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Section 40 IPC defines an offense: any act punishable by IPC is punishable as an offense
Crime: Act which affects the interests of society and is prohibited by law
Marital rape has not been recognized by law. Therefore it is a crime but not an offense {no
legal backing, only condemned)
1st law to develop Law of compensation.

Types of compensation: Bot, Wite, Wergild

Wergild money payable to deceased who was killed by the wrongdoer [could not be tried
for murder later after giving compensation]
Wite = money payable to the treasury for any kind of violation [Precursor to the fine]
Bot amount of compensation payable in relation to the nature and type of injury cost to
the victim having regard to his social status. [Different compensation based on societal
position]

Botless crimes did not involve any form of compensation = those acts left to the mercy of the king
eg treason, sedition, perjury

After industrializations Haves, have nots. Severe punishment for crimes by have nots against haves
eg dacoity [capital punishment, 10 yrs imprisonment]

Hobbes Social Contract Theory = State deemed it its responsibility to curb these offenses.

Later persons accused were given lawyers and certain privileges

Sources of Criminal law: (6)

1. Criminal Legislation IPC, CrPC, Indian Evidence Act


IPC substantive
CrPC, IEA procedural
2. Special and Local Laws special laws meant for preventing a specific offense (Applicability is
restricted) eg dowry and local laws applicable only In a certain restricted area Eg Abkari Act
(Abkari: person who makes, sells and distributes liquor)
3. State amendment MP says so much extortion need stricter punishment than under
national level legislation. Justified since states still condemning the act.
4. Constitution 14, 19, 21, 226, 136 etc. have bearing on criminal law
5. Intl Treaties and Conventions Eg right to not be punished by law not yet made
6. Judicial Decisions [stare decisis] and also may refer to foreign courts such as in us v. Arizona
(Miranda Rights) 78 and Marbury v. Madison

7. Common Law judments to define things like actus reus


8. Indian police Act 61 responsiblities, positions etc.

Crimes of two types: Mala in se and mala prohibita. Mala in se = evil in itself eg murder. Mala
prohibita = not specifically evil but prohibited by law eg driving on one side of road instead of other.
Mala = evil/wrong

Ingredients of a crime (4)

1. Act/omission actus reus


2. Mental element = Mens rea e.g. where shooter aims for chest instead of less vulnerable
area. Intent to kill.
3. Human being = person as opposed to an animal, insane person or drunkard.
4. Injury = Defined by S. 44 (body, mind, reputation, property)

13/10/14

Three basic definitions of Crime:

1) Prof. Kenny Crimes are wrongs whose sanction is punitive and in no way remissible by a
private person but is remissible by the Crown alone if remissible at all.
2) Sir James Stephen (architect of the IEA) Crime is an act forbidden by law and revolting to
the moral sentiments of society.
3) Sir William Blackstone Act committed or omitted in violation of a public law forbidding it.

Principles (?)

1. Mala in se + Mala prohibita


2. Nemo debet bis vexari pro una et eadem cousa Double Jeopardy
3. Nullum crimen nulla peena sine lege For an act to be punished, it must be punishable by
law
4. Actus non facit reum nisi sit mens rea An act alone does not constitute a crime without
faulty mental element.

Crime = Physical act + Mental element Defenses

Sir John Babbington Macaulay Author of IPC

Charter of 1833 Introduction of Law Commission 1834 Macaulay 1st chairman (Irregularity bw
Indian and Muslim laws) Codification of laws as an experiment in India

1859 Two reports accepted

IPC 1860

Purposes of Criminal Law:

1. Prohibits conduct that inexcusably causes substantial harm to individuals as well as society.
2. Gives a warning to people regarding the conduct that is subject to criminal punishment and
also talks about the severity of the punishment
3. Criminal Law defines and provides the various elements required for each offense
4. Seriousness Criminal Law distinguishes serious and minor offenses as well as appropriate
punishment for them.
5. Punishment Criminal Law imposes punishment satisfying demands of revenge,
rehabilitation and deterrence of future crimes.
6. Criminal Law insures that the interest of the victim, victims family and that of the
community are represented at the trial and also while imposing punishment
Differences between crime and tort

Procedural differences- Burden of proof, state provided lawyer, beyond reasonable doubt

Punishment, state

Characteristics of Crime

1. Crime is an act or omission considered harmful by the state


2. Transgression of such act is prevented by a threat or a sanction administered by the state
3. Guilt of the accused is determined after the accusation against him has been made and legal
proceedings of a special kind in accordance with law has been carried out.

Essentials of Crime Human being, physical act, mental act, injury

Actus act or deed which is the physical result of human conduct

Reus Forbidden by law

Actus reus of three types Act, omission, awareness

An act is something prohibited conduct which may or may not end up in a prohibited result

An act done by a person must be voluntary

Involuntariness:

1. Automatism person does an act but is unaware of what he is doing or has no control over
his actions because of an external factor.

14/10/2014

Involuntary Acts:

(1) Automatism not aware of actions, unable to control actions


*R v. Quick [1973] 3 All ER 347, R = Rex/Regina
Facts: Male nurse at hospital, accused of assaulting a patient, injuries could not be self
inflicted. Mr. Quick pleaded not guilty. Claimed no recollection. Since age 7 had
hypoglycaemia (low blood sugar, high insulin) Had taken an insulin injection on doctors
advice. Also proved that he had showed up for duty.

Pleaded insanity. Convicted of assault Appealed before House of Lords

Act of automatism or insanity?

Experts: high insulin in body = drunk person. Aggressive, no memory.

Physician has advised him to take insulin (not correct medical action) therefore not his fault.
Acquitted.

Automatism aware of what one is doing.

(2) Reflex actions Hill v. Baxter [1958] 1 AER 193


When a person responds to something with a spontaneous action over which he does not
have any control it is an involuntary action

Mr. Baxter, driving on highway normally. Bees entered car, accelerated. Killed a person.
Court gave small punishment. Appealed by plaintiffs (murdered persons family)

(3) Physical force Leicester v. Pearson [1952] 2 All ER 71


Act is not voluntary if physically forced by a 3rd party or inanimate object.
Case: Accused was prosecuted for not giving precedence to a pedestrian at the zebra
crossing line. His car was halted much before zebra crossing line. Alleged that he took is car
forward and deliberately hit the pedestrian. Accused showed that car was parked much
before zebra crossing, moved because hit by car from behind.

Omission-

An omission amounts to actus reus when a person refrains from performing a positive legal duty.

Positive duty Motor Vehicles Act positive duty to keep license and registration with you.

Legal duty X is drowning. Y is a lifeguard. Z is a normal citizen. Y has legal duty but not Z to rescue
X.

Postive Legal duty is of three types. Statutory, contractual, according to justice equity and good
conscience.

(1) Statutory positive legal duty


Eg Sexual harassment at workplace. Employer has duty to report to police or constitute own
committee.

(2.) Contractual positive Legal duty

R. v. Pittwoodd (1902) 19 TLR 37

Contract: Pittwood would be a gatekeeper and would not leave the gate unattended. Left gate open
and left the area. Three people drove hay cart o to tracks killed one, injured others.

Gatekeeper accused of causing manslaughter (caused death of person without intent)

Culpable homicide = manslaughter (term used in UK, USA)

Contended that his duty did not extend to preventing death, only manning gates.

Contract stated that he must not (a) leave gate open (b) leave the area. This was an omission,
therefore he did indeed cause manslaught

(3.) Justice equity and good conscience

R. v. Gibbons and Procter (1918) 13 Cr. App. Rep. 14


Husband and wife accused of killing their daughter. Daughter found dead of starvation in husbands
house. Both parents had a legal duty to maintain their child.

2008 legislation about maintaining elderly people.

[Until 2008, was a duty under justice, equity and good conscience. Now it is a statutory legal duty.]

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(4.) Duty arising from voluntary assumption of care

R v. Instan [1893] 1 QB 450

Accused was unemployed. 70 yr old aunt agreed to maintain on condition she helps in old age. She
neglected her aunt entirely. Tried for manslaughter. Presumed that niece had a duty to take care of
her aunt.

FYI Where omission is used in the IPC

S175 Omission to produce document or electronic record to a public servant by a person legally
bound to produce it. (Also an omission under IPC)

S176 Omission to give notice or information to public servant by person bound to give it.

S187 Omission to assist a public servant when bound by law to give assistance.

S221 & 222 Intentional omission to apprehend on the part of public servant bound to apprehend.

S32 & 33 can be used to understand omission

[32 words referring to acts done extend also to illegal omissions, 33 Omission may denote a
series of omissions as well as a single omission.]

State of Affairs is a form of actus reus where there may not be an act or omission of a person.

(Situational crime/liability)

[No act, no omission]

Eg Being found in possession of illegal drugs.

State of affairs covers situations where by reason of circumstances in which a person was found or
was in possession of decides the liability

R v. Larsonneur {1993} 24 G. App. Rep. 74

Accused was a French national in UK. Passport prohibited her employment in UK. Within 1 week
ordered to leave by the authorities in accordance of which she went to Ireland. Caught by Irish
authorities on order of deportation and was subsequently brought back to UK. UK officials arrested
and prosecuted her for being found in UK as an alien even after period specified in deportation order
terminated. Act of Irish authorities not acknowledged.

S 410 & 411 Stolen property, dishonestly receiving stolen property.


Mens Rea evil intent on the part of a human being.

1. Volition/Will
2. Motive
3. Intention
4. Knowledge
5. Recklessness
6. Negligence
7. Reason to Believe
8. (FYI fraudulently)

3 to 7 are in the IPC

1. Volition/Will Desire working through your nervous system or body to produce a certain
motion. When desire is not forced we say that the person has done the act voluntarily.
2. Motive Ulterior reason for a conduct. It is considered a state of mind which prompts a
person to commit an act.
Eg Sandman robs bank to provide money for daughters treatment
3. Intention the expectation that the desired act of a person will lead to a particular result
Eg if person shoots other on head, clear intention to kill because foreseeable consequence is
that that person will die.

