UNIT II GENERAL EXPLANATIONS AND EXCEPTIONS

MISTAKE
- Section 76 talks about the mistake of fact. the section reads as act done by a person bound or by mistake
of fact believing himself bound, by law. The section says that nothing is an offence which if done by a
person who is in mistake of fact and not by mistake of law and does so in good faith believing himself to be
bound by law to do it.
- Section 79 reads as Act done by a person justified, or by mistake of fact believing himself justified, by law.
- Section 76 excuses a person from criminal liability who is bound by law to do something and has done it or
who in good faith owing to mistake of fact believes that he is bound by law to do something. Whereas
section 79 absolves a person who believes that his act would be justified by law. Under s.76, a person
believes himself bound by law to do a thing and thereby feels that he is under legal compulsion to do a
thing while under s.79 he acts because he thinks that he is justified in doing so and thereby believes that
there is a legal justification for his action.
- It is essential to take defence under this section that there is mistake relating to a fact and not relating to
law. There is a latin maxim which reads as ignorantia facit doth excusat, ignorantia juris non excusat which
means ignorance of fact excuses, ignoranceof law does not excuse. A person who claims immunity saying he
did not know the law or was not aware about the law can not be given immunity because it can not be seen
as an excuse. Whereas mistake of fact can be taken as an excuse to safeguard oneself provided the mistake
was done in a good faith. Good faith can be defined as nothing is said to be done or believed in good faith
which is done or believed without due care and attention(section 52)
- For instance, a soldier who fires on a mob by order of a superior officer in conformity with the commands of
the law. The action of the soldier is protected under this section.

ACCIDENT
- Section 80 deals with accident. This section says that nothing is an offence which is done by accident or
misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner
by lawful means and with proper care and caution.
- There are mainly 5 essentials of this section (i)accident or misfortune; (ii)without any criminal intention or
knowledge; (iii)doing of a lawful act; (iv)act done is by lawful means and in lawful manner; (v)proper care
and caution. Thus, it can be said that any kind of unavoidable act which results into an accident or
misfortune which was done without any kind of premediation of mind or without any knowledge and thee
was no unlawful object behind it and also proper care and diligence was taken in order to avoid such an act
but then also the act happened the person will get defence under section 80 of the IPC.



NECESSITY
- Section 80 embodies the doctrine of necessity as defence against criminal liability. This lays down that a law
can be broken in order to achieve a greater good. For example, a ship carrying 100 passengers confronts a
small boat carrying 2 persons one one side and a glacier on other side. The captain chosses to run down the
small coat gets defence under this section as he killed 2 persons in order to save 100 persons present on the
ship. This section deals with inevitable accidents. Under this section the accused person has knowledge that
he is likely to cause harm, but it is specifically stated that such knowledge shall not ne held agains him.

INFANCY
- Section 82 reads act of a child under seven years of age: nothing is an offence which is done by child
under seven years of age.
- Section 83 reads act of a child above seven and under 12 of immature understanding. This section states
that nothing could be called an offence if done by a child above 7 years of age and under 12 years who has
not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct
on that occasion
- The basic idea behind these sections is that a child can not be help liable for an offence because he does not
have the capacity to weigh the consequences of his act which he does in order to establish an offence.
- Section 82 clearly exculpates a child who is below the age of 7 years but section 83 says that a child who is
above 7 years but below 12 years can not be inculpated of an offence what is to be taken into consideration
is his level to maturity of understanding. It can be inferred from the nature of the act and his subsequent
conduct and other allied factors. It need not be proved by the prosecution.

