Indian Pinal Code

INDIAN PINAL CODE 1 . Definitions and distinctions . Wrongful gain and Wrongful loss . Wrongful gain and Wrongful loss ;Definition of Wrongful gain :The offence of wrongful gain is defined by section 23 of the Indian Penal Code . According to the section 23 of IPC wrongful gain is gain by unlawful means of property to which the person gaining is not legally entitled. A person is said to gain wrongfully when such person retains wrongfully , as well as when such person acquires wrongfully . Definition of Wrongful loss :The offence of wrongful loss also has been defined by the section 23 of IPC. Section 23 says that wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled. A person is said to lose wrongfully when such person is wrongfully kept out of any property as well as when such person is wrongfully deprived of property. Difference between Wrongful gain and Wrongful loss :In the offences of Criminal breach of trust , Criminal misappropriation of property , theft and etc. the causing of Wrongful gain and Wrongful loss are important ingredients. In both the two offences the common element of unlawful means is present. But the main points of distinctions are as follows :i) In the offence of wrongful gain the offender gains the property wrongfully , on the other hand in the offence of wrongful loss the offender wrongfully causes to loss the property by the victim. ii) In the offence of wrongful gain , the offender is not legally entitled to gain the property but in the offence of wrongful loss the victim is legally entitled over the property losing . iii) In the offence of wrongful gain the offender is said to gain wrongfully when he retains any property wrongfully as well as when he acquires any property wrongfully. But in the offence of wrongful loss the victim is said to lose wrongfully when he is wrongfully kept out of any property as well as when he is wrongfully deprived of any property.

iv) Wrongful gain connotes gain of the offender whereas wrongful loss connotes loss of the victim. Dishonestly and Fraudulently . The term dishonestly has been defined by section 24 of the Indian Penal Code . According to this section whoever does anything with the intention of causing wrongful gain to one person and wrongful loss to another person , is said to do that thing dishonestly . The essential ingredients of section 24 are as follows :i) The offender must have an intention ; ii) The intention must include the causing of wrongful gain to one person and iii) Wrongful loss to another person. Definition of fraudulently :The term fraudulently has been defined by section 25 of the Indian Penal Code . According to this section a person is said to do a thing fraudulently if he does that thing with intent to defraud , but not otherwise. The essential ingredients of section 25 are as follows :i) The offender must have done a thing ; ii)The offender must have done the thing with an intention ; ii) The intention must be to defraud another person. Difference of Dishonestly and fraudulently :The following are the main points of distinctions between the terms Dishonestly and fraudulently :i) The word defraud includes an element of deceit. Thus deceit is an important ingredient of the definition of the word fraudulently. On the other hand , deceit or defraud is not an ingredient of the term dishonestly. The term dishonestly involves a pecuniary gain or loss . ii) In the definition of dishonestly , wrongful gain or wrongful loss is the most important element . Of course , both need not exist , one would be enough. But the expression fraudulently , should involve the element of injury to the person deceived . The injury may be something other than the pecuniary loss. iii) A fraudulent act need not be dishonest , although it would usually be so . Production of a forged bond by a person with the intent to make the court believe that he was entitled to recover the money on the basis of that bond may be fraudulent within the meaning of section 471 of IPC although it may not be dishonest within the meaning of section 24 of IPC.

iv) In the case of Surendra Nath Ghosh , where after executing and registering a document , which was not required to be attested , the accused added his name to the document as an attesting witness , the Hon’ble High Court of Calcutta held that this act was neither fraudulent nor dishonest . ‘Common intention’ and ‘Common object ‘. Definition of Common intention :Common intention means common sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually . If two or more persons combine in injuring another in such a manner that each person engaged in causing must know that the result of one of them . Everyone must be taken to have intended the probable and natural results of the combination of acts in which he joined . All become guilty of the principal offence . The leading feature of common intention is participation in action. Common intention implies acting in concert and existence of a pre-arranged plan . It is enough to have the same intention independently of each other for fastening constructive liability for the act of another. The doctrine of constructive liability lays down the principle of joint liability in the doing of a criminal act . The essence of that liability can be found in the existence of common intention animating the offender leading to the doing of a criminal act in furtherance of common intention. This Constructive Liability or joint liability is embodied in section 34 of the Indian Penal Code as common intention. Essential ingredients of common intention are as follows:To fall within the purview of common intention the two ingredients must remain present :i) common intention to commit an offence ; ii) participation in commission of the offence . Definition of Common object :Common object means combination of several persons , united for the purpose of committing a criminal offence , and that consensus of purpose is itself an offence distinct from the criminal offence which these persons agree and intend to commit . Whether the object is in their minds when they come together , or whether it occurs to them afterwards is not material . But it is necessary that the object should be common to the persons who compose the assembly , that is , that they should all be aware of it . It seems also that there must be some present and immediate purpose of carrying into effect the common object . It is also an example of constructive liability . In order to prove common object , it is necessary to establish connection between those who take an active part in the crime . Common object is incorporated in section 141 or unlawful assembly . Essential ingredients of common object are as follows:-

The following three are essential ingredients to attract the mischief of common object:i) commission of an offence by any member of an unlawful assembly ; ii) such offence must have been committed in prosecution of the common object of that assembly ; or iii) must be such as the members of that assembly knew that likely to be committed . Difference between Common intention and Common object :The points of differences in between Common intention and Common object can be better explained in the following tabular form :Common intention ( Sec. 34 )

Common object ( Sec. 149 )

i) Common intention requires prior concert and common meeting of minds before the commission of crime as well as an element of participation in action .

i) Common object may develope at the spot after the assembly gathers and does not require prior concert and common meeting of minds before the commission of crime.

ii) In common intention , the act must be the result of a pre-arranged plan .

ii) In common object , no such prearranged plan is required . If the offence is committed in prosecution of the common object , every member of such assembly is liable for the offence though the offender did not intend to commit it or did not participate in it’s commission .

iii) In common intention , the number of persons is immaterial. iv) Common intention enumerates the principles of constructive liability , without creating any substantive offence .

iii) In common object , five or more persons are required to form the unlawful assembly.

iv) common object creates a specific substantive offence . v) The common intention need not be one of specified type only.

vi) In a charge U/S 34 of IPC active participation of the offender is

v) Common object must be one of the

required .

seven types mentioned in section 141.

vi) But in a charge of common object the liability arises by reason of the membership of the unlawful assembly and there may be no active participation at all in the commission of the offence. Riot and Affray. Definition of Riot :The offence of riot is defined by section 146 of the of the Indian Penal Code . According to this section whenever force or violence is used by an unlawful assembly , or by any member thereof , in prosecution of the common object of such assembly , every member of such assembly is guilty of the offence of rioting. To constitute the offence of rioting the following five essential ingredients must remain present . a) There was an assembly of five or more persons ; b) the assembly was unlawful ; c) members of the assembly used force or violence ; d) offender was a member of that assembly; and e) force or violence was used by the assembly in pursuance of their common object. Definition of Affray :The offence of affray is defined by section 159 of the of the Indian Penal Code .Section 159 says that when two or more persons , by fighting in a public place , disturb the public peace , they are said to commit the offence of affray. The essential ingredients of the offence of affray are as follows :i) The offender with others were fighting ; ii) Such fight took in a public place ; iii) It disturbed the public peace . Difference between Riot and Affray :The offence of riot differs from the offence of affray in the following manners:-

i) In riot there must be five or more offenders , the minium member being required five . Whereas , the offence of affray can be committed by two or more offenders , the minimum number required being two ; ii) The riot can take place in a private as well as in a public place . Whereas an affray must take place in a public place only ; iii) Riot is more severely punishable . Whereas affray is a less serious offence. iv) In affray, only those who are actually engaged are punishable .But in riot , every person of the unlawful assembly committing the offence is punishable although some of them may not have personally used force or violence. ‘obscenity’ and ‘vulgarity’. Definition of obscene :The word obscene has not been defined by the Indian Penal Code . only section 292 , 293 and 294 have said that sale , etc., of obscene objects and singing , reciting or uttering in public obscene song , ballad or words to the annoyance of others are punishable . Hon’ble Supreme Court of India has defined the offence of obscene in the Ranjit D. Udeshi’s case by observing that what has to be considered as obscene or indecent has changed from time to time and may not exactly be the same in different countries .Where obscenity and art are mixed , art must be so prepondering as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked .Mere incorporation of sex and nudity in art and literature can not , by itself , be regarded as evidence of obscenity into the shadow , or obscenity should be so insignificant that it can have no effect and can be overlooked. A balance should be maintained between freedom of speech and expression and public decency and morality and when the latter is substantially transgressed the former must give way. Definition of vulgarity :The word vulgar has also not been defined by the Indian Penal Code . It has been observed by the Hon’ble Supreme Court of India , in the case of Samaresh Bose v. Amal Mitra on a question arose over a Bengali novel “ Prajapati “ that a what arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving , debasing and corrupting the morals of any reader of the novel is Vulgarity. Difference between obscenity and vulgarity. Hon’able Supreme Court of India has pointed out the distinctions between obscenity and vulgarity in the famous case of Samaresh Bose v. Amal Mitra on the question arose over a Bengali novel “ Prajapati “ as follows :i) A vilgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving , debasing and corrupting the morals of any reader of the novel. Whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences .

Culpable homicide and Murder. Definition of Culpable Homicide :-The word ‘ homicide ‘ came from the Latin terms homa ( man ) and cide ( cut ) , meaning thereby killing of a human being by a human being is homicide. Culpable Homicide is defined by section 299 of the Indian Penal Code . According to the section 299 of IPC whoever causes death by doing an act with the intention of causing death , or with the intention of causing such bodily injury as is likely to cause death , or with the knowledge that he is likely by such act to cause death , commits the offence of culpable homicide. The essential elements of the offence of culpable homicide are as follows :i) that death of a human being was caused ; ii) by an act with the intention of causing death ; or iii) by an act with the intention of causing such bodily injury as is likely to cause death ; or iv) by an act with the knowledge that the act was likely to cause death . Without one or other of these elements an act , though it may be in it’s nature criminal and may occasion death , will not amount to the offence of culpable homicide . Definition of Murder :-Section 300 of the Indian Penal Code defines the offence of Murder . Section 300 provides that except in the five cases of exceptions ,i.e., i) grave and sudden provocation , ii) right of private defence , iii) public servant exceeding his powers ; iv) sudden fight ; and v) consent , enumerated in this section , culpable homicide is murder , a) if the act by which the death is caused is done with the intention of causing death ; or b) If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused , or – c) 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 course of nature to cause death , or --d) if the person committing the act knows that it is so imminently dangerous that it must , in all probability , cause death , or such bodily injury as is likely to cause death , and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid . The essential ingredients of the offence of murder are as follows :i) Death of a human being was caused ;

ii) Such death was caused by or in consequence of the act of the accused ; iii) Such act was done – a) with the intention of causing death ; b) that the accused knew it to be likely to cause death ; or c) that the injury was sufficient in the ordinary course of nature to cause death . Difference between Culpable Homicide and Murder :The difference between culpable homicide and murder is very subtle . Both the offences include the elements of knowledge and intention . The main distinction depends upon the degree of risk to human life by the act . If death is a likely result of the act of offender , it is culpable homicide ; if death is a surely result of the act of offender , it is murder. The last clause of section 300 provides that the offender commits the act without any excuse for incurring the risk of causing death . In the famous case of Reg v. Govinda , the accused knocked his wife down , put one knee on her chest , and struck her two or three violent blows on her face with the closed fist , producing extravasations of blood on the brain and she died in consequence . The Court held that there being no intention to cause death and the bodily injury not being sufficient in the ordinary course of nature to cause death , the offence committed was not murder but culpable homicide . In that case, the Hon’ble Justice Melvill set forth the distinction between Culpable Homicide and Murder , as back as in 1876 which is still now being followed . Hon’ble Justice said , “ For convenience of comparison , the provisions of section 299 and 300 may be stated thus ….. Culpable Homicide ( Sec. 299 A person is said to commit culpable homicide , if the act by which the death is caused is done ---------

Murder ( Sec. 300) Subject to the five exceptions , culpable homicide is murder , if the act by which the death is caused is done ---

a) with the intention of causing death;

a) with the intention of causing death;

b) with the intention of causing such bodily injury as is likely to cause death ;

b) with the intention of causing such bodily injury as the offender knows to be likely to cause death of that particular person ;

c) with the knowledge that the act is

c) with the intention of causing bodily injury to any person , such injury being sufficient in the ordinary course of

likely to cause death.

nature to cause death ;

d) with the knowledge that the act is so imminently dangerous that it must , in all probability , cause death or such bodily injury as is likely to cause death. In the case of Inder Singh also the elements of Section 299 and 300 were compared and discussed . Culpable Homicide is less serious offence than Murder . Culpable homicide is punishable for life , murder is punishable with death or imprisonment for life . And in both cases the accused shall also be liable to fine . Hurt and Grievous hurt . Definition of Hurt :The offence of hurt has been defined by section 319 of the Indian Penal Code . According to section 319 of IPC whoever causes bodily pain , disease or infirmity to any person is said to cause hurt . The definition of hurt contemplates causing of pain by a person to another so it is not necessary that there should be visible injury caused on the person . The causing of pain is sufficient . Causing disease and infirmity also come within the purview of this section . The essential ingredients of the offence of simple hurt are as follows :i) The offender voluntarily caused bodily pain , disease or infirmity to the victim ; ii) The offender did so with the intention of causing hurt or with the knowledge that he would thereby cause hurt to the victim. Definition of grievous hurt :The offence of grievous hurt is defined by section 320 of the Indian Penal Code . Section 320 says that the following eight kinds of hurt are designated as grievous -----1) Emasculation . 2) Permanent privation of the sight of either eye . 3) Permanent privation of the hearing of either ear. 4) Privation of any member or joint . 5) Destruction or permanent impairing of the powers of any member or joint .

6) Permanent disfiguration of the head or face . 7) fracture or dislocation of a bone or tooth. 8) Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain , or unable to follow his ordinary pursuits . A person can not cause grievous hurt unless the hurt caused falls within one of the clauses specified in section 320 of IPC. Difference between hurt and grievous hurt :The differences between hurt and grievous hurt can be better shown by the tabular form :Hurt ( Section – 319 of IPC ) Whoever causes

Grievous hurt (Section – 320 of IPC) The following eight kinds of hurt are designated as grievous ------

i) bodily pain , 1) Emasculation . ii) disease or iii)infirmity to any person is said to cause hurt .

2) Permanent privation of the sight of either eye . 3) Permanent privation of the hearing of either ear. 4) Privation of any member or joint . 5) Destruction or permanent impairing of the powers of any member or joint . 6) Permanent disfiguration of the head or face . 7) fracture or dislocation of a bone or tooth. 8) Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain , or unable to follow his ordinary pursuits .

Wrongful restraint and wrongful confinement. Definition of wrongful restraint :-

The offence of wrongful restraint is defined by section 339 of the Indian Penal Code . According to this section whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed , is said wrongfully to restrain that person . But there is one exception to this offence . The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct , is not an offence within the meaning of this section . To constitute the offence of wrongful restraint there must have the following three ingredients :i) The offender obstructed the victim voluntarily ; ii) The obstruction prevented the victim from proceeding in any particular direction ; iii) The victim had every right to proceed to that particular direction. Definition of wrongful confinement :The offence of wrongful confinement has been defined by section 340 of the Indian Penal Code . According to this section whoever wrongfully restrains any person in such manner as to prevent that person from proceeding beyond certain circumscribing limits , is said wrongfully to confine that person . The essential ingredients of the offence of wrongful confinement are as follows :i) The offender wrongfully restrains a person ; ii) The victim was prevented from proceeding beyond certain circumscribing limits due to such restraint ; iii) Te victim had every right to proceed beyond that circumscribing limits. Distinction between wrongful restraint and wrongful confinement ; The offence of wrongful restraint differs from the offence of wrongful confinement in the following manners:i) Offence of wrongful restraint , is the genus , whereas the offence of wrongful confinement is a species . Wrongful confinement is severe form of wrongful restraint . ii) In the offence of wrongful restraint , the offender obstructs the victim from proceeding to any particular direction towards which he had right to preceed. But in the offence of wrongful confinement , the offender obstructs the victim from proceeding beyond certain circumscribing limits towards which he had right to proceed .

iii) In the offence of wrongful restraint , the restraint is partial , the victim could proceed towards any other direction than towards the direction he was restrained .

But In the offence of wrongful confinement , the restraint is total , the victim could not proceed towards any direction. iv) Wrongful confinement is a more serious offence than wrongful restraint . Criminal force and Assault. Definition of Criminal force :Section 350 of the Indian Penal Code defines the offence of Criminal Force . According to this section , whoever intentionally uses force to any person , without that person’s consent , in order to the committing of any offence, or intending by the use of such force to cause , or knowing it to be likely that by the use of such force he will cause injury , fear or annoyance to the person to whom the force is used , is said to use criminal force to that person . This section requires the following three ingredients :i) There must be an intentional use of force to any person ; ii) Such force must have been used without that person’s consent ; iii) It must have been used – a) in order to commit any offence ; or b) with intent to cause injury , fear or annoyance to the person against whom it is used. Definition of assault :The offence of assault is defined by section 351 of the Indian Penal Code . According to this section , whoever makes any gesture , or preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person , is said to commit the offence of assault . It is to be kept in mind that mere words do not amount to an assault . But the words which a person uses may give to his gestures or preparations such a meaning as may make those gestures or preparations amount to an assault. Section 351 of IPC requires two ingredients :i) The offender excited a reasonable apprehension that he intends immediately to offer violence ; ii) The offender excited an apprehension that he is about to use criminal force ; iii) There must be a threat coupled with present ability of the offender to carry his intention into effect. Difference between Criminal force and assault.

