2. Introduction
What is Crime?
Crime is a complex phenomenon with multifarious
meanings, and has been defined over the years in a
number of ways by numerous scholars.
Indeed, Robert Brohm once noted that “an appropriate
definition of crime…remains one of the most critically
unresolved issues in criminal justice today.
3. Defining Crime
The word ‘crime’ has its origin in the Greek word Krimos, which
is synonymous with the Sanskrit word Krama, meaning ‘social
order’.
Legalistic Perspective
The legal approach views crime as an act defined by law. Sir
William Blackstone defined crime as ‘an act committed or
omitted in violation of Public Law forbidding or commanding it.
Sociological Perspective
According to John Gillin, crime is an act that is harmful to
society, or is believed to be socially harmful by a collection of
individuals that has the power to enforce its beliefs, and that
places such act under the ban of positive penalties.
4. Continued..
Behavioral Perspective
why certain people have the propensity to be regular in
the regularity and ruthlessness of crimes they commit
over long periods of time. Even people who commit
white-collar crimes are generally more rash, selfish, and
apathetic to the pain of other people than those who do
not try to benefit from similar opportunities.
5. Who Should be Criminal?
There are two contrasting viewpoints that answer this question:
The Consensus Perspective
The normal sentiments of a society. (Honor killing, Suttee &
polygamy)
The Pluralist Perspective
Navtej Singh Joher V UOI (Homosexuality)
Josehp Shine v UOI (Adultry)
6. Distinction Between Moral, Civil
and Criminal wrongs
Civil and Criminal Liability
Civil and Criminal Wrongs
Criminal and Moral Wrongs
Sin/ Deviance/ Crime
Criminal law and Ethics
Are Crimes and Torts Complementary?
7. Constituent Elements of Crime
Elements of a Crime
The two elements of crime are mens rea and actus reus.
Apart from these two elements that go to make up a crime,
there are two more indispensable elements, namely,
first, “a human being under a legal obligation to act in a
particular way and a fit subject for the infliction of appropriate
punishment,” and
secondly, “an injury to another human being or to the society at
large.
8. Continued…
FIRST, a human being under a legal obligation to act in a
particular way and a fit subject for the infliction of appropriate
punishment:
SECONDLY, anevil intent or mens rea on the part of such
human being;
THIRDLY,actus reus, i.e., act committed or omitted in
furtherance of such an intent; and
FOURTHLY, aninjury to another human being or to society at
large by such an act
9. Mens Rea
“actus non facit reum nisi mens sit rea”
Mens rea is the state of mind indicating culpability, which is
required by statute as an element of a crime. It is commonly
taken to mean some blameworthy mental condition, whether
constituted by intention or knowledge or otherwise, the absence
of which on any particular occasion negatives the intention of a
crime.
Elements of mens rea
A. With intent/ Intention/ intentionally B. Knowledge
C. Recklessly D. Unlawfully
E. Maliciously F. Wilfully
G. Knowingly or believing H. Fraudulently
I. Dishonestly J. Negligence
10. Intention
The idea of ‘intention’ in law is not always expressed by the words
‘intention’, ‘intentionally’ or ‘with intent to’.
It is expressed also by words such as ‘voluntarily’, ‘wilfully’ or
‘deliberately’ etc.
Section 298 IPC makes the uttering of words or making gestures with
deliberate intent to wound the religious feelings punishable under the Act.
“Whoever, with the deliberate intention of wounding the religious
feelings of any person, utters any word or makes any sound in the
hearing of that person or makes any gesture in the sight of that
person or places any object in the sight of that person, shall be
punished with imprisonment of either description for a term which
may extend to one year, or with fine, or with both”.
11. Transferred Intention
Where a person intends to commit a particular crime and brings
about the elements which constitute that crime, he may be
convicted notwithstanding that the crime takes effect in a manner
which was unintended or unforeseen.
Example:
A, intends to kill B by poisoning. A places a glass of milk with
poison on the table of B knowing that at the time of going to bed B
takes glass of milk. On that fateful night instead of B, C enters the
bedroom of B and takes the glass of milk and dies in
consequence. A is liable for the killing of C under the principle of
transferred intention or malice. sec. 301 of IPC
12. Intention and Motive
ention and motive are often confused as being one and the same.
e mental element of a crime ordinarily involves no reference to motive.
tive is something which prompts a man to form an intention.
ention has been defined as the fixed direction of the mind to a particular object,
ermination to act in a particular manner and it is distinguishable from motive which incites
mulates action.
