IPC - Dr. Sharanjit.

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IPC - Semester 5

Dr. Sharanjit

Introduction to the Subject:


The magnitude of crime changes with the passage of time even though it has been a part of the
society for a long period now.
Crime has to be differentiated from a tort.
Tort is a civil wrong where the victim can claim liquidated damages from the wrongdoer.
Crime falls in the category of criminal wrongs.
It is a wrong against the state and the society, whereas a tort is a wrong against a person.
A crime is an unlawful act and is punishable by state or some other authority.
A crime is different from a moral wrong, the latter may or may not be punishable by the state or
some other authority.
Historical Background of Crime and Punishment:

In the primitive society, law of the nature prevailed, it was the survival of the fittest.
“Eye for an eye” , was how the punishment was determined, there was no authority or legal system.
With the passage of time, the humanity started realizing the need for an organised mechanism
where the punishment could be determined in accordance with the crime committed.
This is how the system of the state emerged.
Law is the command of the sovereign, and the people used to obey the command because the
ruler was duty-bound to protect the lives and rights of the people.
The system of punishment in those times was retributive and not reformative.
The punishments were highly inhumane for the wrongdoers.
A school of thought was prevalent which looked at the wrongdoer as an evil spirit that had to be put
down with hard punishments.
Gradually, the responsibility to give punishments was given to the state, but still the punishments
were not proportionate to the crime.

Research started taking place to determine the factors behind the commission of a crime.
The concepts of Mens-rea and Mens-actus emerged.
Significant work was done by the army doctors who would study samples of the soldiers and
prisoners to understand their mindset behind the crime.
The compartment of anger and revenge were prevalent in most of the criminals.
This research had an important role in the emergence of penology since the crime was being
rationalised.
This eventually helped in determining punishments proportionate to the crime.
Historical Background of IPC:

The criminal justice system can be categorized into Hindu criminal law, Muslim criminal law and
English Criminal law.
Hindu criminal law: Manu gave a complete record on for Hindu criminal law.
Muslim criminal law: the concepts of blood money, retribution, etc emerged.
The British faced a lot of problems in applying the criminal law since India was a diverse country.
The British rulers tried making uniform laws, for example, IPC 1860, first law commission of 1834,
transfer of property act 1882, etc.
The law commission was given the task of drafting a uniform substantive law for the entire country,
and IPC was made.

Even though IPC is one of the most unique and spectacular legislations, it does have its grey areas.
One of the major loopholes is the amount of fines mentioned in the IPC.
The amounts fined for certain acts are not proportionate to the crimes committed, they need to be
revised in accordance with the present times.
In the second chapter of IPC, section 10 defines man and a woman, but the transgenders are not
defined, and this is the next major loophole.
The repercussion of this loophole is that since law has not taken transgenders into account, they lose
their remedies in the IPC.
In section 375, rape is defined taking into consideration on a man and a woman, against the
transgenders have not been taken into account.
Co-Relation Between IPC and Criminology, Penology, Victimology:

In the IPC, the law makers have given maximum punishment, and determination of the punishment
is left to the judiciary to decide.
In section 417, anyone who cheats, is either fined, or is imprisoned for a duration of one year.
Herein, one year is the maximum duration of time, and intensity of the imprisonment is also not
defined, these are then left up to the judiciary to decide.
Module-2

Introduction:

Crime is the combination of both actusrea and mensrea.


Acting on the malicious intent is what constitutes a crime.
Acting without the intent or merely intending to do harm without acting on it does not constitute an
offence.
In a recent case the judiciary dismissed the plea of a sexually harassed child by saying that since
there was no skin-to-skin contact, it was not a crime.
If this judgement was not taken up by the apex court, then this example would have had serious
repercussions since sexual crimes would have had been encouraged.
In another case, a transgender was raped and the court did not put it under section 375 since rape
can be done to or by only a man or a woman.
Looking at these examples, it is mandatory that certain provisions of the Indian criminal legal
system are changed in accordance with the current situation.
Laws need to change with the changing times.
Section 299 talks about culpable homicide and section 300 talks about murder, these are put in
different sections since the concept of mensrea in both differs.
The consequence of both culpable homicide and murder is death.
From section 96 to section 106, the IPC talks about right of private defence.
A girl kills a person who trespasses into her home to commit rape, herein, the court observed that
the girl had a right to private defence, but she exceeded the right since she had a family member in
the adjoining section of the house, therefore, this case is put under the ambit of section 299.
The courts have taken a little relaxed approach whenever a sudden fight or incident happens and
they put in under section 299 rather than under section 300.
Chapter 4 - General Exceptions:

Mensrea is one of the most important essentials of committing a crime.


Until or unless intention and knowledge are present in a case, the person is not said to have been
committed a crime.
Death penalty was pronounced for the Nithari killings accused.
The nature of crime determines the punishment or the benefit of the doubt has to be given.
The mental element in the crime has to be present to call it a crime.
The person should understand the consequences and nature of the crime that he commits.
The burden of proof is on the state if the person does not take the defence of a general exception, in
that case the accused will have to prove the claim.
Section 304B deals with dowery death wherein, if a woman dies mysteriously within 7 years of
her marriage, then the burden to prove the innocence is on the husband.
Section 76 provides that when there is a mistake of fact and good faith, then it will not be a crime.
The term good faith is defined under section 52.
Mistake of fact can be an excuse, but mistake of law is no excuse.
Mistake law is not an excuse because it is not only important for the Indians to know the law of the
Indian land, but it is also important in cases where mistake of law is not considered as a valid
defence.
NDPS act of 1985 is a stringent law which strictly prohibits the defence or excuse of mistake of law
in India.
In one of the cases, in the down south part of India, a German was running an orphanage and under
the guise of that orphanage, the person was sexually violating the kids. Once he was caught, he ran
to Germany and India sought extradition so that the accused could be punished according to the
Indian laws since the crime took place in the territory of India. However, there do exist loopholes in
the system when the laws on two countries, like in this case the conflict of laws between India and
German, there is no solution. A situation may arise wherein Germany may not have death penalty in
its criminal law and Indian law pronounces death penalty for the German.
Section 77 provides that nothing is an offence by a judge who is acting judicially.
It is the judges who are to ensure the right application of the laws.
If the judge is affray of getting charged under criminal law due to political corruptions, then the
judicial activity will get corrupted as well.
The judge is supposed to give justice and therefore he can not be said to have been committed a
crime once a judgement is passed in accordance with the evidences presented before the court.
the judge has to take into consideration various factors while practicing the discretionary power of
deciding the quatom of punishment.
Even though the principles of rarest or rare and others have been introduced in cases of death
realties, yet again the judge has a lot of discretionary powers herein to either give life imprisonment
or death penalty.
Dhananjay Chatterji case; a security guard was given an extreme punishment of death. Before the
execution he kept on saying that if he had been from a rich family, then he would not have been
punished with death sentence, till the end he kept on denying the accusations charged against him.
In this case as well, the judge had huge discretionary power to either apply rarest of rare principle in
order to give a death penalty, or to apply life imprisonment.
Jesica Lal murder case; the victim here had died and there was no appropriate sentencing policy
herein, and the judge had complete discretion. The sentence of the accused was commuted under
section 433.
Section 80:

Section 80 provides for unlawful act done accidentally.


Accident is something unexpected and unintentional.
Nothing is an offence which is done by accident, act done without criminal intention, and while
performing a lawful act in a lawful manner.
Example: damaging someone’s property while a football match is not an offence since it can be a
case of accident while playing a lawful game in a lawful manner without the intention or knowledge
of harming.
Hamilton Fraser and Company v. Pandorf and Company; it was held that an effect is said to have
been accidental when the act is not done with the intention of causing it and the occurrence of the
act is not probable enough for a prudent person to foresee it.
Plea of accident can not be taken in a hit&run case since it comes under death by negligence under
section 304A of the IPC.
Example: a car driver hits someone while driving rashly and negligently, and drives off without
helping out the person that he injured, herein, the knowledge of the negligent act done is present, so
is the fact that the person might be fatally hit, therefore it does not come under the ambit of section
80.
King Emperor v. Timmappa, 1901; A and B went for hunting and agreed to take different positions
to wait for the prey. After a few minutes, A heard a rustle and believing it to be an animal, shot in
the direction from where the sound came, the shot killed B. The court held that A was protected
under section 80 since it was a pure accident.
State of MP v. Digvijay, 1979; the accused pleaded the case of accident in prosecution of causing
death of his wife. There was no evidence to prove that the death was caused by accident since the
wife was killed by a gunshot while the couple was engaged in a scuffle. The court denied the
defence of accidental act under section 80.
Mahadev v. State of Madhya Pradesh, 2006; the stearing wheel of a vehicle suddenly broke down
and as a result a person was hit and killed. Herein, the driver was protected under section 80 since
the happening occurred only because of the steering wheel breaking down.
Jadeshwar v. Emperor, 1923; A and B were fighting an a lady carrying an infant tried to intervene,
A aimed a blow at the woman but accidentally hit the infant and the infant died. Since the
knowledge of harm was present, and the fight with B was unlawful, the plea to take the defence of
accident is not given.
Section 81:

Act likely to harm, but done without criminal intent and done to prevent some other harm.
It is also referred to as the defence of necessity.
Nothing is an offence if it is done with the knowledge that it is likely to cause harm, and it is done
without criminal intent, and is done in good faith to prevent other harm.
In both sections 80 and 81, the criminal intention is absent, but knowledge of harming is present in
section 81.
Example: a fire broke out in a coaching and many kids died in the fire, the teacher pushes the
children out of the window since the staircase can not be used due to the fire, some kids acquire
small injuries by hitting the ground, herein, section 81 protects the teacher even though he had the
knowledge of injuring the kids, because had he not pushed the kids out of the window, they would
have been perished by the fire.
R v. Dudely and Stephens, 1884; Dudely, Steaphens and Brooks were on the sea and there was a 17
year old boy with them. After the ship wreck, they were left on the sea and on the expiry of 7 days,
Dudely and Steaphens killed the boy to satisfy their hunger by feeding on the boy’s flesh. Once they
were rescued, they took the plea of defence of necessity. The court could not find any justification
for the necessity and they were charged for canobalism and man slaughter, and were imprisoned for
6 months. In this case, the killing was not excused by the defence of necessity. The absolute divorce
of law from morality has dire consequences and therefore necessity is not a justified defence for
murdering the boy. The weakest of the 4 was chosen to be killed, and the prisoner’s’ act was
therefore wilful.
Principles laid down: (I) self-preservation is a duty, but self-sacrifice is a higher duty imposed on
the man, (II) self-preservation is not an absolute duty, (III) all human lives are equal in value and as
such it is unjustified to take another’s life for self-preservation, (IV) the defence of necessity is not
available to an accused who has been charged for wilful murder.
Necessitas Vincit Legem, it means necessity overcomes the law.
Dhania v. Emperor, 1868; the accused put poison in his toddy pots in order to capture a thief. Some
soldiers drank the toddy purchased by some vender. The accused took the plea of necessity since
the poison was to capture an unknown thief. It was held that the accused was liable under section
328 and the defence of necessity was not upheld.
R v. Hyckins, 1879; An infectious disease hospital was on fire and to save the patients, they were
taken into the crowd. Although, some of the crowd was to be infected of the disease, the hospital
was not liable since there was no intention to cause any harm.
R v. Rose, 1884; the accused shot and killed his father who was trying to slit the throat of the
former’s mother. It could not be proved that the father possessed a knife in his hand when he was
shot by his son. The court held the son liable for man slaughter since the the knife in the hand of the
father’s was not proved.
Sir JD Mynne in his book ‘Criminal Law of India’ observed that Section 81 is intended to give
legislative sanction to principle to where in an emergency, one or the other evil is inevitable, it is
lawful to let the smaller one to happen.
Sections 82 and 83:

Where section 82 provides for absolute immunity from liability, section 83 provides for limited
immunity from liability.
Section 82 deals with the act of a child under 7 years of age.
Nothing is an offence done by a child of under 7 years of age.
Section 83 says nothing is an offence done by a child above 7 years of age and under 12 years of
age if he has not obtained sufficient maturity.
Doli Incapax means incapable of doing harm, it means that a child under the age of 7 is unaware of
the consequences of his act, and therefore such child cannot be held liable.
Section 83 says that liability arises only when at the time of the crime the child was aware of the
implications of his act, that is, if the mensrea was there in the child below 12 years of age.
Section 82 is based on the principle that after the notion that moral delinquency is a pre-requisite to
criminal liability and therefore very young children cannot be held liable, children below the age of
7 years and not 12.
Blackstone had said that infancy is a defect of the mind and infants under no discretion are not to be
held liable under any criminal prosecution.
As far as different countries are concerned, such immunity for children varies, for example, in
Canada, a child under 7 years is completely immune from criminal prosecution and in Germany the
child has to be below the age of 14 years for being immune from the criminal liability, etc.
There are different legislations to take care of juvenile delinquents, in India the very first legislation
was the Juvenile Justice Act wherein a juvenile is referred to a criminal under the age of 18.
After the Nirbhaya case, however, an amendment was done in 2015 wherein any person below the
age of 18 and above 16, who has committed a heinous crime, then such person is to be punished as
an adult would be.
Shakti Mills gang rape case;
The present laws dealing with juvenile delinquents have been made stricter due to an increase in
such delinquency and the increasing intensity of the crimes.
The juvenile involved in the Nirbhaya case was sent to a reformatory home and he could not be
punished like the adults because the law at that time was not retrospective, it was reformative.
Malatia Atatem is the maxim on which sections 82 and 83 are based on.
the principle behind sections 82 and 83 is, younger the child is, lesser is the possibility of being
corrupt.
As the age advances, the maxim loses force.
Hiralal Malik v. State of Bihar, 1877; the court held that child before 7 years of age is completely
immune from the liability, and the child between the age of 7 and 12 years maybe a possible
criminal, pertaining to his/her level maturity.
R. v. Gauri; a child between the age of 10 and 14 is rebuttally presumed incapable of committing an
offence, if the prosecution proves that the child had a mischievous discretion.
C. v. Director of Public Prosecutions; the house of lords held that presumption that a child ageing
between 10 and 14 is rebuttably presumed that the child knew that he was committing a crime, the
evidence of the prosecution could not prove the mischievous discretion of the child and therefore he
was held liable. The ape apparent observed that the damage to the vehicle was substantially
technical and can not be considered merely mischievous discretion, the fact that the child ran after
noticing the cops also ruled out his immunity from the liability.
Under the IPC, a child of 12 years of age attains full level of maturity in regards to the
righteousness and wrongfulness of his/her act.
Arvind Singh v. State of Bihar, 2000; the accused was 13 years old and the court found his guilty
along with other adult accused of the offence under the arms act of 1949. The Supreme Court
sustained the liability of the 13-year-old after referring to the Bholanath v. State of Bihar
judgement, and set aside his sentence. Setting aside the sentence of the 13-year-old was done so as
to not restrict the young in so harsh an environment, and therefore a probationary procedure was
created for such juveniles.
Section 84:

Section 84 deals with defence of unsoundness of mind.


Nothing is an offence which is done by a person who at the time of doing it, due to the unsoundness
of mind could not determine whether or not his act was wrong in nature.
The principle behind section 84 is that the defence of unsoundness of mind is available for a
criminal charge, because if a person is of unsound mind, then such offender lacks the mental
element.
One who is insane has no mind and hence can not have the necessary mensrea.
Furorousis Nulla Volenta Est, meaning, a mad man is like one who is absent.
Furoousis furore Sui Punier, meaning, a mad man is punished by his own madness.
the courts can not punish a person who has committed a crime if he is of unsound mind, but at the
same time, the society has to be protected against the attacks of such unsound people.
A provision has bene made under section 330 of CRPC, providing that offenders with unsound
mind are to be sent to special institutions for their care and protection.
The legal concept of insanity differs from that of the medical concept.
Legal insanity means, a person who is unsound from the perspective that he does not have the
understanding of the nature of his act, it excludes the instability of the mind due to emotional
reasons or any other that do not restrict the understanding of the person in regards to the rightness or
wrongfulness of his acts.
Insanity resulting from a fit of rage does not come under the ambit of section 84, or under the ambit
of legal insanity.
Manu Sharma v. Jesica lal; if the restriction to the defence of unsoundness of mind was not
available, then the killer would have easily taken up the defence provided under section 84, he
would have easily claimed insanity of mind as a result of intoxication if legal insanity did not
exclude such provocations from the ambit of section 84.
A large number of cases came before the English courts where the courts tried to find the factors
which would help them detect sanity and insanity.
The McNotons’s case gave the McNoton’s rules, a 15-judge bench gave these rules in this case of
1943 and it included the right and wrong test, or the reasonable man test to detect the sanity or
insanity of an accused.
Certain questions were enlisted which were to be pondered upon while resolving the case including
the insanity element.
To establish a defence on grounds of insanity, the accused must prove that at the time of the act, he
was labouring under such a defect of reason due to the state of the mind that he did not know what
he was doing was wrong.
Section 84 uses a comprehensive tone, the IPC uses the term unsoundness of the mind and not
insanity.
As stated by SS HUda in his book called “Principles of Laws of Crime in British India”, the term
unsoundness of mind has an advantage of not necessarily defining the term insanity.
It must be proved that at the tie of the act, the accused was Non-Compus Mentis, that is not of sane
mind.
The burden of proof is on the prosecutor, but in cases wherein the general exceptions including the
defences comes up, the burden of proof is reversed.
Section 84 provides for two tests to detect the unsoundness of mind, that is, the accused was
incapable of knowing the nature of the act, or the accused was polluted by the unsoundness of the
mind so much so that he could not know that the act that he was doing was wrong or against law.
Srikant Anandrao v. State of Maharashtra, 2002; the accused killed his wife by hitting on her head
with a stone when she was washing clothes. The man had a history of medical issues, also a report
on his mental issues was presented before the court by two medical experts. The accused takes the
defence under section 84 on grounds of his past psychiatry treatment. The court gave the accused
the benefit of section 84 since he did not try to run after the act and he did not try to hide the
weapon, the killing was done in day time.

