INDIAN PENEL CODE Video Lecture Hindi...
Question 1 :-Discuss the right of private defence against offences relating the human body. Is there any difference between Indian Law and English Law.?
Section 97 of IPC defines that the right of private defence 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 DEFENCE 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 defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed, and it continues as long as such apprehension of danger to the body continues.
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 defence 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 defence 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 defence physical or mental incapacity of he person against whom the right is exercised is no bar.
There is however no right of private defence :
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 defence extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence(Sec.99)
The measure of defence 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 defence and was guilty under section 304 Part I of IPC.
The right of private defence 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 defence does not give rise to any right of private defence 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.
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
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.
‘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 skilful 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.
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.
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 defences 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 DEFENCE;- 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 defence 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 defence.
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 defence 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 ful-filled :-
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 :--
Q. No. 4: What do mean by kidnapping? Distinguish between Kidnapping & Abduction.
Answer :-INTRODUCTION: Kidnapping and abduction are particular types of offences under the law of crime. Under these offences, a person is taken away secretly or forcible without his consent or without the consent of authorised guardian. Under kidnapping a person is kidnapped from lawful custody. Under section 359 of IPC, there are two types of kidnapping :-
1. Kidnapping from India.
2. Kidnapping from lawful guardianship.
Section 360 : defines that kidnapping from India and section 361 defines that kidnapping from lawful guardian ship. The offence of abduction is defined under section 362 of IPC.
1. KIDNAPPING FROM INDIA:
Section 360 says that whoever conveys any person beyond the limit of India without the consent of that person or of any person legally authorised to consent on behalf of that person, is said to kidnap that person from India. Age limit is immaterial. This has two essentials :
(i) Convey any person beyond the limits of India.
(ii) Such conveying must be without the consent of that person or of the person legally authorised to give consent on behalf of that person.
2. KIDNAPPING FROM LAWFUL GUARDIANSHIP : SEC.361
Sec. 361 says that 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 guardianship 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. The word lawful guardian here mans any person lawfully interested with care or custody of such minor or other person.
3. EXCEPTIONS :- There is one exception of this section, 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 the lawful custody of such child unless such act is committed for an immoral or unlawful purpose.
Take or entice away :- Take away or entice away means to induce a person for going to another place. The object of this Sec. Is to protect minor children from being reduced ( to corrupt) for improper purpose.
Guadian consent :- The kidnapping must be without the consent of the guardian. The consent may be expressed or implied. Thus, to attract this sec. there must be taking or enticing away any minor or unsound mind person out of lawful guardianship.
Section 362 says that whoever by force compels or by any deceitful induces any person to go from any place, is said to abduct that person. This section may read with section 364, 365 and 360.
This section contains two essentials for the offence of abduction :-
1. Forcible compulsion or inducement by deceitful means.
2. The object of such compulsion or inducement must be going of a person from any place. Thus abduction is an offence under sec.362. If by force a person compels or even by fraudulent means induce any other person to go from any place taken is called abduction.
PUNISHMENT FOR KIDNAPPING UNDER SEC. 363 :
Whoever kidnaps any person from India or from Lawful guardianship shall be punished with imprisonment or either description for a term which may extend to seven years and shall be liable to fine.
DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION:
1. It is committed only in respect of It is committed in respect of any
A minor under 16 years of age if person of any age.
A male and 18 years of age if a
Female, or a person of unsound
2. In kidnapping consent of the Consent of the person removed, if
Person enticed is immaterial. Freely and voluntarily given,
Condones the offence.
3. In kidnapping the intention of In abduction intention is a very
The offender is irrelevant. Important factor.
4. It is not a continuing offence. The It is a continuing offence. A
Offence is completed as soon as person is being abducted both
The minor is removed from the when he is first taken from one
Custody of his or her guardian. Place to and also when he is
Removed from one place to
Question No. 11:- What is defamation? What defences are available to a person who is charged with the offence of defamation.? OR
Can a wrongful act of a defamation constitute an offence? What are the defences available to the alleged wrong-doer? Describe.
Answer : INTRODUCTION:-
Defamation is a crime against the reputation of a person. Defamation is also a tort. It is one of the most important rights of a person or right of his reputation. If any person by way of libel i.e. written words or by salener i.e. spoken words lowers the reputation of a person then it is called defamation. The reputation must be lowered among the reasonable person including relation of a person.
DEFINITION OF DEFAMATION :-
Section 499 of IPC says that whoever by words, spoken or written or by sign or by visible representation, makes or publishes any imputation concurring any person invading to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said, except in the case of hereinafter accepted, to defamed that person.
This section 499 of IPC contains the following things :-
1. Whoever makes publishes any imputation concurring any person.
2. Such imputation must be made by words, signs or by visible representation.
3. Such imputation must be made or published with the intention of harming or with the knowledge or having reason to believe that it will harm the reputation of such person.
ESSENTIAL OF THIS SECTION
The following are the essentials of this section regarding defamation:-
1. PERSON :- Person means the person who publishes are the person who makes an imputation. Person includes like editor or a journal, the printer or the writer of the articles in the paper.
2. PUBLICATION :- The expression ‘makes or publishes’ has to be understood. The meaning of this expression is publication. Publication of the defamatory statement is essential. If a person merely writes out a defamatory matter but does not publish, then the same will not be defamation. Publication means the defamatory statement, must come into the notice of third person. Because the reputation of a person remains in the eye of third person. Publication may be done by :-
1. An act which conveys the defamatory statement to a third person.
2. By drawing the attention of others towards the defamatory
matters already existed.
