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LAW OF CRIMES – I

Objectives of the Course:

The Course aims at:

i. To fathom the principles pertaining to criminal responsibility and criminal liability as

distinguished from other forms of liability
ii. To understand the different types of punishment, rationale and principles of imposition
thereof.
iii. To develop the skills of determining the nature, kind and scope of liability in different
fact situations and thereby to discern the range and variety of crimes codified in the
Indian Penal Code, 1860.
iv. To expose the students to the range of mental states that constitute mens rea
v. To keep the students abreast of latest developments and changes in the field of criminal
law

Essential Readings:

Books

i. Andrew Ashworth, Principles of Criminal Law

ii. C.K. Thakker (Rev.) Ratan Lal and Dhiraj Lal’s Indian Penal Code
iii. Glanville Williams, Textbook on Criminal Law
iv. JWC Turner (ed.), Kenny’s Outlines of Criminal Law
v. K.D. Gaur, Criminal Law: Cases and Materials
vi. K.N.C. Pillai, General Principles of Criminal Law

Articles

i. Andrew Ashworth, Criminal Law – Is it a Lost Cause

ii. Barbara Wootton, Crime and Criminal Law, Hamlyn Lectures (1981) pp. 31-65
iii. BB Pande, Limits of Objective Liability of Murder, 16 JILI (1974) 469
iv. B. Sharon Byrd, “ Kant’s Theory of Punishment: Deterrance in its Threat; Retribution
in its Execution” 8 Law and Philosophy 151-200 (1989).
v. Carr, Craig L. 1991. Duress and Criminal Responsibility. Law and Philosophy 10 (2).
Springer: 161–88. http://www.jstor.org/stable/3504910.
vi. Eric Colvin, “Causation in Criminal Law” 1 Bond LL (1989)
vii. Francis B. Sayre, Criminal Attempts, Harvard Law Review 41 (1928) 821-859
viii. RV Kelkar, “Provocation as a Defence in the Indian Penal Code”, (1963) 5
Journal of the Indian Law Institute 319-355
 Page |2

ix. Yeo Meng Heong, Stanley, “Recklessness under the Indian Penal Code” (1988) 30
Journal of the Indian Law Institute, 293 - 308.
x. Geraid H. Gordon, Subjective and Objective Mens Rea, Criminal Law Quarterly Law
Review, pp. 49-57

Additional Readings:

1. Allen Noorie, Law, Ideology and Punishment

2. H.L.A. Hart, Punishment and Responsibility
3. JC Smith & Brian Hogan, Criminal Law
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CONTENTS
R vs. BOURNE .......................................................................................................................... 5
R vs. MILLER ........................................................................................................................... 7
OM PARKASH vs. STATE OF PUNJAB .............................................................................. 13
NATHULAL vs. STATE OF M.P. .......................................................................................... 19
ABHAYANANDA MISHRA vs. STATE OF BIHAR ........................................................... 24
TOPAN DAS vs. STATE OF BOMBAY................................................................................ 31
DR. JACOB GEORGE vs. STATE OF KERALA .................................................................. 34
REG vs. GOVINDA ................................................................................................................ 38
VIRSA vs. STATE OF PUNJAB ............................................................................................ 41
THOLAN vs. STATE OF TAMIL NADU .............................................................................. 45
K. M. NANAVATI vs. STATE OF MAHARASHTRA ......................................................... 49
S. VARADARAJAN vs. STATE OF MADRAS .................................................................... 56
TUKARAM & ANR. vs. STATE OF MAHARASHTRA ...................................................... 61
VR PATEL vs. STATE OF MAHARASHTRA...................................................................... 64
NIRANJAN DAS vs. GIRDHARI DASAND ........................................................................ 68
PYARE LAL BHARGAVA vs. STATE OF RAJASTHAN .................................................. 70
SATHI PRASAD vs. STATE OF UTTAR PRADESH .......................................................... 73
The King vs. Tustipada Mandal and Ors. ................................................................................ 76
PARAPUZHA THAMBAN ALIAS JACOB vs. STATE OF KERALA ............................... 83
BRIJPAL SINGH vs. STATE .................................................................................................. 87
BASDEV v. STATE OF PEPSU ............................................................................................. 90
BHUPENDRA SINGH A. CHUDASAMA vs. STATE OF GUJARAT ............................... 95
VISHWANATH vs. THE STATE OF UTTAR PRADESH ................................................... 99
AMJAD KHAN vs. STATE .................................................................................................. 103
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NAME OF CASE Pg. No.

1. R vs. Bourne, 1952 Cr. App R 124……………………………………………...............07-09
2. R vs. Miller, (1983) 1 All ER 978 (HC)………………………………………………...09-14
3. Om Prakash vs. State of Punjab, AIR 1961 SC 1782…………………………………...15-21
4. Nathulal vs. State of M.P., AIR 1966 SC 43……………………………………………21-25
5. Abhayananda Mishra vs. State of Bihar, AIR 1961 SC 1698…………………………..26-32
6. Topan Das vs. State of Bombay, AIR 1956 SC 33……………………………………..33-35
7. Dr. Jacob George vs. State of Kerala, (1994) 3 SCC 430………………………………36-40
8. Reg. vs. Govinda ILR (1876) Bom. 342………………………………………………...40-42
9. Virsa Singh vs. State of Punjab, AIR 1958 SC 465……………………………………..43-47
10. Tholan v. State of Tamil Nadu, [1984] 2 SCC 133……………………………………..47-51
11. KM Nanavati vs. State of Maharashtra, AIR 1962 SC 605…………………………….51-57
12. S Vardarajan vs. State of Madras AIR 1965 SC 942……………………………………58-62
13. Tukaram vs. State of Maharashtra AIR 1979 SC 185…………………………………..63-66
14. VR Patel vs. State of Maharashtra, AIR 1965 SC 1433…………………………………66-69
15. Niranjan Das vs. Girdhari Dasand – Orissa HC…………………………………………70-72
16. Pyarelal Bhargava vs. State of Rajasthan AIR 1963 SC 1094………………………….72-75
17. Sathi Prasad vs. State, AIR 1973 SC 448……………………………………………….75-78
18. The King vs. Tustipada Mandal and Ors. AIR 1951 Ori 284………………………...…78-85
19. Parapuzha Thamban Jacob vs. State of Kerala 1989 Cri. L.J 1372……………………..85-89
20. Brijapal Singh vs. State, Crl.Rev.P. 646/2003 Judgment dated 04.12.2009…………….89-92
21. Basdev vs. State of Pepsu, [1956] 1 SCR 363…………………………………………..92-96
22. Bhupendra Singh AV Chudasama vs. State of Gujrat, (1998) 2 SCC 603…………….96-100
23. Viswnath vs. State of Uttar Pradesh, AIR 1960 SC 67……………………………….101-104
24. Amjad Khan vs. State, AIR 1952 SC 165……………………………………………104-107
 Page |5

R vs. BOURNE
(1952) 36 Cr. App. R. 125

Relevance of the Case –

The first principle of the criminal responsibility is the requisite of an act – the actus reus. The
actus reus sometimes combines both the act and intention which constitute criminal conduct.
Unless the evil thoughts are put to action, criminal law doesn’t take cognizance of them. In
other words, punishing (a mere criminal) thought is impractical, inequitable and unjust; hence
thoughts are not punishable. Several criterions determine which acts are criminal. It is generally
insisted that criminal acts must be voluntary: they must stern from actor’s free will.

Criminal Law imposes responsibility on those who consciously and freely act, not on those
who are acted upon by outside forces. This proposition is highlighted in the instant case i.e. R
vs. Bourne.

Points for Discussion

i. Whether, there is actus rea on part of appellant?

ii. Whether there should be criminal responsibility for involuntary acts under coercion?
iii. Whether consent can be immaterial in deciding whether offence of bestiality has been
committed?
iv. If she didn‘t had the mens rea can we say that she committed the act?
v. If woman committed the act knowing it to be a crime, can we not say that she had mens
rea.
vi. Accessory liability derives from the offence committed and if offence is held not to be
committed can accessory still be made liable?
vii. An offence that is excused for the perpetrator is still an offence in law, to which there
can be an accessory.
viii. if principal is not guilty for absence of mens rea or presence of defence, whether
accessory to crime should also be acquitted?

Objectives

a. To elucidate the principle of criminal responsibility

b. To understand concept of actus rea

c. To understand the liability of principal and accessory.

Case

(Excerpts in this case taken from KNC Pillai, General Principles of Criminal Law, 2nd Ed. &
Dennis J. Baker Ed., Glanville Williams, Textbook of Criminal Law.)
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The evidence shows that the appellant on The only question that were left to jury by
two occasions had sexually excited a dog the learned judge, and he was not asked to
and then compelled his wife to compelled 40 have any more, were these:-
bestiality with a dog. (Bestiality was an
5 offence at the time, but it is now an offence
1. Did the prisoner on a day in or about the
to cause another to engage in bestiality). month of September, 1949, in the county of
According to his wife she was terrorized into Strafford cause his wife Adelaide Bourne to
submission and that the acts were entirely have carnal knowledge of a dog?
against her will. 45 2. Are you satisfied that she didn’t consent
10 The case against the appellant was that he
to having such carnal knowledge?
was a principal in the second degree to the The answer of jury was yes, we are satisfied
crime of buggery which was committed by she didn’t consent. The wife had the
his wife, because if a woman has a defence of duress, and she was not charged.
connection with dog, or allows a dog to have
15 connection with her, that is the full offence 50 The evidence was, and the jury by the
of buggery. The jury found that woman verdict have shown that they accepted it, that
didn’t consent… but I am willing to assume he caused his wife to have connection with
for the purpose of this case, and I think by a dog, and if he caused his wife to have a
brethren are too, that if this woman had been connection with dog he is guilty, whether
20 charged herself with committing the 55 you call him an aider and abettor or an
offence, she could have setup the plea of accessory, as a principal in the second
duress, not as showing that no offence had degree.
been committed, but as showing that she had
Appeal Dismissed.
no mens rea because her will was overborne
25 by the threats of imprisonment and violence Critique in Glanville William book - Bourne
so that she would be excused from 60 was tried on his own for abetting her, and
punishment. But the offence of buggery, was convicted. On appeal, the obvious
whether with man or beast doesn’t depend objection was raised that Bourne couldn’t
upon consent; it depends on the act, and if an abet an offence that was not committed . The
30 act of buggery is committed, the felony, is Court of Appeal, invented a concept of de
committed. 65 facto crime for the purpose of upholding the
conviction. The Court held that the wife
A point is raised here that the appellant was
committed the offence in contemplation of
charged with being not merely an accessory
law even though she couldn’t be punished
before the fact but with being an aider and
for it.
35 abettor. So he was, because the charge is:
‘you being present aided and abetted, 70 It doesn’t seem to have been contemplated
counseled and procured’. that Bourne could be convicted as
perpetrator of bestiality. There was an
obvious reason. The definition of sex crimes
 Page |7

refer strongly to personal bodily behavior. 2. Derivative Liability and Missing Link in
Only by the violent wrench of the English Ashworths, Principal of Criminal Law, pg.
language could it be said that Bourne 445
himself committed the act of bestiality.
3. R vs. Prince (1875) LR 2 CCR 154 (HL) -
5 Instead, it was assumed that there was an Defendant was convicted under a statute
offence to which he could be an accessory. making it unlawful to take any unmarried
The wife’s defence of duress, said Lord 25 girl under the age of sixteen out of the
Goddard C.J., was simply a “prayer by her possession and without the consent of her
to be excused from punishment”, so that she parents. Although the girl taken by
10 was not guilty of the offence. This doesn’t Defendant was actually 14 years old, she had
truly represent the effect of the duress, told the Defendant, and the defendant
which is not a mere matter of mitigation: 30 reasonably believed that the girl was 18. –
success in the defence results in verdict of Issue - Is the court required to read a mens
not guilty, which would mean that the wife rea requirement into a statute that is silent
15 didn’t commit an offence on traditional with regard to the mental state required to
principles. It is conceptually improper, make the act a crime?
according to the theory of the common law,
35 4. R v K [2001] UKHL 41 House of Lords
to imagine some ghostly offence committed
by the wife for the purpose of convicting the
20 husband as accessory.

Further Readings

1. Carr, Craig L.. 1991. “Duress and

Criminal Responsibility”. Law and
Philosophy 10 (2). Springer: 161–88.
http://www.jstor.org/stable/3504910.

R vs. MILLER
(1983) 2 AC 161

Relevance: Involuntary acts don’t give rise voluntarily induced involuntary states of
to criminal responsibility because mind.
punishment in such cases doesn’t satisfy the
purposes of criminal law. if individuals can Points of Discussion
take measures to control involuntary i. Was the conduct of offender
movements and do not, then they are reckless?
arguably blameworthy. The instant case ii. Did offender acted voluntarily?
illustrates situation where a person
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iii. Whether omission to act could woke up to find the mattress on fire. I just
amount to actus reus? Whether there got up and went into the next room and went
can be duty to act? back to sleep. Then the next thing I
iv. Was the mental element in Bourne remember was the police and fire people
different from that the one in Miller 15 arriving. I hadn’t got anything to put the fire
v. if it was not voluntary, was it out with so I just left it.’ The prosecution
justified to punish him. argued that he was reckless after he awoke
vi. Was Miller found guilty because he and discovered the fire, in that he did not
had fallen asleep while smoking of a make any attempt to put it out. He was
cigarette or because, when he awoke, 20 convicted of arson under ss. 1(1) and 1(3) of
he failed to take reasonable steps to the Criminal Damage Act 1971.
put out the fire caused by his lighter
cigarette? Whether the actus reus of the offence of
vii. Would Miller have been guilty of Arson is present when a Defendant
manslaughter if a fellow squatter accidentally starts a fire and thereafter,
25 intending to destroy or damage property
sharing the mattress with him had
died as a result of asphyxiation? belonging to another or being reckless as to
whether any such property would be
Objectives destroyed or damaged, fails to take any steps
to extinguish the fire or prevent damage to
a. To understand the meaning of act, 30 such property by that fire?.
omission
The question speaks of actus reus. This
b. To understand the scope of Section 32 & expression is derived from Coke's brocard in
33 of IPC his 3rd Inst. ch. i. fo.10: Actus non facit
c. To understand the liability in criminal law reum, nisi mens sit rea, by converting
for voluntary actions and reckless conduct 35 incorrectly into an adjective the word reus
which was there used correctly in the
accusative case as a noun. As long ago as
1889 in Reg. v. Tolson (1889) 23 Q.B.D.
Case
168, 185-187, Stephen J. when dealing with
Lord Diplock J. 40 a statutory offence, as are your Lordships in
the instant case, condemned the phrase as
The appellant described the facts as follows likely to mislead, though his criticism in that
in his statement to the police: ‘Last night I case was primarily directed to the use of the
5 went out for a few drinks and at closing time expression mens rea. In the instant case, as
I went back to the house where I have been 45 the argument before this House has in my
kipping for a couple of weeks. I went view demonstrated, it is the use of the
upstairs into the back bedroom where I’ve expression actus reus that is liable to
been sleeping. I lay on my mattress and lit a mislead, since it suggests that some positive
10 cigarette. I must have fell to sleep because I act on the part of the accused is needed to
 Page |9

make him guilty of a crime and that a failure they do, the accused, for the purposes of the
or omission to act is insufficient to give rise analysis which follows, may be regarded as
to criminal liability unless some express 40 having started a fresh fire.
provision in the statute that creates the
5 offence so provides.
The first question is a pure question of
causation; it is one of fact to be decided by
The issue in case is interpretation of section the jury in a trial upon indictment. It should
1(1) and (3) of the Criminal Damage Act be answered No if, in relation to the fire
1971. 45 during the period starting immediately
before its ignition and ending with its
(1) A person who without lawful excuse extinction, the role of the accused was at no
10 destroys or damages any property belonging
time more than that of a passive bystander.
to another intending to destroy or damage In such a case the subsequent questions to
any such property or being reckless as to 50 which I shall be turning would not arise.
whether any such property would be
destroyed or damaged shall be guilty of an If on the other hand the question, which I
15 offence. now confine to: Did a physical act of the
accused start the fire which spread and
(3) An offence committed under this section damaged property belonging to another?, is
by destroying or damaging property by fire 55 answered Yes, as it was by the jury in the
shall be charged as arson. instant case, then for the purpose of the
This definition of arson makes it a result- further questions the answers to which are
20 crime in the classification adopted by determinative of his guilt of the offence of
Professor Gordon in his work The Criminal arson, the conduct of the accused,
Law of Scotland 2nd Ed. (1978). The crime 60 throughout the period from immediately
is not complete unless and until the conduct before the moment of ignition to the
of the accused has caused property completion of the damage to the property by
25 belonging to another to be destroyed or the fire, is relevant; so is his state of mind
damaged. throughout that period.

The first question to be answered where a 65 Since arson is a result-crime the period may
completed crime of arson is charged is: Did be considerable, and during it the conduct of
a physical act of the accused start the fire the accused that is causative of the result
30 which spread and damaged property may consist not only of his doing physical
belonging to another. (or did his act cause an acts which cause the fire to start or spread
existing fire, which he had not started but 70 but also of his failing to take measures that
which would otherwise have burnt itself out lie within his power to counteract the danger
harmlessly, to spread and damage property that he has himself created. And if his
35 belonging to another)? I have added the conduct, active or passive, varies in the
words in brackets for completeness. They do course of the period, so may his state of
not arise in the instant case; in cases where 75 mind at the time of each piece of conduct. If
at the time of any particular piece of conduct
 P a g e | 10

by the accused that is causative of the result, 40 Let me take first the case of the person who
the state of mind that actuates his conduct has thrown away a lighted cigarette
falls within the description of one or other of expecting it to go out harmlessly, but later
the states of mind that are made a necessary becomes aware that, although he did not
5 ingredient of the offence of arson by section intend it to do so, it has, in the event, caused
1(1) of the Criminal Damage Act 1971, (i.e. 45 some inflammable material to smoulder and
intending to damage property belonging to that unless the smouldering is extinguished
another or being reckless as to whether such promptly, an act that the person who
property would be damaged) I know of no dropped the cigarette could perform without
10 principle of English criminal law that would danger to himself or difficulty, the
prevent his being guilty of the offence 50 inflammable material will be likely to burst
created by that subsection. Likewise I see no into flames and damage some other person's
rational ground for excluding from conduct property. The person who dropped the
capable of giving rise to criminal liability, cigarette deliberately refrains from doing
15 conduct which consists of failing to take anything to extinguish the smouldering. His
measures that lie within one's power to 55 reason for so refraining is that he intends that
counteract a danger that one has oneself the risk which his own act had originally
created, if at the time of such conduct one's created, though it was only subsequently
state of mind is such as constitutes a that he became aware of this, should fructify
20 necessary ingredient of the offence. I in actual damage to that other person's
venture to think that the habit of lawyers to 60 property; and what he so intends, in fact
talk of actus reus, suggestive as it is of action occurs. There can be no sensible reason why
rather than inaction, is responsible for any he should not be guilty of arson. If he would
erroneous notion that failure to act cannot be guilty of arson, having appreciated the
25 give rise to criminal liability in English law. risk of damage at the very moment of
65 dropping the lighted cigarette, it would be
I cannot see any good reason why, so far as quite irrational that he should not be guilty
liability under criminal law is concerned, it if he first appreciated the risk at some later
should matter at what point of time before point in time but when it was still possible
the resultant damage is complete a person for him to take steps to prevent or minimise
30 becomes aware that he has done a physical
70 the damage.
act which, whether or not he appreciated that
it would at the time when he did it, does in In that example the state of mind involved
fact create a risk that property of another will was that described in the definition of the
be damaged; provided that, at the moment of statutory offence as intending to damage
35 awareness, it lies within his power to take property belonging to another. This state of
steps, either himself or by calling for the 75 mind necessarily connotes an appreciation
assistance of the fire brigade if this be by the accused that the situation that he has
necessary, to prevent or minimise the by his own act created involves the risk that
damage to the property at risk. property belonging to another will be
damaged. This is not necessarily so with the
 P a g e | 11

other state of mind, described in the case he is criminally liable because he

definition of the statutory offence as being refrains from taking steps that are open to
reckless as to whether any such property him to try to prevent or minimise the damage
would be damaged. To this other state of caused by the risk he has himself created and
5 mind I now turn; it is the state of mind which 45 he so refrains because he intends such
is directly involved in the instant case. damage to occur, so in the latter case, when
Where the state of mind relied upon by the as a result of his own initial act in dropping
prosecution is that of intending, the risk of the cigarette events have occurred which
damage to property belonging to another would have made it obvious to anyone who
10 created by the physical act of the accused 50 troubled to give his mind to them that they
need not be such as would be obvious to presented a risk that another person's
anyone who took the trouble to give his property would be damaged, he should
mind to it; but the accused himself cannot likewise be criminally liable if he refrains
form the intention that it should fructify in from taking steps that he within his power to
15 actual damage unless he himself recognises 55 try and prevent the damage caused by the
the existence of some risk of this happening. risk that he himself has created, and so
In contrast to this, where the state of mind refrains either because he has not given any
relied upon is being reckless, the risk created thought to the possibility of there being any
by the physical act of the accused that such risk or because, although he has
20 property belonging to another would be 60 recognised that there was some risk
damaged must be one that would be obvious involved, he has nonetheless decided to take
to anyone who had given his mind to it at that risk.
whatever is the relevant time for
determining whether the state of mind of the My Lords, in the instant case the prosecution
25 accused fitted the description being reckless did not rely upon the state of mind of the
65 accused as being reckless during that part of
whether such property would be damaged.
his conduct that consisted of his lighting and
Just as in the first example that I took the fact smoking a cigarette while lying on his
that the accused's intent to damage the mattress and falling asleep without
property of another was not formed until, as extinguishing it. So the jury were not invited
30 a result of his initial act in dropping the 70 to make any finding as to this. What the
cigarette, events had occurred which prosecution did rely upon as being reckless
presented a risk that another person's was his state of mind during that part of his
property would be damaged, ought not conduct after he awoke to find that he had
under any sensible system of law to absolve set his mattress on fire and that it was
35 him from criminal liability, so too in a case 75 smouldering, but did not then take any steps
where the relevant state of mind is not intent either to try to extinguish it himself or to
but recklessness I see no reason in common send for the fire brigade, but simply went
sense and justice why mutatis mutandis a into the other room to resume his slumbers,
similar principle should not apply to impose leaving the fire from the already
40 criminal liability upon him. If in the former 80 smouldering mattress to spread and to
 P a g e | 12

damage that part of the house in which the 40 of the Divisional Court in Fagan v.
mattress was. Metropolitan Police Commissioner [1969]
1Q.B. 439 appears to have been attracted by
The recorder, in his lucid summing-up to the the duty theory, now prefers that of the
jury (they took twenty-two minutes only to continuous act. When applied to cases where
5 reach their verdict) told them that the 45 a person has unknowingly done an act which
accused having by his own act started a fire sets in train events that, when he becomes
in the mattress which, when he became aware of them, present an obvious risk that
aware of its existence, presented an obvious property belonging to another will be
risk of damaging the house, became under a damaged, both theories lead to an identical
10 duty to take some action to put it out. The 50 result; and since what your Lordships are
Court of Appeal upheld the conviction, but concerned with is to give guidance to trial
their ratio decidendi appears to be somewhat judges in their task of summing up to juries,
different from that of the recorder. As I I would for this purpose adopt the duty
understand the judgment, in effect it treats theory as being the easier to explain to a
15 the whole course of conduct of the accused, 55 jury; though I would commend the use of the
from the moment at which he fell asleep and word responsibility, rather than duty which
dropped the cigarette on to the mattress until is more appropriate to civil than to criminal
the time the damage to the house by fire was law since it suggests an obligation owed to
complete, as a continuous act of the accused, another person, i.e. the person to whom the
20 and holds that it is sufficient to constitute the 60 endangered property belongs, whereas a
statutory offence of arson if at any stage in criminal statute defines combinations of
that course of conduct the state of mind of conduct and state of mind which render a
the accused, when he fails to try to prevent person liable to punishment by the State
or minimise the damage which will result itself.
25 from his initial act, although it lies within his
power to do so, is that of being reckless as to 65 So, while deprecating the use of the
whether property belonging to another expression actus reus in the certified
would be damaged. question, I would answer that question Yes
and would dismiss the appeal.
My Lords, these alternative ways of
30 analysing the legal theory that justifies a Further Readings
decision which has received nothing but
commendation for its accord with 1. R vs. Speck (1997) 2 All ER 859
commonsense and justice, have, since the 2. B. Hogan, “Ommissions and a Duty
publication of the judgment of the Court of Myth” in Criminal Law: Essays in Honour
35 Appeal in the instant case, provoked of J.C. Smith (1987, ed. P. Smith)
academic controversy. Each theory has
distinguished support. Professor J. C. Smith 3. Elliott & Woods, Cases and Material on
espouses the duty theory; Professor Criminal Law, 9th Ed, pg. 42
Glanville Williams who, after the decision
 P a g e | 13

OM PARKASH vs. STATE OF PUNJAB

AIR 1961 SC 1782

K Subba Rao and Raghubir Dayal, JJ.

Relevance

The Law imposes responsibility for omissions reluctantly. Under the Criminal law only failures
to perform legal duties can amount to criminal omissions. Legal Duties to act might arise out of
relationship or contracts, or might be imposed by statutes. Failure to perform moral duties can’t
constitute the actus rea. Instant case highlights the omission of husband to provide to his wife
food, to the extent that wife had to be hospitalized. Whether such omission attracts criminal
responsibility and is an attempt to murder, has to be seen through this case.

Points of Discussion

i. Could the omission to give food to wife be equated with an act?

ii. Whether result would have been different, if victim happens to be stranger?

iii. Which ‘act’ should be considered in determining the liability for attempt i.e. Is it necessarily
a last act or can it also be some act during the commission of offence?

Objective

a. To understand the law related to attempt in light of S. 307 & 511 IPC

b. To understand the meaning of term ‘act’

c. To understand the scope of Section 33 of IPC

d. To understand the criminal responsibility for omissions

Case was deliberately starved and was not

allowed to leave the house and only
5 Facts: Bimla Devi, P.W. 7, was married to
sometimes a morsel or so used to be thrown
the appellant in October, 1951. Their to her as alms are given to beggars. She was
relations got strained by 1953 and she went 20 denied food for days together and used to be
to her brother's place and stayed there for given gram husk mixed in water after five or
about a year, when she returned to her six days. She managed to go out of the house
10 husband's place at the assurance of the
in April 1956, but Romesh Chander and
appellant's maternal uncle that she would Suresh Chander, brothers of the appellant,
not be maltreated in future. She was, 25 caught hold of her and forcibly dragged her
however, ill-treated and her health inside the house where she was severely
deteriorated due to alleged maltreatment and
15 deliberate under-nourishment. In 1956, she
 P a g e | 14

beaten. Thereafter, she was kept locked the benefit of doubt, though he had come to
inside a room. 40 the conclusion that Bimla Devi's movements
were restricted to a certain extent. The
On June 5, 1956, she happened to find her learned Judge of the High Court considered
room unlocked, her mother-in-law and this question and came to a different
5 husband away and availing of the conclusion. Having come to these findings,
opportunity, went out of the house and 45 the learned Judge considered the question
managed to reach the Civil Hospital, whether on these facts an offence under s.
Ludhiana, where she met lady Doctor Mrs. 307, Indian Penal Code, had been
Kumar, P.W. 2 and told her of her established or not. He held it proved.
10 sufferings. The appellant and his mother
went to the hospital and tried their best to Counsel for appellant argued that it is only
take her back to the house, but were not 50 when a person is helpless and is unable to
allowed to do so by the lady Doctor. Social look after himself that the person having
workers got interested in the matter and control over him is legally bound to look
15 informed the brother of Bimla Devi, one after his requirements and to see that he is
Madan Mohan, who came down of adequately fed. Such persons, according to
Ludhiana and, after learning all facts, sent 55 him, are infants, old people and lunatics. He
information to the Police Station by letter on contends that it is no part of a husband's duty
June 16, 1956, requesting the case to be to spoon-feed his wife, his duty being simply
20 lodged. to provide funds and food. In view of the
finding of the Court below about Bimla
The same day, at 9-15 p.m., Dr. Miss Dalbir 60 Devi's being confined and being deprived of
Dhillon sent a note to the police saying ‘My regular food in pursuance of a scheme of
patient Bimla Devi is actually ill. She may regularly starving her in order to accelerate
collapse any moment’. her end, the responsibility of the appellant
25 After considering the evidence of Bimla for the condition to which she was brought
Devi and the Doctors, the learned Judge 65 up to the 5th of June, 1956, is clear. The
came to the conclusion “So far as the basic findings really go against any suggestion
allegations are concerned, which formed the that the appellant had actually provided food
gravamen of the offence, the veracity of her and funds for his wife Bimla Devi.
30 statement cannot be doubted. After a careful
The next contention for the appellant is that
scrutiny of her statement, I find her 70 the ingredients of an offence under s. 307 are
allegations as to starvation, maltreatment, materially different from the ingredients of
etc., true. The exaggerations and omissions an offence under s. 511, Indian Penal Code.
to which my attention was drawn in her The difference is that for an act to amount to
35 statement are inconsequential.”
the commission of the offence of attempting
The appellant was acquitted of the offence 75 to commit an offence, it need not be the last
under s. 342, Indian Penal Code, by the act and can be the first act towards the
Additional Sessions Judge, who gave him commission of the offence, while for an
 P a g e | 15

