STRICT LIABILITY UNDER INDIAN PENAL CODE

Indian Penal Code

Submitted by

Siddhartha Shrivastava

SM0115060

2nd Year & IV Semester

National Law University, Assam

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 Table of Content

1. Introduction

1.1. Research Problem

1.2. Literature Review

1.3. Scope and Objectives

1.4. Research Methodology

Conclusion

Bibliography

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Chapter - 1

Abstract

According to criminal law there is the need of existence of both the elements i.e. mens rea and
actus reus. But in certain offences a person is guilty per se independently of any wrongful intent.
These offences are called as strict liability. The offences under this are kidnapping, rape,
abduction, many offences against the state and army, cases of public nuisance, libel, contempt of
court, violation of municipal laws, town planning laws and traffic regulations and offences
related to food and drugs, weights and measures, environment pollution etc. There are offences
in other statutes such as Essential Commodities Act, 1955, Prevention of Corruption Act, 1988,
Narcotic Drugs and psychotropic Substances Act etc.

Introduction

The central norm of criminal liability is there must be the existence of actus reus joined with
mens rea. Here actus reus is wrongful act whereas mens rea is the guilty intention. This principle
is incorporated in the maxim, actus non facit reum nisi mens sit rea. It implies that an act does
not make one guilty unless mind is also involved. 1

Here Mens Rea broadens a wide range of mental state and conditions whereas Actus Reus
signifies physical act of the crime.

In the earlier time, liability depended solely on the two objective facts. They are as follows-

1. That a thing had been done, which the law prohibited being done;
2. The man accused had done it.

Later another ingredient of liability was added later on-

3. The accused should have been stimulated by legally wrong attitude of mind. (mens rea)

Later on it was propounded that there are five ingredients of criminal responsibility-

1. Human action or abstention from conduct or action,

2. Such circumstances as are by the law,

1
P S A Pillai, Criminal Law, , 11th ed. p. 37

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 3. The result of the conduct in these specified circumstances,
4. The conduct must be voluntary.
5. The result must be foreseen.2

In certain extraordinary cases a person may be found guilty of an offence independently of any
wrongful intent. Such offences are labelled as strict liability or absolute liability. In such a case it
is no defense to the accused that he honestly believed on reasonable ground and acted in good
faith.

The cases in which the doctrine of mens rea does not apply may be place under four categories-

1. Statutory offences of abduction, kidnapping, rape and offences against the state and
army;
2. Cases of public nuisance, libel and contempt of court;
3. Offences created by statutes that are regulatory in nature, in which although the
proceedings are criminal, it is really a mode of enforcing a civil right such as cases of
violation of municipal laws, town planning laws and traffic regulations;
4. Public welfare offences which include socio-economic offences relating to food, drugs,
weights and measures, hoarding and black marketing, licensing, revenue, environment
pollution and custom offences. These offences are quasi-criminal in nature.3

Offences associated to hazardous establishments comes under the title of absolute liability and
offences related to the sale of lottery tickets to persons under sixteen and river pollution also
come under the heading of strict liability.

Aim

The purpose of this project is to examine the strict liability and offences related to it in the Indian
Penal Code and in other statutes.

Objectives

To explain the concept of strict liability and offences related to it.

2
K.D. Gaur, Textbook on Indian Penal Code, p.48,ed. 2016
3
K.D. Gaur, Textbook on Indian Penal Code, p.54,ed. 2016

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To assess various provisions of the Indian Penal Code that comes under the ambit of the strict
liability

To examine various other crimes related to strict liability in other statutes.

Scope and Limitations

The scope of this project ranges to the offence of strict liability in the Indian Penal Code and
other statutes.

Review of Literature

 K.D. Gaur, Textbook on Indian Penal Code, Universal Law Publishing, Gurgaon,
Haryana, India

This books gives the wide description on the principle of strict liability. It defines the concept of
kidnapping, rape, abduction, offences against the state and army and many case laws related to
the concept of strict liability. It also defines other statutes such as Civil Liability for Nuclear
Damages Act, 2010 and River (Prevention of Pollution) Act, 1951 also.

 P S A Pillai, Criminal Law, Lexis Nexis, Gurgaon, Haryana, India

This book gives a wide description on the development of mens rea. It give the description of
general exceptions such as mistake of fact, act of child, intoxication, accident etc. It also defines
the offences of strict liability

Research Questions

What is the principle of strict liability in the Indian Penal Code?

What is role of mens rea in the offences of strict liability?

What are the offences related to the principle of strict liability in the Indian Penal Code?

What are the offences in other statutes related to the principle of Strict Liability?

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Research Methods

The doctrinal method has been used for the purpose for this research. Primary as well as
secondary sources i.e. the various books and journal articles have been used in the research work
All these sources have helped to formulate the objectives and the research question which
formed the basic framework of our study.

Chapter - 2

MENS REA

Mens Rea is the technical term, which means blamable mental state. The absence of this element
may sometime lead to the negation of crime. It is one of the essential conditions of the
constituents of the crime.

