Indian Penal Code

IPC Page 1 Indian Penal Code Q- 1.Define crime, discuss its essential elements. Ans- it is very difficult to give a correct and precise definition of crime, GlanvilleWilliams, admitted the impossibility of having a workable content based definition of crime, points out that the definition of crime is one of the sharp intellectual problem of law.Likewise Russell also admitted that – to define crime is a task which so far has not been satisfactorily accomplished by any writer.Such a difficulty in ultimate analysis arises due to the changing nature of crime, anoutcome of equally dynamic criminal and penal policy of a state. However some sociologists, perceiving crime as a social phenomenon feel that criminallaw in a sense, protects certain social interests, and any act which threatens or posesthreat to this interests is define as crime.In general terms crime is defined as an act punishable by law as forbidden by statue orinjurious to the public welfare. It is very wide definition, any thing which is injurious topublic welfare is crime, in modern complex society there are many things which areinjurious or against the public welfare for example selling contaminated foodmolestation of young children, etc. Blackstone defines crime :An act committed or omitted in violation of a public law either forbidding orcommanding it. But in this definition we have to understand what public law is? According to Austinian public law is identical with constitutional law. That being sothe crime would then mean an act done in violation of constitutional law. Thedefinition thus would cover only the political offence leaving aside a vast area of othercriminal behavior.Blackstone also defines crime as violation of the public rights and duties due to thewhole community considered as a community in its social aggregate capacity. Stephen slightly modifies this definition and presents it in the following form:A crime is a violation of a right considered in reference to the evil tendency of suchviolation as regards the community at large.Blackstone defines crime only the violation of public rights, while Stephen includesthe element of violation of public duties as well. IPC Page 2 But for example a directors of a company fail to manage its affairs properly the mill isclosed, workers are rendered unemployed, production of a commodity essential for thesociety is stopped. Will it not be an act which is injurious to public or the society?Can we prosecute the directors for any crimes? The answer certainly not then what iscrime?A crime is those forms of legal wrong which are regarded by the law as being especiallyinjurious to the public at large.` Stephen further defines crime is an act forbidden by law and which is at the sametime revolting to the moral sentiments of the society.If we look up to the penal codes of different countries we find that there are certainlysome acts which though not immoral are highly criminal and at the same time theremay be acts which are highly immoral but not criminal. Austin: A wrong which is pursued at the discretion of the injured party and hisrepresentatives is a civil injury; a wrong which is pursued by the sovereign or hissubordinates is a crime.Thus according to Austin in case of civil wrong a State does not interfere until thewrong has been committed and proceedings are initiated by the injured party or bysome other person acting on his behalf . in case of criminal wrong proceeding can beinstituted by the sovereign or his subordinate along. There are many cases of crimesunder the Indian Penal Code where prosecution cannot be launched unless a complaint is made by the aggrieved party. It is only in case of serious crimes that the State mayon its own initiative take action to punish the wrong doer by initiation of criminalproceedings in its own name. for example in case of adultery under section 497 orcriminal elopement under section 498 of the IPC a complaint by the person aggrievedis necessary. No court shall take cognizance of the offence under the section unless acomplaint is made by the husband of the victim woman. Donald also admitted the same thing “ Crime is a social injury and an expression of subjective opinion varying in time and place. Conclusion: A pattern of human behavior prohibited by criminal law at a given time ina given society, thus, depends upon the specific features of its organization.A human conduct that, according to the policy-makers comes within the ambit of theprescribed sanctioned of a state of the purpose of criminal law can be labeled as Crime.An act or activities prohibited by Law (IPC). Elements of Crime The fundamental principal of criminal liability is that there must be a wrongful act-actus reus, combined with a wrongful intention-mens rea. This principle is embodiedin the maxim, actus non facit reum nisi mens sit rea. Meaning an act does not make one guilty unless the mind is also legally blameworthy. Actus Reus: Comprises the following:1. Human Conduct or an Activity.2.The Result of the Act Prohibition by Law. Illustration: A shoots at B using a rifle intentionally and B dies. •A physical act that attracts criminal sanctions. Actus reus , sometimes called the external element or the objective element of a crime, isthe Latin term for the "guilty act". Which, when proved beyond a reasonable doubt incombination with the mens rea,. Conduct: Result but not prohibition by law (than no crime) i.e. Solders kills theenemy. Mens Rea: No act per se (itself) is criminal, the act becomes a crime only when it isdone with a guilt mind. The jurist determines the Mens Rea. "guilty mind ", produces criminal liability in the common law-based criminal law jurisdictions. Illustration. A blacksmith is seized by a gang of robbers and he forced to break thedoors of a house for robbery to enter, and the robbers committed a robber y. Q-Whether the Act is voluntary or not. A-No Q-Whether the accused have foresight of the consequences. A- Yes Conclusion- If there would be two “Yes” in the above citation then only it becomes crimes. Illustration: A while shooting at a tiger kills B, who was behind the bush , cancelled(hidden) from his view. IPC Page 4 Intention to kill (intention to caused death). Is a basic rule. Intention is to bring about a desired act. Presumption of Intention- Natural and probable consequences should be presumed. Consent - Intention to have sexual pleasure from a person without her consent . Knowledge– Direct appeal to your senses. Here the probability is very high (against to commit the act against Law).Exp to purchase a stolen good. Theft -To taking possession without the consent of the owner. Motives -Intention and motives are two different thing in a crime. Motive may be toget anything, Intention to Kill the person. Motive may be good or bad, but intention isbad than it becomes crime. Motive leads to intention , and ulterior intention is motive. IN FIXING CRIMINAL LIABILITY MOTIVE MAY BE IRRELAVANT, BUT INTENTIONIS MAINTAIN OR MAIN ELEMENT. Recklessness (irresponsibility)- Basic principle of fixing a criminal liability. Is thecombination of : Foresight and Indifference. DOING SOMETHING WITHOUT THEKNOWLEDGE BUT THE FORESIGHT. Illustration:A steal food to feed the starving child.Motive- To save the life of a child- God.Intention – To steal some food-Bad Q-2- Mens Rea- mental Element of Crime.Mens Rea- One of the main characteristic of our legal system is that the individual’s liability topunishment for crimes depends, among other things, on certain mental conditions. Theliability of conviction of an individual depends not only on his having done someoutward acts which the law forbids, but on his having done them in a certain frame of mind or with a certain will. Mens rea means a mental state, in which a person deliberately violates a law.Thus mens rea means intention to do the prohibited act These are known as mental elements in criminal liability. Therefore an act in order tobe a crime must be committed with a guilty mind, IPC Actus non facit reummeaning no person cit can be shown that h In justice concept, actumental aspect, which mbeen defined as such rwhich is a technical teror mind at fault, coverswhich would give a cricriminal only when the Development of Mens in the earliest time it intended to do what heliability, and there wasTherefore the mental atrial and punishment wBut later on bodily punthen the importance ocommission of crime was an essential element Mans rea in its root Now it is the combinatiAnd the maxim – Actusa man guilty unless hisThere can be no crimcrimes must depend obehind that act. Most cresult or consequence.do that act with that int Intention isi mens sit rea, is a well know principuld be punished in a proceeding of crie had a guilty mind. Reus represents the physical aspect of crust be criminal and co-operate with the f sult of human conduct as the law seeksgenerally taken to mean some blamewoa wide range of mental states and condiminal hue to actus reus. No act is per seactor does it with guilty mind. Rea as the fundamental presumption that has done. The English criminal law begao clear distinction between the Tort andttitude of a person was an irrelevant consas concerned.shment came as a substitute of the paymemens rea or the mental attitude of a pas realized. With the passage of time reqof a crime has firmly taken in its roots.on of act ( actus rea) and intent mens reanon facit reum nisi mens sit rea means act ntentions were so. Is a well know principllarge or small without any evil intent.the doing of a willed or voluntary act aonscious and voluntary acts are directedhen one acts to produce a particular conention. Page 5 le of natural justiceinal nature unless me and mens rea thermer. Actus reus hasto prevent . Mens reathy mental conditionions the existence of criminal; it becomesa man in every casewith strict criminalrime.ideration in so far asnt of damages. It Waterston, at the time of irement of mens reahich makes a crime. alone does not make of natural justice. The responsibility ind a particular intent towards a particulare quence he is said to IPC Exceptions to mens reCrime = Voluntary + f Act done under comp If the consequence not criminal liability there Actus me invite factus my will is not my act. Tbe held liable for an act For example: A holds B and compelswilled or intentional acThe basic requirement aware of all those elemOffence against state, p Application of Mens R Technically the applicaoffice is very clear undhave done, that also st was doing it. Each defiare not use anywhere iIPC code very frequent reason to believe (s.26)Moreover Chapter IVcircumstances when op Case Reference1. Sankaran Sukuthat a.resight of the consequences-lsion. ooked for the act may be voluntary but noust be a voluntary act, this preposition d non est mens actus which means and achis maxim support the doctrine of Mens Rdone under fear or compulsion.im at gun point to open the lock of C’s ho.of the principle of Mens Rea is that accnts in his act which make it the crime wit lice, nuisance, and stick liability etc mens ea in Indian Penal Code ion of mens rea is not applied to the offer IPC 1860. The definition not only statetes about the state of his mind with regaition of the offence is complete In itself.IPC. However the equivalent words to thly such expressions are – Dishonestly (S24voluntarily (s.39).of IPC General exceptions (s.76 to s.1tions of criminal intent may be presumed. maran V/s Krishnan Saraswathi (19 Page 6 t intentional. For anyive from the maxim-t done by me against ea- for no person canse. Here B’s act not ased must have beenwhich he charged.rea is not requiring.ces under IPC. Everywhat accused might d to the act when heThe word Mens Rease of mens rea in the),Fraudulently (s.25),6) is provided the Cr Lj 317) SC held n Attempt COMMISSIO OF OFFENC IPC Page 7 Mens rea is an essential ingredient of the offence under section 494(bigamy), where the second marriage has been entered in a bona fidebelief that the first marriage was not subsisting, no office under thissection committed.2. C. Veerudu V/s State of Andhra Pradesh (1989 CRLJ 52 (AP) Sc held that u/s 498 (A) cruelty means “willful conduct’’. Willful conduct includesmens rea.3. Banvarila Agarwal v/s Surya Narayan (1994 Crlj 370) SC held that.The intention of the accused must be dishonest and there must be mensrea.Conclusion : in modern statutory offenses the maxim has no longer applicableand the statutes are to be regarded as themselves prescribing the mentalelement which is pre-requisite to a conviction. So mens rea is an essentialelement of crime, in every penal statue unless the same either expressly or bynecessary implication is ruled out by the statues. Act to be voluntary: Act