The points of differences between the offences of criminal force and assault are as follows :i) Assault is the gesture and preparation to apprehend the victim that the offender will use criminal force . But criminal force is intentional use of force to the victim without his consent. ii) Criminal force includes assault . But assault may not include criminal force. iii) An assault is something less than the use of criminal force, the force being cut short before the blow actually falls . But criminal force is something more than the assault , the force is actually used criminally crossing the limit of gesture and preparation.. iv) Assault consists of an attempt to offer by a person having present ability with force to do any hurt or violence to the person of another ; it is committed whenever a well founded apprehension of immediate peril from force already partially or fully put in motion is created . But in criminal force the motion , change of motion or cessation of motion of the victim is actually caused by use of force. Theft and extortion. Theft and extortion. Definition of Theft :The offence of Theft has been defined by Section 378 of IPC . According to this Section , whoever , intending to take dishonestly any movable property out of the possession of any person without that person’s consent , moves that property in order to such taking , is said to commit theft. To constitute the offence of theft the essential ingredients are as follows--a) Subject matter should be a movable property,i.e., corporal property except land and things attached to the earth ; b) The subject matter should be moved out of the possession of any person. So the person in possession need not be owner of the property ; c) This moving out of the subject matter should be without the consent of the person in possession of it. And so the moving out may be permanent or temporary in nature and d) Such taking out of the property should be with dishonest intention and not in good faith. Definition of Extortion :-

The offence of extortion is defined by Section 383 of IPC . According to Section 383 , whoever intentionally puts any person in fear of any injury to the person or to any other , and thereby dishonestly induces the person so put in fear to deliver to any

person any property or valuable security, or anything signed or sealed which may be converted into a valuable security , commits extortion. The essential ingredients of the offence of Extortion are as follows :a) The offender must put any person in fear of injury to that person or any other person . The term Injury according to Section 44 is any harm whatever illegally caused to any person in body , reputation , or property. It is not necessary that the injury should be only in body ; b) The putting of a person in such fear must be intentional ; c) The offender must thereby induce the person so put in fear to deliver to any person i) any property , ii) valuable security or iii) anything signed or sealed which may be converted into valuable security . So fear must precede the delivery of property; and d) Such inducement must be done dishonestly ,i.e., to cause wrongful gain or wrongful loss. Difference between Theft and Extortion :The differences between the offence of Theft and Extortion are as follows ;a) The element of dishonest intention to obtain property exists in both the two offences. b) In Theft the offender takes out the property without consent of the possessor. On the other hand , in extortion the offender obtains the consent by putting the person in possession of the property or to any other in fear of injury. c) In Theft , the subject matter is always movable property . But in extortion the subject matter may be movable or immovable property, d) The element of delivery of property does not exist in Theft . But in Extortion it exists. e) In Theft the element of applying force or fear is absent . Whereas , in Extortion , the offence is committed by overpowering the will of the possessor to induce him to deliver the property. Theft and Criminal misappropriation of property.. Definition of Theft :( Please see the earlier note ) Definition of Criminal misappropriation of property :-

( Please see the earlier note ) Difference between Theft and Criminal misappropriation of property:The offences of theft and Criminal misappropriation of property differs from each other on the points of i) intention , ii) nature of property and iii) character of possession , as follows :i) In the offence of theft , the offender takes out the property dishonestly . Whereas , in the offence of Criminal misappropriation of property the offender dishonestly misappropriates or converts the property to his own use . ii) In the offence of theft , the property must be movable . But In the offence of Criminal misappropriation of property , the property may be movable or immovable . iii) In the offence of theft , there is an invasion of the right of possession because the property is taken out of another’s possession . In the offence of Criminal misappropriation of property , there is no invasion of the right of possession because the offender is already in possession of the property. Extortion and Robbery. Definition of extortion :The offence of extortion has been defined by section 383 of the Indian Penal Code . According to the section 383 , whoever intentionally puts any person in fear of any injury to the person , or to any other , and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security , or anything signed or sealed which may be converted into a valuable security , commits the offence of extortion . The important ingredients of the offence of extortion are : i) The offender must put any person in fear of injury to that person or any other person ; ii) And such putting of a person in fear should be intentional ; iii) The offender must induced thereby the person so put in fear to a) deliver to any person any property , b) valuable security or c) anything signed or sealed which may be converted into a valuable security ; and iv) the offender induced the victim dishonestly.

Definition of robbery :-

Section 390 of the Indian Penal Code defines robbery . According to this section robbery is the aggravated form of either theft or extortion because in all robbery there is either theft or extortion. The offence of theft becomes robbery if , in order to the committing of the theft , or while committing the theft , or in carrying away or attempting to carry away property obtained by the theft , the offender , for that end , voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint , or fear of instant death or of instant hurt , or of instant wrongful restraint . The offence of extortion becomes robbery if , the offender , at the time of committing the extortion , is in the presence of the person put in fear , and commits the extortion by putting that person in fear of instant death or of instant hurt , or of instant wrongful restraint to that person or to some other person , and , by so putting in fear, induces the person so put in fear then and there to deliver up the thing so extorted . Explanation to the section clarifies that the offender is said to be present if he is sufficiently near to put the other person in fear of instant death or of instant hurt , or of instant wrongful restraint . Difference between Extortion and Robbery:Both the two offences of extortion and robbery can be committed by one offender with the element of fear , force and delivery of movable or immovable property . But the main point of difference between Extortion and Robbery is consent :i) In robbery , the offender takes the property from the owner without his consent . But in extortion , the offender commits the offence obtaining consent wrongfully . Kidnapping and abduction . Definition of Kidnapping :The offence of kidnapping , according to the section 359 of the Indian Penal Code , is of two kinds --- 1) kidnapping from India , and 2) kidnapping from lawful guardianship . 1) Kidnapping from India is defined by section 360 of the Indian Penal Code . According to this section , whoever , conveys any person beyond the limits of India , without the consent of that person or of some person legally authorized to consent on behalf of that person , is said to commit the offence of kidnapping from India . 2) Kidnapping from lawful guardianship is defined by section 361 of the Indian Penal Code . According to this section , whoever takes or entices a minor male under 16 years of age if a male , or under 18 years of age if a female , or any person of unsound mind , out of the keeping of the lawful guardianship of such minor or person of unsound mind , without the consent of such guardian , is said to commit the offence of kidnapping from lawful guardianship .

The words lawful guardianship in this section includes any person lawfully entrusted with the care or custody of such minor or other person . But this section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child , or who in good faith believes himself to be entitled to the lawful custody of such child , unless such act is committed for an immoral or unlawful purpose . The essential elements of the offence of kidnapping from lawful guardianship are as follows :a) The offender took or enticed away a minor or a person of unsound mind ; b) Such minor , if male , must be under 16 years of age , and if female must be under 18 years of age ; c) The act must be one of taking or enticing out of the keeping of the lawful guardianship of such minor or person of unsound mind ; d) The act of taking or enticing out must be done without the consent of the lawful guardian. Definition of Abduction :The offence of abduction is defined by section 362 of the of the Indian Penal Code . According to this section , whoever , by force compels , or by any deceitful means induces , any person to go from any place , is said to commit the offence of abduction. To constitute the offence of abduction the following ingredients must remain present :i) The offender enticed a person by deceitful means or by forcible compulsion to go away from any place ; ii) The offence of abduction was committed for any of the purposes enumerated in section 366 of the IPC. Difference between Kidnapping from lawful guardianship and Abduction :The differences between the offences of Kidnapping and abduction are as follows ;1) The offence of abduction can be committed with respect to a person of any age . Likewise , the offence of kidnapping from India can also be committed with respect to a person of any age. On the other hand kidnapping from lawful guardianship can only be committed with respect to a minor under 16 years of age , if male , and under 18 years of age , if a female . But the offence of kidnapping from lawful guardianship can be committed with respect to a person of unsound mind of any age.