Diff between intention, motive


Intention is immediate
A shoots B in head. Motive only fulfilled if B dies.

16/10/2014

Two types of intention: Direct and Indirect/oblique


2001 Parliament attempted bombing (Afzal Guru masterminded one). In order to reach
Parliament had to kill some security personnel. Hence indirect motive behind killing them
was bombing of Parliament.

Direct intention is where result intended is the main purpose of a person to achieve and it will
always be the desired result.

Oblique intention is the result which is not desired but which is either a prerequisite to achieve the
main purpose or which is virtually certain to occur and which in either case is forseen.

4. Knowledge Knowledge is the awareness of consequences of the act. A person is said to


know something when it makes a direct appeal to his senses.

Difference between person not known selling expensive watch in shabby clothes and person
known to deal with stolen goods trying to sell watch.

If aware of consequences but does not desire that consequence to happen makes it knowledge.
Eg

5. Recklessness is considered as a subjective consequence. It involves the inadvertent risk


taking. A person is said to act recklessly if he acts with the consciousness that illegal
consequences will follow but with the confidence and hope that they will not and often
with the belief that he has taken sufficient precautions to prevent the same from
happening.
Eg person driving too fast may hope that he will not be involved in an accident but would
still be endangering lives.

Awareness and foreseeability are the same thing.

6. Negligence considered as an objective concept. Duty of care and caution that is owed to
another person, for example. Criminal negligence different from tortious negligence. Under
criminal negligence,

In case of negligence, objective, no foreseeability, while recklessness is subjective and there


is forseeablity and inadvertent risk taking

7. Reason to believe - section of IPC

Level of Culpability: In ascending order, strict liability, reason to believe, negligence,


recklessness, knowledge, intention.

Transferred malice poisoned sweets. Wrong person eats and dies. Transferred malice.
Transferred malice is a concept in criminal law whereby intention to harm one individual
inadvertently causes harm to a second person instead and therefore the evil intent
possessed against the first person as against the second. S301 deals with transfer of malice.

20/10/2014

*Intention and knowledge: Doctor performing operation, doctor must explain


consequences. May be aware but not intend something.

*oblique intention may be construed to be knowledge

Strict liability in criminal law: (no mental requirement)


R v. Prince (1875) LR 2 CCR 154 accused had sexual intercourse with a 14 year old girl at
that point sex with a girl below 14 was statutory rape He said that he had reasons on good
faith to believe the girl was not underage accused convicted. Court must presume mental
element on the part of the accused even though it is not mentioned in the legislation.
[Situation in England]

Situation in India: Prevention of Food Adulteration (strict liability), Narcotic drugs and
Psychotropic substances Act. Both sections do not require mental element. The court
construes a mental element at the time of committing the offence. Strict liability does not lie
in the Indian courts. (?)

Guidelines to see if Strict liability


1. Phrases used in the statutory provision creating offences of strict liability
2. Object of the legislation
3. Nature of the public purpose sought to be achieved by the legislation
4. Nature of the mischief intended to be controlled

Vicarious Liability in Criminal Law, S154, 155 IPC 145 also relevant, Liability of Owner

Servants must also report to police or master may be vicariously liable

Causation: Two tests: but for test and ?

Causation is the natural relationship between conduct and the subsequent result. Causation is to be
understood as a two stage process. Stage 1, requiring proof that the defendant actually caused the
prohibited result and 2, requiring the proof that the defendant was the cause in law (the reason
behind) the prohibited desire.

R v. White (but for test)

Accused put poison in a tumbler of milk which his mother was supposed to drink. Mother drank
milk. Poison was supposed to act in two hours. Died in half an hour. Cause of death was heart attack.
But for the action of the son would the mother have died? Son only punished for making an
attempt to murder.

A shot B. Bs ambulance met with accident. Can A be prosecuted? Had the accident not taken place
there was a higher chance the person would be alive. (?)

A shot B. B is haemolphilic. B dies. A is guilty of murder.

Injury: S 44 of IPC ingredients

1. Harm
2. Harm has to be inflicted on a person unlawfully
3. Result of the act should affect mind, body, reputation, property
4. Person, must be capable enough to commit a crime. S11 defines person. Includes
companies corporated and incorporated. Insanity, intoxication and juvenile, Company
cannot have mens rea. Only employees may. Also cannot imprison a company two
difficulties dealing with companies.

Cerelac wanted to compromise on the quality of their product in order to make more money. Food
adulteration is criminal. Entire company is responsible because there has been participation and
consented to it also. (elements of corporate responsibility)

End of first module of syllabus

21/10/2014

Module: Punishment

Ch. 3 to 75

4 main theories of punishment

Reading: Law commission report 35 vol 1 and 2 on Death penalty and Law commission report 39

Before 1950, death penalty was the norm and life imprisonment was the exception

Till 1970 Deterrence theory

After 1970
Campaigns against death penalty

Parens patriae state must be able to return convict to society after being given his sentence

Bachchan Singh v. State of Punjab (1980) convicted. Not welcomed coming back home. Sister
refused to give him curd for dinner. He killed everyone in the family as a consequence. Death
penalty or life sentence. Court developed theory of rarest of rare cases. Eg murder of public official,
armed forces etc. Also, if the gravity of the offence has shaken the conscience of society then also
can be rarest of rare.

Macchi Singh v. UOI (1983) upheld judgment of Bachchan Singh guidelines on which death
penalty can be imposed: magnitude of crime, (?) level of violence, nature and personality of the
victim. Made it clear that death penalty was the exception.

1989- Year of Convention on Torcher

Ch. 3 53-75

Part 1 S 53-60: Different kinds of punishment

Part 2 S 63-70: Imposition of fine Including Alternative Sentences if Fines are not Paid

Part 3 S 71 and 72: Nature of Punishment for an Offense made up of Several Acts or Omissions

Part 4 (?)Solitary Confinement as Punishment and the limits to its imposition

Part 5 Enhanced punishment for certain offenses in case of offenders who have been grievously
convicted.

S 53 - ?

thirdly referred to kala paani transportation for life

Life imprisonment necessarily means that it will be rigorous imprisonment.

Only applicable to the offences in the IPC unless expressly stated.

Aggravating and mitigating circumstances clarified in Macchi Singh. Theory of mitigating


circumstances and aggravating circumstances.

Judiciary cannot give pardon to a person. It is the sole prerogative of the executive.

Pardon clean check, commutation change the kind of punishment, remission reduce the length
of the punishment, suspension postponing punishment and conclusion may be altered, reprieve
temporary suspension of execution of punishment.

Neither IPC or CrPC specifies the length of life imprisonment. Till the natural death of the person
according to KM Nanavati v. State of Maharashtra, 1962 AIR 1962 SC (965?)

Swami Shraddananda v. St of Karnataka (2008) claims capacity to keep people young and also to
find gold. Victim, 52 or 53 years, Muslim widowed woman with a daughter who had moved to the
US. Within 6 months of visiting, swami convinced her to give 7% of property to the ashram. Within
next 2 or 3 years she married the swami. Daughter did not want her to remarry at that age. After
wedding, only in touch by phone. Within 3 years, 75% of property was transferred to his name.
Swami got contractor to dug a pit in the bedroom. Also brought a marble slab to cover. He gave
servants leave. Swami mixed sleeping tablets in her food. Left the door open to show people putting
slab that she was still alive. Daughter came to house and found no sign of her mother. Went to the
police station and lodged a complaint. Nail scratches on the inside of the slab. Trial court gave death
sentence. HC made life sentence due to age and the fact that it did not shake the conscience of the
community.

27/10/2014

S.55 coummutation of Sentence of imprisonment for life (14 years)

CrPC 432, 433 and 433A also relevant.

KM Nanavati v. state of Maharashtra

S.57 Fractions of terms of punishment For the purpose of calculating fractions of terms of
punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty
years. Fractions of life imprisonment may be prescribed. This is not used for any other purpose.
Only calculation of fraction of terms of punishment.

Case: Gopal Vinayak Godse v. State of Maharashtra AIR 1961 SC 600. Accused asked the court to
consider his life imprisonment as 20 years. Claimed it was his right. S55 and 57 cannot be used to
assert this right. Can only be given by the executive.

S. 60 Sentence may be wholly or partly rigorous or simple. Also, S. 308, attempt to commit
culpable homicide.

1st part over

2nd part: Fine 63-70

S. 63 lays down a basic rule that when a person is being sentenced to fine and the fine amount is not
specified in the IPC, it should not be exorbitant or excessive.

S. 64 Imprisonment for non-payment of fine. May be an alternate arrangement. Eg. 4 years and fine
or 4 years plus 1.

S. 65 Limit to imprisonment for non-payment of fine. Person may be imprisoned for default of fine in
excess of of the maximum term of imprisonment if the imprisonment is punishable with
imprisonment as well as fine.

S. 66 Description of Imprisonment for non-payment of fine may be of any description that the
offender might have been sentenced to for the offense.

S. 67 Imprisonment for non-payment of fine when offense punishable with fine only. Simple
imprisonment. Max two months for Rs. 50 and below. Max 4 months for Rs. 100 and below. Max 6
months for any sum above Rs. 100.

S. 68 and 69 Imprisonment to terminate on payment of fine Imprisonment due to default of


payment will be terminated on the payment of the fine.

S70 and 71 skipped

Section 72 Punishment of person who is guilty of one of several offenses. Where a person must be
guilty of one offense out of many, he must be given the lowest punishment provided if the same
punishment is not provided for all the offenses. Applicable in situations where the nature of the
offense is not clear. Eg prosecution has failed to provide which specific offense has been committed.

