Indian Penal Code

Q- 1. Define crime, discuss its essential elements.

Ans- it is very difficult to give a correct and precise definition of crime,
Glanville Williams, admitted the impossibility of having a workable
content based definition of crime, points out that the definition of crime
is one of the sharp intellectual problem of law.
Likewise Russell also admitted that to define crime is a task which so
far has not been satisfactorily accomplished by any writer.
Such a difficulty in ultimate analysis arises due to the changing nature of
crime, an outcome of equally dynamic criminal and penal policy of a
state.
However some sociologists, perceiving crime as a social phenomenon
feel that criminal law in a sense, protects certain social interests, and any
act which threatens or poses threat to this interests is define as crime.
In general terms crime is defined as an act punishable by law as
forbidden by statue or injurious to the public welfare. It is very wide
definition, any thing which is injurious to public welfare is crime, in
modern complex society there are many things which are injurious or
against the public welfare for example selling contaminated food
molestation of young children, etc.
Blackstone defines crime:
An act committed or omitted in violation of a public law either forbidding
or commanding it. But in this definition we have to understand what
public law is?
According to Austinian public law is identical with constitutional law.
That being so the crime would then mean an act done in violation of
constitutional law. The definition thus would cover only the political
offence leaving aside a vast area of other criminal behavior.
Blackstone also defines crime as violation of the public rights and duties
due to the whole community considered as a community in its social
aggregate capacity.
Stephen slightly modifies this definition and presents it in the following
form:

IPC

Page 1

A crime is a violation of a right considered in reference to the evil

tendency of such violation as regards the community at large.
Blackstone defines crime only the violation of public rights, while
Stephen includes the element of violation of public duties as well.
But for example a directors of a company fail to manage its affairs
properly the mill is closed, workers are rendered unemployed, production
of a commodity essential for the society is stopped. Will it not be an act
which is injurious to public or the society?
Can we prosecute the directors for any crimes? The answer certainly not
then what is crime?
A crime is those forms of legal wrong which are regarded by the law as
being especially injurious to the public at large.`
Stephen further defines crime is an act forbidden by law and which is at
the same time revolting to the moral sentiments of the society.
If we look up to the penal codes of different countries we find that there
are certainly some acts which though not immoral are highly criminal and
at the same time there may be acts which are highly immoral but not
criminal.
Austin: A wrong which is pursued at the discretion of the injured party
and his representatives is a civil injury; a wrong which is pursued by the
sovereign or his subordinates is a crime.
Thus according to Austin in case of civil wrong a State does not interfere
until the wrong has been committed and proceedings are initiated by the
injured party or by some other person acting on his behalf . in case of
criminal wrong proceeding can be instituted by the sovereign or his
subordinate along. There are many cases of crimes under the Indian
Penal Code where prosecution cannot be launched unless a complaint is
made by the aggrieved party. It is only in case of serious crimes that the
State may on its own initiative take action to punish the wrong doer by
initiation of criminal proceedings in its own name. for example in case of
adultery under section 497 or criminal elopement under section 498 of
the IPC a complaint by the person aggrieved is necessary. No court shall
take cognizance of the offence under the section unless a complaint is
made by the husband of the victim woman.
Donald also admitted the same thing Crime is a social injury and an
expression of subjective opinion varying in time and place.
IPC

Page 2

Conclusion: A pattern of human behavior prohibited by criminal law at a

given time in a given society, thus, depends upon the specific features of
its organization.
A human conduct that, according to the policy-makers comes within the
ambit of the prescribed sanctioned of a state of the purpose of criminal
law can be labeled as Crime. An act or activities prohibited by Law (IPC).
Elements of Crime
The fundamental principal of criminal liability is that there must be a
wrongful act- actus reus, combined with a wrongful intention-mens rea.
This principle is embodied in the maxim, actus non facit reum nisi
mens sit rea. Meaning an act does not make one guilty unless
the mind is also legally blameworthy.

Actus Reus: Comprises the following:

1. Human Conduct or an Activity.
2. The Result of the Act Prohibition by Law.
Illustration: A shoots at B using a rifle intentionally and B dies.

A physical act that attracts criminal sanctions.

Actus reus, sometimes called the external element or the objective

element of a crime, is the Latin term for the "guilty act". Which, when
proved beyond a reasonable doubt in combination with the mens rea,.
Conduct: Result but not prohibition by law (than no crime) i.e. Solders
kills the enemy.
Mens Rea: No act per se (itself) is criminal, the act becomes a crime
only when it is done with a guilt mind. The jurist determines the Mens
Rea.
"guilty mind", produces criminal liability in the common law-based
criminal law jurisdictions.
Illustration. A blacksmith is seized by a gang of robbers and he forced
to break the doors of a house for robbery to enter, and the robbers
committed a robber y.
IPC

Page 3

Q- Whether the Act is voluntary or not.

A- No
Q- Whether the accused have foresight of the consequences.
A-Yes
Conclusion- If there would be two Yes in the above citation then
only it becomes crimes.
Illustration: A while shooting at a tiger kills B, who was behind the
bush , cancelled (hidden) from his view.

Intention to Kill (intention to caused death). Is a basic rule. Intention is

to bring about a desired act. Presumption of Intention- Natural and
probable consequences should be presumed.
Consent- Intention to have sexual pleasure from a person without her
consent.
Knowledge Direct appeal to your senses. Here the probability is very
high (against to commit the act against Law).Exp to purchase a stolen
good. Theft-To taking possession without the consent of the owner.
Motives- Intention and motives are two different thing in a crime. Motive
may be to get anything, Intention to Kill the person. Motive may be good
or bad, but intention is bad than it becomes crime. Motive leads to
intention , and ulterior intention is motive. IN FIXING CRIMINAL
LIABILITY MOTIVE MAY BE IRRELAVANT, BUT INTENTION IS
MAINTAIN OR MAIN ELEMENT.
Recklessness (irresponsibility)- Basic principle of fixing a criminal
liability. Is the combination of : Foresight and Indifference. DOING
SOMETHING WITHOUT THE KNOWLEDGE BUT THE FORESIGHT.
Illustration:
A steal food to feed the starving child.
Motive- To save the life of a child- God.
Intention To steal some food-Bad

IPC

Page 4

Q-2- Mens Rea- mental Element of Crime.

Mens ReaOne of the main characteristic of our legal system is that the individuals
liability to punishment for crimes depends, among other things, on
certain mental conditions. The liability of conviction of an individual
depends not only on his having done some outward acts which the law
forbids, but on his having done them in a certain frame of mind or with a
certain will.
Mens rea means a mental state, in which a person deliberately
violates a law. Thus mens rea means intention to do the
prohibited act
These are known as mental elements in criminal liability. Therefore an act
in order to be a crime must be committed with a guilty mind,
Actus non facit reum nisi mens sit rea, is a well know principle of
natural justice meaning no person could be punished in a
proceeding of criminal nature unless it can be shown that he had
a guilty mind.
In justice concept, actus Reus represents the physical aspect of crime
and mens rea the mental aspect, which must be criminal and co-operate
with the former. Actus reus has been defined as such result of human
conduct as the law seeks to prevent. Mens rea which is a technical term
generally taken to mean some blameworthy mental condition or mind at
fault, covers a wide range of mental states and conditions the existence
of which would give a criminal hue to actus reus. No act is per se
criminal; it becomes criminal only when the actor does it with guilty
mind.
Development of Mens Rea
in the earliest time it was the fundamental presumption that a man in
every case intended to do what he has done. The English criminal law
began with strict criminal liability, and there was no clear distinction
between the Tort and crime.
Therefore the mental attitude of a person was an irrelevant consideration
in so far as trial and punishment was concerned.
But later on bodily punishment came as a substitute of the payment of
damages. It was then the importance of mens rea or the mental attitude
IPC

Page 5

of a person, at the time of commission of crime was realized. With the

passage of time requirement of mens rea as an essential element of a
crime has firmly taken in its roots.
Mans rea in its root
Now it is the combination of act ( actus rea) and intent mens rea which
makes a crime. And the maxim Actus non facit reum nisi mens sit rea
means act alone does not make a man guilty unless his intentions were
so. Is a well know principle of natural justice.
There can be no crime large or small without any evil intent. The
responsibility in crimes must depend on the doing of a willed or voluntary
act and a particular intent behind that act. Most conscious and voluntary
acts are directed towards a particular result or consequence. When one
acts to produce a particular consequence he is said to do that act with
that intention.

I
n
t
e
n
t
i
o
n

A
c
t

a
t
t
e
m
p
t

o
f
f
e
n
c
e

Exceptions to mens rea.

Crime = Voluntary + foresight of the consequencesAct done under compulsion.
If the consequence not looked for the act may be voluntary but not
intentional. For any criminal liability there must be a voluntary act, this
preposition drive from the maximActus me invite factus non est mens actus which means and act
done by me against my will is not my act. This maxim support the
doctrine of Mens Rea- for no person can be held liable for an act done
under fear or compulsion.
For example:
A holds B and compels him at gun point to open the lock of Cs house.
Here Bs act not a willed or intentional act.
IPC

Page 6

The basic requirement of the principle of Mens Rea is that accused must
have been aware of all those elements in his act which make it the crime
with which he charged.

Offence against state, police, nuisance, and stick liability etc mens rea is
not requiring.
Application of Mens Rea in Indian Penal Code

Technically the application of mens rea is not applied to the offences

under IPC. Every office is very clear under IPC 1860. The definition not
only states what accused might have done, that also states about the
state of his mind with regard to the act when he was doing it. Each
definition of the offence is complete In itself. The word Mens Rea are not
use anywhere in IPC. However the equivalent words to those of mens rea
in the IPC code very frequently such expressions are Dishonestly
(S24),Fraudulently (s.25), reason to believe (s.26),voluntarily (s.39).
Moreover Chapter IV of IPC General exceptions (s.76 to s.106) is
provided the circumstances when options of criminal intent may be
presumed.
Case Reference
1. Sankaran Sukumaran V/s Krishnan Saraswathi (1984 Cr Lj
317) SC held that
Mens rea is an essential ingredient of the offence under
section 494 (bigamy), where the second marriage has been
entered in a bona fide belief that the first marriage was not
subsisting, no office under this section committed.
2. C. Veerudu V/s State of Andhra Pradesh (1989 CRLJ 52 (AP)
Sc held that
u/s 498 (A) cruelty means willful conduct. Willful
conduct includes mens rea.
3. Banvarila Agarwal v/s Surya Narayan (1994 Crlj 370) SC
held that.
The intention of the accused must be dishonest and there
must be mens rea.
IPC

Page 7

Conclusion: in modern statutory offenses the maxim has no

longer applicable and the statutes are to be regarded as
themselves prescribing the mental element which is pre-requisite
to a conviction. So mens rea is an essential element of crime, in
every penal statue unless the same either expressly or by
necessary implication is ruled out by the statues.
Act to be voluntary:
Act means a conscious or willed movement. It is a conduct, which results
from the operation of the will . According to Austin any movement of the
body, which is not in consequence of the determination of the will is not a
voluntary act. It is only a voluntary act that amounts to an offence.
Illustration:
A fire at a wild animal but his fire missed and hit B who is behind the
bush and B dies.
Here A would not be liable because he has no intention to kill B, but on
the other hand if A know B is there behind the bush then he will be liable.
Intention + Act + Result = Crime
Crime = Vulnerary + foresight of the consequences.
CONSTITUANT PART OF CRIME
1. Actus Reus- An Act which is prohibited by Law. It is the
physical part of a crime.
2. Mens Rea- Mental element in crime. Intention. mens rea
means a mental state, in which a person deliberately violates a
law. Thus mens rea means intention to do the prohibited act. In
Allrd v. Selfridge, it was held,.
intention to do an act which is made penal by statute or by
common law.
DESIRE IS CONSTRUCTED TO WILL AND THIS WILL FORMS
MOTIVE AND THIS MOTIVE FORMS INTENTION AND
INTENTION FORMS ATTEMPT AND ATTAMPTS FORM
COMMISION OF OFFENCE.
Actus non facit reum, nisi mens sit rea '- '
An act does not make a person legally liable unless the mind is legally
blameworthy'.
IPC

Page 8

Offence against state, police, nuisance, and stick liability etc mens rea is
not require.

Q- Define Section 34, and Section 149.

Or
Differentiate between common intention and common object.
Or
Explain the law relating to joint offenders under the IPC.
Or
Explain the facts and principles laid down in Barendra Kumar
Ghosh V/s Emperor (AIR 1925 PC 1)
AnsThere is a close resemblance between common intention and common
object, though both of them belong to different categories of the office in
criminal law.
(However joint offender is not defined under IPC, however various
provisions of the IPC contemplated joint liability of each person who have
committed a criminal act or offence in furtherance of common intention)
The principle of joint liability is defining u/s 34, and 149 of IPC.
Exceptions of Section 34 -When a criminal act is done by several
persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it
were done by him alone.
Exceptions of S34:
1. Principle of Joint Liability:
Section 34 of IPC explains the principle of joint liability, in
doing the criminal act with common intention. This section
attract the principle of joint liability. A joint liability of a person is
IPC

Page 9

determined according to the manner in which he becomes

associated with commission of the crime. Normally a person may
be participant in a crime in the following ways:
When he himself commit a crime.
When he share in commission of it.
When he, with a view to the commission of crime, sets some
third agency to work, that is he makes some third party his own
agent for committing the crime.
When he helps the offender, after the commissions of the crime
committing the crime.

