INDIAN PENAL CODE Part-1

(INDIAN PENAL CODE)

Q. 1 (a). What is crime? How does it differ from tort and sin ?

Explain the term “offence” in relation to I.P.C. and differentiate it from tort and sin.

Ans. Crime is an act which is inevitable in the human society because every body does not abide by the social norms. The violations of societal norms if punishable are labelled as crimes. Every society is confronted with the problem of crime and criminality although their forms may differ according to the society and the policies being followed by the government at a particular time. According to Taft and England “Crime is one form of social injury Every society has certain values to be respected. These values are laid down by the group that dominates the society. If an act does not conform to these values and is against its interest, the punishment can be prescribed for such non-conformity. Thus, the crime is an act prohibited by the law for which punishment is provided under the legal provisions.

Generally, a crime is an act that is also immoral act. But ‘criminality’ and ‘immorality are the notions which do not always coincide. They may differ according to the understanding at a particular time. The concept of immorality may differ according to the groups or community in the same society. It may differ from society to society. If the punishment is provided for an act, it is a crime although it is not necessarily an immoral act. Sometimes, an act may be highly immoral but it may not be a crime.

The crime is a changing concept. The crime has a close relation with the public opinion and the policies which the rulers make at a particular time. An act that is criminal today, may not remain criminal tomorrow and an act that is not criminal today, may become criminal afterwards. The hoarding of goods was not considered to be a criminal act long back but these days this is invariably a crime as it leads to price rise and black-marketing. The socialistic concept of the State has turned many acts in crimes, which create hindrance in social welfare activities.

There are many acts which are wrongful by their nature (mala in se). They are considered to be criminal in traditional sense, e.g., murder, rape, incendiarism, burglary, theft etc. There are some acts which are not criminal by their nature and therefore not mala in se but mala in prohibita, ie, because they are not wrongful acts in the traditional sense but wrongful because they have been declared so by the law of a particular place.

Thus, many factors make an act criminal eg., social and moral values, economic conditions of the society, public opinion, the policies of the government, international relations in dealing with the acts considered to be prejudicial to friendly relations between the States etc. Therefore, it becomes difficult to define the crime. According to Russel, “To define crime is a difficult task which so far has not been satisfactorily accomplished by any writer. In fact, criminal offences are basically the creation of the criminal policy adopted from time to time by those sections of the community who are powerful or astute enough to safeguard their own security and comfort by causing the sovereign power in the State to repress conduct which they feel may endanger their position” (Russel on Crimes).

Crime is defined as an act punishable by law as forbidden by statute or injurious to the public welfare. Anything which is injurious to public welfare is a crime. In a modern and complex societies, many things may be against the public welfare.

Some of the definitions of crime are as follows:

Blackstone has defined crime as “an act committed or omitted in violation of public law forbidding or commanding it”. It is “a violation of the public rights and duties due to the whole community”.

According to Stephen “A crime is a violation of a right, considered in reference to the evil tendency of such violation as regards the community at large.”

According to to Austin Austin “A wrong which is pursued by the sovereign or his subordinates is a crime ”

According to Bentham “Offences are whatever the legislature has prohibited for good and for bad reasons”.

According to Kenney “Crimes are wrongs whose sanction is punitive and is in no way remissible by any private person, but is remissible by crown alone, if remissible at all”.

According to Miller “Crime is the commission or omission of an act which the law forbids or commands under pain of a punishment to be imposed by the State by a proceeding in its own nature”.

Halsbury Laws of England.– “An act or default against the order, peace and well being of the society…. punishable by the State.”

The word ‘crime’ has sometimes been used synonimously with the expression ‘offence’ or ‘criminal offence’. The word ‘offence’ has been defined under Section 40 of the Indian Penal Code thus-“Except in the chapters and sections mentioned in clauses (2) and (3) of this Section, the word ‘offence’ denotes a thing made punishable by this Code.”

“In Chapter IV, Chapter V-A and in the following sections, namely, Sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 177, 118, 119, 120, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word ‘offence’ denotes a thing punishable under this Code or under any special or local law as hereinafter defined.”

“And in Sections 141, 176, 177, 201, 202, 212, 216 and 441, the word “offence” has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.”

Crime and sin. – There are following differences between ‘sin’ and ‘crime’:

– Sin –

1. A ‘sin’ is an act against the order of religion.

2. For a sin, the doer is accountable to God.

3. For a sin, the doer has to get divine punishment.

4. A ‘sin’ may be a crime or not.

5. A true repentance may wipe out ‘sin’.

– Crime –

1. ‘Crime’ is an act against the order of law.

2. For a crime, the doer is accountable to the State.

3. For a crime, the doer has to get the punishment prescribed by the law.

4. A ‘crime’ may be ‘sin’ or not.

5. A true repentance does not wipe out crime.

Crime and Tort. – In ancient days, many acts which these days are crimes, were considered as acts against the injured person and his relatives only and by compensation to the victim or his relatives, the criminal could escape the physical punishment. Such crimes were termed as ‘crimes of bot’. The other crimes were ‘botless’ for which compensation was not adequate remedy. These days the crimes are always punished by the State.

There are following differences between “Tort’ and ‘Crime’:

– Tort –

1. A ‘tort’ is an act against an individual.

2. In ‘tort’, the remedy is provided by the Civil Court.

3. In tort, compensation is awarded to the injured person.

4. A tort is never a crime.

– Crime –

1. A ‘crime’ is always an act against the public or State due to gravity of the act.

2. In crime, the remedy is provided by the Criminal Court.

3. In crime, the punishment is awarded by the Court to the criminal.

4. Generally, every crime is a tort when it is committed against an individual or group of individuals but due to its gravity it is labelled as crime and punishable.

Q. 1 (b). What are the elements of a crime ? Discuss.

Enumerate the essentials of ‘offence’.

Ans. Element of Crime.- There are four elements of crime.-

(1) Person and Human being, (2) Mens rea, (3) Actus reus, (4) Injury.

1. Person and Human being. – The act should have been done by a human being before it can constitute a crime punishable at law. In earlier societies, there are examples when animals were prosecuted and punished. If by the act of an animal any injury was caused to any human being, that animal was liable for punishment as an offender after the actual trial and judgment of the case. There are illustrations when snakes and pigs were burnt, oxen stoned to death and mad dogs convicted. Also insects and inanimate objects, like stones, iron or wood were punished.

With the development of notion of mens rea as an essential element of crime, the trial and punishment of animals and inanimate objects had to be Only a human being under a legal obligation and capable of being Only punished could be the proper subject of criminal law. Corporations and other artificial persons known to modern jurisprudence were not capable of being punished because the punishment meant both pecuniary and bodily punishment and the latter could not be inflicted upon artificial persons. With the advancement of socie society, the punishment did not remain limited to natural persons because with the expansion in their manifold functions, the corporations more and more came in contact with human beings who sometimes sustained injuries also at the hands of the employees or agents of the corporations. The corporations were, therefore, convicted and punished for the acts which came within the definition of crime. It is otherwise that a corporation can not be physically punished. A monetary punishment can be imposed on it. The law may prescribe physical punishment e.g. imprisonment to be suffered to the Director or any other officer looking after the business of the corporation.