28/10/2014

Solitary confinement S. 73 and 74

73 lays down max limit to which a person can be subjected to solitary confinement.

Imprisonment upto 6 months cannot be kept in solitary confinement 1 month

6months-1 year: 2 months

1 year and above: 3 months. Even this must be split into 14 day period according to 74.

Case: Davinder Pal Singh Bhullar v. UOI (2013): India criticized at international level. Davinder was
kept in solitary confinement for 11 years. SC refused to give him any remedy. Has done his masters
in chemical engineering. Apparently very good with explosives. First bomb, killed MLA in car
explosion. Police claimed to have proof. Davinder not called to police station. Instead, his cousin and
uncle were called to the police station. His uncle was tortured and died. Second bomb killed sitting
party MP. Modus operandi was the same. This time also not called for interrogation. Father was
called and subjected to torture. Davinder fled the country. Sought asylum in Germany. Two
associates sought asylum in USA. Germany refused his asylum and he was deported back to India
and handed over to the authorities. Framed a case against him under TADA and POTA. Awarded
death sentence and later life imprisonment. Davinder has been kept in solitary confinement from
the first day he was incarcerated. He was on the verge of insanity. SC ordered him to have a test.
AIMS declared him to be completely insane. SC shifted him back to Gen Pop after he was diagnosed.

S. 75 of the IPC: Enhanced punishment (repeat offender): Limited application. Applicable under Ch
12 and 17. 12- Offenses related to govt. stamps and coins. 17 Offenses related to property. Three
years and above.

General exceptions: Ch 4, S76-106

Those excusing conditions which when applied prevents a person from getting punished if he does
an act or omission under such circumstances. Burden of proof shifts to the defence.

IEA 105 also relevant (Burden of proving that case of accused comes within exceptions) also IPC sec.
6

Exeptions: Excusable exceptions/defences and Justifiable defences

Excusable defences: Law excuses certain classes of persons even though their act constitutes an
offense.

Justifiable excuses: acts committed by a person though amounting to crime may be justified if it falls
under certain circumstances. (here circumstances, not mens rea, affect)

Excusable exeptions:

1. Mistake: 76, 79
2. Accident: 80
3. Incapacity
1. Infancy: 82, 83
2. Insanity: 84
3. Intoxication: 85, 86

Justifiable defences

1. Judicial acts
1. Acts done by a judge S77
2. Act done in pursuance of order of court S 78

2. Necessity: 81

3. Duress: 94

4. Communication , 93

5. Truant acts 95

6. Consent: 87-89, 92

7. Right to private defence: 96-106

29/10/14

General Exceptions:

Mistake of fact: a man who is mistaken or ignorant about the existence of a fact cannot be
presumed to have a necessary intention to constitute a criminal act and therefore is not responsible
for the same. 76, 79 Illustrations in IPC

Good faith is defined in s. 52 of the IPC:

Must prove two things: mistake of fact and that fact was believed in good faith.

Eg. Armyman fires on mob. Police constable inflicts injuries on prisoner. Both on superior orders.
Armyman can take the defence that he was following superior order. However constable cannot
because the act itself is illegal.

Not much case law on 76.

To be read with S. 43. Definitions of Illegal and legally bound to do

Conditions: (1)Order given to him by a superior was legal and binding on him. (2) He in good faith
reasonably believed that he was bound to follow such rule.

Sec. 79 justified by law

Case: Raj Kapoor v Laxman AIR 1980 SC 605 (related to movie: Satyam Shivam Sundaram) Laxman
claimed that Raj Kapoor was promoting obscenity by showing obscenity in the movie.
Cinematograph act, 1952 Film certification board gave U/A certificate. Thus, Raj Kapoor argued
that he was bound by law. Movie was banned on the grounds of obscenity. SC said that S79 was to
Kapoors benefit because he believed himself to be justified in law.
Ignorance of Law: State of Maharashtra v. Mayor H George (50 kilos of gold) 1965 SC 722 Brought
gold into the country. Confiscated. Claimed he did not know about this law.

Accident (S80)

Accident in doing a lawful act. Elements: accident, no criminal intention, performing lawful act in
lawful manner by lawful means, proper care and caution.

Shankar Narayan Bhadolkar v. St of Maharashtra AIR 2004 SC 1966 party in a house. Host went into
his house and took out his gun. Shot a person. Claimed it was an accident. Court observed with
regard to taking due caution law is not looking for utmost care but is looking here for sufficient
care and caution that a reasonable prudent man would exercise under similar circumstances.

Incapacity: Infancy, Insanity, Intoxication

Infancy: (S. 82, 83) 82 child under 7 cannot be guilty of an offense, 83 between 7 and 12, will not
be liable if he has not attained sufficient maturity of understanding to judge the nature and
consequences of his conduct on that occasion. Defence based on age less than 7 years is an
irrebuttable presumption. [Doli Incapax] Between 7 and 12 Rebuttable presumption [Doli
Capax]

Juvenile Justice Act says that no one under 18 can be held guilty for an offence. [Delhi gang rape
case minor] Also provides for an observation home under an officer.

*Borstal school: vocational training

30/10/2014

2011 Maturity depends on reaction, awareness of consequences etc. 7 yr old boy kills 2 yr old girl.

Procedures to be adopted where the accused is a Juvenile Juvenile justice act

Definition of juvenile. S2 (K) A juvenile is defined as a person who has not attained the age of 18. S16
Juvenile cannot be subjected to death penalty, life imprisonment, imprisonment upto any term or
even subjected to imprisonment for default in payment of fine. Bail should be given to a child under
all circumstances.

S15 No trial of any sort must be made in the case of a juvenile. Only an inquiry may be made with
regard to the crime. A juvenile may be sent home after advice admonition. [Legal warning] or
released on probation and placed under the care of a guardian or parents or sent to a special home
for a period not exceeding three years.

All five landmark cases juveniles:

1. Pratap Singh v. State of Jharkhand (2005) 3 SCC 551


Question as to what age of the juvenile should be considered. Age of arrest or age of
commission of crime? SC ruled that his age of commission of the offence is the relevant age.
2. Om Prakash v. St. of Rajasthan & Ors. (2012) 5 SCC 201
Evidence with which you can prove the age of a person? Normally either birth certificate or
matriculation (10th) certificate. In the case juvenile couldnt find Birth certificate. Prosecution
argued that his matriculation certificate was forged. Hence they suggested a bone marrow
test. Court ordered bone marrow test. Accused appealed. Went before SC. SC held that
order of priority: Birth certificate, matriculation certificate, bone marrow test. Even if the
matriculation certificate validity is in doubt must be taken. Bone marrow test only when
both are not present.
3. Abuzar Hussain v. St of W.B (2012)
At what stage do you take a plea that the accused is a juvenile? (Trial stage/ Invesigation
stage/any time before judgement/when appeal made) Must be taken at earliest
opportunity. Accused took a plea for the first time in front of the SC. SC held that accused
may point out his juvenile status at any time. Case was reverted to Juvenile Justice Board.
4. Salil Bali v. UOI (2013) 7 SCC 705
Case was during pendency of Delhi gang rape trial. 6 writ petitions and 1 transfer petition
clubbed together in this case. Considering the brutality of the crime, should not be given
benefit of juvenile. Accused was also clearly able to distinguish between right and wrong.
Suggestions made: (1) declare the juvenile justice act ultra vires the Constitution (2) amend
the existing juvenile justice provisions (3) redetermine the age of juvenile (4) provide
alternative mechanisms for punishing criminals involved in heinous crimes (5) criminal trial
may be given rather than an enquiry before the juvenile justice board (6) while conducting
medical examination, psychological exam may also be done so as to determine the level of
understanding of the accused (7) maintaining criminal records of a juvenile which is to be
used to determine the criminal propensity of the juvenile especially in case of a repeat
offender. (8) The three year period during which they will be sent to observation board
should be reduced.

03/11/2014

7 submissions made in court

Convention on Rights of Child 1999

Beijing rules on Juveniles 1996

Court applied the two above and held that the Juvenile Justice Act is a social legislation, the purpose
of which is not rehabilitation but reformation. (reformative justice, restorative justice kept in mind)

(5.) Subramanya Swamy & Ors. v. Raju, through Member, JJ Board


Age is the main factor whereby someone should be given the benefit of the JJA or not, not
brutality of the crime. SC was not ready to take away the benefits given to juveniles. J.S.
Verma Committee Report juveniles should not be considered a person of majority
however brutal the act is.

Casus omissus doctrine act which is prohibited, person is not relevant. Therefore should be
punished. (Argument so made)

Defense: Insanity (S. 84)


Ingredients of insanity:
1. Absence of free, voluntary will.
2. Absence of intelligence to distinguish between good and evil.
3. Lack of knowledge of facts upon which good and evil of an act will depend.
4. Absence of knowledge that the act is prohibited by law.
(Only one needs to be true)
Law of insanity (as far as most jurisdictions): Mnaughtens Case [1843] 8 Eng. Rep. 718
Daniel Mcnaughter was a woodcutter. Believed that his lack of success was because he was
constantly surrounded by enemies, one of whom was Sir Robert Peel, the then PM. Thought that
whatever steps taken by Peel in running the British govt. was the reason that he was unsuccessful.
Had never met or seen any picture of Peel. Thought that Peels secretary was Peel. Killed secretary.
Even insisted to be let go so he could finish his goal of killing the PM. Judge: Unless M proves that
he is insane can a conclusion be drawn in his favour. Jury concluded that M was not in a sane state
of mind and acquitted him. From trial court matter was moved to house of Lords. Five questions
were put forward: only two and three important (2) What are the proper questions to be submitted
for consideration when a person alleged to be inflicted with an insane delusion wrt a person or
persons is charged with an offense Eg murder and takes the plea of insanity as a defence. (3) In what
terms ought the question left to the jury be decided with respect to the prisoners state of mind at
the time of commission of the at. House of Lords clubbed both questions. Answer given was as
follows:
Three postulates:
1. Every person is presumed to be sane and to possess a sufficient degree of reasoning to be
responsible for his actions until the contrary is proved to the satisfaction of the court.
2. To establish the defence of insanity it must be clearly proved that at the time of commission
of the act the accused was so insane that he didnt know the nature and quality of the act
that he was doing or even if he knew the nature of the act he did not know that what he was
doing was contrary or wrong in the eyes of the law.
Medical insanity and legal insanity is not the same.
3. The test of wrongfulness of the act is in the power to distinguish between right and wrong
wrt the particular act that was committed. (can only be concluded in the light of facts and
circumstances, observations and which are case specific.)

