IPC

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
Semester: THIRD SEMESTER
Name of the Subject:
IPC -205
IPC LAWS IN INDIA

Many prominent jurists have made attempts to define Crime.
• Sir William Blackstone
In his 'Commentaries on Law of England', Sir William Blackstone defined
Crime as "an act committed or omitted in violation of Public Law forbidding or
commanding it".
• Sir James Stephen
"Crime is an act forbidden by law and revolting to the moral sentiments of the
society".
• Kenny
"Crimes are wrongs whose sanction is punitive and in no way remissible by an
private person, but is remissible by the Crown alone, if remissible at all"
•Stephen
"Crime is an act which is forbidden by law and revolting to the moral
sentiments of the society".
• Paul W. Tappen
"An intentional act or omission in violation of criminal law, committed, without
defense or justification and sanctioned by law as felony or misdemeanor."

CRIME
A crime is a wrongdoing classified by the state or Congress as a felony or
misdemeanor.
A crime is an offence against a public law. This word, in its most general sense,
includes all offences, but in its more limited sense is confined to felony.
The term offence may be considered as having the same meaning, but is usually
understood to be a crime not indictable but punishable, summarily or by the
forfeiture of a penalty.
Crimes are defined and punished by statutes and by the common law. Most
common law offences are as well known and as precisely ascertained as those
which are defined by statutes; yet, from the difficulty of exactly defining and
describing every act which ought to be punished, the vital and preserving
principle has been adopted; that all immoral acts which tend to the prejudice of
the community are punishable by courts of justice.

Crimes are 'mala in se,' or bad in themselves, and these include all offences
against the moral law; or they are 'mala prohibita,' bad because prohibited, as
being against sound policy which, unless prohibited, would be innocent or
indifferent. Crimes may be classed into such as affect:
•Religion And Public Worship
•Blasphemy.
• Disturbing public worship.
•The Sovereign Power
•Treason.
• Misprision of treason.

PUBLIC JUSTICE:
• Bribery of judges or jurors, or receiving the bribe.
• Perjury.
• Prison breaking.
• Rescue.
• Barratry.
•Maintenance.
• Champerty.
•Compounding felonies.
• Misprision of felonies..

Public Peace
• Challenges to fight a duel.
• Riots, routs and unlawful assemblies.
• Affrays.
• Libels.
Public Trade:
• Cheats.
• Forestalling.
• Rerating.
• Engrossing.
• Monopolies.
Chastity
• Sodomy
• Adultery.
• Incest.
• Bigamy.
• Fornication

Individuals Homicide, which is justifiable, excusable or felonious.
•Rape
•Miscarriage.
•Assault and battery, which is either simple or with intent to commit some
other crime
•Kidnapping
•False imprisonment
•Abduction.
Private Property
•Burglary Arson
•Robbery.
•Forgery &Counterfeiting
•Larceny.
•The Public, Individuals, Or Their Property, According To The Intent Of

Fundamental Elements Of Crime:
•There are four elements which go to constitute a crime, these are:-
Human being
Mens rea or guilty intention
Actus reus or illegal act or omission
Injury to another human being

There are Four stages in commission of
a Crime.
• Intention
• Preparation
• Implementation
• Accompolishment

UNIT 2-PRIVATE DEFENCE
Right of self defense revolves around the general adage that “necessity
knows no law” and “it is the primary duty of man to first help himself”. The
right of self-preservation is inherent in every person but to achieve that end
nothing could be done which militates against the right of another person.
The Supreme Court in a case held that right of private defense given by the
Penal Code was essentially one of defense or self-protection and not a right
of reprisal or punishment. That right was subject to the restrictions indicated
in Section 99, which were as important as the right itself. One of them was
that harm inflicted in self-defence should be no more than that was
legitimately necessary for the purpose of defence. Further, the right was co-
terminus with the commencement and existence of a reasonable
apprehension of danger to body from an attempt or a threat to commit the
offence as stated in Section 102 of IPC.