Om Prakash v. State of Uttranchal [(2003) 1 SCC 648] and State of UP v. Arun Kum
pta [(2003) 2 SCC 202] the Supreme Court rejected the plea that the prosecution could
nify the motive for the crime holding that failure to prove motive is irrelevant in a case wher
guilt of the accused is proved otherwise. It needs to be emphasised that motive is not
sential element of an offence but motive helps us to know the intention of a person. Motiv
evant and important on the question of intention.
13. Intention and knowledge
The terms ‘intention’ and ‘knowledge’ which denote mens rea appear in Sections 299 and
300, having different consequences.
Intention and knowledge are used as alternate ingredients to constitute the offence of
culpable homicide.
Intention is the desire to achieve a certain purpose while knowledge is awareness on the
part of the person concerned of the consequence of his act of omission or commission,
indicating his state of mind.
For example, a mother jumps into a well along with her child in her arms to save herself
and her child from the cruelty of her husband. The child dies but the mother survives. The
act of the mother is culpable homicide.
14. Recklessness
Intention cannot exist without foresight, but foresight can exist
without intention.
For a man may foresee the possible or even probable
consequences of his conduct and yet not desire this state of
risk of bringing about the unwished result.
This state of mind is known as ‘recklessness’. The words ‘rash’
and ‘rashness’ have also been used to indicate this same
attitude.
15. Negligence
If anything is done without any advertence to the consequent event or result, the mental
state in such situation signifies negligence.
The word ‘negligence’, therefore, is used to denote blameworthy inadvertence.
It should be recognized that at common law there is no criminal liability for harm thus
caused by inadvertence.
Criminal liability for negligence is exceptional at common law; manslaughter appears to
be the only common law crime, which may result from negligence. Strictly speaking,
negligence may not be a form of mens rea.
Advertent negligence is commonly termed as wilful negligence or recklessness. In other
words, inadvertent negligence may be distinguished as simple.
16. Actus Reus
To constitute a crime the third element, which we have called actus reus
or “physical event”, is necessary.
Now what is this actus reus?
It is a physical result of human conduct. When criminal policy regards
such a conduct as sufficiently harmful it is prohibited and the criminal
policy provides a sanction or penalty for its commission.
The actus reus may be defined in the words of Kenny to be “such result of
human conduct as the law seeks to prevent.”
17. Injury to Human Being
The fourth element, as we have pointed out above, is an injury to another human
being or to society at large.
This injury to another human being should be illegally caused to any person in body,
mind, reputation or property.
Therefore, it becomes clear that the consequences of harmful conduct may not only
cause a bodily harm to another person, it may cause harm to his mind or to his
property or to his reputation.
Sometimes, by a harmful conduct no injury is caused to another human being, yet the
act may be held liable as a crime, because in such a case harm is caused to the
society at large.
All the public offences, especially offences against the state, e.g. treason, sedition,
etc. are instances of such harms. They are treated to be very grave offences and
punished very severely also.
19. Judgment Analysis on
POCSO Act, 2012
Attorney General of India V. Satish and
Another
[Decided by the Supreme Court on 18th
November, 2021 by a 3 Judge bench
consisting of JJ. U.U. Lalit, Bela M. Trivedi
and S. Ravinder Bhat]
20. Protection of Children from Sexual
offence Act, 2012
• International obligation
• United Nation Convention on Child Rights, 1989
• Indian Constitutional Provisions Article 15(3)
• Indian Penal Code,1860 (there were not sufficient provision in penal code
for the protection of children)
21. First Case – State of Maharashtra v.
Satish
•
• Facts
Facts
• The victim was aged about 12 years went out of her to purchase guava.
The accused Satish took her on the first floor of his home and locked the
room from inside and pressed her breast and tried to remover her
salwar.
• When she did not return, mother started looking for her in the
neighbourhood. She reached to the home of the accused upon being told
by one of the neighbour.