means a conscious or willed movement. It is a conduct, which results from theoperation of the will . According to Austin any movement of the body, which is not inconsequence of the determination of the will is not a voluntary act. It is only avoluntary act that amounts to an offence.Illustration:A fire at a wild animal but his fire missed and hit B who is behind the bush and B dies.Here A would not be liable because he has no intention to kill B, but on the other handif A know B is there behind the bush then he will be liable. Intention + Act + Result = CrimeCrime = Vulnerary + foresight of the consequences. CONSTITUANT PART OF CRIME 1. Actus Reus- An Act which is prohibited by Law. It is the physical part of a crime.2. Mens Rea- Mental element in crime. Intention. mens rea means a mentalstate, in which a person deliberately violates a law. Thus mens rea meansintention to do the prohibited act. In Allrd v. Selfridge, it was held,. intention to do an act which is made penal by statute or by common law. IPC Page 8 DESIRE IS CONSTRUCTED TO WILL AND THIS WILL FORMS MOTIVE AND THIS MOTIVE FORMS INTENTION AND INTENTION FORMS ATTEMPT AND ATTAMPTS FORM COMMISION OF OFFENCE. Actus non facit reum, nisi mens sit rea '- ' An act does not make a person legally liable unless the mind is legallyblameworthy'. Offence against state, police, nuisance, and stick liability etc mens rea is not require.Q- De f ine Section 34, and Section 149.OrDifferentiate between common intention and common object.OrExplain the law relating to joint offenders under the IPC.OrExplain the facts and principles laid down in Barendra Kumar Ghosh V/sEmperor (AIR 1925 PC 1) Ans- There is a close resemblance between common intention and common object, thoughboth of them belong to different categories of the office in criminal law.(However joint offender is not defined under IPC, however various provisions of theIPC contemplated joint liability of each person who have committed a criminal act oroffence in furtherance of common intention)The principle of joint liability is defining u/s 34, and 149 of IPC. IPC Page 9 Exceptions of Section 34 - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.Exceptions of S34: 1.Principle of Joint Liability: Section 34 of IPC explains the principle of joint liability , in doing thecriminal act with common intention.This section attract the principle of joint liability. A joint liability of a person is determined according to themanner in which he becomes associated with commission of the crime.Normally a person may be participant in a crime in the following ways: •When he himself commit a crime. •When he share in commission of it. •When he, with a view to the commission of crime, sets some third agency towork, that is he makes some third party his own agent for committing thecrime. •When he helps the offender, after the commissions of the crime committingthe crime. 2.Several Person: in this section several person means two or more than two person, criminal act must be done by several persons.It is held in sachin jana and another v/s state of west Bengal that act done by two or more persons jointly and intentionallycan be taken as if done by each of them individually himself These word of this section deals with those cased when it is difficult todistinguish precisely the part taken by each of the participant, it is deemnecessary to declare all person liable for the criminal act.. .Furtherance of Common Intention: S34 deals with the doing of separate acts, similaror distinct acts by several people. If the criminal act is done in furtherance of commonintention, each person is liable for the result of such act. Once is prove the criminal act was done in furtherance of common intention of all, each person is liable for thecriminal act as if it were done by him alone. Section 34 is mainly intended to meet acase in which it may be difficult to distinguish between the acts of individual membersof a party who act in further of the common intention of all or to prove exactly what part was taken by each of them. When such participation is establish section 34 can beattracted. Sc 3does not say- “common intention to all” nor does it says – “anintention common to all” but it says “ in furtherance of common intention. It is held in sevaram v/s state of UP that: the direct proof of common intention isseldom available. It can only be inferred form circumstances appearing fromproved facts. IPC Page 10 Sec34 does not create distinctive substantive offence; it is only a role of evidence.Essential ingredient of S.34: •There must be a criminal act. •The criminal act done by several person. •The act is done in furtherance of common intention of all.Cases: •Nandu rasto v/s state of Bihar:Criminal conspiracy is the essential ingredient of commonintention u/s34, of IPC. Participant in criminal act in some mannerwas also essential but physical presence at scene of occurrence isnot always necessary. •Barendra Kumar Ghosh v/s Emperor:It has been observed that though the accused did not played anyrole to kill the post master but he was standing outside to – standand wait , which prove he was helping in the criminal conspiracy.Exception of Common intention: •Private defense:In Subramanian v/s State of Tamil Nadu, -That if the appellant acted in exercise of their right of private defense of property it cannot be said that they committed a criminal act in furtherance of a common intention because it is protected u/s 96 of IPc.Section 149: every member of unlawful assembly guilty of offense committed inprosecution of common object- if an offense committed by any member of anunlawful assembly in prosecution of common object of that assembly, or such asthe members of that assembly knew to be likely to be committed in prosecutionof that object, every person who ,at the time of the committing of that offense, isa member of the same assembly, is guilty of that offense.Exceptions of Section 149: •Principle of vicarious liability. This section is the declaratory of theprinciple of vicarious liability of the members of an unlawful assemblyfor acts done in prosecution of common object of that assembly, all the members of that assembly will be vicariously liable for that offence evenone or more, but not all committed the said office. • Unlawful assembly: It is not necessary under any law that in all cases of unlawful