This right proves to be a shield against the evil elements of the society
but the problematic area regarding it is what if this shield will be used a
sword. The right of private defence is subject to certain restrictions, first
one is that harm inflicted in self-defence must be no more than is
legitimately necessary for the purpose of defence an important
modification in this restrictions is earlier the main focus was on the
weapon used but now the focus is on the part of the body which is
attacked therefore in DeoNarain’s Case it has been held that the accused
was justified in using his spear though the other party had aimed only a
lathi blow on the head, which being a vulnerable part even a lathi blow
can prove to be dangerous

•In Hamsa v. State of Kerela, the deceased who was the aggressor hit the head
of the father of the accused hard by the stick. The father summoned for help
and the accused to deter the victim gave him a stab wound with an ordinary
knife. Till this time the accused was well within the ambit of self-defence. But,
when the accused stabbed him again, he exceeded the right of self defence and
his intention to save transformed into intention to kill.

Also as according to Section 97 this right vests even in strangers for the
defence of the body and property of others. As Bentham said: “It is a
noble movement of the heart, that indignation which kindles at the sight
of the feeble injured by the strong. It is noble movement which makes
us forget our danger at the first cry of distress…. It concerns the public
safety that every honest man should consider himself as the natural
protector of every other.”

In a very recent judgment of Darshan Singh vs State Of Punjab
A dispute arose in a family. Deceased Gurcharan Singh was the brother of
Bakhtawar Singh and uncle of Darshan Singh. The appellant Darshan Singh
fired only after the serious incised wound by a Gandasa was inflicted on his
father Bakhtawar Singh and at that time in order to save his life he fired 2
shots which hit the deceased Gurcharan Singh leading to his death. The trial
court after marshalling the entire evidence came to the conclusion that, the
probabilities of the case are much more in favor of the defence than in favor
of the prosecution. The possibility of the injuries having been caused to
Gurcharan Singh by Darshan Singh in exercise of private defence cannot be
ruled out.

•This proposition of law in itself is contradictory to the basic philosophical
justification of the right to self-defence. This right has been granted to
protect oneself from any harm which is probable to be inflicted by a person
but how is it justified to kill the other for the same.
•Biggest lacuna of Section 100 of Indian Penal Code is that it makes it clear
that Right of private defence can also be claimed against unarmed assailant
also, therefore the accused has a proper justification even if he has given a
perfect shape to his criminal intent. Such an extended ambit makes it a little
unjustifiable but every coin has two sides and this provision also has its
merits attached to it.

Thus the right of private defence is beyond doubt necessary but it is not a
necessary evil. For Pollock observes:
It would be a grave mistake to regard self-defence as a necessary evil suffered
by the law because of the hardness of men’s hearts. The right is a just and
perfect one. To “repel force by force” , as already stated, is the common
instinct of every creature that has means of defence. And when the original
force is unlawful, this natural right or power of man is allowed, nay approved
by the law. Sudden and strong resistance to unrighteous attack is not merely a
thing to be tolerated; in many eases it is a moral

David M. Walker gave a more descriptive account of self-defence by saying:
“It is permissible to cause harm or even death in order to defend oneself or
another person from unlawful violence, provided that the person causing the
harm or death did what he could to avoid the violence, as by retreating where
possible, and inflicts to greater injury than he, in good faith and on reasonable
grounds, believes to be necessary to protect himself or the other. If the defence is
made out, the accused escape liability entirely, the injury or death being justified,
if not he may be guilty of assault, or even murder. The defence of his own life,
but extends to defence against rape, possibly against sodomy, and defence of
another whom one reasonably should protect, such as a child.”

Self-Preservation and Self-defence
Self-defence is based upon the concept of self-preservation. Self preservation is
the natural instinct in every living creature. It was employed against forces-
natural and physical and self-defence is used only against man made calamities.
It is found both in human beings and animals. It is based on the struggle for
existence. We eat, drink and breathe to sustain and preserve ourselves. Once a
living creature is assured of self-preservation within the environment
surrounding it, there are still a number of forces both physical and natural
against which it has to combat to exist, and the right of private defence is
contemplated to meet one of those situation. Thus, the necessity of self-
preservation gives birth to the notion of self defence.