• She was successful in finding her daughter in the house of the accused
despite refusal of the accused.
• The daughter was crying and she narrated the incident to the mother and
mother got the FIR recorded in the Police Station.
• The accused was convicted by the Special Court under Section 342, 354
and 363 of IPC and Section 8 of POCSO. On appeal, the conviction of the
Accused was reduced into Section 354 and 342 only and accused was
acquitted of the rest of the charges.
22. Second Case – State of Maharashtra v.
Libnus
•Facts
• The accused Libnus reached the house of victim aged about 5 years in the
absence of the parents.
• The accused caught her hands and moved her frock upward with one hand
and lowered her pant with the other hand. He, thereafter, unzipped his pant
and showed his Private part to her and then asked her to lay down on
wooden cot. Victim daughter, thereafter, started crying.
• Somehow she reached home and saw the accused catching hold of a hand
of her elder daughter i.e. victim, and also saw her daughter raising her pant
upwards. Mother also noted that his pant zip was open. She identified the
accused as her neighbour. FIR was recorded by her.
• The Special Court recorded conviction under Section 448 and 354-A (1)(i) of IPC
and Sections 8 and 10 read with section 9 (m) and 12 of the POCSO Act.
However, on appeal, the High Court set aside the conviction under POCSO and
maintained the conviction under IPC provisions and altered the sentence for the
period which he already suffered in the prison and set him free.
23. Legal Provisions Involved – Section 7,
29 and 30
• Section 7 POCSO Act, 2012
• Section 7 punishes the act of Sexual Assault
“Whoever, with sexual intent touches the vagina, penis, anus or
breast of the child or makes the child touch the vagina, penis,
anus or breast of such person or any other person,
or does any other act with sexual intent which involves physical
contact without penetration is said to commit sexual assault”.
24. Section 29
Section 29 deals with presumption of certain offences
“Where a person is prosecuted for committing or abetting or
attempting to commit any offence under sections 3, 5, 7 and
section 9 of this Act, the Special Court shall presume, that such
person has committed or abetted or attempted to commit the
offence, as the case may be unless the contrary is proved”.
25. Section 30
Section 30 deals with presumption of culpable mental state
(1) In any prosecution for any offence under this Act which requires a
culpable mental state on the part of the accused, the Special Court shall
presume the existence of such mental state but it shall be a defence for
the accused to prove the fact that he had no such mental state with
respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the
Special Court believes it to exist beyond reasonable doubt and not
merely when its existence is established by a preponderance of
probability.
Explanation.—In this section, "culpable mental state" includes intention,
motive, knowledge of a fact and the belief in, or reason to believe, a fact.
26. Opinion of the High Court
• The High Court interpreted the words ‘….any other act…’ by
applying the principle of ejusdem generis.
• Considering harsh punishment stipulated, High Court insisted
• on the strict proof of the prosecution version and
• dissected the facts in minute details and
• found that guilt of the accused has not been proved beyond reasonable
doubt and
• recorded conviction for minor offences under the provisions of IPC
ignoring PCOSO provisions completely.
27. Legal Issue Raised before the
Supreme Court
• Whether Section 7 requires skin to skin contact for commission
of offence of Sexual Assault as defined under Section 7?
• How to interpret the words ‘….any other act…’ occurring in
latter part of Section 7?
• What are the presumptions provided under the Act and how to
invoke them in determining the guilt of the offender?
28. Observation of the Apex Court
• The Supreme Court invoked “Ut Res Magis Valeat Quam Pereat”
maxim which means that if two interpretations are possible of any legal word or
phrase as used in any legal provision and one interpretation is narrow and is
likely to defeat the intent and object of the legislation and other interpretation is
broad and in consonance of object of the statute. Then that interpretation should
be adopted which would further the aim and object of the statute in question.
• If the words ‘touch’ or ‘physical contact’ are interpreted to mean skin to skin
contact, it will defeat the very object of legislation and will also lead to absurd
results like an accused touching the sexual part of the victim using gloves,
condoms, sheets or with cloth will try to evade his legal liability on the pretext of
narrow interpretation.
• The most important ingredient for constituting the offence of sexual assault
under Section 7 of the Act is the “sexual intent” and not the “skin to skin”
contact with the child.