2) In case of abduction , the offender must use compulsion , force , or deceitful means . But in kidnapping , the minor is simply taken away or enticed away . 3) In case of abduction or kidnapping from India , if the victim is capable by law of giving consent , the offence is not committed . But in case of kidnapping from lawful guardianship giving consent by the victim is immaterial or inoperative. 4) In case of kidnapping from lawful guardianship , the person kidnapped must be removed out of the custody of a lawful guardian . A person without a guardian can not be kidnapped . But abduction has reference exclusively to the person abducted. 5) Abduction is an auxiliary act , not punishable by itself , but made criminal only when it is committed with one or other intents mentioned in section 364 onwards of IPC . But kidnapping is a substantive offence , either from India or from lawful guardianship. 6) Kidnapping from lawful guardianship can not be abetted , but if there is a conspiracy , conviction for abetment can be sustained. But abduction or kidnapping from India can be abetted. 7) In case of kidnapping , intention of the offender is wholly irrelevant . But in case of abduction intention of the offender is an important factor. Criminal Misappropriation of property and Breach of Trust. Definition of Criminal Misappropriation of property :Section 403 of the Indian Misappropriation of property .

Penal

Code

defines

the

offence

of

Criminal

According to this section whoever, dishonestly misappropriates or converts to his own use any movable property commits this offence . The offence of criminal misappropriation of property is committed where the initial possession is innocent but the retention thereof becomes wrongful and fraudulent by a subsequent conversion for his own use. The essential elements of the offence are as follows :a) The property belongs to a person other than the offender ; b) The offender appropriated the said property or converted it to his own use ; c) He did so dishonestly or with the intention to cause wrongful gain to him or to cause wrongful loss to the other person : and d) Dishonestly misappropriated property must be movable. Definition of Criminal breach of trust :-

Section 405 of the Indian Penal Code defines the offence of Criminal breach of trust .

According to this section whoever, being in any manner entrusted with property , or with any dominion over property, dishonestly misappropriates or converts to his own use that property , or dishonestly uses or dispossess of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged , or of any legal contract, express or implied , which he has made touching the discharge of such trust , or willfully suffers any other person so to do , commits criminal breach of trust. The essential elements of the offence of Criminal breach of trust are as follows :a) There must have Criminal intention or mens rea to constitute the offence ; b) There must be an entrustment with the property or domain over it ; c) That the offender dishonestly i) misappropriated it , or ii) converted it to his own use , or iii) used it , or iv) disposed it of ; d) That the offender or some other person at his instance did so in violation of i) any direction of law prescribed the mode in which trust s to be discharged , or ii) any legal contract , express or implied , which he had made touching the discharge of such trust . Difference between Criminal Misappropriation of property and Criminal breach of trust :The differences between the offence of Criminal misappropriation of property and Criminal breach of trust are as follows ;a) In the offence of Criminal breach of trust , there is a contractual relationship between the parties . Whereas , in the offence of criminal misappropriation of property no contractual relationship exists in between the parties . b) In Criminal breach of trust conversion takes place with respect to the property held by a person in a fiduciary capacity . But in criminal misappropriation of property the person does not hold the property in a fiduciary relationship rather it comes to the possession of offender in any manner; and

c) In criminal breach of trust , the property is lawfully entrusted to the offender . And the offender holds the property subject to some obligations , duties or trust but he dishonestly misappropriates it or willfully suffers any other person instead of

discharging the duties and obligations attached to the trust. On the other hand , in criminal misappropriation of property , possession of the property is acquired by the offender not lawfully but casually or otherwise and the offender misappropriates the property afterwards. Forgery and cheating . Definition of forgery :The offence of forgery is defined by section 463 of the Indian Penal Code . According to the section 463 , whoever , makes any false document or false electronic record or part of a document or electronic record with intent to cause damage or injury , to the public or to any person , or to support any claim or title , or to cause any person to part with property , or to enter into any express or implied contract , or with intent to commit fraud or that fraud may be committed , commits forgery. The essential ingredients of the offence of forgery are as follows :i) The making of a false document or part of it , ii) Such making must be with intent to cause damage or injury to the public or any person ; or to cause any person to part with property ; or to enter into any express or implied contract ; or to support any claim or title ; and iii) It is made with intent to commit fraud or that fraud may be committed. Definition of cheating :The offence of cheating is defined by section 415 of the Indian Penal Code . According to the section 415 , whoever , by deceiving any person , fraudulently or dishonestly induces the person so deceived to deliver any property to any person , or to consent that any person shall retain any property , or which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body , mind , reputation or property , is said to cheat . A dishonest concealment of facts is a deception within the meaning of this section . The essential ingredients of the offence of cheating are as follows :i) Deception of a person either by making or misleading representation or by other action or omission ; ii) Fraudulent or dishonestly inducing the person --a. to deliver any property to any person ; or b. to consent that any person shall retain any property ; or

iii) Intentionally inducing the person to do or omit to do anything which he would not do or omit if he were not so deceived , and which act or omission causes or is likely to cause or harm to the person in body, mind , reputation or property . Distinctions between forgery and cheating ;The points of differences in between the two offences of forgery and cheating may be best shown by the tabular form :In both the two offences the element of fraud is common . Cheating is committed only with respect to any person but forgery may be committed against the any person as well as public . Both the two offences may be committed with respect to movable or immovable property. Forgery ( Section- 463 of IPC. )

Cheating ( Section- 415 of IPC. )

i) The offence of forgery is limited within the making of a false document or part of it including electronic records,

i) The offence of cheating relates to the deception of a person either by making or misleading representation or by other action or omission ;

ii) Forgery is committed with intent to a. cause damage or injury to the public or any person ; or

iii) Cheating is committed not against the public but against any person to induce , Intentionally , to do or omit to do anything which he would not do or omit if he were not so deceived , and which act or omission causes or is likely to cause or harm to the person in body, mind , reputation or property .

b. to cause any person to part with property ; or c. to enter into any express or implied contract ; or d. to support any claim or title ; and

ii) Cheating includes both the elements of fraud or dishonesty to induce the person --a. to deliver any property to any person ; or b. to consent that any person shall retain any property ; or

iii) Element of fraud is present in forgery because It is made with intent a. to commit fraud or b. that fraud may be committed.

2. Questions and answers . Q :- "The jurisdiction of the Indian Criminal Courts is intra-territorial as well as extra – territorial. " Explain the statement with illustrations. Answer :The jurisdiction of the Indian Criminal Courts are two types –1) Intra-territorial and 2) Extra- Territorial . The Indian Criminal Courts exercise these two kinds of territorial jurisdictions . According to the Section 1 of the Indian Penal Code it is extended to the whole of India except to the state of Jammu and Kashmir . So the IPC has no applicability to the state of Jammu and Kashmir . 1. Intra-territorial jurisdiction :Section 2 of the Indian Penal Code provides the intra-territorial jurisdiction of the Indian criminal courts . According to the section 2 of the Indian Penal Code every person shall be liable to punishment by the IPC and not otherwise for every act or omission contrary to the provisions thereof , of which , he shall be guilty within India . The terms “ Every Person “ include all persons without limitations and irrespective of nationality , allegiance , rank , status , caste , colour and creed .Thus for instance , if a German or a Frenchman commits adultery in India , he will be liable under the Indian Penal Code and he can not plead that adultery is not an offence in his country . A company , according to the legal interpretation , a person , and so a company would be included within the terms . But a company can not be prosecuted for the offence which can be committed only by individual ,e.g. murder , perjury , etc. or for the offences which are compulsorily punishable with imprisonment . According to the maritime territory , a state includes land plus the portion of the sea washing it’s coast upto twelve nautical miles into the sea . The Government of India , vide notification dated 30-9-1967 , declared that it’s maritime territory extends upto twelve nautical miles into the sea measured from the base line . So an offence committed within the limits of such territory should be an offence triable by the Indian Criminal courts according to the provisions of IPC. But criminal courts have no jurisdiction to try a few privileged classes of persons who are not liable to be punished for any crime under the IPC . They are ------

i)The President and the Governor of a State . 2) Foreign Soverigns . 3) Ambassadors . 4) Allien Enemies . 5) Foreign Army and 6) Warships . 2. Extra-territorial jurisdiction :Section 3 and 4 of the Indian Penal Code provides extra – territorial jurisdiction of the criminal courts of India . Section 3 says that any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this code for any act committed beyond India in the same manner as if such act had been committed within India . Section 4 provides that the provisions of IPC apply also to any offence committed by ---i) any citizen of India in any place without and beyond India ; ii) any person on any ship or aircraft registered in India wherever it may be ; iii) any person in any place without and beyond India committing offence targeting a computer resource located in India. While explaining , it has been laid down in section 4 that the word offence includes every act committed outside India which if committed in India would be punishable under this code .The expression computer resource shall have the meaning assigned to it by the Information Technology Act . Thus , if A , who is a citizen of India , commits a murder in Uganda he can be tried and convicted of murder in any place in India in which he may be found. Q:- “The Law presumes innocence until guilt is proved” 1 . Explain with illustrations. 2. Discuss the circumstances when presumption of innocence is negatived under the Indian Penal Code. Answer:1 . Doctrine of presumption of innocence came out from the abstract political philosophy of individual liberty . This philosophy says that it is better that nine guilty men get escape , rather than one innocent person be hanged . The rule is that everyone should be presumed to be innocent until he is proved guilty . It is the duty of prosecution to prove that the accused is guilty beyond all shadow of reasonable doubt on it’s own strength of