According to Section 11, L.P.C. “person” includes a company, or association or a body of persons whether incorporate or not. Hence, “person’ includes juridical as well as natural persons, ie. human beings. Though, this word also includes a firm, it does not include a proprietory concern and State. However, the juridical person can be convicted only for such offences which are punishable with fine and not for those punishable with imprisonment. For every conviction, the doer of the crime must necessarily be a human being whether he acts at his own initiative or under authority of a juridical person in which case the juridical person may be convicted.

2. Mens rea. – Mens rea ie., an evil intent, is an essential element of crime. If the mind is innocent, the person doing act may not be criminally liable. In Indian Penal Code, guilty intentions are denoted by the words like, voluntarily, knowingly, dishonestly, fraudulently, intentionally etc., which express the principle that there must be a guilty mind to constitute a crime. The wrong without mens rea does not constitute a crime.

“Actus non facit reum nisi mens sit rea” is a well known maxim of criminal law which means that the act itself does not make a man guilty unless his intentions were so. The intent and the act both must concur to constitute a crime. If it is not so, there is no criminal responsibility unless the offence is expressly or by necessary implication punishable without reference to the wrong-doer’s intention or knowledge.

3. Actus reus.- To constitute a crime third element is called actus reus. A mere intention is not punishable. There must be an act according to the intention. Russel termed ‘actus reus’ as “physical event”. Actus reus is the result of a deed prohibited by law and a physical result of a human conduct. Such human conduct may consist of acts of commission as well as acts of omission.

The word “illegal” has been given a very wide meaning under Section 43 of I.P.C. According to Section 43, “The word ‘illegal’ is applicable to everything which is an offence or which is prohibited by law, or which furnishes a ground for a civil action and a person is said to be legally’ bound to do whatever it is illegal in him to omit it.”

Thus, the mental element, ie., mens rea means the person’s conduct must be done voluntarily and actuated by guilty mind, while actus reus denotes the physical result of the conduct, which violates some law, statutory or otherwise, prohibiting or commanding the conduct.

4. Injury. – The injury may be caused to another human being or to the society at large. Sec. 44 defines “injury” as any harm whatever illegally caused to any person in body, mind, reputation or property. A harmful conduct may sometimes cause injury to another human being but it also may be held as crime when it causes harm to the society at large. All the public offences against State are instances of such harms, ie. treason, sedition etc.

According to Pascal’s Pensees-“Desire and force” are responsible for all our actions, desire causes our voluntary acts, force our involuntary ones.

Physical act and the state of mind both are important factors to be always kept in mind while judging liability under criminal law. To ensure a conviction the prosecution is obliged to prove that the accused brought about a result prohibited by law with a guilty mind. Mere prohibited result or mere guilty mind alone does not make one guilty criminally. Chief Justice Kenyon said in Fowler v. Padget, (1798) 7 TR 509 (TAC), “The intent and the act both concur to constitute the crime.”

Q. 1 (c). What do you understand by mens rea? How far the principle is applicable to I.P.C. ? Discuss.

Comment on the maxim, ‘actus non facit reum nisi mens sit rea’.

Ans. Mens rea- In Latin, mens rea means a guilty mind, but in legal sense it denotes the mental state required for the particular crime in question. Normally the required mental element is either-

(1) An intention to do the forbidden act or otherwise to bring about the external elements of the offence.

(2) Recklessness as to such element.

The physical element that constitutes a crime is obvious, because it is externally manifested by the wrongful act committed by the accused. But the wrongful act done by the accused in all cases is not punished.

For example, A shoots at a jackal, X is behind the bush and is hurt by accident. X will not think of retribution as it is a case of accident. But it will be different if A shoots at X deliberately.

In Sweat v. Parsley, (1970), Lord Diplock said.” An act does not make a man guilty of a crime unless his mind be also guilty”. The principle owns its origin to the Latin maxim, actus non facit reum nisi mens sit rea. In R. v. Shorty, (1950 SR 280), the court held-To constitute crime, mens rea and actus reus both must be present.

Mens rea to be ascertained with reference to the definition of particular crime.- Dr. Stallybrass observed-“It is not easy to arrive at a true meaning of mens rea at present day. As, mens rea means in case of murder malice aforethought, in case of theft an intention to steal, in case of rape an intention to have forcible connection with a woman without her consent and in case of receiving stolen goods knowledge that the goods were stolen. It, of course, varies according to the nature of the different crimes. The meaning of mens rea can only be ascertained by reference to the particular definition of a particular crime. But the common factor is the intent to injure.”

The Latin Legal maxim, actus non facit reum nisi mens sit rea, literally means that no act is crime without guilty mind or intention on the part of the doer. An essential ingredient in which crimes differ from civil wrongs, is mens rea which involves criminal intention and where such intention is missing, the wrong in question may be a civil wrong. If the mind of the person doing the act is innocent he may not be criminally liable for it though he may be liable for payment of damages under the civil law. Justice Brian observed, “The thought of man is not triable, for the devil himself knowth not the thought of man.”

Mens rea in IPC: The Indian Penal Code applies the maxim in three ways, viz, positively by using the words “intentionally” etc., negatively by providing general exceptions, e.g, unsoundness of mind of the accused, and by fixing strict liability which is fastened in some cases irrespective of mens rea. The various offences set out in the I.P.C., involve a guilty intention or knowledge as an essential ingredient. Words as such “voluntarily” ,”knowingly,” “dishonestly”, “fraudulently,” “intentionally”, etc. in the various provisions of the Code incorporate the principle that there must be a guilty mind to constitute the crime. The words “having reason to believe” occurring in some provisions of the Code modify the principle in as much as in cases to which such words have reference, it is not necessary that the guilty person should actually have criminal intention. He may be guilty even when circumstances exist from which any man of ordinary prudence may draw the inference that the offender could have reason to believe what the law imputes to him and holds him guilty of offence. It may, in such circumstances often be that the offender did not only have the requisite intention but was rather so unmindful that what he should have had reason to believe as a man of ordinary prudence he was rather innocent of. The law proceeds to impute knowledge under such circumstances and these words constitute what we call constructive mens rea. There are many offences, which do not have intention or knowledge as a necessary ingredient. Offences of rashness and negligence do not require intention or knowledge. The various offences of which mens rea is not an essential ingredient, i.e., exceptions to mens rea may be classified as-

(i) Acts and omissions which are not criminal in any real sense but are prohibited as penal and of concern for public interest and welfare 2.8 adulteration of foods and drugs (Section 272 & Section 274 of I.P.C.)