Thus, this communication of defamatory matter to the person defamed and to the third person is necessary.
A case Krishana Nand v/s Emperor : The Allahabad High Court held that the publication to a third person was deemed to be necessary. However, in case of best land, the presumption being that it was needed by other. Its sending or pasting ward amount to publication.
3. Publication of defamatory statement must be intending to harm the reputation of another person:- The information to cause harm is the most essential part of an offence under section 499 of IPC. There must be an intention of harming or knowing or having reasons to believe that the imputation will harm the reputation. It is sufficient that there was reason to believe that the imputation made would harm the reputation.
There are some explanations attached to this section:-
1. Explanation No. 1:- If any amount of defamation is against the deceased person and the imputation would harm the reputation of that person of living and is intended to be harmful to the feelings of the family or relatives.
2. Explanation No.2 : This may amount to defamation to take an imputation concerning to a company or association selection of such person.
3. Explanation No.3: An imputation in the form of an alternative or expressed ironically may amount to defamation.
4. Explanation No.4 :- No estimate is said to harm a person’s reputation unless that imputation directly or indirectly in the estimation of others, lowers the normal instinctual character of that person in respect of caste or if his calling in respect of his caste lowers, the creditor of that person in a locality or in a state is generally considered as disgraceful. Such as A draws a picture of Z running with B’s watch intending to cause it to be believed that Z has stolen B’s watch. This is defamation unless it falls within one of exception.
Following are the exceptions to this offence :-
1. True statement : It is not defamation if any thing which is true concerning only person if it is for the public interest or welfare good. The imputation should be in good faith and for public.
2. Public conduct of public servant:- It is not defamation to express, in good faith any opinion whatever respecting the conduct of a public servant in discharge of his public sanctions or respecting his character so far as his character appears in that conduct and not further.
3. Public quotation: It is not a defamation to express in good faith any opinion whether respecting the conduct of any person so far his character appears in that conduct and no further.
4. Publication of court proceedings. It is not defamation to publish a substantial true report of the proceedings of court of justice.
5. Conduct of witness in the court:- It is not a defamation to express in good faith any opinion whatever respecting the writ of any case, civil or criminal which has been decided by a court of justice or respecting the conduct of any person. Along with witness or any agent in any such case or respecting the character of such person as far as his character appears in the conduct and no further.
6. Merit of public performance :- It is not defamation to express in good faith any opinion respecting the merit of any performance. Which is submitted to the judgment of public or respecting the authority that appear in such performance and no further.
7. Censure passed in good faith:- It is not a defamation of a person to pass, In good faith any censure on the conduct of that person in consented matter.
8. It is not defamation to perform in good faith, an accusation against any person to any of these who has lawful authority over that person with respect to subject matter or within this exception.
9. It is not defamation to make an imputation if the impanation is made in good faith for the protection of the interest of the person making it.
10. It is not defamation to convey a caution that is intended in the good faith of the person.
These are the exceptions to the offence of defamation. Under these exceptions no offence of defamation is proved.
PUNISHMENT FOR THE ACT OF DEFAMATION
Under section 500 of IPC it is provided that the punishment for the offence of defamation , which is simple imprisonment for a term which may extend to two years or with fine or with both.
Q. No 9:- What do you mean by Kidnapping? Distinguish between Kidnapping and Abduction.
What are the ingredients of the offence of kidnapping ?
Answer : INTRODUCTION :- kidnapping and adduction are particular types of offence under the law of crime. Under these offences, a person is taken away secretly or forcible without his consent or without the consent of his authorised guardian. Under kidnapping a person is kidnapped from lawful custody. Kidnapping is defined under section 359 of IPC, which gives two type of kidnapping:-
i) Kidnapping from India.
ii) Kidnapping from lawful guardianship.
Section 360 says that Kidnapping from India end. Section 361 defines that Kidnapping from lawful guardianship. The offence of abduction is defined under section 362 of IPC.
Section 359 of IPC says that there are two types of kidnapping:-
1. Kidnapping from India: Under section 360 of IPC :- This section provides that whoever conveys any person beyond the limit of India without the consent of that person or any person legally authorised to consent on behalf of that person, is said to kidnap that person from India. Age limit immaterial. This section has two essentials :-
I) Convey any person beyond the limits of India.
II) Such conveying must be without the consent of that person or the person legally authorised to give consent on behalf of that person.
2. Kidnapping from lawful guardianship 361 IPC:- It defines as that 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 guardianship 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. The word lawful guardian here means any person lawfully interested with care or custody of such minor or other person.
3. Exception :- There is one exception of this sec. 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 the lawful custody of such child unless such act is committed for an immoral or unlawful purpose.
#.Take or Entice Away:- means to induce a person for going to another place. Object of this section is to protect minor children from being reduced ( to corrupt) for improper purpose.
#. Guardian consent: The kidnapping must be without the consent of the guardian. The consent may be expressed or implied. Thus to attract this section there must be taking or enticing away any minor or unsound mind person out of lawful guardianship.
Section 362 of IPC says that whoever by force, compels or by any deceitful means induces any person to go from any place ,is said to abduct that person.
Two essential ingredients of the offence of abduction are :
i) Forcefully compulsion or inducement by deceitful means.
ii) The object of such compulsion or inducement must be the going of a person from any place. Thus abduction is an offence under section 362. If a person compels or even by fraudulent means induce by .other person to go from any place taken is called abduction.
