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Question 1 :-Discuss the right of private defense against offences relating the human body. Is there any difference between Indian Law and English Law.? OR Section 97 of IPC defines that the right of private defense of the body and of property?Every person has a right, subject to the restrictions co...

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Question 1 :-Discuss the right of private defense against offences relating the human body. Is there any difference between Indian Law and English Law.? OR Section 97 of IPC defines that the right of private defense of the body and of property? Every person has a right, subject to the restrictions contained in section 99, to defend : 1. First : His own body, and the body of any other person, against any offence affecting the human body. 2. Secondly: 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 ana attempt to commit theft, robbery, mischief or criminal trespass. RIGHT OF PRIVATE DEFENSE OF BODY Section 97 lays down that every person has a right subject to restrictions contained in section 99, to defend his own body, and the body of any other person, against any offence affecting the human body. Section 102 of IPC provides that the right of private defense 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. It is clear from the wording of the section that the right commences and continues as long as danger to body lasts. The extent to which the exercise of the right will be justified will depend not on the actual danger but on whether there was reasonable apprehension of such danger. There must be an attempt or threat, and consequent thereon an apprehension of danger, but it should not be a mere ide threat. There must be reasonable ground for the apprehension. The right of private defense of the body extends to the voluntary causing of death or any other harm to the assailant if the offence

occasioning the exercise of the right be of any of the following descriptions, viz : 1. An assault causing reasonable apprehension of death. 2. Even injury to innocent persons in the right of private defense against an assault is excusable. 3. Assault with the intention of committing rape, gratifying unnatural lust, kidnapping or abducting or wrongfully confining a person causing reasonable apprehension that he will not be able to have recourse to the public authorities for his release. For the purpose of exercising he right of private defense physical or mental incapacity of he person against whom the right is exercised is no bar. There is however no right of private defense: 1. Against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant or 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. 2. In cases in which there is time to have recourse to the protection of the public authorities. 3. Nor does the right of private defense extend to the inflicting of more harm than it is necessary to inflict for the purpose of defense (Sec.99) The measure of defense must bear proportion to the quantum of force used by the attacker and which it is necessary to repel. Thus where the accused who was attacked by another with a kirpan succeeded in disarming his opponent by taking away his weapon and showered blows after blows including the serious once on the chest. It was held that he must be held to have exceeded the right of self-defense and was guilty under section 304 Part I of IPC. The right of private defense provided by section 97 IPC is a right of protection and not of vengeance or aggression. An act done in exercise of a right of private defense does not give rise to any right of private defense in return. Case : Mukhtiar Singh v. State of Punjab 1973.

Question No. 2 : Define criminal conspiracy and its ingredients given in Section 120A of IPC. How it punishable.? INTRODUCTION: The original Indian Penal Code did not have an offence by the name of criminal conspiracy. However the need to have this offence was felt later on and this chapter V-A relating to criminal conspiracy with only two sections in it i.e. section: 120-A which provides definition of criminal conspiracy and Sec. 120-B providing its punishment was added in IPC by the Criminal Law Amendment act 1913. Definition of Criminal conspiracy under Sec.120-A When two or more persons agree to do or cause to be done I) An illegal Act II) An act which is not illegal but when it is done by illegal means. Such an agreement is designated/made a criminal conspiracy. INGREDIENTS:1.There shall be minimum two or more person. 2. Agree for illegal act. The expression ‘ illegal’ has been defined in Sec.43 of the code. According to this section, the word illegal is applicable to everything : i) Which is an offence ii) Which is prohibited by law iii) Which is furnishes ground for a civil action iv) Act is done by illegal means. Further provided that no agreement except an agreement to commit an offence, shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation : It is immaterial whether he illegal act is the ultimate object of such agreement or is merely incidental to that object. In other words, the conspirator is guilty of criminal conspiracy; whether the illegal act is the ultimate object of the agreement or it is merely incidental to the object of the agreement. The law does not treat these cases differently. Case : Mohd. Usman v/s State 1981 : In this case the accused persons were selling explosive substances without valid license for a very long time. The SC held that they were guilty of criminal conspiracy, as they

had been doing this for a very long time, which could not have been possible without an agreement between then, and this agreement was proved by necessary implication. ILLUSTRATION: ‘A’ the wife of ‘B’ had illicit connection with ‘C’, who wanted to murder ‘B’. Instead of telling B that C waned to murder him, told C that B would go to lonely place on a particular day & time. C murdered B at that particular place, date and time. Thus A and C both are guilty of the offence of criminal conspiracy. C is also guilty of adultery and murder. CONVICTION OF A SINGLE PERSON FOR CRIMINAL CONSPIRACY:- An important question arises whether a single individual can be held guilty of this offence. For criminal conspiracy, there ‘must’ be at-least two persons. Thus the section only says that agreement must be between two or more persons and not that the connection must be of at-least two persons. ILLUSTRATION :- Where the prosecution case is that, four : persons had entered into an agreement to commit murder of ‘Z’ and out of these four one is ‘D’ without a shadow of doubt. The other three might be A,B and C or might not be A,B and C because the evidence against them is doubtly. In such case, since two things are certain the member of conspirators was four and one of these four was definitely “D’ thus D alone is guilty of criminal conspiracy. Case : B.H. Narasimha Rao V/s Govt. Of A.P 1995 The accused was charged for committing an offence in conspiracy with seven other who were al acquitted. It was held that the accused could not be convicted under section 120-B on the mere ground that he was head of a section of he branch where the fraud was alleged to have been committed. Section 120-B : Punishment of criminal conspiracy: Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years of upwards shall, where were no express provision is made in this code for punishment of such conspiracy, be punished in he same manner as if he had abetted of such offence.

# Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable with imprisonment for a term not exceeding six month or with fine or with both.

Question No. 3 : Define Murder and distinguish it from culpable homicide no amounting to murder OR Every murder is a culpable homicide, but every culpable homicide is not murder. Discuss. Ans :INTRODUCTION; Homicide means the killing of a man by man. The homicide may be lawful or unlawful. Culpable homicide means death through human agency punishable by law. All murders are culpable homicide but all culpable homicide is not murder. There are two classes of culpable homicide : 1. Culpable Homicide Amounting to Murder: It is known as simple murder. 2. Culpable homicide not amounting to Murder: There is necessarily a criminal or knowledge in both. The difference does not lie in quality, it lies in the quantity or degree of criminality closed by the act. In murder there is greater intention or knowledge than in culpable homicide not amounting to murder. The culpable homicide is defined in sec. 299 of the IPC which is as under : CULPABLE HOMICIDE UNDER SEC.299 OF IPC Whoever causes death by doing any act :(i) With the intention of causing death (ii) With the intention of causing such bodily injury as is likely to cause death. (iii) With the knowledge that he is likely, by such act, to cause death commits the offence of culpable homicide. ILLUSTRATION ‘A’ knows that Z is behind a bush, B does not know it. A intending to cause or knowing that is likely to cause Z’s death induces B to fire at the

bush. B fires and kills Z. Here B may be guilty of no offence, but A has committed the offence of culpable homicide. Here is the three explanations of this section which are as under :Explanation No. 1 :- A person who causes bodily injury to another who is labouring under disorder decease, or bodily infirmity and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation No. 2 : Where death is caused by bodily injury the person who causes such bodily injury shall be deemed to have caused death, although by resorting to proper remedy and skillful treatment, the death might have been prevented. Explanation No. 3 : The causing of death of a 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. Case: Kedar Parsad V/s State 1992: It was held by the court that the first accused was liable U/s 304 and the other U/s 324 for causing hurt by dangerous weapon & the third U/s 323 for causing simple hurt only. Case:- Ghanssham V/s State of Maharashtra 1996 : The accused husband stabbed his wife on chest resulting in her death on her refusal to have sexual intercourse with him. It was held that the act was done in sheer frustration and anger and so his liability was based on sec. 299(2) of IPC. Case: Sarabjeet Singh V/s St ate 1994. The accused did not have good relation with complainant on account of sale transaction of piece of land. He went to the house and assaulted the complainant and his wife. He also picked up the infant child of the complainant and threw him down on the ground with force as a result of which the child died some time later. The accused was held guilty under sec. 304 Part-II. When culpable homicide amounts to murder : According to sec.300 of IPC except the exceptions culpable homicide is murder, it the act by which death is caused: 1. It is done with the intention of causing death or

2. It is done with the intention of causing such bodily injury as the offender knows that it is to be likely to cause the death of the person to whom the harm is caused. 3. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient ordinary cause of nature to cause death 4. If the person committed the act knows that it is so imminently dangerous that it must in all probability, cause death or such bodily injury as is like to cause death; and commits such act without any excuse for incurring death or such injury as said above. ILLUSTRATION: A. A shoots Z with intention of killing him, Z dies in consequence, A commits murder. B. A knowing that Z is labouring under such disease that a blow is likely to cause his death, strike him with the intention of causing bodily injury, Z dies in consequences of blow. A is guilty of murder. C. A intention gives Z a sword cut sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequences. Here A is guilty of murder although he may not have intended to cause Z’s death. D. ‘ A’ without any excuse fires a loaded cannon in to a crowd of persons and kills one of them. A is guilty of murder although he may not have had a pre-meditated design to kill any particular individual. Cases:Sridharan Sathesan V/s State of Keral 1995:There was a dispute between the accused and the deceased regarding the payment of money. The accused who was a driver caused serious injuries by his mini bus and hit the deceased with great speed in he middle portion of the body. Tyre marks were also found on the thighs of the deceased. It was held that it was an intentional killing and Sec.300 (1) was applicable. Case : State V/s Sadanand 1987 :Accused caused the first injury on the stomach of the deceased by Rampuri Knife with a blade of more than six inches long. While the deceased started running away from the place to save himself, the

accused gave another blow by the same knife on his back. The injuries caused his death. The SC held that the accused was guilty of murder and Sec.300 (3) was applicable. Case: - Lakha Singh V/s state of Rajasthan: The accused was held guilty on the basis of cause (3) of section 300 of IPC. Case: Dulal Hazara V/s State 1987: The accused tied the mouth and throat and hands of the deceased causing her death by asphyxiation due to throttling, he was held guilty of murder. He knew that his act was so imminently dangerous as to cause death probability. Thus except the exceptions cases culpable homicide is murder, if the circumstances described above any of the four clauses are present. In other words, only these four classes of culpable homicide are murder and any other kind of culpable homicide continues to be culpable homicides and does not become murder.