offence under s. 307, it is the last act which, with imprisonment of either description for
if effective to cause death, would constitute a term which may extend to seven years, or
the offence of an attempt to commit murder. 40 with fine, or with both.”
The contention really is that even if Bimla
5 Devi had been deprived of food for a certain
Both the sections are expressed in similar
period, the act of so depriving her does not language. If s. 307 is to be interpreted as
come under s. 307, as that act could not, by urged for the appellant, s. 308 too should be
itself, have caused her death, it being interpreted that way. Whatever may be said
45 with respect to s. 307, being exhaustive or
necessary for the period of starvation to
10 continue for a longer period to cause death.
covering all the cases of attempts to commit
We do not agree with this contention. murder and s. 511 not applying to any case
of attempt to commit murder on account of
Section 307 of the Indian Penal Code reads: its being applicable only to offences
50 punishable with imprisonment for life or
“Whoever does any act with such intention imprisonment, the same cannot be said with
or knowledge, and under such respect to the offence of attempt to commit
15 circumstances that, if he by that act caused
culpable homicide punishable under s. 308.
death, he would be guilty of murder, shall be An attempt to commit culpable homicide is
punished with imprisonment of either 55 punishable with imprisonment for a certain
description for a term which may extend to period and therefore but for its being
ten year, and shall also be liable to fine; and, expressly made an offence under s. 308, it
20 if hurt is caused to any person by such act,
would have fallen under s. 511 which
the offender shall be liable either to applies to all attempts to commit offences
imprisonment for life, or to such punishment 60 punishable with imprisonment where no
as is hereinbefore mentioned. express provisions are made by the Code for
When any person offending under this the punishment of that attempt. It should
25 section is under sentence of imprisonment follow that the ingredients of an offence of
for life, he may, if hurt is caused, be attempt to commit culpable homicide not
punished with death.” 65 amounting to murder should be the same as
the ingredients of an offence of attempt to
Section 308 reads : commit that offence under s. 511. We have
held this in Abhayanand Mishra v. The State
“Whoever does any act with such intention
of Bihar: 1961 Cri.L.J. 822 that a person
30 or knowledge and under such circumstances
70 commits the offence of attempting to
that, if he by that act caused death, he would
commit a particular offence, when he
be guilty of culpable homicide not
intends to commit that particular offence
amounting to murder, shall be punished with
and, having made preparations and with the
imprisonment of either description for a
intention to commit that offence does an act
35 term which may extend to three years, or
75 towards its commission and that such an act
with fine, or with both; and, if hurt is caused
need not be the penultimate act towards the
to any person by such act, shall be punished
commission of that offence, but must be an
 P a g e | 16

act during the course of committing such The word ‘act’ again, does not mean only
offence. It follows therefore that a person any particular, specific, instantaneous act of
commits an offence under s. 308 when he a person, but denotes, according to s. 33 of
has an intention to commit culpable the Code, as well, a series of acts. The course
5 homicide not amounting to murder and in 45 of conduct adopted by the appellant in
pursuance of that intention does an act regularly starving Bimla Devi comprised a
towards the commission of that offence series of acts and therefore acts falling short
whether that act be the penultimate act or of completing the series, and would
not. On a parity of reasoning, a person therefore come within the purview of s. 307
10 commits an offence under s. 307 when he 50 of the Code.
has an intention to commit murder and, in
pursuance of that intention, does an act Learned counsel for the appellant has
towards its commission irrespective of the referred us to certain cases in this
fact whether that act is the penultimate act or connection. We now discuss them.
15 not. It is to be clearly understood, however, The first is Queen Empress v. Nidha I.L.R.
that the intention to commit the offence of 55 (1892) 14 All. 38 - Nidha, who had been
murder means that the person concerned has absconding, noticing certain chowkidars
the intention to do certain act with the arrive, brought up a sort of a blunderbuss he
necessary intention or knowledge was carrying, to the hip and pulled the
20 mentioned in s. 300. The intention to trigger. The cap exploded, but the charge did
commit an offence is different from the 60 not go off. He was convicted by the Sessions
intention or knowledge requisite for Judge under Sections 299 and 300 read with
constituting the act as that offence. The s. 511, and not under s. 307, Indian Penal
expression ‘whoever attempts to commit an Code, as the learned Judge relied on a
25 offence’ in s. 511, can only mean ‘whoever Bombay Case - Regina v. Francis Cassidy
intends to do a certain act with the intent or 65 [(1867) Bom. H.C. Reps. 4(Crown Cases) -
knowledge necessary for the commission of in which it was held that in order to
that offence’. The same is meant by the constitute the offence of attempt to murder,
expression ‘whoever does an act with such under s. 307, the act committed by the
30 intention or knowledge and under such person must be an act capable of causing, in
circumstances that if he, by that act, caused 70 the natural and ordinary course of events,
death, he would be guilty of murder’ in s. death. Straight, J., both distinguished that
307. This simply means that the act must be case and did not agree with certain views
done with the intent or knowledge requisite expressed therein. He expressed his view
35 for the commission of the offence or murder. thus, at p. 43:
The expression ‘by that act’ does not mean
that the immediate effect of the act 75 “It seems to me that if a person who has an
committed must be death. Such a result must evil intent does an act which is the last
be the result of the act whether immediately possible act that he could do towards the
40 or after a lapse of time. accomplishment of a particular crime that he
has in his mind, he is not entitled to pray in
 P a g e | 17

his aid an obstacle intervening not known to not yet committed the offence in this section.
himself. If he did all that he could do and A places the food on Z's table or delivers it
completed the only remaining proximate act 40 to Z's servants to place it on Z's Table. A has
in his power, I do not think he can escape committed the offence defined in this
5 criminal responsibility, and this because his section."
own set volition and purpose having been
given effect to their full extent, a fact A's last act, contemplated in this illustration,
unknown to him and at variance with his is not an act which must result in the murder
45 of Z. The food is to be taken by Z. It is to be
own belief, intervened to prevent the
10 consequences of that act which he expected
served to him. It may not have been possible
to ensue, ensuing.” for A to serve the food himself to Z, but the
fact remains that A's act in merely delivering
Straight, J., gave an example earlier which the food to the servant is fairly remote to the
itself does not seem to fit in with the view 50 food being served and being taken by Z.
expressed by him later. He said :
This expression of opinion by Straight, J.,
15 “No one would suggest that if A intending to was not really with reference to the offence
fire the stack of B, goes into a grocery shop under s. 307, but was with reference to
and buys a box of matches, that he has attempts to commit any particular offence
committed the offence of attempting to fire 55 and was stated, not to emphasize the
the stack of B. But if he, having that intent, necessity of committing the last act for the
20 and having bought the box of matches, goes commission of the offence, but in
to the stack of B and lights the match, but it connection with the culprit taking advantage
is put out by a puff of wind, and he is so of an involuntary act thwarting the
prevented and interfered with, that would 60 completion of his design by making it
establish in my opinion an attempt.” impossible for the offence being committed.
Straight, J., himself said earlier :
25 The last act, for the person to set fire to the
stack, would have been his applying a “For the purpose of constituting an attempt
lighted match to the stack. Without doing under s. 307, Indian Penal Code, there are
this act, he could not have set fire and, before 65 two ingredients required, first, an evil intent
he could do this act, the lighted match is or knowledge, and secondly, an act done.”
30 supposed to have been put out by a puff of
wind. In Emperor v. Vasudeo Balwant Gogte
I.L.R. (1932) 56 Bom. 434 a person fired
Illustration (d) to s. 307, itself shows the several shots at another. No injury was in
incorrectness of this view. The illustration 70 fact occasioned due to certain obstruction.
is: The culprit was convicted of an offence
under s. 307. Beaumont, C.J., said at p. 438:
35 “A, intending to murder Z, by poison,
purchases poison and mixes the same with “I think that what section 307 really means
food which remains in A's keeping; A has is that the accused must do an act with such
 P a g e | 18

a guilty intention and knowledge and in such 40 In Jeetmal v. State A.I.R. 1950 M B21 it was
circumstances that but for some intervening held that an act under s. 307, must be one
fact the act would have amounted to murder which, by itself, must be ordinarily capable
in the normal course of events” of causing death in the natural ordinary
course of events. This is what was actually
5 This is correct. In the present case, the
45 held in Cassidy's Case [(1867) Bom. H.C.
intervening fact which thwarted the attempt Reps. Vol. IV, p. 17 (Crown Cases).] and
of the appellant to commit the murder of was not approved in Nidha's Case
Bimla Devi was her happening to escape I.L.R(1892) 14 All. 48 or in Gogte's Case
from the house and succeeding in reaching I.L.R (1932) . 56 Bom. 434.
10 the hospital and thereafter securing good
medical treatment. 50 We may now refer to Rex v. White (1910) 2
K.B. 124. In that case the accused who was
It may, however, be mentioned that in cases indicated for the murder of his mother, was
of attempt to commit murder by fire arm, the convicted of attempt to murder her. It was
act amounting to an attempt to commit held that the accused had put two grains of
15 murder is bound to be the only and the last
55 cyanide of potassium in the wine glass with
act to be done by the culprit. Till he fires, he the intent to murder her. It was, however,
does not do any act towards the commission argued that there was no attempt at murder
of the offence and once he fires, and because ‘the act of which he was guilty,
something happens to prevent the shot namely, the putting the poison in the wine
20 taking effect, the offence under s. 307 is
60 glass, was a completed act and could not be
made out. Expressions, in such cases, and was not intended by the appellant to
indicate that one commits an attempt to have the effect of killing her at once; it could
murder only when one has committed the not kill unless it were followed by other acts
last act necessary to commit murder. Such which he might never have done’. This
25 expressions, however, are not to be taken as
65 contention was repelled and was said:
precise exposition of the law, though the
statements in the context of the cases are “There seems no doubt that the learned
correct. judge in effect did tell the jury that if this
was a case of slow poisoning the appellant
In Mi Pu v. Emperor (1909) 10 Cri. L.J. 363 would be guilty of the attempt to murder.
30 a person who had put poison in the food was
70 We are of opinion that this direction was
convicted of an offence under s. 328 read right, and that the completion or attempted
with s. 511, Indian Penal Code, because completion of one of a series of acts
there was no evidence about the quantity of intended by a man to result in killing is an
poison found and the probable effects of the attempt to murder even although this
35 quantity mixed in the food. It was therefore
75 completed act would not, unless followed by
held that the accused cannot be said to have the other acts, result in killing. It might be
intended to cause more than hurt. The case the beginning of the attempt, but would
is therefore of no bearing on the question nonetheless be an attempt”
under determination.
 P a g e | 19

We therefore hold that the conviction of the

appellant under s. 307, Indian Penal Code, is
correct and accordingly dismiss this appeal.

Further Readings

i. Read High Court Judgment in the

case vide Om Prakash Tilak Chand vs. State,
AIR 1959 Punj 134. (Paras 15, 16, 32 -36)

ii. Andrew Ashowrths, ‘the Scope of

Criminal Liability for Omissions’, (1989)
105 LQR 424

iii. Michael Gorr, “Actus Reus

Requirement: A Qualified Defence,” (1991)
Crim. Just. Ethics 11.

NATHULAL vs. STATE OF M.P.

AIR 1966 SC 43

Relevance - It is a well settled principle of common law that mens rea is an essential ingredient of
a criminal offence. Doubtless a statute can exclude that element, but it is a sound rule of
construction adopted in England and also accepted in India to construe a statutory provision
creating an offence in conformity with the common law rather than against it unless the statute
expressly or by necessary implication excluded mens rea. To, put it differently, there is a
presumption that mens rea is an essential ingredient of a statutory offence; but this may be rebutted
by the express words of a statute creating the offence or by necessary implication. But the mere
fact the object of a statute is to promote welfare activities or to eradicate grave social evils is in
itself not decisive of the question whether the element of guilty mind is excluded from the
ingredients of the offence. This case will help us in understanding locus of Mens Rea in Criminal
Law where it is codified.

Points of Discussion

i. Whether the common law doctrine of Mens Rea is relevant in construing the Criminal Law,
after the enactment of Indian Penal Code?
ii. Whether, the doctrine of Mens Rea, which originated in common law in England, would
be applicable to statutory crimes in India?
iii. Whether, courts can read Mens Rea in a Statute even if it hasn’t been included by the
legislature?
 P a g e | 20

Objective

i. What is Mens Rea

ii. Whether it can be excluded?

Case

K. Subba Rao, J. 2. Mr. Pathak, learned counsel for the

35 appellant, mainly contended that mens rea
1. The appellant is a dealer in foodgrains at was a necessary ingredient of the offence
Dhar in Madhya Pradesh. He was under Section 7 of the Act, that as on the
prosecuted in the Court of the Additional finding given by the learned Magistrate the
District Magistrate, Dhar, for having in appellant had no intention to contravene the
5 stock 885 maunds and 21/4 seers of wheat 40 provisions of the Act and the Order made
for the purpose of sale without a licence and thereunder, the High Court went wrong in
for having thereby committed an offence setting aside the order of acquittal.
under Section 7 of the Essential
Commodities Act, 1955 (Act X of 1955), 3. The material provisions of the Act and the
10 hereinafter called the Act. The appellant Order made thereunder may be read at this
pleaded that he did not intentionally 45 stage:
contravene the provisions of the said section
on the ground that he stored the said grains Section 7 of the Act.
after applying for a licence and was in the (1) If any person contravenes any order
15 belief that it would be issued to him. The made under Section 3--
learned Additional District Magistrate,
Dhar, found on evidence that the appellant (a) he shall be punishable--
had not the guilty mind and on that finding
50 (ii) in the case of any other order, with
acquitted him. On appeal a Division Bench
imprisonment for a term which may extend
20 of the Madhya Pradesh High Court, Indore
to three years and shall also be liable to fine:
Bench, set aside the order of acquittal and
convicted him on the basis that in a case The Madhya Pradesh Foodgrains Dealers
arising under the Act "the idea of guilty Licensing Order, 1958:
mind" was different from that in a case like
25 theft and that he contravened the provisions 55 Section 2.--In this Order, unless the context
of the Act and the order made thereunder, it otherwise requires,--
sentenced the appellant to rigorous
(a) "dealer" means a person engaged in the
imprisonment for one year and to a fine of
business of purchase, sale or storage for sale,
Rs. 2,000 and in. default of payment of the
of any one or more of the foodgrains in
30 fine he was to undergo rigorous
60 quantity of one hundred maunds or more at
imprisonment for six months. Hence the
any one time whether on one's own account
appeal.
or in partnership or in association with any
 P a g e | 21

other person or as a commission agent or 4. The law on the subject is fairly well
arhatiya, and whether or not in conjunction 40 settled. It has come under judicial scrutiny
with any other business. of this Court on many occasions. It does not
call for a detailed discussion. It is enough to
Section. 3. (1) No person shall carry on restate the principles. Mens rea is an
5 business as a dealer except under and in
essential ingredient of a criminal offence.
accordance with the terms and conditions of 45 Doubtless a statute may exclude the element
a licence issued in this behalf by the of mens rea, but it is a sound rule of
licensing authority. construction adopted in England and also
(2) For the purpose of this clause, any person accepted in India to construe a statutory
10 who stores any foodgrains in quantity of one provision creating an offence in conformity
hundred maunds or more at any one time 50 with the common law rather than against it
shall, unless the contrary is proved, be unless the statute expressly or by necessary
deemed to store the foodgrains for the implication excluded mens rea. The mere
purposes of sale. fact that the object of the statute is to
promote welfare activities or to eradicate a
15 A combined reading of these provisions 55 grave social evil is by itself not decisive of
shows that if a dealer in foodgrains as the question whether the element of guilty
defined in the Order carries on business as a mind is excluded from the ingredients of an
dealer without a licence, he commits an offence. Mens rea by necessary implication
offence under Section 7 of the Act and is may be excluded from a statute only where
20 liable to imprisonment and fine thereunder. 60 it is absolutely clear that the implementation
Sub-section (2) of Section 3 of the Order of the object of the statute would otherwise
raises a rebuttable presumption that if a be defeated. The nature of the mens rea that
dealer stores foodgrains in quantity of 100 would be implied in a statute creating an
maunds or more he shall be deemed to have offence depends on the object of the Act and
25 stored the said foodgrains for the purpose of 65 the provisions thereof: see Srinivas Mall v.
sale. The question is whether under Section King-Emperor, ILR 26 Pat 460: AIR 1947
7 of the Act a factual non-compliance of the PC 135, Hariprasada Rao v. State,
Order by a dealer will amount to an offence 1951CriLJ768 ; and Sarjoo Prasad v. State
thereunder even if there is no mens rea on of Uttar Pradesh,: 1961CriLJ747 . Most of
30 his part. Learned counsel for the appellant 70 the relevant English decisions on the subject
contends that mens rea is an integral, part of were referred to in the judgment of this
the offence; whereas learned counsel for the Court in State of Maharashtra v. Mayer Hans
respondent argues that the Act being one George, Cri Appeal No. 218 of 1963, dated
made in the interests of the general public 24-8-1964: [1965]1SCR123 . How to
35 for the control of the production, supply and 75 disprove mens rea has been succinctly stated
distribution of, and trade and commerce in, in Halsbury's Laws of England, 3rd Edition,
certain commodities, mens rea is not one of Col. 10, at p. 288, thus:
the ingredients of the offence.
 P a g e | 22

"When the existence of a particular intent or 5. The question, therefore, is whether on the
state of mind is a necessary ingredient of the 40 facts found the appellant had intentionally
offence, and prima facie proof of the contravened the provisions of Section 7 of
existence of the intent or state of mind has the Act and the Order made thereunder. Now
5 been given by the prosecution, the defendant let us look at the facts of the case.
may excuse himself by disproving the
existence in him of any guilty intent or state
of mind, for example, by showing that he 45 6. The appellant is a dealer in foodgrains at
was justified in doing the act with which he Dhar. The Order was made in exercise of the
10 is charged, or that he did it accidentally, or powers conferred under Section 3 of the Act.
in ignorance, or that he had an honest belief Under Section 3 of the Order no person shall
in the existence of facts which, if they had carry on business as a dealer except under
really existed, would have made the act an 50 and in accordance with the terms and
innocent one. The existence of reasonable conditions of a licence issued in this behalf
15 grounds for a belief is evidence of the by the licensing authority. Under Sub-
honesty of that belief. section (2) of Section 3 of the Order if a
Having regard to the object of the Act, person stores any foodgrains in quantity of
55 100 maunds or more at any one time shall,
namely, to control in general public interest,
among others, trade in certain commodities, unless the contrary is proved, be deemed to
20 it cannot be said that the object of the Act store the foodgrains for the purpose of sale.
would be defeated if mens rea is read as an Pursuant to that Order the appellant on
ingredient of the offence. The provisions of September 30, 1960, made an application for
60 a licence to the licensing authority in Form
the Act do not lead to any such exclusion.
Indeed, it could not have been the intention A, Clause 4 (1) of the Order and deposited
25 of the Legislature to impose heavy penalties the requisite licence fee. There was no
like imprisonment for a period upto 3 years intimation to him that his application was
and to impose heavy fines on an innocent rejected. He was purchasing food-grains
65 from time to time and sending returns to the
person who carries on business in an honest
belief that he is doing the business in terms Licensing Authority showing the grains
30 of the law. Having regard to the scope of the purchased by him. He did not sell any grains
Act it would be legitimate to hold that a purchased by him. On September 2, 1961,
person commits an offence under Section 7 when the Inspector of Food and Civil
70 Supplies, Dhar, checked the godowns of the
of the Act if he intentionally contravenes
any order made under Section 3 of the Act. appellant he had stored 885 maunds and
35 So construed the object of the Act will be 21/4 seers of wheat for sale. The said storage
best served and innocent persons will also be of the foodgrains for sale would be valid if
protected from harassment. he had a licence. The learned District
75 Magistrate: found the said facts on the
evidence adduced before him and the High
Court did not take a different view on the
 P a g e | 23

said facts except that it made a remark that application was issued to him though not
there was not a particle of evidence to show actually sent to him. The fact that the
that he had sent the returns to the authority. licensing authority did not communicate to
Indeed the Magistrate said that the said fact 40 him the rejection of his application
5 was not disputed before him. We, therefore, confirmed the accused's belief. On that
for the purpose of this appeal ignore the belief he proceeded to store the foodgrains
remark made by the High Court. When the by sending the relevant returns to the
accused was questioned by the Magistrate he authority concerned. It was, therefore, a
stated thus: 45 storage of food grains within the prescribed
limits under a bona fide belief that he could
10
legally do so. He did not, therefore,
"I deposited the fee by challan for getting the intentionally contravene the provisions of
licence for the year 1961. I submitted the Section 7 of the Act or those of the Order
application. I continued to submit the 50 made under Section 3 of the Act. In the
fortnightly returns of receipts and sales of result we set aside the order of the High
15 food-grains regularly. No objection was Court convicting the appellant and acquit
raised at the time when returns were him of the offence with which he was
submitted. I made continuous efforts for two charged. The bail bond is discharged. If any
months to get the licence. The Inspector 55 fine had been paid, it shall be returned.
gave me assurance that I need not worry, the
20 licence will be sent to my residence. It was
told by the Inspector Bage. I was asked to Also Read, State of Maharashtra vs. MH
drop donation of Rs. 10 in the donation box George AIR 1965 SC 722 (Dissenting &
for the treatment of soldiers. It was told that Majority Opinion)
if the donation is dropped, the licence will
25 be issued within a day or two. I wanted to
Suggested Readings
drop Rs. 5 only. In this way licences were i. Tapas Kumar Banerjee, Background to
determined. Other dealers also continued to India Criminal Law, (Reprint 1990, P.
do the business in the like manner. The Cambray & Co., Calcutta)
business was done with a good intention."
ii. WTS Stallybrass, ‘The Eclipse of Mens
30 The answer given by the accused is Rea’, (1936) LQR 60
consistent with the evidence adduced in the
case. The Additional District Magistrate in iii. Sayre, ‘Public Welfare Offences’, 33
substance accepted the defence. If so it Columbia Law Review 55
follows that the accused stored the goods
35 under a bona fide impression that the licence
in regard to which he had made an
 P a g e | 24

ABHAYANANDA MISHRA vs. STATE OF BIHAR

AIR 1961 SC 1698

Relevance: The Criminal Law punishes not only completed crimes but also conduct short of
completion of a crime. This category of uncompleted crime is often called inchoate crimes. The
doctrine of inchoate crimes applies specifically to three kinds of crime: attempt, conspiracy and
instigation.

Objectives

a. To understand the thin line between preparation and attempt

b. Scope and interpretation of S. 511

c. To understand the offence of Cheating and its attempt (S. 415 IPC)

d. To understand the meaning of term ‘property’

Points of Discussions

1. Whether, the act of Petitioner constitutes the offence of cheating?

2. Whether, the facts proved do not go beyond the stage of preparation for the commission of the
offence of ‘cheating, and do not make out the offence of attempting to cheat.

3. Admission Card, whether a property?

4. When does the stage of preparation end?

Case 15 two copies of his photograph. The appellant

furnished these and on April 9, 1954, proper
Raghubar Dayal, J. admission card for him was despatched to
The appellant applied to the Patna the Headmaster of the School.
University for permission to appear at the Information reached the University about
1954 M.A. Examination in English as a 20 the appellant's being not a graduate and
5 private candidate, representing that he was a
being not a teacher. Inquiries were made and
graduate having obtained his B.A. Degree in it was found that the certificates attached to
1951 and that he had been teaching in a the application were forged, that the
certain school. In support of his application, appellant was not a graduate and was not a
he attached certain certificates purporting to 25 teacher and that in fact he had been de-
10 be from the Headmaster of the School, and
barred from taking any University
the Inspector of Schools. The University examination for a certain number of years on
authorities accepted the appellant's account of his having committed corrupt
statements and gave permission and wrote to practice at a University examination. In
him asking for the remission of the fees and
 P a g e | 25

consequence, the matter was reported to the mind, reputation or property, is said to
police which, on investigation, prosecuted 40 ‘cheat’.
the appellant.
Explanation. - A dishonest concealment of
The appellant was acquitted of the charge of facts is a deception within the meaning of
5 forging those certificates, but was convicted this section.”
of the offence of attempting to cheat
inasmuch as he, by false representations, The appellant would therefore have cheated
45 the University if he had (i) deceived the
deceived the University and induced the
authorities to issue the admission card, University; (ii) fraudulently or dishonestly
10 which, if the fraud had not been detected,
induced the University to deliver any
would have been ultimately delivered to the property to him; or (iii) had intentionally
appellant. induced the University to permit him to sit
50 at the M.A. Examination which it would not
Learned counsel for the appellant raised two have done if it was not so deceived and the
contentions. The first is that the facts found giving of such permission by the University
15 did not amount to the appellant's committing caused or was likely to cause damage or
an attempt to cheat the University but harm to the University in reputation. There
amounted just to his making preparations to 55 is no doubt that the appellant, by making
cheat the University. The second is that even false statements about his being as graduate
if the appellant had obtained the admission and a teacher, in the applications he had
20 card and appeared at the M.A. Examination, submitted to the University, did deceive the
no offence of cheating under s. 420, Indian University and that his intention was to
Penal Code, would have been committed as 60 make the University give him permission
the University would not have suffered any and deliver to him the admission card which
harm to its reputation. The idea of the would have enabled him to sit for the M.A.
25 University suffering in reputation is too Examination. This card is 'property'. The
remote. appellant would therefore have committed
65 the offence of 'cheating' if the admission
The offence of cheating is defined in s. 415, card had not been withdrawn due to certain
Indian Penal Code, which reads : information reaching the University.
“Whoever, by deceiving any person, We do not accept the contention for the
30 fraudulently or dishonestly induces the
appellant that the admission card has no
person so deceived to deliver any property 70 pecuniary value and is therefore not
to any person, or to consent that any person ‘property’. The admission card as such has
shall retain any property, or intentionally no pecuniary value, but it has immense value
induces the person so deceived to do or omit to the candidate for the examination.
35 to do anything which he would not do or
Without it he cannot secure admission to the
omit if he were not deceived, and which act 75 examination hall and consequently cannot
or omission causes or is likely to cause appear at the Examination.
damage or harm to that person in body,
 P a g e | 26

In Queen Empress v. Appasami I.L.R (1889) 40 he has committed the offence; If it fails due
12 Mad. 151 it was held that the ticket to reasons beyond his control, he is said to
entitling the accused to enter the have attempted to commit the offence.
examination room and be there examined for Attempt to commit an offence, therefore,
5 the Matriculation test of the University was can be said to begin when the preparations
‘property’. 45 are complete and the culprit commences to
do something with the intention of
In Queen Empress v. Soshi Bhushan committing the offence and which is a step
I.L.R(1893) 15 All. 210 it was held that the towards the commission of the offence. The
term ‘property’ in s. 463, Indian Penal Code, moment he commences to do an act with the
10 included the written certificate to the effect
50 necessary intention, he commences his
that the accused had attended, during a attempt to commit the offence. This is clear
certain period, a course of law lectures and from the general expression ‘attempt to
had paid up his fees. commit an offence’ and is exactly what the
We need not therefore consider the provisions of s. 511, Indian Penal Code,
15 alternative case regarding the possible 55 require. The relevant portion of s. 511 is :
commission of the offence of cheating by “Whoever attempts to commit an offence
the appellant, by his inducing the University punishable by this Code....or to cause such
to permit him to sit for the examination, an offence to be committed and in such
which it would not have done if it had attempt does any act towards the
20 known the true facts and the appellant
60 commission of the offence, shall, where no
causing damage to its reputation due to its express provision is made by this Code for
permitting him to sit for the examination. the punishment of such attempt, be
We need not also therefore consider the punished.....”.
further question urged for the appellant that
25 the question of the University suffering in its These provisions require that it is only when
reputation is not immediately connected 65 one, firstly, attempts to commit an offence
with the accused's conduct in obtaining the and, secondly, in such attempt, does any act
necessary permission. towards the commission of the offence, that
he is punishable for that attempt to commit
Another contention for the appellant is that the offence. It follows, therefore, that the act
30 the facts proved do not go beyond the stage
70 which would make the culprit's attempt to
of preparation for the commission of the commit an offence punishable, must be an
offence of ‘cheating, and do not make out act which, by itself, or in combination with
the offence of attempting to cheat. There is other acts, leads to the commission of the
a thin line between the preparation for and offence. The first step in the commission of
35 an attempt to commit an offence.
75 the offence of cheating, therefore, must be
Undoubtedly, a culprit first intends to an act which would lead to the deception of
commit the offence, then makes preparation the person sought to be cheated. The
for committing it and thereafter attempts to moment a person takes some step to deceive
commit the offence. If the attempt succeeds,
 P a g e | 27

the person sought to be cheated, he has Legislature did not mean that the act done
embarked on a course of conduct which is 40 must be itself an ingredient (so to say) of the
nothing less than an attempt to commit the offence attempted......”.
offence, as contemplated by s. 511. He does
5 the act with the intention to commit the
“I regard that term (attempt) as here
offence and the act is a step towards the employed as indicating the actual taking of
commission of the offence. those steps which lead immediately to the
45 commission of the offence, although
It is to be borne in mind that the question nothing be done, or omitted, which of itself
whether a certain act amounts to an attempt is a necessary constituent of the offence
10 to commit a particular offence is a question attempted”.
of fact dependent on the nature of the
offence and the steps necessary to take in We do not agree that the ‘act towards the
50 commission of such offence’ must be ‘an act
order to commit it. No exhaustive precise
definition of what would amount to an which leads immediately to the commission
15 attempt to commit an offence is possible.
of the offence’. The purpose of the
illustrations is not to indicate such a
We may refer to some decided cases on the construction of the section, but to point out
construction of s. 511, Indian Penal Code. 55 that the culprit has done all that be necessary
for the commission of the offence even
In The Queen v. Ramsarun Chowbey (1872) though he may not actually succeed in his
4 N.W.P. 46 it was said at p. 47 : object and commit the offence.
20 “To constitute then the offence of attempt
The learned Judge himself emphasized this
under this section (s. 511), there must be an 60 by observing:
act done with the intention of committing an
offence, and for the purpose of committing “The circumstances stated in the
that offence, and it must be done in illustrations to s. 511, Indian Penal Code,
25 attempting the commission of the would not have constituted attempts under
offence…Two illustrations of the offence of the English law, and I cannot but think that
attempt as defined in this section are given 65 they were introduced in order to show that
in the Code; both are illustrations of cases in the provisions of Section 511, Indian Penal
which the offence has been committed. In Code, were designed to extend to a much
30 each we find an act done with the intent of wider range of cases than would be deemed
committing an offence, and immediately punishable as offences under the English
enabling the commission of the offence, 70 Law”.
although it was not an act which constituted
a part of the offence, and in each we find the In In the matter of the petition of R.
35 intention of the person making the attempt
MacCrea [I.L.R. 15 All. 173.] it was held
was frustrated by circumstances that whether any given act or series of acts
independent of his own volition… From the amounted to an attempt which the law would
75 take notice of or merely to preparation, was
illustrations it may be inferred that the
 P a g e | 28

a question of fact in each case and that s. 511 40 nothing but punishable as an attempt. It does
was not meant to cover only the penultimate not say that the last act which would form
act towards the completion of an offence and the final part of an attempt in the larger sense
not acts precedent, if those acts are done in is the only act punishable under the section.
5 the course of the attempt to commit the It says expressly that whosoever in such
offence, and were done with the intent to 45 attempt, obviously using the word in the
commit it and done towards its commission. larger sense, does any act, etc., shall be
Knox, J., said at p. 179 : punishable. The term ‘any act’ excludes the
notion that the final act short of actual
“Many offences can easily be conceived commission is alone punishable.”
10 where, with all necessary preparations
made, a long interval will still elapse 50 We fully approve of the decision and the
between the hour when the attempt to reasons therefore.
commit the offence commences and the hour
when it is completed. The offence of Counsel for the appellant relied on certain
15 cheating and inducing delivery is an offence cases in support of his contention. They are
in point. The time that may elapse between not much to the point and do not in fact
55 express any different opinion about the
the moment when the preparations made for
committing the fraud are brought to bear construction to be placed on the provisions
upon the mind of the person to be deceived of s. 511, Indian Penal Code. Any different
20 and the moment when he yields to the view expressed had been due to an omission
deception practised upon him may be a very to notice the fact that the provisions of s.
60 511, differ from the English Law with
considerable interval of time. There may be
the interposition of inquiries and other acts respect to ‘attempt to commit an offence’.
upon his part. The acts whereby those In In the matter of the petition of Riasat Ali
25 preparations may be brought to bear upon (1881) I.L.R. 7 Cal. 352. the accused's
her mind may be several in point of number, ordering the printing of one hundred receipt
and yet the first act after preparations 65 forms similar to those used by a company
completed will, if criminal in itself, be and his correcting proofs of those forms
beyond all doubt, equally an attempt with were not held to amount to his attempting to
30 the ninety and ninth act in the series.” commit forgery as the printed form would
Blair, J., said at p. 181 : not be a false document without the addition
70 of a seal or signature purporting to be the
“It seems to me that section (s. 511) uses the seal or signature of the company. The
word ‘attempt’ in a very large sense; it learned Judge observed at p. 356 : “...... I
seems to imply that such an attempt may be think that he would not be guilty of an
35 made up of a series of acts, and that any one attempt to commit forgery until he had done
of those acts done towards the commission 75 some act towards making one of the forms a
of the offence, that is, conducive to its false document. If, for instance, he had been
commission, is itself punishable, and though caught in the act of writing the name of the
the act does not use the words, it can mean Company upon the printed form and had
 P a g e | 29

only completed a single letter of the name, I execution of a criminal design, amounting to
think that he would have been guilty of the 40 more than mere preparation, but falling short
offence charged, because (to use the words of actual consummation, and, possessing,
of Lord Blackburn) 'the actual transaction except for failure to consummate, all the
5 would have commenced, which would have elements of the substantive crime; in other
ended in the crime of forgery, if not words, an attempt consists in the intent to
interrupted'.” 45 commit a crime, combined with the doing of
some act adapted to, but falling short of, its
The learned Judge quoted what Lord actual commission; it may consequently be
Blackburn said in Reg. v. Chessman [Lee & defined as that which if not prevented would
10 Cave's Rep. 145.] : “There is no doubt a
have resulted in the full consummation of
difference between the preparation 50 the act attempted : Reg. v. Collins (1864) 9
antecedent to an offence and the actual Cox. 497.”
attempt; but if the actual transaction has
commenced, which would have ended in the This again is not consistent with what is laid
15 crime if not interrupted, there is clearly an down in s. 511 and not also with what the
attempt to commit the crime.” law in England is.

