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Indian Penal Code (IPC notes)
Criminal Law
O.P. Jindal Global University
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Indian Penal Code – Notes CRIMINAL LAW: BASIC CONCEPTS Crime Wrongful Act (Prohibhited by Law) Prosecutiton (Wrong Against Society) Punishment Theories of Punishment: 1. Preventive Disablement: Restraint on freedom / Incapacitating of ACCUSED. 2. Deterrence: To deter crime from SOCIETY and instill fear. 3. Retribution: Quid-pro-quo concept of punishment – eye for an eye type. 4. Reformation: Rehabilitation concept – making person adaptable to society again. 5. Multiple Theory Approach: Borrows the positive from all 4 theories. ESSENTIAL ELEMENTS OF A CRIMINAL OFFENCE UNDER COMMON LAW 1. Actus Non Facit Reum Nisi Mens Sit Rea An act itself is not sufficient for crime without a guilty mind. 2. Actus Reus (physical element): - Legal distinction between act and omission An act forbidden by law. Omission can be Actus Reus. 1 Omission as a subset of Act. All omissions are Act but all Act are not omissions. Person A is drowning; Person B sees and ignores; Person A dies. - B had a moral duty but it is not a crime. - 1 B had a legal duty and here there is OMISSION. Om Prakash V. State of Punjab (Duty towards wife) MOHIT KHATRI (16 JGLS) 3. Mens Rea (mental element) 1 Motive Intention Aim Means/ Act to reach that aim Degree of Mens Rea: Intention Knowledge Reason to believe Recklessness Negligence Guilty Mind / Blame Worthy Intention: - Will / Voluntariness - For finding Criminal Liability, Intention comes 1. Intention: Complete knowledge of Harm and consequences thereof. 2. Knowledge: No Intention, but knowledge of an apparent harm. 3. Reason to Believe: Not particular information, but some reason to believe of the consequences of the act. 4. Recklessness: Higher degree of negligence – aware of consequences. Motive cannot establish / free criminal liability on someone. 5. Negligence: Not aware of consequences. 4. Role of common law ideas like actus reus & mens rea in a codified statute. 5. Causal chain, Causation 6. Doctrine of Transfer of malice Transfer of Motive – A intended to kill B and ended up killing Z – although never intended to kill Z – but due to complete intention to kill B – A liable for the death of Z. MOHIT KHATRI (16 JGLS) 2 The rule of VICARIOUS LIABILITY arises here. In common intention, there is a participation in an act in furtherance of the common intention. But here, just being a member of an act in furtherance of a common object & if someone commit a crime, each member is vicariously liable. In the case of Chittarmal v. State of Rajasthan, SC – clear distinction b/w 34 and 149 – 34, prearranged plan & meeting of minds; common object does not require proof of prior meeting. Ø CASES & READINGS 1. Priya Patel v. State of M. (2006 Cr LJ 3627) Section 34 was not enforced as common intention could not be formed at spur of the moment for this case as a woman cannot rape a man according to the definition. 2. Barendra Kumar Ghosh v. Emperor (AIR 1925 PC 1) Man, outside as a guard to help further any crime inside will also be liable for the same u/s 34 as his participation will be counted. 3. Mahboob Shaw v. Emperor (AIR 1945 PC 118) S. 34 cannot be brought when same act was done by 2 people but not in furtherance of common intention. Common Intention can form at the spur of moment, but in this case, it was not such. 4. Mathew v. State of Travancore-Cochin (AIR 1956 SC 241) 29 members went to a police station with knife & they ended up killing 2 policemen. The Sessions Judge acquitted them under s. 302 read with s. 149 but convicted them on the lesser charges – State appealed against their acquittals under s. 302 read with s. 149 – High Court allowed the appeals against their acquittals and sentenced each of them to transportation for life. SC - Now section 149 applies not only to offences committed in pursuance of the common object but also to offences that members of the assembly know are likely to be committed. It would be impossible on the facts of this case to hold that the members of the assembly did not know that murder was likely to be committed in pursuance of a common object of that kind by an assembly as large as the one we have there. Accordingly, even if the common object be not placed as high as murder the conviction on the murder-cum-rioting charge was fully justified; These answers the main ground of appeal. MOHIT KHATRI (16 JGLS) 4 b. Repentance Test (Locus Paenitentiae) – So long as the steps taken by the accused leave room for a reasonable expectation that he might of his own accord, or fear of the consequences discontinues attempt, he will be treated at the stage of 4 preparation. Court looks at the degree of repentance. A mixes poison in water for Z – till he doesnot give it to Z – its preparation because there are chances of his taking steps back – hence a not guilty of an attempt to murder. c. Social Harm Test – B/w preparation and attempt; harm to society from the act. d. Equivocality Test – Harm speaks for themselves; Weapon in plane. Act done – indicates beyond reasonable doubt – that its end is directed towards commission of offence – it is attempt – or else mere preparation. 