Legally insane: Person who cut off others head expecting the body to get up and chase him
around. Legally insane. Did not hide. Held the head in front of a crowd who heard him tell
the body to get up and chase him.

05/11/2014

Insanity is the disorder of the mind which impairs the reasoning capacity of a person to such an
extent that he is incapable of understanding the consequences of his actions. Law primarily four
people as unsound:
1. Idiot- person who is defective from birth
2. Persons who have become insane or have an unsound mind because of certain illness.
3. Lunatic or madman is both sane and insane at different times.
4. A person who is extremely drunk.
Cases:
1) Ashiruddin v. King Emperor EIR 1949 cal 182 appellant was very religious person. Appellant
was accused of killing his son while he was acting in a delusion. Claimed he was doing a
pious act by offering his son to Allah. Had killed him with a knife to the throat. Imam
informed police. Was convicted by sessions court. Appealed before HC.
Prisoners Act S 30.
Criticisms: If people who are religious fanatics. Why should be acquitted?
2) Hazara Singh v. State AIR 1958 Pun 194- appellant accused of killing his wife at the age of
approx. 42. Was under the delusion that his wife was unfaithful to him. He poured nitric acid
over her while she slept. Took the defence that he was insane. Prosecution showed that
although he might be medically insane, he was not legally insane because he understood
that the acid would destroy the body.

3) Dayabhai Chhangbhai Thakkar v. State of Gujarat AIR 1964 SC 1563- accused was the
husband of the deceased. Suspicious of his wife. Had inflicted 44 knife injuries on his wifes
body. Did not let anyone touch her body.(?) Number of injuries so large that could not have
done it spontaneously. Hence plea rejected.
4) Shrikantrao Anandrao Bhosle v. St of Maharashtra (2002) 7 SCC 748 paranoid
schizophrenia. Accused had a family history of paranoid schizophrenia. (generally happens
above 40). Accused was at the police office as a police official. Given medical leave and
treatment 24 times. Had an argument with his wife. Wife was saying that he should quit his
job because he was not capable of doing it. At around 1 in the afternoon he took a boulder
and hit her head with it seven times, mumbling that he would teach her a lesson. Sat with
bloody boulder at the front of the house. Did not try to escape. Remained in blood-stained
clothes. Did not put up any resistance. In his defence, produced medical certificates that
revealed he had paranoid schizophrenia. Prosecution called it a cold-blooded, premeditated
murder. Schizophrenic can never be considered a normal person again. Court drew the
conclusion that he was legally insane. Landmark case for schizophrenia.
5) Sudhakaran v. State of Kerala (2010) 10 SCC 582 accused inflicted injury to his wifes neck
with a chopper on the verandah. Bloodstains on her body and wound on her palm (sign of
resistance) He believed she had cheated on him. Child of one year was inside the house.
Husband did not harm child. Went to neighbors house with knife in one hand and child in
the other. Asked the neighbours to hold his child for some time so that he could go to the
police station. In his defence, produced medical evidence that at age 12-13 years old, he had
underwent treatment for insanity for a period of 13 days. Was declared completely sane
after this treatment. Did not show any sign of being insane after certificate of sanity. Care of
child would not have been a matter of priority if he was truly under a delusion. Thus it must
be concluded that he was in his senses. Also, his statement to the neighbors will not be
understood by an insane person.
6) Mariappan v. State of Tamil Nadu (2013) 12 SCCC 270 pre-existing property dispute
between accused and deceased. X accused, Y deceased, Z third party. Z leased property to Y.
X was keen on getting the property transferred to his name even though he was aware of
the fact that the property belonged to Z. Y refused. X attached Y from behind while she was
in her kitchen. Y lived with her granddaughters and husband. X made various cuts on her
body, one of which was on her head. Y died then and there. X ran away but was arrested. X
claimed the defence of insanity. Claimed he was under treatment and therefore could not
understand the nature of the act he had committed. X had previously stated that he would
make sure that he got the property in public. When Y had turned towards him while he
attacked her, he gave her a cut on her hand. Thus the court concluded that he had done the
act voluntarily.

10/11/2014

Intoxication as a defence in IPC: (last excusable defence)

Intoxication is defined as a state of mind in which a person loses self-control and his ability to judge.
Delirium tremens form of insanity arising out of habitual drinking which makes a person reach a
degree of madness whereby he is incapable of distinguishing between right and wrong. (would be
considered an intoxicated person as well as an insane person. Will also be given the benefit of S85
also)

S. 85 and 86

85- involuntary intoxication (complete defence)

86- voluntary intoxication. Two situations: Delirium tremens and

Ingredients of S 85 must prove following

1. Was intoxicated at the time of the incident


2. The thing which intoxicated him was administered to him against his will or without his
knowledge.
3. At the time of the incident due to intoxication he was incapable of knowing the nature of the
act or incapable of acting and thinking in a reasonable manner and that under all
probabilities he wasnt aware that his act was prohibited by law. (must prove either of the
two)

Premise of 86 a person who has done an act of crime when he is drunk must be punished as if he is
sober. (only to voluntary intoxication) Must be in such a state as to be unable to formulate an
intention to kill someone in order to gain any benefit under this section.

Criminal acts are split into two categories: specific intention and general intention

[when put forward before the court that a person is a habitual drinker to the point of being unable
to distinguish between right and wrong, almost like asking the court to judge the person insane.]

English Law:

DPP v. Beard [1920] AC 479 (AC= appeal cases, DPP = director of public prosecution)

-After consuming alcohol, raped a thirteen year old girl. While raping her he throttled and killed her.
He made the argument that though he raped her, he had no intention to kill her. Since he was in an
intoxicated state he was not in a state to formulate an intention to kill her. Despite the fact that he
was drunk voluntarily, will be given the benefit of lack of specific intention. Reduced charge from
murder to manslaughter (killing a person without intention). Culpable homicide = manslaughter.

DPP v. Majewski [1976] UKHL 2 (united kingdom house of lords)

-Person had voluntarily taken drugs. Assaulted the same person thrice and threatened to assault the
constable who was trying to intervene. In court claimed he didnt have specific intention. Court
responded that for assault, specific intention was not required.

Hence this defence can only be taken where specific intention is required.

11/11/2014

S. 86 and 85 cases:

1. Basdev v. State of PEPSU AIR 1956 SC 488 [landmark case on intoxication]

-armyman at marriage. Very drunk but still able to talk, walk and socialize. Invited to brides house.
He was given a seat to the extreme corner of the venue. Person next to him was 14-15 year old boy.
Asked the boy to sit somewhere else as the man was very large. Boy said, if you have a problem, you
go somewhere else. Shoots boy in abdomen. Tried to run away from the scene. Claimed defence of
intoxication, not being able to formulate specific intention. For offence of murder, since there is an
absence of specific intention and only knowledge, liability is reduced. In this case, he was considered
a sober person as he could walk and talk and also he knew to run away or else be apprehended.

2..Mubarak Hussain v. St. of Rajasthan (2006) 13 SCC 116

-Incident in a family. Father, mother, five children. Father is accused. Habitual drinker. After getting
drunk used to abuse his wife and children. All five were girls. Hoped to father a boy. Stopped
working which forced mother to do household work elsewhere. Children from 6 to 12. Caught the
eldest two girls and took their earrings to get alcohol. When he tried to do the same with the
younger children his wife took the children and ran away from the house. In the evening, throttled
mother in front of his kids. Killed all five kids in a similar way. Arranged bodies in order of age and
tied their toes together connecting all six. Mumbled that he had taught them a lesson. Removed the
earrings of the other three daughters. Neighboring girl saw the entire thing through the window.
After that, went out and screamed come and see I have taught them a lesson. Police arrested him.
Claimed he was intoxicated and did not have requisite intention. Court observed that he should not
be given the benefit of 85 or 85 as it was a clear cut case of premeditated murder. Lack of specific
intention should be drawn from the circumstances of the case. Even though drunk was given the
status of a sober person.

3..Shankar Jaiswara v. St. of WB (2007) 9 SCC 360

-Shankar is accused, one deceased and brother of the deceased. All three were neighbours.
Deceased was an auto driver. Accused had a habit of drinking regularly. He was a daily wage worker.
Had a habit of hurling abuses to everyone. Deceased was sitting in the auto parked outside his own
home. Deceased told Shankar to keep quiet and go home. Continued abusing him but auto driver
was calm. Brother of deceased came from inside his house and requested the accused to keep quiet.
Still continued. Shankar took a knife and stabbed the deceased six times in front of the brother.
Brother tried to intervene but brought dead. Accused took the plea of intoxication. Initially said he
was intoxicated against his will. This was rejected. To stab a person six times requires some amount
of energy therefore was denied defence under 86.

<end of excusable defences>

Justifiable defences:

1. Action of a judicial act (S77 and 78) gives benefit to judge, gives benefit to a person who
was acting on the orders of a court.

Protection given to judicial officers thereby letting them perform their duties without fear of
consequences.