He also quoted what Cockburn, C.J., said in 55 In Stephen's Digest of Criminal Law, 9th
M'Pherson's Case [Dears & B. 202.] :“The Edition, 'attempt' is defined thus : “An
word ‘attempt’ clearly conveys with it the attempt to commit a crime is an act done
20 idea, that if the attempt had succeeded, the with intent to commit that crime, and
offence charged would have been forming part of a series of acts, which would
committed. An attempt must be to do that 60 constitute its actual commission if it were
which, if successful, would amount to the not interrupted.”
felony charged.”
The point at which such a series of acts
25 It is not necessary for the offence under s. begins cannot be defined; but depends upon
511, Indian Penal Code, that the transaction the circumstances of each particular case.
commenced must end in the crime or 65 An act done with intent to commit a crime,
offence, if not interrupted. the commission of which in the manner
proposed was, in fact, impossible, is an
In In re : Amrita Bazar Patrika Press Ltd. attempt to commit that crime. The offence of
30 (1920) I.L.R. 47 Cal. 190. Mukherjee, J.,
attempting to commit a crime may be
said at p. 234 : “In the language of Stephen 70 committed in cases in which the offender
(Digest of Criminal Law, Art. 50), an voluntarily desists from the actual
attempt to commit a crime is an act done commission of the crime itself.
with an intent to commit that crime and
35 forming part of a series of acts which would In In re : T. Munirathnam Reddi
constitute its actual commission if it were AIR1955AP118 it was said at p. 122 : “The
not interrupted. To put the matter 75 distinction between preparation and attempt
differently, attempt is an act done in part may be clear in some cases, but, in most of
 P a g e | 30

the cases, the dividing line is very thin. 40 necessary permission and the admission
Nonetheless, it is real distinction… The card and, not only sent an application for
crucial test is whether the last act, if permission to sit at the University
uninterrupted and successful, would examination, but also followed it up, on
5 constitute a crime. If the accused intended getting the necessary permission, by
that the natural consequence of his act 45 remitting the necessary fees and sending the
should result in death but was frustrated only copies of his photograph, on the receipt of
by extraneous circumstances, he would be which the University did issue the admission
guilty of an attempt to commit the offence of card. There is therefore hardly any scope for
10 murder. The illustrations in the section (s. saying that what the appellant had actually
511) bring out such an idea clearly. In both 50 done did not amount to his attempting to
the illustrations, the accused did all he could commit the offence and had not gone
do but was frustrated from committing the beyond the stage of preparation. The
offence of theft because the article was preparation was complete when he had
15 removed from the jewel box in one case and prepared the application for the purpose of
the pocket was empty in the other case.” 55 submission to the University. The moment
he despatched it, he entered the realm of
The observations ‘the crucial test is whether attempting to commit the offence 'cheating'.
the last act, if uninterrupted and successful, He did succeed in deceiving the University
would constitute a crime’ were made in and inducing it to issue the admission card.
20 connection with an attempt to commit
60 He just failed to get it and sit for the
murder by shooting at the victim and are to examination because something beyond his
be understood in that context. There, the control took place inasmuch as the
nature of the offence was such that no more University was informed about his being
than one act was necessary for the neither a graduate nor a teacher.
25 commission of the offence.
65 We therefore hold that the appellant has
We may summarise our views about the been rightly convicted of the offence under
construction of s. 511, Indian Penal Code, s. 420, read with s. 511, Indian Penal Code,
thus : A person commits the offence of and accordingly dismiss the appeal.
‘attempt to commit a particular offence’
30 when (i) he intends to commit that particular Further Readings
offence; and (ii) he, having made
preparations and with the intention to i. BB Pande, ‘An Attempt to Attempt’,
commit the offence, does an act towards its (1984) 2 SCC J-42
commission; such an act need not be the ii. J.C. Smith, ‘Two replies in Criminal
35 penultimate act towards the commission of Attempts’, 70 Harv LR 422
that offence but must be an act during the
course of committing that offence. iii. Friedman, ‘Mens Rea in Conspiracy’, 19
Mod LR 276
In the present case, the appellant intended to
deceive the University and obtain the
 P a g e | 31

TOPAN DAS vs. STATE OF BOMBAY

AIR 1956 SC 33

Relevance: Section 120-A of the I.P.C. defines ‘conspiracy’ to mean that when two or more
persons agree to do, or cause to be done an ilegal act, or an act which is not illegal by illegal means
such an agreement is designated as “criminal conspiracy”. There shall be overt act. It is not
necessary that each conspirator must know all the details or the scheme nor be a participant at
every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy
to commit crime itself is punishable as a substantive offence. Conspiracy is a continuing offence.
It is an established principle that a single person can’t conspire and thus, for the offence of criminal
conspiracy there must be at least two or more people. The instant case presents the facts where all
co-conspirators have been acquitted but one has been convicted. So the moot question settled in
this case is whether, in such situation conviction of single conspirator is maintainable or not.

Objectives

1. To understand the meaning of inchoate offences

2. To understand the ingredients of offence of Criminal Conspiracy

3. To appreciate the principle that there should be more than one conspirator to attract the
ingredients of offence.

Points of Discussion

1. Whether the conviction under section 120-B is maintainable in view of the fact that the other
alleged conspirators had been acquitted except one.

2. What if other co-conspirators wouldn’t have been identified and only conspirator is tried and
convicted?

Case

N.H. Bhagwati, J.

The accused No. 1, the Appellant before us, Controller of Imports, Bombay, by
and accused Nos. 2, 3 and 4 were charged fraudulently and dishonestly inducing him
that they, at Bombay, between about June to deliver to the firm of J. Sobhraj & Co., an
5 1950 and November 1950, were parties to a import licence to import cycles from United
criminal conspiracy by agreeing to do 15 Kingdom, watches & artificial silk piece
certain illegal acts, to wit : Firstly, that they goods from Switzerland and the abovesaid
used as genuine forged bills of entry which illegal acts were done in pursuance of the
included bills of entry Exhibit Z; Secondly, said agreement and that they thereby
10 that they cheated the Deputy Chief committed an offence punishable under
 P a g e | 32

section 120-B of the Indian Penal Code. “When two or more persons agree to do or
There were also charges against all the 40 cause to be done (i) an illegal act, or (ii) an
accused under section 471 read with section act which is not illegal by illegal means,
465 and section 34 and also under section such an agreement is designated a criminal
5 420 read with section 34 of the Indian Penal conspiracy”. By the terms of the definition
Code in respect of each of the three illegal itself there ought to be two or more persons
acts aforesaid. 45 who must be parties to such an agreement
and it is trite to say that one person alone can
The learned Presidency Magistrate, 23rd never be held guilty of criminal conspiracy
Court, Esplanade, Bombay, tried all the for the simple reason that one cannot
10 accused for the said offences and acquitted
conspire with oneself. If, therefore, 4 named
all of them. The State filed appeal to the 50 individuals were charged with having
High Court of Judicature at Bombay, and the committed the offence under section 120-B
High Court reversed the acquittal of accused of the Indian Penal Code, and if three out of
No. 1 and held him guilty of all the offences these 4 were acquitted of the charge, the
15 with which he had been charged including
remaining accused, who was the accused
the offence under section 120-B of the 55 No. 1 in the case before us, could never be
Indian Penal Code. The acquittal of accused held guilty of the offence of criminal
2, 3 and 4 was confirmed. conspiracy.
The instant special leave before this court is If authority for the above proposition were
20 limited to the question of law, whether the
needed, it is to be found in Archbold's
conviction under section 120-B is 60 Criminal Pleading, Evidence and Practice,
maintainable in view of the fact that the 33rd edition, page 201, paragraph 361 :-
other alleged conspirators had been
acquitted. “Where several prisoners are included in the
same indictment, the jury may find one
25 The charge as framed under section 120-B
guilty and acquit the others, and vice versa.
of the Indian Penal Code was leveled against 65 But if several are indicted for a riot, and the
4 named individuals, the accused No. 1, 2, 3 jury acquit all but two, they must acquit
and 4. It was not a charge against them and those two also, unless it is charged in the
other persons unknown with the result that if indictment, and proved, that they committed
30 accused 2, 3 and 4 were acquitted of that
the riot together with some other person not
charge, there remained only accused No. 1 70 tried upon that indictment. 2 Hawk c. 47. s.
and the question, therefore, arises for our 8. And, if upon an indictment for a
consideration whether, under the conspiracy, the jury acquit all the prisoners
circumstances, the accused No. 1 could be but one, they must acquit that one also,
35 convicted of the offence under section 120-
unless it is charged in the indictment, and
B of the Indian Penal Code. 75 proved, that he conspired with some other
Criminal conspiracy has been defined in person not tried upon that indictment. 2
section 120-A of the “Indian Penal Code” – Hawk c. 47. s. 8; 3 Chit. Cr. L., (2nd Edn.)
 P a g e | 33

1141; R. v. Thompson, 16 Q.B.D. 832; R. v. accused No. 1 could not be convicted of the
Manning, 12 Q.B.D. 241; R. v. Plummer offence under section 120-B of the Indian
[1902] 2 K.B. 339". Penal Code when his alleged co-
conspirators accused 2, 3 and 4 were
The King v. Plummer [1902] 2 K.B. 339 30 acquitted of that offence.
5 which is cited in support of this proposition
was a case in which, on a trial of indictment In our opinion, therefore, the conviction of
charging three persons jointly with the accused No. 1 of the charge under
conspiring together, one person had pleaded section 120-B of the Indian Penal Code was
guilty and a judgment passed against him, clearly illegal. The appeal of the accused
10 and the other two were acquitted. It was held 35 No. 1 will, therefore, be allowed to the
that the judgment passed against one who extent that his conviction under section 120-
had pleaded guilty was bad and could not B of the Indian Penal Code and the sentence
stand. of rigorous imprisonment of 18 months
awarded to him as the result thereof would
This position has also been accepted in 40 be quashed. We are not concerned here with
15 India. In Gulab Singh v. The Emperor A.I.R.
the conviction of the accused No. 1 of the
1916 All. 141 Justice Knox followed the offences under section 471 read with section
case of The King v. Plummer, supra, and 465 and also his conviction for each of the
held that “it is necessary in a prosecution for three offences under section 420 of the
conspiracy to prove that there were two or 45 Indian Penal Code and the concurrent
20 more persons agreeing for the purpose of
sentences of rigorous imprisonment for one
conspiracy” and that “there could not be a year in respect of each of them passed by the
conspiracy of one”. lower Courts upon him in regard to the
The position in law is, therefore, clear that same. These convictions and sentences will
on the charge as it was framed against the 50 of course stand
25 accused Nos. 1, 2, 3 and 4 in this case, the
.

Further Readings

i. Ajay Aggarwal vs. Union of India, (1993)

3 SCC 609

ii. Nazir Khan vs. State of Delhi, (2003) 8

SCC 461
 P a g e | 34

DR. JACOB GEORGE vs. STATE OF KERALA

(1994) 3 SCC 430

Objectives

a. To understand relation between crime and punishment

b. Theories and Rationale of Punishment

c. Kinds of Punishment in IPC.

Questions for Discussions

i. Which theory of Punishment has been advocated by the Supreme Court in the case?

ii. Whether, the purpose of punishment has been served in this case?

iii. Can Court prescribe a punishment not prescribed in the statute book?

iv. Whether, out of the amount of fine, compensation can be provided to the Victim?

Case because of this that along with the criminal

appeal filed by the State which was
B.L. Hansaria, J. registered as Criminal Appeal No. 415/89,
In the present appeals we are not concerned the High Court disposed of Cr. R.C. No.
with taking away of life before its birth. We 25 44/89, which is relatable to its own action.
are concerned with destruction of fetus life. So, two aforesaid appeals have been
5 This is what is known as abortion or preferred by the appellant. It may be stated
miscarriage. that out of fine of Rs. 5,000/- as awarded, a
sum of Rs. 4,000/- was directed to be paid to
Section 312 of the Penal Code speaks about 30 the children of the deceased towards
causing of miscarriage and Section 314 compensation for loss of their mother, in
punishes the person who has intent to case of realisation of fine.
10 miscarriage of a woman and while doing so
causes the death of such woman. It is under The allegations which led the High Court to
this section that the appellant has been found find the appellant guilty under Section 314
guilty by the High court of Kerala after 35 were these. Deceased Thankamani was
setting aside the acquittal order of the married to one Sathyan. After the marriage
15 learned Assistant Sessions Judge. they lived as husband and wife for about one
and half years and a son was born out of the
For the offence under Section 314, the wed lock. About six months thereafter,
appellant has been sentenced for RI four 40 Sathyan reportedly deserted Thankamani
years and a fine of Rs. 5,000/-. The High but then there was reconciliation three
Court had also taken suo motu cognizance months prior to the death of Thankamani
20 against the order of acquittal and it is who became pregnant again. For reasons not
 P a g e | 35

quite known, Thankamani told her mother reasonable doubt and therefore acquitted the
that she would desire to go for abortion since appellant.
she did not want another child. The mother,
who was examined as PW2 in the trial, sent On appeal being preferred by the State and
5 for PW1 her brother-in-law and told him
suo motu cognizance being taken by the
45 High Court, the acquittal order has been set
about the predicament of Thankamani. PW1
happened to know the clinic (hospital) being aside and the appellant has been convicted
run by the appellant in Nilambur where and sentenced as aforesaid, after refusing to
abortions were being done. give the benefit of Probation of Offenders
Act as prayed for. Hence these appeals under
10 Prosecution case is that on 14.1.87, PW1 and 50 Article 136 of the Constitution.
Thankamani went to the clinic and the
matter was discussed with the appellant. A perusal of the impugned judgment of the
Thereafter, she was admitted and the High Court shows that it has placed reliance
appellant agreed to abort her on payment of principally on the evidence of PW 1, who is
15 Rs. 600/-, of which Rs. 500/- was paid the cousin of Thankamani. As he had played
55 a vital role in the entire episode and is a near
immediately undertaking to pay the balance
afterwards, which amount was paid on relation of Thankamani, we find no reason
15.1.87. On that day Thankamani was taken to disagree with the High Court in having
to operation theatre at about 10 P.M. and at placed reliance on his evidence. The defence
20 mid night the appellant told that the case that it was PW 1 who sought to abort
60 the pregnancy by crude method i.e. insertion
operation was successful. PW1 however
found Thankamani unconscious. She of stick and rod into the uterus was rightly
regained consciousness at about 5 A.M. of disbelieved by the High Court as if the
16th and asked for some water. PW1 instead condition of Thankamani became serious
25 brought a cup of tea which Thankamani because of such a crude method and
65 Thankamani was brought to hospital for
could drink with difficulty and started
shivering. On information given to appellant some emergent treatment, as is the defence
he came with a nurse and on examination case, the appellant, being the head of the
found Thankamani in sinking condition. clinic, must have informed police in view of
30 Froth came out from her mouth and life the medico-legal significance, as pointed out
70 by the High Court. The failure of the
ebbed out of her. What happened thereafter
is not material, except that after some time appellant to do so definitely speaks volumes
police was informed which set it into motion against the veracity of the defence
resulting in charge sheeting of the appellant suggestion, as pointed out by the High
35 under various sections including Section Court.
314. In the trial which commenced, 16 75 …What was found in autopsy would clearly
witnesses were examined, apart from show that the uterus got perforated because
bringing many documents on record. The of employing scientific gadgets by the
learned trial court, however, held that appellant a homeopath, which shows that he
40 charges had not established beyond had absolutely no training to handle the
 P a g e | 36

gadgets. The High Court has rightly 40 resulting in death of the patient. The present
described the exercise of the appellant in this case is poles apart.
regard as “daring, crude and criminal”. We
therefore, agree with the High Court that an We, therefore, refuse to give benefit of the
5 innocent life was sacrificed at the altar of a
aforesaid Act to the appellant. We may,
quack. however, put on record that Shri Jain
45 advanced this submission as granting of
We would, therefore, uphold the conviction probation would have removed the
as awarded by the High Court, as the case is disqualification attached to conviction
apparently not covered by any exception because of what has been stated in Section
10 mentioned in the affronted Pregnancy 12 of the aforesaid Act. We do not, however
Termination Act. 50 think that if the appellant is required to be
given this protection and if his practice were
This takes us to the question of sentence. to suffer because of the unwanted act
The High Court has awarded sentence of 4 undertaken by him, let it suffer, as it is
years and a fine of Rs. 5000/-, of which a required to suffer.
15 sum of Rs. 4,000/- was made payable to the
children of the deceased towards 55 Let us now deal with Shri Jain's submission
compensation for the loss of their mother. that the substantive period of imprisonment
Shri Jain has urged that the appellant has may be reduced to the one already
undergone imprisonment for about two undergone which is of about 2 months. To
20 months, and the sentence may be reduced to decide whether this contention merits
the period already undergone. Indeed the 60 acceptance, we have to inform ourselves as
learned counsel has further prayed in this to why a punishment is required to be given
regard to grant the benefit of Probation of for an offence of criminal nature. The
Offenders Act and referred us to a decision purpose which punishment achieves or is
25 of Madras High Court in V Manickam Pillai required to achieve are four in number. First,
v. State 1972 (1) Crl. LJ1488, where the 65 retribution: i.e. taking of eye for eye or tooth
High Court had granted such a benefit. We for tooth. The object behind this is to protect
are, however, of the opinion that keeping in the society from the depravations of
view the nature of the offence and character dangerous persons; and so, if somebody
30 of the appellant, he does not deserve the takes an eye of another, his eye is taken in
benefit of probation. If a homeopath takes to 70 vengeance. This form of protection may not
his head to operate a pregnant lady and receive general approval of the society in
perforate her uterus by trying to abort, he our present state of education and
does not deserve the benefit of probation. It understanding of human psychology. In any
35 would have been a different matter if a case, so far as the matter at hand is
trained surgeon while carrying out the 75 concerned, retribution cannot have full play,
operation in question with the consent of the because the sentence provided by 314 is
lady, as in the present case, would have imprisonment of either description for a
committed some mistake of judgment term which may extend to ten years where
 P a g e | 37

the miscarriage has been caused with the Section 314 has not visualised the sentence
consent of the woman as is the case at hand. of imprisonment only, but permits
So death penalty is not provided. The 40 imposition of fine also. The High Court has
retributive part of sentencing object is imposed a fine of Rs. 5000/-. According to
5 adequately taken care of by the adverse us, however, the fine is required to be
effect which the conviction would have on enhanced considerably. We have taken this
the practice of the appellant. view, inter alia, because of what has been
45 provided in Section 357 of the CrPC which
The other purpose of sentence is preventive. has a message of its own in this regard. It
We are sure that the sentence of was spelt out by this Court in Hari Kishan v.
10 imprisonment already undergone would be
Sukhbir Singh 1989 Cri LJ 116 , in which
an eye opener to the appellant and he would Shetty, J. speaking for a two-judge Bench
definitely not repeat the illegal act of the 50 stated that the power of imposing fine is
type at hand. intended to do something to reassure the
Deterrence is another object which victim that he or she is not forgotten in the
15 punishment is required to achieve. criminal justice system. It is a measure of
Incarceration of about two months responding appropriately to crime as well as
undergone by the appellant and upholding of 55 reconciling the victim with the offender. It is
his conviction by us which is likely to affect to some extent a constructive approach to
the practice adversely, would or should deter crimes and a step forward in a criminal
20 others to desist them from indulging in an justice system. It is because of this that it
illegal act like the one at hand. was recommended that all criminal courts
60 should exercise this power liberally so as to
Reformation is also an expected outcome of meet the ends of justice, by cautioning that
undergoing sentence. We do think that two the amount of compensation to be awarded
months sojourn of the appellant behind the must be reasonable.
25 iron bars and stone walls must have brought
home to him the need of his changing the What is reasonable has to depend upon the
type of practice he had been doing as a 65 facts and circumstances of each case. Let us
homeopath. The reformative aspect of see what should be the quantum of fine to be
punishment has achieved its purpose, imposed in the present case. We are
30 according to us, by keeping the appellant concerned here with the death of a woman
inside the prison boundaries for about two deserted by a husband who wanted to abort.
months having enabled him to know during 70 We understand that she had a son born to her
this period the trauma which one suffers in earlier and that son must have become a
jail, and so the appellant is expected to take destitute with no one to look after. The
35 care to see that in future he does not indulge appellant, on the other hand seems to have
in such an act which would find him in had a roaring practice as would appear, inter
prison. 75 alia, from the photographs of his clinic put
on record. The building is an RCC one and
is three-storeyed and presents a good look.
 P a g e | 38

If a child has to be nursed in these days and i. Allen Noorie, Law, Ideology and
nursed reasonably, a sum of Rs. 1,000/- per Punishment (Kluwer, 1991),
month would definitely be necessary. We, ii. Allen Noorie, Punishment,
therefore, think that the fine to be imposed Responsibility and Justice (OUP, 2000)
iii. Allen Noorie, Law and the Beautiful
5 should be of Rs. one lakh, and so, we
Soul (Routledge, 2005)
enhance the fine from Rs. 5,000/- as
iv. B. Sharon Byrd, ― Kant‘s Theory of
awarded by the High Court to a sum of Rs. Punishment: Deterrance in its Threat;
one lakh. Retribution in its Execution‖ 8 Law and
Philosophy 151-200 (1989).
The result is that the appeals are disposed of
10 by upholding the conviction of the appellant.

Further Readings

REG vs. GOVINDA

(1876) ILR 1 BOM. 342

Introduction: Homicides are graded depending upon the mental element. Purposeful killings are
graded as the most serious and negligent killings are graded as less serious. The mental element
combined with special material surrounding circumstances provides the basis for grading of
criminal homicide. There are two types of criminal homicide in India. Culpable homicide
amounting to murder and culpable homicide not amounting to murder. The instant case provide
insight that whether particular killing is culpable homicide or murder.

Objectives

i. To appreciate the difference between culpable homicide and murder

ii. To appreciate the difference between ‘injury likely to cause death’ and ‘injury sufficient in the
ordinary course of nature to cause death

iii. To appreciate the difference between, ‘knowledge that is likely to cause death’ and the
knowledge that the act ‘is so imminently dangerous that it must in all probability cause death’?

Points of Discussion

i. To discuss the ingredients of Sections 299 & 300 of IPC and compare them

ii. In given facts, which section will be attracted, i.e. Section 302 or Section 304 of IPC
 P a g e | 39

Maxwell Melvill, J.

The issue in this case is whether the offence committed by the prisoner was murder, or culpable
homicide not amounting to murder. For convenience of comparison, the provisions of Sections
299 and 300 of the Indian Penal Code may be stated thus:

Section 299 Section 300

A person commits culpable homicide, if the Subject to certain exceptions, culpable homicide
act by which the death is caused is done is murder, if the act by which the death is caused
is done

(1) With the intention of causing death;

(a) With the intention of causing death;
(2) With the intention of causing such bodily
(b) With the intention of causing such injury as the offender knows to be likely to
bodily injury as is likely to cause death: cause the death of the person to whom the harm
(c) With the knowledge that the act is likely is caused;
to cause death. (3) 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;

(4) With the knowledge that the act is so

imminently dangerous that it must in all
probability cause death, or such bodily injury as
is likely to cause death.

(a) and (1) show that where there is an homicide; if it is the most probable result, it
intention to kill, the offence is always is murder.
murder.
15 The essence of (2) appears to me to be found
(c) and (4) appear to me intended to apply (I in the words which I have underlined. The
5 do not say that they are necessarily limited) offence is murder, if the offender knows that
to cases in which there is no intention to the particular person injured is likely, either
cause death or bodily injury. Furious from peculiarity of constitution, or
driving, firing at a mark near a public road, 20 immature age, or other special circumstance,
would be cases of this description. Whether to be killed by an injury which would not
10 the offence is culpable homicide or murder, ordinarily cause death. The illustration
depends upon the degree of risk to human given in the section is the following:
life. If death is a likely result, it is culpable
 P a g e | 40

A, knowing that Z is labouring under such a 40 effect on the girl's left eye, producing
disease that a blow is likely to cause his contusion and discoloration. The skull was
death, strikes him with intention of causing not fractured, but the blow caused an
bodily injury. Z dies in consequence of the extravasation of blood on the brain, and the
5 blow. A is guilty of murder, although the girl died in consequence either on the spot,
blow might not have been sufficient in the 45 or very shortly afterwards.
ordinary course of nature to cause the death
of a person in a sound state of health. On this state of facts the Sessions Judge and
the assessors have found the prisoner guilty
There remain to be considered (b) and (3), of murder, and he has been sentenced to
10 and it is on a comparison of these two death. I am myself of opinion that the
clauses that the decision of doubtful cases 50 offence is culpable homicide, and not
like the present must generally depend. The murder. I do not think there was an intention
offence is culpable homicide, if the bodily to cause death; nor do I think that the bodily
injury intended to be inflicted is likely to injury was sufficient in the ordinary course
15 cause death; it is murder, if such injury is of nature to cause death. Ordinarily, I. think,
sufficient in the, ordinary course of nature to 55 it would not cause death. But a violent blow
cause death. The distinction is fine, but in the eye from a man's fist, while the person
appreciable. It is much the same distinction struck is lying with his or her head on the
as that between (c) and (4), already noticed. ground, is certainly likely to cause death,
20 It is a question of degree of probability. either by producing concussion or
Practically, I think, it will generally resolve 60 extravasation of blood on the surface or in
itself into a consideration of the nature of the the substance of the brain. A reference to
weapon used. A blow from the fist or a stick Taylor's Medical Jurisprudence (Fourth
on a vital part may be likely to cause death; Edition, page 294) will show how easily life
25 a wound from a sword in a vital part is may be destroyed by a blow on the head
sufficient in the ordinary course of nature to 65 producing extravasation of blood.
cause death.
For these reasons I am of opinion that the
In the present case the prisoner, a young man prisoner should be convicted of culpable
of 18, appears to have kicked his wife, (a girl homicide not amounting to murder, and I
30 of 15) and to have struck her several times would sentence him to transportation for
with his fist on the back. These blows seem 70 seven years.
to have caused her no serious injury. She,
however, fell on the ground, and I think that Further Readings:
the evidence shows that the prisoner then put i. Hyam vs. DPP, 1975 AC 55
35 one knee on her chest, and struck her two or
three times on the face. One or two of these ii. A. Noorie, ‘Oblique Intention and Legal
blows, which, from the medical evidence, I Politics’, 1989 Cri.LR 793
believe to have been violent and to have
iii. R. Duff, ‘The Politics of Intention: A
been delivered with the closed fist, took
Response to Noorie’, (1990) Crim LR 637
 P a g e | 41

VIRSA vs. STATE OF PUNJAB

AIR 1958 SC 465

Objectives

i. To explain the law of murder

ii. To explain the difference between clause (ii) of Section 299 & clause thirdly of section
300
iii. To understand what it mean by ‘injury sufficient in the ordinary course of nature to cause
death.

