SC 1966
[31] Section 82
[32] AIR 1977 SC 2236
[33] Section 83
[34] AIR 1950 Ori. 261
[35] (1982) 2 SCC 202
[36] AIR 2001 SC 3575
[37] AIR 1989 SC 1329
[38] AIR 1998 SC 237
[39] AIR 1950 Mad. 576
[40] AIR 1959 Mad. 239
[41] AIR 1964 SC 1563
[42] AIR 1949 Cal 182
[43] AIR 1971 SC 778
[44] AIR 1972 SC 24433
[45] Burden of proving that case of accused comes within exceptions
[46] Dayabhai Chagganbhai Thakkar vs. State of Gujarat
[47] Section 85
[48] Jethuram vs. State of Madhya Pradesh AIR 1960 MP 242
[49] Section 86
[50] (1987) Cr LJ 1416 (Bom)
[51] AIR 1970 Pat 303
[52] AIR 1956 SC 488
[53] (1976) Cr LJ 594 (MP)
[54] AIR 1953 MB 155
[55] AIR 1925 PC 1
[56] AIR 1995 SC 1965
[57] AIR 2001 SC 175
[58] AIR 1959 SC 673
[59] Section 108
[60] (1971) ILR (Bom) 1061
[61] Kehar singh vs. State(Delhi Administration) AIR 1988 SC 1883
[62] Re. Muhammad Levval, AIR 1931 Mad 247
[63] Section 120A
[64] Topandas vs. State of Bombay AIR 1956 SC 33
[65] AIR 1956 SC 469
[66] Yash Pal vs. State of Punjab AIR 1977 SC 2433
Tags:
#divahsprik #divahspriklawnotes #lawnotes #indianpenalcode
#ipc #crime #jurists #actusreus #criminalintent #infancy
#insanity voluntaryintoxication #criminalconspiracy
By: Satamita Ghosh