(ii) Public Nuisance (Section 268 of I.P.C.).

(iii) Civil Rights protected by criminal law for which a summary remedy is provided by incorporation as offence having regard urgency of maintaining such rights.

Mens rea and definition denoting guilty intentionon of crime not incorporating any word denoting guilty intentions- Sometimes, the definition of crime in the statute is silent regarding criminal intent. It is not mentioned as an ingredient of crime. The question is whether in such a case, mens rea has to be read an essential element of the crime or mens rea is not to be considered at all as an essential element and the accused has to be adjudged guilty if his act falls within the definition of crime.

In Reg v Prince, (1875) LR 2 CCR 154, Prince Henry was tried for abducting a girl, who was under the age of 16 under the belief that she was 18. Under Sections 24, 55, 24 Vict C 100, it was an offence of unlawfully to take or cause to be taken away any unmarried girl being under the age of 16 years out of possession against the will of her father or mother or any person having the lawful care and charge of her.

The Court held-The belief that the girl was of 18 years was no defence and accused was guilty because he committed an act which was forbidden by statute irrespective of his mens rea.

In Queen v. Tolson (1889) 23 QBD 168, Mrs. Tolson was charged of bigamy under Section 57 of the Offence Against Persons Act, 1861. The accused married Tolson in 1880 and deserted her in 1881. She made due and sufficient inquiry from all available sources and came to know that her husband was lost on voyage to America which drowned with all persons on board. In January, 1887, Mrs. Tolson, supposing herself widow, married another man. In December, 1887 Tolson returned from America and Mrs. Tolson was convicted on charge of bigamy and sentenced with one day’s imprisonment.

In Sherras v. De Rutzen, (1895) 1 QB 918, Wright J. observed that in every statute mens rea is to be implied unless the contrary is shown.

In Hobbs v. Winchester Corporation, (1910) 2 KB 471, Kennedy L.J. held-The statute ought to be construed literally unless there is something to show that mens rea is required. Mens rea is implied in certain statute and not in others, although there are no words in the statute itself to show a recognition of mens rea and judges provide for it on thier own authority.

In Brend v. Wood, (1946), the accused handed over forged coupons in return for petrol supplied to him. He had no knowledge that the coupons were forged and, therefore, he was not guilty under the statutory regulation for being in possession of certain forged petrol coupons with the intent to practise deception.

In State of Maharashtra v. M.H. George, AIR 1965 SC 722, the Supreme Court held-Where an Act is designed to safeguard and conserve foreign exchange which is essential to economic life of a developing country, the provisions have to be stringent and so framed as to prevent unregulated transaction which might upset the scheme underlying the controls.

In Nathu Lal v. State of M.P., AIR 1966 SC 43, a dealer in foodgrains had stored the grains without obtaining the licences and, therefore, he was prosecuted for having committed an offence under Section 7 of Essential Commodities Act, 1955. The accused pleaded that he had no intention to contravene the law as he had applied for licence which would be issued to him. The Supreme Court held-the dealer not guilty as she had no mens rea.

The I.P.C. defines every crime with a specific intent. The words like intentionally, voluntarily, fraudulently, malignantly etc. used in the Codeg ive positive force to the mens rea and leave no need of any speculative Inquiry as to its presence.

Q. 1 (d). What are different stages of commission of crime?

Describe the scope of intention, preparation and attempt to commit a crime.

Ans. There are following stages in the commission of a crime:

(1) Intention.

(2) Preparation.

(3) Attempt

(4) Accomplishment.

1. Intention. The first stage, the state of mind or the mental stage, is generally manifested in the form of intention or knowledge. The offender first of all forms the intention to commit the crime. Intention is formed because of some motive. Intention is also one of the essential ingredients of crime Intention itself is not punishable unless it is demonstrated by some overt act.

Mere intention to commit a crime is not punishable under the Indian Penal Code, like the penal laws of other countries, because it is impossible to read the mind of a man. Even the devil himself knoweth, not the thought of man and so it is absolutely difficult to define contemplation in the mind of a person.

2. Preparation. After formation of intention to commit an act, the offender makes preparation to commit the crime. When the offender arranges or devises the means necessary to commit the crime, it is preparation. As a general rule, mere preparation to commit the crime is not punishable. It is only in serious matters that preparations are punished.

Preparation consists in devising or arranging means or measures necessary for the commission of the offence. Ordinarily, preparation is not punishable due to four reasons:

(i) Preparation apart from motive is generally a harmless act.

(ii) It would be impossible in most of the cases to show that preparation was directed to a wrongful end or was done with an evil motive or intent.

(iii) It is not the policy of law to create and multiply offences and it preparation is punished, innumerable offences will have to be created.

(iv) A mere preparation does not ordinarily affect the sense of security of the individual.

In Indian Penal Code, under the following sections preparation is an offence (1) Section 122-Preparation to wage war against the Government of India, (2) Section 126-Preparation to commit depredations in the territories of a friendly country, (3) Section 399-Preparation to commit dacoity, (4) Sections 233, 234, 235, 256 and 257-Making, selling or being in possession of instruments for counterfeiting of coins or stamps, (5) Sections 242, 243, 259 and 266-Possession of counterfeit coins, false weights and forged documents, (6) Section 402-Assembling for purpose of committing dacoity, (7) Sections 472, 473, 474, 475 and 476-Making or possessing counterfiet coins, false weights and forged documents, (8) Sections 485 and 486-Making or possessing instrument for counterfeiting a property mark, and selling or possessing instruments or material for forging or counterfeiting currency-notes or bank-notes.

3. Attempt. After making preparation, the offender moves towards the commission of offence. This is called the stage of attempt. Since attempt, if successful, results in desired effect, it is considered to be a very dangerous stage and, therefore, it is always punishable. Attempt to commit an offence is punishable under all legal systems.

According to Mayne attempt is direct movement towards the commission after the preparation has been made.

In Aman Kumar v. State of Haryana, 2004 Cri LJ 1399 (SC), the Supreme Court held-Attempt means an act which if not prevented would result in full consummation of act attempted.

4. Accomplishment. If the offender becomes successful in his attempt and desired results are obtained, this is accomplishment of crime and crime is complete.

It is to be noted here that preparation and attempt are also sometimes called as inchoate crime which is a misnomer. These are the two stages of crime and if these stages are punishable, the preparation and attempt both are crime.

Preparation and attempt- Distinguished.-Preparation, in general, is not punishable while attempt to commit a crime is always punishable. Preparation is a mental act with follow up of some action to do a particular thing. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence.