EXCEPTIONS OR WHEN CULABLE HOMICIDE IS NOT MURDER Five exceptions have been provided u/s 300 wherein causing death does not amount to murder. If any of these exceptions is held to be applicable in a case, the conviction of the accused in that case would be for culpable homicide not amounting to murder. In this sense, therefore, these five exceptions are partial defenses to murder thus following are the exceptions:1. Grave and sudden provocation: Culpable homicide is not murder if the offended, who deprived of the self control by grave and sudden provocation, causes the death of a person, who gave the provocation or causes the death of any other person by mistake or accident. Thus for the first exception following things are necessary :a) There must be provocation. b) Provocation must be grave and sudden. c) By reason of such provocation the offender have been deprived of the power of self control. d) The death must be of that person who gave the provocation or any other person by mistake or accident.

ILLUSTRATION: Y gives grave and sudden provocation to A. A on this sudden 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. Ajit Singh v/s State l991 : In this case the accused found his wife and a neighbours in a compromising position and shot both of them dead. It was held that he was acting under provocation and is liable for sudden provocation. 2. RIGHT OF PRIVATE DEFENSE;- For the application of this exception the following conditions must be fulfilled :A. Act must be done in good health. B. Act must be done in exercise of the right of private defense of person or property. C. The person doing the act must have exceeded in his right given to him by law and thereby caused death. D. The act must be done without premeditation and without any intention of causing more harm then was necessary for the purpose of such defense. ILLUSTRATION:- Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. A believing in good faith that he can by no other mean, prevent himself from being horsewhipped shoots Z and kills. A has not committed murder but culpable homicide. Bahadur Singh v/s State 1993 :The complainant party assaulted the accused person who were also armed with sharp weapons like Gandasa by the use of which death caused. It was held they had excluded their right of private defense in good faith and so exception N’s was available to them. 3. OFFENCE BY PUBLIC SERVANT OR PERSON AIDING PUBLIC SERVANT. Culpable homicide is not murder if the following conditions are there :a. Offence must be committed by public servant or by some other person acting in the aid of a public servant in advancement of public justice,

b. Public servant or such person must have exceeded the power given to him by law. c. Death must be caused by doing an act which he, in good faith, believes to be lawful & necessary for discharge of his duty. d. The act must have been done without any malafide intention towards the person whose death is caused. Case : Dakhi Singh V/s State 1955.: It was held by the Court that he was entitled to have the benefit of this exception and so he was liable only for culpable homicide not amounting to murder. 4. Death caused by sudden fight. For the application of this exception The following conditions must be fulfilled :a. Death must be caused by sudden fight. b. Fight must be without any pre-meditation. c. It must be occur in the heat of passion upon a sudden quarrel. d. It must be committed without the offender’s having taken undue advantage or acted in a cruel or unusual manner. Explanation :- It is immaterial in such cases where party offers the provocation or commits the first assault. Case :- State v/s Jodha Singh 1989: A quarrel between accused and the deceased parties changed in to a sudden fight in which weapon were used by both parties resulting in injuries on both sides and death of the deceased. This exception was held to be applicable. 5. Death caused with the consent: 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 caused Z, ( a person under l8 years of age) to commit suicide. Here on account of Z’s death (he was incapable of giving consent to his own death). A has, therefore abetted murder. Case :- Dashrath Paswan V/s State 1958 : The accused could not passed the Xth Class examination for three years in a row and become frustrated and decided to commit suicide and informed his wife who asked him to kill her first which he did, the exception was held to apply.

DISTINCION BETWEEN SECTION 299 AND 300 OF IPC One of the most complex matters under the code is to distinguish between culpable homicide and murder. The first real attempt in this regard was made in the case :Case : Reg. V/s. Govinda 1876 (Bom): In this case the accused kicked his wife who was 15 years old and gave her a few blow on the body with the result she fell down on the ground. Then he put one knee on her chest and struck her a few more blow resulting in her death. The lower court convicted him of murder. There were different opinions amongst the two judges of the High Court and consequently the matter was referred to a third Judge, Justice Melvil, who held the accused guilty under clause (2) of sec.299 for culpable homicide and sentenced him u/s 304 part I on the grounds that the death was caused with the intention on the part of the accused to cause such bodily injury as was likely to cause death. Justice Melvil discussed the two sections clause by clause and attempted to bring out the difference between the two offence clearly in following manner :Question No. 11:- What is defamation? What defenses are available to a p...