INSANITY
- It is another defense which is available to a person who has committed some kind of offence under this
code. Section 84 talks about the act of a person of unsound mind. It says that nothing is an offence if done
by a person who at the time he committed the offence is of unsound mind, is not capable enough to have
knowledge of the nature of the act he is to commit and has no capacity to determine what is right or wrong
owing to the reason of insanity.
- The section derives its origin from the Latin maxim actus non facit reum nisi means sit rea which means an
act forbidden by penal law is not punishable if it is unaccompanied by a gulty mind. The justification behind
this section is that a person of unsound mind is incapable of forming an intent. A mad man has no will, in
fact he is punished by his own madness.
- The foundation for the law of insanity was laid down by the house of Lords in 1843 in MNaghten case. The
accused person by the name of Daniel MNaghten suffered from a delusion that the then Prime Minister of
Britain had injured him. He mistook some other person for the PM and killed him. The accused took the
plea of insanity. He was held to be not guilty by reason of insanity.
- The essentials for attraction of this law are : (a) Unsoundness of mind : to get protection under this section
the insanity should be that which completely impairs the cognitive faculty of the mind to the extent that the
person is incapable of knowing what is right and what is wrong. IT is only legal insanity which is considered
not medical. (b) Lack of motive: There should be no motive to harm a person. This is an essential because
there might get chances when a person has motive to harm a person but takes defense of insanity.
Therefore, there should be absence of motive.

INTOXICATION
- This defense is available under section 85 and 86. The former section says that nothing is an offence if done
by a person who is at the time of committing it is intoxicated and due to which incapable to judge what is
right and what is wrong, also there is absence of knowledge of the nature of the act; this defense is only
given when the person is intoxicated administering any kind of substance without his knowledge.
- Section 86 says that where the offence committed by an intoxicated person is of such a nature that it is not
an offence unless done with a particular knowledge or intent he will be liable to be dealt with as if he had
the knowledge of the same unless the thing which intoxicated him was administered without his
knowledge.
- The following are the essentials for taking defense of intoxication : (a) incapable of knowing the nature of
the act : the influence of intoxication should be such that he is not able to judge the consequences of the
act done by him while he was intoxicated; (b) without his knowledge or against his will : these terms denote
that the intoxication should be involuntary one. The former expression denotes that the person concerned
is ignorant of the fact as what is consumed by him is an intoxicant. He should be totally unaware whatever
is given to him has intoxicating effect. The latter phrase means that the person was forced to consume
intoxicant.

CONSENT
- Volunti non fit injuria an old Roman maxim which means harm caused with consent cannot be considered
an injury, plays some role in criminal law. Consent means something that is done deliberately and by free
will. Section 90 says that consent should be a free one, if the consent is given by a person put under fear of
injury or under misconception of fact the consent is not such . the consent of an insane person or by a
person who is below 12 years is not a valid consent.
- This section provides that consent to be a ground for avoiding criminal responsibility is required to be a real
consent ant not vitiated by fear, fraud or immaturity. Two conditions necessary for application of section 90
are : the consent was given under fear of injury or misconception of fact and the accused was conscious of
the fact that the consent was given under fear or misconception. For instance, A and Z agree to fence with
each other for amusement. This agreement implies the consent of each to suffer any harm which in the
course of such fencing may b caused without foul play, and if A while playing fairly hurts Z, A commits no
offence.

GOOD FAITH
- This defese says that nothing is an offence if done in good faith. The meaning of good faith is when the
person has no bad intentions and due care and diligence is excercised.
- For example, A, a surgeon knowing that a particular operation is likely to cause the death of Z, who suffers
under a painful complaint but not intending to cause Zs death and intending in good faith, Zs benefit
performs that operation on Z and with /zs consent. A has committed no offence.

PRIVATE DEFENCE
- The law of private defence says that nothing is an offence if done in the exercise of the right of private
defence. Aperson has right to defend his body and property and while doing so he can exercise his right of
private defense subject to certain exceptions given under section 99 of the code.
- Section 99 says that there is no right of private defense against ac act which does not cause apprehension
of death or of grievous hurt if done by a public servant acting in good faith under color of his office, if done
at the direction of a public servant or where there is time to have recourse to the protection of the public
authorities.
- The right to private defence should not be exercised without keeping in mind the circumstances. The right
to private offence is given to protect one self and in order to exercise this it should be kept in mind that
there is proximity is the act done and defence taken. It should not be such that a person if asks another
person to take out all the money in order to rob him and the other persons fires at him the defence will not
be available to such person since there is no proximity between the act and defence.

