Indian Penal Code (IPC notes) PDF

Preview

Summary

Indian Penal Code – Notes CRIMINAL LAW: BASIC CONCEPTS Crime Wrongful Act (Prohibhited by Law) Prosecutiton (Wrong Against Society) Punishment Theories of Punishment: 1. Preventive Disablement: Restraint on freedom / Incapacitating of ACCUSED. 2. Deterrence: To deter crime from SOCIETY and instill f...

Description

Indian Penal Code – Notes CRIMINAL LAW: BASIC CONCEPTS Crime

Wrongful Act (Prohibhited by Law)

Prosecutiton (Wrong Against Society)

Punishment

Theories of Punishment: 1. Preventive Disablement: Restraint on freedom / Incapacitating of ACCUSED. 2. Deterrence: To deter crime from SOCIETY and instill fear. 3. Retribution: Quid-pro-quo concept of punishment – eye for an eye type. 4. Reformation: Rehabilitation concept – making person adaptable to society again. 5. Multiple Theory Approach: Borrows the positive from all 4 theories.

ESSENTIAL ELEMENTS OF A CRIMINAL OFFENCE UNDER COMMON LAW 1. Actus Non Facit Reum Nisi Mens Sit Rea An act itself is not sufficient for crime without a guilty mind. 2. Actus Reus (physical element): - Legal distinction between act and omission An act forbidden by law. Omission can be Actus Reus.1 Omission as a subset of Act. All omissions are Act but all Act are not omissions. Person A is drowning; Person B sees and ignores; Person A dies. - B had a moral duty but it is not a crime. -

1

B had a legal duty and here there is OMISSION.

Om Prakash V. State of Punjab (Duty towards wife)

MOHIT KHATRI (16 JGLS)

3. Mens Rea (mental element)

1

Motive

Intention

Aim

Means/ Act to reach that aim

Degree of Mens Rea:

Intention Knowledge Reason to believe

Recklessness

Negligence

Guilty Mind / Blame Worthy Intention: - Will / Voluntariness - For finding Criminal Liability, Intention comes 1. Intention: Complete knowledge of Harm and consequences thereof. 2. Knowledge: No Intention, but knowledge of an apparent harm. 3. Reason to Believe: Not particular information, but some reason to believe of the consequences of the act. 4. Recklessness: Higher degree of negligence – aware of consequences.

Motive cannot establish / free criminal liability on someone.

5. Negligence: Not aware of consequences.

4. Role of common law ideas like actus reus & mens rea in a codified statute. 5. Causal chain, Causation 6. Doctrine of Transfer of malice Transfer of Motive – A intended to kill B and ended up killing Z – although never intended to kill Z – but due to complete intention to kill B – A liable for the death of Z.

MOHIT KHATRI (16 JGLS)

2

COMPLITY & JOINT LIABILITY IN CRIMINAL LAW 1. Vicarious liability under criminal law: - Distinguishing common intention and common object – How the two concepts are embodied under IPC in different provisions. Common Intention – Section 34 Ingredients: • Act (criminal) done by two or more persons • In furtherance of a common intention • Each liable as if done by him alone. It Entails: 1. Meeting of Mind 2. PARTICIPATION is required for common intention. Similar Intention not same as Common Intention, hence not under S. 34. Common Object – Section 149 Ingredients: • Any member of an unlawful assembly • In prosecution of a common object • Mere MEMBERSHIP of an unlawful assembly is required

2. Unlawful assembly (Sec. 141) Assembly of 5 or more people can be unlawful assembly, if the common object is – • To show criminal force • To resist execution of any law • To commit mischief, criminal trespass • By means any force (criminal) to any person, to take possession of land, or deprive person from his right to enjoyment • By criminal force compel someone to do something which he is not legally bound

3. Comparative analysis of section 34 and 149 of IPC and Same Intention COMMON INTENTION

COMMON OBJECT

1. 2 or more persons

1. 5 persons – unlawful assembly

2. Common Intention

2. Common Object

3. PARTICIPATION

3. MEMBERSHIP

MOHIT KHATRI (16 JGLS)

3

The rule of VICARIOUS LIABILITY arises here. In common intention, there is a participation in an act in furtherance of the common intention. But here, just being a member of an act in furtherance of a common object & if someone commit a crime, each member is vicariously liable. In the case of Chittarmal v. State of Rajasthan, SC – clear distinction b/w 34 and 149 – 34, prearranged plan & meeting of minds; common object does not require proof of prior meeting.

