BLS LLB: law of crime (part - 1) - llb

Q. What are the stages of a crime? What is an attempt to commit an offence? Distinguish between Preparation and Attempt. What do you mean by attempt to commit murder? Whether without causing injury can a person be held guilty of attempt to commit murder? Do the elements of Sec 511 (attempt to commit an offence) apply to section 307, 308, & 309 (attempt to commit murder, culpable homicide, and Suicide)?

In general, an offence passes through the following stages -
Conceiving the idea of performing a legally defined harm - It is immaterial whether the person conceiving such an idea knows that it is illegal to perform it. At this stage, there is no action taken to harm anybody and it is not a crime to merely think of doing harmful activity because the person thinking it may not even want to actually do it. For example, merely thinking killing 1000s of people instantaneously, is not a crime.
Deliberation - At this stage, a person consolidates his devious ideas and identifys ways of doing it. Again, there is no action taken and there is no harm done to anybody nor is there any intention to cause injury to anybody. It is still in the thinking stage and is not a crime. For example, merely thinking about how to build a device that can kill 1000s of people instantaneously, is not a crime.

From a legal standpoint the above two stages are inconsequential because man being a thoughtful animal, he thinks about innumerable things without any material result.
Intention (Mens Rea) - This stage is a significant progress from mere deliberation towards actual commission of the crime. At this stage, the person has made up his mind to actually implement or execute his devious plans. There is an intention to cause harm but he hasn't yet taken any action that manifests his intention. Further, there is no way to prove an intention because even devil can't read a human mind. Thus, this is not considered a crime. For example, intention to kill anyone is not a crime in itself. However, it is an essential ingredient of crime because without intention to cause harm, there can be no crime. On the other hand, even a thoughtless act, without any deliberation, can be a crime if there is an intention to cause harm.

Preparation - As this stage, the intention to cause harms starts manifesting itself in the form of physical actions. Preparation consists of arranging or building things that are needed to commit the crime. For example, purchasing poison. However, it is possible for the person to abandon his course of action at this stage without causing any harm to anyone. In general, preparation is not considered a crime because it cannot be proved beyond doubt the goal of the preparation. For example, purchasing knife with an intention to kill someone is not a crime because it cannot be determined whether the knife was bought to kill someone or to chop vegetables.

However, there are certain exceptions where even preparation for committing an offence is crime. These are -
    Sec 122 - Collecting arms with an intention of waging war against the Govt. of India.
    Sec 126 - Preparing to commit depredation on territories of any power in alliance or at peace with the Govt. of India.
    Sec 235 - Counterfeiting operations for currency.
    Sec 399 - Preparation to commit dacoity.

Attempt - This stage is attained by performing physical actions that, if left unstopped, cause or are bound to cause injury to someone. The actions clearly show that the person has absolutely no intention to abandon his plan and if the person is left unrestricted, he will complete the commission of the crime. Since the intention of the person can be determined without doubt from his actions, an attempt to commit a crime is considered a crime because if left unpunished, crime is bound to happen and prevention of crime is equally important for a healthy society.

Actual commission of the offence - This is the final stage where the crime is actually done.

Distinction between Preparation and Attempt

There is a very fine line between preparation and attempt. While, IPC does not define either of them, it is very important to distinguish between them because attempt is a crime but preparation is not. Both, Preparation and Attempt are physical manifestations of the criminal intention. But attempt goes a lot father than preparation towards the actual happening of crime. While in Preparation, there is a possibility that the person may abandon his plan, but attempt leaves no room for that. For example, keeping a pistol in pocket and looking for the enemy to kill is a preparation because one can abandon the plan anytime, but taking out the piston and pulling the trigger is attempt because it leaves no room for turning back.. Thus, in general, Preparation involves collecting material, resources, and planning for committing an act while attempt signifies a direct movement towards commission after the preparations are made.
Ordinarily, to constitute an attempt the following elements are needed -

mens rea to commit the crime
ant act which constitutes the actus reus of a criminal attempt
failure in accomplishment

In the case of R vs Cheesman 1862, Lord Blackburn identified a key difference between the two. He says that if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.

However, this is not the only criteria for determining an attempt. The following are four tests that come in handy in distinguishing between the two -

Last Step Test or Proximity Rule
As per this test, anything short of last step is preparation and not attempt. This is because as long as there is a step remaining for completion of the crime, the person can abandon it. For example, A obtains poison to kill B and mixes it with food that B is supposed to eat. But he has not yet given the food to B. Thus, it is still preparation. As soon as he keeps the food on the table from where B eats everyday, the last step is done and it becomes an attempt.
In the case of R vs Riyasat Ali 1881, the accused gave orders to print forms that looked like they were from Bengal Coal Company. He proofread the samples two times and gave orders for correction as well so that they would appear exactly as forms of the said company. At this time he was arrested for attempt to make false document under section 464. However, it was held that it was not an attempt because the name of the company and the seal were not put on the forms and until that was done, the forgery would not be complete.
In the case of Abhayanand Mishra vs State of Bihar AIR 1961, A applied to the Patna University for MA exam and he supplied documents proving that he was a graduate and was working as a headmaster of a school. Later on it was found that the documents were fake. It was held that it was an attempt to cheat because he had done everything towards achieving his goal.

Indispensable Element Test or Theory of Impossibility
As per this test, all of indispensable elements must be present to equal attempt. For example, a person has the gun to kill but he forgot the bullets. In this case, it would not be an attempt. Further, he goes to place where victim should be but is not then he is not guilty of attempt under this test. In other words, if there is something a person needs to commit the crime but it is not present, then there is not an attempt. This test has generated a lot of controversy ever since it was laid in the case of Queen vs Collins, where it was held that a pickpocket was not guilty of attempt even when he put his hand into the pocket of someone with an intention to steal but did not find anything. Similarly, in the case of R vs Mc Pherson 1857, the accused was held not guilty of attempting to break into a building and steal goods because the goods were not there.

However, these cases were overruled in R vs King 1892, where the accused was convicted for attempting to steal from the hand bag of a woman although there was nothing in the bag. Illustration (b) of section 511 is based on this decision.
But For Interruption Test
If the action proves that the person would have gone through with the plan if not for the interruption such as arrest, then it is an attempt. For example, a person points a gun at another and is about to pull the trigger. He is overpowered and was stopped from pulling the trigger. This shows that if he had not been interrupted, he would have committed the crime and he is thus guilty of attempt even though the last step of the crime has not be performed.
Unequivocality Test or On the job Theory
If a person does something that shows his commitment to follow through and commit the crime then it is an attempt. For example, in the case of State of Mah. vs Mohd. Yakub 1980, three persons were found with a truck loaded with silver near the sea dock. Further, the sound of engine of a mechanized boat was heard from a nearby creek. They were convicted of attempting to smuggle silver. J Sarkaria observed that what constitutes at attempt is a mixed question of law and the facts of a case. Attempt is done when the culprit takes deliberate and overt steps that show an unequivocal intention to commit the offence even if the step is not the penultimate one.

Attempt to commit murder

Section 307 of IPC states that whoever does any act with intention or knowledge, and under such circumstances, that, if by that act he caused death he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act the offender shall be either liable to imprisonment for life.

This means that if a person intentionally does something to kill another and if the other person is not killed, he would be liable for attempt to murder. However, his action must be capable of killing. For example, if a person picks up a pebble and throws it on someone saying, "I will kill you", it is not attempt to murder because it is not possible to kill someone with a pebble. But if someone swings a thick lathi and misses the head of another person, it is attempt to murder.

Illustrations -

A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
A, with the intention of causing the death of a child of tender years, exposes it is a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of ] this section.
A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence defined in this section. A places the food on Z' s table or delivers it to Z's servant to place it on Z's table. A has committed the offence defined in this section.

Is Injury necessary
From the wordings of this section, it is clear that a person is liable under this section even if no injury is caused to anyone. However, if hurt is caused, the punishment is more severe. Further, as held in the case of State of Mah. vs Balram Bama Patil 1983, SC held that for conviction under sec 307, it is not necessary that a bodily injury capable of causing death must be inflicted but the nature of the injury can assist in determining the intention of the accused. Thus, this section makes a distinction between the act of the accused and its result.

Whether act committed must be capable of causing death
In Vasudev Gogte's Case 1932, the accused fired two shots at point blank range at the Governor of Bombay. However, it failed to produce any result because of defect in ammunition or intervention of leather wallet and currency. It was held that to support conviction under this section the accused must have done the act with intention or knowledge that but for any unforeseen intervention, it would cause death. Thus, he was held guilty.

Penultimate Act not necessary
In the case of Om Prakash vs State of Punjab, AIR 1961, SC held that a person can be held guilty under this section if his intention is to murder and in pursuance of his intention he does an act towards its commission, even if that act is not the penultimate act. As per J B K Sharma, the intention of the culprit is the key and it must be gathered from all the circumstances and not merely from the location, number, and type of injury.

Section 307, 308, 309 and Section 511

Attempts are dealt with in IPC in three ways -
1. Some sections such as 196 and 197, deal with the offence as well an attempt for that offence.
2. Some sections such as 307 and 308 deal exclusively with an attempt of an offence.
3. The attempts for offenses that are not dealt with in above two are covered by section 511.

Thus, a case of attempt to murder may fall under section 307 as well as section 511. There is a conflict of opinion among the high courts regarding this matter. In the case of R vs Francis Cassidy 1867, Bombay HC held that section 511 is wide enough to cover all cases of attempt including attempt to murder. It further held that for application of section 307, the act might cause death if it took effect and it must be capable of causing death in normal circumstances. Otherwise, it cannot lie under 307 even if it has been committed with intention to cause death and was likely, in the belief of the prisoner, to cause death. Such cases may fall under section 511. However, in the case of Queen vs Nidha 1891, Allahabad HC expressed a contrary view and held that sec 511 does not apply to attempt to murder. It also held that section 307 is exhaustive and not narrower than section 511.