PUNISHMENT FOR KIDNAPPING UNDER SEC.363 IPC
Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment or either description for a term which may be extended to seven years, and shall be liable to fine.
DIFFERENCE BETWEEN KIDNAPPING & ABDUCTION
1. It is committed only in respect It is committed in respect of any
Of minor under 16 years of age person of any age.
If a male and 18 years if a female
Or a person of unsound mind.
2. In kidnapping the consent of Consent of the person removed, if
Enticed is immaterial. Freely and voluntarily given,
Condones the offence.
3. In kidnapping the intention In abduction intention is a very
Of the offender is irrelevant. Important factor.
4. It is not a continuing offence It is a continuing offence. A person
Is completed as soon as the is being abducted both when he is
Minor is removed from the first taken from one place to and
Custody of his or her also when he removed from one
Guardian. Place to other.
Unit No. 1
Q. No. 12: Explain in detail the concept of Abetment.
Answer :- INTRODUCTION :- A crime may be committed by one or more persons involved in crime then their liability depends upon the extent of their participation. Thus this rule of joint liability comes into existence. But there is an important fact which is that the law has a knowledge about the abettor, who has given help to another in crime. This rule is very ancient and was applied in Hindu Law also. In English Law, criminals are divided in four categories, but in India there is only one distinction between the doer and his helper who is known as abettor. The crime of abetment come under section 107 to 120 of the IPC. Section 107 defines ‘abetment of a things’ and section l08 defines about the abettor.
SECTION 107 IPC ‘ABETMENT OF THING’:
A person abets the doing of a thing by instigation :-
1. Instigate any person to do that things
2. By conspiracy.
3. By aids.
BY INSTIGATION ANY PERSON TO DO THAT THINGS :- According to the first clause of section 107 a person abets of thing that instigates any person to do that thing. A person is said to instigate another when he incites, urges, encourages, provokes, counsels, procures or command him to do something.
EXPLANATION :- A person who by wilful misrepresentations or by wilful concealment of a material fact, which he is bound to disclose, voluntary causes or procures or attempts to cause or procures a thing to be done, is said to instigate the doing of that things.
A Police Officer is authorised by a warrant from a court of justice to apprehend Z. B knowing that fact and also that C is not Z, wilfully represents to A that C is Z and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
Case : Gurbachan Singh v/s Sat Pal Singh, AIR- 1990
A newly wedded girl died of burns. The father of deceased had stated in FIR that the deceased committed suicide because of harassment and constant taunt for insufficient dowry. It was held by the SC that the deceased had committed suicide at the instigation of her husband and in laws and it was not a case of accidental death.
2. ABETMENT BY CONSPIRACY
The second clause of this section states that a person abets the doing of a thing who engages with one or more other persons in conspiracy for the doing of that thing. If an act or illegal omission takes place in pursuance of that conspiracy and in order to doing of that thing then it is called abetment by conspiracy. If an act or illegal omission takes place in prurience of that conspiracy.
A concerts with B a plans for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A’s name. C agrees to procure the poison and deliver it to B for the purpose explained ‘A’ administers the poison and Z dies. Here A and C have not conspired together, yet C has therefore committed the offence and is liable for punishment.
A case : Rup Devi v/s State : 1955.
The deceased & his wife had strained relationship. The wife had illicit intimacy with the accused. The deceased was scheduled to go to ‘Sadhu” on a particular day. The wife told the accused about this programme even though she knew that the accused was waiting for the opportunity to kill her husband and taking the opportunity he killed him. It was held that the wife was not guilty of abetment by conspiracy, even though her conduct was open to censure.
3. ABETMENT BY AIDING:
The third clause of the section says that,” A person abets the doing of thing who intentionally aids by any act in the illegal omission of the doing of that thing.
EXPLANATION :- Whoever either prior to or at the time of the commission of an act does anything in order to facilitate the commission of that act thereby facilitates the commission thereof, is said to aid the doing of that act.
ILLUSTRATION :- If the servant keeps the gate open of the master’s house so that thrives may enter and thieves do not come, he cannot be held to have abetted the commission of theft.
A case: Ram Kumar v/s State of H.P. 1995. The 19 years old prosecutrix was taken to the police station by the accused that kept watch over her husband while she was raped by the co-accused. In this custodial rape the accused turned deaf ears towards the cries of the prosecutrix and did nothing to help her. The SC implied abetment of the accused for abetment of rape.
SECTION 108 OF IPC: ABETTOR :
A person can become an abettor in two ways :-
1. When he abates the commission of an offence : Example : Where he abets ‘B’ to commit murder of ‘Z’. Here A is an abettor.
2. When the abets the commission of an offence it is committed by a person capable by law to commit an offence with the same intention or knowledge as that of the abettor.
Example : “A” abets B, a five year old child, to commit murder of Z, he is still an abettor under the 2nd category because even though the child will not be guilty of anything by virtue of the protection given to him by section 82 of the IPC.
To define the abettor the explanation must be read as :-
EXLPLANATION No.1 :- The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.
ILLUSTRATION :- ‘A’ instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.
Explanation No.2 :- To constitute the offence of abetment it is not necessary that the particular act of abettor should be committed.
ILLUSTRATION :- ‘A’ instigates B to Murder D. B in pursuance of the instigation stabs D. D recovers from wound. A is guilty of instigation B to commit murder.