2. Several Person:
in this section several person means two or more than two person,
criminal act must be done by several persons.
It is held in sachin jana and another v/s state of west
Bengal that act done by two or more persons jointly and
intentionally can be taken as if done by each of them
individually himself
These word of this section deals with those cased when it is difficult
to distinguish precisely the part taken by each of the participant, it
is deem necessary to declare all person liable for the criminal act..
.
Furtherance of Common Intention: S34 deals with the doing of
separate acts, similar or distinct acts by several people. If the criminal
act is done in furtherance of common intention, each person is liable for
the result of such act. Once is prove the criminal act was done in
furtherance of common intention of all, each person is liable for the
criminal act as if it were done by him alone. Section 34 is mainly
intended to meet a case in which it may be difficult to distinguish
between the acts of individual members of a party who act in further of
the common intention of all or to prove exactly what part was taken by
each of them. When such participation is establish section 34 can be
attracted. Sc 3does not say- common intention to all nor does it
says an intention common to all but it says in furtherance
of common intention.
It is held in sevaram v/s state of UP that: the direct proof of
common intention is seldom available. It can only be inferred
form circumstances appearing from proved facts.
Sec34 does not create distinctive substantive offence; it is only a
role of evidence.
Essential ingredient of S.34:

IPC

Page 10

There must be a criminal act.

The criminal act done by several person.
The act is done in furtherance of common intention of all.
Cases:

Nandu rasto v/s state of Bihar:

Criminal conspiracy is the essential ingredient of
common intention u/s34, of IPC. Participant in criminal
act in some manner was also essential but physical
presence at scene of occurrence is not always
necessary.

Barendra Kumar Ghosh v/s Emperor:

It has been observed that though the accused did not
played any role to kill the post master but he was
standing outside to stand and wait , which prove he
was helping in the criminal conspiracy.

Exception of Common intention:

Private defense:
In Subramanian v/s State of Tamil Nadu, -That if the
appellant acted in exercise of their right of private
defense of property it cannot be said that they
committed a criminal act in furtherance of a common
intention because it is protected u/s 96 of IPc.

Section 149: every member of unlawful assembly guilty of

offense committed in prosecution of common object- if an
offense committed by any member of an unlawful assembly in
prosecution of common object of that assembly, or such as the
members of that assembly knew to be likely to be committed in
prosecution of that object, every person who ,at the time of the
committing of that offense, is a member of the same assembly, is
guilty of that offense.
Exceptions of Section 149:

IPC

Principle of vicarious liability. This section is the

declaratory of the principle of vicarious liability of the
members of an unlawful assembly for acts done in
Page 11

prosecution of common object of that assembly, all the

members of that assembly will be vicariously liable for that
offence even one or more, but not all committed the said
office.
Unlawful assembly: It is not necessary under any law that
in all cases of unlawful assembly, with an unlawful object, the
unlawful assembly must be unlawful object to attract this
section. Also too attract section 149 of IPC, only member of
unlawful assembly is not enough, the person should have
understood that assembly as unlawful and was likely to
commit any of the acts which fall within the purview of
section 141 of IPC, and it must have been committed in
prosecution of common object.
Common object: the word Object means purpose or design
to make it common, it must be share by all. It may be formed
at any stage by all or few members. It may be modify or
altered or abandoned at any state. Common object may be
formed by express agreement after mutual consultation.
The sharing of common object would, however, not
necessarily require the member present and sharing
the object to engage himself in doing an over act.
Therefore this section is inapplicable in a case of sudden
mutual fight between two parties, because of lack of common
object.
Essential ingredient of Section 149:

Unlawful assembly as contemplated my section

141 of IPC.
Accused was a member of such assembly.
The accused voluntarily joined that assembly.
He knew the common object of that assembly.
An office was committed by one or few member
of that assembly.
Offense must be committed in prosecution of
common object of that assembly.

Case Ref:

IPC

Page 12

Difference between Section 34 and section 149 of IPC

Base
Nature of
Offense

Principle
element

Range of
Principle
element
Type of
Offense
Necessity

Liability

IPC

Section34
This section is not a
substantive office it is only a
role of evidence. it always
read with other substantive
offices. Punishment cannot
be imposed solely upon this
section. For example if a
person convicted u/s 302 r/w
34 of IPC can legally be
convicted u/s 302 r/w 34.
Common intention- the
principle ingredient of this
section is Common intention,
any act which committed in
furtherance of common
intention attract this section
Common intention within the
meaning of section 34, is
undefined and unlimited.
Common Intention requires
under this section may be of
ANY TYPE.
Prior meeting of mind is
necessary before wrongful act
is done under this section. In
Nanak Chand v/s State of
Punjab Sc held that common intention
presupposes prior concert
and meeting of minds,
whereas a common object
may be formed without
that.
It is a joint liability. A joint
liability of a person is
determined according to the
manner in which he becomes
associated with commission of
Page 13

Section 149
This section is a substantive
offense, it also read with other
sections. Punishment can be
imposed solely upon this section
Where as prosecution file a charge
sheet u/s 149 the court me convert it
to section 34 and impose conviction.

Common Object: the principle

element of this section is Common
Object, any act which committed in
prosecution of common object.
will attract this section
Common object is defined and is
limited to the five unlawful
objects stated in section 141 of
IPC.
Common object require under this
section must be one of the object
mentioned u/s 141 of IPC.
Prior meeting of mind is not
necessary under this section. Mere
membership of an unlawful
assembly at the time of committing
the offense is sufficient.
In the same case (Chand v/s State
of Punjab)Sc held that there
may be cases where the object of
group is one, but the intention of
participants differ.
It is a constructive liability and
vicarious liability. all the members
of that assembly will be vicariously
liable for that offence even one or
more, but not all committed the said

Number of
Person
Participation
in Crime

the crime. It is of
interpretative charater.
Minimum two people require
attracting this section.
Active participation in
commission of crime is
necessary.

office.
Minimum five people require
attracting this section.
Merely membership of the unlawful
assembly at the time of
commissioning of crime would be
sufficient for this section application,
active participation is not
necessary.

Q- Right of private defense extends under certain circumstances

of causing deaths discuss.
Chapter IV (general exception), section 96 to 106 explain the provision
of the Right of private defense. The right of private defense rests on the
general principle that where a crime is endeavored to be committed by
force, it is lawful to repel that force in self defense.
Basic Principle: self preservation is the private instinct of every human
being. Every man has the right of private defense his own body,
property and the body and property of his nearer. This basic principle
has been recognized in the IPC to give protection to the wrong doer, who
commits a criminal act in the course of protecting his person, property,
body and property of his nearest.
Russel: Justified the killing of an aggressor, against the exercise of the
right of private defense for saving her body and property.
Bantham also justified the principle of self preservation in his principle
of penal code, he admit that Magistrate (State) is not such capable to
vigilance (save) every individual, nor the fear of law can restrain bad
men as the fear of the sum total of individual resistance.
Right to private defense and IPC.
S.96, define that nothing is an office which is done in the exercise of the
right of private defense, which lays done the general rule on the right of
private defense. While S.97 which deals with the subject matter of the
right of private defense of body and property and lays down the extent
of the right of private defense, proclaims that every person, subject to
restrictions contained in S.99, has a right to defend his own body and
the body of another , against any office affecting human, and right to
defend the property of his own and his nearer or any other person
IPC

Page 14

against any act which is an offence falling under the definition of theft,
robbery, mischief, or criminal trespass. and S.99 lists the situation
wherein the right to private defense of body as well as property is not
available to an individual, s102 and s105 deal with commencement and
continuation of right to private defense of body and property.
Whereas SS.100,101,103,104 deals with the extant of harm (including
voluntary death) that my be inflicted on the assailant in exercise of the
right of body and of property respectively, while S.98 also provide the
right of private defense against the lunatic person as well.
S100.Right of private defense of the body extends to causing
death:
The right of private defense of the body extends to causing death is
recognized by S100 of IPC, but this right is subject to the restrictions
mentioned in the S.99 of IPC, to the voluntary causing of death or of any
other harm to the assailant, when any one of the six situations
stipulated therein arise in the committing of the offence of body extend
to the causing of voluntary death of the actual or potential assailant if
he through either of the specified assaults causes reasonable and
immediate apprehension of death or grievous hurt in the mind of the
accused.
The categories of assault specified in the sections are:
1.
2.
3.
4.
5.
6.

Assault to kill.
Assault to cause grievous hurt.
Assault to commit rape.
Assault to gratify unnatural lust.
Assault to kidnap or abduct
Assault to wrongfully confining a person and the accused
cannot recourse to the public authority for his release.

Reasonable apprehension of Death or Grievous hurt Sufficient:

The first clause of s.100 stipulates that the right of private defense of
body extends to causing death, when such an assault reasonably causes
the apprehension that death will otherwise be the consequence of such
assault.
the second clause of s100 stipulates that when an assault caused the
reasonable apprehension that grievous hurt will otherwise be the
consequence of such an assault, the right of private defense extends to
causing of death.
In order to avail of such exception of criminal liability under this clause,
what is require to be establish is that there was reasonable
circumstances giving rise to reasonable apprehension of either
IPC

Page 15

death or grievous hurt. Such an apprehension of death or grievous

hurt must be real or reasonable and not an illusory or imaginary.
It must be present and imminent and not remote or distant one.
The reasonable apprehension of cause of death or grievous hurt will be
caused to him , however is required to be judged from the subjective
point of view and it cannot be subject to microscopic and
pedantic scrutiny.
The accused must be bona fide fear that death or grievous hurt would
otherwise be the consequence of the assault if he done not defend. It is
not essential that actual injury should be caused by the aggressor or the
victim before the right of self defense can be availed of. Person
apprehending danger is not required to wait for sustaining injury. Mere
apprehension is sufficient to exercise his right of private defense.
Exception of Right to Private Defense
Right to private defense not available to aggressors.
There is no right to private defense can be claimed by the aggressors. It
is available against any offense and therefore, where an act is done in
exercise of the right of private defense, such act cannot rise to any right
of private defense in favor of the aggressor in return. Chacko v/s state
of kerala.
Quantum of injuries:
If a person exercising the right of private defense has the better of the
aggressor, provided he does not exceed his right because the movement
he exceeds it he commits and offense. The injuries given to the
aggressor by the accused must be in propositioned the assault.
Free fight:
There is no defense available of right of private defense when there is a
free fight between two parties or individual, one another using unlawful
force against each other. Both the sides mean to fight from the start. And
they have the same intention to give the injuries to other.
No right of private defense available in the following condition also:

Against lawful acts.

Unlawful assembly.

Case Laws.
IPC

Page 16

Vishwantha v/s Stateof UP AIR 1960 SC 67

SC held that appellant had the right of private defense of person under
the fifth clause of s.100 IPc and did not cause more harm than was
necessary and acquitted the appellant.
State of UP v/s Zalim and other.
SC held that mere apprehension of death is not the ground of right to
private defense.
State of UP v/s Chattur sing
Honble court held that accused intention and premeditated notion to
murder is clear and accused is liable to be convicted to be murder.

Conclusion:
Right to private defense is essentially a defensive right circumscribed by
the IPC and it is available only when the circumstances clearly justify it. It
is exercised only to repel unlawful aggression and to punish the
aggressor for the offence committed by him. It is basically preventive in
nature and not punitive. It is neither a right of aggression nor a reprisal.
Its exercise cannot be vindictive or malicious.

Discuss the conditions where culpable homocide does not

amount to murder.
or
Discuss the law relating to grave and sudden provocation as laid
down in IPC and state the extent to which it mitigates the
responsibility of the accused for the offence of murder. Refer to
case law to write your answer.

IPC

Page 17

Is grave and sudden provocation a defense to charge of

murder? If so under what circumstances and to what extent?
Culpable homicide is genus, but murder is its species. Elucidate?
Discuss the theory of grave and sudden provocation, and explain
how it affects the liability for culpable homicide not amounting
to murder.
Ans- Chapter XVI- section 299 to 304 dealt with culpable homicide and
murder.
Whoever causes death by doing an act with the intention of
causing death, 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.
Ingredients of S.299
1. With the Intention to causing death.
2. With the intention of causing such bodily injury as is likely to
cause death.
3. With the knowledge that the offence likely by such act to
cause death.
Section 299 defined Culpable Homicide in simple way. Culpable homicide
are of two kinds:
I.
II.

Culpable homicide amounting to murder.

Culpable homicide not amounting to murder.

Culpable homicide is the Genus, and murder is the Species. All murder
are culpable homicide but not vice-versa, it has be held in Nara singh
Challan v/s Sate of Orrisa (1997). Section 299 cannot be taken to be
definition of culpable homicide not amounting to murder. Culpable
homicide is the genus, section 300 defines murder which means murder
is the species of culpable homicide. It is to be noted here that culpable
homicide not amounting to murder is not defined separately in IPC, it is
defined as part of Murder in the section 300 of IPC.
Section 300 Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is
done with the intention of causing death, or
Culpable Homicide is not amounting to murder:
IPC

Page 18

Exception 1 to 5 of s300 of IPC defines conditions when culpable

Homicide is not amounting to murder:
I.
Provocation.
II.
Right of private defense.
III.
Public servant exceeding his power.
IV.
Sudden fight.
V.
Consent.