In the case of Konee 1867, it was held that for the application of section 307, the act must be capable of causing death and must also be the penultimate act in commission of the offence, but for section 511, the act may be any act in the series of act and not necessarily the penultimate act. However, this view has now been overruled by SC in the case of Om Prakash vs State of Punjab AIR 1967, where the husband tried to kill his wife by denying her food but the wife escaped. In this case, SC held that for section 307, it is not necessary that the act be the penultimate act and convicted the husband under this section.

A, the licensee of a petrol pump, and his 9 yr old brother are caught adulterating petrol in an underground storage. What offence is committed by A and his brother?

In this case, there are two people who are doing the act - one is an adult and one is a boy between the age of 7 and 12. Thus, as per section 83, first of all it will be determined if the boy had the maturity to understand what he was doing and what could be the consequences of his act. If upon analyzing the facts of the situation and cross examining the boy, it is determined that the boy was mature enough to understand the nature of his act, he will be treated as an adult. In this case, as per section 34 (Act done by several persons in furtherance of common intention) both will be charged with the same offence as if they had done it alone. Otherwise, the boy will be acquitted by giving the benefit of section 83 and only the man will be charged.

Regarding the charges -

The man is a licensee of the petrol pump and is thus an agent of the petrol company. He is supposed to keep and sell petrol according to the terms of license. Since he was caught adulterating it, he has committed the offence of criminal breach of trust as per section 405. However, since he is an agent, this becomes a special case and he will be punished under section 409, which is meant for public servant, banker, attorney, merchant or agent.
The boy is not a licensee so he cannot be charged for this offence even if he did not get benefit of 83 as mentioned before.
Their actions show that they had full intention to cheat public by selling adulterated petrol and if the police hadn't stopped them, they would have sold the adulterated petrol. Since the whole underground tank was being adulterated it can be safely assumed that they had left no option to change their intention. However, since the petrol was not sold yet, no body was cheated and thus, they will be charged under section 511 read with attempt to commit the office of cheating, which is defined in section 415 and the punishment for which is given in Section 417.
However, the boy is neither the licensee nor is the seller of petrol. It is not given that he was working as an employee of the licensee of the petrol pump. As such, he owes no fiduciary responsibility to either the licensee or to the customers. Thus, his involvement in adulterating petrol is not a crime against the customers, nor against the company. Further, his involvement in adulterating petrol is not a tortious act against the licensee either because he was doing it with the consent of the licensee. Thus, even if the boy does not get the benefit of section 83, he has not done any crime and should be acquitted.

Q. How far is mistake of fact, accident, act of child, insanity, and intoxication are valid and good defences under IPC? In IPC, mistake of law is no defence but mistake of fact is a good defence. How? What exemptions have been given by IPC to minors for an offence under General Exceptions? What has to be proved by a person claiming immunity from criminal liability on the ground of Insanity?

The general rule is that it is the duty of the prosecution to prove the prisoner's guilt beyond doubt and if there is any reasonable doubt then the benefit of doubt is given to the accused. The prosecution must prove beyond doubt that the accused performed the act with intention and with full knowledge of the consequences of the act. This is based on the maxim, "actus non facit reum, nisi mens sit rea", which means that mere doing of an act will not constitute guilt unless there be a guilty intent'.

IPC defines certain circumstances in which it is considered that the accused had no evil intention. These circumstances are nothing but exceptional situations that negate mens rea. They create a reasonable doubt in the case of the prosecution that the act was done by the accused with evil intention. However, it is the burden of the accused to prove that such circumstances existed at the time of crime and the presumption of such circumstances is against the accused. If the accused proves that such circumstances indeed existed, then his act is not considered a crime. In K M Nanavati vs State of Maharashtra AIR 1962, it was held that it is the duty of the prosecution to prove the guilt of the accused or the accused is presumed to be innocent until his guilt is established by the prosecution beyond doubt.
Chapter IV (Sec 76 to 106) of IPC defines such circumstances. Upon close examination of these sections, it can be seen that they define two types of circumstances - one that make the act excusable (Sec 76 to 95), which means that the act itself is not an offence, and second (Sec 96 to 106) that make the act justifiable, which means that although the act is an offence but it is otherwise meritorious and the accused is justified by law in doing it.
Mistake of fact, accident, act of child, insanity, and intoxication - All these cases are defined in General Exceptions of IPC and they make the act of the accused excusable. The presence of any of these conditions is a good defence because they negate the mens rea. Let us look at them one by one.

Mistake of fact

Sometimes an offence is committed by a person inadvertently. He neither intends to commit an offence nor does he know that his act is criminal. He may be totally ignorant of the existence of relevant facts. The knowledge of relevant facts is what really makes an act evil or good. Thus, if a person is not aware of the facts and acts to the best of his judgment, his act cannot be called evil. Under such circumstances he may take the plea that his acts were done under the misconception of the facts. Such a mistake of fact is acknowledged as a valid defence in section 76 and 79 of IPC.

Section 76 - Act done by a person bound or by mistake of fact believes to be bound by law - Nothing is an offence which is done by a person who is or who by reason of a mistake of fact and not by a reason of a mistake of law, in good faith believes himself to be bound by law to do it.

Illustration -
A, a soldier fires on a mob upon orders from his superior, in conformity with the commands of the law. He has committed no offence.
A, an officer of court of justice, upon ordered by that court to arrest Y, after due inquiry, believing Z to be Y, arrests Z. He has committed no offence.

Section 79 - Act done by a person justified or by a mistake of fact believing himself justified by law - Nothing is an offence which is done by the a person who is justified by law , or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it.

Illustration -
A sees Z doing what appears to be murder. A, in the exercise to the best of his judgment, exerted in good faith of the power which the law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence though it may turn out that Z was acting in self defence.

Difference between sec 76 and 79
The only difference between sec 76 and 79 is that in section 76, a person believes that he is bound by to do a certain act while in 79, he believes that he is justified by law to do a certain act. For example, a policeman believing that a person is his senior officer and upon that person's orders fires on a mob. Here, he is bound by law to obey his senior officer's orders. But if the policeman believes that a person is a thief, he is not bound by law to arrest the person, though he is justfied by law if he arrests the person.

To be eligible in either of the sections, the following conditions must be satisfied -

it is a mistake of fact and not a mistake of law that is excusable.
the act must be done in good faith.

Meaning of Mistake -
A mistake means a factual error. It could be because of wrong information, i.e. ignorance or wrong conclusion. For example, an ambulance driver taking a very sick patient to a hospital may be driving faster than the speed limit in order to reach the hospital as soon as possible but upon reaching the hospital, it comes to his knowledge that the patient had died long time back and there was no need to drive fast. However, since he was ignorant of the fact, breaking the speed limit is excusable for him. A person sees someone remove a bulb from a public pole. He thinks the person is a thief and catches him and takes him to the police only to learn that the person was replacing the fused bulb. Here, he did the act in good faith but based on wrong conclusion so his act is excusable.

To be excusable, the mistake must be of a fact and not of law. A mistake of fact means an error regarding the material facts of the situation, while a mistake of law means an error in understanding or ignorance of the law. A person who kills someone cannot take the defence of mistake saying he didn't know that killing is a crime because this is a mistake of law and not of fact. But, as in Waryam Singh vs Emperor AIR 1926, he can take a defence of mistake saying he believed that the killed person was a ghost because that would be a mistake of a fact.

R vs Prince 1875, is an important case where a person was convicted of abducting a girl under 18 yrs of age. The law made taking a woman under 18 from her guardian without her guardian's permission a crime. In this case, the person had no intention to abduct her. She had gone with the person with consent and the person had no reason to believe that the girl was under 18. Further, the girl looked older than 18. However, it was held that by taking a girl without her guardian's permission, he was taking a risk and should be responsible for it because the law made it a crime even if it was done without mens rea. In this case, five rules were laid down which are guidelines whenever a question of a mistake of fact or mistake of law arises in England and elsewhere -

When an act is in itself plainly criminal and is more severely punishable if certain circumstances coexist, ignorance of the existence is no answer to a charge for the aggravated offence.
When an act is prima facie innocent and proper unless certain circumstances co-exist, the ignorance of such circumstances is an answer to the charge.
The state of the mind of the defendants must amount to absolute ignorance of the existence of the circumstance which alters the character of the act or to a belief in its non-existence.
When an act in itself is wrong, and under certain circumstances, criminal, a person who does the wrongful act cannot set up as a defence that he was ignorant of the facts which would turn the wrong into a crime.
When a statute makes it penal to do an act under certain circumstances, it is a question upon the wording and object of the statute whether responsibility of ascertaining that the circumstances exist is thrown upon the person who does the act or not. In the former case, his knowledge is immaterial.

The above guidelines were brought in Indian law in the case of The King vs Tustipada Mandal AIR 1951 by Orissa HC.
In R vs Tolson 1889, a woman's husband was believed to be dead since the ship he was traveling in had sunk. After some years, when the husband did not turn up, she married another person. However, her husband came back and since 7 years had not elapsed since his disappearance, which are required to legally presume a person dead, she was charged with bigamy. It was held that disappearance for 7 yrs is only one way to reach a belief that a person is dead. If the woman, and as the evidence showed, other people in town truly believed that the husband died in a shipwreck, this was a mistake of fact and so she was acquitted.

However, in R vs White and R vs Stock 1921, a person was convicted of bigamy. Here, the husband with limited literacy asked his lawyers about his divorce, who replied that they will send the papers in a couple of days. The husband construed as the divorce was done and on that belief he married another woman. It was held that it was a mistake of law.