Explanation No. 3 :- It is not necessary that the abettor & the person abetted must have same guilty intention or knowledge.
ILLUSTRATION :- ‘A’ with a guilty intention, abets a child or a lunatic to commit an act which would be an offence if committed by a person capable by law lof committing an offence and having the same intention as A. Here A, whether the act be committed or not is guilty of abetting an offence.
EXPLANATION NO. 4 :-The abetment of an offence being an offence the abetment of such an abetment is also an offence.
ILLUSTRATION :- ‘ A ‘ instigates B to instigate C to murder Z. B accordingly instigates C to murder Z and C commits that offence in consequences of B’s instigation. B is liable to be punished for his offence with the punishment for murder and as A instigated B to committed the offence. A is liable to the same punishment.
EXPLANATION NO 5 ;-It is not necessary to the commission of the offence of abetment by conspiracy that the abettor shoulbigamyd concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy.
ILLUSTRATION : ‘ A’ concerts with B a plan of poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison but without mentioning A’s name C agrees to procure the poison & deliver lit to B the purpose of its being used in the matter explained. ‘A” administers the poison, Z dies in consequence, Here though A and C did not conspired together, Yet C has been engaged in the conspiracy in pursuance of which Z had been murdered. C has therefore committed the offence defined in the section and is liable to the punishment of murder.
Unit No. iv
Question No. 13 :-What are the ingredients of the offence of “Bigamy”? Discuss in detail. OR
What are the several offences set out in the IPC relating to Marriage ? OR
What is bigamy? Under what circumstances would a woman, who in the life-time of one husband, marries another, not be guilty of bigamy.?
Answer : INTRODUCTION :-
OFFENCES RELATING TO MARRIAGE :- The following are the provisions in the Indian Penal Code dealing with the offences relating to marriage.
Under section 494 defines the offence of bigamy as under: “ Whoever having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
In Bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it must be proved. Admission of marriage by the accused is not the evidence of it in bigamy case. Under section 494 and 109 of IPC the evidence of witness called to prove the marriage ceremonies showed that the essential ceremonies had not been performed. On admission of the accused in a written statement that the parties married after the first marriage was dissolved & was not justified, In a case Kanwal Ram v/s Himachal Pradesh Administration 1966.
An another case of Shanti Dev Barma v/s Kanchan Prava Devi 1991 Orissa,“it was held that No plea was raised that the second marriage was performed as per custom which dispensed with ‘saptapadi’ oral evidence was adduced that the accused and his alleged second wife were living as husband and wife. It was not found sufficient to draw an inference as to performance of ceremonies essential for valid marriage. The accused was entitled to be acquitted.
Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. Dishonestly or fraudulently going through a marriage ceremony knowing that no lawful marriage is hereby created Bigamy i.e. marriage again during the lifetime of the husband or wife where such marriage is void. If the former marriage is concealed from the person with whom the subsequent marriage is contracted, the punishment is ten years or fine or both.
The exception to section 494 provides the circumstances where a woman in the life-time of one husband or vice versa can marry another without incurring the offence of bigamy. It provides that section 494 does not extend :-
a) To any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction.
b) To any person who contracts a marriage during the life of a former husband or wife, it such husband or wife at the time of the subsequent marriage shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time, such marriage can takes place.
Question :-14: What is an attempt to commit offences. Discuss in the light of section 511 of IPC. OR
How far are attempts to commit offences punishable under section 511 of IPC? What must be proved in order to support the conviction of an attempt under this section.? OR
What are the different stages of the commission of an offence and how far each of them is punishable? (b) Distinguish between ”preparation to commit an offence” and “attempt to commit an offence.”
ATTEMPTS TO COMMIT OFFENCES : Section 511 lays down that,” whoever attempts to commit an offence punishable by this code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence.
The points which require proof under the above section they are as follows :-
1. That the accused attempted to commit some offence punishable with imprisonment for life or imprisonment or he attempted to cause such and offence to be committed.
2. That in attempting to do the above act he did some act towards the commission of the offence.
a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box that there is no jewel in it. He had done an act towards the commission of theft, and therefore is guilty under this section.
b) A makes an attempt to pick pocket of Z by thrusting his hand into Z’s Pocket and fails to pick the pocket with the result A found nothing in the pocket of Z and was held guilty of an offence under this section.
DIFFERENT STAGES OF THE COMMISSION OF AN OFFENCE
There are three stages for the commission of a crime in the section number 511 of IPC, which are as under :-
i) Intention to commit a crime.
ii) Preparation to commit it and attempt to commit it. The crime is when complete is successful.
INTENTION TO COMMIT THE CRIME :
It consists the evil intention or design to commit the crime. Mere intention or evil design not followed by an act, does not constitute an offence. The will cannot be taken for the deed, unless there has been some external act showing the progress made towards maturing the crime. The judges cannot look into the breast of the criminals.
PREPARATION TO COMMIT IT AND ATTEMPT TO COMMIT IT:-
As clear from the above heading that preparation to commit a crime, It is devising or arranging the means or measures necessary for commission of an offence. Mere preparation to commit an offence is punishable only in three cases :-
a) Preparation to wage war against the Govt of India u/s 122.
b) Preparation to commit depredation on territories of any power at peace with the govt. Of India u/s 126.
c) Preparation to commit dacoity under section 399.