Ø CASES & READINGS 1. Priya Patel v. State of M.P. (2006 Cr LJ 3627) Section 34 was not enforced as common intention could not be formed at spur of the moment for this case as a woman cannot rape a man according to the definition.

2. Barendra Kumar Ghosh v. Emperor (AIR 1925 PC 1) Man, outside as a guard to help further any crime inside will also be liable for the same u/s 34 as his participation will be counted.

3. Mahboob Shaw v. Emperor (AIR 1945 PC 118) S. 34 cannot be brought when same act was done by 2 people but not in furtherance of common intention. Common Intention can form at the spur of moment, but in this case, it was not such.

4. Mathew v. State of Travancore-Cochin (AIR 1956 SC 241) 29 members went to a police station with knife & they ended up killing 2 policemen. The Sessions Judge acquitted them under s. 302 read with s. 149 but convicted them on the lesser charges – State appealed against their acquittals under s. 302 read with s. 149 – High Court allowed the appeals against their acquittals and sentenced each of them to transportation for life.

SC - Now section 149 applies not only to offences committed in pursuance of the common object but also to offences that members of the assembly know are likely to be committed. It would be impossible on the facts of this case to hold that the members of the assembly did not know that murder was likely to be committed in pursuance of a common object of that kind by an assembly as large as the one we have there. Accordingly, even if the common object be not placed as high as murder the conviction on the murder-cum-rioting charge was fully justified; These answers the main ground of appeal.

MOHIT KHATRI (16 JGLS)

4

INCHOATE OFFENCES Concept of Inchoate Offences: Attempt, Conspiracy and Abetment 1. Punishing attempt to commit a crime- Section 511 2. Stages of crime: distinguishing attempt from preparation & mere thoughts. • Intention – Might change • Planning – Preparation stage TESTS* • Attempt – Penultimate stage of crime2 • Commission – Act committed / accomplished Taking Aim, ante-penultimate stage of crime. Still no-attempt cannot be argued. All depends on proximity. Another test is of Repentance. Match-stick and haystack example – high level of repentance.

Attempt: 1. Attempt and commission dealt with the same section – Offences – against state, assaulting governors, President with an intent to restrain the exercise of lawful power – sedition, waging war etc.

2. Attempt and commission dealt separately – Murder, Culpable homicide not amounting to murder, robbery etc. u/s 307, 308, 393.

3. Attempt to commit suicide u/s 309 4. Attempt to commit offences in general u/s 511

*Distinguishing Attempt from Preparation: a. Proximity Test – Proximity of INTENTION and not distance/time/...etc.3 • Sufficiently near to the accomplishment of the substantive offence. • Not last act he intended to do, but the last act legally necessary for him to do. A shoots Z – Intending to kill – Misses – not caused Z’s death – A liable for attempt of murder – as A did what was legally necessary for him to do under the circumstances.

2 3

Attempt in order to be criminal need not be Penultimate, but intent coupled with an overt act in execution thereof is sufficient in law; Gaur K.D., Page 1120. State of Maharashtra v. Md. Yakub MOHIT KHATRI (16 JGLS)

5

b. Repentance Test (Locus Paenitentiae) – So long as the steps taken by the accused leave room for a reasonable expectation that he might of his own accord, or fear of the consequences discontinues attempt, he will be treated at the stage of preparation. Court looks at the degree of repentance.4 A mixes poison in water for Z – till he doesnot give it to Z – its preparation because there are chances of his taking steps back – hence a not guilty of an attempt to murder.

c. Social Harm Test – B/w preparation and attempt; harm to society from the act. d. Equivocality Test – Harm speaks for themselves; Weapon in plane. Act done – indicates beyond reasonable doubt – that its end is directed towards commission of offence – it is attempt – or else mere preparation.

3. Impossibility of Attempts a. External impossibility – It suggests that one has moved a step ahead of attempt to the commission of crime itself. Due to external factors, independent of himself, the intended act failed. e.g. – shooting on a pile of pillows thinking it to be A. b. Internal Impossibility – It suggests that one’s act is still step away from the actual commission of crime, and it is due to his own reasons, that the act intended to do failed – impossibility not independent of person. e.g. – Giving fake poison to kill (mens rea could not be proved – innocent act)

4. ‘Conspiracy’ (120 A – 120 B) 120 A 2 or more persons agree to do or cause: • an illegal act • legal act but illegal means It needs to be substantive offense – Agreement is a difference between 120A & 107. Here attempt or commission of a crime that was conspired is immaterial. Till it can be proved that there was conspiracy – all are liable. Even if one is caught – but if it can be proved that there were other coconspirators; there was conspiracy – whether they are caught or convicted – immaterial – the one caught will serve his/her part of punishment. Section 120B deals with punishment.