Good faith
Another condition that must be satisfied to take a defence of mistake of fact is that the act must be done in good faith. Section 52 says that nothing is said to be done or believed in good faith which is done or believed without due care and attention. Thus, if one shoots an arrow in the dark without ascertaining no one is there, he cannot be excused because he failed to exercise due care.
If a person of average prudence in that situation can ascertain the facts with average deligence, a person taking the defence of mistake of those facts cannot be said to have taken due care and thus, is not excusable.

Accident

Accidents happen despite of nobody wanting them. There is no intention on the part of anybody to cause accident and so a loss caused due to an accident should not be considered a crime. This is acknowledged in Section 80 of IPC, which states thus -

Section 80 - Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in doing of a lawful act, in a lawful manner by lawful means with proper care and caution.

Illustration - A works with a hatchet; the head flys off and kills a person standing nearby. Here, if there was no want of proper caution on the part of A, his act is excusable and is not an offence.

From section 80, it can be seen that there are four essential conditions when a person can take the defence of an accident -

1. The act is done by accident or misfortune - Stephen in his digest of criminal law explains that an effect is said to be accidental if the act that caused it was not done with an intention to cause it and if the occurance of this effect due to that act is not so probable that a person of average prudence could take precautions against it. The effect comes as a surprise to the doer of average prudence. SInce he does not expect it to happen, he is unable to take any precaution against it.
For example, a firecraker worker working with Gun powder knows that it can cause explosion and must take precaution against it. If it causes an explosion and kills a third person, he cannot claim defence of this section because the outcome was expected even though not intended.
However, if a car explodes killing a person, it is an accident because a person on average prudence does not expect a car to explode and so he cannot be expected to take precautions against it.

2. There must not be a criminal intent or knowledge in the doer of the act - To claim defence under this section, the act causing the accident must not be done with a bad intention or bad motive. For example, A prepares a dish for B and puts poison in it so as to kill B. However, C comes and eats the dish and dies. The death of C was indeed an accident because it was not expected by A, but the act that caused the accident was done with a criminal intention.
In Tunda vs Rex AIR 1950, two friends, who were fond of wrestling, were wresting and one got thrown away on a stone and died. This was held to be an accident and since it was not done without any criminal intention, the defendant was acquitted.

3. The act must be lawful, and done in a lawful manner, and by lawful means - An accident that happens while doing an unlawful act is no defence. Not only that, but the act must also be done in a lawful manner and by lawful means. For example, requesting rent payment from a renter is a lawful act but threatening him with a gun to pay rent is not lawful manner and if there is an accident due to the gun and if the renter gets hurt or killed, defence under this section cannot be claimed.
In Jogeshshwar vs Emperor, where the accused was fighting with a man and the man's pregnant wife intervened. The accused aimed at the woman but accidently hit the baby who was killed. He was not allowed protection under this section because he was not doing a lawful act in a lawful manner by lawful means.

4. Proper precautions must be taken while doing the act - The act that causes the harm must have been done with proper care and precautions. An accident caused due to negligence is not excusable. A person must take precautions for any effects that any person with average intelligence would anticipate. For example, a owner of a borewell must fence the hole to prevent children falling into it because any person with average prudence can anticipate that a child could fall into an open borewell.
In Bhupendra Singh Chudasama vs State of Gujarat 1998, the appellant, an armed constable of SRPF shot at his immediate supervisor while the latter was inspecting the dam site in dusk hours. The appellant took the plea that it was dark at that time and he saw someone moving near the dam with fire. He thought that there was a miscreant. He shouted to stop the person but upon getting no response he fired the shot. However, it was proven that the shot was fired from a close range and it was held that he did not take enough precaution before firing the shot and was convicted.

Accident in a act done with consent
Section 87 extends the scope of accident to cases where an act was done with the consent of the victim. It says thus -

Section 87 - Nothing which is not intended to cause death or grevious hurt and which is not known to the doer to be likely to cause death or grevious hurt is an offence by reason of any harm that it may cause or be intended by the doer to cause to any person above eighteen years of age, who has given consent whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.

Illustration - A and Z agree to fence with each other for amusement. This agreement implies the consent by each to suffer any harm which in the course of such fencing may be caused without foul play; and if A, while playing fairly, hurts Z, A committs no offence.

This is based on the premise that every body is the best judge for himself. If a person knowingly undertakes a task that is likely to cause certain damage, then he cannot hold anybody responsible for suffering that damage. Thus, a person watching another litting up firecrackers agrees to take the risk of getting burned and must not hold anybody responsible if he gets burned. In Nageshwar vs Emperor, a person asked the accused to try dao on his hand believing that his hand was dao proof due to a charm. He got hurt and bled to death. However, the accused was acquitted because he was protected under this section. The deceased consented to the risk of trying dao on his hand.

Act of child, insanity, intoxication

As mentioned before, to hold a person legally responsible for a crime, in general, evil intention must be proved. A person who is not mentally capable of distinguishing between good and bad or of understanding the implications of an action cannot be said to have an evil intention and thus should not be punished. Such incapacity may arise due to age, mental illness, or intoxication. Let us look at each of these one by one -

Act of child

It is assumed that a child does not have an evil mind and he does not do things with evil intention. He cannot even fully understand the implications of the act that he is doing. Thus, he completely lacks mens rea and should not be punished. IPC contains for following exemptions for a child -

Section 82 - Nothing is an offence which is done by a child under seven years of age.

Section 83 - Nothing is an offence which is done by a child above seven years of age and below twelve years of age who has not attained the sufficient maturity of understanding to judge the nature and consequences of this conduct on that occasion.

Through these sections, IPC acknowledges the fact that children under seven years of age cannot have suffient maturity to commit a crime and is completely excused. In Indian law, a child below seven years of age is called Doli Incapax. In Queen vs Lukhini Agradanini 1874 , it was held that merely the proof of age of the child would be a conclusive proof of innocence and would ipso facto be an answer to the charge against him.

However, a child above seven but below twelve may or may not have sufficient maturity to commit a crime and whether he is sufficiently mature to understand the nature and consequences of the act needs to be determined from the facts of the case. To claim a defence under section 83, a child must

be above seven and below twelve years of age.
not have attained sufficient maturity to understand the nature and consequences of his act.
be immature at the time of commission of the act.

Section 83 provides qualified immunity because presumes that a child above seven and below twelve has sufficient maturity to commit a crime and the burdon is on the defence to prove that he did not possess sufficient . Thus, in Hiralal vs State of Bihar 1977, the boy who participated in a concerted action and used a sharp weapon for a murderous attack, was held guilty in the absence of any evidence leading to boy's feeble understanding of his actions.
In English law, a boy below 14 years is deemed incapable of raping a woman but no such protection is offered in India and in Emperor vs Paras Ram Dubey, a boy of 12 years of age was convicted of raping a girl.

Insanity

A person may be rendered incapable of judging an action as right or wrong due to several kinds of deficienty in mental faculty or a disease of mind. Such people are called insane. Their position is same as childern below the age of discretion. From time to time several approches have been adopted to understand insanity and to see whether a person was insane or not at the time of his act.

Wild Beast Test
This test was evolved in R vs Arnold 1724. Here, the accused was tried for wounding and attempting to kill Lord Onslow. By evidence, it was clear that the person was mentally deranged. J Tracy laid the test as follows, "If he was under the visitation of God and could not distinguish between good and evil and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever."

Insane Delusion Test
This test was evolved in Hadfield's Case in 1800, where Hadfield was charged with high treason and attempting the assasination of Kind George III. He was acquitted on the ground of insane delusion. Here, the counsel pleaded that insanity was to be determined by the fact of fixed insane delusions with which the accused was suffering and which were the direct cause of his crime. He pointed out that there are people who are deprived of their understanding, either permanently or temporarily, and suffer under delusions of alarming description which overpowers the faculties of their victims.

M' Naghten's Rules
In this case, Danial M'Naghten was tried for the murder of a private secretary of the then prime minister of England. He was acquitted on the ground of insanity. This caused a lot of uproar and the case was sent to bench of fifteen judges who were called upon to lay down the law regarding criminal responsibility in case of lunacy. Some questions were posed to the judges which they had to answer. These questions and answers are knows as M'Naghten's Rules which form the basis of the modern law on insanity. The following principals were evolved in this case -

Regardless of the fact that the accused was under insane delusion, he is punishable according to the nature of the crime if, at the time of the act, he knew that he was acting contrary to law.
Every man must be presumed to be sane until contrary is proven. That is, to establish defence on the ground of insanity, it must be clearly proven that the person suffered from a condition due to which he was not able to understand the nature of the act or did not know what he was doing was wrong.
If the accused was conscious that the act was one that he ought not to do and if that act was contrary to law, he was punishable.
If the accused suffers with partial delusion, he must be considered in the same situation as to the responsibility, as if the facts with respect to which the delusion exists were real. For example, if the accused, under delusion that a person is about to kill him and attacks and kills the person in self defence, he will be exempted from punishment. But if the accused, under delusion that a person has attacked his reputation, and kills the person due to revenge, he will be punishable.
A medical witness who has not seen the accused previous to the trial should not be asked his opinion whether on evidence he thinks that the accused was insane.

The Indian Law recognizes the first two principals and incorporates them in section 84.

Section 84 - Nothing is an offence which is done by a person who, at the time of doing it, by the reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law.

Thus, a person claiming immunity under this section must prove the existence of the following conditions -

He was of unsound mind - Unsound Mind is not defined in IPC. As per Stephen, it is equivalent to insanity, which is a state of mind where the functions of feeling, knowing, emotion, and willing are performed in abnormal manner. The term Unsoundness of mind is quite wide and includes all varieties of want of capacity whether temporary or permanent, or because of illness or birth defect. However, mere unsoundness of mind is not a sufficient ground. It must be accompanied with the rest of the conditions.
Such incapacity must exist at the time of the act - A person may become temporarily out of mind or insane for example due to a bout of epilepsy or some other disease. However, such condition must exist at the time of the act. In S K Nair vs State of Punjab 1997, the accused was charged for murder of one and greivious assault on other two. He pleaded insanity. However, it was held that the words spoken by the accused at the time of the act clearly show that he understood what he was doing and that it was wrong. Thus, he was held guilty.
Due to incapacity, he was incapable of knowing -

either the nature of the act.
or that the act is wrong.
or that the act is contrary to law.