assembly, with an unlawful object, the unlawful assembly must be unlawful object to attract this section. Also too attract section 149 of IPC, only member of unlawful assembly is not enough, the person shouldhave understood that assembly as unlawful and was likely to commit anyof the acts which fall within the purview of section 141 of IPC, and it must have been committed in prosecution of common object. • Common object: the word Object means purpose or design to make it common, it must be share by all. It may be formed at any stage by all orfew members. It may be modify or altered or abandoned at any state.Common object may be formed by express agreement after mutualconsultation. The sharing of common object would, however, not necessarily require the member present and sharing the object toengage himself in doing an over act. Therefore this section isinapplicable in a case of sudden mutual fight between two parties,because of lack of common object. Essential ingredient of Section 149: •Unlawful assembly as contemplated my section 141 of IPC. • Accused was a member of such assembly. • The accused voluntarily joined that assembly. • He knew the common object of that assembly. • An office was committed by one or few member of that assembly. • Offense must be committed in prosecution of common object of that assembly.Case Ref:Difference between Section 34 and section 149 of IPCBase Section34 Section 149Nature of Offense This section is not a substantiveoffice it is only a role of evidence.it always read with other substantiveoffices. Punishment cannot be This section is asubstantive offense, it alsoread with other sections.Punishment canbe imposed solely upon this section Where as prosecution file a charge sheet u/s IPC Page 12 imposed solely upon this section .For example if a person convictedu/s 302 r/w 34 of IPC can legally beconvicted u/s 302 r/w 34.149 the court me convert it to section 34 andimpose conviction. Principle element Common intention- the principleingredient of this section is Commonintention, any act which committed in furtherance of commonintention attract this section Common Object: the principle element of this section is Common Object, any act which committed in prosecution of commonobject. will attract this section Range of Principleelement Common intention within themeaning of section 34, is undefinedand unlimited. Common object is defined and is limited tothe five unlawful objects stated in section141 of IPC.Type of Offense Common Intention requires underthis section may be of ANY TYPE. Common object require under this sectionmust be one of the object mentioned u/s 141of IPC. Necessity Prior meeting of mind isnecessary before wrongful act isdone under this section. In Nanak Chand v/s State of Punjab Sc heldthat - common intentionpresupposes prior concert andmeeting of minds, whereas acommon object may be formedwithout that. Prior meeting of mind is not necessary under this section. Mere membership of anunlawful assembly at the time of committing the offense is sufficient .In the same case (Chand v/s State of Punjab)Sc held that – there may be caseswhere the object of group is one, but theintention of participants differ.Liability It is a joint liability. A joint liabilityof a person is determined accordingto the manner in which he becomesassociated with commission of thecrime. It is of interpretativecharater.It is a constructive liability and vicariousliability. all the members of that assemblywill be vicariously liable for that offence evenone or more, but not all committed the saidoffice. Number of Person Minimum two people requireattracting this section.Minimum five people require attracting thissection. Participation inCrime Active participation in commissionof crime is necessary .Merely membership of the unlawfulassembly at the time of commissioning of crime would be sufficient for this sectionapplication, active participation is not necessary.Q- Right of private defense extends under certain circumstances of causingdeaths discuss. Chapter IV (general exception), section 96 to 106 explain the provision of the Right of private defense. The right of private defense rests on the general principle that wherea crime is endeavored to be committed by force, it is lawful to repel that force in self defense. IPC Page 13 Basic Principle: self preservation is the private instinct of every human being. Everyman has the right of private defense his own body, property and the body andproperty of his nearer. This basic principle has been recognized in the IPC to giveprotection to the wrong doer, who commits a criminal act in the course of protectinghis person, property, body and property of his nearest. Russel: Justified the killing of an aggressor, against the exercise of the right of privatedefense for saving her body and property. Bantham also justified the principle of self preservation in his principle of penalcode , he admit that Magistrate (State) is not such capable to vigilance (save) everyindividual, nor the fear of law can restrain bad men as the fear of the sum total of individual resistance. Right to private defense and IPC.S.96, define that nothing is an office which is done in the exercise of the right of private defense, which lays done the general rule on the right of private defense.While S.97 which deals with the subject matter of the right of private defense of bodyand property and lays down the extent of the right of private defense, proclaims that every person, subject to restrictions contained in S.99, has a right to defend his ownbody and the body of another , against any office affecting human, and right to defendthe property of his own and his nearer or any other person against any act which is anoffence falling under the definition of theft, robbery, mischief, or criminal trespass. and S.99 lists the situation wherein the right to private defense of body as well asproperty is not available to an individual, s102 and s105 deal with commencement and continuation of right to private defense of body and property.Whereas SS.100,101,103,104 deals with the extant of harm (including voluntarydeath) that my be inflicted on the assailant in exercise of the right of body and of property respectively, while S.98 also provide the right of private defense against thelunatic person as well. S100.Right of private defense of the body