29. Analysis by Hon'ble SC With Respect to
Section 7
• The first part of the Section mentions about the act of touching
the specific sexual parts of the body with sexual intent. The
second part mentions about “any other act” done with sexual
intent which involves physical contact without penetration.
• The word ‘touch’ goes with the described sexual body parts
whereas ‘physical contact’ would apply to touching any other
body part or doing any other act with sexual intent.
• The word ‘contact’ is to be interpreted in light of the word ‘force’
as used in Section 349 of IPC. This approach is warranted
because of Section 2(2) of the POCSO.
30. Analysis of Section 29
• As per Section 101 of the Indian Evidence Act, 1872, burden lies on
the Prosecution to prove the guilt of the accused and this burden
never shifts.
• This provision applies to a prosecution under POCSO as well.
However, it needs to be balanced with Section 29 of the Act.
• Section 29 shifts the burden of proof which provides that if any
offence is committed under Section 3, 5, 7 and 9 of the Act, the
Special Court shall presume that accused committed the offence
complained i.e. Section 29 uses the words ‘shall presume’ i.e. it is
obligatory for the Special Court to raise the presumption against the
accused though it is rebuttable i.e. accused may rebut the
presumption by leading certain cogent evidences to prove his
innocence.
31. Section 30 raises presumption with regard to
culpable mental state.
• It provides that the Special Court shall raise presumption about the
culpable mental state.
• Explanation clarifies that "culpable mental state" includes intention,
motive, knowledge of a fact and the belief in, or reason to believe, a
fact.
• Section 30(2) further provides that a fact is said to be proved only
when the Special Court believes it to exist beyond reasonable doubt
and not merely when its existence is established by a
preponderance of probability.
• Since, it is mandatory for the Court raise the presumption, the Court
should raise the presumption.
• In the case of Satish, the conviction is to be under Section 8. In
the case of Libnus, the appropriate conviction is of aggravated
32. Ratio of the Judgment
• “Ejusdem generis” principle will not be applied in interpreting
the words ‘…any other act…’.
• The maxim “ut res magis valeat quam pereat” is to be applied in
interpreting words like physical contact and touch.
• Skin to skin contact will defeat the very object of the legislation
and runs counter to the intention of the legislature.
• POCSO is a special Act, hence, special rules of presumptions
should be liberally applied in rendering the accused guilty of the
offence committed as per the provisions of the POCSO.
33. Conclusion
• It may be safely concluded that the judgement is quite
progressive and brings much needed clarity on the
interpretation of Section 7 and will act as a beacon to the lower
courts in applying the provisions clearly and consistently.
36. Definition of Crime
• Sir William Blackstone in his classical textbook of English law, Commentaries
on the Laws of England defined crime ‘as an act committed or omitted in
violation of public law forbidding or it’.
• Russell in his classic work On Crimes has said that crime is the result of human
conduct which the penal policy of the state seeks to prevent.
• The term ‘crime’ cannot be precisely defined and there is no perfect definition of
it. These definitions are illustrative only.
37. Strict Liability Offences
• The general rule is that both elements should be present for constituting a crime.
• However, in certain case, a criminal liability may be fastened on an offender even
in the absence of mens rea and this is what is knows as strict liability offences.
• Herein merely upon the proof of actus reus, conviction may be recorded without
inquiring about mens rea.
• However, if it appears either from the scheme of the legislation and aims and
object or by necessary implication that mens rea needs to be read in the
definition of offence, it will be presumed to exist. [This broad proposition is to be
read in detail in light of legal develpoments]
38. Concept of Mens Rea under English Law
• Under English Law, there is common law presumption that each and every
offences requires mens rea to be proved unless it is excluded expressly or by
necessary implication.
39. Concept of Mens rea under IPC
• However, this presumption does not apply in India as the framers of the Indian
Penal Code departed from the Common Law Rule and used different words
describing mens rea in IPC. For instance, dishonestly, fraudulently, wantonly etc…..
40. Special Law & Local Law
• Here it is to be noted that IPC is general penal law of the land. But that does not
mean there cannot be criminal liability beyond IPC provisions. That’s why ample
scope is created by introducing concept of special law and local law. Definitions
are given as under:
• Section 41. Special law.—A “special law” is a law applicable to a particular
subject.