Hale observed that if a person killing was attacked in a manner which was
imminently dangerous to life or if a violent felonious attack was made on a
person or property, the killing was justifiable on the principle of self
defence. It is only just that one, who is unlawfully attacked by another and
who has no opportunity to resort to the law for his defence, should be able
to take reasonable steps to defend himself from physical harm. When the
steps taken by him were reasonable he had a complete defence to such
crimes against the person as murder and man slaughter. His intentional
infliction of physical harm upon the other, or his threat to inflict such harm,
was said to be justified when he acted in self-defence, so that he was not
guilty of any crime

OBSERVATIONS
•We think it right, however to say that there is no part of the code with which
we feel less satisfied than this.
•We cannot accuse ourselves of any want of diligence or care.
•No portion of our work has caused us more anxious thought or has been more
frequently rewritten.
•Yet we are compelled to hold that we leave it still in a very imperfect state;
and though we do not doubt that it may be far better executed than it has been
by us, we are inclined to think that it must always be one of the least exact
parts of every system of criminal law.

A reasonable apprehension of death or serious bodily injury justifies the taking
of life.
The justification of taking life, according to Edward Miron Dange depends
upon
• the actor’s honest belief that he is in danger, and
•such belief is reasonable warranted by the conduct of the victim and the
surrounding circumstances

In George Dominic Vareky v. State of Kerala, it was held by the Supreme Court
that the right of private defence rests on following ideas:
(i) there must be no use of more harm inflicted than is necessary for the purpose
of defence;
(ii) there must be reasonable apprehension of danger to the body from the attempt
or threat to commit some offence and
(iii) right does not com in to existence commence until there is a reasonable
apprehension of danger.

UNIT 3 – CRIMINAL CONSPIRACY
In English law,
"if two or more persons agree together to do something contrary to law, or
wrongful and harmful towards another person, or to use unlawful means in the
carrying out of an object not otherwise unlawful, the persons who so agree
commit the crime of conspiracy.”
SECTION 120-A of Indian Penal Code, 1860

In Mulcahy v. R. the House of Lords stated,
"A conspiracy consists not merely in the intention of two or more but in the
agreement of two or more to do an unlawful act by unlawful means. So long
as such a design rests in intention only it is only indictable. When two agree
to carry it into effect, the very plot is an act in itself and the act of each of
the parties promise against promise actus contra actum capable of being
enforced if lawful, punishable if for a criminal object or for the use of
criminal means."

Glanville Williams writes:
If the mere intention of one person to commit a crime is not criminal, why
should the agreement of two people to do it make it criminal? The only
possible reply is that the law (or, if you prefer, the Establishment) is fearful
of numbers, and that the act of agreeing to offend is regarded as such a
decisive step as to justify its own criminal sanction.

•Section 120-A defines criminal conspiracy and
•S. 120-B provides the punishment for it.
•Ss. 120-A & 120-B apply only where there is a conspiracy between two or
more persons, i.e., an agreement or meeting of the minds between them to do
an act.
•The definition of criminal conspiracy in S. 120-A has been taken from Lord
Brampton who defined conspiracy

In Lennart v. Director of Enforcement the Supreme Court observed:"
The first of the offence defined in S. 120-A, penal code, which is itself
punishable as a substantive offence is the very agreement between two or
more persons to do or cause to be done an illegal act or a legal act by
illegal means subject, however, to the proviso that where the agreement is
not an agreement to commit an offence the agreement does not amount to
a conspiracy unless it is followed up by an overt act done by one or more
persons in pursuance of such an agreement. There must be a meeting of
the minds in the doing of an illegal act or the doing of a legal act by
illegal means. If in the furtherance of the conspiracy certain persons are
induced to do an unlawful act without the knowledge of the conspiracy or
the plot, they cannot be held to be conspirators though they may be guilty
of an offence pertaining to the specific unlawful act. The offence of
conspiracy is complete when two or more conspirators have agreed or
cause to be done an act which is itself an offence, in which case no overt
act need be established.