Exception-1-culpable homicide is not amounting to murder if the

offender, whilst deprive of self control by grave and sudden
provocation, caused the death of the person who gave the provocation
or causes the death of any person by mistake or accident.
The above exception is subject to the following provisions:1. The provocation is not sought or voluntarily provoked by
the offender as an excuse for killing or doing harm to any person.
2. The provocation is not given by anything done in obedience
to the law, or by a public servant in the lawful exercise of
the powers of such public servant.
3. The provocation is not given by anything done in the lawful
exercise of the right of private defense.
Provocation must be grave: upheld in Venkatesan v/s State of
Tamil Nadu (1997)
1. The test of grave and sudden provocation is whether a reasonable
men belonging to the same class of society as the accused, placed in
the situation in which the accused was placed would be so provoked
as to loss his self control.
2. In India words and gestures may also, under certain circumstances,
cause grave and sudden provocation.
3. The mental background created by the previous act of the victim may
be taken into consideration in ascertaining whether the subsequent
act caused grave and sudden provocation for committing the offence.
Illustrations:
1. Y gives a grave and sudden provocation to A. A on this
provocation fires a pistol at Y neither intending nor knowing
himself to be likely to kill Z, who is near him, but out of sight. A kills
Z. Here A has not amounting to murder, but merely culpable
homicide.
2. A attempts to pull Zs nose, in the exercise of private defense, lays
hold of A to prevent him from doing so. A is moved to sudden and
violent passing in consequence kills Z. this is murder, in as much as
IPC

Page 19

the provocation was given by a thin done in exercise of the right of

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

IllustrationZ attempts to horsewhip A, not in such a manner as to cause grievous

hurt to A. A draws out a pistol. Z persists in the assault. A believing in
good faith that he can by no other means prevent himself from being
horsewhipped shoots z dead. A has not committed murder but only
culpable homicide.
Exceptions 3.- Culpable homicide is not murder if the offender, being a
public servant, or aiding a public servant acting for the
advancement of public justice exceeds the powers given to him
by law, and caused death by doing an act which he , in good faith,
believes to be lawful and necessary for the due discharge of this duty as
such public servant and without ill will towards the person whose deaths
is caused.
Exceptions 4- Culpable homicide is not amounting to murder if it is
committed without premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without the offender having taken
undue advantage or acted in a cruel or unusual manner.
Explanation- it is immaterial in such cases which party offers the
provocation or commits the first assault.
Exceptions- 5- culpable homicide is not amounting to murder when
the murder whose death is caused, being above the age of 18 years,
suffers death or take the risk of death with his own consent.
Scope In Raghunath v/s State of Haryana AIR 2003 SC 165, Sc
held that
It is no well settled principle of law that if two views are possible, one in
favor of the accused and the other adversely against it, the view favoring
the accused must be accepted.

IPC

Page 20

Culpable homicide amounting to murder

Section 300 also defines the circumstance when culpable homicide
turn into murder which is punishes u/s 302. Under following 4
circumstances:
Intention to causing deathI. Culpable homicide turn into murder if the act by which the deaths
is caused is done with the Intention of Causing death or
II.
If an act 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
III. If it is done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death,
or
IV.
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 deaths or such injury as aforesaid.
Illustration
A, knows that Z is suffering such a disease that a blow is likely to cause
his death, strike him with the intention of causing bodily injuries. Z dies
in consequence of the blow. A is guilty of murder, although the blow
might not have been sufficient in the ordinary course of nature to cause
the death of a person in a sound state of health.
But if A, knowing that Z is laboring under any disease, gives him such a
blow as would not in the ordinary course of nature kill a person in a
sound state of health, here A although he may intend to cause bodily
injury, is not guilty of murder, if he did not intend to cause death, or
such bodily injury as in the ordinary course of nature would cause death.
A without any excuse fires loaded cannon into a crowd of person and
kills one of them. A is guild of murder, although he may not have had a
premeditated design to kill any particular individual.
In State of Rajashtan v/s Dhool Singh AIR 2004 SC 1264. SC held
that Culpable homocide becomes murder if the attacker cause
an injury which he knows is likely to cause death and, of course,
consequent to such injury the victim should die.
Conclusion-

IPC

Page 21

The main element which is distinguish between murder and culpable

homicide is Intention or in presence of a special mens rea.
If death is the most likely result of an act, it will be murder. If death
is the likely result of an act, it will be culpable homicide not amounting
to murder.

What is abetment? What are various methods by which abetment

is possible?
Ans- Chapter V, section S 107 to 120, relating with Abetment.
When several person s take part in the commission of an offence, each
one of them may contribute in a manner and degree different from the
others to the commission of it. The offence may be committed by the
hands of one person at the instigation of another person, while some
other may only be present for offering help at the time of commission of
it, and still others may help the principal culprit in procuring the tolls. It is
necessary, therefore, to mark the nature and degree of participation of
each of the persons to determine their degree of culpability. However
several gradations of action do not necessarily imply different measures
of guilt with a view to distinctions in punishment.
In English Law, differently treat the principle offender who may be of first
degree and accessories who may be second degree.
IPC- The Indian penal code makes a brad distinction between principals
and abettors but does not recognize the accessory after the fact except
that offenders has been made a substantive offence in some cases.
Under IPC abetment is constituted in the following ways:
1. Instigating.
2. Engaging
3. Aiding.
Instigating- Means the act of inciting another to do a wrongful act. One
may abet the commission of an offence by counseling, suggestions,
encouraging, pouring or commanding another to do an act. In order to
constitute abetment by instigation some active proceeding
towards the preparation of the crime is necessary. To instigate
means to actively suggest or stimulate by any means or language, direct
or indirect, whether it take the form of express solicitation or of hints,
insinuation or encouragement, or to provoke, incite, urge or encourage to
do an act. Any form of language may be used but there must be
IPC

Page 22

reasonable certainty in regard to the meaning of the words which an

inciter may use.
IllusA and B discovering that C intended to commit theft in Zs house.
Arrange together to persuade him to steal there from certain articles
form them. Here A and B will be liable for abetment and C for theft.
Mere acquiescence, silent assent or verbal permission would not
constitute instigation.
A tells B that he intends to murder C,B says do as you like, A kills C,
here B cannot be said to have instigated.
Reason- it was meant actively to suggest or stimulate the commission of
an offence.
Willful misrepresentation or Concealment:
Explanation I of section 107 of IPC says that instigation may be
constituted of willful misrepresentation or willful concealment of a
material fact by one who is bound to disclose it.
Instigation by Letter: Instigation may be direct or it may be by a
letter. Where A writes a letter to B instigating thereby to murder C, the
offence of abetment by instigation is completed as soon as the contents
of the letter become know to B. if the letter never reaches B, it is only an
attempt to abet but not abetment.
Abetment by Engaging
Abetment by conspiracy: abetment of conspiracy consist when two or
more person engage in a conspiracy for doing a thing which is illegal
thing or act or illegal omission.
Thus in order to constituted abetment by conspiracy following conditions
must be there:
1. A conspiracy between two or more person.
2. An act or illegal omission may take place of that conspiracy.
Conspiracy means an agreement between two or more persons:
To do an illegal act or
To do an act which is not illegal by illegal means.
Thus clause II of section 107 of IPC, is a mere combination of person or
agreement is not enough , an act or illegal omission must also take place
in pursuance of the conspiracy and the act or illegal omission must also
be in order to the doing of the thing agreed upon between them.

IPC

Page 23

But for an offence u/s 120A a mere agreement is enough, if the

agreement is to commit an offence.
Clause 2 has to be read together with Explanation 5 of section 108, which
provides that it is not necessary to the commission of the offence of
abetment by conspiracy that the abettor should concert the offence with
the person who commit it. It would be sufficient if he engages in the
conspiracy in pursuance of which the offence is committed.
Conviction for conspiracyNo person can be convicted for conspiracy, if the charge against all other
conspirators has failed, or if other alleged conspirators are acquitted.
Abetment by AidA person abets the doing of a thing who intentionally aids, by any act or
illegal omission, the doing of that thing.
It would be clear if we read clause 3 of s107 with explanation 2, that a
person cannot be held guilty of aiding the doing of an act when the act
has not been done at all.
Mere intention to facilitate, is not sufficient to constitute abetment,
unless the act which it is intended to facilitate actually take place.
IllustrationA servant keeps open the gate of his masters house, so that thieves may
come, and thieves do not come. But the servant intended and informed
thieves the door is open and they can come, he would be held liable for
abetment.
Mere giving of aid- A mere giving of help is not amount of abetment,
until the person who provides the aid does not know that an offence was
being committed or constituted.
IllustrationA wanted to kill B, he perused C to call B, C calls B and B is murdered,
here C provide the aid, but he did not know that A wanted to kill B. So he
would not be held liable for abetment.
Mere presence does not amount to aidingMere presence at the commission of an office done not amount to
intentional aid, unless it was intended to have that effect., and the
present aware that an offence is about to be committed an office, or he
actively support or present hold some position, authority, or rank in
committing the offence.
IPC

Page 24

Aid by illegal omissionWhen law impose a duty on someone and he intentionally for adding
some one in an illegal, failed to discharge his duty he shall be liable for
abetment.

Q-Define wrongful restraint and wrongful confinement and

distinguish between the two.
Section 339. Wrongful restraint
Whoever voluntarily obstructs any person so as to prevent that person
from proceeding in any direction in which that person has right to
proceed, is said wrongfully to restrain that person.
Wrongful restraint means preventing a person from going to a place
where he has a right to go. In wrongful confinement, a person is kept
within certain limits out of which he wishes to go and has a right to go. In
wrongful restraint, a person is prevented from proceeding in some
particular direction though free to go elsewhere. In wrongful
confinement, there is restraint from proceeding in all directions beyond a
certain area. One may even be wrongfully confined in one's own country
where by a threat issued to a person prevents him from leaving the
shores of his land.
Object The object of this section is to protect the freedom of a
person to utilize his right to pass in his. The slightest unlawful
obstruction is deemed as wrongful restraint. Physical obstruction is not
necessary always. Even by mere words constitute offence under this
section. The main ingredient of this section is that when a person
IPC

Page 25

obstructs another by causing it to appear to that other that it is

impossible difficult or dangerous to proceeds as well as by causing it
actually to be impossible, difficult or dangerous for that to proceeds.
Ingredients:
1. An obstruction.
2. Obstruction prevented complainant from proceeding in any
direction.
Obstruction:Obstruction mans physical obstruction, though it may cause by physical
force or by the use of menaces or threats. When such obstruction is
wrongful it becomes the wrongful restraint. For a wrongful restraint it is
necessary that one person must obstruct another voluntarily.
In simple word it means keeping a person out of the place where his
wishes to, and has a right to be.
This offence is completed if ones freedom of movement is
suspended by an act of another done voluntarily.
Restraint necessarily implies abridgment of the liberty of a
person against his will.
What is require under this section is obstruction to free movement of a
person, the method used for such obstruction is immaterial. Use of
physical force for causing such obstruction is not necessary. Normally a
verbal prohibition or remonstrance does not amount to obstruction, but
in certain circumstances it may be caused by threat or by mere words.
Effect of such word upon the mind of the person obstructed is
more important than the method.
Obstruction of personal liberty:
Personal liberty of a person must be obstructed. A person means a
human being, here the question arises whether a child of a tender age
who cannot walk of his own legs could also be the subject of restraint
was raised in Mahendra Nath Chakarvarty v. Emperor. It was held
that the section is not confined to only such person who can walk on his
own legs or can move by physical means within his own power. It was
further said that if only those who can move by physical means within
their own power are to be treated as person who wishes to proceed then
the position would become absurd in case of paralytic or sick who on
account of his sickness cannot move.
Another points that needs our attention here is whether obstruction to
vehicle seated with passengers would amount to wrongful restraint or
not.
An interesting judgment of our Bombay High Court in Emperor v.
Ramlala : "Where, therefore a driver of a bus makes his bus stand across
IPC

Page 26

a road in such a manner, as to prevent another bus coming from behind

to proceed further, he is guilty of an offence under Sec. 341 of the Penal
Code of wrongfully restraining the driver and passengers of another bus".
"It is absurd to say that because the driver and the passengers of the
other bus could have got down from that bus and walked away in
different directions, or even gone in that bus to different destinations, in
reverse directions, there was therefore no wrongful restraint" is the
judgment of our High Court which is applicable to our busmen who
suddenly park the buses across the roads showing their protest on some
issues.
IllustrationsI.

A was on the roof of a house. B removes the ladder and thereby

detains A on the roof.

II.

A and B were co-ower of a well. A prevented B from taking out

water from the well .

Section 340. Wrongful confinement.

Whoever wrongfully restrains any person in such a manner as to prevent
that person from proceedings beyond certain circumscribing limits, is
said "wrongfully to confine" that person.
Object The object of this section is to protect the freedom of a
person where his personal liberty has totally suspended or abolish, by
voluntarily act done by another.
Ingredients:
I.

Wrongful confinement of person.

1. Wrongful restraint of a person
2. Such restraint must prevent that person from proceeding
beyond certain limits.

Prevent from proceedings:

Wrongful confinement is a kind of wrongful restraint, in which a person
kept within the limits out which he wishes to go, and has right to go.
There must be total restraint of a personal liberty, and not merely a
partial restraint to constitute confinement.

IPC

Page 27

For wrongful confinement proof of actual physical obstruction is not

essential.
Circumscribing Limits:
Wrongful confinement means the notion of restraint within some limits
defined by a will or power exterior to our own.
Moral force: Detention through the excise of moral force, without the
accomplishment of physical force is sufficient to constituted this section.
Base
Degree of Offense

Section339Restraint
Wrongful restraint is
not a serious offence,
and the degree of this
offense is
comparatively lees
then confinement.

Principle element

Voluntarily wrongful
obstruction of a person
personal liberty, where
he wishes to, and he
have a right to.

Personal liberty

It is a partial restraint
of the personal liberty
of a person. A person
is restraint is free to
move anywhere other
than to proceed in a
partial direction.
Confinement implies
wrongful restraint.
No limits or boundaries
are required

Nature
Necessity

Section 340Confinement
Wrongful confinement
is a serious offence,
and the degree of this
offense is
comparatively
intensive then
restraint.
Voluntarily wrongfully
restraint a person
where he wishes to,
and he has a right to,
within a circumscribing
limits.
it is a absolute or total
restraint or obstruction
of a personal liberty.

Wrongful confinement
not implies vice-versa.
Certain circumscribing
limits or boundaries
requires.