Preparation widely differs from attempts. Attempt is therefore, preparation plus something more. Attempt begins where preparation ends. A preparation is generally not punished while every attempt is the reason being that a preparation apart from its motives would generally be a harmless act.
It is impossible to show in most cases that the preparation was directed to a wrongful end or was done with an evil motive or intention. An attempt is however made punishable because every attempt, although it fails to achieve the result, must create alarms which of itself is an injury and the moral guilt of the offender is the same as if he had succeeded.
There are however some exceptional cases where the contemplated offence may be so grave that it must be nipped in the bud at its earlier stage. Such as :-
1. Preparation to wage war against Govt., of India, preparation to commit depredation on territories of any power at place with the government of India and preparation to commit dacoity.
2. There are also a few cases where even mere preparation is made punishable because they cannot by the very nature of things be meant for innocent purposes e.g. provision against making mending buying or selling or being in possession of instruments for counterfeiting coins, or making the dies or other instruments used in the manufacture of coin.
3. There are also a few acts which although in reality are mere preparation have been regarded as substantive offence, viz., possession of counterfeit coins, false weights and forged documents.
Question No.15: What is criminal trespass.? Critically examine the essential ingredients of criminal trespass with special reference to Section 441 of IPC. OR
Can an owner himself be guilty of criminal trespass of his own property.? Explain with the help of cases.
A entered the house of K at night to carry on an intrigue with the grown up unmarried daughter of B, having taken precautions not to let his presence in the house be known to anyone. A was surprise and caught by B. Is ‘A’ guilty of any offence? Give full reasons for your
Answer.: INTRODUCTION :-
Criminal trespass is dependent not upon the mere nature of the act, but upon the intention of the offender. As to what intentions constitute criminal trespass enumerated in the section itself, and beyond these no other intention will constitute criminal trespass. In other words, not all intents of the offender will constitute criminal trespass but only those mentioned in the section.
DEFINITION OF CRIMINAL TRESPASS
Criminal trespass as define in Section 441 of IPC as follows :-
“ Whoever trespass into or upon property in the possession of another with intent to commit an offence or to insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with the intent to commit an offence is said to commit ‘criminal trespass.”
INGREDIENTS OF CRIMINAL TRESPASS
The following are the ingredients of criminal trespass :-
i) Entry into or upon the property of another.
ii) If such entry is lawful, then unlawfully remaining upon such property.
iii) Such entry as above in Sr.No.(ii) above remaining unlawfully there must be with the following intentions :-
a) To commit an offence.
b) To insult, annoy or to intimidate any person in possession of the property.
It should be noted that the use of criminal force is not at all a necessary ingredient to constitute criminal trespass. The entry upon the property of another relates to immovable corporeal property and not incorporeal property such as a right of ferry or fishery. The property must be in the actual possession of another person. The offence of criminal trespass can only be committed against the person who is in actual physical possession of the property. It is not necessary that the owner of the property be present there. The criminal trespass can be done even in the absence of owner of property.
In order to establish that the entry on the property was with the intention to annoy or insult, it is necessary for the court to be satisfied that causing such annoyance or insult was the aim of entry. That in deciding the case whether the aim of entry was the causing of such annoyance or insult, the court has to consider all the relevant circumstances and to include the probability of something also being the dominant intention which prompted the entry. as in the case of Mathuri v/s State of Panjab 1964-65.
In another case of Rash Bihari Chartterjee v/s Fegu Shaw 1979 S.C:- It was held that the law does not require that the intention must be to annoy person who is actually present at the time of the trespass.
In order to submit the reasons in support of the problem given in the question it is submitted as under :-
That in the given case ‘A’ is not guilty of any offence for it could not be said that he intended to cause annoyance to B within the meaning of section 441 IPC, referred to case of Abdul Majid 1938 Lahore. This is inferred from the circumstances that A had taken all precautions not to let his presence in the house known to any one and also that he was not forbidden to enter the house. The purpose of carrying on an intrigue with an unmarried grown up daughter is not illegal nor is it an offence.
However if B had expressly forbidden A from entering his house, then the position would have become different. A’s entry would then have been in direct defiance of an express order and an intention to annoy B could be inferred from it.
HOW THE OWNER HIMSELF BE GUILTY OF CRIMINAL TRESPASS OF OWN PROPERTY:-
Question No. 16:-What is the law relating to cruelty by husband or relatives of the husband of the woman? How is it punishable.?
Are you satisfied with the definition of Section 498-A enshrined in the IPC? Discuss the relevance and constitutionality of Section 498-A also.
Answer : INTRODUCTION :- Chapter XXA comprising Section 498-A which punishes cruelty by the husband or relatives of the husband to the woman has been inserted by the Criminal Law(Second Amendment)Act 1983, in Act No. 46 of 1983 it received the assent of the President on 25th.December,1983 and the same was published in the Gazette of India Extraordinary, dated 26.12.1983.
The new provision seeks to curb atrocities on women including those arising out of dowry demands. The extremer reticence of Indian women to expose the bestiality and cruelty perpetrated on them led the crusading members to raise the matter in the Parliament which led to the passing of the Criminal Law (First and Second ) Amendments, 1983 Section 498-A. Therefore envisages that if a husband or the relatives of the husband of a woman subjects such woman to cruelty, he shall be liable to punishment for three years and fine.
HUSBAND OR RELATIVE OF HUSBAND OF A WOMAN SUBJECTING HER TO CRUELTY :-
Whoever being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three year and shall also be liable for fine.