The term mens rea signifies the will which is the motive force for the person to commit the
criminal act. An act is the criminal act only when it is done with the guilty intent. The necessary
mental state varies from crime to crime.

The maxim actus non facit reum nisi mens sit rea denotes the underlying principle of the doctrine
of mens rea. The maxim signifies that an act does not make one guilty unless the mind is also
guilty.

The object of the law is to punish the person with guilty intent. To appreciate the clear
conception of mens rea it is necessary to have clear conception of the words like intention,
motive, knowledge, recklessness, negligence etc. which is often used to indicate the different
possible mental attitude constituting the actus reus of the particular act of the crime.

2.1. Mens Rea in the Indian Penal Code

The Indian Penal Code ranges the description of offences, prerequisites of liability, exemption
from liability and punishment for the respective crimes. Lord Macaulay and his colleagues did
not use the common law doctrine of mens rea but they defined it in different terms. The Indian
Penal Code, 1860 does not mention the word ‘mens rea’ however the doctrine has been
incorporated in two ways-

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 1. The provision as to the state of mind required for particular offences have been added in
section itself by using such words as criminal knowledge or intentionally, knowingly,
voluntarily, fraudulently, dishonestly, wrongful gain and wrongful loss, reason to believe,
intentional cooperation, malignantly, wantonly and maliciously etc. depending on the
gravity of the offence under the Indian Penal Code. Every offence under the Indian Penal
Code virtually imposes the idea of mens rea. Consequently it is evident that, though the
word mens rea is nowhere found in the Indian Penal Code but its essence is almost
reflected in almost all the provisions of the Indian Penal Code.
Chapter 4 of the Indian Penal Code, 1860 deals with general exceptions in which acts
would otherwise constitute an offence ceases to be so under certain circumstances. IPC
defines certain circumstances in which it is considered that the accused had no guilty
intention. These some extraordinary circumstances negate the element of mens rea. It
creates the reasonable doubt in the case of the prosecution whether the accused had guilty
mind or not. However the burden of proof is on the accused to prove that such
circumstances existed at the commission of the crime and presumption of such
circumstances exists against the accused.

General Exceptions

Chapter IV (Section 76 to 106) defines these circumstances. These exceptions have been divided
into two parts-

A. One that make the act excusable (Section 76 to 95). It signifies that the act itself is not
an offence.
B. One that make the act justiciable (Section 96 to 106). It means that even though the
commission of the act is the crime but it is otherwise meritorious and alleged is
justified by law in doing it.

Mistake of Fact

Section 76 explains the mistake of fact. Sometimes an offence is committed by the person
unintentionally. He neither intends to do so nor does the person know that his act is criminal. The
person may be totally ignorant of the relevant facts to the circumstances. Accordingly, if the
person is not aware of his acts to the best of his knowledge, then it cannot be said here that the

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act has been done with the evil intention. Under these types of circumstances. The person may
take the plea that the act was done under the misconception of the facts. Mistake of fact is
defined in Section 76 to 79 of the Indian Penal Code.

Section 76 Act done by a person bound, or by mistake of fact believing himself bound, by law-
Nothing is an offence which is done by a person who is, or by reason of a mistake of fact and not
by reason of a mistake of law in good faith believes himself to be, bound by law to do it.

Illustrations

a. A, a solider, fires on a mob by the order of his superior officer, in conformity with the
commands of the law. A has committed no offence.
b. A, an officer of a court of justice, being ordered by that Court to arrest Y, and, after,
due inquiry, believing z to be Y, arrest Z. A has committed no offence.

Section 77 Act of Judge when acting judiciously- Nothing is an offence which is done by a judge
when acting judiciously in the exercise of any power which is, or which is in good faith he
believes to be, given to him by law.

78. Act done pursuant to the judgment or order of Court

Nothing which is done in pursuance of, or which is warranted by the judgment or order of, a
Court of Justice; if done whilst such judgment or order remains in force, is an offence,
notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided
the person doing the act in good faith believes that the Court had such jurisdiction.

Section 79 Act done by a person justified, or by mistake of fact believing himself justified, by
law- Nothing is an offence which is done by any person who is justified by law, who by reason
of mistake of fact and not by reason of a mistake of law in good faith, believes himself to be
justified by law, in doing it.

Illustration

A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his
judgment exerted in good faith, of the power which the law gives to all persons of
apprehending murderers in the fact, seizes Z, in order to bring Z before the proper

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 authorities. A has committed no offence, though it may turn out that Z was acting in self-
defense. 4

R v. Prince 18755, is an important case where a person was convicted of abducting a girl
under 18 yrs. of age. The law made taking a woman under 18 from her guardian without
her guardian's permission a crime. In this case, the person had no intention to abduct her.
She had gone with the person with consent and the person had no reason to believe that
the girl was under 18. Further, the girl looked older than 18. However, it was held that by
taking a girl without her guardian's permission, he was taking a risk and should be
responsible for it because the law made it a crime even if it was done without mens rea.
In this case, five rules were laid down which are guidelines whenever a question of a
mistake of fact or mistake of law arises in England and elsewhere.