Conclusion persuasion is not obstruction, physical presence, for

obstruction is not necessary, reasonable apprehension of force is

IPC

Page 28

sufficient, restraint implies will and desire are some of the salient
features of such decisions.
Q. What are the aims and objects of the CPA, 1986? Describe the
constitution, functions and the procedure of District Forum
under the CPA. What are the provisions of appeal under the CPA
and before which authority an appeal lies against an order of an
agency? Explain the composition, jurisdiction, and powers of
State Consumer Forum (State Consumer Redressal Commission)
under CPA. Define and discuss the word"consumer" and
"service" under CPA. Illustrate with cases.
Making money quickly is a very tempting proposition. Businesses,
companies, shopkeepers, retailers, and sellers are all interested in
maximizing their profits. In doing so, very often they neglect the best
interests of the buyer. Many times, a buy gets a defective product, or a
product that fails to perform as promised. Besides losing money put in
purchasing a product, some times, due to defects in the product, the
buyer is injured as well. In all such cases, there is a violation of a legal
right of the buyer and he is entitled to sue the seller. Before enactment
of the Consumer Protection Act, 1986, filing a civil suit for damages was
the only option available to an aggrieved buyer. However, such a suit is
very expensive and time consuming, because of which, buyers were not
able to use this mechanism for relatively smaller amounts. This gave a
field day to the traders because making substandard products or not
delivering on promises was a cheap option to make quick money, after
all, very few buyers would go to court. A common man was completely
helpless because of no control and penalty over unscrupulous sellers.
In this background, the CPA 1986 gave power in the hands of the buyer
by allowing an easier and cheaper way to redress their grievances,
thereby holding the sellers accountable for their actions more often. It
provides redress to a consumer when the purchased product is defective
or when there is a deficiency in service. The following are aims and
objectives of this act 1. The most important objective of this act is to provide a fast and
cheap way for consumers to hold the sellers accountable for their
products or services.
2. Justice to consumers.
3. Protection of consumers from fraudsters or companies selling
substandard products and services.
4. Penalty to sellers for substandard product or service.

IPC

Page 29

5. Check on sellers and service providers.

Besides the above objectives, Section 6 of CPA 1986 also provides certain
rights as objectives to the consumers. These are 1. Right to be protected against goods that are hazardous or
dangerous to life and property.
2. Right to be informed about the quality, quantity, potency, purity,
standard and price or a product and service.
3. Right to competitive pricing.
4. Right to be heard and to be assured that consumer interest will
receive due consideration at appropriate forum.
5. Right to redressal against unfair trade practices and exploitation of
consumers.
6. Right to consumer education.
It is a complete code in the sense that it provides complete details of the
constitution and jurisdiction of the commission and procedure for filing
the complaint and appealing the decision. It does not depend on CPC and
the cases can be finalized completely under this act. In fact, as held
in Ansal Properties vs Chandra Bhan Kohli 1991, Consumer
Disputes Redressal Agencies provide complete machinery for justice
including a final appeal to the Supreme Court and so are outside the
scope of High Courts and HCs can't entertain writ petitions against their
judgments.
Under Section 9 of this act, three agencies are established to hear
consumer complaints 1. A Consumer Disputes Redressal Forum in each district (For
amounts up to 20 Lakhs)
2. A Consumer Disputes Redressal Commission in each state. (For
amounts from 20 Lakhs to 1 Cr)
3. A National Consumer Disputes Redressal Commission in the center.
(For amounts above 1 cr)
District Forum
Composition (Section 10)
IPC

Page 30

1. Each District Forum shall consist of a. A person who is, or who has been or is qualified to be, a District
Judge, who shall be its President
b. two other members, one of whom shall be a woman, who shall
have the following qualifications, namely 1. be not less than thirty-five years of age,
2. posses a bachelor's degree from a recognized university,
3. be persons of ability, integrity and standing,
4. and have adequate knowledge and experience of at least ten
years in dealing with problems relating to economics, law,
commerce, accountancy, industry, public affairs, or
administration
1-A. Every appointment under sub-section (1) shall be made by the State
Government on the recommendation of selection Committee consisting
of the following namely:
1. The President of the State Commission - Chairman,
2. Secretary, Law Department of the State - Member,
3. Secretary, in charge, of the Department dealing with Consumer
affairs in the State - Member.
2. Every member of the District Forum shall hold office for a term of five
years or up to the age of sixty-five years/ whichever is earlier:
3. The salary or honorarium and other allowances payable to, and the
other terms and conditions of service of the members of the District
Forum shall be such as may be prescribed by the State Government.
Jurisdiction (Section 11)
1. Pecuniary Jurisdiction - Subject to other provisions of this Act,
the District Forum shall have jurisdiction to entertain complaints
where the value of the goods or services and the Compensation if
any, claimed does not exceed rupees twenty lakhs.
2. Territorial Jurisdiction - A complaint shall be instituted in a
District Forum within the local limits of whose jurisdiction, IPC

Page 31

1. The opposite party or each of the opposite parties, where

there are more than one, at the time of the institution of the
complaint, actually and voluntarily resides or carries on
business or has a branch office, or] personally works for gain
or
2. Any of the opposite parties where there are more then one,
at the time of the institution of the complaint, actually and
voluntarily resides, or carries on business or has a branch
office, or personally works for gain, provided that in such
case either the permission of the District Forum is given, or
the opposite parties who do not reside, or carry on business
or have a branch office, or personally works for gain, as the
case may be, acquiesce in such institution; or
3. The cause of action, wholly or in part arises.
For a complaint to lie in a district forum, at least a part of the transaction
of the actual business must have occurred in that district. In National
Insurance Co vs Sonic Surgical 2003, a fire accident took place in
Ambala and a part of the claim was partly processed in Chandigarh. It
was held that merely processing of claim in one place does not form a
ground to file a case in that district.
Functioning of a District Forum
Who can file a complaint (Section 12)
The following can file a complaint 1. The consumer to whom the goods or services have been sold or are
agreed to be sold.
2. Any recognized consumer association even if the consumer is not a
member of the association. Recognized means any voluntary
association registered under Companies Act 1956 or any other law
for the time being in force.
3. One or more consumers, where there are numerous consumers all
having same interest, with the permission of district forum.
4. The state or central government.
The complaint must be accompanied with such amount of fee and
payable in such manner as may be prescribed.
The forum may accept or reject the complaint. The complainant must be
given an opportunity to be heard before rejection. The acceptance or
rejection will be decided in 21 days.
IPC

Page 32

Procedure on admission of complaint (Section 13)

Upon acceptance of the complaint, the forum will send a copy to the
opposite party within 21 days, who has to respond with his version of the
complaint within 30 days (extendable by 15 days). Upon receipt of the
response, the forum will give its decision. If no response is received, the
forum will give and ex parte decision. An effort will be made by the forum
to make a decision within 3 months of date of receipt of notice by the
opposite party where no goods testing needs to be done or within 5
months otherwise.
Powers (Findings) of District Forum (Section 14)
If, after conducting the procedure in Section 13, the forum finds that
there was a defect in the product or a deficiency in service or that any of
the allegations in the complaint are true, it can ask the opposite party to
do any of the following 1. to remove the defect pointed out by an appropriate laboratory from
the goods in questions.
2. to replace the goods with new goods of similar description which
shall be free from any defect.
3. to return to the complainant the price or as the case may be, the
charges paid by the complainant.
4. to pay such amount as may be awarded by it as compensation to
the consumer for any loss or injury suffered by the consumer due
to the negligence of the opposite party.
5. to discontinue the unfair trade practice or restrictive trade practice
or not to repeat it.
6. not to offer the hazardous product for sale.
7. to cease manufacture of hazardous goods and to desist from
offering services that are hazardous.
8. when injury has been suffered by may customer who are not easily
identifiable, the opposite party may be required to pay such sum as
the forum deems fit.
9. to issue any corrective advertisement to neutralize the effect of
any misleading advertisement.
10.

to provide adequate costs to parties.

The District Forum also has the power to grant punitive damages in such
circumstances as it deems fit.
IPC

Page 33

The forum must take into account all the evidence and the documents
produced by the parties and the order of the forum should be a speaking
order, which means that it should detail the reasons behind the order.
In K S Sidhu vs Senior Executive Engineer 2001, the complaint was
dismissed by the District Forum by a non speaking order. It did not
discuss the evidence or the documents submitted before it and thus it
was held that the order was unjust and fit to be set aside.
Provisions for Appeal (Section 15)
From District Forum to State Commission (Section 15)
Any person aggrieved by an order by the District Forum may prefer an
appeal against such order to the State Commission within a period of 30
days from the date of the order. The state commission may entertain an
appeal after the expiry of the said period of 30 days if it is satisfied that
there was sufficient cause for not filing it with in that period. With the
appeal, the appellant must deposit 50% of the amount that he is required
to pay or 25000/- (whichever is less).
From State Commission to National Commission (Section 19)
Any person aggrieved by an order by the State Commission may prefer
an appeal against such order to the National Commission within a period
of 30 days from the date of the order. The commission may entertain an
appeal after the expiry of the said period of 30 days if it is satisfied that
there was sufficient cause for not filing it with in that period. With the
appeal, the appellant must deposit 50% of the amount that he is required
to pay or 35000/- (whichever is less).
As per section 19-A, appeal to the State Commission or the National
Commission shall be heard as expeditiously as possible and an effort
shall be made to dispose off the appeal within a period of 90 days from
the date of admission. If the appeal is disposed of after this time, the
commission shall state the reasons for the delay.
From National Commission to Supreme Court(Section 23)
Any person aggrieved by an order made by the National Commission in
exercise of its power conferred by sub-clause (i) of clause (a) of section
21, may prefer an appeal against such order to the Supreme Court within
a period of thirty days from the date of the order. Provided that the
Supreme Court may entertain an appeal after the expiry of the said
period of thirty days if it is satisfied that there was sufficient cause for
not filing it within that period. Provided Further that no appeal by a
person who is required to pay any amount in terms of an order of the
National Commission shall be entertained by the Supreme Court unless
that person had deposited in the prescribed manner fifty per cent. of that
amount or rupees fifty thousand, whichever is less.]
State Commission
IPC

Page 34

Composition (Section 16)

1. Each State Commission shall consist of a. a person who is or has been a Judge of a High Court, appointed by
the State Government, who shall be its President :
Provided that no appointment under this clause shall be made
except after consultation with the Chief Justice of the High Court;
b. two other members, who shall be persons of ability, integrity and
standing and have adequate knowledge or experience of, or have shown
capacity in dealing with problems relating to economics, law, commerce,
accountancy, industry, public affairs or administration, one of whom
shall be a woman :
Provided that every appointment made under this clause shall
be made by the State Government on the recommendation of a selection
committee consisting of the following, namely :(i) President of the State Commission - Chairman,
(ii) Secretary of the Law Department of the State Member,
(iii) Secretary, in charge of Department dealing with
consumer affairs in the State - Member.
2. The salary or honorarium and other allowances payable to, and the
other terms and conditions of service of the members of the State
Commission shall be such as may be prescribed by the State
Government.
3. Every member of the State Commission shall hold office for a term of
five years or up to the age of sixty-seven years, whichever is earlier and
shall not be eligible for re-appointment.
4. Notwithstanding anything contained in sub-section (3), a person
appointed as a President or as a member before the commencement of
the Consumer Protection (Amendment) Act, 1993, shall continue to hold
such office as President or member, as the case may be, till the
completion ] of his term.
Jurisdiction (Section 17)
1. Pecuniary Jurisdiction - Subject to other provisions of this Act,
the State Commission shall have jurisdiction to entertain
complaints where the value of the goods or services and the
Compensation, if any, claimed exceeds rupees 20 lakhs but does
not exceed rupees 1 crore.
2. Territorial Jurisdiction - It can entertain appeals against the
orders of any District Forum of the state.
IPC

Page 35

As per section 17 A , on the application of the complainant or of its own

motion, the State Commission may, at any stage of the proceeding,
transfer any complaint pending before the District Forum to another
District Forum within the State if the interest of justice so requires.
Procedure (Section 18)
The provisions of sections 12, 13 and 14 and the rules made there under
for the disposal of complaints by the District Forum shall, with such
modifications as may be necessary, be applicable to the disposal of
disputes by the State Commission.
National Commission
Composition (Section 20)
1. The National Commission shall consist ofa. a person who is or has been a Judge of the Supreme Court, to be
appointed by the Central Government, who shall be its President
Provided that no appointment under this clause shall be made
except after consultation with the Chief Justice of India
b. not less than four, and not more than such number of members, as
may be prescribed, and one of whom shall be a woman, who shall have
the following qualifications, namely:(i) be not less than thirty-five years of age;
(ii) possess a bachelor's degree from a recognized university; and
(iii) be persons of ability, integrity and standing and have
adequate knowledge and experience of at least ten years in dealing with
problems relating to economics, law, commerce, accountancy, industry,
public affairs or administration:
Provided that not more than fifty per cent, of the members shall be from
amongst the persons having a judicial background
Provided also that every appointment under this clause shall be made by
I. Central Government on the recommendation of a Selection Committee
consisting the following, namely:(a) a person who is a Judge of the Supreme Court, to be nominated by
the Chief Justice of India - Chairman:
(b) the Secretary in the Department of Legal Affairs in the Government
of India - Member;
(c) Secretary of the Department dealing with consumer affairs in the
Government of India - Member;
Jurisdiction (Section 21)
Subject to the other provisions of this Act, the National Commission shall
IPC