• Section 42. Local law.—A “local law” is a law applicable only to a particular part
41. Doctrine of Alter Ego – Section 11
• "Alter Ego" is a derived term from Latin. Literally translated, it means the "Other I".
• It is a common tenet that a company is a separate legal entity from its
shareholders and directors. This common law principle grants immunity to the
shareholders and directors from being held liable for the debts as well as criminal
liabilities of the corporation.
• The doctrine of alter ego, however, provides for an exception to this presumption
in law.
• Alter ego is the doctrine which prevents the stakeholders of the corporation, i.e.,
shareholders and directors from taking the refuge of doctrine of separate legal
entity. Hence, the Doctrine of alter ego is based on lifting of the corporate veil
42. Vicarious Liability under Criminal Law
• Vicarious liability is predominantly applied in civil law.
• Generally, it is not applied in criminal law. However, in exceptional circumstances,
it is applied in criminal law as well.
• Section 155 and 156 IPC are instances of it.
• The Supreme Court has said on several occasions that Section 34/149 (which deal
with group/joint liability) are also based on the principle of vicarious liability.
• It is to be noted here that vicarious liability concept is to be invoked only in those
instances wherein it is expressly permitted by the statutory provision. And cannot
be applied in reverse scenario.
43. Stages in the Commission of Offence
• Intention
• Preparation
• Attempt &
• Commission
44. Territorial Extent of IPC
• Section 1. Title and extent of operation of the Code.—This Act shall be called
the Indian Penal Code, and shall extend to the whole of India.
• Section 2. Punishment of offences committed within India.—Every person
shall be liable to punishment under this Code and not otherwise for every act or
omission contrary to the provisions thereof, of which he shall be guilty within
India.
45. • 3. Punishment of offences committed beyond, but which by law may be tried within, India.—
Any person liable, by any 7[Indian law], to be tried for an offence committed beyond 8[India] shall be
dealt with according to the provisions of this Code for any act committed beyond 9[India] in the same
manner as if such act had been committed within India.
• 4. Extension of Code to extra-territorial offences.—The provisions of this Code apply also to any
offence committed by—
(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wherever it may be;
(3) any person in any place without and beyond India committing offence targeting a computer
resource located in India.
Explanation.—In this section—
(a) the word “offence” includes every act committed outside India which, if committed in India,
would be punishable under this Code;
(b) the expression “computer resource” shall have the meaning assigned to it in clause (k) of
sub-section (1) of Section 2 of the Information Technology Act, 2000 (21 of 2000).
Illustration: A, who is a citizen of India, commits a murder in Uganda. He can be tried and
convicted of murder in any place in India in which he may be found.
46. Asylum and Extradition
• Asylum – an offender, may run away and take refuge to some other country after
committing crime – this is what is called asylum.
• The act of granting asylum is an expression of exercise of sovereignty by a nation
in international law.
• Whereas Extradition is the process of getting back the offender to the place
where he committed crime from the place where he took refuge after committing
crime.
• Here the nationality and citizenship of the offender plays dominant role.
47. Exceptions to Applicability of IPC
• Though the provisions of the Indian Penal Code do not make any exception in
favour of any person, however, the following persons are exempted from the
operation of the Code:
• Foreign Sovereigns
• Diplomats
• Alien Enemies
• Foreign Army
• Warships
• President and Governors
50. Section 53
• Section 53. Punishments.— The punishments to which offenders are liable
under the provisions of this Code are—
• First.—Death;
• [Secondly.—Imprisonment for life;]
• [***]
• Fourthly.—Imprisonment, which is of two descriptions, namely:—
• (1)Rigorous, that is, with hard labour;
• (2)Simple;
• Fifthly.—Forfeiture of property;
• Sixthly.—Fine.
51. Death Sentence
• It is an order of judicial killing of the convict.
• However, in case of Section 302, IPC, the Supreme Court has clearly said that trial
court can award either sentence of death or life imprisonment but no other
sentence. Since only two options are given in the provision.
• Mode of Execution – Section 354(5) – hanging by neck till death
• Law Commission View – 35th Report and 262nd Report.