1. When an act is in itself plainly criminal and is more severely punishable if certain
circumstances coexist, ignorance of the existence is no answer to a charge for the
aggravated offence.

2. When an act is prima facie innocent and proper unless certain circumstances coexist,
the ignorance of such circumstances is an answer to the charge.

3. The state of the mind of the defendants must amount to absolute ignorance of the
existence of the circumstance which alters the character of the act or to a belief in its
nonexistence.

4. When an act in itself is wrong, and under certain circumstances, criminal, a person
who does the wrongful act cannot set up as a defense that he was ignorant of the facts
which would turn the wrong into a crime.

5. When a statute makes it penal to do an act under certain circumstances, it is a question

upon the wording and object of the statute whether responsibility of ascertaining that the
circumstances exist is thrown upon the person who does the act or not. In the former case,
his knowledge is immaterial.

4
Indian Penal Code, 1860
5
L.R. 2 C.C.R. 154 (1875)

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80. Accident in doing a lawful act

Nothing is an offence which is done by accident or misfortune, and without any criminal
intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with
proper care and caution.

Illustration

A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there
was no want of proper caution on the part of A, his act is excusable and not an offence.

Accident

Accident happens involuntarily. There is no intention on the part of anybody to cause the
accident. Because of this the loss caused by the accident cannot be considered as the crime.
Section 80 defines Accident. There are four prerequisites in which the person can take the
defense of accident.

1. If the act was not done with the intention to cause the effect then it will not be considered
as the crime. This happens because the person does not expect it to happen, so the person
accused is unable to take precautions against it.
2. The criminal act must not be done with the guilty intention or bad motive.
3. The act must be lawful, and done in a lawful manner. An accident that happens while
doing an unlawful act, then this defense is not available.
4. Proper precautions must be taken while doing the act. The act that causes harm, must
have been done with proper care and precautions. An accident caused due to negligence
is not the defense.

Accident in an act done with consent

Section 87 ranges the scope of the accident to cases, where the act was done with the consent of
the victim.
Section 87 Nothing which is not intended to cause death or grievous hurt and which is not known
to the doer to be likely to cause death or grievous hurt is an offence by reason of any harm that it

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may cause or be intended by the doer to cause to any person above eighteen years of age, who
has given consent whether express or implied, to suffer that harm; or by reason of any harm
which it may be known by the doer to be likely to cause to any such person who has consented to
take the risk of that harm.
Illustration A and Z agree to fence with each other for amusement. This agreement implies the
consent by each to suffer any harm which in the course of such fencing may be caused without
foul play, and if A, while playing fairly, hurts Z, A commits no offence.
If a person voluntarily undertakes a task that is likely to cause damage, then the person cannot
hold anybody liable for suffering the damage. 6
In Jogeshshwar v Emperor, where the accused was fighting with a man and the man's pregnant
wife intervened. The accused aimed at the woman but accidently hit the baby who was killed. He
was not allowed protection under this section because he was not doing a lawful act in a lawful
manner by lawful means.

Act of Child
It is assumed that a child does not have an evil mind and he does not do things with evil
intention. He cannot fully comprehend the repercussions of the act that he is doing. The child
completely lacks mens rea while committing any crime. There are certain exemptions for the
child.

Section 82. Act of a child under seven years of age-Nothing is an offence which is done by a
child under seven years of age.
Section 83. Act of a child above seven and under twelve of immature understanding
Nothing is an offence which is done by a child above seven years of age and under twelve, who
has not attained sufficient maturity of understanding to judge of the nature and consequences of
his conduct on that occasion.
Through these sections, the Indian Penal Code identifies that the children under seven years of
age cannot have sufficient maturity to commit a crime and is completely excused. In Indian law a
child below the age of seven years of age is called Doli Incapax.

6
Indian Penal Code, 1860

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However, a child above seven but below twelve years of age may or may not have sufficient
maturity to commit the crime.
To claim the defense under section 83 these essentials need to be determined-
1. be above seven and below twelve years of age.
2. Have not attained sufficient maturity to understand the nature and consequences of his act.
3. be immature at the time of commission of the act.
Queen vs Lukhini Agradanini 18747, it was held that merely the proof of age of the child would
be a conclusive proof of innocence and would ipso facto be an answer to the charge against him.
Insanity
Section 84 Act of the person of unsound mind
Nothing is an offence which is done by a person who, at the time of doing it, by reason of,
unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is
either wrong or contrary to law8
The person claiming immunity will have to prove following grounds-
1. He was of unsound mind. Unsound mind is not specifically mentions in the Indian Penal
Code but unsound state of mind is the mind, where the functions of feeling, knowing,
emotion and willing are performed in abnormal manner. However only unsoundness is
not the only ground. It must be accompanied with the rest of the conditions.
2. Such incapacity must exist at the time of the act.
3. Due to incapacity the person was unable to know the nature and consequences of his act.
In Chhagan v. State 19769, it was held that mere queerness on the part of the accused or the
crime does not establish that he was insane. It must be proved that the cognitive faculties of the
person are such that he does not know what he has done or what will follow his act.