3. Impossibility of Attempts a. External impossibility – It suggests that one has moved a step ahead of attempt to the commission of crime itself. Due to external factors, independent of himself, the intended act failed. e. – shooting on a pile of pillows thinking it to be A. b. Internal Impossibility – It suggests that one’s act is still step away from the actual commission of crime, and it is due to his own reasons, that the act intended to do failed – impossibility not independent of person. e. – Giving fake poison to kill (mens rea could not be proved – innocent act) 4. ‘Conspiracy’ (120 A – 120 B) 120 A 2 or more persons agree to do or cause: • an illegal act • legal act but illegal means It needs to be substantive offense – Agreement is a difference between 120A & 107. Here attempt or commission of a crime that was conspired is immaterial. Till it can be proved that there was conspiracy – all are liable. Even if one is caught – but if it can be proved that there were other coconspirators; there was conspiracy – whether they are caught or convicted – immaterial – the one caught will serve his/her part of punishment. Section 120B deals with punishment. 4 Refer Textbook on IPC, Gaur, K., Page 1122. MOHIT KHATRI (16 JGLS) 6 5. A b e t m e n t ( 1 0 7 - 1 2 0 ) I n g • Abetment of abetment is offence – A instigates B to instigate C to murder Z; both are liable for abetment (A and B). • Abetment by conspiracy – abettor need not necessarily plan the offence with the person abetted. Section 109: Punishment for Abetment. There must be abetment of offense; act abetted must be in consequence of abetment; there must be no provision in code for the punishment of such abetment. 5 Queen v. Mohit, Sati case – people chanting Ram also punished for instigation of suicide. 6 House theft example – servant opens the door – abettor himself doesnot come to loot. MOHIT KHATRI (16 JGLS) 7 Section 110: Punishment for abetment; Person abetted acts with different intention from that of abettor – intention & knowledge immaterial – as long as act is same. Section 111: Act (a) abetted, act (b) done; abettor liable for the act done as if he directly abetted the act (b). Given (b) is a probable consequence of abetment. Section 112: Cumulative punishment; act abetted + act done. A tells B to burn C’s granary – B burns C’s granary and while doing so, he puts C’s life under danger – A liable for both offense. – Act abetted must be probable consequence. A tells B to assault C but B Kills C in the process – no probable consequence – A not liable. Section 113: Punishable – even if the act donot cause intended effect – but some other effect is caused. Section 114: If abettor absent during commission of crime – liable for only abetment – If he is present – liable for the offense too. Section 115: When offenses punishable with death / life imprisonment is abetted – but offense not committed. Section 116: When abetted doesnot act, but abettor does, abettor is liable. In 107 (conspiracy), in example Abettor himself did not acted & hence not liable. Section 117: When commission of offense by public or more than 10 people is abetted. Section 118: When conceals the design (place, time, type, etc.) of an offense with the knowledge of it being punishable by death / life imprisonment. E. A aware of dacoity to be done by B at X place – misinforms the cops that it’s been carried out by C, at Z place – A guilty under this section. CASES & READINGS 1. R. v. Robinson [1952] 2 All ER 334 Person wants to defraud his insurance – so he makes a fake theft – on police enquiries, jwellery was found in his house. It was held that the act of (sending a letter to claim insurance), communication started – attempt is made. Whether it reaches to the desired person or not is immaterial. 2. R. v. Shivpuri (1987 AC 1) House of Lords Person charged with knowingly dealing with goods, import of which is prohibited. Instead of the supposed Heroine or drug, it turned out to be some vegetable material. House of Lords observed that it was sufficient to prove that the person knew that the goods concerned were prohibited, and it is immaterial if the person is unsure of the exact nature of good till he believed that he was dealing with prohibited substance. MOHIT KHATRI (16 JGLS) 8 GENERAL EXCEPTIONS (76 - 106) except 91, 93, 94 1. Mistake of Fact and Law (Sec. 76 – 80) Mistake of Facts (Sec. 76, 79) “ignorantia facit doth excusat, ignorantia juris non excusat” Sec. 76 – Deals with two classes of cases where a person is excused from criminal liability on the ground of mistake of facts viz. a. When a person is bound by law to do something and does it, b. When a person believes in good faith, owing to a mistake of fact and not a mistake of law, that he is bound to do something, and does it. Sec. 79 – Immunity to person for his act – justified by law (not bound like 76) – or by mistake of fact in good faith believes to be justified by law. Act of Judge (Sec. 77) Sec. 77 – Judge acting judicially; or in good faith; believes to be following law; nothing is an offense. 