In Fagna Bhai v. State of Orissa, 1992 Cri LJ 1808 (Orissa), the Orissa High Court held-In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence and secondly to have done an act which constitutes the actus reus of a criminal attempt. However, in order to determine at what stage an act or a series of acts done towards the commission of the intended offence is attempt, there are following tests to determine it:

(i) Proximity Rule

(ii) Doctrine of Locus Penitentiae

(iii) Social Danger Test

(iv) Equivocality Test.

(i) Proximity Rule. According to this rule, if the offender has done all what is needed for the commission of the crime but he has not achieved the desired consequences due to some event beyond his control, this is the stage of attempt not preparation. Suppose, a man fires a shot from his gun at his enemy but he misses the target due to high speed winds or because he is not so efficient to target, this is the stage of attempt not preparation. He has reached near enough the actual desired consequences but due to something which is beyond his control, he fails.

The proximity rule is embodied in the latin maxim “cogitationis poenam nemo patitur which means than no man can be punished for mere intent save so far as they have manifested themselves in overt acts which themselves proclaim his guilt.

In R. v. Taylor, 1895 1 F&F 511, ‘A’ was found guilty of attempting to commit arson as he was detected in the act of lighting a match stick behind a haystack but instead of lighting had been found only to have purchased or even in possession of match box he would not have been held liable for attempt because it was difficult to prove that the match stick was to commit arson of haystack.

(ii) Locus Penitentiae Rule. If the offender has still time to repent, this is the stage of preparation not attempt and if he has no time to repent, this is the stage of attempt. For example, the offender takes a loaded pistol in his hand and comes out from his house to shoot down his enemy in the busy market and starts to walk for this purpose. This is the stage of preparation because he has still time to think over the consequences of his act or he may out of fear of being caught in the busy market may hold back his decision.

Take another instance, ‘A’ intending to murder ‘Z’ by poison, purchases poison and mixes the same with food which remains in A’s keeping. A is not yet guilty of an attempt to murder because there is still time when better reason may prevail any moment and ‘A’ may change his mind and desist from giving that food to Z.

(iii) Social Danger Test. The seriousness of crime attempted and apprehension of the social danger involved in it are taken into account to distinguish an act of attempt from that of preparation. A gives pills to a pregnant woman to procure abortion but there is no effect because the drug turns out to be innocuous. A would be guilty of an attempt to cause miscarriage since the act would cause an alarm to society and would have social repercussions.

(iv) Equivocality Test. The act must speak for itself. To constitute an attempt, the act must be such as to clearly and unequivocally indicate the intention to commit the offence.

Distinction between Preparation and Attempt

Preparation

1. Preparation is the second stage of a crime.

2. Preparation is arranging or devising means which are necessary for the commission of crime.

3. Acts that remotely lead towards the commission of offence fall in preparation.

4. Mere preparation does not result in desired effect.

5. In preparatory stage, the offender may repent and may not make further advancement towards the commission of offence.

6. Preparation is not a serious stage of crime.

7. Preparation is punishable only in serious matters.

Attempt

1. Attempt is the third stage of a crime.

2. Attempt is direct movement towards the commission of crime after preparation is made.

3. Acts immediately leading towards the commission of offence fall in attempt.

4. Attempt results in desired effect unless something happens beyond the control of the offender.

5. In attempt, the offender has no time to repent.

6. Attempt is a serious stage of crime.

7. Attempt is always punishable.

Impossible attempt. Sometimes, the offender attempts to commit a crime which is impossible to be committed, e.g., attempt to steal from a pocket which is empty or attempt to murder by firing a gun-shot on a log of wood lying on the ground mistaking it for a human being.

Impossible attempt in English Law. In R. v. Collins, 9 Cox CC 407, the attempt to steal from an empty pocket was held to be punishable. In R. v. Mc. Pherson, D&B 197 breaking and entering for attempt to steal the goods which were not there was held to be not punishable. In Haughton v. Smith, (1975) AC 476, the House of Lords held impossible attempt not punishable. By the Criminal Attempts Act, 1981, impossible attempt has been made punishable.

Impossible attempt in Indian Law. The illustrations appended to Section 511 of IPC make it clear that impossible attempt is punishable. These illustrations are as follows-

(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 has done an act towards the commission of theft, and therefore is guilty under this section.

(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A Ais guilty under this section.

Q. 2. Write short notes on-

(1) Intra Territorial Jurisdiction

(2) Extra Territorial Jurisdiction

(3) Extradition.

Ans. (1) Intra Territorial Jurisdiction. According to Section 2 of the Code, “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.”

The territory of India includes whole land territory of India, the maritime belt extending to 12 nautical miles in the sea and the whole air space above the aforesaid two areas. To this has been added the Exclusive Economic Zone which extends to two hundred nautical miles. Any offence relating to property if committed within this Zone, is subject to the jurisdiction of the Indian Courts. However, the President of India, Governors of States, foreign sovereigns, ambassadors, foreign army warships etc. are not subject to this section. Acts and omissions forbidden under the Code are both triable in India under this section.

In the Esop’s case 173 ER 203, a foreigner had committed an unnatural offence on an Indian ship lying in St. Katherine’s Docks. His defence that he was a foreigner and that in his country such an act was not an offence was rejected on the ground that the act was an offence under the Indian Penal Code and that it was committed on an Indian ship which was in Indian territory.

In Mobarik Ali v. State of Bombay, AIR 1957 SC 857, a national of Pakistan made certain false representations from Karachi by letters, telegrams and telephones to the complainant at Bombay on the belief of which the complainant paid a certain amount of money to the agent of the Pakistan at Bombay. The Supreme Court held that the Pakistani national was subject to the jurisdiction of the Indian Courts for having committed the offence of cheating and as the appellant had already surrendered to the authorities of India under the provision of the Fugitive Offenders Act, 1881 in connection with another case, his conviction was valid under Section 420, LP.C

(2) Extra Territorial Jurisdiction.-(a) According to Section 3 of the Code, “Any person liable by any Indian law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India.”

For example, if an Indian commits the offence of adultery in a country ‘E’, which is not an offence in that country, he may be prosecuted rosecuted in India because the act is an offence in India. But national of country ‘E’ cannot be prosecuted in India for having committed adultery in his country where it is no crime.

(b) According to Section 4-“The provisions of this Code apply 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 targetting a computer resource located in India.

Explanation.-

(a) In this section, 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.

Illustration.-A, who is a citizen of India, commits a murder in Uganda. H He can be tried and convicted of murder in any place in India in which he may be found.”

In State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722, the accused was a German National. He was on his way from Zurich to Manila on a Swiss aircraft which arrived in Bombay while on transit. He remained within the aircraft and did not come out, he did not file a declaration under the Foreign Exchange Regulation Act, 1947, regarding the gold he was carrying on his person. The Supreme Court held that the trial and conviction under Indian Law was valid.