EXPLANATION IN THIS REGARD:-
To define the word cruelty according to this section :-
(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life or health( whether mental or physical) to the woman.
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Question No.17:-Distinguish between, Hurt and Grievous Hurt. OR
The accused struck a woman, carrying an infant in her arms violently over her head and shoulders. One of the blows fell on the child’s head causing death. Of what offence is the accused guilty.?
The accused demanded one anna from the deceased which the latter owed him. The deceased promised to pay later and the accused thereupon kicked him twice on the abdomen and the deceased collapsed and died. Of what offence is the accused guilty.?
Answer :- INTRODUCTION :-
Hurt generally means injury on the body of a person. It is such an injury which causes bodily pain or disease or infirmity or fracture or disfigurement of face etc.
KINDS OF HURT
There are two kinds of Hurt:-
1. Simple Hurt.
2. Grievous Hurt.
1. Simple Hurt :- simple hurt is defined under section 319 of IPC whereas the grievous hurt has been defined under section 320. Simple hurt causes simple injury with simple bodily pain, while grievous hurt causes serious injury and serious pain in the body too.
DEFINITION OF SIMPLE HURT:
Section 319 says that,” whoever causes bodily injury or pain or disease or infirmity by an act to any other person, such act is called simple hurt.
Section 319 contains the following ingredients:-
a) Bodily Pain:- The words show that there must be some pain in the body of a person. It means mental paid does not come under bodily pain. Any such injury which causes pain on any external part of body comes under simple hurt.
b) Disease : Disease means any illness. By such act which creates weakness and if a man comes into contract of any disease then it will come under simple hurt.
c) Infirmity:- Infirmity means by illness. By such act which creates weakness in the body, comes under simple hurt.
d) To any other Person : The hurt must be caused to any other person not to himself. In this way, in a simple hurt there is no need of physical contact. A hurt may be caused by any mean or method. Such hurt must cause bodily pain or disease or infirmity. Such hurt must be caused to another person and not to himself.
e) Section 319 does not show that there must be direct physical contact with another person for committing simple hurt.
2. Grievous Hurt : There are various kinds of grievous hurt which have been defined in section 320 in IPC. Thus a hurt is more than a slightly causing harm as defined in section 95 of IPC and less the culpable homicide. If the hurt results into death land fulfils the conditions of section 299 then it becomes culpable homicide, otherwise it grievous hurt.
The grievous hurt can be classified/designated as under :-
a. Emasculation : The destruction of private organ of a human being is known as emasculation. Any injury which makes a person incapable for functioning of the private organ, person comes under grievous hurt.
b. Permanent privation of the sight of either eye if there is privation or separation or destruction either eye of a person, is grievous hurt.
c. Permanent privation of the hearing of either ear. Similarly the destruction or separation of either ear is grievous hurt. Here the power of hearing must be affected. The eye and ears are the main functional organs of a human being. They have is an important role in the life.
d. Privation of any member or joint: Privation of any member or joint also comes under grievous hurt.
e. Destruction or permanent loss of the power of any member or joint:- If there is destruction of any member of joint of the body then it is also a grievous hurt or if any member or joint fails to work properly then also it will comes under grievous hurt.
f. Permanent disfiguration of the head or face :- Permanent disfiguration of the head or face means to cause such an injury on the head or face that they look bad or head becomes crucial.
g. Fracture or dislocation of Bone or tooth:- When any bone or tooth is dislocated it means they loss their original place. Fracture of any bones comes under grievous hurt.
h. When there is an such hurt which endangers to life or which causes paid continuously for a period of 20 days.
Endanger to life mean there must be death from such hurt. If the death is caused by grievous then it will not be culpable homicide or murder because there is no intention to cause death. So any hurt to create danger to life is also called grievous hurt.
Who was guilty in the exemplary/given cases :
In the case of Palani Goudon v/s Emperor Madras. It was held by a full bench of the Madras High Court that the accused was guilty of either murder or culpable homicide not amounting to murder. However Their Lordship held that on the facts found the accused could not be convicted either of murder or culpable homicide, he could of course be punished both of his original assault on his wife and for his attempt to create false evidence by hanging her. He was convicted under section 326 Of IPC.
PUNISHMENT FOR SIMPLE & GRIEVOUS HURT:
Section 323 : Punishment for voluntarily causing hurt is one year or fine or with both.
Section 325: For voluntarily causing grievous hurt, the punishment is 7 years with fine.
Section 326: Whoever except the case provided for by sec.335 voluntarily causes grievous hurt by means or any instrument for shooting or cut or any instrument which is used as a weapon of offence is likely to cause death or by means of fire. Punishment imprisonment of life, it is ten years with fine.
DIFFERENCE BETWEEN SIMPLE HURT AND GRIEVOUS HURT
SIMPLE HURT GRIEVOUS HURT
1. Simple hurt is defined in sec Grievous hurt defined in sec.320.
2. In simple hurt injury is commi There may be injury of external or
-tted on the external part of internal part of the body.
The body causing bodily pain.
3. Simple hurt is a form of simple Grievous hurt is a serious form of hurt.
4. The types of injury are bodily Important organs of the body like eye,
Pain, disease, infirmity etc. Ear, joints, face dislocation or broken
5. Punishment is of one year or Punishment is of seven years with fine. Fine.
Question No.18:-Define Adultery and distinguish it from rape?
Discuss fully the law relating to offence of Adultery. Is the present law satisfactory or does it need change in the present day context?