7 For fearlessness & independence of administration of justice. Ingredients – Act of judge in discharge of his official duty; within his jurisdiction; good faith. Act done in pursuance of court order (Sec. 78) Sec. 78 – Act done in pursuance of court order – till the judgement is in force; once overruled – no protection – but if in good faith – if in good faith believes court had some jurisdiction. Ingredients – Officer exempted – provided – acting in pursuance of judgement – in good faith – belief in the legality of order. Accident (Sec. 80) Sec. 80 – Act done by – accident – without criminal intent – in doing a lawful act in a lawful manner – proper care & caution – no negligence – exempted. Accident – Event occurs without one’s knowledge and beyond expectation. Even if accident takes place while performing an unlawful act, Sec. 80 would be available if there is no causal connection between the resultant harm and act in question. 7 Chunder Narain Singh v. Birjo Bullub Gooyee MOHIT KHATRI (16 JGLS) 10 2. Necessity (Sec. 81) Sec. 81 – Act done – cause harm – knowledge – no criminal intent – done to prevent another greater harm. Not a blanket immunity – only in exceptional cases: • Act was done to avoid consequences which would have led to irreparable damage. • No more harm was done than was necessary for the purpose. • Evil inflicted was not disproportionate to evil avoided. Ingredients: • Act must be done without criminal intent. • Must be done in good faith to prevent other harm to person or property. • Must have been done to avert a greater harm. Homicide justifiable in self-defense and when necessary for the good of society – cannot be put where a person puts other’s life in jeopardy. In case of theft as a defense – to prevent hunger – framers of code rejected – as it could claim the benefit of necessity as a defense to the charge of crime of stealing. Stephen v. Dudley 3. Insanity/ Unsoundness of mind: McNaughton Rules and beyond Infancy and Intoxication (Sec. 82 - 86) Infancy (Sec. 82, 83) Sec. 82 – Nothing done by a child under 7 years of age is an offense. Provides total immunity to children under 7 years from criminal responsibility – doli incapax in law – minimum age to form the necessary intention to constitute crime – no understanding of deeds. Sec. 83 – Immunity to children above 7 years & below 12 years who have not attained sufficient maturity to understand the consequences of his conduct. Depends on case basis. Grants partial immunity against prosecution and punishment for a child above 7 and under 12 years of age. 12 – 18 years of child – their cases are dealt by the Juvenile Justice Courts and Act. Insanity (Sec. 84) Sec. 84 – Immunity to person of unsound mind. Cannot have the necessary mens rea to commit the crime. MOHIT KHATRI (16 JGLS) 11 Without Consent (Sec. 92) Sec. 92 – Act done – good faith, for benefit of person – even without consent – when it is impossible to obtain one or person is incapable of giving – not possible to obtain consent from guardian in that time – if it causes any harm – person doing it is not liable – provided: • Not intentional causing/attempting of death. • Not to any other act which would lead to death/grievous hurt other than preventing them or curing any disease/infirmity. • Not to voluntary causing/attempting to cause grievous hurt unless preventing/curing. • Not to the committing of any offence abetted. 5. Trifles (de minimis non curat lex) (Sec. 95) Sec. 95 – Act causing slight harm, whether done by mistake, with knowledge or with clear intention, which no person of ordinary sense and temper would complain is not an offence. Intended to prevent penalization of offences trivial in nature – this harm has not been defined in the code. SC held that it would depend upon nature of injuries, position of parties, knowledge & intention while the offense is done and other circumstances. 8 6. Private Defense (Sec. 96 - 106) When act exceeds the degree of defense required, act is no more immune by private defense. No right of Private Defense when you have time to call the authorities – Subjective to case. S: Nothing is an offense done in Private Defense. S: To defend – own body/property, others body/property, any offense against human body, any act u/d theft, robbery, mischief, criminal trespass or attempt to commit any. S: Immunity to person with unsound mind. E. A; unsound; attempts to kill B; A not liable; B has all rights of self-defense. S: Act done by/Under direction of Public Officer – Right to private defense arises – if the act causes apprehension of death/grievous hurt to the rights of people. If no such apprehension/harm, no right; even if officers act not justifiable by law; he may be charged for this separately. S: When Private Defense extends to Death – Assault with: apprehension to death/grievous hurt; intention to rape/kidnapping/abduction/wrongfully confining etc. … S: If act not under sec. 100 – one can cause any harm other than death; voluntary causing of death extends to restricts under S. S: Right to Private Defense, till there is reasonable apprehension of danger to human body, not after that. S: Right of Private defense to property extends to causing death: robbery, breaking in at night, mischief by fire on any building or human dwelling, theft, mischief or house trespass. 