S. 197 CrpC gives protection for all public servants.

Judicial officers protection act 1850, Judges protection act 1985

[all protections given to judges, above three]


Ingredients of S 77

1. Claimaint must be a judge at the time of incident. Judge defined in s19 of IPC.
2. He, at the time of the incident must have acted judicially.
3. At the time of the incident he must have believed in good faith that he is empowered by law
to make such a judgement.

The only four cases under S 77:

Anwar Hussein v Ajoy Kumar Mukherjee AIR 1956 SC 1651 Accused was a subdivisional officer and
subdivisional magistrate at the same time. (Executive and judicial posts) Subdivisional officer may
not arrest a person. Arrest of person because he had lot of agricultural property as a subdivisional
officer, not as the magistrate. Seal was officers not magistrates. Person arrested was given bail
after three days. Person lodged civil suit against the accused for false imprisonment asking for
damages worth 5000 rupees. Was awarded the 5000 rupees. Appealed. At the time of the arrest was
acting in his judicial capacity and contended that should be given benefit of S77. Appeal was
rejected. Appealed again before SC. Same logic upheld once again.

Ram Pratap Sharma v. Dayanand AIR 1977 SC 809 criticized policies of govt. while talking to the
bar. None of the members of the bar questioned the judge. Members of the bar wrote a confidential
letter to the CJI and PM conveying that the judge was criticizing these govt. policies. Judge sent
letter to bar saying would pursue contempt of court. Bar apologized. Also said they should be
pardoned as it was not an open letter. Judge pardoned them. Bar appealed before Supreme Court.
According to them, he had exceeded his powers. SC sent notice to judge, asking for reply. Said he
was acting in his judicial capacity when he was addressing the bar and should be given benefit under
S77. SC: manner in which judge should behave. By criticizing the govt. he is acting more in the
capacity of a politician. No point in contempt proceedings. S77 also requires that the judge must be
acting in his capacity as a judge also which was not the case here. Contempt proceedings quashed.

Ravichandran Iyer v. Justice AM Bhattacharjee (1995) 5 SCC 457 and Daya Shankar v. High Court of
Allahabad AIR 1987 SC 1469 (same facts almost) Members of the judiciary. Had taken leave for
completing PG courses. In the first trimester exam, both the judges caught malpracticing during their
first trimester exams. Rusticated. Both were removed from their service. Bought an order of
dismissal. (Justice AM Bhattacharjee, HC of Allahabad, were the ones to approve their removal).
Claimed they were acting in their official capacity and therefore the act of dismissal is against the
law. Contention: if judge is pardoned and allowed to continue in service how can have faith in him to
pass honest judgement when cheats in exams? Conduct of judges cannot be justified in anyway
therefore petitions dismissed and dismissal was held to be valid.

12/11/2014

S. 78 Act done pursuant to judgement or order of a court: (extends protection to all judicial officers
who are executing an order)

Court order only restricted to a written order. Court, date, seal all mandatory.

Person X arrested instead of Y Filed against police officer who arrested and court

S. 81 (necessity knows no law)

Ingredients of 81:
1..Alleged act must have been done in order to avoid a greater harm.

2..The harm to be avoided must be such as to justify the risk of doing an act likely to cause harm.

3.. Act must be done in good faith without any criminal intention to cause harm.

Landmark case: R v. Dudley & Stephens [1884] 14 QBD 273

Case happened on a yacht. Crew were castaway in a storm. Compelled to put themselves in an open
boat. No food or water on the boat. Survived for 12 days without food or water. About 1000 miles
from land. On the 20th day, Dudley and Stephens decided to eat the cabin boy who was around 12-
13 years old. Killed him and survived by eating his flesh and blood for the next 4 days. On the 5th day
were rescued by a vessel. When brought to land they explained that they had to kill the cabin boy.
Arrested for murder. Argued that the circumstances in which they were in forced them to kill the
boy. Jury could not come to a conclusion and referred the matter to the judge. Even judge said he
couldnt decide. Referred case to a 5 judge bench. Judges found the two guilty of murder and gave
them death penalty. Brought the matter before crown to pardon. Crown commuted the death
penalty to six month imprisonment. Three principles for necessity as a defence:
1. Self preservation is not an absolute necessity.
2. No person has a right to take anothers life to preserve his own.
3. No necessity justifies homicide.

End of midterm portion (necessity)

13/11/2014

Defence: Consent (S. 87-92)

Generally applies to doctors and philanthropists.

-consent must be free from any vitiating element.

S.90

1..Consent is not a defence when it is given by a person under fear of injury or misconception of fact.

2..Consent is not a defence when it is given by a person of unsound mind or who has been
intoxicated or who is immature by age

Simple hurt: no permanent marks

Grievous hurt: amputation, permanent scars etc.

Two ground rules for Consent:

1.. Every man is the best judge of his own interests.

2.. No man will give his consent to what he thinks would be detrimental to his interests.
S87 provides that consent is available as a defence where it was given to cause a harm short of
grievous hurt or a harm resulting even in death provided it was not intended or done without a
criminal knowledge that the action was likely to cause death. Consent under this section could be
implied or express. Does not apply to medical cases where grievous hurt or death is caused

S. 88, 89, 92

S.88 act has been done on a person with his consent for his benefit but has unfortunately resulted
in his death. Death caused was unintentional. Eg patient of cancer. Doctor informs of risks. Consent
drawn from him. Doctor did his best in the surgery. Patient dies. Doctor not liable. Must not be
criminal intention and surgery should be done in good faith.

S.89 [corollary to S. 88] meant for the benefit of the insane and children under the age of 12 years.
Consent may be obtained from their guardian.

S.92 used to cover emergency situations. Emergency provisions are a part of the facts. S.92 offers
protection to such persons who cause harm to another during the course of performing an act
without consent provided the said act is done for the benefit of that person. Absence of consent in
this section.

89 and 92 Provisos (four safeguards to ensure protection to the victims under S 89 and 92.)

1) Benefit of the two sections shall not extend to intentionally causing death or attempting to
cause death.
2) If the person is aware or has knowledge that the act is likely to cause death or grievous hurt
he will not get protection under either section unless the act is done for the purpose of
preventing death or grievous hurt or curing any disease or infirmity. Eg. Snake bite. Doctor
makes cut on right leg instead of left. Scar left is grievous hurt.
3) Consent will not apply to cases where there is a voluntary causing of hurt or attempt to
cause hurt unless it is to prevent death or grievous hurt.
4) Consent will not apply to abetment of offences where the commission of the offence
abetted is not covered under the provision.

Hypothetical problems: Material facts, Issues, (no arguments necessary), decide the outcome of the
case or advise the party or both. Talk about the law and apply it to the facts. Conclusion. While
giving explanation, good to give case law. Case names not necessary. In a decided case. Give
ratio decidendi.

24/11/2014 private defences missed

25/11/2014

Right of private defence available even to a trespasser provided he has settled possession.

Settled possession concept enjoyed by a person even though he is not the real owner of the
property.

1. Puran Singh v. St of Punjab AIR 1975 SC 1674 first case to mention settled possession and
its attributes: (1) trespasser must have actual physical possession of property over a long
period of time.

Corpus possessionis actual physical possession of property

Animus possidendi intention to possess the goods


Must have both to be the owner of the goods. Said to have possession if only corpus possessionis is
there.

(2) Such possession must be with the knowledge of the owner without any form of
concealment. Knowledge must be express or implied.

Easement right right where a person has been using someone elses property for a long period of
time.

Eg. For a pathway, if used beyond 12 years, person using path will prevail.

(3) Process of this possession of the true owner by the trespasser must be complete.
(4) If the land is cultivable then the test to determine settled possession is whether any crop
has been grown on the land. If yes, then not only the true owner can destroy the crops.

If a trespasser proves he has settled possession then he has a right to exercise <?>

S. 98 talks about right of private defence against the act of a person who is of unsound mind etc. If
the aggressor is of unsound mind, you are entitled to your right of private defence. Should be
reasonable.

97 1 and 2 talk about right of defence of person and property

S. 99 is a controlling section for right of private defence. Provides limitations.

Right to private defence of property related to 96, 97 (2), 99, 103, 104, 105

104 right to defense of private property short of death.

105 when right to private defense of property commences and till what time it continues.

26/11/2014

James Martin v. State of Kerala (2004) 2 SCC 203 James Martin and father accused. They owned a
bread factory, flour mill right next to their home. Incident was on a day of hartal, strike. Regardless
of hartal they continued operating flour mill. Gates were locked from inside. Some 20-25 people
came with weapons in their hands. Came into property by climbing over gates and saw that flour mill
was functioning. Abused and assaulted the 8 people who were working in the mill. Towards the
entrance a van was being filled with bread for transport. One of the 8 employees ran towards the
house of the owner. From the outside, called James Martin. Went back and informed his father.
Father called police. James Martin came outside the house with a gun. Father made statement
What are you waiting for? Shoot them.. Martin randomly shot. 6 casualties, 3 dead. Continued
shooting, people were running away. Mob came in by breaking gate. Mob moved towards house.
James Martin and father were charge sheeted for murder, voluntarily causing grievous hurt, attempt
to commit murder read with common intention and arms act, S25. Charged father with abetment.
(regarding statement of what.shoot them) Both father and son found guilty. Preferred appeal
before HC. HC gave an acquittal to the father since the prosecution was unable to prove that the
father had abetted the son. Son claimed that he was merely exercising right to defence of private
property. Reasonable man argument used. Martin heard one of the wrongdoers tell others to get
petrol so that they could burn down the mill. SC gave very small term.
Right of private defence of body:

Ss. 96, 97(1), 99, 100, 101, 102, 106

S99 (1) acts of public servant, (2) - act done under the authority of a public servant. Public servant
acting for the public welfare. Matter of public interest that these people be protected.