Intoxication
Intoxication is defense only when it is done involuntarily.

Section 85. Act of a person incapable of judgment by reason of intoxication caused against his
will

7
(1874) 22 WRCr 28
8
Indian Penal Code, 1860
9
1976 CriLJ 671, 1975 WLN 479

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Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of
intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong,
or contrary to law; provided that the thing which intoxicated him was administered to him
without his knowledge or against his will10
To claim immunity under this section the person has to prove these prerequisites-
A. The person was intoxicated.
B. Due to intoxication the person was unable to recognize the consequence or the nature
of his act.
C. The thing that intoxicated him was administer against his will or consent.
2. Where the legislature has omitted to lay down a particular state of mind as an essential
ingredient of an offence under the Indian Penal Code, the presumption is that such an
omission is deliberate and in such the case the doctrine of mens rea will not apply. For
example waging the war against the government of India, kidnapping, sedition,
abduction, counterfeiting coins etc. Under these headings no element of mens rea is
required to fix criminal liability.

STRICT LIABILITY IN THE INDIAN PENAL CODE

The Cases in which mens rea does not apply, can be classified into four categories-

1. Statutory offences of abduction, kidnapping, rape and offences against the state and
army.
2. Cases of public nuisance, libel and contempt of court.
3. Cases of violation of municipal laws town planning laws and traffic regulations.
4. Socio-economic offences relating to food, drugs, weights and measures, hoarding,
licensing, revenue, environment pollution and custom offences etc.11

Kidnapping

Section 359 Kidnapping is of two kinds- kidnapping from India and kidnapping from lawful
guardianship.

10
Indian Penal Code, 1860
11
K.D. Gaur, Textbook on Indian Penal Code, p.54,ed. 2016

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Section 359 to 369 of the Indian Penal Code defines kidnapping and abduction. The degree of
punishment varies according to the nature and gravity of the offence.

The word kidnapping has been derived from the word ‘kid’ meaning child and napping to steal.
Thus the etymological meaning of kidnapping is the child stealing.

According to Sir Hari Singh Gaur “At common law the term kidnapping consists of stealing and
carrying away, secreting any person, whether in the same country or by sending him away in the
other country or to parts beyond the seas whereby he is deprived of the friendly assistance of
laws to redeem from such captivity.”12

Kidnapping is the aggravated form of the wrongful confinement but it does not include the
offence of wrongful confinement or keeping in confinement of a kidnapped person.

Section 359 of the Indian Penal Code classifies kidnapping in two categories-

1. Kidnapping from India (Section 360 of the Indian Penal Code)

2. Kidnapping from lawful guardianship (Section 361 of the Indian Penal Code)13

360. Kidnapping from India-

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 the person, is said to kidnap that
person from [India].

Section 360 defines kidnapping from India and section 363 describes punishment for the offence.
To satisfy this section there must be-

1. Conveying of any person beyond the limits of India.

2. Without the consent of that person or of someone legally authorized to consent on behalf
of that person.

12
42nd Law Commission Report of India
13
K.D. Gaur, Textbook on Indian Penal Code

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Merely conveying of one person to other place is not criminal. It is criminal when it is done
without the person’s consent. A person may be conveyed as by inducing him to give his consent
by fraud and deception.

361. Kidnapping from lawful guardianship

Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen]
years of age if a 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 of custody of such minor or other person.

Explanation- 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 lawful custody of such child, unless such act is committed for an immoral or unlawful
purpose.

To constitute an offence under this section, the following condition must exist-

1. There must be taking or enticing of a minor, or a person of unsound mind.

2. Male must be under 16 year of age and female must be under 18 years of age.
3. Taking or enticing must be out of the keeping of the lawful guardian of such minor or
person of unsound mind.
4. It must be without the consent of the guardian.

Taking or enticing the word taking here does not necessarily mean taking by force. It is not only
limited to the use of force, actual or constructive. It means to go, to escort or to get into
possession. The mental attitude of minor does not matter. Thus it can be said here that when the
accused took the minor, whether the minor was willing or not, the act of taking was complete.

The word entice here means inducement or allurement by giving rising to hope or desire in the
other. This may work immediately or it may create continuous and gradual but imperceptible
impression culminating after sometime.
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Thus if minor leaves her parental home completely uninfluenced by any promise, inducement or
allurement by the guilty party then the latter cannot be considered to have committed the offence
defined in the section 361.14

Lawful Guardian A lawful guardian is the guardian whose custody is sanctioned by law. A
legal guardian is necessarily a lawful guardian but not necessarily vice versa.