In Mohd. Khalid v. State of W.B. and Davender Pal Singh v. State of NCT
of Delhi, the Supreme Court after referring to the American and the English
legal position on the law of conspiracy summarized the broad essential
elements of conspiracy thus:a
(a) an object to be accompanied;
(b) a plan or scheme embodying means to accomplish that object;
(c) an agreement or understanding between two or more accused persons
whereby, they become definitely committed to corporate for the
accomplishment of the object by the means embodied in the agreement,
or by any effectual means; and
(d) in the jurisdiction where the statute requires, an overt act.

In State of Maharashtra v. Somnath Thapa Supreme Court explained the
ingredients of conspiracy and observed:[T]o establish a charge of conspiracy,
knowledge about indulgence in either an illegal act or a legal act by illegal
means is necessary. In some cases intent of unlawful use being made of the
goods or services in question may be inferred from the knowledge itself...
Finally when the ultimate offence consists of a chain of actions, it would not be
necessary for the prosecution to establish, to bring home the charge of
conspiracy, that each of the conspirators had to know of what the collaborator
would do, so long as it is known that the collaborator would put the goods or
services to an unlawful use.

It is necessary that they should agree for a design or object of the conspiracy.
Conspiracy is conceived as having three elements;
(1) agreement;
(2) between two or more persons by whom the agreement is effected; and
(3) a criminal object, which may be either the ultimate aim of the agreement, or
may constitute the means, or one of the means by which that aim is to be
accomplished. It is immaterial whether this is found in the ultimate objects

In State(Delhi Admn) v. V.C.Shuklathe court observed: [I]n order to prove a
criminal conspiracy which is punishable under S. 120-B of IPC, there must be
direct or circumstantial evidence to show that there was an agreement
between two or more persons to commit an offence. This clearly envisages
that there must be meeting of minds resulting in an ultimate decision taken by
the conspirators regarding the commission of an offence. It is true that in most
cases it will be difficult to get direct evidence of an agreement to conspire but
a conspiracy can be inferred even from circumstances giving rise to a
conclusive or irresistible inference of an agreement between two or more
persons to commit an offence

The essential ingredient of the offence of the conspiracy y is the agreement to
commit an offence. In a case where e the agreement is for accomplishment of an
act which by itself constitutes an offence, then in that event n o overt act is
necessary to be proved by the prosecution because in such a situation, criminal
conspiracy is established by proven g such an agreement. A criminal conspiracy
may persist as long as the persons in agreement continue to act in pursuance of the
agreement. The conspiracy can be terminated either by abandonment,
accomplishment or detection and resultant rout by law enforcement. It is a
continuing offence.

UNIT 4
MEANING OF CAPITAL PUNISHMENT
Capital punishment, also called death penalty, execution of an offender
sentenced to death after conviction by a court of law for a criminal offense.
Capital punishment should be distinguished from extrajudicial executions
carried out without due process of law. The term death penalty is sometimes
used interchangeably with capital punishment, though imposition of the
penalty is not always followed by execution (even when it is upheld on
appeal), because of the possibility of commutation to life imprisonment

HISTORICAL BACKGROUND
Capital punishment is an ancient sanction. There is practically no country in the
world where the death penalty has never existed. History of human civilization
reveals that during no period of time capital punishment has been discarded as a
mode of punishment5 . Capital punishment for murder, treason, arson, and rape was
widely employed in ancient Greece under the laws of Draco (fl. 7th century BCE),
though Plato argued that it should be used only for the incorrigible. The Romans
also used it for a wide range of offenses, though citizens were exempted for a short
time during the republic

For offences where the death penalty was an option, Section 367(5) of the
CrPC 1898 required courts to record reasons where the court decided not to
impose a sentence of death: If the accused is convicted of an offence punishable
with death, and the court sentences him to any punishment other than death, the
court shall in its judgment state the reason why sentence of death was not
passed.

The Code of Criminal Procedure was re-enacted in 1973 (‘CrPC’), and
several changes were made, notably to Section 354(3):
When the conviction is for an offence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of years,
the judgment shall state the reasons for the sentence awarded, and, in the
case of sentence of death, the special reasons for such sentence.