CONSTRUCTIVE JOINT LIABILITY
- S. 34. Acts done by several persons in furtherance of common intention. - 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 were done by him alone
- There are 3 essentials of section 34 : (a) A criminal act must be done by several persons; (b) The criminal
act must be to further the common intention of all; (c) There must be participation of all the persons in
furthering the common intention.
- It is clear that when several persons are alleged to have committed a criminal act, each may have had a
different role to play in the process. It may not be that every hand actively indulged in the act; there are
myriad possibilities for encouragement, support, help, and protection, as also active participation or
commission of the act itself. Thus, even though a particular act may have been committed by an individual,
where common intention exists, and they had all acted in furtherance of that common intention, then all of
them are held liable for the offence.
- The Doctrine of Joint Liability thus defined is said to have been evolved in the case of Reg v. Cruise where,
when a constable had gone to As home to arrest A, three other persons B, C, and D upon seeing the
constable emerged from the house and physically attacked him, thereby driving him away. The Court here
held that each member of the group i.e. B, C, and D were equally liable and responsible for the blow,
irrespective of whether only one of them had actually struck the blow.
- S. 38: Persons concerned in a criminal act may be guilty of different offences - 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.

- S. 38 has been held to be the converse of S. 34 considering that S. 34 deals with acts that involve common
intention whereas S. 38 has to do with acts that could involve differing intentions. It provides for different
punishments for different offences and thus makes space for the possibility that the same criminal act could
be done jointly but by people who have different intentions thereto, and hence must be held liable for
different offences. In the case of Nitya Sen v. State of West Bengal of the three accused two assaulted the
deceased with a particular weapon leading to his death, whereas the third did not. It was held that while
the first two were guilty of murder, the third was only guilty of culpable homicide u/s 304 Part II as he had
no intention to murder the deceased, despite possessing the knowledge that the assault by the other two
might lead to just such a consequence.



UNIT III- ABETMENT AND CONSPIRACY

ABETMENT
- Section 107 and 108 of IPC deal with the Abetment. Section 107 Abetment of a thing. This section
explains when does a person abet doing of a thing.
- A person may not himself commit an offence but may encourage another person to do it by way of
inducement, request or help. In such a case a person is said to be abetting a thing. The person in order to
constitute an offence may assist, aid, help, promote which according to IPC is also a punishable offence
under sections 107 120.
- Section 107 says that a person abets the doing of a thing firstly, if he instigates any person to do that
thing; secondly, if he engages with one or more persons in any conspiracy for the doing of that thing, and
if by such conspiracy any act or omission takes place in pursuance of that conspiracy; thirdly, if he aids,
the doing of that thing. Explanation 1 of the section says that the act is said to be instigation if a person
wilfuly misrepresents or conceals a material (important) fact which he has the duty to disclose, voluntary
does not disclose or causes the doing of a thing. Explanation 2 of the same section explains what
constitute the doing of an act. It explains that if any person either prior to the act or at the time of doing
the act does anything in order to take the act to its commission is said to be doing the act.
- Section 108 defines the term Abettor. A person abets an offence who either abets commission of an
offence or commission of an act which would be an offence If committed by a person capable by law of
committing an offence with the same intention or knowledge as that of the abettor. Explanation 1 of the
section says that any kind of illegal omission of an act may also amount to offence although the person
may not himself be bound to do the act. Explanation 2 states that in order to constitute the offence of
abetment it is not necessary that the act abetted should be committed, even if the act is not committed
but abetment takes place the abettor can be accused of abetment.
- In order to attract these sections it is necessary that a close connection is built between instigation and
the act committed. A mere association of the accused with the perpetrator of an offence does not make
him an abettor.
- In Barendra Kumar Ghosh v King Emperor it was held that the presence of a person at the scene of
occurrence does amount to abetment if it is intended to encourage the commission of the offence.
- In Tej Singh v State of Rajasthan it was held that shouting Sati Mata ki Jai by people who were attending
the funeral which lead to the immolation of the wife of the deceased constituted instigation by those
people and constituted the offence of abetment.