BOSE J. 30 above the inguinal canal. He also said that

“Three coils of intestines were coming out of
The appellant Virsa Singh has been the wound.” The incident occurred about 8 p.
sentenced to imprisonment for life under s. m. on July 13, 1955. Khem Singh died about
302 of the Indian Penal Code for the 5 p. m. the following day. The doctor said that
5 murder of one Khem Singh. He was granted
35 the injury was sufficient to cause death in the
special leave to appeal by this Court but the ordinary course of nature.
leave is limited to “the question that on the
finding accepted by the Punjab High Court The learned Sessions Judge found that the
what offence is made out as having been appellant was 21 or 22 years old and said-
10 committed by the petitioner.” When the common object of the assembly
40 seems to have been to cause grievous hurts
The appellant was tried with five others under only, I do not suppose Virsa Singh actually
Ss. 302/49, 324/149 and 323/149 Indian had the intention to cause the death of Khem
Penal Code. He was also charged Singh, but by a rash and silly act he gave a
individually under s. 302. The other, were rather forceful blow, which ultimately caused
15 acquitted of the murder charge by the first
45 his death. Peritonitis also supervened and that
Court but were convicted under ss. 326, 324 hastened the death of Khem Singh. But for
and 323 read with s. 149, Indian Penal Code. that Khem Singh may perhaps not have died
On appeal to the High Court they were all or may have lived a little longer."
acquitted. The appellant was convicted by the
20 first Court under s. 302 and his conviction Basing on those facts, he said that the case
and sentence were upheld by the High Court. 50 fell under s. 300, 3rdly and so he convicted
under s. 302, Indian Penal Code. The learned
There was only one injury on Khem Singh High Court Judges considered that the whole
and both Courts are agreed that the appellant affair was sudden and occurred on a chance
caused it. It was caused as the result of a spear meeting. But they accepted the finding that
25 thrust and the doctor who examined Khem
55 the appellant inflicted the injury on Khem
Singh, while he was still alive, said that it was Singh and accepted the medical testimony
“a punctured wound 2” x ½” transverse in that the blow was a fatal one.
direction on the left side of the abdominal
wall in the lower part of the iliac region just
 P a g e | 42

It was argued with much circumlocution that vital organs were cut and so forth. These are
the facts set out above do not disclose an purely objective facts and leave no room for
offence of murder because the prosecution 40 inference or deduction: to that extent the
has not proved that there was an intention to enquiry is objective; but when it comes to the
5 inflict a bodily injury that was sufficient to question of intention, that is subjective to the
cause death in the ordinary course of nature. offender and it must be proved that he had an
Section 300, 3rdly was quoted: intention to cause the bodily injury that is
45 found to be present. Once that is found, the
“If it is done with the intention of causing enquiry shifts to the next clause- “and the
bodily injury to any person and the bodily bodily injury intended to be inflicted is
10 injury intended to be inflicted is sufficient in
sufficient in the ordinary course of nature to
the ordinary course of nature to cause death.” cause death.”
It was said that the intention that the section 50 The first part of this is descriptive of the
requires must be related, not only to the earlier part of the section, namely, the
bodily injury inflicted, but also to the clause, infliction of bodily injury with the intention
15 “and the bodily injury intended to be inflicted
to inflict it, that is to say, if the circumstances
is sufficient in the ordinary course of nature justify an inference that a man's intention was
to cause death.” 55 only to inflict a blow on the lower part of the
This is a favourite argument in this kind of leg, or some lesser blow, and it can be shown
case but is fallacious. If there is an intention that the blow landed in the region of the heart
20 to inflict an injury that is sufficient to cause by accident, then, though all injury to the
death in the ordinary course of nature, then heart is shown to be present, the intention to
the intention is to kill and in that event, the 60 inflict ail injury in that region, or of that
“thirdly” would be unnecessary because the nature, is not proved. In that case, the first
act would fall under the first part of the part of the clause does not come into play.
25 section, namely- “If the act by which the
But once it is proved that there was an
death is caused is done with the intention of intention to inflict the injury that is found to
causing death.” 65 be present, then the earlier part of the clause
In our opinion, the two clauses are we are now examining “and the bodily injury
disjunctive and separate. The first is intended to be inflicted” is merely
30 subjective to the offender: “If it is done with descriptive. All it means is that it is not
the intention of causing bodily injury to any enough to prove that the injury found to be
person.” 70 present is sufficient to cause death in the
ordinary course of nature; it must in addition
It must, of course, first be found that bodily be shown that the injury is of the kind that
injury was caused and the nature of the injury falls within the earlier clause, namely, that
35 must be established, that is to say, whether the injury found to be present was the injury
the injury is on the leg or the arm or the 75 that was intended to be inflicted.
stomach, how deep it penetrated, whether any
 P a g e | 43

Whether it was sufficient to cause death in the Once these three elements are proved to be
ordinary course of nature is a matter of 40 present, the enquiry proceeds further and,
inference or deduction from the proved facts
about the nature of the injury and has nothing Fourthly, it must be proved that the
5 to do with the question of intention. In injury of the type just described made
considering whether the intention was to up of the three elements set out above
inflict the injury found to have been inflicted, is sufficient to cause death in the
45 ordinary course of nature.
the enquiry necessarily proceeds on broad
lines as, for example, whether there was an This part of the enquiry is purely objective
10 intention to strike at a vital or a dangerous and inferential and has nothing to do with the
spot, and whether with sufficient force to intention of the offender. Once these four
cause the kind of injury found to have been elements are established by the prosecution
inflicted. It is, of course, not necessary to 50 (and, of course, the burden is on the
enquire into every last detail as, for instance, prosecution throughout) the offence is
15 whether the prisoner intended to have the murder under s. 300, 3rdly. It does not matter
bowels fall out, or whether he intended to that there was no intention to cause death. It
penetrate the liver or the kidneys or the heart. does not matter that there was Do intention
Otherwise, a man who has no knowledge of 55 even to cause an injury of a kind that is
anatomy could never be convicted, for, if he sufficient to cause death in the ordinary
20 does not know that there is a heart or a kidney course of nature (not that there is any real
or bowels, be cannot be said to have intended distinction between the two). It does not even
to injure them. Of course, that is not the kind matter that there is no knowledge that an act
of enquiry. 60 of that kind will be likely to cause death.
To put it shortly, the prosecution must prove Once the intention to cause the bodily injury
25 the following facts before it can bring a case
actually found to be present is proved, the rest
under s. 300, 3rdly; of the enquiry is purely objective and the only
question is whether, as a matter of purely
First, it must establish, quite 65 objective inference, the injury is sufficient in
objectively, that a bodily injury is the ordinary course of nature to cause death.
present ; No one has a licence to run around inflicting
injuries that are sufficient to cause death in
30 Secondly, the nature of the injury the ordinary course of nature and claim that
must be proved; These are purely 70 they are not guilty of murder. If they inflict
objective investigations. injuries of that kind, they must face the
Thirdly, it must be proved that there consequences; and they can only escape if it
was an intention to inflict that can be shown, or reasonably deduced that the
35 particular bodily injury, that is to say, injury was accidental or otherwise
that it was not accidental or 75 unintentional. We were referred to a decision
unintentional, or that some other kind of Lord Goddard in R v. Steane [1947] 1 All
of injury was intended. E. R. 813, 816. where the learned Chief
 P a g e | 44

Justice says that where a particular intent degree of force sufficient to penetrate that far
must be laid and charged, that particular 40 into the body, or to indicate that his act was a
intent must be proved. Of course it must, and regrettable accident and that he intended
of course it must be proved by the otherwise, it would be perverse to conclude
5 prosecution. The only question here is, what that he did not intend to inflict the injury that
is the extent and nature of the intent that s. he did. Once that intent is established (and no
300 3rdly requires, and how is it to be proved 45 other conclusion is reasonably possible in
? The learned counsel for the appellant next this case, and in any case it is a question of
relied on a passage where the learned Chief fact), the rest is a matter for objective
10 Justice says that: determination from the medical and other
evidence about the nature and seriousness of
“if, on the totality of the evidence, there is 50 the injury.
room for more than one view as to the intent
of the prisoner, the jury should be directed The learned counsel for the appellant referred
that it is for the prosecution to prove the us to Emperor v. Sardarkhan Jaridkhan
15 intent to the jury's satisfaction, and if, on a (1917) I. L. R. 41 Bom. 27,29 where Beaman
review of the whole evidence, they either J. says that- “where death is caused by a
think that the intent did not exist or they are 55 single blow, it is always much more difficult
left in doubt as to the intent, the prisoner is to be absolutely certain what degree of bodily
entitled to be acquitted.| injury the offender intended.”

20 We agree that that is also the law in India. But With due respect to the learned Judge he has
so is this. We quote a few sentences earlier linked up the intent required with the
from the same learned judgment: 60 seriousness of the injury, and that, as we have
shown, is not what the section requires. The
“No doubt, if the prosecution prove an act the two matters are quite separate and distinct,
natural consequences of which would be a though the evidence about them may
25 certain result and no evidence or explanation
sometimes overlap. The question is not
is given, then a jury may, on a proper 65 whether the prisoner intended to inflict a
direction, find that the prisoner is guilty of serious injury or a trivial one but whether he
doing the act with the intent alleged.” intended to inflict the injury that is proved to
That is exactly the position here. No evidence be present. If he (sic) can show that he did
30 or explanation is given about why the not, or if the totality of the circumstances
appellant thrust a spear into the abdomen of 70 justify such an inference, then, of course, the
the deceased with such force that it intent that the section requires is not proved.
penetrated the bowels and three coils of the But if there is nothing beyond the injury and
intestines came out of the wound and that the fact that the appellant inflicted it, the only
35 digested food oozed out from cuts in three possible inference is that he intended to
places. In the absence of evidence, or 75 inflict it. Whether he knew of its seriousness,
reasonable explanation, that the prisoner did or intended serious consequences, is neither
not intend to stab in the stomach with a here nor there.
 P a g e | 45

The question, so far as the intention is prisoner only intended a superficial scratch
concerned, is not whether he intended to kill, and that by accident his victim stumbled and
or to inflict an injury of a particular degree of fell on the sword or spear that was used, then
seriousness, but whether he intended to inflict of course the offence is not murder. But that
5 the injury in question; and once the existence 25 is not because the prisoner did not intend the
of the injury is proved the intention to cause injury that he intended to inflict to be as
it will be presumed unless the evidence or the serious as it turned out to be but because he
circumstances warrant an opposite did not intend to inflict the injury in question
conclusion.- But whether the intention is at all. His intention in such a case would be
10 there or not is one of fact and not one of law. 30 to inflict a totally different injury. The
Whether the wound is serious or otherwise, difference is not one of law but one of fact;
and if serious, how serious, is a totally and whether the conclusion should be one
separate and distinct question and has way or the other is a matter of proof, where
nothing to do with the question whether the necessary, by calling in aid all reasonable
15 prisoner intended to inflict the injury in 35 inferences of fact in the absence of direct
question. It is true that in a given case the testimony. It is not one for guess-work and
enquiry may be linked up with the fanciful conjecture.
seriousness of the injury. For example, if it
can be proved, or if the totality of the The appeal is dismissed.
20 circumstances justify an inference, that the

THOLAN vs. STATE OF TAMIL NADU

[1984] 2 SCC 133

D.A. Desai, J.

2. Appellant Tholan was convicted by the 15 of everyday use for school children. The
learned Sessions Judge. Salem in Sessions balance available for this activity at the
Case No. 134778 for committing murder of relevant time was Rs. 600. It appears that the
Sampat son of Marimutba Pathar on appellant and his brother Raman gave a bid at
5 September 2. 1973 and was sentenced to the auction for a chit in the amount of Rs. 30
suffer imprisonment for life. His appeal to the 20 and were paid the chit amount. Appellant
High Court of Madras was dismissed by a thereafter approached Raman with a request
Division Bench on February 4, 1981. for a loan of Rs. 100 but P.W. 4 Chinnu
informed him that it was not possible to grant
3. A few facts relevant for the disposal of this loan. Some altercation took place in which
10 appeal are that one K.G. Rajan was running a
25 the appellant is said to have used abusive
chit with the help of P.W. 4 Chinnu. The language. P.W. 1 Subramanian and deceased
profit derived by this venture was being Sampat are brothers. They were residing in
utilised to help needy school children by adjacent houses in Boyar Street. On
giving them free slates and such other articles
 P a g e | 46

September 2. 1978 around 7 P. M. appellant 4. In his statement under Section 313 of the
came near the house of deceased Sampat Criminal P.C. the appellant stated that he and
complaining against the organisers of the his brother-in-law took chits of Rs. 30 each
chit. At that time, he was in front of the house and received the amount but when he
5 of one Palaniammal. who on hearing the 45 demanded accounts. P.W. 4 Chinnu and Shri
shouts of the appellant asked him to go away. K.G. Rajan accompanied by others came to
The appellant in turn abused Palaniammal. At beat him and therefore he ran away and did
that time deceased Sampat came out of his not know what happened. He denied having
house and cautioned appellant not to indulge given a knife blow to deceased Sampat and
10 in abusive language, as the ladies were 50 also denied having pointed out the place from
present and told him to go away. The which knife was recovered.
appellant questioned the authority of the
deceased to ask him to go away. Both were 5. The learned Sessions Judge after taking
remonstrating with each other when appellant into consideration the evidence of eye-
15 took out a knife from his waist and stabbed witnesses P.W. 1 Subramanian. P.W. 2 and
55 P.W. 3 and other evidence held the appellant
deceased Sampat on the right side of his chest
and pushed the deceased to a distance of 25 guilty of committing murder of deceased
feet and left him there and went away. Sampat and convicted and sentenced him as
Sampat succumbed to his injury which in hereinabove stated.
20 course of post-mortem examination was 6. The High Court broadly agreed with the
found to be an incised gaping wound 60 findings of the learned Sessions Judge and
obliquely placed over the front of right side dismissed the appeal and confirmed the
of the chest 1 c. m. away from the right conviction.
sternal box dox on the 4th Intercostals space
25 and 5 c. m. medial to the right nipple of size 7. When the petition for special leave to
2 cm.x 1 c. m. at the maximum point. Depth appeal came up at the admission stage. notice
was net-probed. The external wound was 65 limited to the question of nature of offence
spindle shaped with clear cut edges on both and sentence was ordered to be issued.
sides and sharp point on either ends with Thereafter this matter came up for hearing
30 blood clots. On internal examination fracture today when we granted limited leave and
of 5th and 6th ribs were noticed. The depth of with the consent of the learned Counsel
the wound was probed UP to middle lobe of 70 appearing for the appellant and for the
the right lung and proceeding up to right respondent proceeded to hear the appeal.
aerial cavity. The cause of death was stated to
8. The fact that appellant gave a blow with a
35 be shock and haemorrhage on account of the
knife to deceased Sampat which landed on
stab injury and the corresponding internal
the front of the right side chest, and this injury
injury to vital organs like the heart and the
75 resulted in death of Sampat is not open to
lung. This injury in the opinion of the
dispute and not questioned before us.
Medical Officer was sufficient in the
40 ordinary course of nature to cause death.
 P a g e | 47

9. Learned Counsel for the appellant 40 house of deceased Sampat and started
contended that having regard to the genesis remonstrating about the conduct of the
of the occurrence and the surrounding organisers of the chit. How deceased Sampat
circumstances and the fact that one blow with was interested in the chit conducted by K.G.
5 a knife was given which happened to land on Rajan and P.W. 4 Chinnu is not established
the chest it cannot be said with reasonable 45 and the link is tenuous. It appears that the
certainty that appellant intended to commit appellant while remonstrating about the
murder of deceased Sampat or appellant conduct of the organisers of the chit started
intended to cause the particular injury and the using filthy language whereupon one
10 injury intended to be inflicted was sufficient Palaniammal who was in the courtyard of the
in the ordinary course of nature to cause 50 house told the accused to move away from
death. the place in front of her house. Accused
objected to Palaniammal asking him to move
10. Keeping in view the submission it is away and abused her. It is at this stage
necessary to recapitulate the genesis in which deceased Sampat came from his house which
15 the occurrence took place and the
55 appears to be situated near the house of
surrounding circumstances. Palaniammal and told the accused not to use
11. K.G. Rajan with the help of P.W. 4 vulgar language because the ladies were
Chinnu was running a chit. Appellant and his present and asked him to move away from
brother Raman participated in the auction and that place. The appellant questioned the
20 took one chit for Rs. 30 each. Appellant then 60 authority of deceased Sampat to ask him to
approached P.W. 4 Chinnu with a request for move away and an altercation ensued
loan but P.W. 4 Chinnu replied that he had no between them. Appellant is supposed to have
power or authority to grant loan for more than threatened deceased Sampat that he would
Rs. 30. Some altercation took place between settle a score with him and immediately
25 the accused and P.W. 4 Chinnu. This part of 65 thereupon he took out what is described as
the occurrence which is relied upon as motive M.O. 1 Soon knife from his waist and gave
for the offence took place in the office of the one blow to Sampat which landed on his right
Panchayat of which K.G. Rajan was at the side of chest. Eye-witnesses also alleged that
relevant time the President. It also transpired thereafter appellant put his hand on the neck
30 from the evidence that K.G. Rajan and P.W. 70 of deceased and pushed him to a distance of
4 Chinnu belonged to one political party and 25 feet and thereafter the deceased Sampat
the appellant belonged to a different political fell down and appellant ran away. This is the
party. Now we fail to see any connection version of the prosecution as to the origin of
between K.G. Rajan and P.W. 4 Chinnu on the occurrence and we would proceed on the
35 the One side and P.W. 1 Subramaniam and 75 basis that that represents a true and accurate
his deceased brother Sampat on the other account about the genesis of the occurrence
side. The inter-connection is not established because both the courts have accepted the
save and except saving that on September 2. same and there is nothing to depart from this
1978 around 7 P. M. appellant came near the concurrent finding of fact.
 P a g e | 48

12. It is equally not in dispute that appellant was that at any rate appellant when he
gave only one blow with a knife. Appellant wielded a weapon like a knife and gave a
had no quarrel or dispute with deceased blow on the chest, a vital part of the body,
Sampat. It is not shown that deceased Sampat must have intended to cause that particular
5 had anything to do with the chit organised by 45 injury and this injury is objectively found by
K.G. Rajan. No malice has been alleged to the medical evidence to be fatal and therefore
have been entertained by the accused towards Part III of Section 300 would be attracted. On
deceased Sampat. The incident occurred on this aspect, the decisions are legion and it is
the spur of the moment. It appears that the not necessary to recapitulate them here
10 house of the deceased Sampat was 50 merely to cover idle parade of familiar
somewhere near the house in which the knowledge. One can profitably refer to
organisers or at least one of them was Jagrup Singh v. State of Haryana
residing. Appellant had his dispute and MANU/SC/0153/1981MANU/SC/0153/198
grievance with the organisers of the chit. It is 1; Randhir Singh v. State of Punjab
15 the prosecution case that accused abused 55 MANU/SC/0213/1981MANU/SC/0213/198
organisers of the chit. Deceased Sampat is 1; Kulwant Rai v. State of Punjab
not shown to be the organiser of the chit. MANU/SC/0170/1981MANU/SC/0170/198
Probably when the deceased Sampat told the 1 and Hari Ram v. State of Haryana
accused not to misbehave in the presence of MANU/SC/0073/1982MANU/SC/0073/198
20 ladies and not to use vulgar and filthy 60 2. To this list two more cases can be added
language the appellant retorted by Jagtar Singh v. State of Punjab Cri. A.N.
questioning the authority of Sampat to ask 81/83 decided on 14-2-1983 reported in
him to leave the place. Presence of Sampat is 1983CriLJ852 and Ram Sunder v. State of
wholly accidental. Altercation with Sampat U.P. Crl. A. No. 555/83 decided on 24-10-83.
25 was on the spur of the moment. Even the 65 Having regard to the ratio of each of these
meeting was accidental. There arose a decisions, we are satisfied that even if
situation in which appellant probably exception I is not attracted the requisite
misguided by his own egocentric nature intention cannot be attributed to the
objected as to why Sampat should ask him to appellant. But in the circumstances herein
30 leave the place and in this background he 70 discussed he wielded a weapon like a knife
gave one blow with a knife which landed on and therefore he can be attributed with the
the right side chest of the deceased, which has knowledge that he was likely to cause an
proved fatal. Could the appellant be said to injury which was likely to cause death. In
have committed murder! In other words, such a situation he would be guilty of
35 whether Part I or Part III of Section 300. 75 committing an offence under Section 304
I.P.C. would be attracted in the facts of this Part II of the Penal Code. Having regard to
case. Even Mr. Rangam learned Counsel for the circumstances of the case a sentence of 5
the State of Tamil Nadu could not very years would be quite adequate.
seriously contend that the appellant intended
40 to commit murder of Sampat. His submission 13. Accordingly, this appeal is allowed and
80 the conviction of the appellant for an offence
 P a g e | 49

under Section 302, I.P.C and the sentence of 5 he is sentenced to suffer R.I. for 5 years. The
life imprisonment are set aside and the appeal is allowed to the extent herein
appellant is convicted for having committed indicated.
an offence under Section 304 Part II I.P.C and

K. M. NANAVATI vs. STATE OF MAHARASHTRA

AIR 1962 SC 605

Objective

1. To understand the impact of ‘grave and sudden provocation’ on act of killing

2. To understand the culpable homicide amounting to Murder and culpable homicide not
amounting to Murder

Points of Discussion

i. Whether, the act of appellant was under the grade and sudden provocation?

ii. Whether, appellant can raise the defence u/s 80 of IPC?

iii. Whether there would have been the difference in the decision, if appellant, instead of going to
ship, would have went straight to victim’s house with his personal gun?

Case marriage, the couple were living at different

places having regard to the exigencies of
SUBBA RAO, J. service of Nanavati. Finally, they shifted to
Bombay High Court sentenced Nanavati, Bombay. In the same city the deceased
the appellant, to life imprisonment for the 20 Ahuja was doing business in automobiles. In
5 murder of Prem Bhagwandas Ahuja, a the year 1956, Agniks, who were common
businessman of Bombay. This Special leave friends of Nanavatis and Ahujas, introduced
to appeal presents the commonplace Ahuja and his sister to Nanavatis. Ahuja was
problem of an alleged murder by an enraged unmarried and was about 34 years f age at
husband of a paramour of his wife. 25 the time of his death, Nanavati, as a Naval
Officer, was frequently going away from
10 This accused, at the time of the alleged Bombayin his ship, leaving his wife and
murder, was second in command of the children in Bombay. Gradually, friendship
Indian Naval Ship "Mysore". He married developed between Ahuja and Sylvia, which
Sylvia in 1949 in the registry office at 30 culminated in illicit intimacy between them.
Portsmouth, England. They have three On April 27, 1959, Sylvia confessed to
15 children by the marriage ince the time of Nanavati of her illicit intimacy with Ahuja.
 P a g e | 50

Enraged at the conduct of Ahuja, Nanavati 40 bath-room with bullet injuries on his body.
went to his ship, took from the stores of the It is not disputed that the bullets that caused
ship a semi- automatic revolver and six injuries to Ahuja emanated from the
cartridges on a false pretext, loaded the revolver that was in the hand of the accused.
5 same, went to the flat of Ahuja entered his After the shooting, till his trial in the
bed-room and shot him dead. Thereafter, the 45 Sessions Court, he did not tell anybody that
accused surrendered himself to the police. he shot the deceased by accident. Indeed, he
He was put under arrest and in due course he confessed his guilt to the Chowkidar
was committed to the Sessions for facing a Puransingh and practically admitted the
10 charge under s. 302 of the Indian Penal same to his colleague Samuel. His
Code. However, the defence produced 50 description of the struggle in the bath-room
different story saying the accused saw the is highly artificial and is devoid of all
deceased in his bed room and A struggle necessary particulars. The injuries found on
ensued between thetwo and during that the body of the deceased are consistent with
15 struggle two shots went off accidentally and the intentional shooting and the main
hit Ahuja resulting in his death. After the 55 injuries are wholly inconsistent with
shooting the accused went back to his car accidental shooting when the victim and the
and drove it to the police station where he assailant were in close grips. The other
surrendered himself. circumstances brought out in the evidence
also establish that there could not have been
20 The accused, contended that the accused
60 any fight or struggle between the accused
shot at the deceased was under grave and and the deceased.
sudden provocation, and therefore even if he
had committed an offence, it would not be The question that the Court has to consider
murder but only culpable homicide not is whether a reasonable person placed in the
25 amounting to murder. Per contra, the same position as the accused was, would
counsel for defendants opposed that. 65 have reacted to the confession of adultery by
his wife in the manner in which the accused
The deceased seduced the wife of the did. In Mancini v. Director of Public
accused. She had confessed to him of her Prosecutions (1), Viscount Simon, L. C.,
illicit intimacy with the deceased. It was states the scope of the doctrine of
30 natural that the accused was enraged at the
70 provocation thus:
conduct of the deceased and had, therefore,
sufficient motive to do away with the "It is not all provocation that will reduce the
deceased. He deliberately secured the crime of murder to manslaughter.
revolver on a false pretext from the ship, Provocation, to have that result, must be
35 drove to the flat of Ahuja, entered his bed- such as temporarily deprives the person
room unceremoniously with a loaded 75 provoked of the power of self-control as the
revolver in hand and in about a few seconds result of which he commits the unlawful act
thereafter came out with the revolver in his which causes death......... The test to be
hand. The deceased was found dead in his applied is that of the effect of the
 P a g e | 51

provocation on a reasonable man, as was referring to Mancini's case(2), proceeded to

laid down by the Court of Criminal Appeal state thus :
in Rex v. Lesbini, so that an unusually
excitable or pugnacious individual is not "The whole doctrine relating to provocation
5 entitled to rely on provocation which would depends on the fact that it causes, or may
45 cause, a sudden and temporary loss of self-
not have led an ordinary person to act as he
did. In applying the text, it is of particular control, whereby malice, which is the
importance to (a) consider whether a formation of an intention to kill or to inflict
sufficient interval has elapsed since the grievous bodily harm, is negatived.
10 provocation to allow a reasonable man time Consequently, where the provocation
50 inspires an actual intention to kill (such as
to cool, and (b) to take into account the
instrument with which the homicide was Holmes admitted in the present case), or to
effected, for to retort, in the heat of passion inflict grievous bodily harm, the doctrine
induced by provocation, by a simple blow, that provocation may reduce murder to
15 is a very different thing from making use of manslaughter seldom applies."
a deadly instrument like a concealed dagger. 55 A passage from the address of Baron Parke
In short, the mode of resentment must bear a to the jury in R. v. Thomas (1) extracted in
reasonable relationship to the provocation if Russell onCrime, 11th ed., Vol. I at p. 593,
the offence is to be reduced to may usefully be quoted :
20 manslaughter."
"But the law requires two things : first that
Viscount Simon again in Holmes v. Director 60 there should be that provocation; and
of Public Prosecutions elaborates further on secondly, that the fatal blow should be
this theme.There, the appellant had clearly traced to the influence of passion
entertained some suspicions of his wife's arising from that provocation."
25 conduct with regard to other men in the
village. On a Saturday night there was a The passages extracted above lay down the
quarrel between them when she said, "Well, 65 following principles: (1) Except in
if it will ease your mind, I have been untrue circumstances of most extreme and
to you", and she went on, "I know I have exceptional character, a mere confession of
30 done wrong, but I have no proof that you adultery is not enough to reduce the offence
haven't- at Mrs. X.'s". With this appellant of murder to manslaughter. (2) The act of
lost his temper and picked up the 70 provocation which reduced the offence of
hammerhead and struck her with the same murder to manslaughter must be such as to
on the side of the head. As he did not like to cause a sudden and temporary loss of self-
35 see her lie there and suffer, he just put both control; and it must be distinguished from a
hands round her neck until she stopped provocation which inspires an actual
breathing. The question arose in that case 75 intention to kill. (3) The act should have
whether there was such provocation as to been done during the continuance of that
reduce the offence of murder to state of mind, that is, before there was time
40 manslaughter. Viscount Simon, after for passion to cool and for reason to regain
 P a g e | 52

dominion over the mind. (4) The fatal blow condition of mind in which the offender was
should be clearly traced to the influence of 40 at the time of the provocation. In the present
passion arising from the provocation. case the abusive language used was of the
foulest kind and was addressed to man
On the other hand, in India, the first already enraged by the conduct of
5 principle has never been followed. That
deceased's son."
principle has had its origin in the English
doctrine that mere words and gestures would 45 It will be seen in this case that abusive
not be in point of law sufficient to reduce language of the foulest kind was held to be
murder to manslaughter. But the authors of sufficient in the case of man who was
10 the Indian Penal Code did not accept the already enraged by the conduct of
distinction. They observed: deceased's son. The same learned Judge in a
50 later decision in Boya Munigadu v. The
"It is an indisputable fact, that gross insults Queen upheld plea of grave and sudden
by word or gesture have as great tendency to provocation in the following circumstances:
move many persons to violent passion as The accused saw the deceased when she had
15 dangerous or painful bodily injuries ; nor
cohabitation with his bitter enemy; that night
does it appear to us that passion excited by 55 he had no meals; next morning he went to
insult is entitled to less indulgence than the ryots to get his wages from them,and at
passion excited by pain. On the contrary, the that time he saw his wife eating food along
circumstance that a man resents an insult with her paramour; he killed the paramour
20 more than a wound is anything but a proof
with a bill-hook. The learned Judges held
that he is a man of peculiarly bad heart." 60 that the accused had sufficient provocation
The Indian law on the subject may be to bring the case within the first exception to
considered from two aspects, namely, (1) s. 300 of the Indian Penal Code. The learned
whether words or gestures unaccompanied Judges observed :
25 by acts can amount to provocation and (2)
"............If having witnessed the act of
what is the effect of the time lag between the 65 adultery, he connected this subsequent
act of provocation and the commission of conduct as he could not fail to connect it,
the offence. In Empress v. Khogayi, a with that act, it would be conduct of a
division bench of the Madras High Court character highly exasperating to him,
30 held, in the circumstances of that case, that
implying as it must, that all concealment of
abusive language used would be a 70 their criminal relations and all regard for his
provocation sufficient to deprive the feelings were abandoned and that they
accused of self-control. The learned Judges purposed continuing their course of
observed : misconduct in his house. This, we think,
35 "What is required is that it should be of a amounted to provocation, grave enough and
character to deprive the offender of his self- 75 sudden enough to deprive him of his self-
control. In determining whether it was so, it control, and reduced the offence from
is admissible to take into account the
 P a g e | 53

murder to culpable homicide not amounting 40 coming on top of all that had gone before
to murder." was sufficient to bring the case within the
first exception to s. 300 of the Indian Penal
The case illustrates that the state of mind of Code. So too, where a woman was leading a
the accused, having regard to the earlier notoriously immoral life, and on the
5 conduct of the deceased, may be taken into 45 previous night mysteriously disappeared
consideration in considering whether the from the bedside of her husband and the
subsequent act would be a sufficient husband protested against her conduct, she
provocation to bring the case within the vulgarly abused him, whereupon the
exception. Another division bench of the husband lost his self-control, picked up a
10 Madras High Court in In re Murugian held 50 rough stick, which happened to be close by
that, where the deceased not only committed and struck her resulting in her death, the
adultery but later on swore openly in the face Lahore High Court, in Jan Muhammad v.
of the husband that she would persist in such Emperor, held that the case was governed by
adultery and also abused the husband for the said exception. The following
15 remonstrating against such conduct, the case 55 observations of the court were relied upon in
was covered by the first exception to s. 300 the present case :
of the Indian Penal Code. The judgement of
the Andhra Pradesh High Court in In re C. "In the present case my view is that, in
Narayan adopted the same reasoning in a judging the conduct of the accused, one must
20 case where the accused, a young man, who not confine himself to the actual moment
had a lurking suspicion of the conduct of his 60 when the blow, which ultimately proved to
wife, who newly joined him, was confronted be fatal was struck, that is to say, one must
with the confession of illicit intimacy with, not take into consideration only the event
and consequent pregnancy by another, which took place immediately before the
25 strangled his wife to death, and held that the fatal blow was struck. We must take into
case was covered by Exception 1 to s. 300 of 65 consideration the previous conduct of the
the Indian Penal Code. These two decisions women . . . . . . . . . . . .As stated above, the
indicate that the mental state created by an whole unfortunate affair should be looked at
earlier act may be taken into consideration as one prolonged agony on the part of the
30 in ascertaining whether a subsequent act was husband which must have been preying
sufficient to make the assailant to lose his 70 upon his mind and led to the assault upon the
self- control. woman, resulting in her death."