The accused in not protected if he knows that what he was doing was wrong even if he did not know that what he was doing was contrary to law. In Chhagan vs State 1976, it was held that mere queerness on the part of the accused or the crime does not establish that he was insane. It must be proved that the cognitive faculties of the person are such that he does not know what he has done or what will follow his act.

Intoxication
Several times intoxication due to drinking alcohol or taking other substances cause the person to lose the judgment of right or wrong. In early law, however, this was no defence for criminal responsibility. In recent times this has become a valid defence but only if the intoxication was involuntary. Section 85 says thus -

Section 85 - Nothing is an offence which is done by a person who at the time of doing it is by reason of intoxication, incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law : provided that the thing which intoxicated him was administered to him without his knowledge or against his will.

This means that to claim immunity under this section, the accused mus prove the existence of following conditions -

He was intoxicated.
Because of intoxication, he was rendered incapable of knowing the nature of the act or that what is was doing was wrong or contrary to law.
The thing that intoxicated him was administered to him without his knowledge or against his will.

Director of Public Prosecution vs Beard 1920 was an important case on this point. In this case, a 13 yr old girl was passing by a mill area in the evening. A watchman who was drunk saw her and attempted to rape her. She resisted and so he put a hand on her mouth to prevent her from screaming thereby killing her unintentionally. House of lords convicted him for murder and the following principles were laid down -

If the accused was so drunk that he was incapable of forming the intent required he could not be convicted of a crime for which only intent was required to be proved.
Insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The difference between being drunk and diseases to which drunkenness leads is another. The former is no excuse but the later is a valid defence if it causes insanity.
The evidence of drunkenness falling short of proving incapacity in the accused to form the intent necessary to commit a crime and merely establishing that his mind was affected by the drink so that he more readily gave way to violent passion does not rebut the presumption that a man intends the natural consequences of the act.

Q. Define the right of private defence. When does a person not have this right? When does this right extend to causing death? When does this right start and when does it end?

It is said that the law of self defence is not written but is born with us. We do not learn it or acquire it some how but it is in our nature to defend and protect ourselves from any kind of harm. When one is attacked by robbers, one cannot wait for law to protect oneself. Bentham has said that fear of law can never restrain bad men as much as the fear of individual resistance and if you take away this right then you become accomplice of all bad men.

IPC incorporates this principle in section 96, which says,

Section 96 - Nothing is an offence which is done in the exercise of the right of private defence.

It makes the acts, which are otherwise criminal, justifiable if they are done while exercising the right of private defence. Normally, it is the accused who takes the plea of self defence but the court is also bound take cognizance of the fact that the accused aced in self defence if such evidence exists.

In Section 97 through 106, IPC defines the characteristics and scope of private defence in various situations.

Section 97 - Every person has a right, subject to the restrictions contained in section 99, to defend -
    first - his own body or body of any other person against any offence affecting the human body.
    second - the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

This allows a person to defend his or anybody else's body or property from being unlawfully harmed. Under English law, the right to defend the person and property against unlawful aggression was limited to the person himself or kindred relations or to those having community of interest e.g. parent and child, husband and wife, landlord and tenant, etc. However, this section allows this right to defend an unrelated person's body or property as well. Thus, it is apt to call it as right to private defence instead of right to self defence.

It is important to note that the right exists only against an act that is an offence. There is no right to defend against something that is not an offence. For example, a policeman has the right to handcuff a person on his belief that the person is a thief and so his act of handcuffing is not an offence and thus the person does not have any right under this section.

Similarly, an aggressor does not have this right. An aggressor himself is doing an offence and even if the person being aggressed upon gets the better of the aggressor in the exercise of his right to self defence, the aggressor cannot claim the right of self defence. As held by SC in Mannu vs State of UP AIR 1979, when the deceased was waylaid and attacked by the accused with dangerous weapons the question of self defence by the accused did not arise.

The right to private defence of the body exists against any offence towards human body, the right to private defence of the property exists only against an act that is either theft, robbery, mischief, or criminal trespass or is an attempt to do the same.

In Ram Rattan vs State of UP 1977, SC observed that a true owner has every right to dispossess or throw out a trespasser while the trespasses is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing the possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking resource to the remedies available under the law.

Restrictions on right to private defence

As with any right, the right to private defence is not an absolute right and is neither unlimited. It is limited by the following restrictions imposed by section 99 -

Section 99 - There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office though that act may not be strictly justifiable by law.
    There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law.
    There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

    Extent to which the right may be exercised - The right of private defence in no case extends to the inflicting of more harm that it is necessary to inflict for the purpose of defence.

    Explanation 1 - A person is not deprived of his right of private defence against an act done or attempted to be done by a public servant, as such, unless he knows or has reason to believe that the person doing the act is such public servant.
    Explanation 2 - A person is not deprived of his right of private defence against an act done or attempted to be done by the direction of a public servant, unless he knows or has reason to believe that the person doing the act is acting by such direction, or unless such person states the authority under which he acts or if he has authority in writing, unless he produces such authority if demanded.

Upon carefully examining this section, we can see that the right to private defence is not available in the following conditions -

when an act is done by a public servant or upon his direction and the act

is done under colour of his office - an off duty police officer does not have the right to search a house and right to private defence is available against him. A police officer carrying out a search without a written authority, cannot be said to be acting under colour of his office. If the act of a public servant is ultra vires, the right of private defence may be exercised against him.
the act does not cause the apprehension of death or grievous hurt - for example, a police man beating a person senselessly can cause apprehension of grievous hurt and the person has the right of private defence against the policeman.
is done under good faith - there must be a reasonable cause of action on part of the public servant. For example, a policeman cannot just pick anybody randomly and put him in jail as a suspect for a theft. There must be some valid ground upon which he bases his suspicion.
the act is not wholly unjustified - The section clearly says that the act may not be strictly justified by law, which takes care of the border line cases where it is not easy to determine whether an act is justified by law. It clearly excludes the acts that are completely unjustified. For example, if a policeman is beating a person on the street on mere suspicion of theft, his act is clearly unjustified and the person has the right to defend himself.

However, this right is curtailed only if the person knows or has reasons to believe that the act is being done by a public servant. For example, if A tries to forcibly evict B from an illegally occupied premises, and if B does not know and neither does he have any reason to believe that A is a public servant or that A is acting of the direction of an authorized public servant, B has the right to private defence.

In Kanwar Singh's case 1965, a team organized by the municipal corporation was trying to round up stray cattle and was attacked by the accused. It was held that the accused had no right of private defence against the team.

when the force applied during the defence exceeds what is required to for the purpose of defence. For example, if A throws a small pebble at B, B does not have the right to shoot A. Or if A, a thief, is running back leaving behind the property that he tried to steal, B does not have the right to shoot A because the threat posed by A has already subsided.
In many situations it is not possible to accurately determine how much force is required to repel an attack and thus it is a question of fact and has to be determined on a case by case basis whether the accused was justified in using the amount of force that he used and whether he exceeded his right to private defence.

In Kurrim Bux's case 1865, a thief was trying to enter a house through a hole in the wall. The accused pinned his head down while half of his body was still outside the house. The thief died due to suffocation. It was held that the use of force by the accused was justified.
However, in Queen vs Fukira Chamar, in a similar situation, a thief was hit on his head by a pole five times because of which he died. It was held that excessive force was used than required.
when it is possible to approach proper authorities - No man has the right to take the law into his hands and so when he has the opportunity to call proper authorities, he does not have the right to private defence. It usually happens when there is a definite information about the time and place of danger. But law does not expect that a person must run away to call proper authorities. The question whether a person has enough time depends on the factors such as –

the antecedent knowledge of the attack.
how far the information is reliable and precise.
the opportunity to give the information to the authorities.
the proximity of the police station.

In Ajodha Prasad vs State of UP 1924, the accused received information that they were going to get attacked by some sections of the village. However, they decided that if they separated to report this to the police they will be in more danger of being pursued and so they waited together. Upon attack, they defended themselves and one of the attackers was killed. It was held that they did not exceed the right of private defence.

Right to private defence of body up to causing death

Section 100 of IPC specifies six situations in which the right of private defence of body extends even to causing death.

Section 100 - The right of private defence of the body extends under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions here in after enumerated, namely -

First - such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.
Second - such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
Third - An assault with the intention of committing rape.
Fourth - An assault with the intention of gratifying unnatural lust.
Fifth - As assault with the intention of kidnapping or abducting.
Sixth - An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Even though this section authorizes a person to cause death of another in certain situation, it is also subject to the same restrictions as given in section 99. Thus, a person cannot apply more force than necessary and must contact the authorities if there is an opportunity.

In Viswanath vs State of UP AIR 1960, when the appellant's sister was being abducted from her father's home even though by her husband and there was an assault on her body by the husband, it was held that the appellant had the right of private defence of the body of his sister to the extent of causing death.

To be able to extend this right up to causing death, the apprehension of grievous hurt must be reasonable. In case of Sheo Persan Singh vs State of UP 1979, the driver of a truck drove over and killed two persons sleeping on the road in the night. People ahead of the truck stood in the middle of the road to stop the truck, however, he overran them thereby killing some of them. He pleaded right to private defence as he was apprehensive of the grievous hurt being caused by the people trying to stop him. SC held that although in many cases people have dealt with the errant drivers very seriously, but that does not give him the right of private defence to kill multiple people. The people on the road had a right to arrest the driver and the driver had no right of private defence in running away from the scene of accident killing several people.