Answer :- INTRODUCTION :- Adultery is an act which requires the consent of both the parties. The male offender alone is liable to punishment and the married woman is not liable even as an abettor.
DEFINITION OF ADULTERY
Under Section 497 of IPC it is defines that,” whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.
The offence under the act 497 of IPC is limited to adultery committed with a married woman. It does not constitute an offence of adultery if one has sexual intercourse with a widow or an unmarried woman. Even in the case of a married woman the adulterer is not liable if the husband consents to it.
IS PRESENT LAW IS SATISFACTORY OR DOES IT NEED TO CHANGE
DISTINGUISH BETWEEN ADULTERY & RAPE
Adultery is altogether differs from rape in several ways, which are described as under :-
1. Adultery is an act which requires In case of rape the consent of woman
The consent of both the parties. Is essential.
2. Woman must be married woman. It can be committed on any woman,
i.e. the wife of another man. Married woman or widow.
3. Adultery cannot be committed Rape can be committed by a husband
By a husband with his own wife . if she is below fifteen years of age.
4 Adultery is an offence relating Rape is an offence against the person
To marriage. Of the woman.
5 The aggrieved party is the In the rape the woman is aggrieved p
Husband the wife having party.
Consented to the act.
6 Adultery is not so serious an It is against the will of the women.
Offence as rape. And rape is a serious offence.
Question No.19:- Discuss the ingredients of theft with the help of decided case? Also distinguish between theft and extortion.
Answer :- Theft is an offence in which moveable property of a person is taken away without his consent. Such property must be taken away dishonesty. Thus in theft there would be a moveable property. It should be taken dishonestly and without the consent of the owner. Theft has been defined in Section 378 of IPC. Simultaneously the punishment for the commitment of act of theft has also been defined in Section 379 of IPC.
DEFINITION OF THEFT U/S 378 OF IPC
“ Whoever intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking is said to commit theft.”
INGREDIENTS OF DEFINITION
1. There must be a dishonest intention of a person to take the property.
2. Removal of movable property.
3. Such movable property must be taken away.
4. The property must be taken away from the possession of a person. In other words there must be a possession of that property.
5. Such property must be taken away without the consent of such person.
A. Dishonest Intention:- It is also called as malafied intention which can be representation in the form of mensrea. This mensrea is the base of the theft. The petitioner must prove that a thing was taken away with the dishonest intention.
However intention is a mental element which is difficult to prove but circumstantial evidences are considered for this purpose. The main measurement of dishonest intention is to make a wrongful loss to another person then such act is considered to be done with dishonest intention.
B.MOVABLE PROPERTY:- The subject of theft is movable property. Immovable property cannot be stolen. A movable property is a property which is able to move easily or which is not immovable. It means the thing permanently attached to the earth is immovable property, is not the subject of theft. It becomes capable of being the subject of theft when it is severed from the earth.
C. Be taken away out of Possession of another Person:- The property must be in the possession of another person from where it is removed. There is no theft of wild animals, birds or fish while at a large but there is a theft of tamed animals.
ILLUSTRATION :- ‘A’ finds a ring lying on the road which was in the possession of any person. A by taking it commits no theft, though he may commit criminal misappropriation of property.
D. IT SHOULD BE TAKEN WITHOUT CONSENT OF THAT PERSON:- The consent may be express or implied and may be given either of the person in possession, or by any person having for that purpose express or implied authority.
ILLUSTRATION NO. 1:- ‘A’ being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes away a book without Z’s express consent for the purpose of merely reading it (with the intention of returning it)Here it is probable that A may have conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression, A has not committed theft.
ILLUSTRATION NO.2:- ‘A’ asks charity from Z’s wife, she gives A money, food and clothes, which A knows to belong to Z, her husband. Here it is probable that A may conceive that Z’s wife is authorised to give away alms. If this was A’s impression. A has not committed theft.
ILLUSTRATION NO.3 :- ‘A’ is the paramour of Z’s wife and she gives A, the valuable property, which A knows that these belongs to her husband Z, although she has not authority from Z to give the same. If takes the property dishonestly, he commits theft.
ILLUSTRATION NO.4:- A sees a ring belonging to Z lying on the table in Z’s house. A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A at the time of first moving the rings, commits theft.
PUNISHMENT FOR THE OFFENCE OF THEFT
The punishment for committing theft in Indian Penal Code under section 379 for offence of theft is an imprisonment which may extend to three years or with fine or both.
EXTORTION U/S 383
According to Section 383 of IPC,” Whoever intestinally puts any person in fear of any injury to that person or to any other and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into valuable security commits, “Extortion”.
ESSENTIALS OF EXTORTION
1. There must be a show of force or threat.
2. Such force or threat should be in the form of fear of injury.
3. Such injury may be for the person who is put under the fear or for any other persons in which the former person has interest.
4. Such force should be shown with a view to take a thing for property or valuable security or sign or seal or a document.
5. There must be dishonest intention.
Thus if the above elements are present then it is an offence of extortion, dishonest intention is also an essential element of extortion. Dishonest intention is measured from the circumstances and facts of each case. Anything taken from a person at the point of pistol is an e.g. of extortion.
I) ‘A’ threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give him money. ‘A’ has committed extortion.
II) ‘A’ threatens Z that he will keep Z’s child in wrongful confinement unless Z will sign and deliver to A a promissory note binding Z to pay money to ‘A’. Z signs and delivers the note. ‘A’ has committed the offence of extortion.