Where the deceased led an immoral life and A division bench of the Allahabad High
her husband, the accused, upbraided her and Court in Emperor v. Balku invoked the
35 the deceased instead of being repentant said exception in a case where the accused and
that she would again do such acts, and the 75 the deceased, who was his wife's sister's
accused, being enraged struck her and, when husband, were sleeping on the same cot, and
she struggled and beat him, killed her, the in the night the accused saw the deceased
Court held the immediate provocation getting up from the cot, and going to another
 P a g e | 54

room and having sexual intercourse with his All the said four decisions dealt with a case
(accused's) wife, and the accused allowed 40 of a husband killing his wife when his peace
the deceased to return to the cot, but after the of mind had already been disturbed by an
deceased fell asleep, he stabbed him to earlier discovery of the wife's infidelity and
5 death. The learned Judges held : the subsequent act of her operated as a grave
and sudden provocation on his disturbed
"When Budhu (the deceased) came into 45 mind.
intimate contact with the accused by lying
beside him on the charpai this must have Is there any standard of a reasonable man for
worked further on the mind of the accused the application of the doctrine of "grave and
10 and he must have reflected that `this man sudden" provocation? No abstract standard
now lying beside me had been dishonouring of reasonableness can be laid down. What a
me a few minutes ago'. Under these 50 reasonable man will do in certain
circumstances we think that the provocation circumstances depends upon the customs,
would be both grave and sudden." The manners, way of life, traditional values etc;
15 Allahabad High Court in a decision, viz., in short, the cultural, social and emotional
Babu Lal v. State applied the exception to a background of the society to which an
case where the husband who saw his wife in 55 accused belongs.
a compromising position with the deceased
killed the latter subsequently when the The Indian law, relevant to the present
20 deceased came, in his absence, to his house
enquiry, may be stated thus : (1) The test of
in another village to which he had moved. "grave and sudden" provocation is whether
The learned Judges observed : a reasonable man, belonging to the same
60 class of society as the accused, placed in the
"The appellant when he came to reside in the situation in which the accused was placed
Government House Orchard felt that he had would be so provoked as to lose his self-
25 removed his wife from the influence of the control. (2) In India, words and gestures may
deceased and there was no more any contact also, under certain circumstances, cause
between them. He had lulled himself into a 65 grave and sudden provocation to an accused
false security. This belief was shattered so as to bring his act within the first
when he found the deceased at his hut when Exception to s. 300 of the Indian Penal
30 he was absent. This could certainly give him Code. (3) The mental background created by
a mental jolt and as this knowledge will the previous act of the victim may be taken
come all of a sudden it should be deemed to 70 into consideration in ascertaining whether
have given him a grave and sudden the subsequent act caused grave and sudden
provocation. The fact that he had suspected provocation for committing the offence. (4)
35 this illicit intimacy on an earlier occasion The fatal blow should be clearly traced to the
also will not alter the nature of the influence of passion arising from that
provocation and make it any the less 75 provocation and not after the passion had
sudden." cooled down by lapse of time, or otherwise
 P a g e | 55

giving room and scope for premeditation reply could not conceivably be a
and calculation. provocation for the murder. We, therefore,
hold that the facts of the case do not attract
Bearing these principles in mind, let us look the provisions of Exception 1 to s. 300 of the
at the facts of this case. When Sylvia 45 Indian Penal Code.
5 confessed to her husband that she had illicit
intimacy with Ahuja, the latter was not In the result, conviction of the accused under
present. We will assume that he had s. 302 of the Indian Penal Code and sentence
momentarily lost his self-control. But if his of imprisonment for life passed on him by
version is true-for the purpose of this the High Court are correct, and there are
10 argument we shall accept that what he has 50 absolutely no grounds for interference.
said is true-it shows that he was only
thinking of the future of his wife and The appeal stands dismissed.
children and also of asking for an
explanation from Ahuja for his conduct.
15 This attitude of the accused clearly indicates Further Reading
that he had not only regained his self-
i. Thankachan & Ors. vs. State of
control, but on the other hand, was planning
Kerala, (2007) 14 SCC 501 (per
for the future. Then he drove his wife and
Pasayat J.) – For distinction b/w s.
children to a cinema, left them there, went to
300 Exception 1 & 4 – in case of
20 his ship, took a revolver on a false pretext,
exception – I there is total
loaded it with six rounds, did some official
deprivation of self-control & in case
business there and drove his car to the office
of Exception – IV, there is a heat of
of Ahuja and then to his flat, went straight to
passion that clouds men to do thing
the bed-room of Ahuja and shot him dead.
which they would not otherwise do.
25 Between 1-30 P.M., when he left his house,
ii. Rawalpenta Venkalu v. State of
and 4-20 P.M., when the murder took place,
Hyderabad, AIR 1956 SC 171-
three hours had elapsed, and therefore there
Intention - clause (a) of section 299
was sufficient time for him to regain his self-
and clause (1) of section 300
control, even if he had not regained it earlier.
iii. Palani Goundan v. Emperor, 1919
30 On the other hand, his conduct clearly shows
ILR 547 (Mad) - Mens rea and actus
that the murder was a deliberate and
reus- Relationship
calculated one. Even if any conversation
iv. RV Kelkar, “Provocation as a
took place between the accused and the
Defence in the Indian Penal Code”,
deceased in the manner described by the
(1963) 5 Journal of the Indian Law
35 accused-though we do not believe that-it
Institute 319-355
does not affect the question, for the accused
v. Todd Archibold, The inter-
entered the bed-room of the deceased to
relationship between Provocation
shoot him. The mere fact that before the
and Mens Rea: A defense of loss of
shooting the accused abused the deceased
Self Control, Crim. L.Q. 455-475
40 and the abuse provoked an equally abusive
 P a g e | 56

S. VARADARAJAN vs. STATE OF MADRAS

AIR 1965 SC 942

Objective

a. To understand the scope of S. 363 of IPC and its ingredients

5 b. Meaning of term ‘enticing’ and ‘taking’

c. difference between abduction and kidnapping

Points of Discussion

i. Whether, in the facts of case, Ss. 363 and S. 376 of IPC are attracted

ii. Whether, the conduct of victim in this case encouraged the accused to commit the crime?

10 Mudholkar J.

The Appellant accused herein has been 35 she was talking with the appellant. Savitri
convicted under S. 363 of the Indian Penal replied saying that she wanted to marry the
Code and sentenced to rigorous appellant. Savitri's intention was
imprisonment for one year. This Special communicated by Rama to their father when
15 Leave to appeal has been granted against he returned home at about 11.00 A.M. on
this order. 40 that day. Thereupon Natarajan questioned
her. Upon being questioned Savitiri started
Savitri, is the third daughter of S. Natarajan, weeping but did not utter a word. The same
P.W. 1, who is an AssistantSecretary to the day Natarajan took Savitri to Kodambakkam
Government of Madras in the Department of and left her at the house of a relative of his.
20 Industries and Co-operation. At the relevant
45 K. Natarajan, P.W. 6, the idea being that she
time, he was living on 6th Street, Lake Area, should be kept as far away from the
Nungumbakkam, along with his wife and appellant as possible for some time. On the
two daughters, Rama, P.W. 2 and Savitri, next day, i.e., on October 1, 1960 Savitri left
P.W. 4. A few months before September 30, the house of K. Natarajan at about 10.00
25 1960 Savitri became friendly with the
50 A.m. and telephoned to the appellant asking
appellant Varadarajan who was residing in a him to meet her on a certain road in that area
house next door to that of S. Natarajan. The and then went to that road herself. By the
appellant and Savitri used to carry on time she got there the appellant had arrived
conversation with each other from their there in his car. She got into it and both of
30 respective houses. On September 30, 1960
55 them then went to the house of one P. T.
Rama found them talking to each other in Sami at Mylapore with a view to take that
this manner at about 9.00 A.m. and had also person along with them to the Registrar's
seen her talking like this on some previous office to witness their marriage. After
occasions. That day she asked Savitri why picking up Sami they proceeded to the
 P a g e | 57

Registrar's office. Thereafter the agreement 40 The Petitioner’s two-fold contention was,
to marry entered into between the appellant was that in the first place Savitri had
and Savitri, which was apparently written abandoned the guardianship of her father
there, was got registered. The agreement and in the second place that the appellant in
5 which these two persons had entered into doing what he did, did not in fact take away
was attested by Sami as well as by one P. K. 45 Savitri out of the keeping of her lawful
Mar, who was a co- accused before the guardian.
Presidency Magistrate but was acquitted by
him. After the document was registered the The issue involved is “whether a minor can
10 appellant and Savitri went to Ajanta Hotel abandon the guardianship of his or her own
and stayed there for a day. After a stay of a guardian and if so, whether Savitri could, in
50 acting as she did, be said to have abandoned
couple of days there, they proceeded to
Sirukulam on October 4, and stayed there for her father's guardianship?
10 or 12 days. Thereafter they went to It will thus be seen that taking or enticing
15 Coimbatore and then on to Tanjore where away a minor out of the keeping of a lawful
they were found by the police who were guardian is an essential ingredient of the
investigating into a complaint of kidnapping 55 offence of kidnapping. Here, we are not
made by S. Natarajan and were then brought concerned with enticement but what, we
to Madras on November 3rd. It may be have to find out is whether the part played
20 mentioned that as Savitri did not return to his by the appellant amounts to "taking", out of
house after she went out on the morning of the keeping out of the lawful guardian, of
October 1st, K. Natarajan went to the house 60 Savitri. We have no doubt that though
of S. Natarajan in the evening and enquired Savitri had been left by S. Natarajan at the
whether she had returned home. On finding house of his relative K. Natarajan ,She still
25 that she had not, both these persons went to continued to be in the lawful keeping of the
the railway station and various other places former but then the question remains as to
in search of Savitri. The search having 65 what is it which the appellant did that
proved fruitless S. Natarajan went to the constitutes in law "taking". There is not a
Nungumbakkam Police Station and lodged a word in the deposition of Savitri from which
30 complaint stating there that Savitri was a an inference could be drawn that she left the
minor on that day and could not be found. house of K. Natarajan at the instance or even
Thereupon the police took up investigation 70 a suggestion of the appellant. There is no
and ultimately apprehended, as already suggestion in Savitri's evidence, who, it may
stated, the appellant and Savitri at Tanjore. be mentioned had attained the age of
35 It is not disputed that Savitri was born on
discretion and was on the verge of attaining
November 13, 1942 and that she was a majority that she was made by the appellant
75 to accompany him by administering any
minor on October 1st. The other facts which
have already been stated are also not threat to her or by any blandishments. The
disputed. fact of her accompanying the appellant all
along is quite consistent with Savitri's own
 P a g e | 58

desire to be the wife of the appellant in 40 her father's protection knowing and having
which the desire of accompanying him capacity to know the full import of what she
wherever he went was of course implicit. In was doing voluntarily joins the accused
these circumstances we find nothing from person. In such a case we do not think that
5 which an inference could be drawn that the the accused can be said to have taken her
appellant had been guilty of taking away 45 away from the keeping of her lawful
Savitri out of the keeping of her father. She guardian. Something more has to be shown
willingly accompanied him and the law did in a case of this kind and that is some kind
not cast upon him the duty of taking her back of inducement held out by the accused
10 to her father's house or even of telling her person or an active participation by him in
not to accompany him. 50 the formation of the intention of the minor to
leave the house of the guardian. It would,
In Abdul Sathar's case 54 M.L.J. 456., it was however, be sufficient if the prosecution
found that the girl whom the accused was establishes that though immediately prior to
charged with having kidnapped was the minor leaving the father's protection no
15 desperately anxious to leave her husband's
55 active part was played by the accused, he
house and even threatened to commit suicide had at some earlier stage solicited or
if she was not taken away from there and persuaded the minor to do so. In our, opinion
observed "If a girl should have been wound if evidence to establish one of those things is
up to such a pitch of hatred of her husband lacking it would not be legitimate to infer
20 and of his house or household and she is
60 that the accused is guilty of taking the minor
found afterwards to have gone out of the out of the keeping of the lawful guardian
keeping of her husband, her guardian, there merely because after she has actually left
must undoubtedly be clear and cogent herguardian's house or a house where her
evidence to show that she did not leave her guardian had kept her, joined the accused
25 husband's house herself and that her leaving
65 and the accused helped her in her design not
was in some manner caused or brought to return to her guardian's house by taking
about by something that the accused did." her along with him from place to place. No
doubt, the part played by the accused could
be regarded as facilitating the fulfillment of
It must, be borne in mind that there is a 70 the intention of the girl. That part, in our
30 distinction between "taking" and allowing a opinion, falls short of an inducement to the
minor to accompany a person. The two minor to slip out of the keeping of her lawful
expressions are not synonymous though we guardian and is, therefore, not tantamount to
would like to guard ourselves from laying "taking".
down that in no conceivable circumstance
35 can the two be regarded as meaning the same 75 The view which we have taken accords with
thing for the purposes of s. 361 of the Indian that expressed in two decisions reported in
Penal Code. We would limit ourselves to a Cox's Criminal Cases. The first of them is
case like the present where the minor alleged Reg. v. Christian Olifier X Cox's Criminal
to have been taken by the accused person left
 P a g e | 59

Cases, 402.. In that case Baron Bramwell 40 such as to persuade the girl, by
stated the law of the case to the jury thus: blandishments or otherwise, to leave her
home either then or some future time, he
"I am of opinion that if a young woman ought to be found guilty of the offence of
leaves her father's house without any abduction.”
5 persuasion, inducement, or blandishment
held out to her by a man, so that she has got 45 We do not agree with everything that has
fairly away from home, and then goes to been said in these decisions and would make
him, although it may be his moral duty to it clear that the mere circumstance that the,
return her to her parent's custody, yet his not act of the accused was not the immediate
10 doing so is no infringement of this Act of cause of the girl leaving her father's
Parliament (24 & 25 Vict. c. 100, s. 55) for 50 protection would not absolve him if he had
the Act does not say he shall restore her, but at an earlier stage solicited her or induced
only that he shall not take her away." her in any manner to take this step.

The other case is Rex v. James Jarvis XX We are satisfied, upon the material on
15 Cox's Criminal Cases 249. There Jelf J., has record, that no offence under S. 363 has been
stated the law thus to the jury : 55 established against the appellant and that he
is, therefore, entitled to acquittal as no
“Although there must be a taking, yet it is
element of persuasion is visible.
quite clear that an actual physical taking way
Accordingly we allow the appeal and set
of the girl is not necessary to render the
aside the conviction and sentence passed
20 prisoner liable to conviction; it is sufficient
60 upon him.
if he persuaded her to leave her home or go
away with him by persuasion or
Further Reading:
blandishments. The question for you is
whether the active part in the going away
i. Thakorlal D. Vadgama vs. The State of
25 together was the act of the prisoner or of the
Gujarat, AIR 1973 SC 2313 - if a minor girl
girl; unless it was that of the prisoner, he is
leaves her parents because of ill treatment
entitled to your verdict. And, even if you do
65 and lives with B her friend, can he be
not believe that he did what he was morally
prosecuted for kidnapping? He doesn’t drive
bound to do-namely, tell her to return home-
her out. Nor does he encourage her to live
30 that fact is not by itself sufficient to warrant
with him.
a conviction : for if she was determined to
leave her home, and showed prisoner that It was held, The expression used in s. 361,
that was her determination, and insisted on 70 I.P.C. is “whoever takes or entices any
leaving with him-or even if she was so minor”. The word “takes” does not
35 forward as to write and suggest to the necessarily connote taking by force and'-it is
prisoner that he should go away with her, not confined only to use of force, actual or
and he yielded to her suggestion, taking no constructive. ‘This word merely means, “to
active part in them matter, you must acquit 75 cause to go”, “to escorts” or “to get into
him. If, however, prisoner's conduct was
 P a g e | 60

possession”. No doubt it does mean physical 40 children from being seduced for improper
taking, but not necessarily by use of force or purposes as. to protect the rights and
fraud. The word “entice” seems to involve privileges of guardians having the lawful
the idea of inducement-or allurement, by charge or custody of their minor wards. The
5 giving rise to hope or desire in the other. gravamen of this offence lies in the taking or
This can take many forms, difficult to 45 enticing of a minor under the ages specified
visualise and describe exhaustively; some of in this--Section, out of the keeping of the
them may be quite subtle, depending for lawful guardian without the consent of such
their success on the mental state of the guardian. The words “takes or entices any
10 person at the time when the inducement is minor..... out of the keeping of the lawful
intended to, operate. This may work 50 guardian of such minor” in s. 361, are
immediately or it may create continuous and significant. The use of the word “keeping”
gradual but imperceptible impression in the context connotes the idea of charge,
culminating after some time, in achieving its protection, maintenance and control, further
15 ultimate purposes of successful inducement. the guardian's charge and control appears to
55 be compatible with the independence of
The two words “takes” and “entices’, as action and movement in the minor, the
used in s. 361, I.P.C. are, in our opinion, guardian's protection and control of the
intended to be read together so that each minor being available, whenever necessity
takes to some extent its colour and content arises. On plain reading of this section the
20 from the other. The statutory language 60 consent of the minor who is taken or enticed
suggests that if the minor leaves her parental is wholly immaterial; it is only the
home, completely uninfluenced by any guardian's consent which takes the case out
promise, offer or inducement emanating of its purview. Nor is it necessary that the
from the guilty party, then the latter cannot taking or enticing must be shown to have
25 be considered to have committed the offence 65 been by means of force or fraud. Persuasion
as defined in s. 361, I.P.C. But if the, 'guilty by the accused person which creates
party has laid a foundation by inducement, willingness on the part of the minor to be
allurement or threat, etc. and if this can be taken out of the keeping of the lawful
considered to have influenced the minor or guardian would be sufficient to attract the
30 weighed: with her in leaving her guardian's 70 section”.
custody or keeping and going to the guilty In the case cited reference has been made to
party, then prima facie it would be, difficult some English decisions in which it has been
for him to plead innocence on the ground stated that forwardness on the part of the girl
that the minor had voluntarily come to him. would not avail the person taking her away
75 from being guilty of the offence in question
35 ii. Also see: In State of Haryana v. Raja and that if by moral force a willingness is
Ram A.I.R. 1973 S.C. 819. Supreme Court created in the girl to go away with the
considered the meaning and scope of s. 361, former, the offence would be committed
I.P.C. It was said there, “The object of this unless her going away is entirely voluntary.
section seems as much to protect the minor

80
 P a g e | 61

TUKARAM & ANR. vs. STATE OF MAHARASHTRA

AIR 1979 SC 185

Objectives

b. To understand the ingredients of Section 375 of IPC

b. Law applicable to the facts is one prevalent on the date of incident

c. Understanding ‘Consent’, ‘Passive Consent’ & ‘tacit Consent’

d. Amendment Process of Criminal Law (Act 43 of 1983)

Points of Discussion

1. What is the difference between will and consent?

2. Under which clause of S. 375, the facts of the case will fall?

3. Whether passive submission amounts to consent?

Case

Koshal, J.

This is a case under Ss. 376 r/w 34 of IPC. 15 and Mathura (P.W. 1) subsequently decided
The Appellants herein (police officers) were to become husband and wife.
arrayed as accused and since have been
convicted by the High Court (Nagpur On the 26th of March, 1972, Gama (P.W. 3)
5 Bench) for 5 years RI, have filed this SLP. lodged report against Nunshi, her husband
and Ashok to the effect that Mathura has
Appellant No. 1 & 2 are head constable and 20 been kidnapped by them. Nunshi, her
constable respectively. Mathura (P.W. 1) is husband, Ashok, Mathura were brought to
the girl who is said to have been raped. Her police station at 9 pm and there reports were
brother name is Gama (P.W. 3). Both of recorded by Head Constable Baburao (P.W.
10 them worked as labourers to earn a living. 8). At 10.30 pm, Baburao told all of them to
Mathura (P. W. 1) used to go to the house of 25 go and asked Gama to bring birth certificate
Nunshi (P.W. 2) for work and there of Mathura. Thereafter, Baburao left but the
developed intimacy with Ashok, who was two appellants were present at the police
the sister’s son of Nunshi (P.W. 2). Ashok station. When Mathura, Nunshi, Gama and
Ashok started leaving the police station, the
 P a g e | 62

appellants, asked Mathura to wait at the The learned Sessions Judge found that there
police station and told her companions to 40 was no satisfactory evidence to prove that
move out. The direction was complied with. Mathura was below 16 years of age on the
Immediately thereafter Ganpat appellant date of the occurrence. Session Judge held
5 took Mathura (P.W.1) to toilet and had that what can be concluded is that sexual
sexual intercourse with her. Thereafter, intercourse happened between Ganpat and
Tukaram also molested her but could not 45 Mathura, but not rape. Mathura is
have sexual intercourse as he was highly habituated to sexual intercourse, as is clear
intoxicated. from the testimony of Dr. Shastrakar, and
accused No. 2 is no novice. He speaks of
10 Nunshi, Gama and Ashok, after waiting for nightly discharges. This may be untrue, but
long tried looking for Mathura but lights 50 there is no reason to exclude the possibility
were off and doors were closed. The noise of his having stained his Paijamal with
attracted a crowd and sometime later semen while having sexual intercourse with
Tukaram emerged from the rear of the police persons other than Mathura. The seminal
15 station and on an enquiry from Nunshi (P.W. stains on Mathura can be similarly
2) stated that the girl had already left. 55 accounted for. She was after all living with
Shortly therafter, Mathura also emerged Ashok and very much in love with him and
from the rear of the police station and then concluded that the prosecution had
informed that she has been raped. failed to prove its case against the
appellants.
20 Nunshi took Mathura to Dr. Khume (P.W. 9)
who instructed them to lodge police 60 The High Court agreed with the learned
complaint. Baburao thereafter lodged the Sessions Judge in respect of his finding with
FIR after insistence of un-restive crowd. regard to the age of Mathura (P.W. 1) but
Mathura (P.W. 1) was examined by Dr. then held that the deposition of the girl that
25 Kamal Shastrakar at 8 p.m. on the 27th of Ganpat appellant had had sexual intercourse
March 1972. The girl had no injury on her 65 with her was reliable, supported as it was by
person. Her hymen revealed old ruptures. circumstantial evidence, especially that of
The vagina admitted two fingers easily. the presence of stains of semen on the
There was no matting of the pubic hair. The clothes of the girl and Ganpat appellant. The
30 age of the girl was estimated by the doctor fact that semen was found neither on the
to be between 14 and 16 years. A sample of 70 public hair nor on the vaginal-smears taken
the pubic hair and two vaginal-smear slides from her person, was considered to be of no
were sent by the doctor in a sealed packet to consequence by reason of the circumstance
the Chemical Examiner who found no traces that the girl was examined by the lady doctor
35 of semen therein. Presence of semen was about 20 hours after the event, and of the
however detected on the girl’s clothes and 75 probability that she had taken a bath in the,
the pyjama which was taken off the person meantime. The High Court remarked:
of Ganpat appellant.
 P a g e | 63

“…we have to see in what situation Mathura First.- Against her will.
was at the material time. Both the accused 40 Secondly.- Without her consent.
were strangers to her…It is, therefore,
Thirdly.- With her consent, when her consent
indeed, highly improbable that Mathura on has been obtained by putting her in fear of death,
5 her part would make any overtures or invite or of hurt.
the accused to satisfy her sexual
Fourthly.-With her consent, when the man
desire…The initiative must, therefore, have
45 knows that he is not her husband, and that her
come from the accused and if such an consent is given because she believes that he is
initiative comes from the accused, indeed another man to whom she is or believes herself
10 she could not have resisted the same on to be lawfully married.
account of the situation in which she had
Fifthly.- With or without her consent, when she
found herself especially on account of a 50 is under sixteen years of age.
complaint filed by her brother against her
Explanation.-Penetration is sufficient to
which was pending enquiry at the very
constitute the sexual intercourse necessary to
15 police station. If these circumstances are the offence of rape.
taken into consideration it would be clear
that the initiative for sexual intercourse must Exception.-Sexual intercourse by a man with his
have come from the accused or any of them 55 own wife, the wife not being under fifteen years
and she had to submit without any of age, is not rape.
20 resistance.....Mere passive or helpless
surrender of the body and its resignation to The section itself states in clauses Thirdly
the other’s lust induced by threats or fear and Fourthly as to when a consent would not
cannot be equated with the desire or will, nor be a consent within the meaning of clause
can furnish an answer by the mere fact that 60 Secondly. For the proposition that the
25 the sexual act was not in opposition to such requisite consent was lacking in the present
desire or volition. ...”In relation to Tukaram, case, reliance on behalf of the State can be
the High Court held that he molested placed only on clause Thirdly so that it
Mathura. Hence HC convicted both. would have to be shown that the girl had
65 been put in fear of death or hurt and that that
SC observed that the onus is always on the was the reason for her consent. To this
30 prosecution to prove affirmatively each aspect of the matter the High Court was
ingredient of the offence it seeks to establish perhaps alive when it talked of “passive
and that such onus never shifts. That section submission” but then in holding that the
lays down: 70 circumstances available in the present case
make out a case of fear on the part of the girl,
375. A man is said to commit “rape” who except it did not give a finding that such fear was
35 in the case hereinafter excepted, has sexual shown to be that of death or hurt, and in the
intercourse with a woman under circumstances absence of such a finding, the alleged fear
falling under any of the five following
75 would not vitiate the consent.
descriptions:
In result appeal is allowed.
 P a g e | 64

Further Reading ii. Law Commission of India, 172nd Report on

review of Rape Laws (2000)
i. DPP vs. Morgan, 1976 AC 182 –
Relevance of Mens Rea of accused in iii. JS Verma Committee Report, 2013
offence of Rape
iv. Criminal Law Amendment Act, 2013

VR PATEL vs. STATE OF MAHARASHTRA

AIR 1965 SC 1433

5 Objectives

a. To appreciate the ingredients of Criminal Misappropriation of Property

b. To understand the ingredients of Criminal Breach of Trust

c. To compare and contrast the offence of Criminal Breach of Trust and Criminal Misappropriation
of Property

10 Points of Discussion

i. Whether, the acquittal in the case is justified?

ii. Compare the judgment in this case with that of Sathi Prasad vs. State Of Uttar Pradesh, AIR
1973 SC 448.

15 Case agreement (Ex. N) was entered into by the

partners on June 4, 1958. A new agreement
Mudholkar J. 30 was entered into and accordingly each
The firm named M/S Bharat Silp Pramandal, partner including the appellant had a share
was formed in the year 1954 and originally in it. The agreement also prohibited the
it consisted of partners and the appellant parties to undertake new work and required
20 was one of the partner in the firm. But on 6th that the appellant should complete all the
Feb, 1957 three of the partners retired and 35 accounts and not to borrow money in the
according to the provisions of Partnership name of the firm. He was also required to
Act 1932 the firm was continued by the realize all the pending bills, security
oremaining five partners. A dispute had deposits, claims etc using his best efforts.
25 arisen between the remaining partners which The agreement also provided that all the
was resolved by the arbitrator Mr. J.T. Desai 40 partners can procure finance upto a
and in pursuance of his award a fresh maximum limit of Rs. 25,000 except the
 P a g e | 65

appellant. But if finance above Rs. 25, 000 40 the respondent contented that the appellant
is required then it is required to be brought would be liable for dishonest
by all the partners including the appellant on misappropriation of property even though it
the basis of their individual shares of profits may not amount to criminal breach of trust
5 and losses. Clause 8 of the agreement also under section 403 IPC.
provided that the appellant can withdraw Rs.
45 The pertinent question which falls to be
10000 on his own account “no sooner he is
able to realise any of the pending claims of considered are:
bills of the firm or security deposits”. i. whether a partner can be convicted
10 According to the complainant the appellant
under s. 409, Indian Penal Code on
committed misappropriation to the tune of the ground that his failure to account
50 for monies belonging to the firm in
Rs. 8,905/ which included 6 items. The Trial
Court convicted the appellant on the first 4 which he was a partner amounts to
items that is Rs. 3000, Rs,1100, Rs. 1100 criminal breach of trust?.
15 under section 409 IPC for criminal breach of
ii. Can a charge under s. 406 of the
trust. Indian Penal Code be framed
55 against a person, who, according to
The appellant admitted that he realized the the complainant, is a partner with
four items but in the capacity of the partner him and is accused of the offence in
and for the business of partnership. And he respect of property belonging to
20 is not liable under section 409 IPC but only both of them as partners ?
liable for rendition of accounts to his 60 iii. Whether the Failure of partner to
partners and civil liability. He also points out account for money of firm guity of
that the complainant has instituted a suit for criminal breach of trust or dishonest
the dissolution of the partnership and for misappropriation of property?
25 rendition of accounts and that he instituted iv. Whether the appellant was guilty in
the present complaint solely with the idea of 65 respect of the dues realized by him
making it difficult, if not impossible, for the from Kablasingh and in not
appellant to defend the civil suit properly. depositing them in the bank as
On behalf of the appellant it is contended alleged by the prosecution?
30 that even if the prosecution had succeeded in
showing that the four items referred to above
70 In the case cited by Petitioner, Bhuban
were realised by the appellant and that he
has not accounted for them properly he will Mohan Rana vs. Surendra Mohan Das, the
not be liable for criminal breach of trust issue raised was, whether a charge under
35 under s. 409, I.P.C. but that his liability section 406 IPC can be framed against the
would be only of a civil nature. In support of partner of the firm accused of the offence in
75 respect of the property belonging to the
this contention reliance is placed upon
Bhuban Mohan Rana v. Surendra Mohan partners? The Bench answered the question
Das(1. L. R. (1952) II Cal. 23.) Per Contra, in negative. All the five Judges constituting
the Full Bench answered the question in the
 P a g e | 66

negative. In the leading judgment which 40 partner has dominion over property by
was, delivered by Harris C.J., he pointed out reason of the fact that he is a partner. This is
that before criminal breach of trust is a kind of dominion which every owner of\
established it must be, shown that the person property has over his property. But it is not
5 charged has been entrusted with property or dominion of this kind which satisfies the
with dominion over property and that a 45 requirements of s. 405. In order to establish
partner does not, in the ordinary course, “entrustment of dominion” over property to
hold property in a fiduciary capacity. The an accused person the mere existence of that
learned Chief Justice further pointed out that person’s dominion over property is not
10 there is really no distinct or defined share of enough. It must be further shown that his
a partner in any item belonging to the 50 dominion was the result of entrustment.
partnership. Upon the dissolution of the Therefore, as rightly pointed out by Harris
partnership and after an account is taken it C.J., the prosecution must establish that
may turn out that a partner who retains an dominion over the assets or a particular asset
15 asset is entitled to the whole of the asset and of the partnership was, by a special
may be, much more. He referred to the 55 agreement between the parties, entrusted to
English view that a partner does not hold the accused person. If in the absence of such
money belonging to the partnership in a a special agreement a partner receives
fiduciary capacity and said that this view money belonging to the partnership he
20 appeared to him to be correct. cannot be said to have received it in a fidu-
60 ciary capacity or in other words cannot be
In the case of Jagannath Raghunathdas v. hold to have been “entrusted” with dominion
Emperor A. I R. 1932 Bom. 47, similar view over partnership properties.
was taken Where it was held that a partner
may be prosecuted under s. 406, I.P.C. for Thus, the court pointed out that to prove
25 failure to account for partnership monies and criminal breach of trust firstly, the elements
assets. In this case the partner was entrusted 65 are essential to be proved. That is
with dominion over collections made by “entrusted” with dominion over the
him. property and then he converted it for his
own use or disposed it off .But in
It seems to us that the view taken in Bhuban partnership every partner has dominion over
30 Mohan Rana's case by the later Full Bench
70 the property and to prove entrustment of
of the Calcutta High Court is the right one. dominion over the property it is necessary to
Upon the plain reading of s. 405, I.P.C. it is prove that dominion over the assets or a
obvious that before a person can be said to particular asset of the partnership was by a
have committed criminal breach of trust it special agreement between the parties,
35 must be established that he was either
75 entrusted to the accused person. If there is
entrusted with or entrusted with dominion no such contract, then it cannot be hold to
over property which he is said to have have been “entrusted” with dominion over
converted to his own use or disposed of in partnership properties.
violation of any direction of law etc. Every
 P a g e | 67

Thus, the appellant cannot be said to have whatever intention will not be liable for
been guilty of criminal breach of trust even misappropriaion and that would be so even
with respect to the dues realised by him from if he is not the exclusive owner thereof. As
Kablasingh and in not depositing them in the 20 already stated, a partner has, undefined
5 bank as alleged by the prosecution. The ownership along with the other partners over
appellant had ownership alongwith the other all the assets of the, partnership. If he
partners to spent the money of the chooses to use any of them for his own
partnership. Even if there was a mandate to purposes he may be accountable civilly to
the appellant with respect to some dues to 25 the other partners. But he does not thereby
10 collect and deposit in bank, faliure to do so commit any misappropriation
would not constitute the offence, as he was
also authorized by the other partners to In the result we allow the appeal and set
spend the money for the business of the aside the conviction and sentence passed
partnership. against him. Appeal allowed.