extends to causing death: The right of private defense of the body extends to causing death is recognized byS100 of IPC, but this right is subject to the restrictions mentioned in the S.99 of IPC, tothe voluntary causing of death or of any other harm to the assailant, when any one of the six situations stipulated therein arise in the committing of the offence of bodyextend to the causing of voluntary death of the actual or potential assailant if hethrough either of the specified assaults causes reasonable and immediateapprehension of death or grievous hurt in the mind of the accused.The categories of assault specified in the sections are:1. Assault to kill. 2.Assault to cause grievous hurt. IPC Page 14 3. Assault to commit rape. 4. Assault to gratify unnatural lust. 5. Assault to kidnap or abduct 6. Assault to wrongfully confining a person and the accused cannot recourse tothe public authority for his release. Reasonable apprehension of Death or Grievous hurt Sufficient: The first clause of s.100 stipulates that the right of private defense of body extends tocausing death, when such an assault reasonably causes the apprehension that deathwill otherwise be the consequence of such assault.the second clause of s100 stipulates that when an assault caused the reasonableapprehension that grievous hurt will otherwise be the consequence of such an assault,the right of private defense extends to causing of death.In order to avail of such exception of criminal liability under this clause, what isrequire to be establish is that there was reasonable circumstances giving rise toreasonable apprehension of either death or grievous hurt. Such an apprehensionof death or grievous hurt must be real or reasonable and not an illusory orimaginary . It must be present and imminent and not remote or distant one . Thereasonable apprehension of cause of death or grievous hurt will be caused to him ,however is required to be judged from the subjective point of view and it cannot besubject to microscopic and pedantic scrutiny .The accused must be bona fide fear that death or grievous hurt would otherwise be theconsequence of the assault if he done not defend. It is not essential that actual injuryshould be caused by the aggressor or the victim before the right of self defense can beavailed of. Person apprehending danger is not required to wait for sustaining injury.Mere apprehension is sufficient to exercise his right of private defense. Exception of Right to Private DefenseRight to private defense not available to aggressors. There is no right to private defense can be claimed by the aggressors. It is availableagainst any offense and therefore, where an act is done in exercise of the right of private defense, such act cannot rise to any right of private defense in favor of theaggressor in return. Chacko v/s state of kerala.Quantum of injuries: If a person exercising the right of private defense has the better of the aggressor,provided he does not exceed his right because the movement he exceeds it he commits IPC Page 15 and offense. The injuries given to the aggressor by the accused must be inpropositioned the assault. Free fight: There is no defense available of right of private defense when there is a free fight between two parties or individual, one another using unlawful force against eachother. Both the sides mean to fight from the start. And they have the same intention togive the injuries to other.No right of private defense available in the following condition also: •Against lawful acts. •Unlawful assembly.Case Laws. Vishwantha v/s Stateof UP AIR 1960 SC 67 SC held that appellant had the right of private defense of person under the fifth clauseof s.100 IPc and did not cause more harm than was necessary and acquitted theappellant. State of UP v/s Zalim and other. SC held that mere apprehension of death is not the ground of right to private defense. State of UP v/s Chattur sing Hon’ble court held that accused intention and premeditated notion to murder is clearand accused is liable to be convicted to be murder.Conclusion:Right to private defense is essentially a defensive right circumscribed by the IPC and it is available only when the circumstances clearly justify it. It is exercised only to repelunlawful aggression and to punish the aggressor for the offence committed by him. It isbasically preventive in nature and not punitive. It is neither a right of aggression nor areprisal. Its exercise cannot be vindictive or malicious. Discuss the conditions where culpable homocide does not amount to murder.orDiscuss the law relating to grave and sudden provocation as laid down in IPC andstate the extent to which it mitigates the responsibility of the accused for theoffence of murder. Refer to case law to write your answer.Is grave and sudden provocation’’ a defense to charge of murder? If so underwhat circumstances and to what extent?Culpable homicide is genus, but murder is its species. Elucidate?Discuss the theory of grave and sudden provocation, and explain how it affectsthe liability for culpable homicide not amounting to murder. Ans- Chapter XVI- section 299 to 304 dealt with culpable homicide and murder. Whoever causes death by doing an act with the intention of causing death, orwith the intention of causing such bodily injury as is likely to cause death, orwith the knowledge that he is likely by such act to cause death, commits theoffence of culpable homicide.Ingredients of S.299 1.With the Intention to causing death. 