evidence. What the rule actually means is that an accused of a crime can not be made bound to be witness against himself to make any inculpatory statement against him unless he offers himself to be a witness . The accused is supposed to stand in the court as an innocent man till he is proved to be guilty by prosecution . But once the prosecution proves that the accused is guilty , the onus of proof shifts on the accused to prove that he is not guilty . It is to be kept in mind that the burden of proof always lies on the prosecution , it never shifts . But the onus of proof shifts from one side to the other , as and when, one side discharges it’s liability. This fundamental doctrine of presumption of innocence is subject to some limitations . For example section 114 of the Indian Evidence Act lays down that the court may presume that the existence of any fact which it thinks likely to have happened , regard being had to the course of natural events , human conduct and public and private business in their relation to the facts of the particular case . Illustration (a) to the same section provides further that the court may presume that a person who is in possession of stolen goods soon after the theft , is either the thief or a receiver of the stolen property , unless he can account for the possession . In such circumstances when the prosecution proves it primafacie, the presumption of innocence goes away and the onus of proof shifts on the accused to rebut the presumption . Again , presumption of innocence is not extended to make the court believe that certain circumstances existed which exempted the accused from criminal liability . As for example , A committed murder of B . If it is A’s contention that at the time of commission of the offence he was suffering from legal insanity and his case comes within the exception of section 84 of the IPC , it is for A to prove it . So also in the case of exercise of private defence or other exceptions, provided in the IPC . The doctrine of presumption of innocence does not compel the court to believe , in these circumstances , that the accused is innocent . In modern time , there are various statutes negativing the abstract principle of the individual liberty or presumption of innocence , with the emphasis of social welfare . As for example , the Foreigners’ Act , the Prevention of Adulteration of Food Act , the Weights and Measures Act , etc., in these cases , once the prosecution makes out a primafacie case , innocence of presumption goes and the accused is to prove that he is not guilty . 2 . Discuss the circumstances when presumption of innocence is negatived under the Indian Penal Code. Under the Indian Penal Code there are certain offences where presumption of innocence is negatived . And those offences are as follows ---i) Section 486 of the IPC provides that in the offence of selling goods marked with a counterfeit property mark , the accused is to prove that having taken all reasonable precautions and there was no reason to suspect the genuineness of the mark and that he was innocent .

ii) Section 487 of the IPC provides that in the offence of making false mark upon any receptacle containing goods the accused is to prove that he acted without intent to defraud . iii) Section 488 of the IPC provides that in the offence of making use of any such false mark the accused is to prove that he acted without intent to defraud . iv) Section 489E of the IPC provides that in the offence of making or using documents resembling currency notes or bank notes , it is to be presumed that the accused made the document until the contrary is proved . Q;- “Mere medical insanity is not a valid defence under the Indian Penal Code but legal insanity is”, Discuss. Answer :Section 84 of the Indian Penal Code provides one of the general exceptions of crime . According to this section nothing is an offence which is done by a person who , at the time of doing it , by reason of unsoundness of mind , is incapable of knowing the nature of the act , or that he is doing what is either wrong or contrary to law . Essential ingredients of section 84 are as follows :i) The accused committed an offence ; ii) At the time of commission of offence , by reason of unsoundness of mind the accused was incapable of – a) knowing the nature of the act ; or b) whether the act was either wrong or contrary to law . It is important to note that there is difference in between medical madness and legal madness. Every legal insanity is medical insanity but every medical insanity may not be legal insanity. The concept of legal insanity differs considerably from the concept of medical insanity and it is not every form of insanity or madness that is recognized by law as a sufficient excuse. The distinction between medical insanity and the legal insanity lies in the cognitive faculty of a man that affecting the will or emotions. It is only the legal insanity that comes within the purview of section 84 of IPC. There are several types of mental ailments, but none is recognized in law, unless the elements of section 84 are satisfied. When a person is not insane but is imbalanced and excited, and is probably labeling under some kind of obsession or hallucination, section 84 cannot be of any help to him. The law is not concerned with the brain but with the mind, in the sense that mind is ordinarily used, the mental faculties of reason, memory and understanding.

Hon’ble Supreme Court of India held in the case of Jai Lal V Delhi Administration , AIR 1969 SC 15 , that to establish that an act done cannot be said to be an offense as covered by section 84, the following elements must be present : 1] the accused was of unsound mind at the time of commission of the act; and 2] by reason of unsoundness of mind, the accused was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. In the case of Dayabhai Chhaganbhai Thakkar and in the caseof Bhikari , AIR 1964 SC and AIR 1966 SC 1 , respectively , Hon’ble Supreme Court of India held that there are certain principles to be borne in mind before applying section 84 of IPC. They are as follows; a] every type of insanity is not legal insanity; the cognitive faculty must be so destroyed as to render one incapable of knowing the nature of his act or that what he is doing is wrong or contrary to law; b] the court shall presume the absence of such insanity; c] The burden of proof of legal insanity is on the accused, though it is not as heavy as on the prosecution to prove an offense. d] the court must consider whether the accused suffered from legal insanity at the time when the offense was committed; e] in reaching such a conclusion, the circumstances which preceded, attended or followed the crime are relevant considerations; and f] the prosecution in discharging it's burden in the face of the plea of legal insanity has merely to prove the basic fact and rely upon the normal presumption of Law that everyone knows the law and the natural consequences of his act. Thus , it is clear that every medical insanity is not a valid defence in criminal law . That particular medical insanity having no cognitive faculty falls within the purview of legal insanity and that legal insanity is a good defence under section 84 of the Indian penal code . Q:- When is a person said to abet the doing of a thing ? Answer :The offence of abetment is defined by section 107 of IPC . Abetment is a mental process to instigate a person or intentionally aiding that person to do a thing . According to section 107 , a person is said to abet the doing of a thing , who 1) instigates any person to do that thing ; or 2) engages with one or more other person or persons in any conspiracy for the doing of that thing , if an act or illegal omission takes place in pursuance of that conspiracy , and in order to the doing of that thing ; or

3) intentionally aids , by any act or illegal omission , the doing of that thing . Explanation-1 of this section explains that a person who , by willful misrepresentation , or by willful concealment of a material fact which he is bound to disclose , voluntarily causes or procures , or attempts to cause or procure , a thing to be done , is said to instigate the doing of that thing . Thus , if A , a public officer , is authorized by a warrant from a Court of Justice to apprehend Z and B , knowing that fact and also that C is not Z , wilfully represents to A that C is Z , and thereby intentionally caused A to apprehend C , here B abets by instigation the apprehension of C . Explanation-2 of this section further explains that whoever , either prior to or at the time of the commission of an act , does anything in order to facilitate the commission thereof , is said to aid the doing of that act. Abetment takes the form of crime when a person 1) instigates any person to do that thing ; or 2) engages with one or more other person or persons in any conspiracy for the doing of that thing , if an act or illegal omission takes place in pursuance of that conspiracy , and in order to the doing of that thing ; or 3) intentionally aids , by any act or illegal omission , the doing of that thing . And these are essentials to complete abetment as a crime . Q:- a) What is the Offence for which the I.P.C. prescribes “death” as the only punishment ? b) What is the section ? c) Does the section hold good now? Give reasons and reference. d) In case of causing death by negligence a light sentence is prescribed Answer :a) What is the Offence for which the I.P.C. prescribes “death” as the only punishment ? Commission of murder by life convict is the offence for which IPC prescribed death as the only punishment . Section 303 provides that whoever being under sentence of imprisonment for life , commits murder , shall be punished with death . There is no other offence for which the IPC prescribes death as the only punishment . b) What is the section? The offence of murder by a life convict is contained in the section 303 of Indian Penal Code . c) Does the section hold good now? Give reasons and reference. In the case of Mithu v. State of Punjab , Hon’ble Supreme Court of India held that this section is violative of Arts. 14 and 21 of the Constitution of India . Section 303 made the death sentence compulsory when one convict , while undergoing a sentence of imprisonment for life , commits murder . So according to this section no discretion is left with the court in the matter of punishment like the offence under section 302 . It might happen that the life convict was not the actual