15 It is obvious that an owner of property, in

whichever way he uses his property and with

Further Readings

i. Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr (2008) 2 SCC 561
ii. The Superintendent & Remembrancer of Legal Affairs, West Bengal vs. S.K. Roy AIR
1974 SC 794 – Ingredients of Cr. Breach of Trust – Explained.
iii. The State Of Gujarat vs. Jaswantlal Nathalal, AIR 1968 SC 700 - s. 409-Government
selling cement to contractor against allotment for specific construction work- respondent
taking delivery on behalf of contractor and diverting some quantity – whether - there was
entrustment to him-if breach of trust committed.

30

35

HIGH COURT OF ORISSA

 P a g e | 68

NIRANJAN DAS vs. GIRDHARI DASAND

Case No. 799/1998, Judgment dated 01.09.1989

Objectives

a. To understand the ingredients of theft, extortion, robbery and dacoity

b. To see the relationship amongst these offences

Points of Discussion

i. Whether, High Court has applied the come to the correct conclusion?

ii. Which law is applicable in the facts of the case?

Case Dacoity has been defined under Section 391,

I.P.C. which is as follows: “When five or
J.Das, J. more persons conjointly commit or attempt
( 1. ) THIS Criminal Misc. Case is directed to commit a robbery or where the whole
against the order dated 21-3-1988 passed by 30 number of persons conjointly committing or
5 Sri A.C. Patnaik, Sub-divisional Judicial attempting to commit a robbery, and
Magistrate, Balasore, in I.C.C. Case No. 432 persons present and aiding such commission
of 1987 taking cognizance under Section or attempt, amount to five or more, every
395, I.P.C. persons so committing, attempting or
35 aiding, is said to commit dacoity.”
( 2. ) The prosecution case appears to be that
10 the complainant alleged that he raised the According to the definition of dacoity, when
paddy in question and the accused persons five or more persons conjointly commit or
numbering more than five came in a body attempt to commit robbery within the
and cut the paddy and took away the same. meaning of Section 391, I.P.C. they are said
It also transpires from the evidence of the 40 to commit dacoity.
15 witnesses that when the complainant
Robbery has been defined in Section 390,
protested, accused Niranjan pushed him and I.P.C. which is as follows:
as a result of that the complainant fell down.
“In all robberies there is either theft or
On these facts, the cognizance has been extortion.
taken under Section 395, I.P.C. The learned
20 advocate for the petitioners argued that the 45 When theft is robbery- Theft is robbery if, in
taking of cognizance under Section 395, order to the committing of the theft, or in
I.P.C. in the circumstances of the case is committing the theft, or in carrying away or
unwarranted and improper. There is much attempting to carry away property obtained
force in the contention of the learned by the theft, the offender, for that and,
25 advocate for the petitioners. 50 voluntarily causes or attempts to cause to
any person death or hurt or wrongful
 P a g e | 69

restraint, or fear of instant wrongful converted into a valuable security, commits

restraint. extortion.”

When extortion is robbery - Extortion is 40 Further theft has been defined in Section
robbery if the offender, at the time of 378, I.P.C. which is as follows:
5 committing the extortion, is in the presence
of the person put in fear, and commits the “Whoever, intending to take dishonestly any
extortion by putting that person in fear of movable property out of the possession of
instant death, of instant hurt, or of instant any person without that person's consent,
45 moves that property in order to such taking,
wrongful restraint to that person, or to some
10 other person, and, by so putting in fear,
is said to commit theft.”
induces the person so put in fear then and Thus it is seen that in dacoity there are
there to deliver up the thing extorted. elements of either extortion or robbery and
Explanation - The offender is said to be theft is the primary offence. In order to
50 constitute dacoity, robbery should not only
present if he is sufficiently near to put the
15 other person in fear of instant death, of
be committed by five or more persons, but
instant hurt, or of instant wrongful restraint. all of them must commit said robbery
Thus, it is clear that robbery constitutes conjointly and unless five or more persons
either theft or extortion in certain commit the robbery conjointly the offence
55 will fall short of the definition of dacoity.
circumstances.”
Conjointly refers to united or concerted
20 When it is a case of robbery, this should be action of the persons participating in the
accompanied by voluntarily causing or transaction. If individual acts of persons
attempting to cause any person death or hurt cannot reasonably be referred to a united or
or wrongful restraint etc. When it is a case 60 concerted action of such persons, there
of extortion, then the said extortion must be cannot be any question of any conviction for
25 committed by putting a person in a fear of dacoity of the group of persons concerned.
instant death, or of instant hurt or of instant In this case the sum total of the evidence is
wrongful, restraint etc. and induces the that the accused persons more than five in
person so put in fear then and there to deliver 65 number went to the field in a body to cut the
up the thing extorted. paddy raised by the complainant and
removed the same.
30 Section 383, I.P.C. defines extortion which
is as follows: On the basis of the evidence available on
record, it may be said that the accused
“Whoever intentionally puts any person in 70 person intended to remove the paddy
fear of any injury to that person, or to any dishonestly. It is also in the evidence that the
other, and thereby dishonestly induces the accused persons cut and removed the paddy.
35 person so put in fear to deliver to any person
When the complainant protested, Niranjan
any property or valuable security; or Das, one of the accused pushed him and as a
anything signed or sealed which may be 75 result of that-the complainant fell down on
 P a g e | 70

the ground. The act of Niranjan Das is an conjointly committed robbery. Hence, the
individual act and there is absolutely no proper Section under which cognizance
evidence that this individual act of the should have been taken in this case is
accused Niranjan Das is a manifestation of 15 Section 379/34, I.P.C. and Section 323,
5 the common intention of others or that to be I.P.C. against accused Niranjan Das. The
more precise, this act of Niranjan Das refers circumstances are such, that cognizance may
to the united or concerted action of the also be taken under Section 143, I.P.C.
person, who participated in the crime.
In the result, the Criminal Misc. Case is
In such circumstances, on account of the 20 allowed and the order dated 21-3-1988
10 said act of the accused Niranjan Das it impugned in this Criminal Misc. Case is
cannot be said that all the accused persons quashed under Section 482, Cr. P.C.

Further Readings

i. G. Williams, ‘Chapter 30- Robbery and Similar Offences, Denis J Baker (ed.), pg. 1085-
1092

Exercise (Try to find)

i. Whether robbery is an offence against person or property?

25 PYARE LAL BHARGAVA vs. STATE OF RAJASTHAN

AIR 1963 SC 1094

Objectives

a. To study the ingredients of theft

b. To appreciate the meaning of Wrongful loss and Wrongful gain

30 c. meaning of the term ‘taking out of the possession’

d. meaning of term ‘moves that property in order to such taking’

Points of Discussion

i. Whether, temporary deprivation of property amounts to theft?

ii. Whether, the facts of case attracts the offence of theft

35
 P a g e | 71

Case Respondent countered all the contentions

put forth by the Petitioner.
SUBBA RAO, J.
40 The issue to be resolved is, whether
This appeal by special leave is directed temporary dispossession of property
against the decision of the High Court of constitutes offence of theft?
5 Rajasthan in Criminal Revision No. 237 of
1956 confirming that of the Sessions judge, The facts found were that the appellant got
Alwar, convicting the appellant under s. 379 the file between December 15 and 16, 1948,
of the Indian Penal Code and sentencing him 45 to his house, made it available to Ram
to a fine of Rs. 200/-. Kumar Ram and on December 16, 1948,
returned it to the office. On these facts it is
10 Appellant, Pyarelal Bhargava was a contended that the prosecution has not made
Superintendant in the Chief Engineer’s out that the appellant dishonestly took any
Office. Appellant got a file removed from 50 movable property within the meaning of s.
the Secretarial through a clerk and took it 378 of the Indian Penal Code. The said
home and made it available to his friend, the section reads :
15 co-accused, Ram Kumar Ram who removed
certain documents by substituting others. “Whoever, intending to take dishonestly any
After the discovery of the tampering of movable property out of the possession of
documents, the appellants were prosecuted 55 any person without that person's consent,
before the Sub-Divisional Magistrate, under moves that property in order to such taking,
20 section 379 and section 465, read with s. is said to commit theft.”
109, of the Indian Penal Code.
The section may be dissected into its
The Sub-Divisional Magistrate convicted component parts thus : a person will be
both the accused under the said sections and 60 guilty of the offence of theft, (1) if he.-
sentenced them on both the counts. On intends to cause a wrongful gain or a
25 appeal the Sessions judge set aside the wrongful loss by unlawful means of
Conviction under s. 465, but maintained the Property to which the person gaming is not
conviction and under section 379. Against legally entitled or to which the person losing
the convictions both the accused filed 65 is legally entitled, as see ss.23 and 24 of the
revisions to the High Court and the High Indian Penal Code; (2) the said intention to
30 Court set aside the conviction and sentence act dishonestly is in respect of movable
of Ram Kumar Ram but confirmed those of property; (3) the said property shall be taken
Pyarelal Bhargava. Pyarelal Bhargava thus out of the possession of another person
approached this Court by filing an appeal. 70 without his consent; and (4) he shall move
that property in order to such taking. In the
The Petitioner contended that on the facts present case the record was in the possession
35 found 'the offence of theft has not been made
of the Engineering Department under the
out within the meaning of s. 379 of the control of the Chief Engineer. The appellant
Indian Penal Code. Per Contra, the 75 was the Superintendent in that office; he
 P a g e | 72

took the file out of the session of the said The loss need not be caused by a permanent
engineer. removed the file from office and deprivation of property but may be caused
handed it over to Ram Kumar Ram. But it is even by temporary dispossession, though
contended that the said facts do not the per-son taking it intended to restore it
5 constitute the offence of theft for three 45 sooner or later. A temporary period of
reasons, namely, (i) the Superintendent was deprivation or dispossession of the property
in possession of the file and therefore he of another causes loss to the other. That a
could not have taken the file from himself; person will act dishonestly if he temporarily
(ii) there was no intention to take it dispossesses another of his property is made
10 dishonestly as he had taken it only for the 50 clear by illustrations (b) and (1) of s.378 of
purpose of showing the documents to Ram the Indian penal code.
Kumar Ram and returned it the next day to
the office and therefore he had not taken the (b) A puts a bait for dogs in his pocket, and
said file out of the possession of any person; thus induces z's dog to follow it. Here, if A's
15 and (iii) he did not intend to take it intention be dishonestly to take the dog out
55 of Z's possession without Z's consent, A has
dishonestly, as he did not receive any
wrongful gain or cause any wrongful loss to committed theft as soon as Z's dog has begun
any other per-son. We cannot agree that the to follow A.
appellant was in session of the file. The file (1). A takes an article belonging to Z out of
20 was in the Secretariat of the Department Z's possession without Z's consent, with the
concerned, which was in charge of the Chief 60 intention of keeping it until he obtains
Engineer. The appellant was only one of the money from Z as a reward for its restoration.
officers working in that, department and it Here A takes dishonestly; A has therefore
cannot, therefore, be said that he was in legal committed theft.
25 possession of the file. Nor can we accept the
argument that on the assumption that the It will be seen from the said illustrations that
Chief Engineer was in possession of the said 65 a temporary removal of a dog which might
file, the accused had not taken it out of his ultimately be returned to the owner or the
possession. temporary taking of an article with a view to
return it after receiving some reward
30 To commit theft one need not take movable constitutes theft, indicating thereby that
property permanently out of the possession 70 temporary deprivation of another person of
of another with the intention not to return it his property causes wrongful loss to him.
to him. It would satisfy the definition if he We, therefore, hold that the facts found in
took any movable property out of the this case clearly bring them within the four
35 possession of another person though he comers of s. 378 of the Indian Penal Code
intended to return it later on. We cannot also 75 and, therefore, the courts have rightly held
agree with learned counsel that there is no that the appellant had committed the offence
wrongful loss in the present case. Wrongful of theft.
loss is loss by unlawful means of property to
40 which the person losing it is legally entitled. Appeal was dismissed.
 P a g e | 73

Further Readings

i. KN Mehra vs. State of Rajasthan, AIR 1957 SC 369

ii. G Williams, ‘Temporary Appropriation Should be Theft’, 1981 Cr. LR 129

iii. Michael Allen & Simon Cooper (eds), Elliott & Woods, Cases and Material on Criminal Law,
9th Ed., pg. 689-713

SATHI PRASAD vs. STATE OF UTTAR PRADESH

AIR 1973 SC 448

Objectives

a. To understand the ingredients of Criminal Misappropriation of Property

5 b. To understand ingredients of robbery and what is the effect if while robbery hurt has also been
cause?

c. Misappropriating the property from body of deceased person?

d. To understand the ingredients of offence of criminal breach of trust

Points of Discussion

10 i. Whether the conviction of accused u/s 404 of IPC is correct?

ii. Whether conviction of accused u/s 394 of IPC is correct?

iii. Whether, appellant could have been convicted for criminal breach of trust?

Case persons were drowned. Search Party was

constituted by Police.
15 The appellant was head constable at the
police. On 10 April, 1965 which was Ram A person gave information that the dead
Naumi day a large number of persons had 25 body of a stout person wearing white bush-
come to Ayodhya to have a dip in the holy shirt and a pair of steel colour terrylene
river Saryu and a Darshan of the temples. trousers had been found near Sahjaura
20 There was a large crowd on the bridge over Pathak village and a wrist watch, a gold ring
the river. The bridge gave way. Many and some money had been recovered from
30 the body by certain boatmen but the same
 P a g e | 74

had been taken away from the boatmen by Shanker Singh and his party took possession
the police after beating him and giving threat of the wrist watch and the gold ring and went
no to disclose to anyone. to police station Chhaoni and report was
40 lodged.
The search party along with the chowkidar
5 and the person who gave information The defence of the appellant was that he
proceeded to village Sahjaura Pathak. There took the wrist watch, the gold ring and the
the party met the Mallahs who were the cash from Daya Ram on coming to know
boatmen. They were Munnu Lal Mallah, that the latter had recovered the same from
P.W. 8 and Daya Ram Mallah P.W. 9 and 45 the dead body and the appellant kept the
10 Jassi Mallah. same with himself having sent information
the Station Officer of Police Station Chhaoni
The search party went to the police out-post through constable Ram Bihari Singh
Baghanala along with Daya Ram P.W. 9 attached to Chhaoni Police Station.
Daya Ram P.W. 9 was one of the Mallaha.
The party went inside the police out-post 50 The crucial question is whether the offence
15 Baghanwala and met the appellant. under sections 394 & 404 of IPC is made
out?
At the instance of Shanker Singh (Advocate
– headed search party) the general diary of PW 10 & PW 11 in their statement u/s 164
the Baghanala police outpost relating to 12 CrPC stated that Daya Ram had made over
April, 1965 was shown. The diary showed 55 the articles to the appellant voluntarily and
20 that the police left the out-post at 6.40 a.m. without being beaten and Daya Ram was
on 12 April, 1965 in search of dead bodies slapped after he had given the articles. At the
and the police party returned to the out-post trial both those witnesses however said that
at 6. p.m. with the narration that no dead the appellant gave slap to Daya Ram and got
body was recovered on that day. 60 the articles from the latter.

25 Shanker Singh thereafter told the appellant PW, 8 Munnu Mallah and P.W. 9 Daya Ram
that he would go to the higher authorities for deposed that the articles were given after the
action. Constable Kidar who was co- appellant had slapped Daya Ram.
accused with the appellant thereupon took
the appellant aside and advised him to hand An important feature of the evidence is that
65 the appellant denied having taken anything
30 over the wrist watch, gold ring and cash to
Shanker Singh. The appellant went to his from Daya Ram and yet the articles were
house and brought the wrist watch, and the handed over by the appellant only after the
gold ring and made over the same to PW6 search party had come out of the police
Sri Jagdamba Singh confessing before the outpost. The general diary or the duty
70 register of the Baghanala police out-post,
35 party m terms of Daya Ram's version and
said that he had spent the cash. which the appellant was attached does not
mention that the Mallaha had found a dead
body in village Sahjaura Pathak nor is there
 P a g e | 75

any entry in that diary that the appellant had 25 possession, shall be punished with imprisonment
taken the same from one of the Mallahs. If it of either description for a term which may
were the real intention of the appellant to extend to three years, and shall also be liable to
deposit the articles it would be natural for fine; and if the offender at the time of such
person’s decease was employed by him as a
5 him to record the same in the general diary.
30 clerk or servant, the imprisonment may extend
394. Voluntarily causing hurt in committing to seven years.
robbery.—
The High Court appreciating the facts and
394. If any person, in committing or in law upheld the conviction and sentences
attempting to commit robbery, volun-tarily passed by the Sessions Court. The High
10 causes hurt, such person, and any other person 35 Court correctly held that the offence under
jointly concerned in committing or attempting to Section 394 of the Indian Penal Code was
commit such robbery, shall be punished with established on the evidence. The Sessions
1[imprisonment for life], or with rigorous Court as well as the High Court accepted the
imprisonment for a term which may extend to ten evidence of the prosecution witness that the
15 years, and shall also be liable to fine.
40 articles were not given voluntarily by Daya
Section 404 of the Indian Penal Code Ram to the appellant.

404. Dishonest misappropriation of property The High Court also correctly held that the
possessed by deceased person at the time of his offence under Section 404 of the Indian
death.—Whoever dishonestly misappropriates Penal Code was made out because the
20 or converts to his own use property, knowing 45 appellant kept the articles with himself for
that such property was in the possession of a his own purpose.
deceased person at the time of that person’s
decease, and has not since been in the Appeal Dismissed
posses-sion of any person legally entitled to such

Further Readings

i. R vs. Dawson, (1976) 64 Cr. App. R. 170 – Difference between ‘force’ and ‘violence’
 P a g e | 76

The King vs. Tustipada Mandal and Ors.

AIR 1951 Ori 284

Objective

a. To understand the difference between ignorance of fact and ignorance of law

5 b. To understand the scope of Ss. 76 & 79 of IPC

c. Preparation as distinguished from attempt

d. To understand meaning of ‘offence’ u/s 40 of IPC

Points of Discussion

i. What is the thin line between preparation and attempt? In the facts of case, whether the act of
10 accused will amount to preparation or attempt?

ii. Whether the mistake, which led them to believe in their justification, was a mistake of fact &
not a mistake of law.

iii. Whether good faith is a relevant excuse for arguing the ignorance of law?

iv. If a person is ignorant of law then whether the mental state under which one is capable of
15 committing an offence, can be existent in the accused.

Case Orisaa Livestock (Control of Movement &

Transactions) Order 1917, , Orissa Essential
B.K. Ray, C.J. 35 Articles Control & Requisitioning
This appeal is directed against an order of (Temporary Powers) Act 1947.
acquittal recorded by Rai Bahadur Charu On 2-6-1947, the resps. were found passing
20 Chandra Coari, Ses. J. Cuttack, in Cri. App.
through Dharmasala (in the dist. of Cuttack)
No. 70-C of 1947, reversing the order of en-route Bhadrak with 21 heads of cattle
conviction passed by the Sub-Divisional 40 (bullocks), purchased on different dates by
Mag. Jaipur, in the case of Emperor v. one or other of them in different districts of
Tustipada Mandal & 5 others, under Orissa. They were avowedly moving &
25 Schedule 0, Orissa Essential Articles
transporting cattle to the dist. of Burdwan
Control & Requisitioning (Temporary beyond the provincial boundaries of Orissa.
Powers) Act (I [l] of 1947). 45 It is admitted that the respondents held no
The respondents, six in number, belong to permit nor licence from the Govt. of Orissa
the dist. of Burdwan in the Province of as enjoined in Cl. 3 of the Order aforesaid.
30 Bengal. They were prosecuted for Under these circumstances they were
attempting to transport 21 bullocks from the prosecuted under Schedule 0 of the Orissa
Province of Orissa in contravention of cl. 3, 50 Act I [l] of 1947. & sentenced to pay a fine
 P a g e | 77

of Ks. 51 each, & the 21 bullocks Beized transported, it being admitted by the accused
were forfeited to the Govt. of Orissa. that they were taking them to the district of
40 Burdwan.
In appeal, the learned Session Judge of
Cuttack gave them benefit of doubt & set The movement & transport being contrary to
5 aside their conviction & recalled the order of law the offence must commence as soon
forfeiture of the bullocks seized. after their purchase of the cattle as they
begin to move them even a step. The act of
The relevant points raised are: 45 movement or transport is to be accomplished
i. that whatever the resps. did in between two termini, one is terminus a quo
furtherance of movement & & the other is terminus ad quem. Any
10 transport of the cattle amounted in slightest movement from the former towards
law to preparation, as distinguished the latter amounts to movement of transport
from attempt, to commit the offence. 50 within the mischief of the clause.
ii. that in view of the Govt. of India's The argument can prevail if the accused
letter addressed to all Provincial persons did nothing beyond purchase of the
15 Govts., the resps. had reasons to cattle for the purpose of moving or
believe bona fide that under the laws, transporting. The dividing line between
then prevailing, there was no 55 preparation & attempt is real though fine. So
imposition of any ban on the long as the offender is at the stage of
movement & transport of cattle from preparation, he is not held punishable as it is
20 Orissa across its borders. still open to him to change his mind. The
Point (i):-To appreciate Mr. D. Sahu test, therefore, is whether the overt acts,
submissions, it would be necessary to read 60 already done, are such that if the offender
cl. (3), Orissa Livestock (Control of changes his mind & does not proceed further
Movement & Transactions) Order 1947. Its in its progress, the act already done would
25 material portion reads: be completely harmless. But where the thing
done is such as, if not prevented by any
“No person shall move or transport or 65 extraneous cause, would justify into
attempt to transport, any livestock .... to any commission of the offence, it would amount
place outside it except under & in to an attempt to commit an offence. In the
accordance with a permit .... issued in this present case, cl. (3) makes an attempt to
30 behalf.” move or transport without a permit as good
70 an offence as the completed acts of
The submission is that the offence is
movement or transport from inside the
committed only when the Provincial
Province to a place outside.
boundaries are crossed & not before that. To
accede to this contention would amount to Point ii:- The facts relevant to elucidation of
35 virtual abrogation of the law. This is not a this branch of contention, are admitted
case in which there was any dispute as to 75 beyond any controversy & they are set out
where to the cattle were being moved or herein below :
 P a g e | 78

That, with the lapse of Defence of India Act, place outside it except under & in
the various orders, passed by the Provincial accordance with permit issued by ... .”
Govts. controlling the movement &
transport of livestocks, made as they had The offence, which is the subject of this trial,
5 been under the Defence of India Rules; is contravention of this clause which is made
45 punishable Under Section 10 of the Act. I
deriving their force from the Defence of
India Act, automatically exhausted have already said that the order containing
themselves. The Govt. of Orissa, however, the clause was notified on 23-4-1947.
considered that it was expedient in the It appears from the documents, printed at pp.
10 interest of the life of the community in 10 & 11 of the Paper Book that K.P.W.
Orissa that power to control movement & 50 Marar, Esq., Joint Secretary to the Govt. of
transport & of certain essential articles & India, addressed to all Provincial Govts. on
trade & commerce therein & requisitioning 19-3-1947 (a few days after the publication
thereof should continue for a limited period. of the concerned Act of Orissa) in the
15 Propelled by this decision, the Legislature of following terms:
Orissa passed Act I of 1947, which received
the assent of the Governor-General on 28-2- 55 “Sir, I am directed to say that with the lapse
1917, & was published in the Orissa Gazette of the Defence of India Act, various orders
on 12 3-1947. In pursuance of this Act, passed by the Provincial Govts. controlling
20 livestock, including poultry, constituted, the movement of livestock cease to be
inter alia essential commodities for the operative. Their orders were not, however,
purposes of the Act. According to the 60 formally withdrawn & instances have come
provisions) of Sections 3 & 4, the Provincial to the notice of the Govt. of India where the
Govt. were empowered to make & notify public are still under the impression that the
25 necessary orders for regulating of movement of livestock is not free. … I am,
prohibiting production, processing, supply, therefore, to request you to remove any
distribution, transport & prices of essential 65 wrong impression that might exist & issue a
articles & trade & commerce therein. The formal notice intimating that these
powers, thus conferred, without any respective orders are no longer in force…”
30 prejudice to the generality, were specified in
Following this letter the Director of
Sub-section (2) of the section. In fulfillment
Agriculture, Bengal wrote a Memo No. 7464
of this power in order to meet the exigencies
70 dated 18-4-47 to the Deputy Director of
of the circumstances flowing from the then
Agriculture, Burdwan Circle informing:
condition of the community at large in the
35 Province of Orissa, the relevant order was “Now-a-days there is no restriction on the
made which was notified on 23-4 1947. In inter-provincial movement of cattle…”
cl. (3) of this order, it was prescribed :
It may be noted that the enquiry, referred to,
“No person shall move or transport or 75 took place on 2-6-1947. From such receipts,
attempt to move or transport any livestock ... printed at pp. 11 to 15, as are relevant to the
40 from any place in the Province .... to any present case, the resps. commenced
 P a g e | 79

purchasing bullocks, in question, from the provisions, contained in Chap. IV, I. P. C.

second week of may & completed the same under the head “General Exceptions.” The
on 1st of June. They started moving on the 40 section, on which Mr. Sahu lays his finger in
2nd of June & were arrested on that day. support of his contention, is 79, which reads:

5 On these facts, it is contended by Mr. Sahu, “Nothing is an offence which is done by any
that the actions of the accused were fully person who is justified by law, or who by
justified as they, in good faith & reasonably, reason of a mistake sot fact & and not by
believed that they were entitled to move or 45 reason of a mistake of law in good faith,
transport cattle from Orissa to a place believes himself to be justified by law, in
10 beyond its borders & to trade or commerce doing it.”
in livestock inter provincially.
The next question, that then arises, is
The facts, proved, do not sufficiently make whether the resp's case comes within the
out the defence plea with reference to the 50 purview of aforesaid section, that is, whether
material time of commission of the offence. they, for reason of mistake of fact & not by
15 The commission of the offence must, in this reason of mistake of law, in good faith,
case, be held to have commenced from the believed themselves to be justified by law.
date of the purchase, though the actual True, that, but for the Act restricting such
movement or transport, as the case may be, 55 movement, they would be justified by law to
commenced on 2nd of June. This is so in move them, But the question, that falls to be
20 view of Section 11 of the Act, which says: considered, is whether the mistake, which
led them to believe in their justification, was
“Any person......does any act preparatory to a mistake of fact & not a mistake of law. I
a contravention of an order made under the 60 shall deal with the question of their “good
provisions of this Act, shall be deemed to faith” presently. (Before doing so I shall
have contravened the order......” assume ‘good-faith’ in their favour).
25 The learned Advocate-General in counter
It is contended, on behalf of the Province,
augmenting the contention of Mr. Sahu, says that it was a mistake of law rather than a
that the principles underlying the “general 65 mistake of fact, Mistake of law ordinarily
exceptions” in chap, iv, I. P. C., are not means mistake as to existence or otherwise
applicable to a special or local Law offence of any law on a relevant subject as well as
30 as the present one. This contention cannot be
mistake as to what the law is.
entertained in view of Section 40 of the
Code, wherein it is provided: In holding a citizen guilty of any offence, the
70 existence of manse rea in him is
“In Chap. IV......word ‘offence’ denotes a fundamental. It is only when the mind is at
thing punishable...... under any special or fault, that a man can be held guilty of an
35 local law as hereinafter defined.”
offence. It is fundamental, too, that
The contention of Mr. Sahu, therefore, whenever & wherever there is a mistake of
deserves consideration in view of the 75 fact on which is founded a belief in good
 P a g e | 80

faith of justification by law of an act, the temporary Acts, that have either exhausted
requisite state of mind that would make the or been repealed, & in the list, Orissa Act I
author of the act; guilty is absent. [1] of 1917 & the order, published there
Considered in this aspect, there is hardly any under, are included ; later, however, this
5 differences between mistake of fact & 45 mistake was rectified in subsequent Gazette.
mistake of law, but it has been the policy of A question arises whether any offence in
criminal jurisprudence of civilised countries contravention of the Act can be said to have
that every individual shall be presumed to been committed during this interval. The
know the law & shall be debarred from only answer, that is admissible, is that no
10 pleading ignorance of law as an excuse. If 50 such offence can be said to have been
the accused’s plea in this case amounted to committed. Pushing the analogy to its
plea of ignorance of the relevant Act & the logical conclusion in its application to the
relevant order, it must have been summarily present case, it can, as well, be said, in
ruled out as not sustainable in law; but the favour of the accused, that they were given
15 plea, before us, is that the mental state of the 55 to understand that any law prohibiting
presumed knowledge of law of the alleged movement or transport of livestock from
offenders is neutralised by what can be Orissa to outside had lapsed & they had no
called a knowledge, imparted by an reason either to disbelieve or to discredit the
authoritative governmental source to the source, from which it came nor had they any
20 effect that any law, prohibiting such 60 reason to doubt its authority. Under the
movement or' transport or any executive circumstances, can it be said that the mental
action taken in that behalf by provincial state, under which one is capable of
authorities either legislative or otherwise, is committing an offence, was in existence in
beyond their competence. The real the accused. I am fully alive to the counter
25 controversy reduces itself to this whether the 65 contention that the responsibility of the
latter knowledge derived from the source, as accused in such a case, is to ascertain the
it is, produces or If ads to “mistake of fact or validity of the provincial law & is not to be
mistake of law” within the meaning of led away by an official letter which cannot
Schedule 9 of the Code. If the latter, the occupy the place of law. But I, on my part,
30 contention, however much it may evoke 70 should not fall in line with this contention,
sympathy in us for the accused, must fail. particularly as the nature of the act,
impugned, is not in itself either wrongful or
21. Mr. Sahu's contention is that the unlawful. On the contrary, it is a lawful act
knowledge, imparted by the Government of until it is made unlawful. There are
India, is substantially to the effect that there 75 circumstances which make out cases of
35 is no law prohibiting the movement or the
exception to the general rule that ignorance
transport, in question. As such, it is is no excuse. If I can understand any reason
contended, it is a question of fact. This behind this exception it is this that there may
contention leads one to think of an apt arise circumstances neutralising the
analogy. Suppose, for instance, the Official 80 presumption of knowledge of law in every
40 Gazette of Orissa published a list of
 P a g e | 81

individual. I shall here quote a passage from 40 operation, before the Act could have arrived,
the judgment of Baggally L. J., (in a case of or been promulgated in India; I do not think
which the facts are somewhat dissimilar) in It could be contended that the law was In
the case of Burns v. Nowell, (1880) 5 Q. B. force in India at the time the act was
5 D. 444 : 49 L. J Q B. 468 : committed.”