According to Section 3, if any person commits outside India an offence punishable under the provisions of the I.P.C., he shall be dealt with in the same an iner as if the offence had been committed within India. But Section 4 provides that the provisions of the Code apply to a citizen of India wherever may have committed offence and wherever he may be found in India but not to the foreigners unless the crime had been committed on the Indian territory or any aircraft or ship registered in India wherever it may be.

(3) Extradition. Extradition means handing over an accused by the country where he is found to a country where he can be tried by and prosecuted before a law Court in accordance with law. This is done under a treaty of extradition between the two countries.

Q. 3. Write short notes on-

(a) Wrongful Loss & Wrongful Gain

(b) Dishonestly & Fraudulently

(c) Good faith

(d) Public servant

(e) Valuable security

Ans. (a) Wrongful gain. The words “wrongful gain” have been defined as gain by unlawful means of property to which the person gaining is not legally entitled. (Section 23)

Wrongful Loss. The words “wrongful loss” are the counterpart of the above definition. They have been defined as loss by unlawful means of property to which the person losing it is legally entitled. (Section 23)

Gaining Wrongfully. A person is said to gain wrongfully when. such person retains wrongfully as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property as well as when such person is wrongfully deprived of property. (Section 23)

The two terms ‘wrongful gain’ and ‘wrongful loss’ are related to the acquisition of a specific property by one party who causes wrongful loss to another.

In Mahalingaya Muddayya, (1959) Cr.LJ 881, if X takes away Y’s watch out of Y’s possession, without Y’s consent and with the intention of keeping it, he causes, wrongful loss to Y and wrongful gain to himself and so X is guilty of theft under Section 379 of IPC.

When a postman signs a postal receipt himself and makes it appear to have been signed by the addressee and retains the parcel for himself, it is wrongful gain.

(b) “Dishonestly”. Section 24 of the Indian Penal Code defines ‘dishonestly’ as follows:

“Whoever does anything with the intention of causing:

(i) wrongful gain to one person, or

(ii) wrongful loss to another person, is said to do that thing dishonestly.”

For example, if an Indian commits the offence of adultery in a country ‘E’, which is not an offence in that country, he may be prosecuted in India because the act is an offence in India. But national of country ‘E’ cannot be prosecuted in India for having committed adultery in his country where it is no crime.

(b) According to Section 4-“The provisions of this Code apply 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 targetting a computer resource located in India.

Explanation. (a) In this section, 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-s sub-section (1) of Section 2 of the Information Technology Act, 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.”

According to Section 3, if any person commits outside India an offence punishable under the provisions of the I.P.C., he shall be dealt with in the same an iner as if the offence had been committed within India. But Section 4 provides that the provisions of the Code apply to a citizen of India wherever he may have committed the offence and wherever he may be found in India but not to the foreigners unless the crime had been committed on the Indian territory or any aircraft or ship registered in India wherever it may be.

(3) Extradition.– Extradition means handing over an accused by tne country where he is found to a country where he can be tried by and prosecuted before a law Court in accordance with law. This is done under a treaty of extradition between the two countries.

Q. 3. Write short notes on-

(a) Wrongful Loss & Wrongful Gain

(b) Dishonestly & Fraudulently

(c) Good faith

(d) Public servant

(e) Valuable security

Ans. (a) Wrongful gain. The words “wrongful gain” have been defined as gain by unlawful means of property to which the person gaining is not legally entitled. (Section 23)

The two terms ‘wrongful gain’ and ‘wrongful loss’ are related to the acquisition of a specific property by one party who causes wrongful loss to another.

When a postman signs a postal receipt himself and makes it appear to have been signed by the addressee and retains the parcel for himself, it is wrongful gain.

(b) “Dishonestly”. Section 24 of the Indian Penal Code defines ‘dishonestly’ as follows:

“Whoever does anything with the intention of causing: (i) wrongful gain to one person, or (ii) wrongful loss to another person, is said to do that thing dishonestly.”

Wrongful gain and wrongful loss have been defined in Section 23. ‘Wrongful gain’ is gain by unlawful means of property to which the person gaining is not entitled. Wrongful loss is the loss by unlawful means of property to which the person losing is legally entitled.

The word “dishonestly” may, therefore, be understood to mean intentionally causing unlawful gain or unlawful loss of property. It is confined to those acts only in which property is involved as the subject- matter to which the act or the series of acts constituting dishonestly relate.

(a) A finds a valuable ring not knowing to whom it belongs. A sells it immediately without attempting to discover the owner. It is a dishonest act. Sale without any attempt tempt to discover the owner is unlawful being contrary to law. A sells it with the object of causing wrongful gain to himself. It is a dishonest act but as there is no deceit or deception in it the act is not fraudulent.

(b) A meets Z on the high road, shows a pistol, and demands Z’s purse. Z in consequence surrenders his purse. The threat to the personal safety of Z in consequence of which he gives up his purse is genuine and not a false threat or deception. The manner in which Z is made to give his purse is an unlawful manner and by such unlawful means a wrongful gain is caused to A and a wrongful loss of the purse to Z. The act is therefore, dishonest but not fraudulent.

(c) A purchases a watch; later on he knows that it is a stolen property and he continues to keep it with him after such knowledge. The retention is dishonest. It is unlawful and is done with the object of having wrongful gain of property.

Fraudulently. Section 25, I.P.C. defines “fraudulently” as follows- “A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.”

Sir James Stephen has drawn attention to two essential elements which constitute fraud: (i) deceit or an intention to deceive or in some cases mere secrecy, and (ii) either injury or possible injury or an intent to expose some person to any such injury by such deceit or secrecy.

The Supreme Court is of the opinion that the word ‘defraud’ presupposes deceipt and injury to the person deceived. [Vinod v. Delhi Administration, AIR 1963 SC 1572]

Fraudulent act’ or ‘deceit means making a false or reckless representation or statement of some fact knowing that it is false and another would act on it and he actually acts on it and suffers damage. The advantage made fraudulently is not necessarily economic, it may be of any other kind. In LP.C, the words “fraudulently” and “dishonestly” have been sometimes used togethers and their meaning is to be differentiated. In a fraudulent act, the intent to defraud is always present in the accused while intention to make unlawful gain or unlawful loss to another is the essence of an act done “dishonestly”.

Fraudulent acts.-(a) A puts counterfeit mark on an article with the intention to induce people to believe that it was made by a certain celebrated firm or manufacturers and induce them to purchase it under such belief. The act is a fraudulent act, and it would not be dishonest in the absence of an intent to cause wrongful gain or wrongful loss.

(b) The production of a forged bond by a person in a suit with intent to make the Court believe that he was entitled to recover money upon the basis of the particular document produced, though it may not be dishonest inasmuch as the person may otherwise be really entitled to the recovery of money will nevertheless be a fraudulent act as there is deceit in producing the forged document with the object of making the Court to believe upon such document.