As long as public servant acts legally in exercise of his official powers there is no right of private
defence against him. If his act is illegal he is not entitled to any kind of protection. His position
changes to that of an individual, normal citizen. Hence no special consideration. Protection is
extended even to those acts of the public servants or persons acting under their authority or
direction which are not strictly justifiable provided

1. The act does not cause reasonable apprehension of death or grievous hurt
2. The act is done in good faith.
3. The act is done under the colour of his office.
4. It is known at the time of the act that the act is done by a public servant or anyone acting
under his authority
5. The irregularity does not transgress the limits of being strictly justifiable by law.

Eg for 5. Court issued warrant of arrest to police officer to get him arrested. Some active period.
Police officer does not make arrest for 6 months. Lapses. After one year, arrests person

3There must be time to have recourse to the protection of public authorities.

4 Harm caused while exercising right of self-defence must be proportionate to the harm
apprehended. The force used must not be for vindictive or aggressive or retributive purposes.

<end of 99>

Arjun v. St of Maharashtra AIR 2012 SC 2181 civil suit with regard to property between the
appellant and deceased. Court had issued an audit of status quo <injunction>. Accused was not very
happy with the injunction being ordered. Two days after status quo ordered, decease with his wife
and son went to the nearest temple for Laxmi puja. Accused appellant walked in and saw the
deceased. Accused used a stick to inflict three blows on the head of the deceased and then stabbed
him twice which resulted in his immediate death. Afterwards, caused injuries to wife of deceased
also. After, tried to escape from scene. Produced before the court for murder as well as causing hurt
to other parties. Took the plea under S 100 that he was merely protecting his own body. Prosectuion
argued that this argument cannot be accepted. For example, deceased was conducting puja. How
could be violent?. Act done by accused was in a heat of passion.

27/11/2014

100 and 103 difference. Death caused protecting body other protecting property

100 is only applicable in seven cases: apprehension of death, apprehension of grievous hurt, rape,
gratifying unnatural lust, kidnapping and abduction, wrongful confinement, throwing/administering
acid.

Kidnapping taking away a child under 18

Abduction taking away a person above 18.

Prerequisites for invoking S 100


1. Accused must be free from any kind of fault in bringing about the encounter [accused should
not be at fault].
2. Impending peril to life either real or apparent must be present so as to create an honest
belief to exercise right to private defence.
3. There is no safe or reasonable mode of escape by retreat.
4. Existing necessity for taking a life must be present.
5. The situation at hand must fall under any of the seven situations described in S 100.

S101, similar to 104

Gives right of exercise of private defence to cause any harm short of death.

S102, similar to 105

Explains when right to exercise of PD of body commences and continues. (as long as reasonable
danger to the body exists) [Attempt or (direct) threat to commit offence]

S106 (only applicable for right to defence of body)

Vishwanath v. State of Uttar Pradesh AIR 1960 SC 67 appellant, father and deceased were all
railway employees. Father and son living in railway quarters at Gorakhpur. Sister of appellant, E1
was married to the deceased. Father, son, sons sister and sisters husband used to live together at
Gorakhpur. Relationship between sister and husband was not sound as he never used to work.
Sisters father had to meet expenses. One day, deceased decided to move out of the house. Asked
his wife to accompany him. She refused. Deceased started living with his sister and her husband, his
brother in law. Started looking for a new job. Got a job. Was getting a decent living. Deceaseds
sister said why dont you go back and get your wife. With this intention, approached father and son
and asked for his wife. Both of them refused to send her. Deceased went back. Made second
attempt along with his brother in law. Son was not present when they arrived. Father refused
proposal. Wife refused proposal. Father did not really want to speak at all. Deceased tried to drag
her out of the house. She also puts up a resistance, injuries. Drags her to the front door. Vishwanath
arrives at the scene. Doesnt understand what is happening at first. Father says Do something after
explaining the circumstances. Vishwanath stabs the deceased on upper body once. Deceased dies
then and there. Police arrest father and son. Find the murder weapon. On inspection, knife was
blunt. Father and son prosecuted for murder and abetment of murder. Son takes defence under
kidnapping/abduction. Trial court acquits both father and son. State of Uttar Pradesh files appeal
before HC. Before HC, fathers acquittal was confirmed. HC reversed sons acquittal and held him
guilty with three years in prison. SC - whether S100 (5) can be invoked. If yes, was force reasonable
or not? Abduction is 362 under IPC. SC concluded that deceased was not taking away wife for any
good thing to happen to her. SC gave the benefit of doubt to the accused. In the light of the
circumstances, SC held that he had to intervene some way or another. Deceased was dragging his
wife in front of quite a number of people. Was force proportionate? Injury inflicted above vital
organs. Generally, use of blunt weapons doesnt cause death. Concluded that death was an
unfortunate result of the incident.

Darshan Singh v. State of Punjab AIR 2010 SC 1212 [ten golden rules wrt private defence] property
dispute between two brothers and their sons.

1. Self-preservation is a basic human instinct and is duly recognized by criminal jurisprudence


of all civilized nations with certain reasonable restrictions.
2. Right to private defence is available only to a person who is suddenly confronted with the
necessity of avoiding a danger that is not self-created.
3. Mere reasonable apprehension is enough to put right of private defence into operation.
[means that the actual act is not necessary]
4. Right to private defence commences as soon as reasonable apprehension arises and
continues till the harm is evaded or disappears.
5. It is unrealistic to expect a person under assault to modulate his defence step by step in a
mathematical way.
6. Force used must not be disproportionate to the harm apprehended
7. Even if the accused does not plead self-defence it is open to the court to consider such a
plea if the same appears from the material on record.
8. Accused need not prove existence of private defence beyond reasonable doubt. Must only
prove that there is a preponderance of probability in his favour.
9. Indian Penal Code covers private defence only when the act against which it is exercised
amounts to an offense which is recognized.
10. A person who is in an imminent or immediate danger of life or limb may exercise right of
private defence to cause harm even to the extent of death on his assailant in cases where
the threat is being made directly or attempted.

In both cases, accused was completely acquitted.

1/12/14

Group/joint/constructive liability:

Depending on number of parties either individual or group liability.

Further classification: Strict, vicarious, and group

Classification on role played: principal and accessory

Principal person on the scene who committed the crime

Principal is defined as: person who either actually commits the crime or aids in the commission of
the crime while being present at the place of occurrence.

Accessory is a person who directly or indirectly aids, assists, procures or encourages the commission
of an offence.

Two types of accessories: before the fact and after the fact

Tenants of joint liability: Due to the fact that a presence of an accomplice gives encouragement,
protection and support to the person actually engaged in the commission of the act and therefore
the doctrine of group liability or joint liability is based on the principle that if two or more person do
an act jointly the liability is the same as if each one of them has committed the offence individually.
The purpose is common and therefore the responsibility is joint.

IPC deals with joint liability in three different areas: S34 to 38 which deals with offences committed
with the common intention of a group. S149 where the act is done by a member of an unlawful
assembly in furtherance of a common object. S120A and 120B where the accused is a member of a
criminal conspiracy to commit an offence.
S34 When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liability for that act in the same manner as if it were done by him alone.

34 to 38 lays down the conditions in which a person may be held constructively liable for the act
done by other members of the group.

Interpretation of 34 is considered a rule of evidence.

Ingredients of S34:

1. There must be a common intention meaning a prior meeting of minds of a group of people
deciding as to what is to be done.
2. An overt act must be done by several persons in furtherance of the common intention.
3. There must be participation of all the members in the group in furtherance of the common
intention.

Landmark case: Barendra Kumar Ghosh v. King Emperor AIR 1925 PC 1 (postmaster murder case)

Facts: three accused. Made a joint plan to rob the post office. Post office was like a bank in the
1920s. All three of them were armed. Each party had a specific role. Primary accused was to stand
outside the front door of the post office and act as a guard. He could see the inside of the post office
from where he was standing. Was supposed to raise an alarm if anyone outside raised any objection.
Three men held the Postmaster at gun point and took money. When they were about to leave the
post office, postmaster intervened. One of the guns went off and postmaster died instantly. Accused
leave the money bag and run away. Guard also runs away. People in post office were only able to
catch the person who was outside. At the time he was caught, was carrying a gun. Produced him
before court and charged him for murder under S 302 read with S 34. In the trial court, argued that
he had not committed the murder. Was not even present in the post office at the time the gun went
off. Was simply standing outside. Trial court rejected his arguments and convicted him. Reached
Privy Council. Two or more people must be caught for S 34 to be applied? Second question: to what
extent should accused be liable? Privy Council said that the minimum number is needed for making
the plan not for execution of the plan. Although he did not kill, was part of the plot. Hence can be
held liable. Second part, fact that he was standing outside amounts to active participation in the
robbery. Third point, S 34, each and every person will be held liable as if he had done it alone.