“Before a continuous act or proceeding, not 45 23. It is, however, settled that an error on
originally unlawful, can be treated as mixed question of law & fact is treated as a
unlawful by reason of the passing of an Act [mistake of fact. In this connexion, I shall
of Parliament by which it is in terms made quote the remarks of Bishop in his
10 so, reasonable time must be allowed for its commentary on Criminal Law. Article 878:
discontinuance; & though ignorance of the 50 “.... So, in criminal jurisprudence, the guilt
law may, of itself, be no excuse for the or the innocence of the prisoner depends on
master of a vessel who may act in the fact .... that he honestly believed it
contravention of it, such ignorance may through his misapprehension of law.”
15 nevertheless be taken into account when it
becomes necessary to consider the In England, the view has unanimously been
55 taken that if the accused is misled into the
circumstances under which the act or
proceeding alleged to be unlawful was error of fact on account of an error of law,
continued, & when & how it was his mistake shall be treated as a mistake of
20 discontinued, with a view to determine
fact rather than of law. (Vide R. v. Reed,
whether a reasonable time had elapsed Car. & M. 306 : (174 E. R. 519); R. v. Hall,
60 3C. & p. 409). This sort of conclusion to my
without its being discontinued.”
mind appears to be more a matter of policy
I shall not be understood to use this decision, of criminal jurisprudence father than of strict
in view of the quoted passage occurring logical deduction.
25 therein, as an apt precedent, but, merely, as
showing that in view of particular For the purpose of elucidation, I shall quote
65 the five invaluable rules, laid down by 15
circumstances of a case, an exception, to the
universally recognised rule that ignorance of Judges, in the case of R. v. Prince (1683) 2
law is no excuse, may come into being. Ch. C. 154 which has been the guiding star
30 Next, I shall advert to a passage in Mayne's
in England & elsewhere whenever the
Law of India at pp. 136-137 which, I think, question of justification of an offence either
70 due to mistake of fact or mistake of law has
is more pertinent to the question, that, at the
moment, has engaged my attention: arisen :

“Suppose, for instance, that an Act of “(i) That when an act is in itself plainly
35 Parliament was passed in England,
criminal, Is 1b more severely punishable if
applicable to India, which came into certain circumstances co-exist, ignorance of
75 the existence of such circumstances is no
operation as soon as the royal assent was
given, & that an offence against it was answer to a charge for the aggravated
committed in India a week after it came into offence.
 P a g e | 82

(ii) That where an not is prima facie innocent the present case, it may be argued with force,
& proper, unless certain circumstances co- 40 that the fact of some public officers of
exist, then ignorance of such circumstances Bengal canvassing the validity of Provincial
is an answer to the charge. laws on the subject with the Govt. of India
presupposes the fact of the Provincial law &
5 (iii) That the state of the deft's mind must
that their authorisation of the accused
amount to absolute ignorance of the 45 persons to come & transport cattle from this
existence of the circumstance which alters Province amounts to flying in, the face of the
the character of the act, or to a belief in its Provincial law.
non-existence.
In view of their misconception of law, they
10 (iv) Where an act which is in itself wrong
fell victim to a mistake of fact that the
i.e., under certain circumstances, criminal, a 50 Provincial laws on the subject had lapsed.
person who does the wrong act cannot set up Lapsing of a particular statutory law & order
as a defence that he wag ignorant of the facts must always be a question of fact.
which turned the wrong into a crime.
There is hardly any reason to believe that the
15 (v) Where a statute makes it penal to do an
mental state of absolute ignorance,
act under certain circumstances, It is a 55 advocated in R. (iii) above, existed at the
question upon the wording & object of the material time, namely, at the time of the
particular statute, whether the responsibility purchase, which itself constitutes &
of ascertaining that the circumstances exist completes the offence as stated above.
20 is thrown upon the person who does the act
or not. In the former case his knowledge is In consideration of the circumstances, set
immaterial.” 60 out above, the punishment to be inflicted
must be of a nominal character, that is, each
The present act of movement & transport of of them is sentenced to pay a fine of Re. 1 &
livestock from one Province to another in default to undergo R. I. of one week each.
25 comes within R. (ii) above being an act
which is prima facie innocent. It is made Mr. D. Sahu contended that the order of
penal on account, of certain circumstances 65 conviction need not attract any sentence
co-existing, namely, the prohibitory orders what ever. In this connexion, he relied upon
& laws passed by a Province. Of course, I the case of Sitaram v. Emperor
30 shall not be taken to be confusing: questions
of fact with questions of law, as in this rule, With great respect, I do not agree with the
no doubt, 'the circumstances' referred to are view taken by the learned Judge, Hallifax,
70 A. J. C., in that ease. To my mind, it is
in relation to “circumstances” relating to
facts; but such circumstances will not be imperative that every conviction of an
35 different in, character in cases of
offence shall be followed by the prescribed
circumstances of mixed question of law & punishment while, in case no minimum is
fact. Rule (ii) above must attract the prescribed, to reduce it to something
75 nominal is completely within the discretion
application of B. (iii). Applying R. (iii) in
 P a g e | 83

of the Court. In the ends of justice, we shall be set aside & the sale proceeds, in deposit,
also direct that the order of forfeiture of the 5 must be made over to the respondent.
cattle, seized, to the Govt. of Orissa, should
The appeal is, therefore, allowed.

Further Reading

i. What is the distinction between fact and law? Is a matter one of fact because it is left to jury? –
G Williams, Textbook of Criminal Law, Dennis J. Baker (ed.), 18-002

ii. Whether, a person can be expected to know the law if he is poor and has no access to law, lawyer
or legal system? - G Williams, Textbook of Criminal Law, Dennis J. Baker (ed.), 18-003 & 18 -
004

iii. What is precisely the difference between mistake of criminal law and of the civil law?- G
Williams, Textbook of Criminal Law, Dennis J. Baker (ed.), 18-011

PARAPUZHA THAMBAN ALIAS JACOB vs. STATE OF KERALA

1989 CriLJ 1372

Objectives
a. To understand the defence of insanity
b. To understand the scope and ingredients of Section 84 of IPC

Points of Discussion

i. Whether, the accused was suffering from insanity at the time when the occurrence took place
and was incapable of knowing the nature of the act or that he was doing what was either wrong
or contrary to law.

10 Case Section 324, I.P.C. The sentences were

ordered to run concurrently. Against this
The petitioner accused herein has been 20 Order, the appellant filed Criminal Appeal
charged for offences punishable under before this Court.
Sections 302 and 307, I.P.C. and convicted
under Sections 302 and 324, I.P.C. and The accused was living in a hut with his
15 sentenced to undergo imprisonment for life wife, Annie, and their six month's old baby
under Section 302, IPC and to undergo by name Abymon. The paternal grandfather
rigorous imprisonment for one year under 25 of the accused was also living with them, A
 P a g e | 84

few days before the occurrence the accused 40 sustained by him which were described in
had some urinal complaint and he underwent postmortem certificate. The postmortem
treatment for that in the Nilambur hospital. finding as revealed that the child sustained
After discharge, the accused stopped going an incised wound 5 cm in length and 2 1/2
5 for daily labour and there were frequent cm in width lying across over the centre part
quarrels between the accused and his wife 45 of chest lying in between two nipples more
regarding this. On 16-6-1984 at about 9 towards left side, the right side of the wound
A.M. the accused and his wife quarrelled on was blunt and the wound has cut the
the same subject and the accused who got sternum, the 5th rib of the left side and
10 enraged took, out a sickle and inflicted a cut entered into thoracic cavity injuring
on the chest of the infant who was lying on 50 pericardian and cutting the heart. PW. 7 who
the floor at that time. When Annie protested, issued postmortem certificate opined that
the accused inflicted cuts on her also with the child died as a result of injury to heart
the sickle as a result of which she also and cardiac arrest. The reports shows that
15 sustained injuries. Hearing the hue and cry, wife also sustained three injuries; an incised
neighbours came to the scene of occurrence. 55 wound 10 cm in length 1/2 cm width and 2
They took his wife and kid to hospital. The cm depth extending from inter degital area
wife survived but the kid died. After the of ring and middle finger up to the wrist joint
investigation, post-mortem of the dead body on its anterior aspect, an incised wound 5 cm
20 the accused was arrested on the very same in length 1/2 cm in width and scalp deep
day in the evening. 60 over the left side of forehead lying anterior
positively and ah incised wound 2 cm in
The trial commenced but the accused length 1/4 cm width and 1/2 cm depth lying
pleading not guilty to the charges. The ertically over the vertex part of head. wife of
accused generally denied the incriminating the accused stated that the injuries were
25 circumstances appearing against him in the
65 sustained as a result of cuts inflicted by her
prosecution evidence and stated that he was husband. All these evidences coupled by the
suffering from insanity and did not know evidences adduced by the witneses leave no
what happened. Several defence witnesses doubt as to the the fact that the accused
from Mental hospital and 11 prosecution inflicted injuries on the child and wife.
30 witnesses were also examined. The accused
was charged for offences punishable under 70 The only pertinent issue involved is whether
Sections 302 and 307, I.P.C. and convicted the defence of insanity can be claimed by the
under Sections 302 and 324, I.P.C. and accused-petitioner under the Indian penal
sentenced to undergo imprisonment for life code?
35 under Section 302, IPC and to undergo
rigorous imprisonment for one year under The serious contention raised by the counsel
75 for the appellant is that the accused was
Section 324, I.P.C.
suffering from insanity at the time when the
There cannot be any dispute that the child occurrence took place and was incapable of
Abymon died as a result of the injuries knowing the nature of the act or that he was
 P a g e | 85

doing what was either wrong or contrary to 40 for his acts unless the contrary is proved. To
law. In other words, the counsel pressed into establish insanity it must be clearly proved
service exception contained in Section 84 of that at the time of committing the act the
the Penal Code. In support of this party is labouring under such defect of
5 contention, the learned Counsel for the reason as not to know the nature and quality
appellant relied on Ext.D3 case sheet of the 45 of the act which he is committing that is, the
accused maintained in the Mental Hospital, physical nature and quality as distinguished,
Calicut and also the evidence of DW.1 Dr. from the moral or, if he does know the nature
Santhakumar, the Superintendent of Mental and quality of the act he is committing, that
10 Hospital, Calicut. He also relied on some of he does not know that he is doing wrong.
the statements of PWs. 1, 3, 4 and 5 in the
50 A Division Bench of this Court considered
course of the cross-examination. DW. 1
deposed that the records maintained in the the question elaborately in State of Kerala v.
hospital indicate that the accused was Ravi 1978 Ker LT 177 : 1978 Cri LJ NOC
15 admitted in the hospital on 2-4-1985 and 182. Kader, J. who spoke for the Division
discharged on 5-8-1985. The evidences of Bench, said: A court of law is concerned
55 only with the legal insanity and not with the
wife and Investigating officer clearly shows
that there was no indication whatsoever in medical insanity. There is clear distinction
the conduct of the accused to indicate that between the two. An accused person may be
20 the accused was of unsound mind at the time suffering from some form of insanity in the
when the offences were committed. The sense in which the term is used by medical
60 men, but may not be suffering from
conduct of the accused was normal till he
was sent to the Mental Hospital about 10 unsoundness of mind as contemplated under
months after the occurrence. Section 84 IPC. There can be no legal
insanity unless cognitive faculties of the
25 It is settled law that the provision contained mind are, as a result of unsoundness of mind,
in Section 84 IPC being an exception, the 65 so completely impaired as to render the
burden is on the defence to establish insanity offender incapable of knowing the nature of
in view of the provisions contained in the act or that what he is doing is wrong or
Section 105 of the Evidence Act, investigate contrary to law. According to medical
30 the mental condition of the accused and science, insanity is another name or term for
place the material before the court. 70 mental abnormality due to various causes
and existing in various degrees, and even
In State of Madhya Pradesh v. Ahmadulla uncontrollable impulse driving a man to kill
the Supreme Court considered the question or wound comes within its scope. It is not
and quoted with approval the following every form of insanity or madness that is
35 passage from the judgment of Court of
75 recognized by law as a sufficient excuse, to
Appeal in England in Henry Perry in 14 Cri earn exemption under Section 84 IPC.
App Re. 48 (at p. 46 of Cri LJ) Every man is
presumed to be sane and to possess It is true that the rules formulated in the
sufficient degree of reason to be responsible McNaughten's case have been attacked by
 P a g e | 86

the medical profession and also by certain were committed. Foregoing discussion
lawyers. The doctrine of uncontrollable or 25 would show that the accused is not entitled
irresistible impulse and impulsive insanity to protection under Section 84 IPC. The
has never been accepted as a valid defence child died as a result of the injuries inflicted
5 coming within the purview of Section 84 by the accused and PW. 2 sustained injuries
IPC. As pointed out in Ravi's case 1978 Ker mentioned in Ext.P4 wound certificate. The
LJ 178 : (1978 Cri LJ NOC 182) (supra), 30 conduct of the accused was normal till he
every crime is committed under an impulse; was sent to the Mental Hospital about 10
and the great object of the criminal law is to months after the occurrence. In the instant
10 compel or induce persons to control or resist case there is clear evidence to show that the
these impulses and under the Indian Law, an accused never liked his wife's indictment for
accused person is not entitled to exemption 35 not going for work and the accused reacted
from criminal responsibility on the mere in the manner as attributed to him in the
ground of loss of power of self-control at the instant case. This cannot be considered as a
15 time of the commission of the offence unless totally strange act. The evidence shows that
it was attributable to unsoundness of mind accused was responsible for the injuries. The
satisfying the requirements under Section 84 40 injury was inflicted on the chest, a vital part
IPC. of the body of 6 months' old child and the
injury caused is sufficient in the ordinary
After perusing all the evidences concluded course of nature to cause death of child.
20 that it is clearly shown that there was no
indication whatsoever in the conduct of the In the result, Criminal Appeal fails and it is
accused to indicate that the accused was of 45 accordingly dismissed, by thereby affirming
unsound mind at the time when the offences the conviction recorded by the lower courts.

Further Reading

i. R vs. Mc Naughten 1843 (59) 8 ER 718 HL - Defendant shot and killed the victim believing
that the victim was involved in a conspiracy to kill him. At trial, Defendant claimed he was
insane and his delusions caused him to act.
ii. Durham vs. United States (1954) 214 F 2d 862 - held - The legal and moral traditions of
the western world require that those who, of their own free will and with evil intent
(sometimes called mens rea), commit acts which violate the law, shall be criminally
responsible for those acts. Our traditions also require that where such acts stem from and
are the product of a mental disease or defect as those terms are used herein, moral blame
shall not attach, and hence there will not be criminal responsibility.
iii. Criminal Responsibilty - The Durham Rule - Washington v. United States, __ F.2d __
(D.C. Cir. 1967), 9 Wm. & Mary L. Rev. 1172 (1968),
http://scholarship.law.wm.edu/wmlr/vol9/iss4/19
iv. Lakshmi vs. State AIR 1963 All 354 – Defence u/s 84 of IPC
 P a g e | 87

BRIJPAL SINGH vs. STATE

CRL.REV.P. 646/2003

Objectives

1. To understand the ingredients of Section 80 of IPC

2. When defence of accident can be raised

3. To appreciate rationale of Section 80 of IPC

4. Criminal Responsibility for causing death by accident

Points of Discussion

a. Whether the act of the accused falls within the ambit and scope of Section 304A of the IPC or
not?

b. Whether he is entitled to the consequent protection under section 80 of the IPC.

Case succumbed to his death. Investigation

revealed that the fire shot had emanated
INDERMEET KAUR J. from a SAF Gun which had been issued to
The Petitioner accused herein has been 25 Cont. Anil Kumar, who deposed that he had
5 charged for offences punishable under handed over this SAF Gun to the accused
Sections 302 and 307, I.P.C. and convicted along with the magazine after taking
under Sections 302 and 324, I.P.C. and permission from H.Ct.Raj Kapoor as he
sentenced to undergo imprisonment for life wanted to go to the toilet; ten minutes later
under Section 302, IPC and to undergo 30 when he came back he saw that the local
10 rigorous imprisonment for one year under police had already gathered there and the
Section 324, I.P.C. The sentences were magazine of his gun contained only 19
ordered to run concurrently. The Petitioner cartridges, the 20th cartridge had been used.
filed Criminal Revision before this Court. Cause of death had been opined by doctor as
35 being hemorrhagic shock following firearm
Complaint was filed by one Darshan Singh injury.
15 u/s 286/304A IPC stating that on 22.4.1992
he along with deceased Pali @ Ravinder Upon prosecution, the Trial Court convicted
(taxi driver) was sitting near their canteen; the petitioner under Section 304 A of the
suddenly a fire shot was heard and he saw IPC; he was sentenced to undergo RI for two
that Pali had been hit by a bullet on his chest. 40 years and to pay a fine of Rs.2000/- in
20 He was removed to the hospital where he default of payment of fine to undergo SI for
remained alive for about 4-5 hours; he
 P a g e | 88

one month. The Additional Sessions Judge not? Whether he is entitled to the consequent
affirmed the order passed by trial court. 40 protection under section 80 of the IPC.

The Petitioner submitted that the Courts Section 304A of the IPC necessarily
below had failed to appreciate that it was a postulates a rash or negligent act; mere
5 pure and simple accident which had carelessness is not sufficient for a conviction
occurred; this act of the petitioner could not under this section. Criminal rashness is
be qualified as either rash act or negligent in 45 hazardous or a dangerous or a wanton act
the absence of which the offence under with the knowledge that it is so, and that it
Section 304 A of the IPC could not be may cause injury, but without the intention
10 sustained. The petitioner contended that to cause injury, or knowledge that it will
provisions of Section 80 of the IPC are probably be caused. The criminality lies in
attracted and the act of the petitioner is a 50 running the risk of doing such an act with
lawful act falling within the general recklessness or indifference as to the
exceptions contained in Chapter-IV of the consequences. Criminal negligence is the
15 Indian Penal Code. Nothing is an offence gross and culpable neglect or failure to
which is done by an accident or misfortune; exercise that reasonable and proper care and
petitioner had no criminal intention or 55 precaution to guard against injury either to
knowledge that by his act, this would be the the public generally or to an individual in
resultant consequence; he is adequately particular, which, having regard to all the
20 protected by this exception. circumstances out of which the charge has
arisen, it was the imperative duty of the
It is quite important to note that the ballistic 60 accused person to have adopted.
report has conclusively established that the
weapon, custody of which was with the It is apparent that the sten gun has a safety
petitioner at the relevant time had fired the device i.e. a safety lever and it is only after
25 bullet mark BC/1 which was the cause of the safety lever is released and the trigger
death of Ravinder Pal Singh. The bullet hole pressed, that the system will work and the
in the T-shirt of the victim was also the 65 cartridge will be fired. The petitioner
result of the firing from this weapon. This is himself was a police personnel i.e. of the
a lethal piece of evidence and coupled with rank of a constable. He was well conversant
30 the ocular version of PW-1 and PW-3 has and in the know-how of dealing with a
conclusively established that it was the act weapon of this kind i.e. a loaded SAF sten
of the petitioner in firing the bullet from the 70 gun which was a dangerous weapon and he
sten gun which had caused the death of was fully aware of the hazards attached in
Ravinder Pal Singh. handling such a weapon; he was also aware
of the fact that the weapon was loaded. This
35 Thus, the facts of the case are not in dispute
weapon could not have been fired unless the
the only issue to be examined is, Whether 75 safety lever was released followed by the
the act of the accused falls within the ambit pressing of the trigger. There were two overt
and scope of Section 304A of the IPC or acts which were required on the part of the
 P a g e | 89

petitioner before this gun could have bringing the pistol into two different
released the cartridge. Even presuming that positions; there were facts showing
one of the two acts was accidental, the other possibility of the pistol exploding and killing
could not have followed unless there was a the deceased. Accused was held guilty for an
5 active participation by the petitioner; it was 40 offence under this Section.
his active overt act which had led to the
incident. The exception contained in Section 80 of the
IPC does not come to the aid of the
In such a situation even if it is presumed that petitioner. In the Atmendra Vs. The State of
the intention to cause the injury is absent, yet Karnataka, 1998 III AD (SC) 373 wherein
10 the from the fact that there is a safety device 45 the Supreme Court had held that to claim the
attached to this weapon and unless this benefit of Section 80 of the IPC it has to be
safety device is released, the weapon cannot shown:
be set in motion, it is a clear case where there
was a wanton lack of care in handling this i. That the act in question was
15 dangerous weapon; the hazards attached to without any criminal intention or
50 knowledge ;
it being well-known to the petitioner who
was of the rank of a Constable and was ii. that the act was being done in a
dealing with such type of weapons in the lawful manner by lawful means;
normal course of duty. The act of the iii. and the act was being done with
20 petitioner leadings to the death of the victim proper care and caution.
55
was clearly without due care and caution, it
was an act sufficient to be encompassed Thus, the Conviction of the petitioner for the
within the definition of `negligent'. The offence for which he had been convicted
recklessness and in difference of the calls for no interference. However, it can be
25 petitioner in handling this dangerous modified in view of the fact the sentence that
60 Offence is related to the year 1992.
weapon is apparent and the consequences
have flown from this negligent act. It is thus Petitioner was a first time offender; he was
clear that in such a situation even in the a constable in the Delhi Police; he was a
absence of intention to cause injury, the doer public servant; his one negligent act has
30 of the act is guilty of a rash and negligent made a world of difference in his life not
65 only in his career but also in his personal
act. Death of the victim was the direct and
proximate result of this act of the petitioner. life. The RI of two years is accordingly
modified to RI for six months. Fine is
In AIR 1949 Lahore 85 Mohd. Sadiq vs. enhanced from Rs.2000/- to Rs.5000/- in
The Crown the accused who had a loaded default of payment of fine the petitioner will
35 pistol was demonstrating to the deceased by 70 undergo SI for one month.

Further Readings
i. Atmendra vs. State of Karnataka, (1998) 4 SCC 256
ii. Tunda vs. R, AIR 1950 All 95
 P a g e | 90

BASDEV v. STATE OF PEPSU

AIR 1956 SC 488

Objectives

1. To understand the general exception under IPC

2. To understand the ingredients and scope of S. 86 of IPC

3. To appreciate contours of defence of intoxication

Point of Discussion

i. whether the offence of shooting under the effect of intoxications, falls under section 302 of the
Indian Penal Code or section 304 of the Indian Penal Code having regard to the provisions of
section 86 of the Indian Penal Code

ii. The Crime of Murder requires both knowledge and intention and what section 86 says is that in
a case involving such an offence the drunken man will be attributed the knowledge required to
constitute the crime. Has the Court here according to you, attributed knowledge or intention

5 CHANDRASEKHARA AIYAR J. some had not. The appellant asked Maghar

25 Singh, the young boy to step aside a little so
The Appellant-Basdev has been convicted that he may occupy a convenient seat. But
of murder by concurrent judgments of Maghar Singh did not move. The appellant
Sessions Court and Pepsu High Court. The whipped out a pistol and shot the boy in the
Appellant was granted Special leave to abdomen. The injury proved fatal.
10 appeal before this Court.
30 Upon prosecution, the Sessions Judge vide
The facts of the case are not in dispute the Order dated 21st June, 1954 observed that
question is limited to “whether the the party that had assembled for the
appellant’s act falls under the exception as marriage at the bride's house seems to have
enumerated in Sec.86 IPC”? made itself very merry and much drinking
15 The appellant-Basdev of was a retired 35 was indulged in. The learned Sessions Judge
military Jamadar. He was charged with the said that “he was excessively drunk” and
murder of a young boy named Maghar that “according to the evidence of one
Singh, aged about 15 or 16. Both of them witness Wazir Singh Lambardar he was
and others of the same village went to attend almost in an unconscious condition”. This
20 a wedding in another village. All of them 40 circumstance and the total absence of any
went to the house of the bride to take the motive or premeditation to kill were taken
midday meal on the 12th March, 1954. by the Sessions Judge into account and the
Some had settled down in their seats and appellant was awarded the lesser penalty of
 P a g e | 91

transportation for life. The High Court of the latter part deals only with knowledge and
Pepsu also affirmed the order passed by a certain element of doubt in interpretation
Sessions Court. 40 may possibly be felt by reason of this
omission. If in voluntary drunkenness
The Petitioner averred that he boozed quite knowledge is to be presumed in the same
5 a lot and he was almost in an unconscious
manner as if there was no drunkenness, what
condition, there was total absence of any about those cases where mens rea is
motive or premeditation to kill the deceased. 45 required. Are we at liberty to place intent on
The Petitioner said, the fatal incident the same footing, and if so, why has the
happened under the influence of section omitted intent in its latter part? This
10 intoxication. Per Contra, the Respondent
is not the first time that the question comes
State argued that although the accused was up for consideration. It has been discussed at
under the influence of drink, he was not so 50 length in many decisions and the result may
much under its influence that his mind was be briefly summarised as follows:-So far as
so obscured by the drink that there was knowledge is Concerned, we must attribute
15 incapacity in him to form the required
to the intoxicated man the same knowledge
intention as stated. as if he was quite sober. But so far as intent
The limited issue involved in this case is, 55 or intention is concerned, we must gather it
whether the offence of shooting under the from the attending general circumstances of
effect of intoxications, falls under section the case paying due regard to the degree of
20 302 of the Indian Penal Code or section 304 intoxication. Was the man beside his mind
of the Indian Penal Code having regard to altogether for the time being? If so it would
the provisions of section 86 of the Indian 60 not be possible to fix him with the requisite
Penal Code? intention. But if he had not gone so deep in
drinking, and from the facts it could be
It is apparent that Section 86 which was found that he knew what he was about, we
25 elaborately considered by the High Court can apply the rule that a man is presumed to
runs in these terms: 65 intend the natural consequences of his act or
acts. Of course, we have to distinguish
“In cases where an act done is not an
between motive, intention and knowledge.
offence unless done with a particular
Motive is something which prompts a man
knowledge or intent, a person who does the
to form an intention and knowledge is an
30 act in a state of intoxication shall be liable
70 awareness of the consequences of the act. In
to be dealt with as if he had the same
many cases intention and knowledge merge
knowledge as he would have had if he had
into each other and mean the same thing
not been intoxicated, unless the thing which
more or less and intention can be presumed
intoxicated him was administered to him
from knowledge. The demarcating line
35 without his knowledge or against his will”.
75 between knowledge and intention is no
It is no doubt true that while the first part of doubt thin but it is not difficult to perceive
the section speaks of intent or knowledge, that they connote different things.
 P a g e | 92