4

Refer Textbook on IPC, Gaur, K.D., Page 1122. MOHIT KHATRI (16 JGLS)

6

5. Abetment (107 - 120) Ingredients: • • •

There must be an abettor He must abet Act abetted must be an offense or leading to an offense, by a person capable (in front of law), with the same intention and knowledge.

Section 107 – Abetment of a thing i.

By instigation • Provoke/ Incite/ Encourage/ Solicits – act prohibited by law.5 • Act done in furtherance not necessary. • Mere compliance doesnot amount to it.

ii.

By conspiracy • Agreement to do an act prohibited by law. • Some act is done in pursuance thereof. • If the abettor doesnot act, not liable.6

iii.

By intentional aiding • Giving Aid – Act / Omission • Active conduct on the part of Abettor – Act must be accomplished. • Commission of Crime necessary.

Section 108: Defines Abettor – a person who abets – an offence or commission of an act amounting to offence – committed by a person capable in law – same intention and knowledge as that of abettor. •

Abetment of illegal omission also amounts to offense – abettor may himself not be bound to do that act. • Effect of abetment is immaterial – Even if act abetted is not committed – A abets B to kill C, B doesnot kill, still A liable – A abets B to kill C, B kills, C recovers, A liable for abetment to commit murder. • Person abetted to be capable of committing – not necessary – or having guilty intention – Unsound mind, Minority to understand the nature of act – abettor alone is liable for abetment and the offence in such cases. • Abetment of abetment is offence – A instigates B to instigate C to murder Z; both are liable for abetment (A and B). • Abetment by conspiracy – abettor need not necessarily plan the offence with the person abetted. Section 109: Punishment for Abetment. There must be abetment of offense; act abetted must be in consequence of abetment; there must be no provision in code for the punishment of such abetment.

5

Queen v. Mohit, Sati case – people chanting Ram also punished for instigation of suicide.

6

House theft example – servant opens the door – abettor himself doesnot come to loot. MOHIT KHATRI (16 JGLS)

7

Section 110: Punishment for abetment; Person abetted acts with different intention from that of abettor – intention & knowledge immaterial – as long as act is same. Section 111: Act (a) abetted, act (b) done; abettor liable for the act done as if he directly abetted the act (b). Given (b) is a probable consequence of abetment. Section 112: Cumulative punishment; act abetted + act done. A tells B to burn C’s granary – B burns C’s granary and while doing so, he puts C’s life under danger – A liable for both offense. – Act abetted must be probable consequence. A tells B to assault C but B Kills C in the process – no probable consequence – A not liable. Section 113: Punishable – even if the act donot cause intended effect – but some other effect is caused. Section 114: If abettor absent during commission of crime – liable for only abetment – If he is present – liable for the offense too. Section 115: When offenses punishable with death / life imprisonment is abetted – but offense not committed. Section 116: When abetted doesnot act, but abettor does, abettor is liable. In 107 (conspiracy), in example Abettor himself did not acted & hence not liable. Section 117: When commission of offense by public or more than 10 people is abetted. Section 118: When conceals the design (place, time, type, etc.) of an offense with the knowledge of it being punishable by death / life imprisonment. E.g. A aware of dacoity to be done by B at X place – misinforms the cops that it’s been carried out by C, at Z place – A guilty under this section.

CASES & READINGS 1. R. v. Robinson [1952] 2 All ER 334 Person wants to defraud his insurance – so he makes a fake theft – on police enquiries, jwellery was found in his house. It was held that the act of (sending a letter to claim insurance), communication started – attempt is made. Whether it reaches to the desired person or not is immaterial.

2. R. v. Shivpuri (1987 AC 1) House of Lords Person charged with knowingly dealing with goods, import of which is prohibited. Instead of the supposed Heroine or drug, it turned out to be some vegetable material. House of Lords observed that it was sufficient to prove that the person knew that the goods concerned were prohibited, and it is immaterial if the person is unsure of the exact nature of good till he believed that he was dealing with prohibited substance.

MOHIT KHATRI (16 JGLS)

8

3. Anderton v. Ryan (1985 AC 560) House of Lords The defendant was found in possession of a video recorder. She refused to name the source, but admitted that she believed it to be stolen. After it became clear that there was no evidence that it was in fact stolen, she was convicted of attempting to handle stolen goods. Held: The 1981 Act had changed the common-law position, and the mere doing of preparatory acts which, if completed would constitute an offence, was not now sufficient. A conviction was now prevented where the full offence could not follow from the preparatory acts. None of the subsections would turn what was in fact an innocent act into an offence of attempting to commit the crime, merely by the defendant’s criminal intent.