CONSPIRACY
- Sections 120A and 120B deal with the offence of criminal conspiracy. The former section defines the term
criminal conspiracy and the latter section provides the punishment for the offence of criminal conspiracy.
- As per section 120A when two or more persons agree to do (i) an illegal act or (ii) an act which is not
illegal but doing it by illegal means, then such an agreement is called criminal conspiracy.
- Agreement which this section talks about does not mean any formal agreement but meeting of thoughts
or intention of two or more persons. The proviso to the section says that no agreement but the
agreement to commit an offence will constitute the criminal conspiracy.
- An act is said to be illegal if the law of the land prohibits such an act. Explanation of this section says that
it is immaterial whether the illegal act is the ultimate object of such an agreement or is merely ancilliary
to that object.
- The main ingredients of section 120A are as follows : (i) there should be two or more persons; (ii) there
should be an agreement between such persons; (iii) the agreement must be to do or cause to be done an
illegal act or a legal act by illegal means.
- The proviso says that in the case of a conspiracy to commit an offece the mere agreement is sufficient to
impose liability without the requirement that some overt act in furtherance of the conspiracy should have
been committend. However, in the case of a conspiracy to do a legal act by illegal means there ought to
be some overt act which should have been committed by one or more parties to the agreement, apart
from the agreement itself.
- The nature and scope of the lae of conspiracy in section 120A :
(a) It is a substantative offence.
(b) Agreement is very important to constitute conspiracy
(c) Two or more persons are necessary and there should be meeting of their minds.
(d) If one of the acussed is acquitted this does not means that all will be set free.
(e) The gist of the offence is to break the law.
(f) The essence id doing of an illegal act.
(g) It is one of the essentials that common design or common intention should be there,
(h) When ab offence is committed by different persons acting in same manner but independently then
this does not constitute conspiracy.
(i) It is not necessary that all the conspirators know each other,
(j) It is also not necessary that all the conspirators know all the details of the offence to be committed.

- Section 120B provides for the punishment of criminal conspiracy. The section reads that whoever is a
party to the criminal conspiracy to commit an offence which is punishable with death, imprisonment for
life or rigorous punishment for a term of two years or upwards shall be punished in the same manner as if
he had abetted the offence. Also whoever is party to a criminal conspiracy other than a criminal
conspiracy to commit an offence punishable as above shall be punished with imprisonment of either for a
term not exceeding six months or with fine or both.









UNIT IV PUNISHMENT

THEORIES OF PUNISHMENT
DETERRENT THEORY
Deterrence has two purposes: (i) to restrain the wrong-doer from repeatedly indulging in crime, and (ii) to set an
example for others to deter and prevent them from committing crimes or violating laws.
Just as a wild animal cannot be allowed to range at will in the city streets, similarly assuming that there is a danger
that the criminal may again commit crime, the penalty of law is imposed upon him and his liberty is restrained until
the danger of his giving indulgence to his criminal propensities is past.
In certain cases, imprisonment may not be sufficient for the protection of society, or restraint by imprisonment
may not be wholly effectual, therefore, if it is reasonably considered necessary to terminate criminal's life, even
that is done for the purposes of deterrence.
This requires going into the history of the criminal and investigating the circumstances in which crime was
committed.
If it is found that he is indeed a dangerous criminal, or that he is a man of uncontrollable violence or of homicidal
tendency, or that he habitually commits serious crimes, or that he has a savage nature, or that he has committed
crime with inhuman brutality, or that he is likely to escape from prison if imprisoned and may again make innocent
people his prey, or that his existence is a danger to community, then the sentence of death is justifiable and
advisable.
If death penalty is considered not necessary, a long term of imprisonment or imprisonment for the remainder of
his life may be awarded to protect society from any further depredations on his part.
Deterrent punishment may also aim at frightening others from violating law. Where crime is committed in a
planned way and not under impulse or emotion, or where murder is deliberately planned with a motive of
vengeance, the extreme penalty works a deterrent effect.
Typical examples for deterrent punishment could be terrorism, bank or highway robberies, and murders
committed and the bodies cut into pieces either to get rid of persons or to attain inonetary benefits.
In cases where crimes are not the result of reasoning or of weighing considerations for or against the intended
crime, punishment with the intent of setting an example may not serve any purpose.
Deterrent punishment is in fact based on the doctrine of freedom of the will, according to which a person is free to
do as he pleases. Society should, therefore, try to discipline him and to bring his behaviour into conformity with
generally accepted standards by giving him deterrent punishment for violating laws.
Not only must he be taught a lesson but others may also be frightened through his punishment to
The policy of detection and apprehension is given little thought by many violators of the law, and often the penalty
is not even thought of, assuming it is known to him. Most normal persons do not order their lives by thoughts of
the future.
4. Man does not live by fear alone. Economic insecurity, loyalty to family and friends, and ambition, anger, and
resentment many a time compel him to face the greatest dangers in violating the law. No wonder many people
defy the law and risk arrest and imprisonment in order to satisfy their desires.
Moreover, it cannot be denied that if punishment is quickly, uniformly, publicly, and severely inflicted, it
undoubtedly would prevent many crimes that are being committed by those who pay no heed to the punishment
that they may receive for their acts.