Page 36

have jurisdiction (a) to entertain (i) complaints where the value of the goods or services and
compensation, if any, claimed exceeds rupees twenty lakhs; and
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer
dispute which is pending before or has been decided by any State
Commission where it appears to the National Commission that such State
Commission has exercised a jurisdiction not vested in it by law, or has
failed to exercise a jurisdiction so vested, or has acted in the exercise of
its jurisdiction illegally or with material irregularity.
Power and Procedure (Section 22)
The National Commission shall, in the disposal of any complaints or any
proceedings before it, have (a) the powers of a civil court as specified in sub-sections (4), (5) and
(6) of section 13;
(b) the power to issue an order to the opposite party directing, him to
do any one or more of the things referred to in clauses (a) to (i) of subsection (1) of section14, and follow such procedure as may be prescribed
by the Central Government.
Section 22A. Power to set aside ex parte orders - Where an order is
passed by the National Commission ex parte against the Opposite party
or a complainant, as the case may be, the aggrieved party may apply to
the Commission to set aside the said order in the interest of justice.
Section 22B. Transfer of cases - On the application of the complainant
or of its own motion, the National Commission may, at any stage of the
proceeding, in the interest of justice, transfer any complaint pending
before the District Forum of one State to a District Forum of another
State or before one State Commission to another State Commission
Who is Consumer?
As per Section 2 (1) (d) of CPA 1986 - "Consumer" means any person
who, (i) Buys any goods for a consideration which has been paid or
promised or partly paid and partly promised, or under any system of
deferred payment and includes any user of such goods other than the
person who buys such goods for consideration paid or promised or partly
paid or partly promised or under any system of deferred payment when
such use is made with the approval of such person but does not include a
person who obtains such goods for resale or for any commercial purpose;
or
(ii) Hires or avails of any services for a consideration which has been
paid or promised or partly paid and partly promised, or under any system
IPC

Page 37

of deferred payment and includes any beneficiary of such services other

than the person who hires or avails of the services for consideration paid
or promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of
the first mentioned person but does not include a person wo avails of
such services for any commercial purpose;
Based on this definition, the following are essential elements of a
Consumer 1. Buys goods or Hires Services - Physical products such as Car, TV,
Utensils etc as well as intangible services ranging from Hair Cutting
Saloon to Banking etc. are both valid purchases for being a consumer.
The scope of services is quite wide and more and more things are coming
into its ambit slowly. For example, in the landmark case of Indian
Medical Association vs VP Shantha and others 1995, SC held that
patients treated by a medical professional is also a consumer of medical
services and is covered by CPA.
2. For consideration - To be a consumer, paying consideration is a
must. However, consideration may be an immediate payment or a
promise of future payment in full or in part. It can also be any
arrangement of deferred payments. Further, unlike in Sale of Goods Act,
consideration need not only be in the form of money but transaction of
services, exchange or barter is also valid. In Motor Sales & Service vs
Renji Sebastian 1991, the complainant booked a motor cycle to be
delivered on a given date for a consideration. His turn was ignored. The
dealer was ordered to give him the motorcycle for the price of that date
and also 500/- as compensation.
3. For personal Use - The goods or service must be bought for personal
use. Originally, a person who bought a product or a service for
commercial use was not considered a consumer but after the
amendment in 1993, use of such goods for making a livelihood is
accepted. Thus, a self employed person who buys a Photocopy machine
for his own shop is a consumer. However, goods must not be bought for
resale.
In Anant Raj Agencies vs TELCO 1996, a company bought a car for
personal use of a director of the company. It was held that since the car
was bought for personal use and not for commercial use or for making a
profit on a large scale, the company was a consumer.
4. Use by the purchaser or any body else - It is not necessary that
only the purchaser of the goods or services be the user. Anybody who
uses the goods or services with due permission of the purchaser, is also a
consumer. Thus, in a landmark case of Spring Meadows Hospital vs
Harjot Ahluwalia AIR 1998, SC held that the parents of the child who
was treated by the hospital were hirers of the service while the child was
IPC

Page 38

the beneficiary and thus both were consumers.

What is a Service?
As per Section 2 (1) (o) "Services" means service of any description
which is made available to potential users and includes, but not limited
to, the provision of facilities in connection with banking, Financing
insurance, transport, processing, supply of electrical or other energy,
board or lodging or both, housing construction entertainment,
amusement or the purveying of news or other information, but does not
include the rendering of any service free of charge or under a contract of
personal service;
Based on this definition, the scope of services is quite wide. It will not be
an exaggeration to says that any thing for which a customer pays and
that is not a physical product is a service. Cinema halls, Health clubs,
University, College, are all service providers.
In the landmark case of Indian Medical Association vs VP Shantha
and others 1995, SC held that patients treated by a medical
professional is also a consumer of medical services and is covered by
CPA.
In Union of India vs Mrs S Prakash 1991, Telephone facility was held
as a service and the telephone rental paid by the consumer was the
consideration for the service.
The service must be a paid service. Free or non-profit services do not fall
under this category and claims cannot be made regarding such services
under the CPA. In A Srinivas Murthy vs Chairman, Bangalore
Development Authority 1991, the question before the court was
whether a tax payer is a consumer or not. A person, who paid house tax,
was bitten by a stray dog and he sued Bangalore Development Authority
for not taking care of the menace of stray dogs. It was held that there
was no quid pro quo between the tax and the services rendered by BDA.
The removal of stray dogs was a voluntary action of BDA and was done
free of cost. Thus, the complainant was not a consumer and removal of
dogs was not a service under this act.
Just like a defect, which renders a product not as useful as promised,
there can be a deficiency in service, which render a service not as useful
as promised at the time of sale. CPA 1986 allows consumers of services
to take action against service providers for compensating for the
deficiency in the promised service. As per section 2(1)(g), "Deficiency"
means any fault, imperfection, shortcoming or inadequacy in the quality,
nature and manner of performance which is required to be maintained by
or under any law for the time being in force or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in relation
to any service.
Thus, in Mahanagar Telephone Nigam vs Vinod Karkare 1991, when
IPC

Page 39

a complaint with the telephone dept. was pending for more than six
months, it was held to be a deficiency in service.
In Indian Airlines vs S N Singh 1992, a metallic wire was present in
the food given to a traveler because of which his gums were hurt. He was
awarded 2000 Rs as compensation for deficiency in service.
Q. Define the right of private defence. When does a person not
have this right? When does this right extend to causing death?
When does this right start and when does it end?
It is said that the law of self defence is not written but is born with us. We
do not learn it or acquire it some how but it is in our nature to defend and
protect ourselves from any kind of harm. When one is attacked by
robbers, one cannot wait for law to protect oneself. Bentham has said
that fear of law can never restrain bad men as much as the fear of
individual resistance and if you take away this right then you become
accomplice of all bad men.
IPC incorporates this principle in section 96, which says,
Section 96 - Nothing is an offence which is done in the exercise of the
right of private defence.
It makes the acts, which are otherwise criminal, justifiable if they are
done while exercising the right of private defence. Normally, it is the
accused who takes the plea of self defence but the court is also bound
take cognizance of the fact that the accused aced in self defence if such
evidence exists.
In Section 97 through 106, IPC defines the characteristics and scope of
private defence in various situations.
Section 97 - Every person has a right, subject to the restrictions
contained in section 99, to defend first - his own body or body of any other person against any offence
affecting the human body.
second - the property, whether movable or immovable, of himself or
of any other person, against any act which is an offence falling under the
definition of theft, robbery, mischief, or criminal trespass, or which is an
attempt to commit theft, robbery, mischief or criminal trespass.
This allows a person to defend his or anybody else's body or property
from being unlawfully harmed. Under English law, the right to defend the
person and property against unlawful aggression was limited to the
person himself or kindred relations or to those having community of
interest e.g. parent and child, husband and wife, landlord and tenant, etc.
However, this section allows this right to defend an unrelated person's
IPC

Page 40

body or property as well. Thus, it is apt to call it as right to private

defence instead of right to self defence.
It is important to note that the right exists only against an act that is an
offence. There is no right to defend against something that is not an
offence. For example, a policeman has the right to handcuff a person on
his belief that the person is a thief and so his act of handcuffing is not an
offence and thus the person does not have any right under this section.
Similarly, an aggressor does not have this right. An aggressor himself is
doing an offence and even if the person being aggressed upon gets the
better of the aggressor in the exercise of his right to self defence, the
aggressor cannot claim the right of self defence. As held by SC in Mannu
vs State of UP AIR 1979, when the deceased was waylaid and attacked
by the accused with dangerous weapons the question of self defence by
the accused did not arise.
The right to private defence of the body exists against any offence
towards human body, the right to private defence of the property exists
only against an act that is either theft, robbery, mischief, or criminal
trespass or is an attempt to do the same.
In Ram Rattan vs State of UP 1977, SC observed that a true owner
has every right to dispossess or throw out a trespasser while the
trespasses is in the act or process of trespassing and has not
accomplished his possession, but this right is not available to the true
owner if the trespasser has been successful in accomplishing the
possession to the knowledge of the true owner. In such circumstances
the law requires that the true owner should dispossess the trespasser by
taking resource to the remedies available under the law.
Restrictions on right to private defence
As with any right, the right to private defence is not an absolute right and
is neither unlimited. It is limited by the following restrictions imposed by
section 99 Section 99 - There is no right of private defence against an act which
does not reasonably cause the apprehension of death or of grievous hurt,
if done, or attempted to be done, by a public servant acting in good faith
under colour of his office though that act may not be strictly justifiable by
law.
There is no right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous hurt, if done,
or attempted to be done, by the direction of a public servant acting in
good faith under colour of his office though that direction may not be
strictly justifiable by law.
There is no right of private defence in cases in which there is time to
IPC

Page 41

have recourse to the protection of the public authorities.

Extent to which the right may be exercised - The right of private
defence in no case extends to the inflicting of more harm that it is
necessary to inflict for the purpose of defence.
Explanation 1 - A person is not deprived of his right of private
defence against an act done or attempted to be done by a public servant,
as such, unless he knows or has reason to believe that the person doing
the act is such public servant.
Explanation 2 - A person is not deprived of his right of private
defence against an act done or attempted to be done by the direction of
a public servant, unless he knows or has reason to believe that the
person doing the act is acting by such direction, or unless such person
states the authority under which he acts or if he has authority in writing,
unless he produces such authority if demanded.
Upon carefully examining this section, we can see that the right to
private defence is not available in the following conditions 1. when an act is done by a public servant or upon his direction and
the act
1. is done under colour of his office - an off duty police officer
does not have the right to search a house and right to private
defence is available against him. A police officer carrying out
a search without a written authority, cannot be said to be
acting under colour of his office. If the act of a public servant
is ultra vires, the right of private defence may be exercised
against him.
2. the act does not cause the apprehension of death or grievous
hurt - for example, a police man beating a person senselessly
can cause apprehension of grievous hurt and the person has
the right of private defence against the policeman.
3. is done under good faith - there must be a reasonable cause
of action on part of the public servant. For example, a
policeman cannot just pick anybody randomly and put him in
jail as a suspect for a theft. There must be some valid ground
upon which he bases his suspicion.
4. the act is not wholly unjustified - The section clearly says that
the act may not be strictly justified by law, which takes care
of the border line cases where it is not easy to determine
whether an act is justified by law. It clearly excludes the acts
that are completely unjustified. For example, if a policeman is
beating a person on the street on mere suspicion of theft, his
IPC

Page 42

act is clearly unjustified and the person has the right to

defend himself.
However, this right is curtailed only if the person knows or has
reasons to believe that the act is being done by a public servant.
For example, if A tries to forcibly evict B from an illegally occupied
premises, and if B does not know and neither does he have any
reason to believe that A is a public servant or that A is acting of the
direction of an authorized public servant, B has the right to private
defence.
In Kanwar Singh's case 1965, a team organized by the municipal
corporation was trying to round up stray cattle and was attacked by
the accused. It was held that the accused had no right of private
defence against the team.
2. when the force applied during the defence exceeds what is
required to for the purpose of defence. For example, if A throws a
small pebble at B, B does not have the right to shoot A. Or if A, a
thief, is running back leaving behind the property that he tried to
steal, B does not have the right to shoot A because the threat
posed by A has already subsided.
In many situations it is not possible to accurately determine how
much force is required to repel an attack and thus it is a question of
fact and has to be determined on a case by case basis whether the
accused was justified in using the amount of force that he used and
whether he exceeded his right to private defence.
In Kurrim Bux's case 1865, a thief was trying to enter a house
through a hole in the wall. The accused pinned his head down while
half of his body was still outside the house. The thief died due to
suffocation. It was held that the use of force by the accused was
justified.
However, in Queen vs Fukira Chamar, in a similar situation, a
thief was hit on his head by a pole five times because of which he
died. It was held that excessive force was used than required.
3. when it is possible to approach proper authorities - No man has the
right to take the law into his hands and so when he has the
opportunity to call proper authorities, he does not have the right to
private defence. It usually happens when there is a definite
information about the time and place of danger. But law does not
expect that a person must run away to call proper authorities. The
question whether a person has enough time depends on the factors
such as 1. the antecedent knowledge of the attack.
IPC

Page 43

2. how far the information is reliable and precise.