offender for whose act the victim was killed . And he might have entangled with the principal offender with the section 34 of IPC or with the section 149 of IPC . And suffering life imprisonment . In that event it would be unjust to take away the discretionary power of court and to make the sentence of death mandatory. The Law commission of India , in it’s comprehensive report , opined against making the punishment of death under section 303 of IPC discretionary . And did not recommend any change with respect to the obligatory punishment of this section . American Constitution forbids cruel and unusual punishment .Capital punishment is generally believed to be cruel and unusual punishment . The critics of capital punishment questioned the Constitutional validity of this section 303 and Hon’ble Supreme Court declared this section unconstitutional . Hon’ble Supreme Court held that mandatory sentence of death prescribed in this section with no discretion left to the court to have regard to the facts and circumstances is unconstitutional being violative of the rights guaranteed under Articles 14 and 21 . Unlike section 302 , this section gave no option to the Court to impose any other sentence but death , no matter what the motivation for the crime was and what the circumstances of the case were .The legislature could not make relevant circumstances irrelevant and deprived the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases. Following the verdict of Mithu’s case regarding unconstitutionality of section 303 of IPC , in the subsequent cases of Surjit Singh , Ranjit Singh and Bhagwan Box Singh , the death sentences were altered by the Hon’ble Supreme Court on the ground that sentence of life imprisonment would suffice to meet the ends of justice . Therefore , the section is now unconstitutional and does not hold good . d) In case of causing death by negligence a light sentence is prescribed U/s 304A I.P.C. To what cases the provisions of this section apply? Section 304A of IPC provides punishment for causing death by negligence act . The sentence is light . According to section 304A of IPC , whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years , or with fine , or with both . Plain reading reveals that the provisions of section 304A applies to the cases of --i) causing death by rash or negligent act ii) not amounting to culpable homicide . The section 304A does not apply to the cases of culpable homicide not amounting to murder . Q:- Discuss the provisions of Indian Penal Code relating to attempt to Commit suicide, should this Section be done away with ?- Explain with reasons. Answer :Section 309 of the Indian Penal Code deals with the attempt to commit suicide , considering it as a crime and providing the punishment for that also therein. Section 309 lays down that whoever attempts to commit suicide and does any act towards the

commission of such offence , shall be punished with simple imprisonment for a term which may extend to one year , or with fine , or with both . Therefore , it is clear that the attempt to commit suicide is an offence . In the Maruti Shripati Dubal’s case , the Hon’ble High court of Bombay Held that the provisions of section 309 is unconstitutional and violative of Articles 14, 19 and 21 . It further held that Art 21 recognizes right to live as a positive right. It includes also a right not to live or not to be forced to live . To put it positively , it should be a right to die , or to terminate one’s life . However Hon’ble Supreme Court of India also held earlier, in the case of P Rathinam that the section violates Article 21 of the Constitution and so it is void . But in the case of Gian Kaur v State of Punjab , in the Constitution Bench , Hon’ble Supreme Court of India overruled the decision of P Rathinam ‘s case and held that section 309 of IPC is Constitutionally valid and not violative of the Articles 21 or 14 of the Constitution of India . The following are the essential ingredients of the offence u/s 309 of the IPC. i) That the person attempted to commit suicide . ii) And did any act towards commission of suicide . Attempt to commit suicide should not be a penal section . Keeping the section in the IPC , the penal part should be deleted therefrom . And compassionate dealing with him such as sending him in any mental care hospital or home for his proper medical care and treatment should be inserted as substitute of penal part in the statute. Suicide does not cause any damage to the person or property of others . So it can not be said to be an offence . Therefore attempt to commit suicide should not be a penal offence . Q:- Define ‘hurt’ . Which kinds of hurt are designated as grievous? Answer :The offence of hurt has been defined by section 319 of the Indian Penal Code . According to section 319 of IPC whoever causes bodily pain , disease or infirmity to any person is said to cause hurt . The definition of hurt contemplates causing of pain by a person to another so it is not necessary that there should be visible injury caused on the person . The causing of pain is sufficient . Causing disease and infirmity also come within the purview of this section . The essential ingredients of the offence of simple hurt are as follows :i) The offender voluntarily caused bodily pain , disease or infirmity to the victim ; ii) The offender did so with the intention of causing hurt or with the knowledge that he would thereby cause hurt to the victim.

Section 320 of the Indian Penal Code says that the following eight kinds of hurt are designated as grievous -----1) Emasculation . 2) Permanent privation of the sight of either eye . 3) Permanent privation of the hearing of either ear. 4) Privation of any member or joint . 5) Destruction or permanent impairing of the powers of any member or joint . 6) Permanent disfiguration of the head or face . 7) fracture or dislocation of a bone or tooth. 8) Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain , or unable to follow his ordinary pursuits . A person can not cause grievous hurt unless the hurt caused falls within one of the clauses specified in section 320 of IPC. Q:- a) Define rape . b) Define Consent . c) Critically discuss the law of consent as defence with reference to rape Cases. d) When a person can be said to have committed rape upon his own wife ? Answer : a) Define rape . Rape for a woman is deathless shame and must be dealt with as the gravest against human dignity . On the basis of this principle the offence of rape is defined by section 375 of the Indian Penal Code . According to this section a man is said to commit rape who , except in the case of sexual intercourse by a man with his own wife not being under fifteen years of age , has sexual intercourse with a woman under the circumstances falling under any of the six following categories :Firstly :- Against her will . Secondly :- Without her consent . Thirdly :- With her consent , when her consent has been obtained by putting her or any person in whom she is interested , in fear of death or of hurt . Fourthly :- With her consent , when the man knows that he is not her husband , and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married .

Fifthly : - With her consent , when , at the time of giving such consent , by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or any unwholesome substance , she is unable to understand the nature and consequences of that to which she gives consent . Sixthly :- With or without her consent , when she is under sixteen years of age . It has also been explained by the section that penetration is sufficient to constitute the offence of rape . It has been pointed out by the different Hon’ble Courts in several cases that mere or slightest penetration is sufficient and penetration of the whole male genital organ or emission of semen is not necessary . In fact penetration is the sine qua non for an offence of rape . From the definition given above , it is clear that rape is forcible ravishment of a woman , and the essence of the offence consists in the act being done against the will or without the consent of the woman. In the case of Phul Singh v State of Haryana , Hon’ble Supreme Court of India described that the offence of rape is the violation , with violence , of the private person of a woman . b) Define Consent . Section 90 of the Indian Penal Code includes definition of consent for the purpose of the code . Section 90 says that a consent is not such a consent as is intended by any section of this code if the consent is given by a person under fear of injury , or under a misconception of fact , or if the consent is given by a person who , from unsoundness of mind , or intoxication , is unable to understand the nature and consequences of that act to which consent is given , or when the consent is given by a person who is under twelve years of age . But section 90 can not be construed as an exhaustive definition of consent in contrast with the offence of rape. In addition to section 90 of the IPC , Section 375 provides one more ground to the effect that the consent given by a woman under sixteen years of age is no consent . The will and consent often overlap . An act done with the will of a person can be said to be an act done with consent . In the purview of the offence of rape , consent means , legal consent or free willful consent given by a woman of more than sixteen years of age who is capable of understanding the nature of sexual intercourse and it’s consequences. c) Critically discuss law of consent as defence with reference to rape Cases. Rape is an accusation which can easily be made and hard to be proved and harder to be defended by the party concerned , though never so innocent. Yet the question of consent is really a matter of defence and it is for the accused to place materials to show that there was free consent and the girl was not under sixteen years of age. The accused can take the defence that he did sexual intercourse with the woman not being under sixteen years of age and with the free and willful consent of the woman . Free consent occurs when the woman is capable of knowing the nature of the act and thus legally able , being above sixteen years of age , to give rational consent being aware of it's nature and circumstances .

But under section 114A of the Indian Evidence Act , in a prosecution for rape under clause (a) ,i.e., when a police officer commits rape within the limits of the police station , (b) ,i.e., rape committed by a public servant , or clause (c) ,i.e., rape committed by a man on the management of or custodian of jail , remand home , place or institution , or clause (d) ,i.e., rape committed by a man on the management of hospital , or clause (e) ,i.e., rape committed by a man on a woman knowingly that she is pregnant , or clause (g) ,i.e., gang rape , of section 376 of the IPC , where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent , the court shall presume that she did not consent . And so in that event the onus of proof shifts upon the accused to rebut the presumption of non-consent . For determination of the presence of consent of the prosecutrix in a case of rape , the accused can show that there was free and willful consent by the following practical circumstances as defence , such as ,--i) written communication of the prosecutrix, ii) admission of the prosecutrix to the effect that she had consent . iii)absence of any injury in the body of prosecutrix, and iv) absence of sign of struggle or vehement resistance offered by the prosecutrix. It may be kept in mind that sexual intercourse without consent does not label a charge of rape against the husband when the wife is above fifteen years of age but below sixteen years of age . d) When a person can be said to have committed rape upon his own wife ? Exception to section 375 provides in negative language that sexual intercourse with the wife , being under fifteen years of age , by her husband , is the offence of rape within the purview of this section . and in that event consent given by the wife for sexual intercourse is not legal consent . This provision is based on the policy of law to protect the children of immature age against sexual intercourse . This is known also as statutory rape by the husband . So when a husband does sexual intercourse with his wife under fifteen years of age , with or without consent , he can be said to have committed rape upon his own wife . a) What is Robbery? b) In what circumstances robbery amounts to dacoity? c) If death is caused in course of dacoity, what is the highest punishment? Answer :What is Robbery? Section 390 of the Indian Penal Code defines robbery . According to this section robbery is the aggravated form of either theft or extortion because in all robbery there is either theft or extortion.