A lawful guardian does not necessarily mean that the minor must have been entrusted to such
person by someone having a legal duty or obligation to the minor, but it is sufficient that such
entrustment is done without illegality by one legally competent to do so. When the minor is in
the protection of the lawful guardian but, the mere fact that minor leave the keeping of his
guardian, does not take her out of the guardian’s keeping.

But when the minor abandons the keeping of guardian with no intention of returning then the
minor cannot be said in his guardian’s keeping.

Out of the keeping of lawful guardianship

If the minor is not in the custody of a lawful guardian then this section is not attracted. The word
guardianship does not only mean parents. Guardianship implies care over the child.

Completion of Offence- The offence of kidnapping is completed when the minor is actually
taken away from the lawful guardianship.

Minor- The word minor for the purpose of this section for the purpose of this section has been
defined as a male child under 16 and female child under 18 years of age.

363. Punishment for kidnapping

Whoever kidnaps any person from 154[India] or front lawful guardianship, shall be punished
with imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine.

14
K.D. Gaur, Textbook on Indian Penal Code

16
In Thakori Lal D. vadgama v. State of Gujrat15 the accused was charged for kidnapping a minor
girl, Mohini, below the age of 15 years from the lawful guardianship of her father under sec. 361
of the Indian Penal Code. The accused induced Mohini to leave her father’s protection by saying
that he would give her shelter. The Supreme Court said that the accused was liable under the
offence of kidnapping.

Section 362. Abduction

Whoever by force compels, or by any deceitful means induces, any person to go from any place,
is said to abduct that person.

Abduction is carrying away the person by force. According to Section 362 of the I.P.C,
abduction implies when a person by force compels or by deceitful means induces another person,
to go from any place. It is an auxiliary act not punishable in itself, but when it is accompanied by
the certain intention to commit another offence, then it becomes punishable per se.

There are various types of abduction defined in the I.P.C.

A. If the intention is that the person abducted may be murdered of so disposed of as to be put in
danger of being murdered, section 364 applies.

364. Kidnapping or abducting in order to murder

Whoever kidnaps or abducts any person in order that such person may be murdered or may be so
disposed of as to be put in danger of being murdered, shall be punished with [imprisonment for
life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable
to fine.

Illustrations

(a) A kidnaps Z from 154[India], intending or knowing it to be likely that Z may he sacrificed to
an idol. A has committed the offence defined in this section.

15
AIR 1973 SC 2314 (1973) 2SCC 413:1973 Cr. LJ 1954

17
(b) A forcibly carries or entices B away from his home in order that B may be murdered. A has
committed the offence defined in this section.

B. If the intention is to cause secretly or wrongfully a person, Section 365 of the I.P.C. applies

365. Kidnapping or abducting with intent secretly and wrongfully to confine person

Whoever kidnaps or abducts any person with intent to cause that person to be secretly and
wrongfully confined, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.

C. If the abducted person is a woman and the intention is that she may be compelled, or is likely
to be compelled against her will, or may be forced or seduced to illicit intercourse, or is likely to
be so forced or seduced, Section 366 applies.

366. Kidnapping, abducting or inducing woman to compel her marriage,

Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to
be likely that she will be compelled, to marry any person against her. will, or in order that she
may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced
or seduced to illicit intercourse, shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine;[and whoever, by means of
criminal intimidation as defined in this Code or of abuse of authority or any other method of
compulsion, induces any woman to go from any place with intent that she may be, or knowing
that it is likely that she will be, forced or seduced to illicit intercourse with another person shall
be punishable as aforesaid].

D. If the intention is to cause grievous hurt or to dispose of the person abducted as to put him in
danger of being subjected to grievous hurt or slavery or to the unnatural lust of any person,
section 367 of the I.P.C. applies.

367. Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.

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Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so
disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural
lust of any person, or knowing it to be likely that such person will be so subjected or disposed of,
shall be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine

E. If the abducted person is a child under the age of ten years and the intention is to take
dishonestly any movable property from its person section 369 of the I.P.C. applies.

369. Kidnapping or abducting child under ten years with intent to steal from its person

Whoever kidnaps or abducts any child under the age of ten years with the intention of taking
dishonestly any movable property from the person of such child, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be
liable to fine.16

In Akram Khan v. State of West Bengal17 it was held by the Supreme Court that considering the
alariming rise in kidnapping for ransom of young children stringent sentence is required as
provided under sec. 364, 120 B r/w sec. 34, IPC for imprisonment for life and fine for
kidnapping for ransom of Rs. Lakhs for release of a minor boy named Vicky Prasad Rajak in the
afternoon of 17-3-2000 which was Bakri Id day, the court turned down the plea for leniency in
the punishment.

Rape

Section 375A man is said to commit "rape” if he:-

a. Penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or
makes her to do so with him or any other person.
b. Inserts to any extent, any object or a part of the body, not being the penis, into the vagina,
the urethra, anus of a woman or makes her to do so with him or any other person.