Dayabhai Chaganbhai Thakkar v. State of Gujarat; the accused was charged with the murder of his
wife. While they were sleeping, the neighbours were woken up by the wife’s screaming, they found
her dead in the room with forty knife wounds, in the room which she was sharing with her husband.
At the trial court, the defence of section 84 was rejected since in the state to the police did not give
any indication of insanity of the accused, the high court supported the decision of the sessions court.

Ashiroddin Ahmad v. King, 1949; the accused had sacrificed his five-years old son and made a plea
that he was commanded by the divine forces to kill his son, then he went to his uncle and told him
the entire story. The Kalkota High Court held that the case of insanity was made out, to enable an
accused to take up the defence of section 84, it is necessary that the act was not known by the
accused to have been wrong, or against the law. Since the accused was seen to have been unaware
of the act being wrong, he was given the defence of unsound mind. However, there is still a
suspicion since the accused knew that he had to tell the story to his uncle secretively.

State of Madhya Pradesh v. Ehmadula; the accused was suffering from epileptic seizures, and one
night he went to his mother-in-law’s house and killed her by cutting her head with a knife, he hid
the torch that he had brought with himself along with the knife. The court held that the accused
must prove that at the time of the act, the accused was not of sane mind, the father confessed that he
had found the accused unconscious due to epileptic seizure the morning after the crime. However,
since the court could not find a conclusive evidence proving that the accused was not of sane mind
at the time of the crime, and therefore the defence of section 84 was not granted to the accused.
Also, the facts proved that the murder was planned, considering the torch, knife and the severed
head were hidden by the accused.
Section 85:

Act of a person incapable of judgement by reason of intoxication caused against his will.
A person may not have requisite criminal intention while committing an offence under the influence
of intoxicants.
Jessica Lal judgement; the accused takes a plea of intoxication. The defence of intoxication was not
granted to Manu Sharma herein because the intoxication was self-induced and was not involuntary.
He was charged for killing the girl from a close range when she refused to provide him with drinks
in accordance with the policies of the bar. The accused was given the sentence of life-imprisonment
and the sentence was subject to intense controversies since the public opinion was inclining towards
death penalty. The public opinion was against the idea that richness of a person should not influence
the sentencing policy especially the crime was a heinous and anti-social one.
The proviso in section 85 adds that the thing which intoxicated the person accused should have been
administered to him against his will or knowledge.
Some criminal intention is the basis of criminal liability and an intoxicated person is of the mental
condition same as an insane person is.
Dementia Offectatia is an expression wherein the function of the mind is temporally suspended.
Director of Public Prosecutor v. Beird; it was held that no one is permitted to wear the Cloke of
voluntary intoxication. The task of a judge in these cases is very hard since the decision has to be in
consonance with the evidence proving whether or not the person was involuntarily intoxicated.
Section 85 lays down a test to determine the involuntary or voluntary intoxication.
A man in order to claim exception on the ground of intoxication has to prove; (I) he was incapable
of knowing the nature of the act, (II) or he was not aware that what he was doing was contrary to
law, or (III) the thing that intoxicated him was administered without his knowledge or will.
M. Matthew v. State; it was held that the justification for such a proviso is based on the contention
that the accused had not volunteered himself for drunkness.
Section 86:

Offence requiring a particular intent committed by one who is intoxicated.


An offence does not result in criminal liability if the particular knowledge or intent for the act
committed was absent.
Person shall be liable if he had the knowledge or intent of the crime even if he was drunk, unless the
thing that intoxicated him was administered without his consent or knowledge.
A man who by his own voluntary act destroys his mental capacity is said to have been intoxicated
voluntarily.
Voluntary drunkess can not discharge the criminal liability, but impulse of the moment and lack of
pre-medidated act does exempt the person from liability.
One who sins while drunk should be punished when he is sober.
Intoxication is the result of a voluntary act, and he must be answerable to it, but the impulse of the
moment has to be considered, and so the involuntary intoxication.

Example; a man has consumed too much alcohol, takes out a knife, goes on the street and threatens
to kill A, but kills C who tried to pacify him. The man was not involuntarily intoxicated and he was
aware that he wanted to kill A with the knife so by-mistake killing C will not come under the ambit
of section 86.
Basdeb v. State of Pepsu, 1956; based was charged with the murder of a young boy. Based had
asked the boy to move aside for him to take a seat, when the boy did not move, Basdeb shot the boy
to death. The Supreme Court denied the defence of intoxication since a man voluntarily intoxicated
has the knowledge that a sober man would have in the situation.
The court laid down certain rules; (I) the absence of understanding the nature of an act, whether
produced by drunkness or otherwise is a defence to the crime charged, (II) the evidence of
intoxication should be considered with other facts, (III) the evidence falling short of incapacity to
intent necessary and merely establishing that his mind was not in a good state does not rebut that the
accused did not mean to commit the crime.
Dasakandha v. State of Odisha; the accused took the plea of intoxication and he said that his act of
murder should be considered as culpable homocide.
Sarthi v. State of Madhya Pradesh; three drunk accused let a person to go unconscious by reckless
and negligent driving. The intoxication gave the accused the benefit of intoxication under section
86.
Mubaraq Hussain v. State of Rajasthan, 2007; the court held that merely because 5 lives were taken
away does not lead to the defence of intoxication. The accused had killed his wife and three
daughters, and started shouting that he had killed all the bastards. He was sentenced under section
302, he was sentenced with death penalty because he had killed four minors and one major. It was a
case of rarest of rare, and that is why he was charged for murder and not for culpable homocide
despite the accused pleading for the defence of intoxication. The court held that the defence of
intoxication can be availed only when the intoxicated person does not have the criminal intent.
The court laid down certain principles; (I) evidence of intoxication is essential to constitute the
criminal liability, (II) the evidence falling short for the accused does not lead to the defence under
section 86.
Director of public prosecution v. Beird; the accused was charged for the murder of a thirteen -year
old girl and was sentenced the death penalty. On 25th July, the child was sent by her father to get
some things, later on she was seen entering the gate, Beird was on duty as watchman and he was
witnessed raping and killing the girl. The House of Lords held that the intoxication was not
voluntary, and the accused was made liable.
Section 87:

It talks about act not intended and not known to be harmful.


Herein, the mental element or Mens Rea is evidently absent.
The wrongdoer neither has the intention to cause hurt, nor does he know the hurtful nature of his
act.
Section 87 to 89 and section 89 talk about the consent as a general defence in a criminal charge.
Example; A is 19 years old and is consensually harmed by B. The defence of consent, however does
not apply to every case even if the consent is given by a person of age of majority. Committing an
act which is already an offence under law will not be exempted from liability even if the victim
consented to the hurt.
The courts have to take cognisance of the facts and circumstances of the case so as to prevent
defending a criminal along the lines of invalid consent.
Sections 87 to 88 and section 92 lay down rules to determine whether or not the consent is valid.

Example; A and B agree to play cricket, A plays fair, but B plays foully and hurts A in the process.
Herein, since B engaged in foul play where A was playing fairly, B will be held liable and will not
be given the defence of consent that A gave for playing.
Section 87 is a general defence of consent whereas sections 88, 89 and 92 have been enacted to
safeguard the person in specific cases.
Example; a doctor performs a surgery and before performing it, he informs the family that the
probability of the patient living is low. The patient dies during the surgery, but the doctor will not
be held liable under section 87 since the doctor did not intend to kill the patient, he had informed
the family about the probability of the patent dying.
Section 87 is based on the principle of exempting criminal liability where the person has given the
consent to the act by the best judge of his interest, a man voluntarily getting himself harmed can not
complain about it.
Section 87 states that consent given by a person above eighteen years for all acts done against
except for the ones intended to cause harm, will be exempted from criminal liability if the
consenting man should suffer from any harm.
It is important that the immunity will not justify causing death or any harm which is known by the
actor would lead to probable death.
Poonai Fattemah, 1869; the accused persuaded the deceased to get myself bitten from a snake,
claiming that he knew how to cure such poison. The bitter person died of the poison and the snake
charmer was held liable for culpable homocide. The consent by the deceased lead to the mitigation
of the criminal liability of the accused, instead of being charged for murder, he was held liable for
culpable homocide.
Consent can be either implied consent or expressed.
There is nowhere written in the section anything about the nature of the consent.
Section 87 does not extend to persons acting recklessly for unlawful gain.
Section 88:

Act not intending to cause death, done by consent and in good faith of the person’s benefit, will be
exempted from the criminal charge.
The main principle behind section 88 is to give immunity mainly to the medical workers like
doctors, etc.
The doer of the act must prove that the act was done in good faith or for the benefit of the person.
The doctor will have to prove that he acted for the benefit of the patient in case such act of his
caused serious harm to the patient.
GB Ghat v. Emperor, 1949; the Bombay high court held that the school teacher did no harm when
she hit the student with a cane since the student was guilty of misconduct in the class. The teacher
was protected under section 88 since he/she was delegated by the parents to keep the student in
discipline. However, the present situation has changed and the courts have said that the students are
not to be hit.
Section 89:

Act done in good faith for the benefit of a child or of an insane person will be exempted from
criminal charge.
Nothing which is done in good faith for gthe benefit of a person under 12 years of age or of
unsound mind or with the consent by the guardian will be charged for criminal conduct.
The principle of good faith acts favourably for mitigating the liability of the accused under section
89.
Intentional causing of death or attempting to cause death is not an exception of criminal liability
under this section.
Doing of anything which the person doing it knows to likely to cause death will not be an exception
to criminal liability under this section.
The section authorises the guardian of the child under 12 years or of person with unsound mind to
accord for an act which might harm the person victimised, provided that the act permitted by the
guardian and which harmed the victim was done in good faith.
The harm caused under section 89 should be for the benefit of the child or insane person for it to
be exempted from criminal liability, however, all such acts will not be exempted.
Example; if A in good faith kills his daughter intentionally so that she is not captured by the dacoits.
Herein, A will not be protected by section 89 since killing his daughter was intentional and
therefore he will not be covered under the ambit of the section even though the act was done in
good faith.
Section 90:

It deals with consent given under fear or apprehension.


If the consent is given by a person induced by fear or a misconception, is not a valid consent.
If the consent is given by a person who is unable to understand the implications of the consent, then
such consent would not be a valid consent.
A person of unsound mind, a child below the age of 12 years, are not the persons who can give
valid consent.
A consent discharges criminal liability is such consent is valid, therefore the concept of consent in
criminal law is an important one.
where consent has to be proved to be exempted from the criminal liability is given under sections
87, 88, and 89.
If the consent of the victim is proved, then the accused will not be held liable.
Herein, the consent has to be proved by the prosecution.
In cases of rape, theft, criminal force, etc. the consent of the victim has to be proved so as to defend
the accused against criminal liability.
Where thought the expression of consent is not used in the section, certain words like breech of
trust, etc. are used in criminal prosecution, and the in absence of the consent, the nature of the
offence changes.

Section 91:

The exceptions under sections 87, 88 and 89 do not apply to the acts which are offence independent
of the harm it caused or was supposed to cause, regardless of the consent.
An act of abortion is an offence in itself, and the matter of consent would not exempt the person
from liability.
Section 92:

Deals with act done in good faith without the consent.


It is different from the previous provisions since the consent is absent when the act is done in good
faith.
Nothing is an offence when an act is done in good faith and without the consent from the person in
whose benefit the act was done.
The first requirement os section 92 is that the act is done is in good faith, the second requirement is
that it was impossible to get the consent of the person.
The exception shall not extend to intentional causing of death, and shall not extend to the person
who knows that the act might cause death, and shall no extend to the case of abatement.
Section 92 is mainly extended to the situations of emergency, like performing urgent surgery
without waiting for the consent of the family.

Section 93:

Consent can be helpful in preventing a person from being punished but only when the act is done in
good faith.
An act would be a crime if it is of such nature even after procuring the consent.
The act has to be in good faith.
No communication made in good faith is an offence if it is made in the benefit of the person.
Example; A communicates his opinion to his patient B that he can not live. The patient dies in
consequence of shock. A will not be held liable even if he knew that the communication might
cause harm.
X v. Z hospital, 1999; the question before the court that whether the hospital will be liable if its
informing the patient about his disease caused his Fiance left him. The doctors were protected under
section 93 since the disclosure by the doctors was done in good faith. The court held that the
communication was made in good faith, it was made to protect the woman from the disease as
transferee by the patient.
Section 94:

Nothing is an offence when it is done by a person who was under threats.


A person who by his own accord joins a gang is not entitled to the defence under section 94.
A person ceased by outlaws and threatened with his life if he did not do what they said, is covered
under the ambit of section 94.
“an act done by me against my will is not my act”, is the principle behind section 94.
The acts of murder or waging war against the Indian government are not covered under the defence
of section 94 even if the person’s life is threatened.
The apprehension of threat must be reasonable and not be a delusion or which is voluntarily caught.
The threat must be of instant death.
Physical presence of the threat giver is also essential to avail the defence of section 94.

Section 95:

Act causing slight harm is not considered as an criminal offence under section 95.
If just slight harm is caused to a person, then law does not provide a criminal liability for the person
causing the harm.
In order to ease the burden of the courts, this section was incerted.
The section provides for an exemption from criminal liability when the harm is considered to be
innocent or slight.
Right to Private Defence:

Section 96 to 106 deal with the right of private defence.


Right to private defence is granted by law since the intention is absent.
The person acts against the law due to the need of the hour.
Every person has a right to protect himself/herself when a harm presents itself in the situation.
Protecting oneself is in the nature of the people when encountered by a dangerous situation.
The right of private defence is granted since the ratio of the authorities to the people is not favorable
and since the number of authorities is a handful, the people have a right to act for their defence.
It is important that the force that a person uses for private defence should be appropriate and
proportionate to the situation.
Bentham in his principles of penal law, page 269, stated that the vigilance of magistrates and not
override the vigilance of every individual in their own capacity, also, the fear of law does not stop
the man.
Russle said that a man can rightly resist force or commission of a known felony by his own person.
A killing in private defence I a justified killing, as iterated by Russel.
The Indian people are mostly submissive when encountered by dangerous situations, and therefore
IPC containing the right to private defence is important.
Essentials of Right to Private Defence:

It is important that the force used for private defence is not disproportionate to the danger that he is
facing.
Example; B tries to hit A with a stick, and A instead of restraining B, he strangulated and killed B in
the process. Herein, the force applied by A is disproportionate to B trying to hit A with a stick.
Imminent threat is one of the important essential to acquire the defence of private defence.
The situation should be such that there is reasonable apprehension of danger.
Example; A is working in the farm and he is approached by B who threatens A with thrashing if he
does not relinquish the farm to B. A gets back home and gathers his friends along with the weapons.
B visits A’s home and A along with his friends thrash B and kill him. A takes the plea of right to
private defence before the court. There is no imminent danger involved since B approaches A’s
home alone and A had the option to approach the authorities when B first threatened him.
Section 96:

Nothing is an offence when the act is done in the right of private defence, however, there exist
certain legal restrictions which are to be adhered to.
It is a high-priced right so that individuals can defend themselves against danger for which they do
not have sufficient time to approach the authority.
Whenever a person is faced with a danger and he goes a bit beyond the lawful limit, then the courts
should condone it.
Jagdeesh v. State of Rajasthan, 1979; the Supreme Court referred to sections 96 and 99 evolved
certain principles. (I) exercising defensive right by unlawful aggression, (II) section 105 of the
Indian evidence act provides for burden of proof on the accused pleading for right of private
defence, (III) preponderance of probabilities as given in a report by the Malimath committee in
2003, discharges the burden of proof on the accused, (IV) crucial factor in deterring whether the
right is available or not is determined by certain factors like nature of injuries, imminent threat to
the life of the accused, whether he had time to approach the authorities, (V) a plea of private
defence can not be based on speculations, (VI) when the private defence is pleaded, the defence
must be probable that satisfies the court about the importance of the act done, (VII) where in a
particular set of circumstances, the nature of the act of the accused is determined by question fact of
every case, (VIII) to determine the availability of right of private defence, the entire incident has to
be looked into vigilantly so as to determine the reasonability of the act done by the accused, (IX)
while considering the availability of private defence, it is not relevant to consider whether or not he
had time to give severe bodily harm to the other person, (X) the accused must show that there were
reasonable grounds for causing of death, (XI) the number of injuries is not always a safe criteria to
determine as to who was the aggressor, the defence has to establish that the injuries on the accused
called for the right of pirate defence.
Example; A and B are not on good terms. A starts fighting with B and causes severe bodily harm to
B. Then to protect himself, A inflicts self-harm and admits himself at the hospital. Later he files a
complaint that he was severely beaten up by B. Herein, the courts can not merely depend on the
injuries received by A, vigilant approach has to be adopted by the deciding authorities.
Ranbir Singh v. State of Madhya Pradesh, 2009; the court held that in a particular set of
circumstances, the accused acting on the situation has to be determined validated by the facts and
circumstances of each case.
The right of private defence commences as soon as reasonable apprehension of danger to a person
arises.
If four men start following a girl during night and as soon as she realises the imminent threat to her
safety, her right of private defence commences even if the act has not been committed just yet.
The right of private defence comes to an end the moment authorities are approached.
Jaydev v. State of Punjab; as soon as cause for reasonable apprehension of danger disappears and
the threat has been put to root, there is no reason for exercising private defence.
Boota Singh v. State of Punjab, 1971; the court said that a person apprehending danger, can not
exceed the proportionate force needed to defend itself. Consideration by the courts has to be taken
as to what a human mentality can cause in the spur of the moment danger.
Section 97:

The right of private defence of body and of private property.