2. With the intention of causing such bodily injuryas is likely to causedeath .3.With the knowledge that the offence likely by such act to cause death .Section 299 defined Culpable Homicide in simple way. Culpable homicide are of twokinds:I. Culpable homicide amounting to murder. II.Culpable homicide not amounting to murder. Culpable homicide is the Genus, and murder is the Species. All murder are culpablehomicide but not vice-versa, it has be held in Nara singh Challan v/s Sate of Orrisa(1997). Section 299 cannot be taken to be definition of culpable homicide not IPC Page 17amounting to murder. Culpable homicide is the genus, section 300 defines murderwhich means murder is the species of culpable homicide. It is to be noted here that culpable homicide not amounting to murder is not defined separately in IPC, it isdefined as part of Murder in the section 300 of IPC. Section 300 – Except in the cases hereinafter excepted, culpable homicide ismurder, if the act by which the death is caused is done with the intention of causing death, orCulpable Homicide is not amounting to murder:Exception 1 to 5 of s300 of IPC defines conditions when culpable Homicide is not amounting to murder:I. Provocation.II. Right of private defense.III. Public servant exceeding his power.IV. Sudden fight.V. Consent.Exception-1- culpable homicide is not amounting to murder if the offender, whilst deprive of self control by grave and sudden provocation , caused the death of theperson who gave the provocation or causes the death of any person by mistake oraccident. The above exception is subject to the following provisions:-1. The provocation is not sought or voluntarily provoked by the offender asan excuse for killing or doing harm to any person.2. The provocation is not given by anything done in obedience to the law, orby a public servant in the lawful exercise of the powers of such publicservant. 3.The provocation is not given by anything done in the lawful exercise of theright of private defense.Provocation must be grave: upheld in Venkatesan v/s State of Tamil Nadu(1997) 1.The test of grave and sudden provocation is whether a reasonable men belongingto the same class of society as the accused, placed in the situation in which theaccused was placed would be so provoked as to loss his self control.2. In India words and gestures may also, under certain circumstances, cause graveand sudden provocation.3. The mental background created by the previous act of the victim may be takeninto consideration in ascertaining whether the subsequent act caused grave andsudden provocation for committing the offence. IPC Page 18 Illustrations:1.Y” gives a grave and sudden provocation to A. A on this provocation fires apistol at Y” neither intending nor knowing himself to be likely to kill Z, who isnear him, but out of sight. A kills Z. Here A has not amounting to murder, but merely culpable homicide.2. A attempts to pull Z’s nose, in the exercise of private defense, lays hold of A toprevent him from doing so. A is moved to sudden and violent passing inconsequence kills Z. this is murder, in as much as the provocation was given by a thin done in exercise of the right of private defense. Exceptions-2- Culpable homicide is not amounting to murder if the offender, in the exercise in good faith of the right of private defense of person or property,exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defense without premeditation, and without anyintention of doing more harm than is necessary for the purpose of such defense. Illustration-Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. Adraws out a pistol. Z persists in the assault. A believing in good faith that he can by noother means prevent himself from being horsewhipped shoots z dead. A has not committed murder but only culpable homicide. Exceptions 3.- Culpable homicide is not murder if the offender, being a publicservant, or aiding a public servant acting for the advancement of public justiceexceeds the powers given to him by law , and caused death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of this duty assuch public servant and without ill will towards the person whose deaths is caused. Exceptions 4-Culpable homicide is not amounting to murder if it is committedwithout premeditation in a sudden fight in the heat of passion upon a suddenquarrel and without the offender having taken undue advantage or acted in a cruel orunusual manner. Explanation-it is immaterial in such cases which party offers the provocation orcommits the first assault. Exceptions- 5-culpable homicide is not amounting to murder when the murderwhose death is caused, being above the age of 18 years, suffers death or take the risk of death with his own consent .Scope – In Raghunath v/s State of Haryana AIR 2003 SC 165, Sc held that – It is no well settled principle of law that if two views are possible, one in favor of theaccused and the other adversely against it, the view favoring the accused must be IPC Page 19 accepted.Culpable homicide amounting to murderSection 300 also defines the circumstance when culpable homicide turn into murderwhich is punishes u/s 302. Under following 4 circumstances: Intention to causing death- I.Culpable homicide turn into murder if the act by which the deaths is caused isdone with the Intention of Causing death Or II.If an act done with the intention of causing such bodily injuryas the offenderknows to be likely to cause the death of the person to whom the harm iscaused, Or III.If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary courseof nature to cause death, Or IV.If the person committing the act knows that it is so imminently dangerousthat it must, in all probability, cause death or such bodily injury as is likelyto cause death, and commits such act without any excuse for incurring the risk of causing deaths or such injury as aforesaid. Illustration A,knows that Z is suffering such a disease that a blow is likely to cause his death,strike him with the intention of causing bodily injuries. Z dies in consequence of theblow. A is guilty of murder, although the blow might not have been sufficient in theordinary course of nature to cause the death of a person in a sound state of health.But if A, knowing that Z is laboring under any disease, gives him such a blow as wouldnot in the ordinary course of nature kill a person in a sound state of health, here Aalthough he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature wouldcause death.A without any excuse fires loaded cannon into a crowd of person and kills one of them. A is guild of murder, although he may not have had a premeditated design to killany particular individual.In State of Rajashtan v/s Dhool Singh AIR 2004 SC 1264 . SC held that –Culpablehomocide becomes murder if the attacker cause an injury which he knows islikely to cause death and, of course, consequent to such injury the victim shoulddie.Conclusion- IPC Page 20 The main element which is distinguish between murder and culpable homicide is Intention or in presence of a special mens rea. If death is the most likely result of an act , it will be murder. If death is the like l y result of an act , it will be culpable homicide not amounting to murder. What is abetment? What are various