16
Indian Penal Code, 1860
17
AIR 2012 SC 308 P. Sathashivam Chelameswar

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 c. Manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any part of the body of such woman or makes her to do so with him or
any other person.
d. Applies his mouth to the vagina, anus, urethra, of a woman or makes her to do so with
him or any other person, under the circumstances falling under any of the following
seven descriptions-

First- Against her will.

Secondly, - Without her consent.

Thirdly- With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.

Fourthly- With her consent, when the man knows that he is not her husband, and that her consent
is given because she believes that he is another man to whom she is or believes herself to be
lawfully married.

Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent.

Sixthly - With or without her consent, when she is under sixteen years of age.

Seventhly- When she is unable to communicate assent.

Explanation 1 For the purpose of this section vagina shall also include labia majora.

Explanation 2 Consent means an unequivocal voluntary agreement when the woman by words,
gestures, or any form of verbal or non-verbal communication, communicates willingness to
participate in the specific sexual act.

20
Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of the fact, be regarded as consenting to the sexual activity.

Exception 1 A medical procedure or intervention shall not constitute rape.

Exception 2- Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.]

The word rape, which is derived from the Latin term Rapio, means seize. Thus rape
etymologically means forcible seizure. It signifies the common terminology. As the ravishment
of woman without her consent by force fear or fraud or the carnal knowledge of a woman by
force against her will.

Section 375 defines rape and section 376 prescribes punishment for the rape. Section 376 A
makes husband liable to punishment for intercourse with his wife during separation and section
376 B to 376 D provide punishment for custodial rape.

The parliament in 1983 amended the law of rape. By the amendment Act Section 375 and 376
were also amended. Some of the important changes were brought about by the Act 43 of 1983
and Act 13 of 2013. The provision regarding rape are as follows-

A. Consent of a woman of unsound mind or under intoxication- The new clause fifthly and
sixthly to section 375 negatives the consent of woman for the offence of rape, if the woman
is of unsound mind or is under the influence of intoxication administered by her personally or
through another of any stupefying or unwholesome substance at the relevant time. She is
unable to understand the nature and consequence of the act. Such consent will not be
considered as a valid defense and the accused will held be liable for the offence.
B. Burden of proof of innocence on accused: The Evidence Act, 1872 was amended by inserting
section 114A. It shifts the burden of proof of innocence on the accused.
C. Prohibition of disclosure of identity of the victim: Section 228 A of the Indian Penal Code
prohibits the disclosure of victims in rape cases under section 376, 376A, 376B, 376C, 376D,
376E. However sometimes Supreme Court breached its own code of not naming the victim.

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D. Persistent vegetative state: A new section 376A has been added. When injury caused to the
victim results in death of the woman or causes to woman to be in persistent vegetative state
the accused shall be liable to imprisonment for the term which shall not be less than 20 years.
It may extend to imprisonment of life and remainder of that persons natural life or till death.
E. Trial in Camera: Section 327 of the Indian Penal Code which confers the right of an open
court trial has been amended making the provisions for trial of rape cases or the offences
under sections 376Ato 376D, IPC in camera and prohibition of publication of trial
proceedings in such cases without the prior approval of the court.
F. Custodial Rape: Section 376C, IPC comprise a group of sections that create a new category
of offence, known as custodial rape which does not amount to rape because in such cases the
consent of the victim is obtained under the compelling circumstances. Such persons may
occupy supervisory positions and take undue advantage of their authority. Punishment is
such cases shall not be less than five years but may extend to ten years of imprisonment.
G. Intercourse with wife during judicial separation prohibited: Section 376B, IPC makes sexual
intercourse with one’s own wife without her consent under the decree of separation is
punishable and the punishment may extend to two years to seven years.
H. Minimum punishment for rape: Section 376 of the IPC has provided for a minimum of seven
years of imprisonment under clause (1) which may extend to imprisonment of life or till
death under clause (2) of section 376 of the IPC for rape.
I. Character assassination of prosecutrix prohibited: A proviso clause to section 146 of the
Indian Evidence Act, 1872 inserted vide criminal law Amendment Act 13 of 2013 has
disallowed to put questions about prosecutrix character in the cross examination. 18

Section 375 of the Indian Penal Code, 1860 defines the ingredients of rape. The ingredients of
rape are as follows-

1. Against her will

2. Without her consent
3. With consent obtained putting her or any other person in whom she is interested under
fear of death or hurt.

18
K.D. Gaur, Textbook on Indian Penal Code

22
 4. With consent but given under misconception of fact that the man was her husband.
5. Consent given by reason of unsoundness of mind, or under influence of intoxication or
any stupefying or unwholesome substance.
6. Woman is under eighteen with or without consent.
7. When woman is unable to communicate consent.

Section 376 of the Indian Penal code defines punishment for rape.

Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished
with rigorous imprisonment of either description for a term which shall not be less than seven
years, but which may extend to imprisonment for life, and shall also be liable to fine.