Every person has the right to defend his moveable or immoveable property against wrongful acts
like trespass, etc.
Section 97 has to be studied with section 99, 97 is restricted by the provisions in section 99.
Section 97 grants the right to defend against harm to human body and against moveable or
immoveable property.
Theft, criminal trespass, robbery, etc. are certain specified offences against which the person has the
right to defend the property.
There must be an offence committed or attempted to be committed against the person pleading for
private defence or against any other person.
There has to be reasonable apprehension of injury or injury to person or property.
If a person is faced with a dangerous situation, then he can take an immediate action, but the force
exerted has to be proportionate to the danger.
The courts have to be very careful as to whether or not the act was an act of private defence.
The judges have to look at the entire incident to understand whether or not the sections of private
defence are to be applied.
The nature of the injury, facts of the case, nature of injury to the other person, nature of the act, etc.
are to be determined to apply the right to private defence.

Biran Singh v. State of Bihar, 1975; two of the accused having recited simple injuries, ran back to
their houses, and delivered a fatal blow on the head of the deceased. In this case, the injuries
received by the accused were simple, also, they did not act was not immediate, there was a common
intention on the spur of the moment to inflict serious harm to the deceased. Correlating with section
34, the common intention developed on the spur of the moment, and the court held that the
circumstances did not present the case of exercise of private defence.
The parts of the body inflicted by harm and the weapon used for the same also determine as to
whether or not the case was of private defence.

Dhaneshwar v. State of Odisha, 2006; it was held that in order to find out the availability of private
defence, the injuries received by the accused, the danger to his safety, the injuries cause by the
accused, and the time that the accused had to take help of the authorities are the factors to determine
the availability of right to private defence.
Defence of body and property, the right of private defence not only extends to ones own body and
property, but it extends to the body and property of some other person.
English law says that for committing an act for defending some other person or that other person’s
property, then there has to be a relation between the person being endangered and the person
defending him.
Reg v. Rose, 1884; the accused a body of 21 years was charged for murdering his father, he pleaded
for the right to private defence. The accused was living with his parents and the relations between
his parents were strained, on the night of the incident, there was a quarrel between the couple. The
mother started shouting “murder, murder”, and the father dragged her to the top of the staircase,
threatening her with a knife. The boy shot his father and killed him, pleading for private defence
since there was imminent danger to the life of his mother. The jury gave the decision of the boy not
being guilty, the court said that the boy at the time believed that the life of his mother was in danger
and the gunshot was necessary.
The aggressor can not take the plea of private defence.
Jail v. State of Haryana; the court held that an aggressor can not take the lea of private defence. The
accused was armed with danger weapons, and the complainant party did not have any arms,
indicating that the accused was the only one with the intention to harm. Herein, the aggressor could
not take the plea of defence.
Narayan v. State; Narayan gave the first Lathi blow to the deceased Dhaniram, the deceased took
away the Lathi and Narayan took out his gun and shot the deceased. The Lathi was taken by
Govindram and attacked Narayan in private defence. The court held that Narayan could not take the
plea of private defence.
The accused has to bare the burden of proof, he has to prove that he is capable of taking the right of
private defence.
Section 98:

A person of unsound mind is exempted from every liability.


The criminal law provides for complete immunity for the person with unsound mind.
The section says that an act which would be another offence, is not an offence on grounds that the
person posing danger is of unsound mind, or the person does not have maturity to understand the
nature of the act.
It assumes that the right of private defence admits of no exception since it is a right of preservation
of one’s life and property and right of preservation of the life of some other person and for the
defence of property of some other person.
Example; A and insane person attacks B and is therefore not liable, herein, B will also have the
right of private defence even if A is of unsound mind.

Section 99:

All the other sections are linked with section 99.


There is no right of private defence against an act which does not cause danger of death or harm, if
done by a public servant in good faith, though that act may not be justifiable in the eyes of law.
Example; arrest can be made with a warrant or without a warrant. A cop arrests an accused and he
in good faith goes to the house of the accused without a warrant. The accused tries to harm the cop,
herein, the accused can not take the plea of private defence since the police has been given the
power to make an arrest without a warrant.
On one hand, a cop can arrest without a warrant, but such an accused arrested without a warrant has
to be presented before the magistrate within 24 hours.
Example; in case of mob violence, the police has to act in the spur of the moment so as to prevent
greater harm, therefore the police will not be able to plead right of private defence when such act is
done in good faith by the public servant or state authority.
It talks about the extent to which the right can be exercised.
The right to private defence can not be extended to inflict more harm when it is necessary to inflict
for the purpose of defence.
A person is not deprived of the right of private defence unless such person is under the direction of
a public authority.

Section 96 to section 106 have been incorporated with the social purpose in mind.
Right of private defence is not admissible when both parties come prepared to fight.
Keval Singh v. State of Punjab, 2004; both the parties came armed and engaged in a free fight,
resulting in injuries on both the parties. Since both the parties came prepared to fight, neither was
granted the right of private defence.
Keshoram v. Delhi Administration, 1974; the court held that the immunity under 99 can be claimed
by public servant if he acts in good faith even if the act is not justifiable in the eyes of the law. The
appellant gave a blow to the inspector on duty, he was convicted for assaulting the inspector. The
accused claimed that he attacked the inspector because he confiscated his buffalo due to non-
payment of taxes. The court held that the inspector was doing his job in accordance with the powers
and duties conferred to the inspector by law, and therefore was given immunity under section 99.

Quran Singh v. State of Punjab; the court held that where there is an element of aggression on the
property by a person who has no right of such aggression, then use of force by the individual is
necessary to resist such aggression on the property.
Section 100:

Vishwanath v. State of UP; in this case, the deceased was dragging his wife away, the brother
Vishwanath of the wife, to stop this, stabbed the person, and it penetrated his heart and the person
died. The sessions court had acquitted Vishwanath, High Court held the conviction, and Supreme
Court again acquitted him—assault with intent to abduct under Section 100, clause 5 of IPC is
protected, the wound penetrating heart was held not to be excessive force.

Yashwant Rao v. State of Madhya Pradesh; the deceased Lakhan Singh was having sexual
intercourse with 15year old Chhaya with Chhaya’s consent. Chhaya’s father seeing them, hit
Lakhan on his head with a spade—the cause of Lakhan’s death was said to be liver rupture whether
by falling or by receiving a hit.  
Should Chhaya’s father get the right of private defense—yes, he got the protection of right to
private defense and minor’s consent to sex was immaterial—anyone would have thought that she
was being raped and the right to private defense was held.
Somnath Das v. State; the accused and deceased were cousins who did not pull on well. They had a
‘free fight’ and the accused is charged with murder of the deceased cousin. Here ‘free fight’ means
we cannot say who started it. In this case, it was held that the deceased had done nothing to show
that he would kill the accused, and so the accused was held liable and the right of private defense
was not given.
Nand Kishore Lal’s case; the accused were Sikhs who had abducted a Muslim married woman and
converted her to Sikhism. After a year, the relatives of the Muslim husband demanded to take her.
Now the muslim woman herself did not want to go—and the muslim relatives were hit and one died
—(did not write this, but maybe the right to private defense was given in this case).

A. Kunju v. State of Kerala; Supreme Court held that merely because the accused had injuries and
merely because there was a quarrel, the right to private defense cannot be given. To avail private
defense it must be shown that there was such grave apprehension that retaliation was absolutely
necessary.
Section 101:

Section 101 extends to causing any other harm than death.


Yogendra Morarji’s case, 2004; the Supreme Court held that the act is not to be weighed in golden
scales—a sentence of 7years rigorous imprisonment was given. The workers went to Manager’s
house to demand payment dues—the Manager rudely turned them away. In the evening when
Manager went out in car, the 5 workers raised their hands around his car—the Manager pulled out
gun, and the 3rd Shot that he fired hit Kana (a worker) in the chest and this shot was fatal.
The manager convicted under Section 304 under culpable homicide not amounting to murder.
Section 102:

Deo Narain v. State of Uttar Pradesh; Supreme Court said private defense is a preventive right, not
a punitive right. But before exercising the right to private defense it is immaterial whether actual
harm is caused to the body or not—even if there is reasonable apprehension without any actual
harm to body, private defense  can be used.
Ram Narain v. State of Uttar Pradesh; on a piece of land, the accused and deceased were fighting
over a mango tree—the accused wanted to cut the tree while the deceased wanted to stop the cutting
—in the fight the deceased died. It was held that there was no right to private defense as the accused
kept hitting the deceased for a longer time and the force was disproportionate.
The Sections applied in this case were—34 (common intention), 147(rioting), 302(murder),
340(wrongful confinement).
Jaidev v. State of Punjab; when the shots were fired the persons had already started running away,
which means threat had ceased, and so private defense cannot be claimed after threat has ceased.  