methods by which abetment is possible? Ans-Chapter V, section S 107 to 120, relating with Abetment.When several person s take part in the commission of an offence, each one of themmay contribute in a manner and degree different from the others to the commission of it. The offence may be committed by the hands of one person at the instigation of another person, while some other may only be present for offering help at the time of commission of it, and still others may help the principal culprit in procuring the tolls. It is necessary, therefore, to mark the nature and degree of participation of each of thepersons to determine their degree of culpability. However several gradations of actiondo not necessarily imply different measures of guilt with a view to distinctions inpunishment.In English Law, differently treat the principle offender who may be of first degree andaccessories who may be second degree. IPC- The Indian penal code makes a brad distinction between principals and abettorsbut does not recognize the accessory after the fact except that offenders has been madea substantive offence in some cases.Under IPC abetment is constituted in the following ways: 1.Instigating. 2.Engaging 3.Aiding Instigating-Means the act of inciting another to do a wrongful act. One may abet thecommission of an offence by counseling, suggestions, encouraging, pouring orcommanding another to do an act.In order to constitute abetment by instigationsome active proceeding towards the preparation of the crime is necessary. Toinstigate means to actively suggest or stimulate by any means or language, direct orindirect, whether it take the form of express solicitation or of hints, insinuation orencouragement, or to provoke, incite, urge or encourage to do an act. Any form of language may be used but there must be reasonable certainty in regard to the meaningof the words which an inciter may use.Illus- IPC Page 21 A and B discovering that C intended to commit theft in Z’s house. Arrange together topersuade him to steal there from certain articles form them. Here A and B will be liablefor abetment and C for theft. Mere acquiescence, silent assent or verbal permission would not constituteinstigation. A tells B that he intends to murder C,B says do as you like , A kills C, here B cannot besaid to have instigated.Reason- it was meant actively to suggest or stimulate the commission of an offence. Willful misrepresentation or Concealment: Explanation I of section 107 of IPC says that instigation may be constituted of willfulmisrepresentation or willful concealment of a material fact by one who is bound todisclose it. Instigation by Letter: Instigation may be direct or it may be by a letter. Where Awrites a letter to B instigating thereby to murder C, the offence of abetment byinstigation is completed as soon as the contents of the letter become know to B. if theletter never reaches B, it is only an attempt to abet but not abetment. Abetment by Engaging Abetment by conspiracy: abetment of conspiracy consist when two or more personengage in a conspiracy for doing a thing which is illegal thing or act or illegal omission.Thus in order to constituted abetment by conspiracy following conditions must bethere:1. A conspiracy between two or more person.2.An act or illegal omission may take place of that conspiracy.Conspiracy means an agreement between two or more persons:To do an illegal act orTo do an act which is not illegal by illegal means.Thus clause II of section 107 of IPC, is a mere combination of person or agreement isnot enough , an act or illegal omission must also take place in pursuance of theconspiracy and the act or illegal omission must also be in order to the doing of thething agreed upon between them.But for an offence u/s 120A a mere agreement is enough, if the agreement is to commit an offence.Clause 2 has to be read together with Explanation 5 of section 108, which provides that it is not necessary to the commission of the offence of abetment by conspiracy that theabettor should concert the offence with the person who commit it. It would be IPC Page 22 sufficient if he engages in the conspiracy in pursuance of which the offence iscommitted. Conviction for conspiracy- No person can be convicted for conspiracy, if the charge against all other conspiratorshas failed, or if other alleged conspirators are acquitted. Abetment by Aid- A person abets the doing of a thing who intentionally aids, by any act or illegalomission, the doing of that thing.It would be clear if we read clause 3 of s107 with explanation 2, that a person cannot be held guilty of aiding the doing of an act when the act has not been done at all.Mere intention to facilitate, is not sufficient to constitute abetment, unless the act which it is intended to facilitate actually take place.Illustration-A servant keeps open the gate of his master’s house, so that thieves may come, andthieves do not come. But the servant intended and informed thieves the door is openand they can come, he would be held liable for abetment. Mere giving of aid- A mere giving of help is not amount of abetment, until the personwho provides the aid does not know that an offence was being committed orconstituted.Illustration-A wanted to kill B, he perused C to call B, C calls B and B is murdered, here C providethe aid, but he did not know that A wanted to kill B. So he would not be held liable forabetment. Mere presence does not amount to aiding- Mere presence at the commission of an office done not amount to intentional aid,unless it was intended to have that effect., and the present aware that an offence isabout to be committed an office, or he actively support or present hold some position,authority, or rank in committing the offence. Aid by illegal omission- When law impose a duty on someone and he intentionally for adding some one in anillegal, failed to discharge his duty he shall be liable for abetment. IPC Page 23 Q-Define wrongful restraint and wrongful confinement and distinguish betweenthe two.Section 339. Wrongful restraint Whoever voluntarily obstructs any person so as to prevent that person fromproceeding in any direction in which that person has right to proceed, is saidwrongfully to restrain that person.Wrongful restraint means preventing a person from going to a place where he has aright to go. In wrongful confinement, a person is kept