3. the opportunity to give the information to the authorities.
4. the proximity of the police station.
In Ajodha Prasad vs State of UP 1924, the accused received
information that they were going to get attacked by some sections
of the village. However, they decided that if they separated to
report this to the police they will be in more danger of being
pursued and so they waited together. Upon attack, they defended
themselves and one of the attackers was killed. It was held that
they did not exceed the right of private defence.
Right to private defence of body up to causing death
Section 100 of IPC specifies six situations in which the right of private
defence of body extends even to causing death.
Section 100 - The right of private defence of the body extends under
the restrictions mentioned in section 99, to the voluntary causing of
death or of any other harm to the assailant if the offence which occasions
the exercise of the right be of any of the descriptions here in after
enumerated, namely First - such an assault as may reasonably cause the apprehension that
death will otherwise be the consequence of such assault.
Second - such an assault as may reasonably cause the apprehension that
grievous hurt will otherwise be the consequence of such assault.
Third - An assault with the intention of committing rape.
Fourth - An assault with the intention of gratifying unnatural lust.
Fifth - As assault with the intention of kidnapping or abducting.
Sixth - An assault with the intention of wrongfully confining a person
under circumstances which may reasonably cause him to apprehend that
he will be unable to have recourse to the public authorities for his
release.
Even though this section authorizes a person to cause death of another
in certain situation, it is also subject to the same restrictions as given in
section 99. Thus, a person cannot apply more force than necessary and
must contact the authorities if there is an opportunity.
In Viswanath vs State of UP AIR 1960, when the appellant's sister
was being abducted from her father's home even though by her husband
and there was an assault on her body by the husband, it was held that
the appellant had the right of private defence of the body of his sister to
the extent of causing death.
IPC

Page 44

To be able to extend this right up to causing death, the apprehension of

grievous hurt must be reasonable. In case of Sheo Persan Singh vs
State of UP 1979, the driver of a truck drove over and killed two
persons sleeping on the road in the night. People ahead of the truck
stood in the middle of the road to stop the truck, however, he overran
them thereby killing some of them. He pleaded right to private defence
as he was apprehensive of the grievous hurt being caused by the people
trying to stop him. SC held that although in many cases people have
dealt with the errant drivers very seriously, but that does not give him
the right of private defence to kill multiple people. The people on the
road had a right to arrest the driver and the driver had no right of private
defence in running away from the scene of accident killing several
people.
Yogendra Morarji vs State of Gujarat 1980 is an important case in
which SC observed that when life is in peril the accused was not
expected to weigh in golden scales what amount of force does he need to
use and summarized the law of private defence of body as under 1. There is no right of private defence against an act which is not in
itself an offence under this code.
2. The right commences as soon as and not before a reasonable
apprehension of danger to the body arises from an attempt or
thread to commit some offence although the offence may not have
been committed and it is continuous with the duration of the
apprehension.
3. It is a defensive and not a punitive or retributive right. Thus, the
right does not extend to the inflicting of more harm than is
necessary for defence.
4. The right extends to the killing of the actual or potential assailant
when there is a reasonable and imminent apprehension of the
atrocious crimes enumerated in the six clauses of section 100.
5. There must be no safe or reasonable mode of escape by retreat for
the person confronted with an impending peril to life or of grave
bodily harm except by inflicting death on the assailant.
6. The right being in essence a defensive right does not accrue and
avail where there is time to have recourse to the protection of
public authorities.
Duration of the right of private defence of body
Section 102 specifies the duration of the right of private defence of the
body as follows IPC

Page 45

Section 102 - The right of private defence of the body commences as

soon as a reasonable apprehension of danger to the body arises from an
attempt or threat to commit the offence, though the offence may not
have been committed and it continues as long as such apprehension of
danger to the body continues.
The right to defend the body commences as soon as a reasonable
apprehension of danger to the body arises and it continues as long as
such apprehension of danger to the body continues.
Right to private defence of property up to causing death
Section 103 of IPC specifies four situations in which the right of private
defence of property extends even to causing death.
Section 103 - The right of private defence of property extends, under
the restriction mentioned in section 99, to the voluntary causing of death
or of any other harm to the wrong doer, if the offence, the committing of
which, or attempting to commit which, occasions the exercise of the
right, be an offence of any of the descriptions hereinafter enumerated,
namely First - Robbery
Secondly - House breaking by night
Third - Mischief by fire committed on any building, tent, or vessel, which
building tent or vessel is used as a human dwelling or as a place for
custody of property.
Fourth - Theft, mischief or house trespass under such circumstances as
may reasonably cause apprehension that death or grievous hurt will be
the consequence if such right of private defence is not exercised.
A person may cause death in safeguarding his own property or the
property of some one else when there is a reason to apprehend than the
person whose death has been cause was about to commit one of the
offences mentioned in this section or to attempt to commit one of those
offences.
In case of State of UP vs Shiv Murat 1982, it was held that to
determine whether the action of the accused was justified or not one has
to look in to the bona fides of the accused. In cases where there is a
marginal excess of the exercise of such right it may be possible to say
that the means which a threatened person adopts or the force which he
uses should not be weighed in golden scales and it would be
inappropriate to adopt tests of detached objectivity which would be so
natural in a court room.
Duration of the right of private defence of property
Section 105 specifies the duration of the right of private defence of the
IPC

Page 46

property as follows Section 105 - The right of private defence of the property commences
as soon as a reasonable apprehension of danger to the property
commences. It continues in case of theft - till the offender has effected his retreat with the
property or either the assistance of the public authorities is obtained or
the property has been recovered.
in case of robbery - as long as the offender causes or attempts to cause
to any person death or hurt or wrongful restraint or as long as the fear of
instant death or of instance hurt or of instance personal restraint
continues.
in case of criminal trespass - as long as the offender continues in the
commision of criminal trespass or mischief.
in case of house breaking by night - as long as the house, trespass which
has been begun by such house breaking, continues.
The case of Amjad Khan vs State AIR 1952, is important. In this
case, a criminal riot broke out in the city. A crowd of one community
surrounded the shop of A, belonging to other community. The crowd
started beating the doors of A with lathis. A then fired a shot which killed
B, a member of the crowd. Here, SC held that A had the right of private
defence which extended to causing of death because the accused had
reasonable ground to apprehend that death or grievous hurt would be
caused to his family if he did not act promptly.
Q. 5 What do you understand by Culpable Homicide? In what
circumstances Culpable Homicide does not amount to Murder?
What are those exceptions when Culpable Homicide does not
amount to Murder?
The word homicide is derived from two Latin words - homo and cido.
Homo means human and cido means killing by a human. Homicide
means killing of a human being by another human being. A homicide can
be lawful or unlawful. Lawful homicide includes situations where a
person who has caused the death of another cannot be blamed for his
death. For example, in exercising the right of private defense or in other
situations explained in Chapter IV of IPC covering General Exceptions.
Unlawful homicide means where the killing of another human is not
approved or justified by law. Culpable Homicide is in this category.
Culpable means blame worthy. Thus, Culpable Homicide means killing of
a human being by another human being in a blameworthy or criminal
manner.
Section 299 of IPC defines Culpable Homicide as follows Section 299 - Who ever causes death by doing an act with the intention
of causing death, or with the intention of causing such bodily injury as is
likely to cause death, or with the knowledge that he is likely by such act
to cause death, commits the offence of Culpable Homicide.
IPC

Page 47

Illustrations 1. A lays sticks and turf over a pit, with the intention of there by
causing death, or with the knowledge that death is likely to be
thereby caused. Z believing the ground to be firm, treads on it, falls
in and is killed. A has committed the offence of Culpable Homicide.
2. A knows Z to be behind a bush. B does not know it A, intending to
cause, or knowing it to be likely to cause Z's death, induces B fires
and kills Z. Here B may be guilty of no offence; but A has
committed the offence of Culpable Homicide.
3. A, by shooting at a fowl with intent to kill and steal it, kills B who is
behind a bush; A not knowing that he was there. Here, although A
was doing an unlawful act, he was not guilty of Culpable Homicide,
as he did not intend to kill B, or to cause death by doing an act that
he knew was likely to cause death.
Explanation 1 - A person who causes bodily injury to another who is
labouring under a disorder, disease or bodily infirmity, and thereby
accelerates the death of that other, shall be deemed to have caused his
death.
Explanation 2 - Where death is caused by bodily injury, the person who
causes such bodily injury shall be deemed to have caused the death,
although by resorting to proper remedies and skillful treatment the death
might have been prevented.
Explanation 3 - The causing of the death of child in the mother's womb is
not homicide. But it may amount to Culpable Homicide to cause the
death of a living child, if any part of that child has been brought forth,
though the child may not have breathed or been completely born.
Based upon the above definition, the following are the essential elements
of Culpable Homicide 1. Death of a human being is caused - It is required that the death
of a human being is caused. However, it does not include the death
of an unborn child unless any part of that child is brought forth.
2. By doing an act - Death may be caused by any act for example,
by poisoning or by hurting with a weapon. Here act includes even
on omission of an act for which one is obligated by law to do. For
example, if a doctor has a required injection in his hand and he still
does not give it to the dying patient and if the patient dies, the
doctor is responsible.

IPC

Page 48

3. Intention or Knowledge - There must be an intention of any of

the following 1. Intention of causing death - The doer of the act must have
intended to cause death. As seen in Illustration 1, the doer
wanted or expected someone to die. It is important to note
that intention of causing death does not necessarily mean
intention of causing death of the person who actually died. If
a person does an act with an intention of killing B but A is
killed instead, he is still considered to have the intention.
2. Intention of causing such bodily injury as is likely to
cause death - The intention of the offender may not have
been to cause death but only an injury that is likely to cause
the death of the injured. For example, A might intended only
to hit on the skull of a person so as to make him unconscious,
but the person dies. In this case, the intention of the person
was only to cause an injury but the injury is such that it is
likely to cause death of the person. Thus, he is guilty of
Culpable Homicide. However, if A hits B with a broken glass.
A did not know that B was haemophilic. B bleeds to death. A
is not guilty of Culpable Homicide but only of grievous hurt
because he neither had an intention to kill B nor he had any
intention to cause any bodily injury as is likely to cause
death.
Or the act must have been done with the knowledge that such an
act may cause death - When a person does an act which he knows
that it has a high probability to cause death, he is responsible for
the death which is caused as a result of the act. For example, A
knows that loosening the brakes of a vehicle has a high probability
of causing death of someone. If B rides such a bike and if he dies, A
will be responsible for B's death. In Jamaluddin's case 1892, the
accused, while exorcising a spirit from the body of a girl beat her so
much that she died. They were held guilty of Culpable Homicide.
Negligence - Sometimes even negligence is considered as
knowledge. In Kangla 1898, the accused struck a man whom he
believed was not a human being but something supernatural.
However, he did not take any steps to satisfy himself that the
person was not a human being and was thus grossly negligent and
was held guilty of Culpable Homicide.
Murder (When Culpable Homicide amounts to Murder)
Murder is a type of Culpable Homicide where culpability of the accused is
quite more than in a mere Culpable Homicide. Section 300, says that
Culpable Homicide is Murder if the act by which the death is caused is
done
IPC

Page 49

1. with the intention of causing death

2. or with an intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person,
3. or with an intention of causing such bodily injury as is sufficient in
ordinary course of nature to cause death.
4. It is also Murder if the person committing the act knows that the
act is so dangerous that it will cause death or such injury as is likely
to cause death in all probability and he has no valid reason for
doing that act.
Illustrations A shoots Z with an intention of killing him. Z dies in consequence. A
commits Murder.
A intentionally gives Z a sword cut that sufficient in ordinary course of
nature to cause death. Z dies because of the cut. A commits Murder even
though he had no intention to kill Z.
A without any excuse fires a loaded canon on a crowd. One person dies
because of it. A commits Murder even though he had no intention to kill
that person.
Thus, it can be seen that Murder is very similar to Culpable Homicide and
many a times it is difficult to differentiate between them. J Melvill in the
case of R vs Govinda 1876 Bom. analyzed both in the following table
Culpable Homicide

Murder

A person commits Culpable Homicide

if the act by which death is caused is
done -

A person commits Murder if the act b

-

1. with the intention of causing death.

1. with the intention of causing death.

2. with an intention to cause such bodily

injury as is likely to cause death.

2. with an intention to cause such bodily in

likely to cause death of the person to who
3. with an intention of causing bodily injur
injury intended to be inflicted is sufficient
cause death.

3. with the knowledge that such an act is

likely to cause death.

4. With the knowledge that the act is so im

all probability cause death.

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

Page 50

In Augustine Saldanha vs State of Karnataka LJ 2003, SC

deliberated on the difference of Culpable Homicide and Murder. SC
observed that in the scheme of the IPC Culpable Homicide is genus and
Murder its specie. All 'Murder' is 'Culpable Homicide' but not vice-versa.
Speaking generally, 'Culpable Homicide' sans 'special characteristics of
Murder is Culpable Homicide not amounting to Murder'. For the purpose
of fixing punishment, proportionate to the gravity of the generic offence,
the IPC practically recognizes three degrees of Culpable Homicide. The
first is, what may be called, 'Culpable Homicide of the first degree'.
This is the greatest form of Culpable Homicide, which is defined
in Section 300 as 'Murder'. The second may be termed as 'Culpable
Homicide of the second degree'. This is punishable under the first
part of Section 304. Then, there is 'Culpable Homicide of the third
degree'. This is the lowest type of Culpable Homicide and the
punishment provided for it is also the lowest among the punishments
provided for the three grades. Culpable Homicide of this degree is
punishable under the second part of Section 304.
It further observed that the academic distinction between 'Murder' and
'Culpable Homicide not amounting to Murder' has always vexed the
Courts. They tried to remove confusion through the following table Culpable Homicide

Murder

A person commits Culpable Homicide if

Subject to certain exceptions , Culpa
the act by which death is caused
act by which death is caused is done
is done INTENTION
(a) with the intention of causing death; or

1. with the intention of causing death; or

(b) with an intention to cause such bodily

injury as is likely to cause death.

2. with an intention to cause such bodily

likely to cause death of the person to who
3. with an intention of causing bodily inju
injury intended to be inflicted is sufficient
cause death.

KNOWLEDGE
(c) with the knowledge that such an act is
likely to cause death.

4. With the knowledge that the act is so i

in all probability cause death.

Thus, it boils down to the knowledge possessed by the offender regarding

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

Page 51

Situations where Culpable Homicide does not amount to Murder

Section 300 also specifies certain situations when the Murder is
considered as Culpable Homicide not amounting to Murder. These are (Short Details)
1. If the offender does an act that causes death because of grave and
sudden provocation by the other.
2. If the offender causes death while exceeding the right to private
defense in good faith.
3. If the offender is a public servant and does an act that he, in good
faith, believes to be lawful.
4. If the act happens in a sudden fight in the heat of passion.
5. If the deceased is above 18 and the death is caused by his own
consent.
(Full Details)
Exception I - Culpable Homicide is not Murder if the offender, whilst
deprived of the power of self-control by grave and sudden provocation,
causes the death of the person who gave the provocation or causes the
death of any other person by mistake or accident.
The above exception is subject to the following provisos 1. That the provocation is not sought or voluntarily provoked by the
offender as an excuse for killing or doing harm to any person.
2. That the provocation is not given by anything done in obedience to
the law, or by a public servant in the lawful exercise of the powers
of such public servant.
3. That the provocations not given by anything done in the lawful
exercise of the right of private defence.
Explanation-Whether the provocation was grave and sudden enough to
prevent the offence from amounting to Murder is a question of fact.
Illustrations
1. A, under the influence of passion excited by a provocation given by
Z, intentionally kills, Y, Z's child. This is Murder, in as much as the
provocation was not given by the child, and the death of the child
was not caused by accident or misfortune in doing an act caused
by the provocation.