Whoever,—

(a) being a police officer, commits rape—

(i) within the limits of the police station to which such police officer is appointed; or
(ii) in the premises of any station house; or
(iii) . on a woman in such police officer’s custody or in the custody of a police officer
subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant’s custody or in the
custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces deployed in an area by the Central or a State
Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other place of custody
established by or under any law for the time being in force or of a women’s or children’s
institution, commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that
hospital; or

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(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards
the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the
life of a woman; or

(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment
for a term which shall not be less than ten years, but which may extend to imprisonment for life,
which shall mean imprisonment for the remainder of that person’s natural life, and shall also be
liable to fine.

Explanation.—for the purposes of this sub-section,—

(a) “armed forces” means the naval, military and air forces and includes any member of the
Armed Forces constituted under any Jaw for the time being in force, including the paramilitary
forces and any auxiliary forces that are under the control of the Central Government!, or the
State Government;

(b)“hospital” means the precincts of the hospital and includes the precincts of any institution for
the reception and treatment of persons during convalescence or of persons requiring medical
attention or rehabilitation;

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(c)“police officer” shall have the same meaning as assigned to the expression “police” under the
Police Act, 1861;

(d)“women’s or children’s institution” means an institution, whether called an orphanage or a

home for neglected women or children or a widow’s home or an institution called by any other
name, which is established and maintained for the reception and care of women or children.

376-APunishment for causing death or resulting in persistent vegetative state of victim.

Whoever, commits an offence punishable under sub-section (l) or subsection (2) of section 376
and in the course of such commission inflicts an injury which causes the death of the woman or
causes the woman to be in a persistent vegetative state, shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural
life, or with death.

376B. Sexual intercourse by husband upon his wife during separation- Whoever has sexual
intercourse with his own wife, who is living separately, whether under a decree of separation or
otherwise, without her consent, shall be punished with imprisonment of either description for a
term which shall not be less than two years but which may extend to seven years, and shall also
be liable to fine.

Explanation.-In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses
(a) to (d) of section 375.

376C. Sexual intercourse by person in authority. Whoever, being-

(a) in a position of authority or in a 6duciary relationship; or

(b) a public servant; or

(c)superintendent or manager of a jail, remand home or other place of custody established by or

under any law for the time being in force, or a women’s or children’s institution; or

25
(d)on the management of a hospital or being on the staff of a hospital, abuses such position or
6duciary relationship to induce or seduce any woman either in his custody or under his charge or
present in the premises to have sexual intercourse with him, such sexual intercourse not
amounting to the offence of rape, shall be punished with rigorous imprisonment of either
description for a term which shall not be less than 6ve years, but which may extend to ten years,
and shall also be liable to fine.

Explanation l.-In this section, “sexual intercourse” shall mean any of the acts mentioned in
clauses (a) to (d) of section 375.

Explanation 2. -For the purposes of this section, Explanation I to section 375 shall also be
applicable.

Explanation 3.-”Superintendent”, in relation to a jail, remand home or other place of custody or a

women’s or children’s institution, includes a person holding any other office in such jail, remand
home, place or institution by virtue of which such person can exercise any authority or control
over its inmates.

Explanation 4.-The expressions “hospital” and “women’s or children’s institution” shall

respectively have the same meaning as in Explanation to sub-section (2) of section 376.

376D. Gang rape.- Where a woman is raped by one or more persons constituting a group or
acting in furtherance of a common intention, each of those persons shall be deemed to have
committed the offence of rape and shall be punished with rigorous imprisonment for a term
which shall not be less than twenty years, but which may extend to life which shall mean
imprisonment for the remainder of that person’s natural life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

Punishment for repeat offenders.

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376E. Whoever has been previously convicted of an offence punishable under section 376 or
section 376A or section 3760 and is subsequently convicted of an offence punishable under any
of the said sections shall be punished with imprisonment for life which shall mean imprisonment
for the remainder of that person’s natural life, or with death.’.

10. Amendment of section 509. In section 509 of the Penal Code, for the words “shall be
punished with simple imprisonment for a term which may extend to one year, or with fine, or
with both”,19 the words “shall be punished with simple imprisonment for a term which may
extend to three years, and also with fine” shall be substituted.

In Elbekkay case it was held that if D Procures P to have sexual intercourse by misrepresenting
her boyfriend, he commits rape. Sec. 3 of Sexual Offences Act states that A man also commits
rape if he induces a married woman to have sexual intercourse with him by representing her
husband

Offences against the State

Section 121. "Waging, or attempting to wage war, or abetting waging of war, against the
Government of India

Whoever, wages war against the [Government of India], or attempts to wage such war, or abets
the waging of such war, shall be punished with death, or [imprisonment for life] [and shall also
be liable to fine].

[***] A joins an insurrection against the [Government of India]. A has committed the offence
defined in this section.

To constitute the offence under Section 121 the following ingredients must exist-

1. Accused must wage war.

2. Attempt to wage such war.
3. Abet the waging of such war.

19
Criminal Law Amendment Act, 2013

27
 4. Against the government of India.