RETRIBUTIVE THEORY
This theory is based on the idea of vindictive justice, or a tooth for a tooth and an eye for an eye. The principle is
that if a man has caused the loss of a man's eye, his eye one shall cause to be lost; if he has shattered a man's limb,
one shall shatter his limb; if a man has made the tooth of a man that is his equal fall out, one shall make his tooth
fall out.
This is to pay back the wrong-doer for his wrong-doing. It means that the wrong-doer has to be made to suffer by
way of retaliation, even if no benefit results thereby to him or to others.
Historically, at first the instinct or the impulse of revenge was gratified by retaliatory measures on the part of the
individual who suffered by the crime committed, or in the case of murder, by his relatives.
Later, the state took away the right of retaliation from individuals because it was believed that since the criminal
has broken the law and hurt someone, he deserves to suffer.
It was also argued by those who were in favour of retribution that the victim of crime and/or his relatives and
friends will refuse to cooperate with society if the offender is not brought to justice. Thus, assuming the function of
revenge by the state really constituted the beginning of criminal law.
This theory of vengeance was, however, rejected with the ingress of the idea of refinement and the humanising of
society. It came to be argued that the passion of revenge cannot be allowed to drive out reason.
The feeling of retaliation will create demand for making punishment as severe as possible. It will only array man
against man. The idea of treatment of criminals on the other hand will place a premium upon violence against
criminals.
Besides, in modern society, neither the victims of crime support the idea of physical torture of criminals nor the
public opinion would tolerate sanguinary methods of punishment.
In fact, now the popular demand is to eliminate all methods of punishment that cause physical suffering. The idea
of doing away with severe punishment for taking revenge does not mean that the offender will escape all pain.
Punishment will be awarded to the criminal but it would be devoid of the idea of vengeance.
The argument is that if a criminal is not punished, the public would feel frustrated and its obedience of the law
would appear meaningless. Punishment of criminals would help to unify society against crime and criminals and
also maintain respect for law. If law-violators and law-conformists receive the same treatment, there would be no
reason to abide by the law.
Thus, punishment of the criminal will make people rally in support of law enforcement, encourage them in their
fight against crime, and help the authorities to maintain the public sense of justice.
Today, not only the idea of revenge in punishment is rejected but even the idea of punishing the offenders is
criticised by many scholars. The argument that is most accepted is that we should hate the crime but not the
criminal.

PREVENTIVE THEORY
According to this theory the aim of punishment is to prevent or deter others from committing similar offences. A
criminal is punished to be made an example of to prevent others from committing the same crime.
This theory justifies capital punishment as an extreme form of punishment because of its determent effect. A man
has taken the life of another man. So he ought to be deprived of his life.
But a man is an end is himself. He is a person, and not a thing. He should not be used as a means for the good of
any other persons. It is unjust to inflict pain on one man merely for the benefit of others. A person should not be
treated as a thing, as a mere means for the good of others.
A person should not be punished to prevent others from committing a crime. He should not be made an example
of for the benefit of others. It is not just that one man should suffer pain not for his own benefit, but for that of
others, who will refrain from committing similar offences. But it may said in defence of the deterrent theory that
sometimes punishment of a criminal has a deferent effect on the criminal himself, so that he is not treated as a
mere means for the good of others.