Madan v. State of Madhya Pradesh, 2008; Supreme Court said that private defense cannot be based
on speculation—for the private defense to work the judge has to see the entire incident in its proper
setting, before deciding.
Section 103:

Section 103 provides that when right to private defense extends to causing death while protecting
property.
Robbery is an aggravated form of either theft or extortion.
Theft becomes robbery when there is fear of causing instant death/instant hurt/instant restraint.
Bhupinder Singh v. State of Gujarat; Supreme Court said right to private defense of public property
can be used with limitations that—it is used only if it is a human dwelling, and only used if threat of
death or such severe harm is there.

Section 104:

Nathan v. State of Madras; the harvesting party was not armed with any deadly weapon—the
accused exceeded right to private defense when they killed one of the harvesters. Held liable under
Section 304 of IPC culpable homicide not amounting to murder.
Judiciary usually does not convict for murder in a free fight or in a case of sudden fight, and instead
can convict under Section 304.
Module-3

Abatement
When a person induces another person to commit an offence, it is called abatement.
For example, A procures poison and indices B to poison C, it will be called abatement, herein, A
will be held liable because he incited B to commit the offence.
The practice of Satipratha was prevalent in the parts of India before it was banned in 1929.
The woman had to die in the pyre lit for her husband.
Herein, everyone who encouraged the woman to commit Satipratha were held liable as abators even
though it was a cultural practice in India.
In abatement, the abator provides the intention to commit the crime to the other person.
Abatement occurs by instigation, aiding and criminal conspiracy, these are three different forms of
abatement. Abator would be equally liable as the offender will be.

Abatement by instigation:
Negatively influencing a person to commit a crime will be called abatement by instigation.
Instigation primarily implies negatively influencing someone.
Example: Rajiv Gandhi was the prime minister of India and at that time the situation in Sri Lanka
was critical, wherein a separate state for Hindu Tamils was being demanded by the LTT. Rajiv
Gandhi had sent the Indian army to Sri Lanka, after his tenure, in a rally, a female suicide bomber
assassinated him. A female and her husband were imprisoned and were given death penalty, which
was commuted to life imprisonment by Sonia Gandhi. Herein, it was held that the female was
incited by the LTT to carry out the assassination, and therefore it was an example of abatement by
criminal conspiracy.
Abatement to suicide is another aspect of abatement by instigation, especially in cases of dowery.
Herein, the courts have to be careful while determine the act of abatement, and whether or not the
person is actually is an abator.
Abatement by aiding:
Harboring a criminal lead to abatement by aiding, however the element of intention cannot be
ignored.
Example: the question of abatement arose in the case of parliament attack in 2001. The court held
that the wife cannot be held responsible for abatement if the terrorist stays at home after attacking
the civilians.
Similarly, in a case, the doctor was held for abatement for medically aiding a terrorist, herein, the
doctor pleaded that he was doing his duty and was not aware of the activities of the terrorist.
The courts have to rely on direct and indirect evidence to determine the intention of the people
involved.

Abatement by criminal conspiracy:


When a group of people, two or more, conspire to commit a crime, then it is called abatement by
criminal conspiracy.
Herein, the involvement of people maybe direct or indirect.
Section 107 :

A person abates when he instigates some other person to commit an offence, or when a person
conspires with some other person to commit a criminal offence.
A person who by willful misrepresentation voluntarily procures a thing to be done is said to have
instigated to do an offence.
Willful concealment of a material fact might also result in abatement by instigation.
When several persons commit an offence together, then the culpability will be determined by the
level of their involvement in the act.
According to the Hindu criminal law, when a murder is committed, several others might also be
liable for being the accessories.
The concept of abatement is in existence since ancient Hindu law and 6 categorisations were made.
Classification: (I) Arambkar, or the person who initiates, (II) Doshbhagt, or the participates, (III)
Ashcharya, or who harpers, (IV) Margdarshak, or who gives the direction, (V) Anomad, or who
aids.
The English law with respect of the participants classifies: (I) principle in the first degree, or who
commits the crime or gets it committed by someone else, (II) principal in the second degree, or who
is present at the scene and aids in the commission in the crime, (III) excessary, or who counsels
another to commit the crime though being absent from the scene, (IV) excessary after the fact, or
who barbers the criminal , knowing about the crime committed.
Section 107 says that a person commits abatement if he instigates the commission of a crime, aids
the crime or engages in a conspiracy.
A person is said to have been instigated a crime if he procures anything which would facilitate the
crime.
A person is said to have been aided a crime if he harbors the criminal.

Protimma Datta v. State


In this case the husband and mother-in-law of the deceased treated the deceased badly as the
result of which the deceased committed suicide. They were held guilty of committing
abatement.
Subhash Chandra v. State
An officer handed over the keys of a cash box to his colleague the latter absconded with the
money. The court held that the facts were not sufficient to charge the officer with abatement by
instigating or aiding the wrongful act. The act can be said to be negligence of the officer.
Vishvash Bhushan v. State, 1967
It was held that a giver of bribe to a public servant is an abater, whether or not the bribe was
given on demand or voluntarily.
Padma Bai v. State, 1987;
The deceased had ended her life 2 years after her marriage, when none of her family members
were present. It was held that the in-laws were not guilty of abatement by instigation, the
mother-in-law was held non-guilty, the husband had to prove that the suicide was not a dowery
death.
Queen v. Mohit Vande;
a married woman, whose husband had died, decided to die in front of her family. It was held
that the family encouraged the woman to exercise Sati, the family was held liable for abatement
by conspiracy.
R. v. Vankate;
Persons made false documents to commit forgery. They were held to be liable for abatement.
Emperor v. Kali Charan;
Abatement by intentional aiding is the subject matter of the case between husband and wife.
Where ahead constable intentionally went from the crime scene, it was held that he was guilty
for abatement by intentional aiding.
Sundar v. Uttar Pradesh;
A person cannot be held for abatement by intentional aiding if such person has already been
acquitted.
Section 108:

The commotion of an illegal offence makes the person an abater.


It is not mandatory that the commission was done by the person himself.
It is not necessary that the person committing the crime has the same intention as the abater.
Example; A with a guilty intention abates a child to commit an act which would be an offence if
committed by a capable person. Herein, A will be an abater.
Example; A instigates B to instigate C to murder D. B accordingly instigates C to murder D, and C
murders D consequently. B is liable for abatement by instigation and A is liable for the same.

Section 109:

Whoever abates offence shall, be punished with the punishment provided for the offence, if the act
was committed in consequence of the abatement and no express provision was present for such a
commission.
Example; A offers bribe to B a public servant. B accepts the bribe, A has committed abatement
under section 161.

Section 110:

Punishment for abatement if the person committing the crime had different intention from that of
the abater.
Whoever abates shall be punished with the unishment provided for the offence, even if the intention
of the wrongdoer was different.

Section 111:

The abater is liable for the abatement of an offence, even if a different act was done.
If the act was a probable consequence of the abatement, even though the act was different, the
abater was to be held liable.
Example; A instigates B to break into a house for robbery. B breaks into the house and along with
robbing Z, kills him too. A will be liable for abating both, robbery and murder.

Section 112:
if the actor which abater was liable, has committed an offence in addition to the abatement, the
abater is liable for each of the offences.
Example; A instigates B to resist the servant. In order to resist, he kills the public servant. B will be
liable of murdering the public servant, so will be A if he knew that B would kills the public servant.

Section 113:

Example; A instigates B to cause harm to C, B causes harm to C and C dies. If A knew that B
harming C could cause death, then A would be liable for abating murder by B.

Section 114:

If the abater was present at the crime scene, then he would have considered to have been committed
the crime.

Section 115:

Abatement for offence punishable with death if the offence is not committed.
If act causing harm is committed, the consequences of the abatement shall event to death or life
imprisonment.
Example; A abates B to murder C, B does not murder C. A is pushed with life imprisonment even if
C did not commit the murder.
Section 116:

Whoever abates an offence punishable with dimprisonment shall be punished with imprisonment
for a term extending to one-forth of the longest imprisonment.
If the person abated is a public servant, the abater shall be punished with imprisonment for a term
extending to one-half of the longest term of imprisonment.
Example; A offers bribe to B a public servant. A will be liable to serve a sentence of imprisonment.

Section 117:

Abating offence by the public or by more than 10 persons.


Whoever abates general public to commit a crime shall be punished with imprisonment of 3 years
along with fine.
Example; A calls upon the public to a place so as to attack some other section of the society. A will
be liable under section 117.

Section 118:

Whoever abates an offence punishable with death of life imprisonment, conceals a significant
representation or a tool, shall be punishable with imprisonment for 3 years, regardless of whether or
not the act was committed.
Section 119:

If a public servant conceals the design of the criminal conduct, then he shall be punishable with
imprisonment of any description for a term one-half of the longest imprisonment along with the fine
if the act was committed.
If the offence was not committed, then the public servant will be punishable with imprisonment for
a term one-forth of the longest imprisonment along with the fine.