In the old English case, Rex v. Meakin 40 says nothing, then his act alone must guide
[1836] 173 E.R. 131 Baron Alderson you to your decision. It is a general rule in
referred to the nature of the instrument as an criminal law, and one founded on common
element to be taken in presuming the sense, that juries are to presume a man to do
5 intention in these words: “However, with what is the natural con sequence of his act.
regard to the intention, drunkenness may 45 The consequence is sometimes so apparent
perhaps be adverted to according to the as to leave no doubt of the intention. A man
nature of the instrument used. If a man uses could not put a pistol which he knew to be
a stick, you would not infer a malicious loaded to another's bead, and fire it off,
10 intent so strongly against him, if drunk, without intending to kill him; but even there
when he made an intemperate use of it, as he 50 the state of mind of the party is most
would if be bad used a different kind of material to be considered. For instance, if
weapon; but where a dangerous instrument such an act were done by a born idiot, the
is used, which, if used, must produce intent to kill could not be inferred from the
15 grievous bodily harm, drunkenness can have act. So, if the defendant is proved to have
no effect on the consideration of the 55 been intoxicated, the question becomes a
malicious intent of the party.” more subtle one; but it is of the same kind,
namely, was he rendered by intoxication
In a charge of murdering a child levelled entirely incapable of forming the intent
against a husband and wife who were both charged?”
20 drunk at the time, Patteson J., observed in
Regina v. Cruse and Mary his wife [1838] 60 Finally, we have to notice the House of
173 E.R. 610; 8 Car. & P. 541. “It appears Lord's decision in Director of Public
that both these persons were drunk, and Prosecutions v. Beard [1920] A.C. 479. In
although drunkenness is no excuse for any this case a prisoner ravished a girl of 13
25 crime whatever, yet it is often of very great years of age, and in aid of the act of rape he
importance in cases where it is a question of 65 placed his hand upon her mouth to stop her
intention. A person may be so drunk as to be from screaming, at the same time pressing
utterly unable to form any intention at all, his thumb upon her throat with the result that
and yet he may be guilty of very great she died of suffocation. Drunkenness was
30 violence.” pleaded as a defence. Bailhache J. directed
70 the jury that the defence of drunkenness
Slightly different words but somewhat more could only prevail if the accused by reason
illuminating were used by Coleridge J., in of it did not know what he was doing or did
Reg. v. Monkhouse 1849] 4 Cox. C.C. 55. not know that he was doing wrong. The jury
“The inquiry as to intent is far less simple brought in a verdict of murder and the man
35 than that as to whether an act has been
75 was sentenced to death. The Court of
committed, because you cannot look into a Criminal Appeal quashed this conviction on
man's mind to see what was passing there at the ground of misdirection following Rex v.
any given time. What he intends can only be Meade. which established that the
judged of by what he does or says, and if he presumption that a man intended the natural
 P a g e | 93

consequences of his acts might be rebutted 40 to form the intent necessary to constitute the
in the case of drunkenness by showing that crime, and merely establishing that his mind
his mind was so affected by the drink that he was affected by drink so that he more readily
had taken that he was incapable of knowing gave way to some violent passion, does not
5 that what he was doing was dangerous. The rebut the presumption that a man intends the
conviction was, therefore, reduced to 45 natural consequences of his acts. The result
manslaughter. The Crown preferred the of the authorities is summarised neatly and
appeal to the House of Lords and it was compendiously at page 63 of Russel on
heard by a strong Bench consisting of Lord Crime, tenth edition, in the following words:
10 Chancellor, Lord Birkenhead, Earl of
Reading, C.J., Viscount Haldane, Lord “There is a distinction, however, between
50 the defence of insanity in the true sense
Denedin, Lord Atkinson, Lord Sumner,
Lord Buckmaster, and Lord Phillimore. The caused by excessive drunkenness and the
Lord Chancellor delivered the judgment of defence of drunkenness which produces a
15 the court. He examined the earlier condition such that the drunken man's mind
authorities in a lengthy judgment and becomes incapable of forming a specific
55 intention. If actual insanity in fact
reached the conclusion that Rex v. Meade,.
stated the law rather too broadly, though on supervenes as the result of alcoholic excess
the facts there proved the decision was right. it furnishes as complete an answer to a
20 The position "that a person charged with a criminal charge as insanity induced by any
crime of violence may show, in order to other cause. But in cases falling short of
60 insanity evidence of drunkenness which
rebut the presumption that he intended the
natural consequences of his acts, that he was renders the accused incapable of forming
so drunk that he was incapable of knowing the specific intent essential to constitute the
25 what he was doing was dangerous, which is crime should be taken into consideration
what is said in Meade's case, was not correct with the other facts proved in order to
65 determine whether or not he had this intent,
as a general proposition of law and their
Lordships laid down three rules: but evidence of drunkenness which falls
short of proving such incapacity and merely
(1)That insanity, whether produced by establishes that the mind of the accused was
30 drunkenness or otherwise, is a defence to the so affected by drink that he more readily
crime charged; 70 gave way to some violent passion does not
rebut the presumption that a man intends the
(2) That evidence of drunkenness which natural consequences of his act”.
renders the accused incapable of forming the
specific intent essential to constitute the As the Courts below have rightly pointed out
35 crime should be taken into consideration in the present case all the evidence shows at
with the other facts proved in order to 75 the most is that at times he staggered and
determine whether or not he had this intent; was incoherent in his talk, but the same
evidence shows that he was also capable of
(3)That evidence of drunkenness falling moving himself independently and talking
short of a proved incapacity in the accused
 P a g e | 94

coherently as well. At the same time it is would have been available to him as a
proved that be came to the darwaza by defence, and so the law presumes that he
himself, that he made a choice for his own 20 intended the natural and probable
seat and that is why he asked the deceased to consequences of his act, in other words, that
5 move away from his place, that after he intended to inflict bodily injury to the
shooting at the deceased be did attempt to deceased and the bodily injury intended to
get away and was secured at some short be inflicted was sufficient in the ordinary
distance from the darwaza, and that when 25 course of nature to cause death".
secured be realised what he had done he thus
10 requested the witnesses to be forgiven
Thus, offence cannot be reduced from
saying that it bad happened from him. All murder to culpable homicide not amounting
these facts, in my opinion, go to prove that to murder under the second part of section
there was not proved incapacity in the 304 of the Indian Penal Code. The appeal is
30 dismissed.
accused to form the intention to cause bodily
15 injury sufficient in the ordinary course of
nature to cause death. The accused had,
therefore, failed to prove such incapacity as

Further Readings

i. Lynch, ‘The Scope of Intoxication’, (1982) Cri. LR 139

ii. Eric Colvin, ‘A theory of intoxication, Defence’, (1981) Canadian Bar Review 750.

iii. Andrew Ashworth, ‘Intoxication and General Defences’, (1980) Cri. LR 556

iv. Stephen White, ‘Offences of Basic Intent and Specific Intent’, (1989) Cri. LR 396
 P a g e | 95

BHUPENDRA SINGH A. CHUDASAMA vs. STATE OF GUJARAT

(1998) 2 SCC 603

Objectives

a. To understand the limits on right of private defence f property

b. To appreciate when right of private defence of property may extend to causing death of a person

c. To understand the scope of Ss. 77 & 78 of IPC

Points of Discussion

i. Whether consequence would have been changed if appellant might have took the defence u/s.
77 & 78 of IPC?

ii. Whether defence of accident should have been raised in this case?

iii. Whether, Section 103 of IPC is applicable to facts of case?

Case The victim of the gun shot was Ukadbhai

20 Radvabhai, Head Constable of S.R.P. who
K.T. Thomas, J. was posted along with other police
One armed constable of Special Reserved personnel at Khampla Dam site which was
Police (SRP) shot at his immediate superior then in danger on account of heavy rainfall.
(Head Constable) while the latter was Appellant was allotted to the same platoon
5 perambulating around Khampla Dam site (in 25 and was placed below the deceased. Some
Gujarat State) during dusk hours of a cold skirmishes developed and deceased had
day in July 1983. The victim died on the taken the appellant to task on the ground of
spot. Appellant was charged and tried for dereliction in the discharge of the work
murder, but the trial Judge entertained doubt allotted to him.
10 about his complicity and acquitted him.
30 Prosecution case is that appellant was of a
However a Division Bench of the High truculent temperament and as he did not
Court of Gujarat, while re-appraising the lightly take the diatribe hurled against him
whole evidence on an appeal filed by the by the deceased he was groping for a
State, felt no speck of doubt that it was a suitable opportunity to retaliate. On the
15 cold-blooded murder perpetrated by the
35 evening of 2-7-1983 he noted the appellant
appellant. Accordingly, the acquittal was walking near the tower of the Dam. He
reversed and the appellant was sentenced to aimed his rifle at the deceased and pumped
imprisonment for life. Hence this SLP four bullets into his vital parts which caused
his end in a trice. There was no dispute that
 P a g e | 96

death of deceased was due to piercing of duties and that when appellant was warned
bullets from a firearm. 40 about it he hurled invectives against the
deceased and left the work place in a huff.
In this case appellant did own the act of Deceased expressed his apprehension, in
firing the rifle. Ext. B-15, that appellant might do
5 Appellant defence: I was doing patrolling something in revenge and so he made a
duty with the service rifle, and at about 7.45 45 request to his platoon commander to shift
p.m. when it was absolute dark I came near the appellant to some other section.
the bridge for proceeding towards the valve PW-3 Jayantrajsinh - a colleague of both
lower. Then I saw a flame near the tower and deceased and appellant - narrated the
10 saw somebody moving. I suspected that incident which ensued exchange of words
some miscreant was about to commit 50 between appellant and deceased. The
mischief with fire on the valve tower. As I witness also said that when he knew about
could not identify the moving person due to Ext. P-15 report he snatched it from the
want of light I shouted at him to stop. But deceased and prevailed upon him to desist
15 there was no reply. So I proceeded further from forwarding it to the superiors, but later
and repeated the shout, and still there was no 55 when he heard that the appellant was fuming
reply. I had to open fire in discharge of my with acerbity towards the deceased he
duties. I fired first in the open air and then returned Ext. P-15 to him. One most
fired two more rounds. I heard the sound of important circumstance is, Ext. P-15 report
20 something falling down. I then reported the was collected by the police from the bag of
incident to the persons who were in the 60 the deceased after his death. There is no
office When constable Laxmansinh (PW-2) dispute regarding the authorship of that
and Jayantrajsinh (PW-3) arrived after report.
seeing the body of the victim they informed
25 me that it was Ukadbhai Radvabhai who The evidence in this case, in the light of the
received bullet injuries. admissions made by the appellant, has
65 narrowed down to the following points;
Trial court felt that the defence version is Appellant had fired his rifle and the
quite probable and hence he is entitled to the deceased who was on his duty, sustained the
benefit of doubt. High Court found that the bullet injuries and died. As the High Court
30 trial court went perversely wrong in
observed, it would have been a close range
entertaining such a doubt on the facts of the 70 firing. This could be inferred from the
case. blackening of the skin around two entry
High Court took particular note of certain wounds.
circumstances which showed that appellant Learned counsel for the appellant first
35 was nurturing grouse against the deceased.
contended that since appellant was
Ext. B-15 is a report prepared by the 75 discharging his official duties he is entitled
deceased containing a complaint that to acquittal. No person can claim immunity
appellant committed acts of dereliction of from culpable homicide merely on the
 P a g e | 97

ground that he killed another person in any of the descriptions hereinafter

discharge of his official duties unless such 40 enumerated, namely :-
killing would fall within the ambit of any of
the exceptions enumerated in Chapter IV of First.- Robbery;
5 the IPC. Pitted against the said legal position Secondly.- House-breaking by night;
learned Counsel made an endeavour to bring
it within the scope of Section 80 of IPC Thirdly.- Mischief by fire committed on any
which reads thus: building, tent or vessel, which building, tent
45 or vessel is used as a human dwelling, or as
Nothing is an offence which is done by a place of custody of property;
10 accident or misfortune, and without any
criminal intention of knowledge in the doing Fourthly.- Theft, mischief or house-trespass,
of a lawful act in a lawful manner by lawful under such circumstances as may reasonably
means and with proper care and caution. cause apprehension that death or grievous
50 hurt will be the consequence, if such right of
The primordial requirement of the said private defence is not exercised.
15 exception is that the act which killed the
other person should have been done “with No doubt, right of private defence would
proper care and caution”. The very fact that commence when a reasonable apprehension
accused shot his own colleague at close of danger to property commences and such
range without knowing the identity of his 55 right can extend to the killing another person
20 target smacks of utter dearth of any care and even if there was only an attempt to commit
caution. It appears to us that appellant did any of the offences mentioned in the section.
not even remotely entertain the idea of The right subsumed in the section is an
putting forward a plea that his act of killing expansion of the basic right of private
the deceased was done by accident or 60 defence founded in Section 97. When the
25 misfortune, leave apart the other ingredients two sections are telescoped with each other
necessary to form the right under the said the right of private defence can be stretched
exception. Argument on that score, up to the extent of killing another person in
therefore, deserves rejection outright at the defending the properly of not only his own
threshold. 65 but even of another person. Such right would
be available to a public servant if the
30 Learned counsel, alternatively, contended property sought to be protected is a public
that the act of appellant can be justified property. But there is a condition for
under Section 103 of the Penal Code. That claiming such an extended right if the
section protects a person who voluntarily 70 property sought to be protected is a building.
caused death of another person in exercise of It should be a building used for human
35 the right of private defence of property “if dwelling or for custody of property. If it is
the offence, the committing of which, or the not a building of that type the person
attempting to commit which, occasions the exercising right of private defence cannot go
exercise of the right, will be an offence of 75 to the farthest extent of killing another
 P a g e | 98

person unless the threatened mischief has Act the court will presume the absence of it.
caused a reasonable apprehension that death Of course, the standard of such proof is not
or grievous hurt would otherwise be the 40 akin to that of the prosecution to prove the
consequence. guilt of the accused. It is trite law that such
burden can be discharged by the accused
5 In this case there was no plea at all that showing a preponderance of probabilities.
appellant had any apprehension of death or
grievous hurt. Nor is there a case that the Appellant put forward a case for right of
tower (which he feared to have been under 45 private defence only when he was examined
threat of incineration) was either used for by the trial court under Section 313 of the
10 human dwelling or custody of property. Code. High Court has noted that he has not
Hence, there is no question of disclosed to any of the prosecution witnesses
countenancing the extended right of private that he was unable to identify his immediate
defence envisaged in Section 103. 50 superior and thought him to be a miscreant
and observed that “no such question with
Nonetheless, if the building was not for the regard to the mistaken identity was put to
15 above use and even if appellant had no
any other prosecution witnesses during the
apprehension of death or grievous hurt, still cross-examination.” On the other hand, PW-
a restricted right of private defence can be 55 12 (another SRP personnel who was also on
claimed by a person which is adumbrated in duty) has deposed that he saw the appellant
Section 104 of IPC: scampering away from the scene of
20 If the offence, the committing of which, or occurrence and that when he was confronted
the attempting to commit which, occasions he blurted out that he was proceeding to
the exercise of the right of private defence, 60 surrender himself since he had fired at the
be theft, mischief, or criminal trespass, not deceased. To none the appellant said that he
of any of the descriptions enumerated in the fired the rifle for protecting the tower. To
25 last preceding section, that right does not none he disclosed that he first had a glimpse
extend to the voluntary causing of death, but of flame which he thought to be the
does extend, subject to the restrictions 65 movement of a miscreant. In fact when the
mentioned in Section 199, to the voluntary dead body and the surrounding were closely
causing to the wrong-doer of any harm other examined by the policy they did not come
30 than death. across any material which could have given
any mistaken impression to the appellant as
Now, the question is whether appellant is 70 flame of a torch. Thus, the belated claim of
entitled to the aforesaid restricted right of right of private defence was far from the
private defence of property. contemplation of the appellant when he
opened the fire at the deceased.
The accused who pleads any of the '
35 exceptions under Chapter IV has to prove it 18. In the light of the aforesaid discussion
since law has cast the burden on him in such 75 there is no scope to conclude that appellant
situation. Under Section 106 of the Evidence had any right of private defence to property.
 P a g e | 99

Accordingly, we confirm the conviction and

sentence and dismiss the appeal.

Further Readings

i. James Martin vs. State of Kerala, (2004) 2 SCC 203

VISHWANATH vs. THE STATE OF UTTAR PRADESH

AIR 1960 SC 67

10 Objectives

a. To understand the Scope of Right of Private Defence of Person

b. When Right of Private Defence may be extended to causing death

c. When Right of Private Defence may be exercised?

Points of Discussion

1. Whether, right of private defence extend to causing death of abductor?

2. Rule of proportionality of action in Right of Private Defence

Case living at Badri’s house“( father-in-law”) in a

railway quarter at Gorakhpur. However,
Wanchoo J. they did not pull on well together and Gopal
moved out to his Sister’s house. The
15 The Appellant herein Vishwanath, has been 30 relations between Gopal and his wife were
convicted under s. 304, Part II, of IPC and strained and she refused to accompany him.
sentenced to 3 years' RI by the HC, Gopal suspected fidelity of his wife and was
Allahabad. The instant SLP is limited to keen to take away his wife. Gopal along with
question that, “whether the appellant had his brother-in-law and nephews went to
20 exceeded the right of private defence of 35 Badri’s house to take away his wife. But as
person?” she was reluctant to go, Gopal forcibly
dragged his wife out of the house. The girl
One person named Gopal (“deceased”) was caught hold of the door as she was being
married to the sister of the Vishwanath taken out and a tug-of-war followed between
25 (appellant). After marriage Gopal started 40 her and Gopal. The appellant was also there
 P a g e | 100

and shouted to his father that Gopal was

adamant. The Appellant and Badri got The Appellant herein argues that he has
outraged by the acts of Gopal, and Badri exercised his right of private defence, to
instructed his Son, the appellant herein to save the life of his sister. The Appellant
5 beat Gopal. The appellant took out a knife 45 averred that Gopal was assaulting and
from his pocket and stabbed Gopal once forcibly dragging his sister, outraged by
only, at his heart. Steps were taken to revive Gopal’s acts, the Appellant took out the
Gopal but without success. Thereupon, all of knife and stabbed Gopal. Per Contra, the
them including appellant rushed to the Respondents contended that right of private
10 hospital to save Gopal’s life, but he died on 50 defence cannot be extended to causing
the way to hospital. death, merely on account of abduction.
Issue before SC - When the Right of Private
Upon prosecution, Sessions Judge found defence can extend to causing death?
that Badri who had merely asked the Whether mere abduction gives right of
15 appellant to beat Gopal could not have 55 private defence to cause death of abductor?
realised that the appellant would take out a
knife from his pocket and stab Gopal. Badri It is to be noted that Section 97 gives the
was, therefore, acquitted of abetment. right of private defence of person against
Session Judge opined that the appellant had any offence affecting the human body.
20 the right of private defence of person, and 60 Section 99 lays down that the right of private
that this right extended even to the causing defence a no case extends to the inflicting of
of death as it arose on account of an assault more harm than it is necessary to inflict for
on his sister which was with intent to abduct the purpose of defence. Section 100 with
her and since appellant has not caused more which we are concerned is in these terms:-
25 harm than the circumstances of the case 65
required, appellant was also acquitted. “The right of private defence of the body
The State then filed an appeal to the High extends, under the restrictions mentioned in
Court against the acquittal of both accused. the last preceding section, to the voluntary
The High Court upheld the acquittal of causing of death or of any other harm to the
30 Badri. The acquittal of the appellant was set 70 assailant, if the offence which occasions the
aside on the ground that the case was not exercise of the right be of any of the
covered by the fifth clause of s. 100 and the descriptions hereinafter enumerated,
right of private defence of person in this case namely-
did not extend to the voluntary causing of “First-Such an assault as may reasonably
35 death to the assailant and therefore it was 75 cause the apprehension that death will
exceeded. The High Court relied on its own otherwise be the consequence of such
earlier decision in Emperor v. Ram Saiya assault;
I.L.R. 1948 All. 165. The appellant was Secondly-Such an assault as may
therefore convicted under s. 304, Part II, of reasonably cause the apprehension that
40 IPC.
 P a g e | 101

grievous hurt will otherwise be the cause grievous hurt or so dispose of the
consequence of such assault; person abducted as to put him in danger of
Thirdly-An assault with the intention of being subjected to grievous hurt, or slavery
committing rape ; or the unnatural lust of any person, s. 367
5 Fourthly-An assault with the intention of 45 applies. If the abducted person is a child
gratifying unnatural lust; under the age of ten and the intention is to
Fifthly-An assault with the intention of take dishonestly any movable property from
kidnapping or abducting; its person, s. 369 applies. It is said that
Sixthly-An assault with the intention of unless an offence under one of these sections
10 wrongfully confining a person under 50 is likely to be committed, the fifth clause of
circumstances which may reasonably cause s. 100 can have no application. On a plain
him to apprehend that he will be unable to reading, however, of that clause there does
have recourse to the public authorities for not seem to be any reason for holding that
his release.” the word “abducting” used there means
15 55 anything more than what is defined as "
The right of private defence of person only abduction
arises if there is an offence affecting the
human body. Offences affecting the human It is true that the right of private defence of
body are to be found in Ch. XVI from s. 299 person arises only if an offence against the
20 to s. 377 of the Penal Code and include 60 human body is committed. Section 100
offences in the nature of use of criminal gives an extended right of private defence of
force and assault. Abduction is also in Ch. person in cases where the offence which
XVI and is defined in s. 362. Abduction occasions the exercise of the right is of any
takes place whenever a person by force of the descriptions enumerated therein. Each
25 compels or by any deceitful means induces 65 of the six clauses of s. 100 talks of an assault
another person to go from any place. But and assault is an offence against the human
abduction pure and simple is not an offence body; (see s. 352). So before the extended
under the Penal Code. Only abduction with right under s. 100 arises there has to be the
certain intent is punishable as an offence. If offence of assault and this assault has to be
30 the intention is that the person abducted may 70 of one of the six types mentioned in the six
be murdered or so disposed of as to be put in clauses of the section. In each of the six
danger of being murdered, s. 364 applies. If clauses enumerated in s. 100, there is an
the intention is to cause secret and wrongful offence against the human body, namely,
confinement, s. 365 applies. If the abducted assault. So the right of private defence arises
35 person is a woman and the intention is that 75 against that offence, and what s. 100 lays
she may be compelled or is likely to be down is that if the assault is of an aggravated
compelled to marry any person against her nature, as enumerated in that section, the
will or may be forced or seduced to illicit right of private defence extends even to the
intercourse or is likely to be so forced or causing of death. The fact that when
40 seduced, s. 366 applies. If the intention is to 80 describing the nature of the assault some of
 P a g e | 102

the clauses in s. 100 use words which are of abduction in which force is used and
themselves offences, as for example, where the assault is with the intention of
“grievous hurt”, “rape”, “kidnapping”, 30 abducting, the right of private defence that
“wrongfully confining”, does not mean that arises by reason of such assault extends even
5 the intention with which the assault is up to the causing of death. It is to be noted
committed must always be an offence in that it cannot be right to expect from a
itself. In some other clauses, the words used person who is being abducted by force to
to indicate the intention do not themselves 35 pause and consider whether the abductor has
amount to an offence under the Penal Code. further intention as provided in one of the
10 For example, the first clause says that the sections of the Penal Code quoted above,
assault must be such as may reasonably before he takes steps to defend himself, even
cause the apprehension of death. Now death to the extent of causing death of the person
is not an offence anywhere in the Penal 40 abducting.
Code. Therefore, when the word It was urged that the right of private defence
15 “abducting” is used in the fifth clause, that never extends to the inflicting of more harm
word by itself reed not be an offence in order than what is necessary for the purpose of
that clause may be taken advantage of by or defending and that in this case the appellant
on behalf of a person who is assaulted with 45 inflicted more harm than was necessary. We
intent to abduct. All that the clause requires are of opinion that this is not so. The
20 is that there should be an assault which is an appellant gave only one blow with a knife
offence against the human body and that which he happened to have in his pocket. It
assault should be with the intention of is unfortunate that the blow landed right into
abducting, and whenever these elements are 50 the heart and therefore Gopal died.
present the clause will be applicable.
25 Appeal allowed.
The appellant can be acquitted as the fifth
clause of s. 100 contemplates only that kind

Exercise

55 a. Suppose instead of Vishwanath, it was Moti, with whom the wife allegedly had illicit relations,
who inflicted the wound, could he have been given the benefit of right of private defence.

b. if while dragging his wife Gopal was saying that, ‘let us go home and have happy life’, would
it have made any difference to the decision of the Supreme Court?

Further Readings

i. Paul H. Robinson, ‘Criminal Law Defences: A Systematic Analysis’, (1982) 82 Columbia LR

199.
 P a g e | 103

ii. Munney Khan vs. State of MP AIR 1972 SC 1491 - Ss. 96 to 101 - Right of private
defence - Nature of - Availability in the case of a free fight

AMJAD KHAN vs. STATE

AIR 1952 SC 165

Objective:

5 i. To discuss, right to private defence

ii. Reasonableness of apprehension of death or grievous hurt in exercising private defence.

Bazar. He states that when he got there he

found a "crowd" there but not a "mob". He
admitted that he had said in the First
Case 35 Information Report that a gun was fired a
minute after he had reached the spot and he
10 said that what he had stated in the First
Information Report was true. It is not
Vivian Bose, J.
disputed that this shot was fired by the
1. The main question in this case is whether 40 appellant, as also a second shot, and that
there is a right of private defence. Most of caused the death of one man (a Sindhi) and
the facts are not in dispute. injured three others, also Sindhis.

15 2. A communal riot broke out at Katni on the 4. The map, Ex. D-4, shows that the shops
5th of March, 1950, between some Sindhi of the appellant and his brother Zahid Khan
refugees resident in the town and the local 45 run into each other and from two sides of a
Muslims. The trouble started in the locality rectangle, the appellant's house facing north
known as Zanda Bazar or Zanda Chowk. and the brother's house facing east. Each
20 Police Constable Bharat Singh, P. W. 17, shop opens out on to a road.
who made the First Information Report, said
5. It is proved that when the rioting broke out
that most of the shopkeepers in Zanda Bazar
50 in the Zanda Chowk the alarm spread to the
are Sindhis. He stated that when he was told
appellant's locality and the people there,
that trouble had broken out there he
including the appellant, started closing their
25 proceeded to the spot and found that the
shops.
goods in the Muslim shops in that locality
were scattered. It is also in evidence that 6. The appellant's version is that the mob
some Muslims lost their lives. 55 approached his locality and broke into the
portion of the building facing east in which
3. From this place he went on to Subash
his brother's shop is situate and looted it. The
30 Chowk, the locality in which the appellant's
High Court holds that this is proved and
shop is situate. It lies to the West of Zanda
 P a g e | 104

holds further that this preceded the firing by 40 reasonable apprehension of death, or
the appellant. grievous hurt, to himself or to those whom
he is protecting; and in the case of property,
7. There is a hole in the wall between the two the danger to it must be of the kinds
portions of the building in which these two specified in section 103. The scope of the
5 shops are situate and the High Court holds
45 right is further explained in sections 102 and
that Zahid's family got into the appellant's 105 of the Indian Penal Code.
portion of the building through this hold and
took refuge there. The High Court also holds 9. Neither the learned High Court Judges nor
that the appellant's mother then told the the Sessions Judge has analysed these
10 appellant that the crowd had burst into his provisions. Both Courts appear to be under
(appellant's) shop and was looting it. The 50 the impression that actual looting of the
learned Judges state that what he said was appellant's shop was necessary before the
not quite true because all that the crowd did right could arise. In that they are wrong.
was to beat the door of the appellant's shop Under section 102 the right of private
15 with lathis as they were passing but had not defence of the body commences -
broken into the shop. But they accept the
55 “As soon as a reasonable apprehension of
fact that the crowd was beating the doors of
the appellant's shop with their lathis. the danger to the body arises from an attempt
or threat to commit the offence though the
8. In our opinion, the facts found by the High offence may not have been committed”.
20 Court are sufficient to afford a right of
private defence. Under section 97 of the 10. Examining the provisions we have set
60 out above, it is evident that the appellant had
Indian Penal Code the right extends not only
to the defence of one's own body against any not time to have recourse to the authorities.
offence affecting the human body but also to The mob or crowd had already broken into
25 defending the body of any other person. The one part of the building and was actually
right also embraces the protection of beating on the doors of the other part. It is
65 also evident that the appellant had
property, whether one's own or another
person's against certain specified offences, reasonable grounds for apprehending that
namely theft, robbery, mischief and criminal either death or grievous hurt would be
30 trespass. The limitations on this right and its caused either to himself or his family. The
scope are set out in the sections which learned Sessions Judge has eloquently
70 drawn attention to the lamentable
follow. For one thing, the right does not arise
if there is time to have recourse to the consequences of communal frenzy in India
protection of the public authorities, and for and in Katni in particular, and he refers to
35 another, it does not extend to the infliction the indiscriminate looting of Muslim shops
of more harm than is necessary for the in that town. So also the High Court hold
75 that -
purpose of defence. Another limitation is
that when death is caused the person “Looking to the circumstances which had
exercising the right must be under existed in the country before and the fact that
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the trouble was between the refugees and the 40 High Court Judges themselves hold that his
local Muslims it cannot be said that there own shop was menaced. The circumstances
would be no danger to the life of the in which he was placed were amply
appellant or at least of grievous hurt if the sufficient to give him a right of private
5 mob had entered his shop and he prevented defence of the body even to the extent of
it. The apprehension would undoubtedly be 45 causing death. These things cannot be
reasonable”. weighed in too fine a set of scales or, as
some learned Judges have expressed it, in
11. And we know that Muslim shops had golden scales.
already been broken into and looted and
10 Muslims killed in the rioting at Zanda 13. We have next to see whether the
Chowk which preceded this, in our opinion, 50 appellant used more force than was
the High Court was wrong in thinking that necessary, and here also we cannot uses
the appellant had to wait until the mob golden scales. He was entitled to cause death
actually broke into his shop and entered it. and he did not kill more than one man. He
15 They have emphasised this in another part of fired only two shots and, as the learned High
their judgment also where they say that the 55 Court Judges observe, he obviously aimed
shot was fired - low. The High Court holds the mob had
moved up to his locality when he fired the
“when there was not looting at the shop and shots, so the looting and the beating on the
thus no right of private defence”. doors were not the isolated acts of a few
20 12. It was enough that the mob had actually 60 scattered individuals. It was the mob that
broken into another part of the house and was doing it and in the High Court's words.
looted it, that the woman and children of his “The very fact that in the town of Katni two
family filed to the appellant for protection in shots should have struck four Sindhis and
terror of their lives and that the mob was none else shows that the rival community
25 actually beating at his own doors with their
65 was on the move in that area”.
lathis and that Muslim shops had already
been looted and Muslims killed in the 14. In our opinion, the appellant did not use
adjoining locality. It was impossible for him more force than was necessary. Indeed, the
to know whether his shop would or would firing, far from acting as a deterrent, spurred
30 not suffer the same fate if he wanted, and on them on and they ransacked and looted the
the findings it was reasonable for him to 70 place.
apprehend death or grievous hurt to himself
and his family once they broke in, for he 15. We have confined our attention to the
would then have had the right to protest and right of private defence of the person though
35 indeed would have been bound to do what
in this case the question about the defence of
he could to protest his family. The threat to property happens to be bound up with it.
break in was implicit in the conduct of the
mob and with it the threat to kill or cause
grievous hurt to the inmates; indeed the
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16. The appeal is allowed. The convictions

and sentences are set aside and the appellant
will be released.