The offence of theft becomes robbery if , in order to the committing of the theft , or while committing the theft , or in carrying away or attempting to carry away the property obtained by theft , the offender , for that end ,voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint , or fear of instant death or of instant hurt , or of instant wrongful restraint . The offence of extortion becomes robbery if , the offender , at the time of committing the extortion , is in the presence of the person put in fear , and commits the extortion by putting that person in fear of instant death or of instant hurt , or of instant wrongful restraint to that person or to some other person , and , by so putting in fear, induces the person so put in fear then and there to deliver up the thing so extorted . Explanation to the section clarifies that the offender is said to be present if he is sufficiently near to put the other person in fear of instant death or of instant hurt , or of instant wrongful restraint . Essential ingredients of the offence of robbery are as follows :i) Offender committed theft as defined in section 378 in the process ; ii) Offender caused or attempted to cause to some persons --a) fear of death , or hurt or wrongful restraint , b) fear of instant death , or of instant hurt or of instant wrongful restraint , iii) Offender did such act either ---a)in order to the committing of the theft , or b) while committing the theft , or c) in carrying away or attempting to carry away the property. In what circumstances robbery amounts to dacoity? Section 391 of the Indian Penal Code provides that when five or more persons conjointly commit or attempt to commit a robbery , or where the whole number of persons conjointly committing or attempting to commit a robbery , and persons present and aiding such commission or attempt , amount to five or more , every person so committing , attempting or aiding , is said to commit the offence of dacoity. The offence of robbery takes the character of dacoity when it is committed conjointly by five or more persons . The words conjointly refers to united or concerted action of the persons participating in the transaction . Essential ingredients of the offence of dacoity are as follows :1) The offenders were five or more in number who committed or attemped or aided to commit robbery ;

2) All such persons were acting conjointly . Usually in case of dacoity , including train dacoity or bus dacoity the offenders are not known to the victims and witnesses though the witnesses or victims get ample opportunity to see them . As such identification of the offenders at the T.I. Parade is very important in a case of dacoity. If death is caused in course of dacoity, what is the highest punishment? Section 396 of the Indian Penal Code says that if any one of five or more persons , who are conjointly committing dacoity , commits murder in so committing dacoity , everyone of those persons shall be punished with death , or imprisonment for life , or rigorous imprisonment for a term which may extend to ten years , and shall also be liable with fine . To constitute this offence the following essential ingredients must remain present . i) Accused persons were five or more in number who committed the dacoity ; ii) They were acting conjointly ; iii) Any one or more of them committed murder ; iv) And such murder was committed in course of dacoity . Section 396 speaks about joint liability of the offenders conjointly commiting a dacoity and for the act of murder committed by any one or more of them. To come within the purview of this section , the murder must be committed in course of dacoity or while committing dacoity . Where murder is committed in attempting to escape without carrying away the stolen property , it does not come within the scope of this section but if the murder is committed while carrying away the stolen property , it falls within the purview of this section . So carrying away the stolen property is must for this section to prove that the murder was committed in course of dacoity . Q :- What is defamation ? What are the exceptions to the offence of defamation ? or, What are the defences against the offence of defamation ? Answer :Defamation is both a Civil wrong as well as Crime . It is open to the person defamed to take the recourse of civil as well as criminal remedy. Defamation is defined by section 499 of the Indian Penal Code . According to this section whoever by --I) words , spoken or intended to be read , or ii) signs , or iii) visible representations –

makes or publishes any imputation concerning any person intending to harm or knowing , or having reason to believe , that such imputation will harm the reputation of such person , is said subject to the exceptions to defame that person. It is also provided that an imputation is said to harm a person’s reputation --a) if it directly or indirectly , lowers , in the estimation of thers ,--i) the moral or intellectual character of that person , or ii) the character of that person in respect of his caste or calling , or iii) the credit of the person , or b) if it causes it to be believed that the body of that person is in a loathsome state , or in a state generally considered as disgraceful . Explanations anything –

to section 499 says that it may amount to defamation to impute

1) to a deceased person , if the imputation – i. would harm the reputation of that person , if living , and ii. is intended to be hurtful to the feeling of his family or near relatives : 2) concerning a company or association or collection of persons as such : 3) in the form of an alternative , or expressed ironically. 4) it directly or indirectly , in the estimation of others , lowers the moral or intellectual character of that person , or lowers the character of that person in respect of his caste or of his calling , or lowers the credit of that person , or causes it to be believed that the body of that person is in a loathsome state , or in a state generally considered as disgraceful . Essential ingredients of the offence of defamation are as follows:1) making or publishing any imputation concerning any person , 2) such imputation must have been made by words either spoken or intended to be read , or by signs , or by visible representations , and 3) such imputation must have been made with the intent to harm , or with knowledge or belief that it will harm the reputation of the person concerned . Exceptions :-Section 499 says about ten exceptions to the offence of defamation . An accused charged with the offence of defamation may take the resort of any of these ten exceptions as defence . These are the privileged occasions . These privileged occasions exempt a person from criminal liability. These exceptions are as follows :-

1) Public good :Imputation of truth made or published for public good.

2) Public conduct of public servants :Any opinion made in good faith with respect to the conduct or character of a public servant in the discharge of his public functions , so far his character appears in that conduct , and no further . 3) Conduct of any person touching any public question :Any opinion expressed in good faith with respect to the conduct or character of a person touching any public question , so far his character appears in that conduct , and no further . 4) Reports of proceedings of Courts :Publication of substantially true report of the proceedings of a Court of Justice or result of any such proceedings. 5) Merits of a case or conduct of witnesses :Expression of opinion in good faith regarding merits of a case decided in Court or conduct of witnesses , parties or agent or with respect to the character of those persons , appears in that conduct , and no further . 6) Merits of public performances :Expression of opinion in good faith regarding the merits of any performance which it’s author has submitted to the judgment of the public or with respect to the character of the author , so far as his character appears in that performance , and no further . 7) Bona fide censure :Censure passed in good faith by person having lawful authority . 8) Bona fide accusation:Accusation preferred in good faith to authorized person . 9) Bona fide imputation :Imputation made in good faith by person for protection of his or other’s interests. 10) Conveying caution :Caution intended for good of person to whom conveyed or for public good .

3. Short Notes . Grievous hurt. The offence of grievous hurt is defined by section 320 of the Indian Penal Code . Section 320 says that the following eight kinds of hurt are designated as grievous ------1) Emasculation . 2) Permanent privation of the sight of either eye . 3) Permanent privation of the hearing of either ear. 4) Privation of any member or joint . 5) Destruction or permanent impairing of the powers of any member or joint . 6) Permanent disfiguration of the head or face . 7) fracture or dislocation of a bone or tooth. 8) Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain , or unable to follow his ordinary pursuits . A person can not cause grievous hurt unless the hurt caused falls within one of the clauses specified in section 320 of IPC. Unnatural offences. Section 377 of the Indian Penal Code provides Unnatural Offences . This section says whoever voluntarily has carnal intercourse against the order of nature with any man , woman or animal , is said to commit the unnatural offence . Penetration is sufficient to constitute the carnal intercourse as described in this section. Several acts between homosexuals are punishable under this section as consent is immaterial in section 377 of IPC. Section 377 relates to the carnal intercourse committed against the order of nature by a man with a man, or in the same manner with a woman , or by a man or woman in any manner with a beast . Like the offence of rape slightest penetration is sufficient . The person taking passive part is equally guilty as an abettor . Sodomy , buggery and bestiality are the punishable instances within the purview of this offence. Criminal Trespass. The offence of Criminal Trespass is defined by section 441 of IPC and it’s punishment is provided by section 447 of IPC .