8 Veeda Menezes v. Yusuf Khan MOHIT KHATRI (16 JGLS) 13 S: If act not under sec. 103 – one can cause any harm other than death; voluntary causing of death extends to restricts under S. S: Right to Private Defense, till there is reasonable apprehension of danger to the property, not after that. S: Right of Private Defense, against assault with apprehension of death, could run the risk of harm to innocent people. A is attacked by a mob with an attempt to murder him – he cannot exercise private defense unless he fires – many innocent in the mob could die – A commits no offense by doing so. Ø CASES & READINGS 1. Vishwanath v. State of U. (AIR 1960 SC 67) Sister and her husband (Gopal) stayed at the house of her parental house after marriage – Her father and husband were not on good terms – Daily Fights – Gopal shifted to the matrimonial house of his sister – One day Gopal came back & forced his wife to get out of her parental house and move with him to another house – fight started there – Father instigated his son to kill Gopal – he stabbed him. HC acquitted father but not son. SC acquitted son too – defense of Sec. 100(5) – private defense extending to death when there is an assault with an intention of Kidnapping or Abduction – and the fact that Gopal was trying to Abduct his wife against her will. 2. Amjad Khan v. State (AIR 1952 SC 165) Communal riot between Sindhi Refugees and local Muslims – Muslim shops were looted and lives were lost – mob approached the shop of accused – his home was also behind his shop – people started beating the doors of house with sticks (latthis) – before mob could break in the accused fired two shots from his gun. SC allowed the appeal and stated that, given the facts, it was sufficient to afford the right to private defense. Accused had reasonable ground – death/grievous hurt to family – many lives were already lost. Sec. 105 3. R v. Dudley and Stephen 14 Q.B. 273 (1884) Shipwrecked sailors – killed a cabin boy for food – guilty of murder. Court – Deliberate killing of a man, howsoever great the temptation might be, killing cannot be justified – Law & Morality are not same, but absolute divorce could be fatal. In this case, the court laid out principles on the question of conservation of man’s life in such cases – Self-preservation as not an absolute necessity – no necessity justifies private homicide – distinguished from public necessity and right of a man to take someone else’s life only in cases of self-defense. MOHIT KHATRI (16 JGLS) 14 grossly negligent as to make him criminally liable. To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. Therefore, no case of recklessness or gross negligence can be made out u/s 304-A. 3. Culpable Homicide (s. 299/ 304) and Murder (s. 300/ 302) and distinction between the two sections conceptually. Virsa Singh v. State of Punjab (AIR 1958 SC 465) There was only one injury on Khem Singh and both Courts are agreed that the appellant caused it. It was caused as the result of a spear thrust. To put it shortly, the prosecution must prove the following facts before it can bring a case under s. 300, 3rdly ". First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. It does not matter that there was no intention to cause death or even to cause an injury sufficient to cause death. It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. The question, so far as the intention is concerned [purely subjective], is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. Gudar Dusadh v. State of Bihar (AIR 1972 SC 952) The appellant was convicted. under sections 302 and 147 Indian Penal Code and was sentenced to undergo imprisonment for life on the former count. The appellant gave a lathi blow on the head of Ramlal as a result of which the latter fell down and died at the spot. The only question with which we were concerned in appeal is whether the offence committed by the appellant is murder or whether it is culpable homicide not amounting to murder. The appellant who caused the above injury to Ramlal deceased, in our opinion, was guilty of the offence of murder and he has been rightly convicted under section 302 Indian Penal Code. As the injury on the head was deliberate and not accidental and as the injury was sufficient in the ordinary course of nature to cause death, the case against the appellant would fall squarely within the ambit of clause "3rdly" of section 300 Indian Penal Code. According to that clause, culpable homicide is murder if it is done with the intention of causing bodily injury to any person and the, bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. Clause "3rdly" consists of two parts. Under the first part, it has to be shown that there was an intention on the part of the accused to inflict the particular injury which was found on the body of the deceased. The second part requires that the bodily injury MOHIT KHATRI (16 JGLS) 16
Indian Penal Code (IPC notes)
Course: Criminal Law
University: O.P. Jindal Global University
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