52. Death Sentence – Emerging Issues
• Constitutional Validity – it was upheld by the Supreme Court in Bachan Singh v.
State of Punjab AIR 1980 SC 898.
• Rarest of Rare Doctrine – this doctrine was evolved by the Supreme Court in the
above case but its application has always been found to be arbitrary in light of
discretion having been subjectively exercised by the judges.
• Special Category Sentence or Fixed Term Life Imprisonment – this was
evolved by the Supreme Court in Swamy Shraddananda (2) v. State of
Karnataka, (2008) 13 SCC 767 to deal with those cases wherein death sentence
will be too harsh to award and life imprisonment will be too less for the accused.
• The Court may award fixed term life imprisonment to the accused without
commutation (indirectly taking away the power of the state).
• However, this power can be exercised only the Constitutional Court and not by
the trial courts.
53. Death Sentence – Emerging Issues
• Inordinate Delay in Disposal of Mercy Petitions – this issue was resolved by
the Supreme Court in Shatrughan Chauhan v. Union of India (2014) 3 SCC 1,
wherein the convicts were languishing in prisons for more than 14 years waiting
for the decision on their mercy petitions.
• The Supreme Court held that it is one of the worst form of violation of human
rights/ fundamental rights of the murder convicts. They live in fear all the time
and die every moment
54. Life Imprisonment
• Life Imprisonment is provided by Section 53 as one of the punishment. With
respect to Life imprisonment – question always arises as to what is its actual
duration – 14 years or till the natural death of the convict in the prison.
• Generally the former is understood due to misunderstanding of Section 433 and
433-A of the CrPC.
• However the Supreme Court has clarified in several Constitution Bench
Judgments that life imprisonment means – imprisonment till the natural death of
the convict inside the prison.
• Important Judgment is Gopal Vinayak Godse v. State of Maharashtra AIR 1961
SC 600.
• However, as per Section 57, whenever fraction of life imprisonment is to be
calculated, it will be 20 years.
55. Imprisonment – Rigorous and Simple
• Phool Kumari v. Office of the Superintendent, Central Jail, Tihar, New Delhi, AIR
2012 SC 3198: (2012) 8 SCC 183
– Rigorous imprisonment is one which is required by law to be completed with
hard labour. While a person sentenced to simple imprisonment has the option
of choosing to work, a person sentenced to rigorous imprisonment is required
by law to undergo hard labour.
56. • Forfeiture –
– This punishment is generally abolished but may be found only under Section
126, 127 and 169 IPC.
– However, there is concern raised by the Supreme Court for restoring this
punishment in light of rising cases of corruption and public servants amassing
huge wealth.
• Fine –
– Fine is a form of punishment which is generally in alternative to the
substantive punishment of imprisonment and in certain cases, only mode of
punishment. It needs to be paid by the convict and non-payment will not
exonerate the accused from criminal liability.
57. Solitary Confinement and Its Limits – Section 73 and 74
IPC
• Section 73. Solitary confinement.—
• Whenever any person is convicted of an offence for which under this Code the
Court has power to sentence him to rigorous imprisonment, the Court may, by its
sentence, order that the offender shall be kept in solitary confinement for any
portion or portions of the imprisonment to which he is sentenced, not exceeding
three months in the whole, according to the following scale, that is to say—
• a time not exceeding one month if the term of imprisonment shall not exceed six
months;
• a time not exceeding two months if the term of imprisonment shall exceed six
months and shall not exceed one year;
• a time not exceeding three months if the term of imprisonment shall exceed one
58. Solitary Confinement and Its Limits – Section 73 and 74
IPC
• 74. Limit of solitary confinement.—
• In executing a sentence of solitary confinement, such confinement shall in no case
exceed fourteen days at a time, with intervals between the periods of solitary
confinement of not less duration than such periods; and when the imprisonment
awarded shall exceed three months, the solitary confinement shall not exceed
seven days in any one month of the whole imprisonment awarded, with intervals
between the periods of solitary confinement of not less duration than such
periods.
59. New Trends in Punishments
• No amendment has been made since the enactment of the IPC for introducing
new kind of punishment keeping in line with modern penological thought.