Yogendra Morarji vs State of Gujarat 1980 is an important case in which SC observed that when life is in peril the accused was not expected to weigh in golden scales what amount of force does he need to use and summarized the law of private defence of body as under -

There is no right of private defence against an act which is not in itself an offence under this code.
The right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or thread to commit some offence although the offence may not have been committed and it is continuous with the duration of the apprehension.
It is a defensive and not a punitive or retributive right. Thus, the right does not extend to the inflicting of more harm than is necessary for defence.
The right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of section 100.
There must be no safe or reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant.
The right being in essence a defensive right does not accrue and avail where there is time to have recourse to the protection of public authorities.

Duration of the right of private defence of body
Section 102 specifies the duration of the right of private defence of the body as follows -

Section 102 - The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed and it continues as long as such apprehension of danger to the body continues.

The right to defend the body commences as soon as a reasonable apprehension of danger to the body arises and it continues as long as such apprehension of danger to the body continues.

Right to private defence of property up to causing death
Section 103 of IPC specifies four situations in which the right of private defence of property extends even to causing death.

Section 103 - The right of private defence of property extends, under the restriction mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong doer, if the offence, the committing of which, or attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely -

First - Robbery
Secondly - House breaking by night
Third - Mischief by fire committed on any building, tent, or vessel, which building tent or vessel is used as a human dwelling or as a place for custody of property.
Fourth - Theft, mischief or house trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised.

A person may cause death in safeguarding his own property or the property of some one else when there is a reason to apprehend than the person whose death has been cause was about to commit one of the offences mentioned in this section or to attempt to commit one of those offences.

In case of State of UP vs Shiv Murat 1982, it was held that to determine whether the action of the accused was justified or not one has to look in to the bona fides of the accused. In cases where there is a marginal excess of the exercise of such right it may be possible to say that the means which a threatened person adopts or the force which he uses should not be weighed in golden scales and it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room.

Duration of the right of private defence of property
Section 105 specifies the duration of the right of private defence of the property as follows -
Section 105 - The right of private defence of the property commences as soon as a reasonable apprehension of danger to the property commences. It continues -
in case of theft - till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained or the property has been recovered.
in case of robbery - as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instance hurt or of instance personal restraint continues.
in case of criminal trespass - as long as the offender continues in the commision of criminal trespass or mischief.
in case of house breaking by night - as long as the house, trespass which has been begun by such house breaking, continues.

The case of Amjad Khan vs State AIR 1952, is important. In this case, a criminal riot broke out in the city. A crowd of one community surrounded the shop of A, belonging to other community. The crowd started beating the doors of A with lathis. A then fired a shot which killed B, a member of the crowd. Here, SC held that A had the right of private defence which extended to causing of death because the accused had reasonable ground to apprehend that death or grievous hurt would be caused to his family if he did not act promptly.

Q. 5 What do you understand by Culpable Homicide? In what circumstances Culpable Homicide does not amount to Murder? What are those exceptions when Culpable Homicide does not amount to Murder?

The word homicide is derived from two Latin words - homo and cido. Homo means human and cido means killing by a human. Homicide means killing of a human being by another human being. A homicide can be lawful or unlawful. Lawful homicide includes situations where a person who has caused the death of another cannot be blamed for his death. For example, in exercising the right of private defense or in other situations explained in Chapter IV of IPC covering General Exceptions. Unlawful homicide means where the killing of another human is not approved or justified by law. Culpable Homicide is in this category. Culpable means blame worthy. Thus, Culpable Homicide means killing of a human being by another human being in a blameworthy or criminal manner.

Section 299 of IPC defines Culpable Homicide as follows -
Section 299 - Who ever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of Culpable Homicide.

Illustrations -

A lays sticks and turf over a pit, with the intention of there by causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of Culpable Homicide.
A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z's death, induces B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of Culpable Homicide.
A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of Culpable Homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death.

Explanation 1 - A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.

Explanation 2 - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.

Explanation 3 - The causing of the death of child in the mother's womb is not homicide. But it may amount to Culpable Homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

Based upon the above definition, the following are the essential elements of Culpable Homicide -

Death of a human being is caused - It is required that the death of a human being is caused. However, it does not include the death of an unborn child unless any part of that child is brought forth.
By doing an act - Death may be caused by any act for example, by poisoning or by hurting with a weapon. Here act includes even on omission of an act for which one is obligated by law to do. For example, if a doctor has a required injection in his hand and he still does not give it to the dying patient and if the patient dies, the doctor is responsible.
Intention or Knowledge - There must be an intention of any of the following -

Intention of causing death - The doer of the act must have intended to cause death. As seen in Illustration 1, the doer wanted or expected someone to die. It is important to note that intention of causing death does not necessarily mean intention of causing death of the person who actually died. If a person does an act with an intention of killing B but A is killed instead, he is still considered to have the intention.
Intention of causing such bodily injury as is likely to cause death - The intention of the offender may not have been to cause death but only an injury that is likely to cause the death of the injured. For example, A might intended only to hit on the skull of a person so as to make him unconscious, but the person dies. In this case, the intention of the person was only to cause an injury but the injury is such that it is likely to cause death of the person. Thus, he is guilty of Culpable Homicide. However, if A hits B with a broken glass. A did not know that B was haemophilic. B bleeds to death. A is not guilty of Culpable Homicide but only of grievous hurt because he neither had an intention to kill B nor he had any intention to cause any bodily injury as is likely to cause death.

Or the act must have been done with the knowledge that such an act may cause death - When a person does an act which he knows that it has a high probability to cause death, he is responsible for the death which is caused as a result of the act. For example, A knows that loosening the brakes of a vehicle has a high probability of causing death of someone. If B rides such a bike and if he dies, A will be responsible for B's death. In Jamaluddin's case 1892, the accused, while exorcising a spirit from the body of a girl beat her so much that she died. They were held guilty of Culpable Homicide.
Negligence - Sometimes even negligence is considered as knowledge. In Kangla 1898, the accused struck a man whom he believed was not a human being but something supernatural. However, he did not take any steps to satisfy himself that the person was not a human being and was thus grossly negligent and was held guilty of Culpable Homicide.

Murder (When Culpable Homicide amounts to Murder)
Murder is a type of Culpable Homicide where culpability of the accused is quite more than in a mere Culpable Homicide. Section 300, says that Culpable Homicide is Murder if the act by which the death is caused is done

with the intention of causing death
or with an intention of causing such bodily injury as the offender knows to be likely to cause the death of the person,
or with an intention of causing such bodily injury as is sufficient in ordinary course of nature to cause death.
It is also Murder if the person committing the act knows that the act is so dangerous that it will cause death or such injury as is likely to cause death in all probability and he has no valid reason for doing that act.

Illustrations -
A shoots Z with an intention of killing him. Z dies in consequence. A commits Murder.
A intentionally gives Z a sword cut that sufficient in ordinary course of nature to cause death. Z dies because of the cut. A commits Murder even though he had no intention to kill Z.
A without any excuse fires a loaded canon on a crowd. One person dies because of it. A commits Murder even though he had no intention to kill that person.

Thus, it can be seen that Murder is very similar to Culpable Homicide and many a times it is difficult to differentiate between them. J Melvill in the case of R vs Govinda 1876 Bom. analyzed both in the following table -

Culpable Homicide	Murder
A person commits Culpable Homicide if the act by which death is caused is done -	A person commits Murder if the act by which death is caused is done -
1. with the intention of causing death.	1. with the intention of causing death.
2. with an intention to cause such bodily injury as is likely to cause death.	2. with an intention to cause such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused. 3. with an intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in ordinary course of nature to cause death.
3. with the knowledge that such an act is likely to cause death.	4. With the knowledge that the act is so imminently dangerous that it must in all probability cause death.

Based on this table, he pointed out the difference - when death is caused due to bodily injury, it is the probability of death due to that injury that determines whether it is Culpable Homicide or Murder. If death is only likely it is Culpable Homicide, if death is highly probable, it is Murder.

In Augustine Saldanha vs State of Karnataka LJ 2003, SC deliberated on the difference of Culpable Homicide and Murder. SC observed that in the scheme of the IPC Culpable Homicide is genus and Murder its specie. All 'Murder' is 'Culpable Homicide' but not vice-versa. Speaking generally, 'Culpable Homicide' sans 'special characteristics of Murder is Culpable Homicide not amounting to Murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of Culpable Homicide. The first is, what may be called, 'Culpable Homicide of the first degree'. This is the greatest form of Culpable Homicide, which is defined in Section 300 as 'Murder'. The second may be termed as 'Culpable Homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'Culpable Homicide of the third degree'. This is the lowest type of Culpable Homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable Homicide of this degree is punishable under the second part of Section 304.

It further observed that the academic distinction between 'Murder' and 'Culpable Homicide not amounting to Murder' has always vexed the Courts. They tried to remove confusion through the following table -

Culpable Homicide	Murder
A person commits Culpable Homicide if the act by which death is caused is done -	Subject to certain exceptions , Culpable Homicide is Murder if the act by which death is caused is done -
INTENTION
(a) with the intention of causing death; or	1. with the intention of causing death; or
(b) with an intention to cause such bodily injury as is likely to cause death.	2. with an intention to cause such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused. 3. with an intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in ordinary course of nature to cause death.
KNOWLEDGE
(c) with the knowledge that such an act is likely to cause death.	4. With the knowledge that the act is so imminently dangerous that it must in all probability cause death.

Thus, it boils down to the knowledge possessed by the offender regarding a particular victim in a particular state being in such condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not, in the ordinary circumstances, be sufficient to cause death. In such a case, intention to cause death is not an essential requirement. Only the intention of causing such injury coupled with the knowledge of the offender that such injury is likely to cause death, is enough to term it as Murder.