This section applies to Indian citizen as well as foreign citizens also. Everyone who wages was
against the government of India is subject to prosecution.

Section 122. Collecting arms, etc., with intention of waging war against the Government of India

Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention
of either waging or being prepared to wage war against the 53[Government of India], shall be
punished with [imprisonment for life] or imprisonment of either description for a term not
exceeding ten years, [and shall also be liable to fine].

This section makes the very act of preparation to wage war against the Government of India
punishable according to the nature and gravity of the offence.

123. Concealing with intent to facilitate design to wage war

Whoever by any act, or by any illegal omission, conceals the existence of a design to wage war
against the [Government of India], intending by such concealment to facilitate, or knowing it to
be likely that such concealment will facilitate, the waging of such war, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine.

This offence under this section is also punishable at the preparatory stage. The liability under this
section is not absolute but subject to certain pre-conditions

1. There must be the design wage war against the government of India.
2. The accused must have knowledge of such design.
3. The accused must have concealed the existence of such design.
4. The accused must have contended to facilitate the waging of such war.

124. Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any
lawful power

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Whoever, with the intention of including or compelling the [President] of India, or the [Governor
of any [State], to exercise or refrain from exercising in any manner any of the lawful powers of
such [President] or Governor.

assault or wrongfully restrains, or attempts wrongfully to restrain, or overawes, by means of

criminal force or the show of criminal force, or attempts so to overawe, such [President or
[Governor].

shall be punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.

[124A. Sedition

Whoever, by words, either spoken or written, or by signs, or by visible representation, or

otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards, the Government established by law in [India], shall be punished with
[imprisonment for life], to which fine may be added, or with imprisonment which may extend to
three years, to which fine may be added, or with fine.

Explanation 1- The expression "disaffection" includes disloyalty and all feelings of enmity.

Explanation 2- Comments expressing disapprobation of the measures of the Government with a

view to obtain their alteration by lawful means, without exciting or attempting to excite hatred,
contempt or disaffection, do not constitute an offence under this section.

Explanation 3- Comments expressing disapprobation of the administrative or other action of the

Government without exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section.20

According to Section 124A of the Indian Penal Code the essential ingredients of sedition are as
follows-

20
Indian Penal Code, 1860

29
 1. Bringing or attempting to bring into hatred.
2. Exciting or attempting to excite disaffection against the government of India.
3. Such act or attempt may be done by words either spoken or written or by signs or visible
representation.
4. The act must be intentional.

In Emperor v. Surya Kumar Sen21 it was held that the accused had, ever since his release from
detention in 1928, planned and plotted against the government and put his plans into active
operation on 18th April, 1930 and up to the date of his arrest these plans were implemented with
completed disregard for the sanctity of human life. It was held that he was guilty of murder and
abetment of murder and under section 121.

Section 132 to section 140 deals with the offences related to army. These offences also come
under the Strict Liability. Public nuisance, libel, contempt of court, socio-economic offences,
violation of municipal laws also comes under the ambit of strict liability.

Strict Liability in Other Statutes

Offences that are created by the statutes are statutory offences like related to taxation, national
security etc. These offences are referred to as statutory offences. Offences have been classified
into two parts-

1. Offences malum in se
2. Offences malum prohibitum

Offences that are malum in se are inherently wrong such as murder, rape etc. On the other hand
offences malum prohibitum are the offences because they are prohibited by statutes. There are
various statutory offences in which mens rea is not the necessary element such as Essential
Commodities Act, 1955, Prevention of corruption Act, 1988, Narcotic Drugs and psychotropic
substances Act 1988, River (Prevention of Pollution Act) 1951, Civil Liability for Nuclear
Damages Act, 2010 and Drugs (Prevention of Misuse) Act, 1964 etc.

21
AIR 1934 Cal 221 (231)

30
These crimes are very important for the society and protect public interest. Hence, the offences
falling under this class are known as “Public Welfare Offences”. Hence, if a statute is enacted to
recognize them as criminal offences, they would be Statutory Offences, commission of which
would attract punishments.

In M.C. Mehta v. Union of India delivered the judgment on writ petition regarding Shriram
Fertilizer Industries. Justice P.N. Bhagwati said that an enterprise which is engaged in hazardous
industry will have to take highest standards of safety and will come under the ambit of absolute
Liability.

31
Conclusion

Thus it can be said here that the offence of strict liability are the offence which does not need the
element of mens rea and these offences are punishable in I.P.C. such as kidnapping, rape,
abduction, many offences against the state and army, cases of public nuisance, libel, contempt of
court, violation of municipal laws, town planning laws and traffic regulations and offences
related to food and drugs, weights and measures, environment pollution etc. There are offences
in other statutes such as Essential Commodities Act, 1955, Prevention of Corruption Act, 1988,
Narcotic Drugs and psychotropic Substances Act etc.

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