IPC

Page 52

2. Y gives grave and sudden provocation to A. A, on this provocation,

fires a pistol at Y, neither intending nor knowing himself to be likely
to kill Z, who is near him, but out of sight. A kills Z. Here A has not
committed Murder, but merely Culpable Homicide.
3. A is lawfully arrested by Z, a bailiff. A is excited to sudden and
violent passion by the arrest, and kills Z. This Murder, in as much
as the provocation was given by a thing done by a public servant in
the exercise of his powers.
4. A appears as a witness before Z, a Magistrate, Z says that he does
not believe a word of A's deposition, and that A has perjured
himself. A is moved to sudden passion by these words, and kills Z.
This is Murder.
5. A attempts to pull Z's nose, Z, in the exercise of the right of private
defence, lays hold of a to prevent him form doing so. A is moved to
sudden and violent passion in consequence, and kills Z. This is
Murder, in as much as the provocation was given by a thing done in
the exercise of the right of private defence.
6. Z strikes B. B is by this provocation excited to violent rage. A, a
bystander, intending to take advantage of B's rage, and to cause
him to kill Z, puts a knife into B's hand for that purpose. B kills Z
with the knife. Here B may have committed only Culpable
Homicide, but A is guilty of Murder.
Exception 2 - Culpable Homicide is not Murder if the offender, in the
exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the death of
the person against whom he is exercising such right of defence without
premeditation, and without any intention of doing more harm than is
necessary for the purpose of such defence.
Illustration - Z attempts to horsewhip A, not in such a manner as to
cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A
believing in good faith that he can by no other means prevent himself
from being horsewhipped, shoots Z dead. A has not committed Murder,
but only Culpable Homicide.
Exception 3 - Culpable Homicide is not Murder if the offender, being a
public servant or aiding a public servant acting or the advancement of
public justice, exceeds the powers given to him by law, and causes death
by doing an act which he, in good faith, believes to be lawful and
necessary for the due discharge of his duty as such public servant and
without ill-will towards the person whose death is caused.
IPC

Page 53

Exception 4 - Culpable Homicide is not Murder if it is committed without

premeditation in a sudden fight in the heat of passion upon a sudden
quarrel and without the offenders having taken undue advantage or
acted in a cruel or unusual manner.
Explanation-It is immaterial in such cases which party offers the
provocation or commits the first assault.
In a very recent case of Byvarapu Raju vs State of AP 2007, SC held
that in a Murder case, there cannot be any general rule to specify
whether the quarrel between the accused and the deceased was due to a
sudden provocation or was premeditated. "It is a question of fact and
whether a quarrel is sudden or not, must necessarily depend upon the
proved facts of each case," a bench of judges Arijit Pasayat and D K Jain
observed while reducing to 10 years the life imprisonment of a man
accused of killing his father. The bench passed the ruling while upholding
an appeal filed by one Byvarapu Raju who challenged the life sentence
imposed on him by a session's court and later affirmed by the Andhra
Pradesh High Court for killing his 'drunkard' father.
Exception 5 - Culpable Homicide is not Murder when the person whose
death is caused, being above the age of eighteen years, suffers death or
takes the risk of death with his own consent.
Illustration - A, by instigation, voluntarily causes, Z, a person under
eighteen years of age to commit suicide. Here, on account of Z's youth,
he was incapable of giving consent to his own death; A has therefore
abetted Murder.
Q. Define Hurt and Grievous Hurt. Explain the difference.
In normal sense, hurt means to cause bodily injury and/or pain to another
person. IPC defines Hurt as follows Section 319 - Whoever causes bodily pain, disease, or infirmity to any
person is said to cause hurt.
Based on this, the essential ingredients of Hurt are 1. Bodily pain, disease or infirmity must be caused - Bodily pain,
except such slight harm for which nobody would complain, is hurt.
For example, pricking a person with pointed object like a needle or
punching somebody in the face, or pulling a woman's hair. The
duration of the pain is immaterial. Infirmity means when any body
organ is not able to function normally. It can be temporary or
permanent. It also includes state of mind such as hysteria or terror.
2. It should be caused due to a voluntary act of the accused.

IPC

Page 54

When there is no intention of causing death or bodily injury as is likely to

cause death, and there is no knowledge that inflicting such injury would
cause death, the accused would be guilty of hurt if the injury is not
serious. In Nga Shwe Po's case 1883, the accused struck a man one
blow on the head with a bamboo yoke and the injured man died,
primarily due to excessive opium administered by his friends to alleviate
pain. He was held guilty under this section.
The authors of the code have observed that in many cases offences that
fall under hurt will also fall under assault. However, there can be certain
situations, where they may not. For example, if A leaves food mixed with
poison on B's desk and later on B eats the food causing hurt, it cannot be
a case of assault.
If the accused did not know about any special condition of the deceased
and causes death because of hurt, he will be held guilty of only hurt.
Thus, in Marana Goundan's case AIR 1941, when the accused kicked
a person and the person died because of a diseased spleen, he was held
guilty of only hurt.
A physical contact is not necessary. Thus, a when an accused gave food
mixed with dhatura and caused poisoning, he was held guilty of Hurt.
Grievous Hurt
Cases of severe hurt are classified under grievous hurt. The authors of
the code observed that it would be very difficult to draw a line between
hurt and grievous hurt but it was important to draw a line even if it is not
perfect so as to punish the cases which are clearly more than hurt. Thus,
section 320 of IPC defines Grievous Hurt as Section 320 - The following kinds of hurt only are designated as
"Grievous" 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 a joint.
5. Destruction or permanent impairing of powers of any member or
joint.
6. Permanent disfiguration of the head or face.
7. Fracture or dislocation of a bone or tooth.

IPC

Page 55

8. Any hurt which endangers life or which causes the sufferer to be,
during the space of twenty days, in severe body pain or unable to
follow his ordinary pursuits.

Thus, it can be seen that grievous hurt is a more serious kind of hurt.
Since it is not possible to precisely define what is a serious hurt and what
is not, to simplify the matter, only hurts described in section 320 are
considered serious enough to be called Grievous Hurt. The words "any
hurt which endangers life" means that the life is only endangered and not
taken away. Stabbing on any vital part, squeezing the testicles, thursting
lathi into rectum so that bleeding is caused, have all been held as Hurts
that endanger life and thus Grievous Hurts.
As with Hurt, in Grievous Hurt, it is not a physical contact is not
necessary.
Difference between Hurt and Grievous Hurt
Only hurts that are defined in section 320 are called Grievous Hurt.
Punishment for voluntarily causing Hurt as defined in section 323 is
imprisonment of either description up to 1 year and a fine up to 1000 Rs,
while punishment for voluntarily causing grievous hurt is imprisonment of
either description up to 7 years as well as fine.
Difference between Grievous Hurt and Culpable Homicide
The line separating Grievous Hurt and Culpable Homicide is very thin. In
Grievous Hurt, the life is endangered due to injury while in Culpable
Homicide, death is likely to be caused. Thus, acts neither intended nor
likely to cause death may amount to grievous hurt even though death is
caused.
In case of Formina Sbastio Azardeo vs State of Goa Daman and
Diu 1992 CLJ SC, the deceased was making publicity about the illicit
intimacy between N and W. On the fateful day, N, W, and her husband A
caught hold of D and tied him up to a pole and beat him as a result of
which he died. They were not armed with any dangerous weapon and
had no intention to kill him. N and W were held guilty of only causing
grievous hurt.
Q. What is meant by kidnapping from India, kidnapping from
guardianship, and abduction? Differentiate between Kidnapping
and Abduction.
Kidnapping
IPC

Page 56

Kidnapping from India - Kidnapping from India means taking anybody,

without his consent, out of the borders of India. Section 360 defines it as
follows Section 360 - Whoever conveys any person beyond the limits of India
without the consent of that person or of some person legally authorized
to consent on behalf of that person, is said to kidnanap that person from
India.
For example, if A takes B without his consent or without B's lawful
guardians consent to Pakistan, A would be committing this offence. The
essential ingredient of Kidnapping are 1. The person should be conveyed out of the borders of India.
2. The person should be conveyed without his consent or without the
consent of the person who is legally authorized to consent on his
behalf.
Thus, if a person is not capable of giving valid consent as in the case of a
minor or a person with unsound mind, the consent of his lawful guardian
is required to take him outside India.
Kidnapping from Lawful guardianship - Kidnapping from lawful
guardianship means taking a child away from his lawful guardian without
the guardian's consent. Section 361 defines it as follows Section 361 - Whoever takes or entices any minor under 16 yrs of age if
male or 18 yrs of age if female, or any person of unsound mind, out of
the keeping of the lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to kidnap such minor
or person from lawful guardianship.
Explanation - The words lawful guardian in this section include any
person lawfully entrusted with the care or custody of such minor or other
person.
Exception - This section does not extend to the act of any person who in
good faith believes himself to be the father of an illegitimate child or who
in good faith believes himself to be entitled to the lawful custody of such
child, unless such act is committed for an immoral or unlawful purpose.
Based on this section the essential ingredients are IPC

Page 57

1. The person should either be a minor or a person of unsound

mind - This implies that the person is not capable of giving
consent. In case of male child the age is 16 yrs while in case of a
female child the age is 18 yrs. For a person on unsound mind, age
is immaterial.
2. Such person be taken or enticed away - This means that either
force is used or any enticement that causes the person to leave
domain of the lawful guardian is used. For example, if A shows
toffee to a child C thereby causing the child to come out of the
house and follow A, it fall under this category.
3. Such person must be taken or enticed away from the lawful
guardian - Only when the child is under the lawful guardian, can
he be kidnapped. This means that the child should be under the
domain of the lawful guardian. For example, an orphan wandering
on the streets cannot be kidnapped because he doesn't have a
lawful guardian. However, this does not mean that a child must be
with the lawful guardian. For example, a child siting in a school is
also under the dominion of his father and if A takes such a child
away, it would be kidnapping. Further, a lawful guardianship does
not necessarily mean a legal guardian. A legal guardian may
entrust the custody of his child to someone else. Taking a child
away from such custody will also fall under this section. For
example, A entrusts his child to B, his servant, to take the child to
school. If, C takes the child away from the servant, this would be
kidnapping because the servant has the lawful guardianship of the
child.
Distinction between taken away and allowing a child to follow In Vardrajan vs State of Madras AIR 1965, SC observed that there is
a difference between taking away a minor and allowing the minor to
follow. If a person knowingly does an act which he has reason to believe
will cause the child to leave the guardian, then it would amount to taking
away the child, however, if child follows a person even when a person
does not do any act meant to entice a child to leave his guardian, he
cannot be held responsible. For example, if a child follows an icecream
vendor, without any enticement from the vendor, while the guardian fails
to keep the watch, the vendor cannot be held guilty under this section.
In Chajju Ram vs State of Punjab AIR 1968, a minor girl was taken
away out of the house for only about 20 - 30 yards. it was held that it was
kidnapping because distance is immaterial.
Kidnapping is complete as soon as the minor or the person with unsound
mind leaves the custody of the guardian. It is not a continuing offence.
Thus, when a child is kidnapped from place P1 and taken to place P2 and
then from P2 to P3, kidnapping was done only once.
IPC

Page 58

Abduction
Section 362 of IPC defines Abduction as follows Section 362 - Whoever by force compels, or by any deceitful means
induces, any person to go from any place is said to abduct that person.
It means compelling a person, or to induce him to go from where he is to
another place. The essential ingredients are A person goes from one place to another - A person cannot be
abducted at the same place where he is. For abduction to take place, the
person should physically move from one place to another.
Either by forcible compulsion or by inducement - The movement of
the person must be because of some compulsion or because of some
inducement. For example, A threatens B on gun point to go from his
house to another city. Here, A has compelled B to go from his house and
is thus guilty under this section.
Here, the age of the abducted person is immaterial. Thus, even a major
can be abducted if he is forced to go from one location. But if a minor is
abducted, it may amount to Kidnapping as well. Further, it is a continuing
offence. As long as a person is forced to go from place to place,
abduction continues.
Differences among Kidnapping from India, Kidnapping from
lawful guardian, and Abduction Kidnapping from India
(Section 360)

Kidnapping from lawful guardian (Section

361)

Abduct

A person is taken out of

the limits of India.

A person is taken away from the lawful guardian.

A perso
by dece

Age of the person is

immaterial.

The person must be less than 16 yrs of age if

Age of t
male, less than 18 if female, or of unsound mind.

It is not a continuing
offence.

It is not a continuing offence.

It is a co

The person is conveyed

without his consent.

Consent of the person kidnapped is immaterial.

Person m
consent

It can be done without

use of force.

It can be done without use of force or deception.