Section 120:

Whoever intending to facilitate the commission of an offence punishable with imprisonment,


voluntarily conceals the design the crime, or makes any misrepresentation, he shall be punishable
with imprisonment for a term of one-half of the longest imprisonment if the act was committed.
If the offence was not committed, then he shall be punishable with imprisonment for a term of one-
eighth period of the longest imprisonment.
Chapter-5A - Criminal Conspiracy:

Conspiracy means engagement of two or more like minds.


Criminal conspiracy requires at least two minds, a person cannot conspire with himself.
Mutual agreement is required to commit a criminal conspiracy.
It means agreement or arrangement between two or more persons for committing crime, provided
that there was a common intention and not a similar intention.
Similar intention may not result in criminal conspiracy, but a common intention definitely results in
a criminal conspiracy.
When people are planning to commit a crime, then the act will be an illegal one and it will be lead
to criminal conspiracy.
Act done by illegal means may also result in a criminal conspiracy.
Section 120A and section 120B are invoked where there are joint forces for an unlawful act.
Section 120A:

When two or more agree to do an illegal act, or an act by illegal means, it is called criminal
conspiracy.
It will be called a criminal conspiracy if the act other than the agreement is done.
If there is only an agreement, but the act has not been done, then it may not be called criminal
conspiracy.
Illegal act can be the ultimate object, or it can be incidental to the ultimate object.
Chapter 5A was added in 1913, and conspiracy was initially taken under a civil wrong, but later on
it was realised that conspiracy needed to be a punishable offence under criminal law.
Sir James Stephen in his book “History of Criminal law” talked about the original interpretation of
criminal conspiracy, he talked about principal and accessary of law while discussing the concept of
criminal conspiracy.
Under IPC, conspiracy is studied under four headings, (I) substantive crime - sections 120A and
120B, (II) abatement - section 107, (III) to wage a war against the government - chapter-6 - section
121A, (IV) assembling for purposes like dacoity.
Under the English and Indian law, a criminal conspiracy is an agreement between two or more
persons to do an illegal act, or to do a legal act by illegal means.

State v. Nalini, 1999; it is the Rajiv Gandhi assassination case. The court held that an agreement
between two or more persons to do an illegal act is called a criminal conspiracy. The illegal act
done might or might not be the ultimate object in the agreement. Everyone in the group might not
have done the ultimate illegal act, even though each and everyone had agreed to do it. Four
persons agreed to assassinate Rajiv Gandhi, even though only two assassins killed him, the rest two
who absconded were also convicted for entering into a criminal conspiracy. The objectives of the
criminal conspiracy were laid down as were agreed to by the persons convicted for the same. The
accused were arrested, enquired, the prime suspects were given death penalty which was lier
commuted to life imprisonment.
Ajay Agarwal v. Union of India, 1993; the court held that it is not cnessary that each conspirator
must know all the details of the scheme, nor be a participant in every stage. There are three
elements of a conspiracy, agreement, between two ore more persons, attainment of the ultimate
objects.
State of navjot Sandhu, 2005; it is called the parliament attack case. The court held that criminal
conspiracy is proved by circumstantial evidence. The objects have to be proved and inferred by the
circumstances. The accumulated circumstantial evidence determines the guilt of the convicted, it is
important that there was meeting of the minds.
Ram Narayan v. CBI; the court noted that the law-making conspiracy is designed to curb
immoderate to do mischief. The encouragement given by co-conspirators leads to the possibility of
the enterprise, well-deserving of the punishment.

Bopan Das v. State of Bombay, 1956; the court held that it is significant that a single person can not
conspire for a criminal act. The appellant along with three others were convicted under section
120B read with section 470. The magistrate acquitted all accused, but the high court reversed the
acquittal and convicted the accused. The Supreme Court held that the appellant can not be convicted
under section 120B when the other accused were charged for conspiracy.
Bhim Bahar Pradhan v. State of Odisha, 1956; the appellant a government officer and four others
were convicted under section 120B. All the accused entered into a criminal conspiracy to
misappropriate the government funds, the accused carried out the act. Court held the appellant liable
for conspiracy since the condition of two or more persons was satisfied.
Section 120B:

Whoever is charged for committing a crime punishable by death or imprisonment, shall be punshed
in the same way as though he abated the crime.
Subsection 2 provides that such offence is non-bailable.
There are classes of criminal conspiracy: to commit an offence punishable by death or
imprisonment, where no provision is there with the court, the person is liable as though he abated
the crime.
Where the conspiracy is unsuccessful, the penalty is fine or impriosnment up to 6 months, or both.
Section 196 says that no court shall take cognisance of a criminal conspiracy unless there is an
sanction by the central or state government.
Chapter-6 - Offences Against the State:

The sanctity of the state is important because if it is not maintained, then the government can not do
tis duty for the people.
Any offence against the state is taken to be very significant.
Section 124 deals with the offence of sedition, recognising the right of the people to speech and
expression.
There exist controversies regarding section 124A, holding that there should not be an offence of
sedition if the people have the right to speech and expression.
Herein, the sanctity of the state and the people’s right to speech and expression need to be balanced.
True democracy can not be flourished if the freedom to speech and expression is not recognised and
cherished.
Sections 121, 121A, 122, and 123 deal with offence against the state.
Waging, conspiring, attempting, abating, concealing war against the government amounts to
offence against the state as per chapter 6 of the IPC.

Section 121:

Whoever wages war against the government of India, or attempts, abates war against government of
India, shall be imprisoned for life.
Section 121 shall be invoked against every terrorist or anyone who attempts or wages war against
the government.
This section was inserted so as to secure the government, if the government is insecure, then it will
not be able to secure the people.
Laws have been legislated to preserve the rights of the state, and such laws earlier on were
considered as sacred laws.
Such laws were considered to be preserving the God while he ruled the people from his throne.
Such a crime in common law was considered to be of the highest degree, the betrayal of the faith
was what such crime was abled by.
The state was kept on the level of the God and majesty, and therefore its preservation was taken
quite seriously.

No specific number of persons is necessary to invoke section 121, only the object and nature of the
assembly was to be determined correctly.
There is no difference between principal and accessary, every person involved would be punished
equally for Waging or attempting to wage or abating to wage war against the government.
Section 121 will not be invoked if the people promise to preserve capitalism or socialism, or if
people protest.
Vasu naber v. Preven Cor State; it was open to the society to achieve the objects by peaceful
protests if the people required the continence of order in the society. The court held that the society
did not mean to bring about change by force, the society did seem to use war or spite to go against
the government. Therefore, section 121 was not invoked.
At present, the protest by the farmers also does not invoke section 121 since they are protesting
against a specific legislation and not against the government itself.

Section 121 is applicable to everyone, regardless of whether or not the convicted is an Indian.
A foreigner does not have any defence if he convicted under section 121.
The term war is not considered in the way wherein it only means war between two countries.
In this section, war amounts to opposing the government by attacking the citizens of India.
Navjot Sindhu case, 2005; herein, the parliament was attacked by the terrorists, five heavily armed
persons rained heavy casualties of security men. The four accused persons along with other
offenders were charged under various section and statutes along with sections 121, section 121A
and section 122 of the IPC. The court convicted three and sentenced them to death.
Mohomad Kasab v. State of Maharashtra; it was revealed that a conspiracy was hashed in Pakistan
to wage war against the government in India by abating to commit murder. Kasab along with other
terrorists entered the Mumbai city and attacked on 26 November, 2008. The militants had attacked
high-profile localities in Mumbai, 162 persons were killed and 232 persons were injured, loss
property was incurred. Section 121 was invoked against the militants, the court held that the
terrorists attacked and targeted Indians and foreigners, they undermined the sanctity even if they did
not directly harm the public property.
rioting is an offence defined under chapter 8, section 146 of the IPC.
Waging war is defined as an offence under chapter 6, section 126 of the IPC.
Section 121A:

Talks about conspiracy to commit offence punishable under section 121.


The conspiracy to wage war against the government is punishable with imprisonment for life, or
imprisonment which could extent to 10 years with fine.
S.H Chhabwala v. Emperor; the accused persons formed unions, they were charged under section
121. The court held that conspiracy to change the form of central or state government would not be
an offence under section 121A unless criminal force is used by the convicted.

Section 122:

Collecting arms with intention to wage war against the government of India.
It says that preparation to wage war against the government is punishable under section 122.
The act of collecting arms and making other preparation with the intention to wage war against the
government will be punishable under section 122, even though the stage of preparation in general
under the Indian criminal law is not punishable.

Section 123:

Consoling with intent to facilitate war against the government.


It is punishable with imprisonment which can extend to 10 years.
Consoling the design to facilitate war against government is an offence made punishable under
section 123.
Section 39, sub-clause 1 of the CRPC, and section 118 of the IPC need to be read along with section
123 of the IPC.
The liability under this section is not absolute, the accused must have knowledge of the offensive
design, the accused must have intended to wage war, etc. to make the ability under this section
absolute.
Section 124:

Assaulting President or governor with intent to strain the exercise of lawful power.
It is an extension of section 121A.
Herein, if the accused wrongfully restrains the President or the governor from exercising their
lawful powers, he will be punishable with imprisonment extending up to 7 years.