Situations where Culpable Homicide does not amount to Murder
Section 300 also specifies certain situations when the Murder is considered as Culpable Homicide not amounting to Murder. These are -
(Short Details)

If the offender does an act that causes death because of grave and sudden provocation by the other.
If the offender causes death while exceeding the right to private defense in good faith.
If the offender is a public servant and does an act that he, in good faith, believes to be lawful.
If the act happens in a sudden fight in the heat of passion.
If the deceased is above 18 and the death is caused by his own consent.

(Full Details)
Exception I - Culpable Homicide is not Murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos -

That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
That the provocations not given by anything done in the lawful exercise of the right of private defence.

Explanation-Whether the provocation was grave and sudden enough to prevent the offence from amounting to Murder is a question of fact.

Illustrations

A, under the influence of passion excited by a provocation given by Z, intentionally kills, Y, Z's child. This is Murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed Murder, but merely Culpable Homicide.
A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This Murder, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers.
A appears as a witness before Z, a Magistrate, Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is Murder.
A attempts to pull Z's nose, Z, in the exercise of the right of private defence, lays hold of a to prevent him form doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is Murder, in as much as the provocation was given by a thing done in the exercise of the right of private defence.
Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only Culpable Homicide, but A is guilty of Murder.

Exception 2 - Culpable Homicide is not Murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Illustration - Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed Murder, but only Culpable Homicide.

Exception 3 - Culpable Homicide is not Murder if the offender, being a public servant or aiding a public servant acting or the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4 - Culpable Homicide is not Murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
Explanation-It is immaterial in such cases which party offers the provocation or commits the first assault.
In a very recent case of Byvarapu Raju vs State of AP 2007, SC held that in a Murder case, there cannot be any general rule to specify whether the quarrel between the accused and the deceased was due to a sudden provocation or was premeditated. "It is a question of fact and whether a quarrel is sudden or not, must necessarily depend upon the proved facts of each case," a bench of judges Arijit Pasayat and D K Jain observed while reducing to 10 years the life imprisonment of a man accused of killing his father. The bench passed the ruling while upholding an appeal filed by one Byvarapu Raju who challenged the life sentence imposed on him by a session's court and later affirmed by the Andhra Pradesh High Court for killing his 'drunkard' father.

Exception 5 - Culpable Homicide is not Murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Illustration - A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted Murder.

Q. Define Hurt and Grievous Hurt. Explain the difference.

In normal sense, hurt means to cause bodily injury and/or pain to another person. IPC defines Hurt as follows -

Section 319 - Whoever causes bodily pain, disease, or infirmity to any person is said to cause hurt.

Based on this, the essential ingredients of Hurt are -

Bodily pain, disease or infirmity must be caused - Bodily pain, except such slight harm for which nobody would complain, is hurt. For example, pricking a person with pointed object like a needle or punching somebody in the face, or pulling a woman's hair. The duration of the pain is immaterial. Infirmity means when any body organ is not able to function normally. It can be temporary or permanent. It also includes state of mind such as hysteria or terror.
It should be caused due to a voluntary act of the accused.

When there is no intention of causing death or bodily injury as is likely to cause death, and there is no knowledge that inflicting such injury would cause death, the accused would be guilty of hurt if the injury is not serious. In Nga Shwe Po's case 1883, the accused struck a man one blow on the head with a bamboo yoke and the injured man died, primarily due to excessive opium administered by his friends to alleviate pain. He was held guilty under this section.
The authors of the code have observed that in many cases offences that fall under hurt will also fall under assault. However, there can be certain situations, where they may not. For example, if A leaves food mixed with poison on B's desk and later on B eats the food causing hurt, it cannot be a case of assault.

If the accused did not know about any special condition of the deceased and causes death because of hurt, he will be held guilty of only hurt. Thus, in Marana Goundan's case AIR 1941, when the accused kicked a person and the person died because of a diseased spleen, he was held guilty of only hurt.

A physical contact is not necessary. Thus, a when an accused gave food mixed with dhatura and caused poisoning, he was held guilty of Hurt.

Grievous Hurt
Cases of severe hurt are classified under grievous hurt. The authors of the code observed that it would be very difficult to draw a line between hurt and grievous hurt but it was important to draw a line even if it is not perfect so as to punish the cases which are clearly more than hurt. Thus, section 320 of IPC defines Grievous Hurt as -

Section 320 - The following kinds of hurt only are designated as "Grievous"

Emasculation
Permanent privation of the sight of either eye.
Permanent privation of the hearing of either ear.
Privation of any member or a joint.
Destruction or permanent impairing of powers of any member or joint.
Permanent disfiguration of the head or face.
Fracture or dislocation of a bone or tooth.
Any hurt which endangers life or which causes the sufferer to be, during the space of twenty days, in severe body pain or unable to follow his ordinary pursuits.

Thus, it can be seen that grievous hurt is a more serious kind of hurt. Since it is not possible to precisely define what is a serious hurt and what is not, to simplify the matter, only hurts described in section 320 are considered serious enough to be called Grievous Hurt. The words "any hurt which endangers life" means that the life is only endangered and not taken away. Stabbing on any vital part, squeezing the testicles, thursting lathi into rectum so that bleeding is caused, have all been held as Hurts that endanger life and thus Grievous Hurts.
As with Hurt, in Grievous Hurt, it is not a physical contact is not necessary.

Difference between Hurt and Grievous Hurt
Only hurts that are defined in section 320 are called Grievous Hurt.
Punishment for voluntarily causing Hurt as defined in section 323 is imprisonment of either description up to 1 year and a fine up to 1000 Rs, while punishment for voluntarily causing grievous hurt is imprisonment of either description up to 7 years as well as fine.

Difference between Grievous Hurt and Culpable Homicide
The line separating Grievous Hurt and Culpable Homicide is very thin. In Grievous Hurt, the life is endangered due to injury while in Culpable Homicide, death is likely to be caused. Thus, acts neither intended nor likely to cause death may amount to grievous hurt even though death is caused.
In case of Formina Sbastio Azardeo vs State of Goa Daman and Diu 1992 CLJ SC, the deceased was making publicity about the illicit intimacy between N and W. On the fateful day, N, W, and her husband A caught hold of D and tied him up to a pole and beat him as a result of which he died. They were not armed with any dangerous weapon and had no intention to kill him. N and W were held guilty of only causing grievous hurt.

Q. What is meant by kidnapping from India, kidnapping from guardianship, and abduction? Differentiate between Kidnapping and Abduction.

Kidnapping

Kidnapping from India - Kidnapping from India means taking anybody, without his consent, out of the borders of India. Section 360 defines it as follows -

Section 360 - Whoever conveys any person beyond the limits of India without the consent of that person or of some person legally authorized to consent on behalf of that person, is said to kidnanap that person from India.

For example, if A takes B without his consent or without B's lawful guardians consent to Pakistan, A would be committing this offence. The essential ingredient of Kidnapping are -

The person should be conveyed out of the borders of India.
The person should be conveyed without his consent or without the consent of the person who is legally authorized to consent on his behalf.

Thus, if a person is not capable of giving valid consent as in the case of a minor or a person with unsound mind, the consent of his lawful guardian is required to take him outside India.

Kidnapping from Lawful guardianship - Kidnapping from lawful guardianship means taking a child away from his lawful guardian without the guardian's consent. Section 361 defines it as follows -

Section 361 - Whoever takes or entices any minor under 16 yrs of age if male or 18 yrs of age if female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation - The words lawful guardian in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

Based on this section the essential ingredients are -

The person should either be a minor or a person of unsound mind - This implies that the person is not capable of giving consent. In case of male child the age is 16 yrs while in case of a female child the age is 18 yrs. For a person on unsound mind, age is immaterial.
Such person be taken or enticed away - This means that either force is used or any enticement that causes the person to leave domain of the lawful guardian is used. For example, if A shows toffee to a child C thereby causing the child to come out of the house and follow A, it fall under this category.
Such person must be taken or enticed away from the lawful guardian - Only when the child is under the lawful guardian, can he be kidnapped. This means that the child should be under the domain of the lawful guardian. For example, an orphan wandering on the streets cannot be kidnapped because he doesn't have a lawful guardian. However, this does not mean that a child must be with the lawful guardian. For example, a child siting in a school is also under the dominion of his father and if A takes such a child away, it would be kidnapping. Further, a lawful guardianship does not necessarily mean a legal guardian. A legal guardian may entrust the custody of his child to someone else. Taking a child away from such custody will also fall under this section. For example, A entrusts his child to B, his servant, to take the child to school. If, C takes the child away from the servant, this would be kidnapping because the servant has the lawful guardianship of the child.

Distinction between taken away and allowing a child to follow -
In Vardrajan vs State of Madras AIR 1965, SC observed that there is a difference between taking away a minor and allowing the minor to follow. If a person knowingly does an act which he has reason to believe will cause the child to leave the guardian, then it would amount to taking away the child, however, if child follows a person even when a person does not do any act meant to entice a child to leave his guardian, he cannot be held responsible. For example, if a child follows an icecream vendor, without any enticement from the vendor, while the guardian fails to keep the watch, the vendor cannot be held guilty under this section.

In Chajju Ram vs State of Punjab AIR 1968, a minor girl was taken away out of the house for only about 20 - 30 yards. it was held that it was kidnapping because distance is immaterial.

Kidnapping is complete as soon as the minor or the person with unsound mind leaves the custody of the guardian. It is not a continuing offence. Thus, when a child is kidnapped from place P1 and taken to place P2 and then from P2 to P3, kidnapping was done only once.