PUNISHMENT FOR THE OFFENCE OF EXTORTION
A has committed the offence of extortion. Punishment for EXTORTION under section 384 of IPC,” Whoever commits extortion, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.
DIFFERENCE BETWEEN THEFT & EXTORTION
1. The offender’s intention is to Consent is obtained by putting the
Take away something without person, in possession of property.
The owner’s consent. In fear of injury to himself or to any
Other person, i.e. there is wrongful
Obtaining of consent.
2. Theft is limited only to move- Both movable and immovable
Able property. Property may be the subject of the
Offence of extortion.
3. There is no element of force There is the element of force, for
In theft. Property is obtained by putting a
Person in fear of injury to that
Person, or to any other.
4. The offender takes the Delivery of property as distinct from
Property without the owner- taking away property is of its
Ship’s consent and hence essence.
There is no delivery by the
Question :20 : Define “wrongful restraint” and “Wrongful confinement” and distinguish between the two.
Answer :- INTRODUCTION:-
The expression “wrongful restraint” implies keeping a man out of a place where he wishes and has a right to be.
According to section 339 of Indian Penal Code it lays down that, ”whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed is said wrongfully to restraint that person.”
‘A’ obstruct a path along which Z has a right to pass. B not believing in good faith that he has a right to stop the path, Z is thereby prevented from passing A wrongfully restrains Z.
Similarly B threatens to set a salvage dog at Z if Z goes along a path along which Z has a right to go. Z is this prevented from going along that path. B thus wrongfully restrains Z.
According to section 340 of Indian Penal code it is lays down that,” whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said,” wrongfully to confine” that person.”
ILLUSTRATION NO 1:-
A causes Z to go within a walled space, and locks Z in. Z is thus prevented from proceeding in any direction beyond the circumscribing line of the wall. A wrongfully confines Z.
ILLUSTRATION NO.2 :-
Similarly, A places men with firearms at the outlets of a building, and tells Z that they will fire at Z if Z attempts to leave the building. A wrongfully confines Z.
DIFFERENCE BETWEEN WRONGFUL CONFINEMENT & WRONGFUL RESTRAINT.
WRONGFUL CONFINEMENT WRONGUL RESTRAINT
1. Wrongful confinement is a Wrongful restraint is keeping a man
Form of wrongful restraint. Out of a place where he wishes to go
It is keeping a man within and has a right to be.
Limits out of which he wishes to
Go and has a right to go.
2. A person is restrained from moving He is free to move anywhere other
Beyond a certain area within than to proceed in a particular
Which he is confined. Direction. In other words there is
Full restraint in the former, but
Only partial in the latter.
3. It is a more serious offence This offence is also punishable with
In as much it prescribes simple imprisonment upto one
Punishment with imprisonment month or with fine of Rs.500/- or
Simple or rigorous extending to with both.
One year or fine up to Rs.1000/-
Q. No. 10: What do you mean by Extortion? When does extortion amount to Robbery? Discuss.
ANS: INTRODUCTION :- The chief elements of extortion are the intentional putting of a person in fear of injury to himself or another and dishonestly inducing the person so put in fear to deliver to any person any property or valuable security.
DEFINITION OF EXTORTION
Whoever intentionally puts any person in fear or any injury to that person, or to any other, and thereby dishonesty induces the person so put in fear to deliver any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits ‘Extortion’ under section 383 of IPC.
ESSENTIALS OF EXTORTION
According to section 383 of IPC the following are the essentials of extortion :-
1. There must be a show of force or threat.
2. Such force or threat should be in the form of fear of injury.
3. Such injury may be for the person who is put under the fear or for any other persons in which the former person has interest.
4. Such force should be shown with a view take a thing or property or valuable security or sign or seal or a document.
5. There must be a dishonest intention.
Thus if the above elements are present then it is an offence of Extortion dishonest intention is also an essential element of extortion.
DISHONEST INTENTION IS MEASURED FROM THE CIRCUMSTANCES AND FACTS OF EACH CASE.
Any thing taken from a person at the point of pistol is an example of extortion.
a) ILLUSTRATION :- ‘A’ threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give him money. A committed Extortion.
b) ‘A’ threatens ‘Z’ that he will keep ‘Z’s child in wrongful confinement unless Z will sign and deliver to A, a promissory note binding ‘Z’ to pay money to ‘A’. Z signs and delivers the note to A. A has committed the offence of extortion.
PUNISHMENT FOR EXTORTION U/S 384 IPC
Whoever commits the offence of extortion, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.
WHEN DOES EXTORTION AMOUNT TO ROBBERY ?
Under section 390 of IPC Extortion is ‘ robbery’ if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or instant hurt, or of instant wrongful restraint to that person, or to some other person, and by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
To describe in short,” robbery ” is :-
1. Theft plus violence causing or attempting to cause death, hurt or wrongful restraint or fear of instant violence.
2. Extortion plus offender present plus fear of instant violence plus immediate delivery of the thing is extorted.
ILLUSTRATION :- ‘A’ holds Z down, and fraudulently takes Z’s money and jewels from Z clothes without Z’s consent. Here A has committed theft, and in order to committing of that theft has voluntarily caused wrongful restraint to Z. A has therefore committed robbery.
PUNISHMENT FOR ROBBERY.
Imprisonment up to ten years and also fine. But if robbery committed on the highway between sunset and sunrise then up to 14 years