Section 124A:

The act of sedition against the state is talked about in section 124A.
There are a number of controversies regarding sedition wherein the modern model of the society
opposes section 124A, saying that it restricts the freedom of speech and expression.
The historic evolution of sedition stemmed from the need of the British to curtail freedom
movement by the Indians.
The freedom of the Indians to speech and expression was curtailed by the British by invoking the
sedition provisions.
Gradually it was realised that this provision is not required.
No person giving his opinions should be convicted under section 124A.
The section says that whoever incites hatred against the government either in writing or verbally
shall be punished with imprisonment for life or with imprisonment extending up to 3 years with or
without fine.
Comments expressing disloyalty will amount to an offence under section 124A.
Expression of legitimate opinions would not amount to sedition under section 124A.
Comments expression misappropriation against the administrative authorities without inciting
hatred against the government will not amount sedition under section 124A.
The terrorist and disruptive activities prevention act, 1987 also deals with the provisions regarding
sedition.
All acts intending to create public disorder in order to rebel against the government amount to
sedition.
Offences Against Public Tranquility - Section 141 to Section 160:

Sections 141 to 160 of the IPC deal with the offences against public tranquility.
Section 141 deals with unlawful assembly.
For an unlawful assembly, the number of persons is to be 5 or more.
If the number of people is less than 5 then it would not be an unlawful assembly.
It is the cardinal principle that semblance of people intending to commit a criminal act has to be
discouraged by law.
It becomes difficult for the statutory authorities to stand against a mob of people intending to do
harm when the semblance is for an unlawful act.
The British did not encourage meeting of people since they suspected every semblance to be a
conspiracy to other throw the British government.
Assembly of people was not encouraged by the colonial rule, it was only after gaining independence
that unlawful assembly was differentiated from the semblance of people.
Essentials: (I) people assembled are to be more than 5 persons, (II) common object of the
semblance, (III) common object needs to be for the commitment of the illegalities enlisted in
section 141, (IV) use of criminal force against the the lawful power, to resist legal process, to
commit criminal trespass, to forcefully take possession of the rights of some other person, to
compel any person what he is not legally bound to do are the 5 illegalities under section 141 which
constitute common object in an unlawful assembly.
The Supreme Court has held in a number of cases that if one out of the five convicts of unlawful
assembly is acquitted, then the remaining four can not be sentenced for the charge of unlawful
assembly.
Mohan Singh v. State of Punjab, 1963; five persons were charged under section 141 for murdering.
Two were acquitted and the remaining three were convicted under section 141. The Supreme Court
held that three could not be convicted under section 141 unless other people can be suspected of the
same.
The mere presence of a person at the scene of the crime can not invite the imposition of section 141,
mere presence of a person at the scene does not essentially make him a pat of the unlawful
assembly, there has to be a common object or the meeting of minds.
The object must be shared by all the members of the unlawful assembly.
The same object is not necessarily a common object, there has to be meeting of minds.
Chandrika Prasad v. State of Bihar; the court held the conviction of the accused even though the
object was not common in the beginning, but which became the common object of all as the
progression proceeded.
The unlawful object can develop later also, if the object is not unlawful at beginning and it turns
unlawful later on, then too it would be an unlawful assembly and all members would be held liable.
Balladeen v. State of Uttar Pradesh; all the appilents were convicted of the murder of a government
official and for unlawful assembly. The lower court convicted all the inhabitants of the village on
the fact that they were all present in the village. The Upper Court held that mere presence of the
persons does not amount to the conviction of all the present people. The Supreme Court only
convicted a few of them, and not the spectators.
Section 142:

Whoever is aware of the fact that the assembly is unlawful, and continues to be a part of it, will
amount to the charge of unlawful assembly against him.
Anyone who joins an unlawful assembly or continues in it will be convicted for such unlawful
assembly.
If the person shares the common object of the unlawful assembly, either before joining it or after
joining it will be convicted under section 141.

Section 144:

Joining unlawful assembly, while carrying deadly weapons.


It is an aggravated form of unlawful assembly.
It is because of the presence of deadly weapons, implying criminal force.
Where a member of an unlawful assembly is armed with a deadly weapon, he will be sentenced
with intense punishment.

Section 145:

Joining or continuing an unlawful assembly after being commanded to disperse amounts to a


sentence of 2 years.
Section 146:

When force is used by unawlful assembly or by of its members, every member would be guilty of
the offence of rioting.
The members of the unlawful assembly, the moment they sort to violence, the unlawful assembly
will be considered to have been rioting.
A riot is an unlawful assembly for the purpose of using criminal force.
Only the use of criminal force differentiates riot from an unlawful assembly.
If three or more persons in an unlawful assembly use criminal force, then it would be considered as
rioting.
Essentials: (I) there must be an unlawful assembly, (II) the accused must be a member of the
unlawful assembly, (III) force or violence must be used by the members of the unlawful assembly,
(IV) the force must have been used for the pursuance of the common object.
Resistance to a legal warrant does not amount to rioting.
Mere use of force by persons gathered together does not amount to rioting, the violence used must
be in pursuance of the common object of the unlawful assembly.there can be no right to private
defence when the riot was pre-meditated.

Section 147:

Whoever is guilty with rioting shall be imprisoned for 2, 4 or 5 years.


It is a non-compoundable offence.

Section 148:

It is an aggravated form of rioting.


When a person is armed with deadly weapon, he is subjected to enhanced punishment.
He is sentenced to 3 years of impriconment and fine.
Mahadev Sharma v. State of Bihar; the four judge bench of the Supreme Court held that if the
charge is framed under sections 147 or 148, and that charge had failed, then section 149 could not
have been used against the accused. There can not be conviction under section 149 if the accused
are not convicted under sections 147 or 148.

Section 149:
Every member of unlawful assembly, guilty of offence, will be considered to have been sharing the
common object of the unlawful assembly.
If ano offence is committed by a member of the unlawful assembly for the pursuance of the
common object, every member at the time of the commission of the offence will be convicted under
that criminal offence.
Section 120B establishes the principle that every member of the unlawful assembly having a
common object will be guilty of the offence done by any member of that unlawful assembly even if
he himself did not commit the act.
Khilan v. State of Madhya Pradesh, 2010; the appellants armed with deadly weapons formed
unlawful assembly, and in furtherance of the object committed the murder; weapons used were
recovered. The court acquitted one of the accused. The Supreme Court held that in the absence of
exceptional circumstances, it is not the power of the Supreme Court to review the evidence for the
third time.

Section 150:

While under section 149, the person has to be a member of an unlawful assembly, a specific
offences has been created under section 150 wherein if any person hires people to form an unlawful
assembly, then he would be liable as the others would be even if he himself did not participate in
the unlawful assembly.

Section 152:

Assaulting public servant while holding riots or unlawful assembly will be liable under section 152.
Use of force, or threatening to use force against a public servant with the object to restrict him from
working is covered under the ambit of section 152.
Section 153:

Illegally provoking a riot is an offence under section 153.


An illegal act which incites rioting would be liable as an abater and not as a rioter.
Section 153A was added in 1973, that is, inciting enmity between two or more groups of people,
therefore inciting rioting will be held as an offence under section 153A.
To reduce communal tensions in the country was the object of adding section 153A in the IPC.
Essentials: (I) inciting enmity between two or more groups, (II) committing acts causing insecurity
among the people.
Tara Singh v. State of Punjab; it was contended that section 153A would amount to violation of
article 19 of the constitution. The Supreme Court held that it would be a reasonable restriction for
the freedoms contained in article 19 of the constitution, therefore constitutionally validating the
provision.
Section 153AA was added in 2005 and it atalks about punishment for knowingly carrying arms in
an assembly.
The basic purpose is to strike at the terror training camps in India.
Section 153B was added in 1972 wherein if any act goes against the national integrity, would be
held as an offence under the provision.
It supplements the provision of 153A and 295 of the IPC.
It is to maintain harmony among the groups of people in India.

Section 154:

Owner of the land where unlawful activity is being carried out would be held liable under section
154.
The person on whose land riots take place, if he does not report such rioting, will be held liable.
He would be held criminally liable under sections 154 and 155.
Intentional failure of servants to report appropriate authority regarding unlawful activities or riots
going on on his land, would be held criminally liable.
Section 155:

It is an aggravated offence of the one contained in section 154.


Punishment for such offence is left to the discretion of the courts.

Section 156:

It imposes personal liability on the owners of the land where the unlawful assemblies were going
on.

Section 157:

Aiding the people carrying out unlawful assemblies would be held as an offence under section 157.
If the accused harmers the people carrying out unlawful assembly would be held liable.

Section 158:

When one assists members carrying out riots or unlawful assembly, would be held liable.
If the accused is carries arms in the assembly, then too he would be held liable.

Section 160:

It announces penalties for the offences enlisted under section 159.


Imprisonment up to 1 month along with fine is enlisted for the offence of affray as provided under
section 159.

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