(c) The issuing of a false statutory report of a company circulated to deceive the public and intended to induce them to invest their money in the company which they would not otherwise have invested, but without any intention to cause wrongful gain or wrongful loss to any one, is nonetheless a fraudulent act.

Distinction between Fraudulently and Dishonestly.-(1) ‘Dishonestly’ does not require deception or concealment as its ingredient while deception or concealment is an ingredient of fraudulently.

(2) Dishonestly requires an intention to cause wrongful loss or wrongful gain of property. Fraud does not require such an intention. There can be fraud even though there is no intention to cause pecuniary loss or damage to the person deceived.

(c) Good faith. Section 52 of the Indian Penal Code defines that “nothing is said to be done or believed in good faith which is done or believed without due care and attention.”

The phrase “due care and attention” is very important, for it pervades temper of the entire definition of good faith. Due care and attention’ involve absence of carelessness or negligence. Simple belief without any real ground for such belief does not constitute good faith. In order to constitute good faith, there must have been a genuine effort to reach the truth of a matter with due care and attention, rather than a ready acceptance of an ill-nurtured belief.

A good intention and reasonable care and skill are important factors to be taken into consideration to determine as to whether and act has been done in good faith. General circumstances and the capacity and intelligence of the concerned person must be kept in mind.

The degree of requisite care and attention varies with the circumstances and the capacity and intelligence of the person whose conduct is in question. The degree of care and attention therefore, varies with the degree of danger which may result from the want of care and attention.

In the case of Sukroo Kabiraj v. Emperor, 14 Cal 566, the Kabiraj performed an operation for internal piles with an ordinary knife resulting in the death of the patient. He was charged and convicted under Section 304-A, LP.C. for causing death by doing a rash and negligent act. Being uneducated in principles of surgery, he could not be said to have acted in good faith.

In P. Swaminathan v. Lakshmanam, 1992 Cri. L.J. 990, the Madras High Court held that a declaration in a newspaper two and a half months after the sale of land under a registered sale deed that the land was sold under compulsion was not made in good faith.

In Harbhajan Singh v. State of Punjab, AIR 1966 SC 97, Court held-The definition of good faith is merely a negative one. It says that an act done without due care and attention is not presumed to have been done in good faith. The section makes no reference to the honesty and good motive which are involved in general meaning of good faith and which are noticeable in the definition of good faith in other statutes. Such as General Clauses Act, 1897.Section 3 (32) of the of the Act reads as follows:

“A thing still be deemed to be done in good good faith when it is in fact done honestly, whether it is done negligently or not.”

How far is good faith a defence? The plea of good faith, if established, will be a good defence in the following cases:

(1) Act done in good faith pursuant to a judgment or order of Court (Section 78).

(2) Act done by a person bound by law or believing himself by a mistake of fact, in good faith, to be justified by law in doing it. (Sections 76, 79).

(3) Act done in good faith for benefit of another. (Section 92).

(4) Communication made in good faith. (Section (93).

(5) Obstruction of a private way over land or water by a person who believes in good faith to have a lawful right to place such obstruction. (Exception to Section 339).

(d) Public Servant.-According to Section 21 of I.P.C., “Public servant” denotes a person falling under any of the descriptions hereinafter following, namely.

(1) Every Commissioned Officer in the Military, Naval or Air Force of India; (2) Judge or any person discharging adjudicatory function; (3) Every officer of a Court of Justice including a liquidator, receiver or Commissioner or a Bench clerk in charge of compensation; (4) Juryman, assessor or member of Panchayat assisting a Court of Justice or public servant; (5) Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice or by any other competent public authority; (6) Person holding any office empowered to keep a person in confinement, (7) Officer of the Government who protects public health, safety or convenience and prevents offences; (8) Officer who takes, receives, keeps or expends, makes any survey, assessment or contracts on behalf of Government and investigates, executes, makes, keeps any document in the pecuniary interest of Government; (9) Officer who takes, receives, keeps or expends any property, makes survey to levy rate or tax in village, town or district, (10) Person who holds office to prepare, publish, maintain or revise electoral roll or conduct election; (11) Persons who are in service-(a) of the Government for performance of any public duty, (b) of a local authority established under Central, Provincial or State Act or Government Company.

Following persons are held as Public Servants.-(1) A receiver in Insolvency-Ganesh Pd. Dutta v. State, (1962) 1 Cri LJ 658.

(2) A bench clerk in charge of the Labour Commissioner under Workmen’s Compensation Act, 1923.-Ram Krishna Tripathi v. State, 1982 Cut LT 419.

(3) A surveyor while performing his legitimate function under any of the revenue Civil Court is a public servant Rameshwar Sah v. State of Bihar, 2002 Cri LJ 3899 (Pat.)]

(4) Public Officer investigating a cognizable offence under Essential Commodities Act, 1955. Satya Narain v. State, AIR 1980 SC 506.

(5) Person in the service of the Government or entrusted with the performance of public duty.

(6) A teacher in a government school. State of Ajmer v. Shivji Lal, 1959Cr LJ 1127.

(7) A Patwaree.-Mudsoodeem v. Emp., (1870) 2 NWP 148.

(8) A Kotwal-Doma v. State, 1981 Cr LJ 653 Bom.

(9) A roadways bus driver-Ranjeet Singh v. State, AIR 1965 All 478.

(10) An employee in the Indian Airlines-In Re Jagdeesh, AIR 1966 AP35.

(11) A khalasi in the railway carriage shop who prepares and issues railway passes. Bajrang Lal v. State, AIR 1976 SC 1008.

(12) The Chief Minister.-Nar Bahadur Bhandari v. State of Sikkim, 1996Cr LJ 3413.

(13) Sarpanch of Gram Panchayat.-Bindeshwari Sharma v. State, 1980 Cr LJ (NOC) 157.

(14) Pradhan of Gram Sabha.-S.P. Pradhan v. H.S. Mathur, AIR 1970 All. 251.

(15) An employee of a nationalised bank. Kurien v. State, 1982 Cr LJ 780.

(16) The Managing Director of Electronics Corporation of India which is a Government Co.-A.S. Rao v. C.N.N. Kutty, (1978) 2 And. WR 144.

(17) Chairman of Board of Film Censors. Asha Parekh v. State, 1977 CrLJ 21.

(18) An employee of the Life Insurance Corporation of India. State v. O.P. Dogra, (1985) 4 SCC 319.

(19) Superintending Engineer in State Electricity Board. Sri Balram Singh v. State, 1990 Cr LJ 719.

(20) Any other Minister. Dattatreya Narayan Patel v. State, AIR 1975 SC 1685.

Ministers, Chief Minister, and employees of railway and the nationalised banks but M.L.A. or M.L.C. have been held to be public servants.

Following are not Public Servants held in different cases.- (1) Member of Legislative Assembly.-R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684.