02/12/14

Cases under S 34

2. State of UP v. Sharrunnisia (2009) 1 SCC 452


Family father, wife, three sons, daughter and her husband. Family believed that the
daughter was under the influence of an evil spirit. They tried several methods to relieve her
from the clutches of the evil spirit. One day, family was particularly troubled about her.
Father came to the house and said he would find a solution. Called all members of the family
for a meeting. Daughter was in one corner of the room and kept saying some things. Father
said he was going to make a sacrifice. Caught his youngest son and started beating him with
a pipe. Family so shocked that no one intervened. Father dropped metal pipe and throttled
his son. During the incident, said that he was doing it to remove the spirit from his daughter
and if all goes well the son will be brought back to life. Daughter at certain times said kill
him, kill him. Daughter was not in this world. Father killed all three sons in a similar way.
Daughter was in the same condition. Police arrested the father, mother, daughter and
brother in law and prosecuted for murder charges. Trial court convicted all four with life
imprisonment. Preferred an appeal before HC. HC affirmed the sentence of the father and
daughter but the son in law and mother were put in prison for only three years. Appeal
before SC. SC considered the role of each party in the offence. Daughter had not tried to
intervene even in the state of sanity. Her actions passively encouraged the father. 302 read
with 34. SC upheld judgement of HC. Court recognized that the mother and son in law were
in a state of shock.
3. Arun v. State of Maharashtra (2008 15 SCC 50 Eight accused (A1-A8). One party is Arun,
appellant. All 8 of them planned to do dacoity in the house of X. Robbery by five or more
people is dacoity. In accordance with the plan, they went armed to the house of Mr. X. was
not specified as to who was carrying a gun and who wasnt. Confirmed that A4 was carrying
a gun. Entered house at 8-8:30. Out of the 8, two remained at the gate and the rest went
into the property. Out of the six, four went inside the property. Mr. X was having dinner with
his wife and mother and watching television. Came out and saw six people standing inside
his property. Asked them why they were there. Four people go to him and push him down.
Out of the four, two go inside the house. Mr. X went into the house. A4 was in the house.
Scuffle, A4 made a fatal shot on X and he died. As soon as the gun shot was made, everyone
fled from the scene. Neighbors took deceased to the hospital. Brought dead. Police caught
all 8 dacoits. Charged for the following offences: 302 r/w 34, 398 dacoity, 449 criminal
trespass, Arms act S25. During the trial, mother and wife of the deceased were examined.
Mother and daughter first said that all 8 were carrying guns. Later said they could not be
sure who were carrying guns but A4 was definitely carrying a gun. Trial court found the
appellant as well as A4 guilty of 302 read with 34 for having committed the offence of
murder. Other six were acquitted of murder charges. Attempt to commit dacoity made. Trial
court did not punish anyone for dacoity. All 8 of them were found guilty of criminal trespass.
State preferred appeal against this. HC of Maharashtra reversed the finding of the trial court
and found all of them guilty for dacoity, murder and criminal trespass. Since A4 and Arun
were carrying guns, there was a pre-arranged plan. Arun appealed before the SC. Others did
not appeal. Main contention was that S34 requires two people and these people must have
a common intention. Implies there should be some previous understanding between them.
SC said that just because one was found with a gun does not mean he had an intention to kill
the deceased. With regard to the liability of Arun, he was acquitted of murder charges. Also
mentioned that all the other accused except A4 were acquitted of murder. However all of
them were found guilty of criminal trespass. Trial court had punished Arun with 2 years
imprisonment and 500 rupee fine. Arun had served two years by the time he was before SC.
4. Virendra Singh v. State of MP (2010) 8 SCC 407 accused in the last case were a father and
his two sons. Eldest son is the appellant. Father and two sons had approached the house of
the deceased one day prior to the date of the incident with a request. When they went to
his house, deceased was reaping crops beside his house. Made a request asking him to come
down to their property next morning and help them reap wheat on their field. On hearing
the request of the accused, deceased said he would not be able to make it as he has a family
function. Said he would be busy for two days. Accused started pressurizing him. Went back.
Next day, accused waited till 10 the next day. On finding that the deceased had not arrived,
took lathis and a rifle and proceeded to the house of the deceased thinking that they would
teach him a lesson. Deceased was standing outside his house. Deceased replied that he had
made it very clear that he would not be able to harvest the crop. Family members of the
accused came out of the house. Father (accused) started beating deceaseds son with a lathi.
Small child in the house. He also came running out. Accused started beating the child and
other family members. Accused beat everyone except the deceased. Deceased intervened
by the time father had started beating small child. As soon as the deceased intervened, the
father gave an instruction to his younger son to shoot him. Lot of witnesses to the shot.
Three were arrested. All three of them were charged with murder 302 with 34, criminal
trespass, voluntary causing hurt. Trial court found all of them guilty including murder
charges. Appealed before HC. While the appeal was pending before HC, father died. Name
was struck out from the list of accused. HC said that both sons were equally liable for
murder. Eldest son preferred a case before the SC. Contentions made by the elder son: he
had no gun, no pre- arranged plan to kill deceased, order was not given to him by his father
but to his younger brother. SC interpreted 34: a distinct previous plan is not mandatory
under S 34. Meeting of minds can be developed on the spot and can be based on facts and
circumstances. There should be a common intention before the commission of the offence.
Second point by SC: find out mental element on the part of a person is a very difficult task.
Finding out criminal intention of a group is all the more difficult. There is an absolute
necessity to scrutinize facts and circumstances by the trial court. Reference to postmaster
murder case: even if person just stands outside, if him standing outside has a necessary
implication to the net outcome of the manner, common interpretation should be attributed
to him also. Based on this, SC held that there was no plan to kill. On the spot, there was a
common intention on the part of the father and younger son.

04/12/2014

S35 When such an act is criminal by reason of its being done with a criminal knowledge or
intention

34 Common intention, 35 like intention

Eg Two people engaged in criminal act. If a third person arrives on the scene and joins them, he has
like intention.

S36 Effect caused partly by act and partly by omission

Eg A and B both have grudge against C. A beats up C. B is his doctor. He neglects C. Act by A,
omission by B. Both A and B will be punished.

S37 Cooperation by doing several acts constituting an offence (corollary to s34)

36- no intentional cooperation

37- parties are known to each other

S38 persons concerned in criminal act may be guilty of different offences (talks about different
intention and subsequent results) [minimum number is 2]

Difference between same/similar intention and common intention is that in the latter they should
have come to a premeditated consensus.

S34 rule of evidence

Once common intention is reached, each person will be equally liable (postmaster generals case)

Common object S 149 Every member of unlawful assembly guilty of offence committed in
prosecution of common object [distinct from 34, law of evidence]
Ingredients of 149: { 1) Member of unlawful assembly [S141] 2) what is assembly? 3) 4) Mental
element required to be liable under S 149}

1) Presence of 5 or more persons


2) Assembly must have unlawful common object
3) Common object must be any of the five mentioned in S141

Common intention (?)

Cl 1 Overawe the central or state govt. or any of its officials.

Cl 2 Resistance to the execution of a legal process

Commission of mischief or other offence.

4) Forcible disposition of property


5) Illegal compulsion

149, any person who had a knowledge.

What is meant by being a member of the unlawful assembly? (141)

-Whoever being aware of the facts that render the assembly

08/12/2014

143 Punishment for being a member of an unlawful assembly

Person if having been aware that the assembly is unlawful, intentionally joins the assembly.

Punishment is 6 months imprisonment, fine or both.

144 Joining unlawful assembly armed with deadly weapon

Deadly weapon weapon which is likely to cause death

145- joining or continuing in unlawful assembly knowing it has been commanded to disperse (by
law)

146 Rioting (Unlawful assembly + violence). Just because members of the assembly are carrying
deadly weapons they are not rioting until they use their weapons. Also, violence does not require a
deadly weapon.

147 Punishment for rioting two years or fine or both.

148 Rioting armed with deadly weapon three years or with fine or with both

150 hiring or conniving at hiring of persons to join unlawful assembly

151 Knowingly joining or continuing in assembly of five or more person after it has been
commanded to disperse.

Difference between 151 and 145 is that 151 indicates disturbance to public peace.

152 Assaulting or obstructing public servant when suppressing riot etc.


153 Wantonly giving provocation with intent to cause riot if rioting be committed

153 A promoting enmity between different groups on grounds of religion, race, place of birth,
residence, language etc. and doing acts prejudicial to maintenance of harmony

- intended to use force against any community (on the basis of religion, race, etc)

-3 years, fine or both

-done in a place of worship, aggravated form, 5 years and fine

S. 153AA Punishment for knowingly carrying arms in any procession or organizing or holding or
taking part in any mass drill or mass training with arms (introduced in 2005, has still not come into
affect. Given that will come into affect on a different day) [mass drill should be at a public place
accessible to public]

S153B Imputations, assertions prejudicial to national integrations. Imputations is a false


accusation. (3 sections) 1st provision talks about false allegation against true allegiance to
Constitution while the 3rd provision ? Difference

S157 talks about harbouring persons hired for an unlawful assembly

S158 Being hired to take part in an unlawful assembly or riot. If with weapons, two years, fine or
both.

S159/160 Affray, punishment for committing affray

All topics except abetment

Criminal conspiracy and attempt are left. Will be completed next.

Attempt

Preparation: devising or arranging means for the contemplated crime.

S.122 preparation is punishable. (Offences against the state)

Collecting arms with the intention of waging war against the govt. of India.

S. 126 commiting depredation upon territories of power at peace with the govt. of India.

Depredation means plundering.

S. 235 and 257: offences against counterfeit notes and coins, possessing or selling certain
instruments for the purpose of creating counterfeit stamps.

S399 making preparation to commit dacoity. If a group of five or more people

10/12/2014

Attempt direct movement toward commission of the offence after preparations are made

Act or series of acts which leads to the commission of the offence unless something which the doer
of the act neither foresaw or intended happens to prevent this.
Attempt as such poses a threat to body, property as well as security of the society. Whenever such
an infringement is caused, state made criminal law will punish him.

Attempt under IPC is covered in four different areas: 1) provisions where the actual commission of
the offence and the attempt to commit the same offence are covered in the same provision and the
punishment for both is the same (eg S121 IPC waging or attempting to wage war against the govt.
of India) S124 assaulting President or Governor with intent to compel or restrain the exercise of
any lawful power. S124A sedition. S196 using false evidence. S391 dacoity. S 397 robbery or
dacoity with attempt to cause death or grievous hurt. S 460 criminal trespass.