within certain limits out of whichhe wishes to go and has a right to go. In wrongful restraint, a person is prevented fromproceeding in some particular direction though free to go elsewhere. In wrongfulconfinement, there is restraint from proceeding in all directions beyond a certain area.One may even be wrongfully confined in one's own country where by a threat issued toa person prevents him from leaving the shores of his land. Object – The object of this section is to protect the freedom of a person to utilize hisright to pass in his. The slightest unlawful obstruction is deemed as wrongful restraint.Physical obstruction is not necessary always. Even by mere words constitute offenceunder this section. The main ingredient of this section is that when a person obstructsanother by causing it to appear to that other that it is impossible difficult or dangerousto proceeds as well as by causing it actually to be impossible, difficult or dangerous forthat to proceeds. Ingredients: 1.An obstruction. 2.Obstruction prevented complainant from proceeding in any direction.Obstruction:- IPC Page 24 Obstruction mans physical obstruction, though it may cause by physical force or by theuse of menaces or threats. When such obstruction is wrongful it becomes the wrongfulrestraint. For a wrongful restraint it is necessary that one person must obstruct another voluntarily.In simple word it means keeping a person out of the place where his wishes to, and hasa right to be. This offence is completed if one’s freedom of movement is suspended by an act of another done voluntarily.Restraint necessarily implies abridgment of the liberty of a person against hiswill. What is require under this section is obstruction to free movement of a person, themethod used for such obstruction is immaterial. Use of physical force for causing suchobstruction is not necessary. Normally a verbal prohibition or remonstrance does not amount to obstruction, but in certain circumstances it may be caused by threat or bymere words. Effect of such word upon the mind of the person obstructed is moreimportant than the method.Obstruction of personal liberty: Personal liberty of a person must be obstructed. A person means a human being, herethe question arises whether a child of a tender age who cannot walk of his own legscould also be the subject of restraint was raised in Mahendra Nath Chakarvarty v.Emperor. It was held that the section is not confined to only such person who canwalk on his own legs or can move by physical means within his own power. It wasfurther said that if only those who can move by physical means within their ownpower are to be treated as person who wishes to proceed then the position wouldbecome absurd in case of paralytic or sick who on account of his sickness cannot move.Another points that needs our attention here is whether obstruction to vehicle seatedwith passengers would amount to wrongful restraint or not.An interesting judgment of our Bombay High Court in Emperor v. Ramlala : "Where,therefore a driver of a bus makes his bus stand across a road in such a manner, as toprevent another bus coming from behind to proceed further, he is guilty of an offenceunder Sec. 341 of the Penal Code of wrongfully restraining the driver and passengersof another bus"."It is absurd to say that because the driver and the passengers of the other bus couldhave got down from that bus and walked away in different directions, or even gone inthat bus to different destinations, in reverse directions, there was therefore nowrongful restraint" is the judgment of our High Court which is applicable to ourbusmen who suddenly park the buses across the roads showing their protest on someissues.Illustrations- IPC Page 25 I.A was on the roof of a house. B removes the ladder and thereby detains A on theroof. II.A and B were co-ower of a well. A prevented B from taking out water from thewell .Section 340. Wrongful confinement. Whoever wrongfully restrains any person in such a manner as to prevent that personfrom proceedings beyond certain circumscribing limits, is said "wrongfully to confine"that person. Object –The object of this section is to protect the freedom of a person where his personal liberty has totally suspended or abolish, by voluntarily act done by another. Ingredients: I.Wrongful confinement of person. 1.Wrongful restraint of a person 2.Such restraint must prevent that person from proceeding beyond certainlimits.Prevent from proceedings: Wrongful confinement is a kind of wrongful restraint, in which a person kept withinthe limits out which he wishes to go, and has right to go.There must be total restraint of a personal liberty, and not merely a partial restraint toconstitute confinement.For wrongful confinement proof of actual physical obstruction is not essential. Circumscribing Limits: Wrongful confinement means the notion of restraint within some limits defined by awill or power exterior to our own. Moral force: Detention through the excise of moral force, without theaccomplishment of physical force is sufficient to constituted this section. Base Section339- Restraint Section 340-Confinement Degree of Offense Wrongful restraint is not aserious offence, and thedegree of this offense iscomparatively lees thenconfinement.Wrongful confinement is aserious offence, and thedegree of this offense iscomparatively intensivethen restraint. Principle element Voluntarily wrongfulobstruction of a personpersonal liberty, where heVoluntarily wrongfullyrestraint a person wherehe wishes to, and he has a IPC Page 26 wishes to, and he have aright to.right to, within acircumscribing limits. Personal liberty It is a partial restraint of the personal liberty of aperson. A person isrestraint is free to moveanywhere other than toproceed in a partialdirection.it is a absolute or totalrestraint or obstruction of a personal liberty. Nature Confinement implieswrongful restraint.Wrongful confinement not implies vice-versa. Necessity No limits or boundaries arerequiredCertain circumscribinglimits or boundariesrequires. Conclusion — persuasion is not obstruction, physical presence, for obstruction is not necessary, reasonable apprehension of force is sufficient, restraint implies will anddesire are some of the salient features of such decisions. Q- Define kidnapping and abduction and distinguish between them are theycontinuing offences.