(2) Lecturer of a Government College who has been appointed an examiner by a University, an autonomous institution.-State v. M.P. Dewedi, AIR 1973 SC 330

(3) A Municipal Councillor elected by people and working independently not having been appointed by Government-R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684.

A Government servant differs from a public servant in the manner that the former is any officer or servant employed or deputed or allowed to remain as government servant by the authority of and under the Government of India.

Judges of High Courts and Supreme Court are public servants. [Verraswami v. Union of India, (1991) 3 SCC 655]

In R.S. Nayak v. A.R. Antulay, AIR 1984 SC, 684, the Supreme Court of India held that a public servant must be paid by the Government or semi- Governmental authority after having been appointed by it and must discharge his duties as provided by the Government rules and regulations.

(e) Valuable security. According to Section 30, I.P.C., the words “valuable security” denotes a document which is or purported to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.

Illustration- A writes his name on the back of a bill of exchange. As the effect of this endorsement is to transfer, the right to the bill to any person who may become the lawful holder of it the endorsement is a valuable security.

Distinction between document and valuable security

Document

(1) Every document is not a valuable security.

(2) Document denotes any matter expressed or described upon any substance by means of letters, figures or marks or by more than any one of those means intended to be used or which may be used, as evidence of these matter.

Valuable Security

(1) Every valuable security is a document.

(2) Valuable security denotes that any legal right is created, extended, transferred, restricted, extinguished or released etc.

A document which creates a right and also one which though purports to create a right but due to any defect fails to create any right is a valuable security. The Supreme Court has held that an Income-tax assessment order is a valuable security. (Ishwarlal v. State, AIR 1969 SC 40). But forged certificates on the basis of which someone tries to get admitted to a college are not valuable securities. [Bhausaheb Kalu Patil v. State, 1980 Cri. L.J. 1312 (SC)]

Q. 4 (a). What is the law regarding constructive liability? Discuss the concept of “Common intention” embodied in I.P.C.

Ans. Joint offenders- When an offence is committed by several persons acting in collaboration, all such persons are known as joint offenders.

For example, if two men hold a third for cutting his throat and one of these two actually cuts it, there is no difficulty in determining liability.

Principles. There are four principles governing joint offenders- 1. Acts done by several persons in furtherance of common intention (Section 34). When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it had been done by him alone.

Section 34 has following essentials-

(1) A criminal act,

(2) By more than one persons,

(3) In furtherance of a common intention of all

The expression ‘common intention has been given various meanings which are as follows:

(1) Common intention implies a pre-arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group

(2) Common intention means a desire to commit a criminal act without any contemplation of the consequence.

(3) Common intention means the mens rea necessary to constitute the offence that has been committed.

(4) Common intention has also meant evil intention to commit some criminal act but not necessarily the same offence which is committed.

(5) Common intention cannot be given any specific meaning which we can apply any where, therefore its exact meaning depends upon the circumstances of each case.

Section 34 of the LP.C. applies only when a criminal act is done by several persons in furtherance of the common intention of all. Common intention’ presupposes a meeting of minds of those involved in the crime. Meeting of mind means that each one of the participants knows and concurs with the mind of each of the others. This will be possible only when there is a pre-arranged plan or prior consent among the participants. The plan or the consent must be before the commission of the crime. The common intention should be anterior in time to the commission of the crime showing a pre- arranged plan or a prior consent and though it is difficult in most cases to prove the intention of an individual, it has to be inferred from the act or conduct or other relevant circumstances of the case. [Ram Tahal v. State, (1972) 1 SCC 136]

In R. v. Cruse, (1888) CP 541, a constable with his assistant went to arrest a person. Several persons who were friends of that man beat the constable and his assistant. The assistant was killed but it was not known who gave the fatal blow. Every person was held liable for causing death of the assistant, because where several persons simultaneously attack with a common intention, no distinction between fatal and not fatal injury would be made while allocating guilt.

Similarly, in Dacre’s case, (Palm 3, 1 Hale PC 439), Lord Dacre agreed with several persons to hunt in another’s park for deer, and to kill anyone who might resist. One of the persons killed the keeper. All were held to be guilty of the murder, though Lord Dacre was a quarter mile distant and knew nothing of the individual blow.

In Barendra Kumar Ghosh v. King Emp., AIR 1925 PC 16, a Sub- Postmaster was counting money in a room of his his post office. The assistants appeared at the door which opened I in the room through court yard, demanded the money and fired instantaneously at the post-master who died. Barendra Kumar Ghosh was standing outside and he was caught while all assailants ran away. The accused was held guilty under Section 34 and it was observed, “Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who only stand and wait.”

Similarly, in Mehboob Shah v. Emperor, AIR 1945 PC 118, the Privy Council observed that “Common Intention” should not be confused with similar intention. It is distinguished from same or similar intention

In the case of Inder Singh, AIR 1933 Lah. 819, where four accused went with common intention to commit robbery and one of them went to take the owner of the house from the field where he was working, in order to threaten him to surrender the property, while three stayed at the house and one of them shot down the son of the owner who happened to come to the house. The accused was absent when the murder was committed. It was held that he was one of three participants in the joint criminal action in the course of which the murder was committed and was guilty of murder.

In Kripal Singh v. State of U.P., AIR 1954 SC 706, Bhoopal, Kripal and Sheoraj were working in their field. They saw that Man Singh and Sher Singh were going to work in Jairaj’s field. Man Singh and Sher Singh were asked not to go to work in Jairaj’s field but they did not care. Thereupon, Bhoopal, Kripal and Sheoraj began to beat them. Then Jairaj came there and asked the appellant not to beat his labourers. Sheoraj gave a lathi blow on the legs of Jairaj. Jairaj fell down and Kripal stabbed him near the ear by a spear. Bhoopal stabbed on the left jaw and then extracted the blade of the spear putting his leg on the chest. Consequently, Jairaj died. The Supreme Court held that Bhoopal alone was guilty under Section 302 while others were guilty under Section 326 as the common intention was to beat the labourers and the common intention to kill the deceased did not suddenly develop at the spur of the moment.

In Rishi Deo Pandey v. State of U.P., AIR 1955 SC 331, ‘A’ and ‘B’ two brothers were seen near the cot of the victim who was sleeping. One of them was armed with a gandasa and another with a lathi. Both of them were seen running away from the bed-room of the victim. The victim died of an incised wound on the neck which was necessarily fatal. The Court found that the two brothers shared the common intention to cause death. It was held that common intention may develop on the spot also.

In Jai Bhagwat v. State of Haryana, 1999 Cr LJ 1634 (SC), it was held that to apply Sec. 34 of IPC apart from that there should be more than one accused. two factors must be established:

(a) common intention,

(b) participation of the accused in the commission of an offence.