It is alw
decepti

Q. Define and explain Theft. Can a man commit theft of his own
property? How is Theft different from Extortion? Under what
circumstances Theft becomes Robbery? Differentiate between
Robbery and Dacoity. A finds a valuable ring on the road. A sells
IPC

Page 59

it immediately without attempting to find the true owner. Is A

guilty of any offence?
Theft
In general, theft is committed when a person's property is taken without
his consent by someone. For example, A enters the house of B and takes
B's watch without B seeing and puts it in his pocket with an intention to
take it for himself. A commits theft. However, besides the ordinary
meaning conveyed by the word theft, the scope of theft is quite
wide. Section 378of IPC defines theft as follows Section 378 - Whoever, intending to take dishonestly any movable
property out of the possession of any person without that person's
consent, moves that property in order to such taking, is said to commit
theft.
Based on this definition, the following are the essential constituents of
Theft 1. Dishonest intention to take property - There must be
dishonest intention on the part of the offender. As defined
in Section 24 of IPC, dishonestly means that there must be a
wrongful loss to one or wrongful gain to another. For example, A
quietly takes money from B's purse for his spending. Here, A
causes wrongful loss to B and is thus guilty of theft. However,if the
intention of the offender is not to cause a wrongful loss or wrongful
gain, he does not commit theft even if he takes the property
without consent. For example, A gives his watch to B for repairing.
B takes the watch to his shop. A, who does not owe any debt to B
for which B has the right to retain the watch, follows B and forcibly
takes back the watch. Here, A does not commit theft because he
has no dishonest intention. Similarly, when A, believing, in good
faith, a property in possession of B, to be his, takes it from B, it is
not theft.
In K. N. Mehra v. State of Rajasthan AIR 1957 S. C. 369, SC
held that proof of intention to cause permanent deprivation of
property to the owner, or to obtain a personal gain is not necessary
for the purpose of establishing dishonest intention. Thus,
In Pyarelal Bhargava vs State AIR 1963, a govt. employee took
a file from the govt. office, presented it to B, and brought it back to
the office after two days. It was held that permanent taking of the
property is not required, even a temporary movement of the
property with dishonest intention is enough and thus this was theft.

IPC

Page 60

2. Property must be movable - An immovable property cannot be

stolen or moved from the possession so a theft cannot happen in
respect of an immovable property. However, as per Explanation
1 of section 378, as long as a thing is attached to earth, not being
movable, is not subject of theft. However, as soon as it is severed
from the earth, it is capable of being the subject of theft.
Further, Explanation 2 says that a moving affected by the same
act that causes severance, may be theft.
For example, a tree on A's land is not capable of being the subject
of theft. However, if B, with an intention to take the tree, cuts the
tree, he commits theft as soon as the tree is severed from the
earth.
In White's case, 1853, a person introduced another pipe in a gas
pipeline and consumed the gas bypassing the meter. Gas was held
to be a movable property and he was held guilty of theft.
3. Property must be taken out of possession of another - The
property must be in possession of someone. A property that is not
in possession of anybody cannot be a subject of theft. For example,
wild dogs cannot be a subject of theft and so if someone takes a
wild dog, it will not be theft. It is not important whether the person
who possess the thing is the rightful owner of that thing or not. If
the thing is moved out of mere possession of someone, it will be
theft. For example, A, a coin collector, steals some coins from B, a
fellow coin collector. A finds out that they were his coins that were
stolen earlier. Here, even though B was not the rightful owner of
the coins, he was still in possession of them and so A is guilty of
theft.
In HJ Ransom vs Triloki Nath 1942, A had taken a bus on hire
purchase from B under the agreement that in case of default B has
the right to take back the possession of the bus. A defaulted, and
thereupon, B forcibly took the bus from C, who was the driver of
the bus. It was held that the C was the employee of A and thus, the
bus was in possession of A. Therefore, taking the bus out of his
possession was theft.
4. Property must be taken without consent - In order to
constitute theft, property must be taken without the consent of
person possessing it. As per Explanation 5, consent can be
express or implied. For example, A, a good friend of B, goes to B's
library and takes a book without express consent of B, with the
intention of reading it and returning it. Here, A might have
conceived that he had B's implied consent to take the book and so
he is not guilty of theft. Similarly, when A asks for charity from B's
wife, and when she gives A some clothes belonging to B, A may
conceive that she has the authority to give B's clothes and so A is
not guilty of theft.
In Chandler's case, 1913, A and B were both servants of C. A
IPC

Page 61

suggested B to rob C's store. B agreed to this and procured keys to

the store and gave them to A, who then made duplicate copies. At
the time of the robbery, they were caught because B had already
informed C and to catch A red handed, C had allowed B to
accompany A on the theft. Here, B had the consent of C to move
C's things but A did not and so A was held guilty of theft.
5. Physical movement of the property is must - The property
must be physically moved. It is not necessary that it must be
moved directly. As per Explanation 3, moving the support or
obstacle that keeps the property from moving is also theft. For
example, removing the pegs to which bullocks are tied, is theft.
Further, as per Explanation 4, causing an animal to move, is also
considered as moving the things that move in consequence. For
example, A moves the bullock cart carrying a box of treasure. Here,
A is guilty of moving the box of treasure.
In Bishaki's case 1917, the accused cut the string that tied the
necklace in the neck of a woman, because of which the necklace
fell. It was held that he caused sufficient movement of the property
as needed for theft.
Theft of one's own property
As per the definition of theft given in section 378, it is not the ownership
but the possession of the property that is important. A person may be a
legal owner of a property but if that property is in possession, legally
valid or invalid, of another, it is possible for the owner to commit theft of
his own property. This is explained in illustration j of section 378 - A
gives his watch to B for repairs. B repairs the watch but A does not pay
the repairing charges, because of which B does not return the watch as a
security. A forcibly takes his watch from B. Here, A is guilty of theft of his
own watch.
Further, in illustration k, A pawns his watch to B. He takes it out of B's
possession, having not payed to B what he borrowed by pawning it,
without B's consent. Thus, he commits theft of his own property in as
much as he takes it dishonestly.
In Rama's Case 1956, a person's cattle was attached by the court and
entrusted with another. He took the cattle out of the trustee's possession
without recourse of the court. He was held guilty of theft.
Extortion
In Extortion, a person takes the property of another by threat without any
legal justification. Section 383 defines extortion as follows Section 383 - Whoever intentionally puts any person in fear of any
injury to that person, or to any other, and thereby dishonestly induces
the person so put in fear to deliver to any person any property or
valuable security or anything signed or sealed, which may be converted
into a valuable security, commits extortion.
For example, A threatens to publish a defamatory libel about B unless B
IPC

Page 62

gives him money. A has committed extortion. A threatens B that he will

keep B's child in wrongful confinement, unless B will sign and deliver to A
a promissory note binding B to pay certain moneys to A. B signs and
delivers such noted. A has committed extortion.
The following are the constituents of extortion 1. Intentionally puts any person in fear of injury - To be an offence
under this section, putting a person in fear of injury intentionally is a
must. The fear of injury must be such that is capable of unsettling the
mind of the person threatened and cause him to part with his property.
Thus, it should take away the element of freeness and voluntariness from
his consent. The truth of the threat under this section is immaterial. For
example, A's child is missing and B, who does not have A's
child, threatens A that he will kill A's child unless A pay's him 1 lac Rs,
will amount to extortion. Similarly, guilt or innocence of the party
threatened is also immaterial. In Walton's case 1863, the accused
threatened to expose a clergyman, who had criminal intercourse with a
woman of ill repute, unless the clergyman paid certain amount to him. He
was held guilty of extortion.
However, in Nizamuddin's case 1923, a refusal by A to perform
marriage and to enter it in the register unless he is paid Rs 5, was not
held to be extortion.
2. Dishonestly induces a person so put in fear to deliver to any
person any property - The second critical element of extortion is that
the person who has been put to fear, must deliver his property to any
person. Dishonest inducement means that the person would not have
otherwise agreed to part with his property and such parting causes him a
wrongful loss. Further, the property must be delivered by the person who
is threatened. Though, it is not necessary to deliver the property to the
person threatening. For example, if A threatens B to deliver property to C,
which B does, A will be guilty of extortion.
The delivery of the property by the person threatened is necessary. The
offence of extortion is not complete until delivery of the property by the
person put in fear is done. Thus,Duleelooddeen Sheikh's case 1866,
where a person offers no resistance to the carrying off of his property on
account of fear and does not himself deliver it, it was held not to be
extortion but robbery.
Extortion can also happen in respect of valuable security or anything
signed that can become a valuable security. For example, A threatens B
to sign a promissory note without the amount or date filled in. This is
extortion because the note can be converted to valuable security.
In Romesh Chandra Arora's case 1960, the accused took a
photograph of a naked boy and a girl by compelling them to take off their
clothes and extorted money from them by threatening to publish the
IPC

Page 63

photograph. He was held guilty of extortion.

In R S Nayak vs A R Antuley and another AIR 1986, it was held that
for extortion, fear or threat must be used. In this case, chief minister A R
Antuley asked the sugar cooperatives, whose cases were pending before
the govt. for consideration, to donate money and promised to look into
their cases. It was held that there was no fear of injury or threat and so it
was not extortion.
Theft (Section 378)

Extortion (Section 383)

The property is taken by the offender without The property is delivered to the offende
consent.
is not free.
There is no element of threat.

There is an element of threat or instillm

consent is given.

Only movable property is subject to theft.

Any kind of property can be subjected

Offender takes the property himself.

Property is delivered to offender.

Robbery
Robbery is a severe form of either theft or extortion. In certain
circumstances, a theft or an extortion gravitates to robbery. Section 390
defines robbery as follows Section 390 - In all robbery there is either theft or extortion.
When theft is robbery - Theft is robbery if, in order to the committing
of the theft or in committing the theft, or in carrying away or attempting
to carry away property obtained by theft, the offender for that end,
voluntarily causes or attempts to cause to any person death or hurt or
wrongful restraint, or fear of instant death or of instant hurt or of instant
wrongful restraint.
When extortion is robbery - Extortion is robbery if the offender at the
time of committing the extortion is in the presence of the person put in
fear, and commits the extortion by putting that person in fear of instant
death, or of instant hurt, or of instant wrongful restraint to that person, or
to some other person, and by so putting in fear, induces the person so
put in fear then and there to deliver up the thing extorted.
Thus, a theft becomes a robbery when the following two conditions are
satisfied 1. when someone voluntarily causes or attempts to cause
1. death, hurt, or wrongful restraint or
2. fear of instant death, instant hurt, or instant wrongful
restraint
IPC

Page 64

2. the above act is done

1. in order to the committing of theft or
2. committing theft or
3. carrying away or attempting to carry away property obtained
by theft.
For example, A holds Z down, and fraudulently takes Z's money from Z's
clothes, without Z's consent. A has committed theft and in order to
commit that theft, he voluntarily caused wrongful restraint to Z. Thus, A
has committed robbery.
Robbery can be committed even after the theft is committed if in order to
carrying away the property acquired after theft, death, hurt, or wrongful
restraint or an instant fear of them is caused. The expression "for that
end" implies that death, hurt, or wrongful restraint or an instant fear of
them is caused directly to complete the act of theft or carrying away the
property. In Hushrut Sheik's case 1866, C and D were stealing
mangoes from tree and were surprised by B. C knocked down B and B
became senseless. It was held to be a case of robbery.
Further, the action causing death, hurt, or wrongful restraint or an instant
fear of them must be voluntary. Thus, in Edward's case 1843, a person,
while cutting a string tied to a basket accidentally cut the wrist of the
owner who tried to seize it. He was held guilty of only theft.
An extortion becomes a robbery when the following three conditions are
satisfied 1. when a person commits extortion by putting another person in fear
of instant death, hurt, or wrongful restraint, and
2. such a person induces the person put in such fear to deliver the
property then and there and
3. the offender is in the presence of the person put in such fear at the
time of extortion.
For example, A meets Z on high road, shows a pistol, and demands Z's
purse. Z in consequence surrenders his purse. Here, A has extorted the
purse from Z by putting him in fear of instant hurt and being present at
the time of committing the extortion in his presence, A has committed
robbery.
In another example, A meets Z and Z's child on the high road. A takes the
child and threatens to fling it down a precipice, unless Z delivers his
purse. Z in consequence, delivers the purse. Here, A has extorted the
IPC

Page 65

purse from Z by causing Z to be in fear of instant hurt of his child who is

present there. Thus, A has committed robbery.
For extortion to become robbery, the fear of instant death, hurt, or
wrongful restraint is must. Thus, when A obtains property from Z by
saying, "Your child is with my gang and will be put to death unless you
send us ten thousand rupees", this is extortion but not robbery because
the person is not put in fear of instant death of his child.
In presence of the person - The offender must be present where a person
is put in fear of injury to commit the offence of robbery. By present, it
means that the person should be sufficiently near to cause the fear. By
his presence, the offender is capable of carrying out his threat
immediately. Thus the person put in such fear delivers the property in
order to avoid the danger of instant death, hurt or wrongful restraint.
In Shikandar vs State 1984, the accused attacked his victim by knife
many times and succeeded in acquiring the ear rings and key from her
salwar. He was held guilty of robbery.
Dacoity
As per section 391, a Robbery committed by five or more persons is
dacoity.
Section 391 - When five or more persons conjointly commit or attempt to
commit robbery, or where the whole number of persons conjointly
committing or attempting to commit a robbery, and persons present and
aiding such commission or attempt, amount to five or more, every person
so committing, attempting, or aiding is said to commit dacoity.
Conjointly implies a collective effort to commit or attempting to commit
the action. It is not necessary that all the persons must be at the same
place but they should be united in their efforts with respect to the
offence. Thus, persons who are aiding the offence are also counted and
all are guilty of dacoity.
It is necessary that all the persons involved must have common intention
to commit the robbery. Thus, dacoity is different from robbery only in the
respect of number of people committing it and is treated separately
because it is considered to be a more grave crime.
In Ram Chand's case 1932, it was held that the resistance of the victim
is not necessary. The victims, seeing a large number of offenders, did not
resist and no force or threat was used but the offenders were still held
guilty of dacoity.
In Ghamandi's case 1970, it was held that less than five persons can
also be convicted of dacoity if it is proved as a fact that there were more
than 5 people who committed the offence by only less than five were
identified.
IPC

Page 66

However, if 5 persons were identified and out of them 2 were acquitted,

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

IPC

Page 67