4. Emperor v. Asgar Ali Pradhania (AIR 1933 Cal. 833) A – convicted for attempting miscarriage – administering the complainant two chemicals – but no evidence could prove the capability of both the chemicals to do the act intended. The appellate court acquitted the defendant – what he did was not act done towards commission – both liquids could do no harm – failure not independent of himself – INTERNAL IMPOSSIBILITY.

5. State of Maharashtra v Mhd. Yakub (1980) SCR (2) 1158 A with 2 others was carrying silver ingots to be smuggled out of India – Reached the shore – unloaded the ingots from the truck (not yet loaded in ship) – custom officers reaches and catches them – issue arises – was it attempt or preparation – if preparation – not offence under custom act. SC held that for attempt there must be intention, preparation, act towards commission and must be proximate to intended result. The facts are merely suggestive and not conclusive. Also, proximity must be in terms of intention – both are missing here – acquitted.

6. Abhayanand Mishra vs The State of Bihar AIR 1961 SC 1698 A, prepared a fake certificate to get an admit card and sit in the University MA exams – Could not sit for exams – university was informed about fake certificate – A contested that as he did not get to sit for exams, why is he liable. The SC held that as soon as A dispatched the certificate and application, he entered the stage of attempt to commit cheating – he even induced the university to get an Admit Card – Due to some External Reasons beyond his control, he failed to sit in foe examinations – therefore court found him guilty of attempting to commit the offense of cheating.

MOHIT KHATRI (16 JGLS)

9

GENERAL EXCEPTIONS (76 - 106) except 91, 93, 94 1. Mistake of Fact and Law (Sec. 76 – 80) Mistake of Facts (Sec. 76, 79) “ignorantia facit doth excusat, ignorantia juris non excusat” Sec. 76 – Deals with two classes of cases where a person is excused from criminal liability on the ground of mistake of facts viz. a. When a person is bound by law to do something and does it, b. When a person believes in good faith, owing to a mistake of fact and not a mistake of law, that he is bound to do something, and does it.

Sec. 79 – Immunity to person for his act – justified by law (not bound like 76) – or by mistake of fact in good faith believes to be justified by law. Act of Judge (Sec. 77) Sec. 77 – Judge acting judicially; or in good faith; believes to be following law; nothing is an offense. For fearlessness & independence of administration of justice.7 Ingredients – Act of judge in discharge of his official duty; within his jurisdiction; good faith.

Act done in pursuance of court order (Sec. 78) Sec. 78 – Act done in pursuance of court order – till the judgement is in force; once overruled – no protection – but if in good faith – if in good faith believes court had some jurisdiction. Ingredients – Officer exempted – provided – acting in pursuance of judgement – in good faith – belief in the legality of order.

Accident (Sec. 80) Sec. 80 – Act done by – accident – without criminal intent – in doing a lawful act in a lawful manner – proper care & caution – no negligence – exempted. Accident – Event occurs without one’s knowledge and beyond expectation. Even if accident takes place while performing an unlawful act, Sec. 80 would be available if there is no causal connection between the resultant harm and act in question.

7

Chunder Narain Singh v. Birjo Bullub Gooyee MOHIT KHATRI (16 JGLS) 10

2. Necessity (Sec. 81) Sec. 81 – Act done – cause harm – knowledge – no criminal intent – done to prevent another greater harm. Not a blanket immunity – only in exceptional cases: • Act was done to avoid consequences which would have led to irreparable damage. • No more harm was done than was necessary for the purpose. • Evil inflicted was not disproportionate to evil avoided. Ingredients: • Act must be done without criminal intent. • Must be done in good faith to prevent other harm to person or property. • Must have been done to avert a greater harm. Homicide justifiable in self-defense and when necessary for the good of society – cannot be put where a person puts other’s life in jeopardy. In case of theft as a defense – to prevent hunger – framers of code rejected – as it could claim the benefit of necessity as a defense to the charge of crime of stealing. Stephen v. Dudley

3. Insanity/ Unsoundness of mind: McNaughton Rules and beyond Infancy and Intoxication (Sec. 82 - 86) Infancy (Sec. 82, 83) Sec. 82 – Nothing done by a child under 7 years of age is an offense. Provides total immunity to children under 7 years from criminal responsibility – doli in...