Foundation for conviction on the basis of common intention is based on the principle of vicarious responsibility by which a person is held to be answerable for the acts of others with whom he shared common intention [Subed Ali v. State of Assam, AIR 2020 SC 4657]. A common intention qua its existence is a question of fact and also requires an act “in furtherance of the said intention. [Jasdeep Singh @ Jassu v. State of Punjab, AIR 2022 SC 805]

In Sukhan Raut v. State of Bihar, 2002 Cr LJ 560 (SC), the common object of an unlawful assembly (an assembly ass of five or more members under Section 141 of IPC with a common object as defined in that section) was to commit a criminal trespass and no injury was caused by any of its members. Injury was caused to the deceased by only one member on provocation by another member. The Supreme Court held that only the member who caused the injury and the one who instigated him to do so were guilty of sharing common intention.

However, in Marhu Yadav v. State of Bihar, 2002 Cri LJ 2819 (SC), the accused persons entered into the field of the deceased and began to uproot the standing crop. The deceased caught hold of the main accused. Another accused came to the scene and asked the deceased to release the main accused. On the refusal of the deceased to do so, they began to assault him as a result of which he died. The Supreme Court held that though the common object of all accused was not thus proved yet their common intention though initially absent, was formed on the spot and, therefore, all the accused were guilty.

In Ramdeo Kahar v. State of Bihar, 2009 Cr. LJ 1715 (SC), the appellants three in number alongwith eight others came to the field where the deceased alongwith his son was working. The appellants were searching one person and were armed with country-made rifle, country-made pistol, Gandasa and fire-arms. They inquired about one person and asked him to come out but the deceased advised them not to fight. Thereupon, they assaulted the deceased. Other accused persons prevented the prosecution witnesses to help the deceased. Thereafter, they left the place of occurrence together firing gun- shots. Held, only because they did not find the person for whom they had come and committed murder of another person, by itself may not be sufficient to arrive at a conclusion that they had no intention to commit the offence of murder. Common intention of the appellants had been proved by the facts of the case. The common intention may develop suddenly at the spot. There need not be a long interval of time between the formation of the common intention and the doing of the act.

In Thoti Manohar v. State of A.P., AIR 2012 Cri. L.J. 3492 (SC), both the accused who were inimical towards the deceased entered his house armed with deadly weapons. Together they dragged the deceased out of his house and one of them gave him blows which caused his death. The Supreme Court held them both guilty of murder committed in furtherance of their common intention even though the other accused had not caused any injuries because his participation in the incident from the beginning to the end clearly revealed that they shared the common intention to commit murder.

2. Act done by several persons criminal only because it is done with criminal knowledge or intention (Section 35).-“Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act, with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention”. For example, A and B beat C who dies. A intended to murder him and knew that the act would cause death. B only intended to cause grievous hurt and did not know that his act would cause death or such bodily injury as was likely to cause death. A would be guilty of murder and B of causing grievous hurt.

3. Co-operation by doing one of several acts constituting an offence (Section 37). “When an offence is committed by means of several acts, whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other persons, commits that offence.”

Illustration. A and B agree to murder Z by severally and at different times giving him small doses of poison. A and B administer the poison accordingly to the agreement with intent to murder Z. Z dies from the effects of the several doses of poison so administered to him. Here A and B intentionally co-operate in the commission of murder and as each of them does an act by which the death is caused, they are both guilty of the offence though their acts are separate.

4. Person concerned in criminal act (Section 38). “Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act.”

Illustration. A attacks Z under such circumstances of grave provocation that his killing of Z would be only culpable homicide not amounting to murder. B having ill-will towards Z and intending to kill him and not having been subjected to the provocation, assists A in killing Z. Here though A and B are both engaged in causing Z’s death. B is guilty of murder and A is guilty only of culpable homicide.

In Mukund alias Kundu Misra and another v. State of M.P., AIR 1997 SC 2622, the accused persons, who were two in number, trespassed into house of the complainant and committed murder for gain. They were present at the place of occurrence and soon thereafter stolen properties were recovered. Robbery and murder were committed in one and same transaction. It was held that the presumption can be drawn not only of the fact that the persons in whose possession properties were found had not only committed robbery but also had committed murder. The Supreme Court held that mode of distribution of looted properties proved joint participation of both accused, therefore, the conviction of both accused, was just and proper.

But in Chhotu and others v. State of Maharashtra, AIR 1997 SC 3501, three persons assaulted the deceased and caused murder by giving repeated blows upon him for sometime. One of the accused was seen standing with knife in his hand. It was observed that he cannot be held to have shared common intention on ground of such fact only.

In Goudappa v. State of Karnataka, AIR 2013 SC 1595, the five accused persons who were brothers entered the house of the deceased abusing him and saying that he had failed to keep one of the brothers’ daughter who was married to the deceased. Two of them caught the deceased and one stabbed on his chest resulting in his death. It was held that the severity of blow, nature of weapon used and vital area of body on which blow was inflicted indicated clearly the common intention of all the accused persons to murder the deceased. All of them were held guilty under Sections 143 and 148 of 1.P.C. and the three accused persons who were directly involved in catching hold of the deceased and stabbing him were held guilty under Section 302 read with Section 34 of L.P.C.

Q. 4 (b). How common intention is different from similar intention.

Ans. Common intention and similar intention-Common intention and similar intention are different from each other while the former pre- supposes a meeting of minds, the same is not required in the latter. For instance, ce, A and B both want to kill X who is blackmailing them. A thinks that the best way to kill X is to shoot him dead when he goes out for an after- dinner walk. Coincidently, B also thinks likewise. A and B never met with each other and are ignorant of each other’s intention. When X is on an after- dinner walk, both A and B are waiting for them at different spots, fire at him as a result of which X dies. A and B have same or similar intention in this case but no common intention.

In Mehboob Shah v. Emperor, AIR 1945 PC 118, the deceased A and his friends on board a boat were going up the stream of a river to collect reeds. On the way, there were met by M, the father of W who warned them not to collect reeds from his land. This warning was ignored when A and his friends were returning down stream with some bundles of reed, M’s nephew G blocked their way and tried to take away the bundles. He caught hold of the rope of the boat and pushed A. On this A took in his hands a ten feet long wooden pole used for rowing the boat. Seeing this G shouted for help. W and M armed with guns came on to the place on hearing this shout for help. W escaped after firing at A who was killed. M fired on A’s friend H. The trial court held M guilty of attempt of murder to H. The High Court held him guilty for murder of A under Section 302 read with Section 34 of the LP.C. The Privy Council set aside the judgment of the High Court and held that it was not a case of murder in furtherance of common intention. The Privy Council observed that it might be a case for same or similar intention because when M and W went to the scene of occurrence armed with guns they might have same or similar intention of saving G but there was definitely no meeting of minds between the two.

A common intention pre-supposes necessary meeting of the minds and a pre-arranged plan. It is not enough to have the same or similar intention independently of each other. [Pandurang v. State of Hyderabad, AIR 1955 SC 216]