• However, on certain occasions, the punishment of community service etc. have
been awarded by the constitutional courts.
60. New Trends in Punishments
• Also, the Supreme Court is emphasising more on the mental health of the
accused and the mitigating factors while commuting death sentence into life
imprisonment (even in cases of rape and brutal murder of minor victims). In 2022,
the Supreme Court has done so in the following cases:
– Surendran vs State of Kerala [13th May, 2022 SC – 3 Judge Bench]
– Mohd Firoz v. State of Madhya Pradesh [19th April, 2022]
– Jai Prakash v. State of Uttarakhand [3 Judge Bench; 2nd March, 2022]
– Pappu v. State of Uttar Pradesh [3 Judge Bench; 09th Feb, 2022]
61. Theories of Punishment
There are majorly four theories of punishment.
These theories are the
• Deterrent theory,
• Retributive theory,
• Preventive theory, and
• Reformative theory.
62. Crime Causation Theories
1. Biological theories
2. Economic theories
3. Psychological theories
4. Political theories
5. Sociological theories
I. Strain theory
II. Social learning theory
III. Control theory
•
64. General Exceptions
[Chapter – IV, Section 76 –
106]
Section 6 IPC declares that all the general exceptions provided in
Chapter IV should be read with each and every offence defined
under the Indian Penal Code and also with illustrations.
65. General Defences and Partial
Defences
• Chapter IV of IPC provides number of general exceptions and if
any of the exceptions is established it will totally exonerate the
accused from criminal liability i.e. it will be a complete defence
to the criminal liability of the accused. Its existence negatives
mens rea.
• On the other hand, there are certain exceptions or proviso,
provided in specific provisions for e.g. Section 335, 300 IPC. If,
any of these exceptions are established, the accused will not be
exempted from his criminal liability rather his punishment will be
reduced to certain extent.
66. Rationale of Mistake of Fact as a
defence
• Mistake of Fact is a defence but not mistake of law. These 2 Sections are
based on the following two latin maxims.
Ignorantia juris non excusat (ignorance of law is not an excuse to a
criminal charge)
Ignorantia Facti Excusat (ignorance of a fact is an excuse)
• However ignorance of law is no defence to charge of crime, howsoever
genuine it might have been. In other words, all persons resident in a
country, whether subjects or foreigners, are bound by the law of the land.
This is because every man is assumed to know or ought to know the law
of the land (State of Maharashtra v. Mayer Hans George (AIR 1965 SC
722).
67. Difference between Section 76 & 79
The difference between the two provisions is that under Section 76, the
act is done by the accused in good faith has the belief that he is bound
by law to so act in those circumstances. Whereas in Section 79, the
accused feels himself to be justified in doing that act.
• Good faith is essential element in both the provisions. Good faith is
defined under Section 52 of the Indian Penal Code, as follows: Nothing
is said to be done or believed in “good faith” which is done or believed
without due care and attention.
Section 3(22) of General Clauses Act, 1897 defines “Good Faith” in
the following words: a thing shall be deemed to be done in "good faith"
where it is in fact done honestly, whether it is done negligently or not.
68. Burden of Proof
It is well established that the burden lies on the prosecution to
establish the guilt of the accused as per Section 101 of the Indian
Evidence Act and this burden never shifts but with respect to
general exceptions, special exceptions and provisos, it has been
declared by Section 105 of the Evidence Act that the court shall
presume the absence of all these general exceptions and it will
be for the accused to raise the plea of any such exception and to
establish that.
69. 1. Though the burden is strict on the prosecution to establish the guilt of the
accused beyond reasonable doubt but the burden is not that much strict
on the accused. He has to establish his plea on the basis of
preponderance of probabilities.
2. The accused may not lead any evidence from his side rather if the facts
and evidences of the case are such, he may point out relevant facts and
evidences and raise and establish his plea of any of the exceptions with
the help of prosecution evidences only.
3. If the investigating officer finds, during investigation, that the accused
may be entitled to any of the general exceptions then it is his legal
obligation to investigate the case in that dimension also and to place
relevant material before the court.