REFORMATIVE THEORY
The reform theory is the most popular theory today. It holds that the proper aim of criminal procedure is to reform
the criminal so that he may become adjusted to the social order. This theory is in fact a mixture of sentimental and
utilitarian motives.
With the fading of faith in inflicting pain and with the spread of humane thought, belief in re-educating the
criminal to enable him to become a useful member of society developed.
Even from the strictest economic point of view, individual men and women are considered to be the most valuable
assets of any society. It is therefore better to save them for a life of usefulness rather than punish them by
imprisonment.
Punishment has its limitations: (1) It may produce harmful effects in the criminals who are punished. There
remains the possibility of serious damage to the personality of the offender. With bitterness in his heart, he may
seek an opportunity to strike back at society. (2) It may label the offender not only a criminal in his own eyes but
also in the eyes of the community.
Thus stigmatised, a man may be psychologically isolated from law-abiding groups and again be driven into the
association of criminals upon his release from prison. (3) Punishment may also cause a person to develop caution
and unusual skills, so that he could protect himself from apprehension, conviction and imprisonment.
It is, therefore, necessary that punishment is replaced by some alternative so that an offender might preserve his
self-respect and renew loyalties for group standards. Criminologists have, as a result, started talking of reformation
and rehabilitation of offenders.
Reformation must involve change of environment which makes a person criminal reducing his personality
adjustments, and create barriers in the inculcation of the principles of good citizenship.
Such a programme may even require restriction of liberty and curtailment of rights and privileges. In other words,
the reformative procedure must not be so pleasant as to encourage further criminal activities but it must be so
designed as to produce desirable changes in the personalities of offenders.

PUNISHMENT UNDER IPC
FINE
IPC prescribes fine as a penalty both independent and along with other penalties. The amount of fine varies with
offences. Section 63 says that where no sum is expressed to which a fine may extend, the amount of fine to which
the offender is liable is unlimited, but shall not be excessive. Sentence for non-payment of fine is also dealt with in
IPC[Sec.64].
Thus there are various penalties as discussed above which are imposed differently in different offences. The term,
nature, amount etc varies in each cases and offences and also according to Courts. Although all types of
punishments like retributive, reformative, preventive, deterrent are provided in IPC it is stated that reformative
approach to punishment should be the object of criminal law.


IMPRISONMENT

Life Imprisonment
Living behind the bars are sometimes far more painful than death sentence. It is the most popular type of sentence
after death penalty. In most serious offences this type of punishment is prescribed. Wherever death penalty is
prescribed, life imprisonment also finds a place as an alternative punishment. As there is hue and cry regarding
imposing of death penalty, in appropriate cases Courts impose life imprisonment as a safe method. Some sections
which impose Life Imprisonment as a penalty are : Sections 194, 255, 304, 304(B), 305, 307, 311, 313, 314, 326,
329, 364, 364(A), 376, 377, 394, 395, 396, 400, 409, 412, 413, 436, 449, 459, 460, 467, 472, 477, 489A, 489B, 489D
and 511.
Imprisonment both rigorous and simple.
Rigorous imprisonment is of such type where the convict will have to do hard labour. In many offences the period
of imprisonment varies. In simple imprisonment also the term of imprisonment varies according to offences.


CAPITAL PUNISHMENT

It is the most grave penalty imposed by IPC. Many sections still prescribe the punishment of death. Some of them
are as follows:
(a) Offence under Section 194 IPC where a person gives false evidence with intention to cause any person to be
convicted of capital punishment and if an innocent person is convicted and executed in consequence of such false
evidence, the person who gives such false evidence shall be punished with death or life imprisonment or rigorous
imprisonment and fine.
(b) Offence of murder for which punishment of death or imprisonment of life is prescribed under Section 302.
(c) Offence of murder committed by life convict as described in Section 303. This section has been held
unconstitutional by the Supreme Court in Mithu v. State of Punjab[AIR 1983 SC 473]. The peculiarity of this Section
is that punishment of death only is provided. No other alternative punishment is seen provided.
(d) Offence of abetting suicide of child or insane person as mentioned in Section 305 IPC where death is a
punishment with other alternative punishments.
(e) In Section 307 when a life convict attempts to murder and hurt is caused Death Sentence may be imposed.
(f) Kidnapping for ransom as described under Section 364A may be met with punishment of Death alongwith other
alternative punishments.
(g) If any one of five or more person s who are conjointly committing dacoity, commits murder in so committing
dacoity, every one of those persons shall be punished with death along with other alternative punishments.
In Bachan Singh v. State of Punjab hon'ble Supreme Court of India held that death sentence is to be given only in
rarest of rare cases.