Under section 441 of IPC whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate , insult, or annoy any person in possession of such property , or having lawfully entered into or upon such property , unlawfully remains there with intent thereby to commit an offence , or to intimidate , or to insult , or to annoy any such person in possession of such property is said to commit criminal trespass. The three ingredients necessary to constitute the offence of criminal trespass are as follows— i) Entry into or upon the property in the possession of another. ii) If such entry is lawful , then unlawfully remaining upon such property and iii) Such entry or unlawful remaining must be with intent --a) to commit an offence , or b) to intimidate , or insult , or annoy any person in possession of the property. Punishment of the offence U/S 447 of the IPC is imprisonment for three months or fine of Rs.500 , or both. The use of criminal force is not necessary to constitute this offence .It is not every trespass that constitute criminal trespass . Continuance in possession after revocation of licence consequent on the death of licensor , does not amount to criminal trespass . 4. Maxims . Ignorantia Juris Non Excusat. “ Ignorantia juris neminem or non excusat “ are the latin terms which mean ignorance of law is no excuse . This maxim , that ignorance of law is no excuse , is recognized by every legal system . After commission of an offence one offender can not take the plea that he did not know the law and had the law been known to him he would not commit the offence . There are three main points of arguments in favour of this maxim . 1) What is right is law and what is wrong is violation of law . The law is generally founded on common sense and principles of natural justice . So every man of ordinary prudence should be aware that he is violating the right of another even if he is not aware that he is breaking the law . Because a man of ordinary prudence should know what is right and what is wrong . 2) If this is not the rule then it would be very difficult for the court of law to ascertain as to whether the person is really ignorant of law or pretending to be ignorant of law in order to take the ground of defence for his guilt . 3) The statutes are drafted in very simple language so as to make it known by the ordinary people easily . And the law is very definite too . So it is something which can be known by the ordinary people .Therefore , it is the duty of every man to know at least that portion of law to which he is concerned mostly .If any portion of law is unknown to him , it becomes the

duty of a person to consult with his lawyer and to know the exact position of law .So there is an absolute and irrebutable legal presumption that every one knows the law .

But the above arguments have limitations . In our legal system , the laws are not definite rather indefinite and complex . There is hardly any country in the world having so many statutes or laws as we have . Therefore , it is not possible for everyone to know all the laws to which he is concerned . Though it is the general rule that ignorance of law is no excuse yet there are some exceptions to this rule . And those exceptions are as follows :1) According to the section 406 of the IPC a misconception of law can be a good excuse . 2) Under Section 78 0f IPC , nothing which is done in pursuance of , or which is warranted by the judgment or order of , a court of Justice , if done whilst such Judgment or order remains in force , is an offence , notwithstanding the court may have had no jurisdiction to pass such judgment or order , provided the person doing the act in good faith believes that the Court had such jurisdiction . 3) Under section 379 of IPC , a mistake of law may be an excuse . It is settled law that where a bonafide claim of right exists , it affords a good defence to a prosecution of theft . 4) Ignorance of some of the provisions of Companies Act may be considered due to inadvertence and the person concerned may be excused . 5) A mistake of foreign law is considered as a mistake of fact for the purpose of civil transactions . One is exempted from the consideration that he is supposed to know the foreign civil laws though he is considered to know the laws of his land . This exemption is only with respect to the civil law but not in criminal law . Whoever stays in a foreign country he is considered to know the criminal laws of that land . As for example , dueling is allowed in France but if the two Frenchmen fight a duel in England they would be punished for a specific offence . 6) Section 72 of the Indian Contract Act states that a person to whom money has been paid , or anything delivered by mistake or under coercion must repay or return it . Thus this section does not make any distinction between money paid under mistake of fact or under mistake of law . The leading case on this matter is Shiba Prasad v Sirish Chandra . 5. Problems . Q :- A an officer of Court of Justice being ordered by that Court to arrest Y , after due inquiry , believing Z to be Y , arrests Z . Has A committed any offence ? Answer :No , in this instant problem A has committed no offence . Section 76 of the Indian Penal Code provides that nothing is an offence which is done by a person who is , or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be , bound by law to do it . Here A has done an act or arrested Z believing him to be Y , by reason of mistake of fact and in good faith or without mens rea . He was bound by law to arrest Y.

According to section 76 of the IPC act done by reason of mistake of fact , in good faith , and bound by law , is no offence . Therefore , in this instant problem A has committed no offence U/S 76 of the IPC . This problem has been given from the illustration (b) of section 76 of IPC . Q :- A enters by night a house which he is legally entitled to enter . Z in good faith taking A for a house breaker attacks A . What offence , if any , is committed by Z ? Answer :No , here Z has committed no offence . Section 98 of the Indian Penal Code provides that an act , which would otherwise be a certain offence , is not an offence , if it is done by reason of the misconception on the part of that person . Here , in this instant problem , Z under misconception , attacks A thinking him as a house breaker . So Z by attacking A under misconception , commits no offence . But A has the same right of private defence against Z , which he would have if Z were not acting under the misconception . This problem has been given from the illustration (b) of the section 98 . Therefore , Z has committed no offence in this given problem. Q:- A , who is an Indian citizen residing in Delhi, abets B , a foreigner Who resides in London through telephone to commit the murder of C in London. Is A guilty of the abetment for murder of C ? Answer :Yes , A is guilty of the abetment for murder of C in London by B. Section 108A of the Indian Penal code provides that a person is said to abet an offence within the meaning of this code who , in India , abets the commission of any act without and beyond India which would constitute an offence , if committed in India . So according to the section 108A of IPC A is guilty of commission of abetment of murder of C by instigating B , in London ,over telephone from India . According to section 107 of IPC abetment of the crime of murder of C is completed when A, the abettor instigated B , over telephone, to commit murder of C , in London, or when A engaged with B in the conspiracy for commission of murder of C , or intentionally aided by act of instigation to commit murder of C . Therefore , A is guilty of the abetment for murder of C in London by B. Q:- A instigates B to murder D , D in pursuance of the instigation stabs D . D recovers from the wound . What offence , if any , is committed by A ? Answer :-

Under Section 108 of Indian Penal Code , A is guilty as abettor , to instigate B , to commit murder of D though D recovers from wound.

Section 108 of IPC lays down that a person abets an offence , who abets either the commission of an offence , or the commission of an act which would be an offence , if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor . Second explanation of section 108 of IPC provides that to constitute the offence of abetment it is not necessary that the act abetted should be committed , or that the effect requisite to constitute the offence should be caused . This problem has been given from the illustration (a) of the second explanation of section 108 of IPC. Here , in this instant problem , A instigates B to commit the murder of D and according to the instigation B stabs D but D recovers from the wound . Therefore , the effect requisite to constitute the offence of murder has not been caused . Second explanation of section 108 of IPC says that it is not necessary that the act of murder what was abetted should be committed . So under section 108 of IPC A is guilty of abetment to murder D by B and punishable according to section 109 of IPC . Q :- A is attacked by a mob who attempted to murder him . He can not effectually exercise his right of private defence without firing on the mob and he can not fire without risk of harming four children who are mingled with the mob . Whether A commits Answer :No , A commits no offence if by so firing he harms any of the children. Section 106 provides right of private defence against a deadly assault when there is risk of harm to innocent person . This section lays down that if . in the exercise of right of private defence against an assault which reasonably causes the apprehension of death , the offender be so situated that he can not effectually exercise that right without risk of harm to an innocent person , his right of private defence extends to the running of the risk . Therefore , in the given problem A is in such situation that he can not effectually exercise his right of private defence without risk of harming four children who are mingled with the mob . The instant problem has been given from the illustration 106 of IPC . So A commits no offence if by so firing he harms any of the children . Q :- A, a police officer, tortures B to induce him to point out where certain stolen property is deposited. What offence, if any, has been committed by A ?

Answer :-

Yes , A has committed the offence u/s 330 of the Indian Penal Code wherein it is laid down that voluntary causing hurt to extort confession , or to compel restoration of property is a punishable offence . Section 330 of IPC says that whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer , any confession or any information which may lead to the detection of an offence or misconduct , or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand , or to give any information which may lead to restoration of any property or valuable security , shall be punished . Therefore , according to section 330 of IPC , voluntarily causing hurt to compel restoration of property is an offence . This problem has been given from the illustration (b) of section 330 of IPC . In this instant problem , A , the police officer tortured B to induce him to point out where certain stolen property is deposited . So A , the police officer has committed the offence u/s 330 of IPC. Q :- A says Z is an honest man , he never stole X’s dog . Is the statement defamatory ? Answer :Yes , the given statement of A is defamatory . Explanation 3 of section 499 of Indian penal Code provides that an imputation in the form of an alternative or expressed ironically , may amount to defamation . Here , in this instant problem , the words used by A intended to cause it to believe that Z did steal the dog of X . Therefore , in the given problem A has committed the offence of defamation unless it falls within one of the exceptions . This instant problem is similar to the illustration (a) of section 499 of the Indian Penal Code .