Abduction

Section 362 of IPC defines Abduction as follows -

Section 362 - Whoever by force compels, or by any deceitful means induces, any person to go from any place is said to abduct that person.

It means compelling a person, or to induce him to go from where he is to another place. The essential ingredients are -

A person goes from one place to another - A person cannot be abducted at the same place where he is. For abduction to take place, the person should physically move from one place to another.
Either by forcible compulsion or by inducement - The movement of the person must be because of some compulsion or because of some inducement. For example, A threatens B on gun point to go from his house to another city. Here, A has compelled B to go from his house and is thus guilty under this section.

Here, the age of the abducted person is immaterial. Thus, even a major can be abducted if he is forced to go from one location. But if a minor is abducted, it may amount to Kidnapping as well. Further, it is a continuing offence. As long as a person is forced to go from place to place, abduction continues.

Differences among Kidnapping from India, Kidnapping from lawful guardian, and Abduction -

Kidnapping from India (Section 360)	Kidnapping from lawful guardian (Section 361)	Abduction (Section 362)
A person is taken out of the limits of India.	A person is taken away from the lawful guardian.	A person is compelled by force or induced by deception to go from any place.
Age of the person is immaterial.	The person must be less than 16 yrs of age if male, less than 18 if female, or of unsound mind.	Age of the person is immaterial.
It is not a continuing offence.	It is not a continuing offence.	It is a continuing offence.
The person is conveyed without his consent.	Consent of the person kidnapped is immaterial.	Person moves without his consent or the consent is obtained by decietful means.
It can be done without use of force.	It can be done without use of force or deception.	It is always done by the use of force or deception.

Q. Define and explain Theft. Can a man commit theft of his own property? How is Theft different from Extortion? Under what circumstances Theft becomes Robbery? Differentiate between Robbery and Dacoity. A finds a valuable ring on the road. A sells it immediately without attempting to find the true owner. Is A guilty of any offence?

Theft

In general, theft is committed when a person's property is taken without his consent by someone. For example, A enters the house of B and takes B's watch without B seeing and puts it in his pocket with an intention to take it for himself. A commits theft. However, besides the ordinary meaning conveyed by the word theft, the scope of theft is quite wide. Section 378 of IPC defines theft as follows -

Section 378 - Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.

Based on this definition, the following are the essential constituents of Theft -

Dishonest intention to take property - There must be dishonest intention on the part of the offender. As defined in Section 24 of IPC, dishonestly means that there must be a wrongful loss to one or wrongful gain to another. For example, A quietly takes money from B's purse for his spending. Here, A causes wrongful loss to B and is thus guilty of theft. However,if the intention of the offender is not to cause a wrongful loss or wrongful gain, he does not commit theft even if he takes the property without consent. For example, A gives his watch to B for repairing. B takes the watch to his shop. A, who does not owe any debt to B for which B has the right to retain the watch, follows B and forcibly takes back the watch. Here, A does not commit theft because he has no dishonest intention. Similarly, when A, believing, in good faith, a property in possession of B, to be his, takes it from B, it is not theft.
In K. N. Mehra v. State of Rajasthan AIR 1957 S. C. 369, SC held that proof of intention to cause permanent deprivation of property to the owner, or to obtain a personal gain is not necessary for the purpose of establishing dishonest intention. Thus, In Pyarelal Bhargava vs State AIR 1963, a govt. employee took a file from the govt. office, presented it to B, and brought it back to the office after two days. It was held that permanent taking of the property is not required, even a temporary movement of the property with dishonest intention is enough and thus this was theft.
Property must be movable - An immovable property cannot be stolen or moved from the possession so a theft cannot happen in respect of an immovable property. However, as per Explanation 1 of section 378, as long as a thing is attached to earth, not being movable, is not subject of theft. However, as soon as it is severed from the earth, it is capable of being the subject of theft. Further, Explanation 2 says that a moving affected by the same act that causes severance, may be theft.
For example, a tree on A's land is not capable of being the subject of theft. However, if B, with an intention to take the tree, cuts the tree, he commits theft as soon as the tree is severed from the earth.
In White's case, 1853, a person introduced another pipe in a gas pipeline and consumed the gas bypassing the meter. Gas was held to be a movable property and he was held guilty of theft.
Property must be taken out of possession of another - The property must be in possession of someone. A property that is not in possession of anybody cannot be a subject of theft. For example, wild dogs cannot be a subject of theft and so if someone takes a wild dog, it will not be theft. It is not important whether the person who possess the thing is the rightful owner of that thing or not. If the thing is moved out of mere possession of someone, it will be theft. For example, A, a coin collector, steals some coins from B, a fellow coin collector. A finds out that they were his coins that were stolen earlier. Here, even though B was not the rightful owner of the coins, he was still in possession of them and so A is guilty of theft.
In HJ Ransom vs Triloki Nath 1942, A had taken a bus on hire purchase from B under the agreement that in case of default B has the right to take back the possession of the bus. A defaulted, and thereupon, B forcibly took the bus from C, who was the driver of the bus. It was held that the C was the employee of A and thus, the bus was in possession of A. Therefore, taking the bus out of his possession was theft.

Property must be taken without consent - In order to constitute theft, property must be taken without the consent of person possessing it. As per Explanation 5, consent can be express or implied. For example, A, a good friend of B, goes to B's library and takes a book without express consent of B, with the intention of reading it and returning it. Here, A might have conceived that he had B's implied consent to take the book and so he is not guilty of theft. Similarly, when A asks for charity from B's wife, and when she gives A some clothes belonging to B, A may conceive that she has the authority to give B's clothes and so A is not guilty of theft.
In Chandler's case, 1913, A and B were both servants of C. A suggested B to rob C's store. B agreed to this and procured keys to the store and gave them to A, who then made duplicate copies. At the time of the robbery, they were caught because B had already informed C and to catch A red handed, C had allowed B to accompany A on the theft. Here, B had the consent of C to move C's things but A did not and so A was held guilty of theft.
Physical movement of the property is must - The property must be physically moved. It is not necessary that it must be moved directly. As per Explanation 3, moving the support or obstacle that keeps the property from moving is also theft. For example, removing the pegs to which bullocks are tied, is theft. Further, as per Explanation 4, causing an animal to move, is also considered as moving the things that move in consequence. For example, A moves the bullock cart carrying a box of treasure. Here, A is guilty of moving the box of treasure.
In Bishaki's case 1917, the accused cut the string that tied the necklace in the neck of a woman, because of which the necklace fell. It was held that he caused sufficient movement of the property as needed for theft.

Theft of one's own property
As per the definition of theft given in section 378, it is not the ownership but the possession of the property that is important. A person may be a legal owner of a property but if that property is in possession, legally valid or invalid, of another, it is possible for the owner to commit theft of his own property. This is explained in illustration j of section 378 - A gives his watch to B for repairs. B repairs the watch but A does not pay the repairing charges, because of which B does not return the watch as a security. A forcibly takes his watch from B. Here, A is guilty of theft of his own watch.
Further, in illustration k, A pawns his watch to B. He takes it out of B's possession, having not payed to B what he borrowed by pawning it, without B's consent. Thus, he commits theft of his own property in as much as he takes it dishonestly.
In Rama's Case 1956, a person's cattle was attached by the court and entrusted with another. He took the cattle out of the trustee's possession without recourse of the court. He was held guilty of theft.

Extortion
In Extortion, a person takes the property of another by threat without any legal justification. Section 383 defines extortion as follows -
Section 383 - Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed, which may be converted into a valuable security, commits extortion.
For example, A threatens to publish a defamatory libel about B unless B gives him money. A has committed extortion. A threatens B that he will keep B's child in wrongful confinement, unless B will sign and deliver to A a promissory note binding B to pay certain moneys to A. B signs and delivers such noted. A has committed extortion.

The following are the constituents of extortion -
1. Intentionally puts any person in fear of injury - To be an offence under this section, putting a person in fear of injury intentionally is a must. The fear of injury must be such that is capable of unsettling the mind of the person threatened and cause him to part with his property. Thus, it should take away the element of freeness and voluntariness from his consent. The truth of the threat under this section is immaterial. For example, A's child is missing and B, who does not have A's child, threatens A that he will kill A's child unless A pay's him 1 lac Rs, will amount to extortion. Similarly, guilt or innocence of the party threatened is also immaterial. In Walton's case 1863, the accused threatened to expose a clergyman, who had criminal intercourse with a woman of ill repute, unless the clergyman paid certain amount to him. He was held guilty of extortion.

However, in Nizamuddin's case 1923, a refusal by A to perform marriage and to enter it in the register unless he is paid Rs 5, was not held to be extortion.

2. Dishonestly induces a person so put in fear to deliver to any person any property - The second critical element of extortion is that the person who has been put to fear, must deliver his property to any person. Dishonest inducement means that the person would not have otherwise agreed to part with his property and such parting causes him a wrongful loss. Further, the property must be delivered by the person who is threatened. Though, it is not necessary to deliver the property to the person threatening. For example, if A threatens B to deliver property to C, which B does, A will be guilty of extortion.
The delivery of the property by the person threatened is necessary. The offence of extortion is not complete until delivery of the property by the person put in fear is done. Thus, Duleelooddeen Sheikh's case 1866, where a person offers no resistance to the carrying off of his property on account of fear and does not himself deliver it, it was held not to be extortion but robbery.

Extortion can also happen in respect of valuable security or anything signed that can become a valuable security. For example, A threatens B to sign a promissory note without the amount or date filled in. This is extortion because the note can be converted to valuable security.

In Romesh Chandra Arora's case 1960, the accused took a photograph of a naked boy and a girl by compelling them to take off their clothes and extorted money from them by threatening to publish the photograph. He was held guilty of extortion.