These amendments also introduced the possibility of a post-conviction hearing on
sentence, including the death sentence, in Section 235(2), which states:
If the accused is convicted, the Judge shall, unless he proceeds in accordance with
the provisions of section 360, hear the accused on the question of sentence, and
then pass sentence on him according to law

Criteria for Rarest of Rare The principles as to what would constitute the
“rarest of rare” has been laid down by the top Court in the landmark
judgment in Bachan Singh vs State of Punjab (1980)
Supreme Court formulated certain broad illustrative guidelines and said it
should be given only when the option of awarding the sentence of life
imprisonment is “unquestionably foreclosed”. It was left completely upon the
court’s discretion to reach this conclusion. However, the apex court also laid
down the principle of weighing, aggravating and mitigating circumstances. A
balance-sheet of aggravating and mitigating circumstances in a particular case
has to be drawn to ascertain whether justice will not be done if any
punishment less than the death sentence is awarded. Two prime questions, the
top court held, may be asked and answered. First, is there something
uncommon about the crime which renders the sentence of imprisonment for
life inadequate and calls for a death sentence? Second, are there circumstances
of the crime such that there is no alternative but to impose the death sentence
even after according maximum weight age to the mitigating circumstances
which speak in favour of the offenders

CLEMENCY POWERS
If the Supreme Court turns down the appeal against capital punishment, a
condemned prisoner can submit a mercy petition to the President of India and
the Governor of the State.
Under Articles 72 and 161 of the Constitution, the President and Governors,
respectively have the power “to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the sentence of
any person convicted of any offence

JUDICIAL REVIEW OF EXERCISE OF MERCY
POWERS
•The Supreme Court in Shatrughan Chauhan case has recorded that the
Home Ministry considers the following factors while deciding mercy
petitions:
Personality of the accused (such as age, sex or mental deficiency) or
circumstances of the case (such as provocation or similar justification);
Cases in which the appellate Court expressed doubt as to the reliability of
evidence but has nevertheless decided on conviction;
•Cases where it is alleged that fresh evidence is obtainable mainly with a
view to see whether fresh enquiry is justified; Where the High Court on
appeal reversed acquittal or on an appeal enhanced the sentence;
•Is there any difference of opinion in the Bench of High Court Judges
necessitating reference to a larger Bench; Consideration of evidence in
fixation of responsibility in gang murder case;
• Long delays in investigation and trial etc

Swamy Shraddhanand case laid the foundation of this emerging penal option in
following terms: “The matter may be looked at from a slightly different angle.
The issue of sentencing has two aspects. A sentence may be excessive and unduly
harsh or it may be highly disproportionately inadequate. When an appellant
comes to this Court carrying a death sentence awarded by the trial court and
confirmed by the High Court, this Court may find, as in the present appeal, that
the case just falls short of the rarest of the rare category and may feel somewhat
reluctant in endorsing the death sentence. If the Court's option is limited only to
two punishments, one a sentence of imprisonment, for all intents and purposes, of
not more than 14 years and the other death, the Court may feel tempted and find
itself nudged into endorsing the death penalty. Such a course would indeed be
disastrous. A far more just, reasonable and proper course would be to expand the
options and to take over what, as a matter of fact, lawfully belongs to the Court
i.e. the vast hiatus between 14 years' imprisonment and death. It needs to be
emphasized that the Court would take recourse to the expanded option primarily
because in the facts of the case, the sentence of 14 years' imprisonment would
amount to no punishment at all.

LAW COMMISSION OF INDIA's REPORT ON DEATH
PENALTY
The Law Commission of India in its 262nd Report (August 2015) recommended
that death penalty be abolished for all crimes other than terrorism related
offences and waging war.
Complete recommendations of the Report are as follows:
The Commission recommended that measures suggested that police reforms,
witness protection scheme and victim compensation scheme should be taken up
expeditiously by the government.

Although there is no valid penological justification for treating terrorism
differently from other crimes, concern is often raised that abolition of death
penalty for terrorism-related offences and waging war, will affect national
security. However, given the concerns raised by the law makers, the
Commission did not see any reason to wait any longer to take the first step
towards abolition of the death penalty for all offences other than terrorism
related offences.

The Commission accordingly recommended that the death penalty be
abolished for all crimes other than terrorism related offences and waging war.
Further, the Commission sincerely hopes that the movement towards
absolute abolition will be swift and irreversible

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