70. 4. If it appears to the court that the plea of any of the general
exceptions may be raised from the material available on record and
the accused is not aware of it, it is the duty of the court to raise such
plea on behalf of the accused and if the court does so, the court will
not be making out a new case for the prosecution.
5. If the accused is able to create reasonable doubt in the mind of
the court by raising such plea then he will be given benefit of doubt
and will be acquitted because in this situation it will be deemed that
the prosecution has not be able to establish its case beyond
reasonable doubt.
71. Mistake of Fact or Mistake of Law [Section
76/79]
• Both Section 76 and 79 are said to be based upon the maxim
‘ignorasia facti excusate’ i.e., mistake of fact is a defence but
mistake of law i.e., ‘ignorasia juris non excusat’ is not a defense.
• However, there is a difference between Section 76 and 79.
Section 76 uses the word ‘bound by law’ whereas Section 79
uses the word ‘justified by law’.
• Good faith is an essential element common to both provisions.
Here, bound means that there is some legal obligation on a
person who is acting in a given situation.
72. • On the other hand, justified means that though there is no legal
obligation but the circumstances were such that the conduct of
the person will not infer mens rea and is excusable for
• e.g. if a person takes another into custody and hands him over
to the police later on, believing that he was involved in
commission of certain offence, he may get the benefit of
Section 79 if the other circumstances are fulfilled.
• In Chirangi v. State 1952 CriLJ 1212, the Bombay High Court
acquitted a person who killed his son taking him as a tiger. The
accused committed the murder of his son by repeated blows of
axe due to mistaking his son a tiger.
73. Doctrine of Respondent Superior
As per ills. A of Section 76, if a police officer or a soldier is acting as per
the direction given by the superior authority and certain offence is
committed in pursuance thereof, no criminal liability can be fastened on
such police officer or soldier but the pre-condition is that the direction or
command should be in conformity with law.
If the police officer is ordered to do lathi charge on a peaceful assembly
where there is no apprehension of any kind of law and order problem, the
police officer will not get the benefit of the plea that he did so on the order
of the superior and also he will not get the benefit of Section 76 because
the command in itself manifestly illegal and not supported by law.
74. • The same question arose before the Supreme Court in State of
West Bengal v. Shewmangal Singh, 1981 SC, but the issue was
left unanswered with respect to the applicability of Section 76
because the Supreme Court said that there is no need of
application of Section 76 since the order of the ACP given to the
police party was quite justified in the prevailing circumstances
(village, crowd, police were getting beaten, people
were not recognized but firing and two people were killed).
• The question of applicability of Section 76 would have arisen if the
order of the superior authority was not justified and unlawful and
the police officer, under mistake of fact, believing himself to be
bound by such command, in good faith.
75. Accident and Misfortune
80. Accident in doing a lawful act
• Nothing is an offence which is done by accident or misfortune
and without any criminal intention or knowledge in the doing of
a lawful act in a lawful manner by lawful means and with proper
care and caution.
• Illustration
• A is at work with a hatchet; the head flies off and kills a man
who is standing by. Here, if there was no want of proper caution
on the part of A, his act is excusable and not an offence.
76. • Accident or misfortune
• The term ‘accident’ means that happening must be one to which
human fault does not contribute. It does not mean a mere
chance. An effect is said to be accidental when the act by which
it is caused is not done with the intention of causing it, and
when its occurrence as a consequence of such act is not so
probable that a person of ordinary prudence ought, under the
circumstances in which it is done, to take reasonable precaution
against it.
• The term ‘misfortune’ means the same thing as an accident
plus that it was as unwelcome as it was unexpected. But the
difference between the two lies in the fact that an accident
involves only injury to another, while misfortune causes injury as
much to the author as to another unconnected with the act.
77. • It must be without mens rea or guilty mind. In Tunda v. Rex AIR
1950 All 95, where two friends, who were fond of wrestling
participated in a wrestling match. One of them sustained injuries
which resulted in his death. There was an implied consent on
the part of each to suffer accidental injuries. In the absence of
any proof of foul play, it was held that the act was accidental
and unintentional, and the case fell within Section 80 and 87,
IPC.
78. QUESTION
A inserted his hand in the pocket of B to take his wallet out
but there was a loaded pistol instead and the trigger pulled
off due to which B died. Decide the liability of A.