In R S Nayak vs A R Antuley and another AIR 1986, it was held that for extortion, fear or threat must be used. In this case, chief minister A R Antuley asked the sugar cooperatives, whose cases were pending before the govt. for consideration, to donate money and promised to look into their cases. It was held that there was no fear of injury or threat and so it was not extortion.

Theft (Section 378)	Extortion (Section 383)
The property is taken by the offender without consent.	The property is delivered to the offender by consent although the consent is not free.
There is no element of threat.	There is an element of threat or instillment of fear because of which the consent is given.
Only movable property is subject to theft.	Any kind of property can be subjected to extortion.
Offender takes the property himself.	Property is delivered to offender.

Robbery

Robbery is a severe form of either theft or extortion. In certain circumstances, a theft or an extortion gravitates to robbery.

Section 390 defines robbery as follows -

Section 390 - In all robbery there is either theft or extortion.

When theft is robbery - Theft is robbery if, in order to the committing of the theft or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint.

When extortion is robbery - Extortion is robbery if the offender at the time of committing the extortion is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or of instant hurt, or of instant wrongful restraint to that person, or to some other person, and by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

Thus, a theft becomes a robbery when the following two conditions are satisfied -

when someone voluntarily causes or attempts to cause

death, hurt, or wrongful restraint or
fear of instant death, instant hurt, or instant wrongful restraint

the above act is done

in order to the committing of theft or
committing theft or
carrying away or attempting to carry away property obtained by theft.

For example, A holds Z down, and fraudulently takes Z's money from Z's clothes, without Z's consent. A has committed theft and in order to commit that theft, he voluntarily caused wrongful restraint to Z. Thus, A has committed robbery.

Robbery can be committed even after the theft is committed if in order to carrying away the property acquired after theft, death, hurt, or wrongful restraint or an instant fear of them is caused. The expression "for that end" implies that death, hurt, or wrongful restraint or an instant fear of them is caused directly to complete the act of theft or carrying away the property. In Hushrut Sheik's case 1866, C and D were stealing mangoes from tree and were surprised by B. C knocked down B and B became senseless. It was held to be a case of robbery.

Further, the action causing death, hurt, or wrongful restraint or an instant fear of them must be voluntary. Thus, in Edward's case 1843, a person, while cutting a string tied to a basket accidentally cut the wrist of the owner who tried to seize it. He was held guilty of only theft.

An extortion becomes a robbery when the following three conditions are satisfied -

when a person commits extortion by putting another person in fear of instant death, hurt, or wrongful restraint, and
such a person induces the person put in such fear to deliver the property then and there and
the offender is in the presence of the person put in such fear at the time of extortion.

For example, A meets Z on high road, shows a pistol, and demands Z's purse. Z in consequence surrenders his purse. Here, A has extorted the purse from Z by putting him in fear of instant hurt and being present at the time of committing the extortion in his presence, A has committed robbery.
In another example, A meets Z and Z's child on the high road. A takes the child and threatens to fling it down a precipice, unless Z delivers his purse. Z in consequence, delivers the purse. Here, A has extorted the purse from Z by causing Z to be in fear of instant hurt of his child who is present there. Thus, A has committed robbery.

For extortion to become robbery, the fear of instant death, hurt, or wrongful restraint is must. Thus, when A obtains property from Z by saying, "Your child is with my gang and will be put to death unless you send us ten thousand rupees", this is extortion but not robbery because the person is not put in fear of instant death of his child.

In presence of the person - The offender must be present where a person is put in fear of injury to commit the offence of robbery. By present, it means that the person should be sufficiently near to cause the fear. By his presence, the offender is capable of carrying out his threat immediately. Thus the person put in such fear delivers the property in order to avoid the danger of instant death, hurt or wrongful restraint.
In Shikandar vs State 1984, the accused attacked his victim by knife many times and succeeded in acquiring the ear rings and key from her salwar. He was held guilty of robbery.

Dacoity
As per section 391, a Robbery committed by five or more persons is dacoity.

Section 391 - When five or more persons conjointly commit or attempt to commit robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting, or aiding is said to commit dacoity.

Conjointly implies a collective effort to commit or attempting to commit the action. It is not necessary that all the persons must be at the same place but they should be united in their efforts with respect to the offence. Thus, persons who are aiding the offence are also counted and all are guilty of dacoity.

It is necessary that all the persons involved must have common intention to commit the robbery. Thus, dacoity is different from robbery only in the respect of number of people committing it and is treated separately because it is considered to be a more grave crime.

In Ram Chand's case 1932, it was held that the resistance of the victim is not necessary. The victims, seeing a large number of offenders, did not resist and no force or threat was used but the offenders were still held guilty of dacoity.

In Ghamandi's case 1970, it was held that less than five persons can also be convicted of dacoity if it is proved as a fact that there were more than 5 people who committed the offence by only less than five were identified.

However, if 5 persons were identified and out of them 2 were acquitted, the remaining three cannot be convicted of dacoity.

Answer to problem
A has not committed theft because the ring is not in possession of anybody. However, as a finder of goods, he has a responsibility to make good faith efforts to find the true owner. Since he has not made any efforts to do so, he is guilty of Dishonest misappropriation of property under Section 403.

a) Define rape .

b) Define Consent .

c) Critically discuss the law of consent as defence with reference to rape Cases.

d) When a person can be said to have committed rape upon his own wife ?

Answer : -

a) Define rape .

Rape for a woman is deathless shame and must be dealt with as the gravest against human dignity . On the basis of this principle the offence of rape is defined by section 375 of the Indian Penal Code .

According to this section a man is said to commit rape who , except in the case of sexual intercourse by a man with his own wife not being under fifteen years of age , has sexual intercourse with a woman under the circumstances falling under any of the six following categories :-

Firstly :- Against her will .

Secondly :- Without her consent .

Thirdly :- With her consent , when her consent has been obtained by putting her or any person in whom she is interested , in fear of death or of hurt .

Fourthly :- With her consent , when the man knows that he is not her husband , and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married .

Fifthly : - With her consent , when , at the time of giving such consent , by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or any unwholesome substance , she is unable to understand the nature and consequences of that to which she gives consent .

Sixthly :- With or without her consent , when she is under sixteen years of age .

It has also been explained by the section that penetration is sufficient to constitute the offence of rape . It has been pointed out by the different Hon’ble Courts in several cases that mere or slightest penetration is sufficient and penetration of the whole male genital organ or emission of semen is not necessary . In fact penetration is the sine qua non for an offence of rape .

From the definition given above , it is clear that rape is forcible ravishment of a woman , and the essence of the offence consists in the act being done against the will or without the consent of the woman. In the case of Phul Singh v State of Haryana , Hon’ble Supreme Court of India described that the offence of rape is the violation , with violence , of the private person of a woman .

b) Define Consent .

Section 90 of the Indian Penal Code includes definition of consent for the purpose of the code . Section 90 says that a consent is not such a consent as is intended by any section of this code if the consent is given by a person under fear of injury , or under a misconception of fact , or if the consent is given by a person who , from unsoundness of mind , or intoxication , is unable to understand the nature and consequences of that act to which consent is given , or when the consent is given by a person who is under twelve years of age . But section 90 can not be construed as an exhaustive definition of consent in contrast with the offence of rape.

In addition to section 90 of the IPC , Section 375 provides one more ground to the effect that the consent given by a woman under sixteen years of age is no consent .

The will and consent often overlap . An act done with the will of a person can be said to be an act done with consent . In the purview of the offence of rape , consent means , legal consent or free willful consent given by a woman of more than sixteen years of age who is capable of understanding the nature of sexual intercourse and it’s consequences.

C) Critically discuss law of consent as defence with reference to rape Cases.

Rape is an accusation which can easily be made and hard to be proved and harder to be defended by the party concerned , though never so innocent. Yet the question of consent is really a matter of defence and it is for the accused to place materials to show that there was free consent and the girl was not under sixteen years of age. The accused can take the defence that he did sexual intercourse with the woman not being under sixteen years of age and with the free and willful consent of the woman .

Free consent occurs when the woman is capable of knowing the nature of the act and thus legally able , being above sixteen years of age , to give rational consent being aware of it's nature and circumstances .

But under section 114A of the Indian Evidence Act , in a prosecution for rape under clause (a) ,i.e., when a police officer commits rape within the limits of the police station , (b) ,i.e., rape committed by a public servant , or clause (c) ,i.e., rape committed by a man on the management of or custodian of jail , remand home , place or institution , or clause (d) ,i.e., rape committed by a man on the management of hospital , or clause (e) ,i.e., rape committed by a man on a woman knowingly that she is pregnant , or clause (g) ,i.e., gang rape , of section 376 of the IPC , where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent , the court shall presume that she did not consent . And so in that event the onus of proof shifts upon the accused to rebut the presumption of non-consent .

For determination of the presence of consent of the prosecutrix in a case of rape , the accused can show that there was free and willful consent by the following practical circumstances as defence , such as ,---

i) written communication of the prosecutrix,

ii) admission of the prosecutrix to the effect that she had consent .

iii)absence of any injury in the body of prosecutrix, and

iv) absence of sign of struggle or vehement resistance offered by the prosecutrix.

It may be kept in mind that sexual intercourse without consent does not label a charge of rape against the husband when the wife is above fifteen years of age but below sixteen years of age .

d) When a person can be said to have committed rape upon his own wife ?

Exception to section 375 provides in negative language that sexual intercourse with the wife , being under fifteen years of age , by her husband , is the offence of rape within the purview of this section . and in that event consent given by the wife for sexual intercourse is not legal consent . This provision is based on the policy of law to protect the children of immature age against sexual intercourse . This is known also as statutory rape by the husband . So when a husband does sexual intercourse with his wife under fifteen years of age , with or without consent , he can be said to have committed rape upon his own wife .

BLS LLB

Monday, 7 March 2016

law of crime (part - 1) - llb - sem 6

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