2) provisions in which the act as well as the attempt to commit the act are considered side by side in
the same provision but different punishments are prescribed for each act. S307 attempt to commit
murder. S308 attempt to commit culpable homicide not amounting to murder. S393 attempt to
commit robbery

3) attempt to commit suicide S309.

4) the ones expressly provided there is a single provision S511 deals with attempt to commit
offences for which no specific provision is provided in the court. Attempt under 511 is punishable
because every attempt falling short of success creates an alarm which in in itself is an injury, S44,
and the moral guilt of the offender is the same as if he has succeeded in the act. Illustrations in 511.

Constituent elements of an attempt: (3)

1. Perpetrator had an intention to commit the intended offence


2. He had done some act towards the commission of the intended offence
3. He was interrupted from completing the commission of the offence by some reason beyond
his control

Tests:

1) Penultimate test test of penultimate act:

Abhyanand Mishra v. State of Bihar AIR 1961 SC 1698 got himself enrolled in Padma University,
for Masters in English (1954). Applied as a private candidate for the MA degree examination.
Applied directly to the dept. Supplied BA certificates and certificates showing he was working
as a teacher in a private school (from the headmaster of the school). University accepted his
candidature and asked him to remit the exam fees plus two passport size photographs. Applicant
set the money and sent photographs. University accepted both and set him the admit card.
Issued the admit card to the headmaster. Headmaster received, opened and saw the admit card.
He made some inquiries. Surprised to find that there was no Abhyanand Mishra in the school.
But in the village there is a person named Abhyanand Mishra who is not a graduate. Abhyanand
Mishra had enrolled in BA degree and was caught cheating in the exams and not allowed to
write exam for 5 years. Headmaster reported matter to the University. University made some
enquiries, agreed with the Headmaster. Filed a case for forgery and cheating. Trial court
convicted Abhyanand Mishra for attempt to commit cheating by false representation. Had the
admit card not been sent to the headmaster, he would have plausibly written the exam.
Therefore he should be punished for attempt. Mishra preferred appeal before HC. Confirmed
sentence by trial court. Preferred an appeal before the SC. Arguments as follows: admit card
doesnt have any pecuniary value. It is not a property and therefore there is no injury caused.
Also, was only in preparatory stage. Attempt would have happened if he had actually sat for the
exam. SC judgment: intention was to deceive the university. Wanted to obtain certificate as well
as admit card to sit for the exams. Preparation is complete. Would have succeeded if
headmaster had not caught him. SC modified judgement: person deserves to be punished for
forgery of documents and trying to cheat the university.

Judgement laid down certain essentials: intention to commit the offence (2) act has been done by
the party to commit the offence (3) said act amounts to overt act of the accused which need not be
the penultimate act but must be an act during the commission of the offence.

11/12/2014

Test 1: Proximity Rule/ Test of Penultimate Act

Abhyanand Mishra v. State of Bihar AIR 1961 SC 1698

Test 2 Test of Locus Poenitentiae/Repentence Rule (opportunity to change ones mind before the
commission of the act. Rule refers to the possibility of a person having made all the preparations for
the commission of an offence to actually back out from committing it owing to a change of mind or
compulsion or fear. Such an act will amount to a mere preparation and not an attempt if the person
on his own accord gives up the idea of committing an offence before actually carrying it out.

Malkiat Singh v. State of Punjab AIR 1970 SC 713 Facts between 59 and 61. Punjab govt. came up
with Punjab Paddy Export control Rules and Order 1959. Rules said that it is an offence to export any
paddy without the consent of the Punjab government. Malkiat singh is the accused and appellant.
He was a driver of a truck. With cleaner of truck, had 75 bags of paddy from Punjab to Delhi. They
were interrupted at the Punjab-Delhi border 14 miles before the border. SI of the food supply
department. Got them arrested for attempting to export paddy from Punjab in violation of the
order. Malkiat Singh showed a letter acknowledging that permission was there. Consignees were
also arrested. Trial court convicted all four: driver, cleaner and both consignees. Appeal before
additional sessions court. Court acquitted the consignees but confirmed sentences of Malkiat and
cleaner. Revision before the HC. Revision petition dismissed by the HC. Appeal before SC. Main
contention was that his truck was stopped 14 miles before the Delhi-Punjab border. Till they reach
the border they can still turn back and change their minds. SC held that liability should be with the
consignees and not the driver and cleaner. If they had been caught after border but before
destination could have been held liable for attempt.

State of Maharashtra v. Mohd Yakub 1980 3 SCC 57

Mohd. Yakub is the accused. Case before SC he was the respondent. He and another were charged
with attempt to smuggle 43 silver ingots (biscuits) in violation of FERA, Customs act and Import
Exports Control Act. Accused and other were instructed to drive two vehicles: truck and jeep with
the ingots. Ingots were wrapped in shawl in jeep and gunny bag with sawdust in the truck. Told to go
to a lonely creek. On the lower side of the creek was the sea. Customs officials were keeping a watch
on the accused based on some information. They were surrounded when they had driven to the
creek and were unloading the ingots. Customs officials heard the screeching sound of a mechanized
seacraft from the water. Accused pleaded that they were unaware of the contents. Trial court
rejected contentions and convicted them. Preferred appeal before additional sessions court
whereby sessions court gave clear acquittal. State of Maharastra appealed before the HC. Dismissed
by HC. Approached SC. Main question: whether the act done amounts to attempt under law. SC:
must have intention, requisite , and overt act. SC said that had they been arrested at the stage
where they were loading the vehicles they could have been liable for attempt. First two parties were
the drivers, other parties were in the seacraft. Commission of the offence is completed when the
ingots have been moved to the seacraft. If they had been caught lowering the ingots into the boat
they could have been held for attempt. Court said that the principle laid down is not a general rule
but should be confined to the facts and circumstances of a case.

Test 3 Test of Equivocality

Said to be a combination test of 1 and 2

An act done towards the commission of the offence, if indicates unequivocally the intention of the
person to accomplish the criminal object only needs to be punished. Basically an act speaks for
itself

Jugendra Singh v. State of UP (2012) 6 SCC 297

9 year old girl, five year old brother. Case occurs in small village. Woke up and found that water has
accumulated in front of their house due to a leak in a canal. Decided to take a bath in the water.
Father was working in the fields. Saw that a man was walking by these children. Jugendra lured them
into a nearby field. He beat up the five year old boy. Boy ran away crying. Man started taking off his
shirt and pants and removed skirt of girl. Forces her on to the ground and forces himself upon the
girl. Girl starts shrieking. He covers her mouth with his hand. By the time, her brother finds some
other farmers. Two of them run to the father and the others run to the field. They see him forcing
himself upon her and covering her mouth. Girl dies. Take him to the police. Police prosecutes him for
attempt to commit rape and 302, murder. Post mortem report showed no signs of injury on her
body. She died of asphyxiation. Certain amount of water was found in the stomach of the girl.
Defence takes the stand that girl died due to water. Trial court acquitted him of both the counts.
State preferred an appeal against the HC. HC altered the sentence and convicted him for both
murder and attempt to commit rape. Appeal before SC. Stated that no marks on her body and water
in her stomach. Claimed it was a concocted case. Prosecution three points: At the time of being
apprehended, he had removed his clothes. Also, he was lying on top of the girl. When he was
surrounded, tried to run away from the scene. SC came to the conclusion, held that man was to be
held for murder and attempt to rape.

Test 4: Test of Social Danger

Depending on the seriousness of the crime attempted and the apprehension of the social danger
involved must be considered to distinguish between attempt and preparation.

A gives B medicines so that B will abort her child. Abortion is unsuccessful. Attempt to cause
abortion punishable? It is punishable as there is a social danger in his acts.

15/12/2014

Impossibility test:

Can a person be held liable for trying to commit an act which is impossible?

Three kinds of impossibility:

1) Physical
2) Legal
3) Lack of Skill
Physical eg trying to steal from empty jewellery box. Should be held liable.

Legal act was not considered an offence at the time of commission. Eg marital rape. Will not be
punished

Lack of skill Eg person doesnt know how to shoot. Shot and missed his mark. Should still be liable.

(five tests for attempts completed)

All five tests depend on facts.

Criminal Conspiracy:

Introduced in 1913. Not an original part of IPC. S 120 a and 120 b. Former gives definition. Latter
provides penal provisions.

Three elements:

1) Number of persons. Minimum number of two


2) They must reach an agreement between them to commit an offence.

Case law: (landmark judgements)

1. Bimbadhar Pradhan v. State of Bihar


2. Topandas v. State of Orissa

Ingredients of criminal conspiracy laid down in these two cases.

Criminal conspiracy is a substantive offence.

It is a continuing offence.

Not necessary that the people selling them guns or being employed In the conspiracy should be
totally aware of circumstances. Probably still liable.

No limitation period for continuing offence.

Third point= agreement

Kehar Singh v. State of Delhi, Administration, 1988

Nalini v. State through CBI = Rajeev Gandhi assassination case.

Agreement is the basic element of criminal conspiracy.

A mere proposal is not a criminal act.

It is not necessary on the parts for the conspirator to know the intricate details of an act.

All they need to have is the knowledge on the commission of the offence.
Every conspirator is liable for all the acts of his co=conspirator if they are towards abating the
intending object.

Depending on actions and commission concerned. AB and B arke a plan.

Provision in Ev. Act S 10 provides for agency. Says that for agency. I ninumembeerd

Anything done in furtherance of common intention by one party is an evidence against the other.

Anything said done or written in furtherance of common intention is admissible in evidence.

Criminal conspiracy cannot be broken into several conspiracies as and when a new member joins. IT
is considered a continuous offence from the time of its commencement till the agreement
terminates.

S 120 b provides for punishment: (two parts) above two years up to life imprisonment till death
penalty resulting punishment is as if he had abetted the offence., or category where punishment
would otherwise have been less than 2 years (- 6 months, fine or both)